The New Zealand Law Reports

ADMINISTRATION Debt Appointment of Debtor as Executor - Unattested Testamentary Document.] A letter written by a creditor to his debtor, to be operative only after the death of the writer, and which purports to forgive the creditor his debt, can only operate as a testamentary instrument, and is inoperative if not executed as a will. Hyslop v. Chamberlain ([1894] 3 Ch. 522) followed. BAKER V. SIMES AND OTHERS 184

2. Intestacy Next-of-kin Intervention of Public Trustee The Public Trust Office Consolidation Act, 1894"- Costs.] Deceased having died intestate, a surviving brother, as one of the next-of-kin, applied for administration of the estate. A sister of the applicant lodged a caveat against the granting of administration to her brother, and requested the Public Trustee to intervene.

Held, That administration must be granted to the Public Trustee, but the applicant was entitled to his costs out of the estate. MCGARRY (DECEASED)

In re 531

ANIMALS PROTECTION- The Animals Pro-
tection Act, 1880" The Animals Protection
Act Amendment Act, 1881
The Animals

APPEAL.

See PRACTICE. 4 and 5.

From Commissioner of Crown Lands exercising Jurisdiction under Mining Act. See PRACTICE. 15.

From Conviction by Magistrate.
See CONVICTION.

See JUSTICES.

1, 4, and 5.

From Magistrate's Court.

See MAGISTRATE'S COURT. 2. To Privy Council-Amount involved. See PRACTICE. 6.

ARREST.

See CRIMINAL LAW. 3.

BANKRUPTCY — Jurisdiction - Supreme Court Debtor resident in District of Local Court The Bankruptcy Act, 1892," Sections 7 and 30 (Subsection 4).] Subsection 4 of section 30 of " The Bankruptcy Act. 1892," does not give the Supreme Court jurisdiction to hear and adjudicate, when the fact has been brought to its notice, upon a bankruptcy peti tion against a debtor who has for the six months preceding the filing of the petition resided and carried on business within a district within which a District Court has been given jurisdiction under section 7.

Semble, That the subsection applies only where proceedings have been filed in the wrong Court through inadvertence, and adjudication made without the want of jurisdiction being brought to the notice of the Court.

In re Bowen,. Ex parte Bing, Harris, & Co. (14 N.Z. L.R. 720) considered. In re WANKLYN, Ex parte J. STAPLES & Co. (LIMITED) 242

Magistrate acting as

Licensing Committee-Pecuniary Relations with Applicant for Licence. See LICENSING. 1.

·The CAVEAT-Removal.

The

Protection Act Amendment Act, 1889 Animals Protection Acts Amendment Act, 1900" -Game Season-Taking or killing out of Season -Penalty.] Notwithstanding the repeal of section 17 of The Animals Protection Act, 1880,' which forbids the killing of native game except within the period therein mentioned, by Animals Protection Acts Amendment Act, 1900," any person taking or killing native game during the close season mentioned in section 2 of the last-mentioned Act is liable to a penalty under section 4 of The Animals Protection Act Amendment Act, 1881." McKENZIE v. PENMAN

1-Index L.R.

See CONVEYANCING.

CERTIORARI

- Locus Standi of Party applying for-When Writ discretionaryExercise of Discretion.

See LICENSING. 1.

COMPANY The Companies Act, 1882
Voluntary Winding-up-Authority of Directors.]
A resolution to wind up a company voluntarily
is good, though passed at a general meeting of
the company convened without a formal reso-
lution of the board, if convened by the autho-
rity of the directors as a body. In re C. & J.
COOMBS & Co. (LIMITED)
104
Winding-up-Vendors' Shares-Pro-
ceeds of Sale-Loan-To be refunded when Funds
permit.] The directors of the company, on the
20th of November, 1900, passed a resolution as
follows:- Throp, 230; Talboys, 230; Bolt,
80: These gentlemen, being the holders of
the above vendors' shares, offer to hand the
same over to the company to be sold, the
proceeds to be a loan to the company, to be
refunded only when the funds of the company
permit." The shares were sold, and the pro-
ceeds paid to the company.

Held, a loan to the company, payable in the
winding-up out of the assets.

Held, also, That such loan was so payable
though by the terms of issue preference shares
were to have priority in the winding-up to
vendors' shares. In re THE RICHARDS BEACH
GOLD-DREDGING COMPANY (LIMITED)

239

CONTRACT - Breach-Right to determine Con-
tract.] The defendants by a contract with the
plaintiffs for the erection of dredging machinery
on pontoons were bound to find a convenient
site, and did provide a convenient site on the
claim of another company, but before the
plaintiffs commenced the erection of the ma-
chinery the company owning the claim on which
the pontoons then were required them to be
removed. The defendants, therefore, placed
the pontoons at another convenient site. The
increase (if any) in the cost of erection of the
dredging machinery at the new site would have
been trifling as compared with the contract
price.

Held. That the plaintiffs were not entitled to
determine the contract, but must seek their
remedy in damages. A. & T. BURT COMPANY
(LIMITED) v. THE GENTLE ANNIE GOLD-DREDG-
ING COMPANY (LIMITED)

237

2. Construction of Deposit in Hands of
Third Person-Action to recover-Trust for Wife
and Children.] Plaintiff deposited £500 in the
hands of the defendant under an agreement by
which the plaintiff's wife agreed to commence
proceedings for a divorce from her husband:
the £500 was to be paid to the wife on her
getting the divorce. She commenced the suit;
but the plaintiff, repenting of his bargain, en-
tered an appearance and filed a defence, at the
same time demanding back his £500. The
defendant declined to return the amount, and
interpleaded. Pending the hearing the wife
succeeded in the divorce suit.

Held, That the defendant was not a stake-
holder; that his position was more analogous
to that of a trustee for the wife and children,
coupled with a trust for the plaintiff if the
arrangement was not earried out; that, viewing

CONTRACT-continued.

the plaintiff's position in the most favourable
light, it was not stronger than that of a pur-
chaser who had, under the terms of a contract,
paid an auctioneer a deposit, and that there-
fore, under the circumstances, he had not esta-
blished any right to recover back the £500 from
640
the defendant. LIVINGSTONE v. ELMSLIE

Deed-Variation by Parol - Comple-
tion in accordance with Contract as varied.
Whether binding.] Where a contract had been
made by deed, and it was subsequently verbally
agreed that the matter should be completed in
a somewhat different way from that originally
contemplated,—

Held, That, although it might be that neither
party could have compelled completion accord-
ing to the new agreement if it had remained
executory, it was not open to one of the parties,
after the matter had been completed and carried
into effect in accordance with the new agree-
and to attempt to resort to the terms of the
ment, to repudiate the settlement so arrived at
original contract, TOKO REIHANA V. THE KING.
(C.A.)
439

Money payable at a Time certain
Interest-Covenant to keep Accounts - Breach
Damages.] If a contract provides for the pay-
ment at a certain time of money, the amount
of which cannot be ascertained by the contract
itself, but which by the terms of the contract
is ascertainable at the time fixed by computa-
tion, such sum is a debt or sum certain, and a
jury is entitled under the statute 3 & 4 Will. IV.,
c. 42, s. 28, to allow interest upon it.

The breach of a covenant to keep proper
accounts does not per se entitle the covenantee
to recover costs as between solicitor and client
as damages. AITCHISON V. THE KAITANGATA
AND COAL COMPANY (LIMITED),
RAILWAY
(No. 3)

151
Penalties-Waiver-Delay caused by
Employer-Payments on Account without deduct-
ing Penalties-No Ageement to pay Penalties-
Order for Extra Works.] Where it is the duty
of an employer to provide and prepare a site for
the work to be done, and he fails to provide and
prepare the site, and the completion of the
work is delayed in consequence, the right to
recover penalties for non-completion by a given
time is gone, even if the contractor could not
have completed the work in time if no such
delay had been caused.

Where a contract provides that a sum of £2
per day may be deducted by the employer
from any moneys due to the contractor by
way of liquidated damages, and there is no
agreement to pay such sum, the employer can
only enforce the provision by deducting such
sum from the moneys due to the contractor,
and if money is paid without deducting penalties
accrued the penalty clause is gone.

Where extras are ordered which render it im-
possible for the contractor to complete the work
within the contract time the right to deduct
such sum is gone, whether such order is given

CONTRACT-continued.

before or after the time for completion of the
contract. BASKETT AND ANOTHER. THE BEN-
DIGO GOLD-DREDGING COMPANY (LIMITED) 166
See CONTRACTORS' AND WORKMEN's
LIEN ACT.

1892'

See MUNICIPAL CORPORATION. 1.

---

CONTRACTORS' AND WORKMEN'S LIEN ACT
The Contractors' and Workmen's Lien Act;
Work Lien - Contract Penalties
-Extras-Condition Precedent-Engineer's Cer-
tificate.] The erection of dredging machinery is
work within the meaning of subsection (b) of the
interpretation of the word in section 2 of The
Contractors' and Workmen's Lien Act, 1892."

The right to a lien under subsection 1 of sec-
tion 3 of that Act is for the amount the con-
tractor could sue for subject to the employer's
right to set off, but is not subject to a claim for
unliquidated damages.

Non-delivery by the employer till after the
time for completion of the contract of machinery
to be delivered by him for the purpose of the
contract relieves the contractor from penalties
for non-completion at the time fixed by the con-

tract.

The contractor cannot recover payment for
extras not ordered as provided by the contract,
and the ordering of such extras may prevent the
operation of the penalty clause.

When the balance of the contract price is pay-
able subject to the certificate of the engineer,'
such certificate is a condition precedent to a
right to a lien under the Act for the balance, as
well as to the right to sue for the balance; but if
money is due for work done and certified for he
may obtain a lien therefor though he may not
have completed his contract. BASKETT AND
ANOTHER V. THE GIBB'S BEACH GOLD-DREDG-
ING COMPANY (LIMITED)

201

2.
"The Contractors' and Workmen's
Lien Act, 1892 -Work-Mortgage.] The sup
ply of an artic to be used in connection with
a chattel or bu ding comes within the defini-
tion of the word work" in The Contractors'
and Workmen's Lien Act, 1892." In re Wil-
liams (17 N.Z. L.R. 712) followed. The lien
given by the said Act is not upon the land or
chattel, but on the whole interest of the em-
ployer, and so that term includes all persons
claiming under him whose rights are acquired
after the work in question is commenced.
contractor's lien in respect of work so com-
menced extends to the interest of the mortgagee
if notice be given with in the time prescribed by
the Act, but not to v ork commenced after the
date of the mortgage. In re A. & T. BURT
(LIMITED)
540

The

CONVERSION Liability for Wrongful Acts
of Third Parties Practice Amendment
Damages.] The plaintiff purchased from the
Official Assignee in Bankruptcy certain rails
and sleepers forming a tramway, and belonging
to a bankrupt estate. The defendant company

CONVERSION-continu:d,

wrongfully detached a number of the rails from
the sleepers, and converted them to its own use.
A quantity of the sleepers thus detached were
abstracted by persons unknown to the plaintiff
and defendant company, and converted to their

own use.

Held, That the removal and conversion of the
natural and reasonable consequence of the
sleepers by the unknown third parties was a
wrongful acts of the defendant company, and
that the company was therefore liable.

wrongful conversion by the defendant company.
The statement of claim alleged only the
At the conclusion of the plaintiff's case leave
was asked to amend, by adding an allegation
that, in consequence of the wrongful removal
of the rails by the defendant company, certain
and converted the sleepers to their own use.
parties, unknown to the plaintiff, carried away

Held, That the amendment was

one that

might properly be made, and that the applica-
time. HARLEY . THE WAIHI GOLD - MINING
tion for leave to amend was made at the proper
COMPANY (LIMITED) AND OTHERS

Disentailing

CONVEYANCING Estate Tail
Deed-Enrolment in High Court in England—
Land in New Zealand-Estoppel-Order of High
Court Jurisdiction Construction General
Words. The enrolment of a disentailing deed
in the Chancery Division of the High Court of
Justice in England is not effectual to bar an
entail as regards lands in New Zealand: the
deed must be enrolled in the Supreme Court
of New Zealand. Mason v. Mackerras (N.Z.
L.R. 2 S.C. 331) followed.

An order of the High Court of Justice in Eng-
land, made in proceedings in which the defend-
ant had been served and had appeared by
counsel, and declaring that the defendant's
father became on his death absolutely entitled
to the hereditaments and premises whereof he
was tenant for life in possession under a certain
will (which words, taken literally, would have
included certain lands in New Zealand), held not
to estop the defendant from setting up that her
father did not become absolutely entitled to the
lands in New Zealand, (a) because the High
Court would not have had jurisdiction to make
and (b) because, looking to the heading and the
a declaration of title as to lands in New Zealand,
recitals of the order, the High Court could not

be held to have intended to make a declaration
as to such lands. HILL AND ANOTHER v. BEN-
TINCK
- 57

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CONVEYANCING-continued.

then duly entitled, immediately after all avail.
able timber had been removed therefrom, and,
at any rate, before the expiration of ninety-nine
years. The deed of covenant was accordingly
executed by the company. Subsequently, the
title became a Land Transfer title, by the issue
of a certificate of title to the Native vendors.
In the meantime the plaintiff company had
acquired all the rights of the original purchasers,
and applied to have the conveyances brought
forward on the register-book. The Registrar
agreed to do this on the plaintiffs consenting
that a caveat should be entered on the title to
protect the interests of the Natives under the
deed of covenant. Accordingly the plaintiffs
became the registered proprietors of the block,
and the Registrar entered a caveat forbidding
the registration of dealings with the land affect-
ing the rights of the covenantees.

Held, That the covenant was bad, as infring.
ing the rule against perpetuities, and that the
caveat must be withdrawn. THE KAURI TIM.
BER COMPANY (LIMITED) v. THE DISTRICT LAND
REGISTRAR, AUCKLAND

CONVICTION - Two Informations on Same
Facts-Conviction on Second after Reservation of
Decision on First-Validity.] An information
was heard charging the defendant with assisting
in conducting a gaming-house under section 4 of
"The Gaming and Lotteries Act, 1881," and the
Magistrate reserved his decision. Another in
formation was then heard charging the same
defendant, on the same facts, with playing fan-
tan in a house kept for playing that game, under
section 10 of the Act. The Magistrate con-
victed the defendant on the second informa-
tion.

Held, That the conviction was bad, as by the
course which had been taken the defendant had
been deprived of the right of setting up, as a
defence to the second information, that he had
been already convicted or acquitted on the same
facts. Hamilton v. Walker ([1892] 2 Q.B. 25)
followed. JOE TONG AND OTHERS v. Cox 591
No Evidence to support.

See JUSTICES. 1.

Statement of Offences in Case on Appeal
-Omission of Material Ingredient-

Amendment.

See JUSTICES. 4.

CRIMINAL LAW - Assault on Constable
Arrest without Warrant-Proof of Offence for
which Arrest made-Meaning of "Obscenity"
Public Place- The Police Offences Act, 1884,"
Section 24 (Subsection 2), Section 35—Criminal
Code, Section 372.] The prisoner, being ordered
by a constable to move on," replied in filthy
language, and the constable thereupon arrested
him for obscenity in a public place-i.e., the
street in which the arrest was made. A scuffle
took place between the prisoner and the con-
stable, and while the prisoner was being con-
veyed in a cab to the police cells he violently
assaulted the constable, inflicting serious in-
juries. The prisoner was convicted in the
Magistrate's Court on the charge of using ob-
scene language in a public place, and sentenced
to three months' imprisonment.

At the trial of the prisoner for assault, &c.,
the conviction of the prisoner in the lower Court
was not proved, nor was the actual language
used by the prisoner elicited in evidence. No
formal evidence was given that the street where
the language was used and the arrest took place
was a public place within the meaning of sec-
tion 24 of "The Police Offences Act, 1884," nor
was it shown that the arresting constable had
endeavoured to ascertain the name and address
of the prisoner, as required by section 35 of the
Police Offences Act. It was therefore contended
that the arrest was unlawful.

Held, That the arrest was lawful; that formal

proof of the street in question being a public
place was unnecessary; that filthy language was
which the constable had arrested the prisoner
necessarily obscene; and that the offence for
had been sufficiently proved. REX v. DUFFY 164

Practice Joinder of Counts - Order
for Separate Trials-" The Criminal Code Act,
1893," Section 373.] Subsection 3 of section 373
of "The Criminal Code Act, 1893," was in-
tended to give the Court an unrestricted discre-
tion to order counts charging separate offences
to be tried separately, if for any reason what-
ever it should appear to the Court that this
course would be conducive to the ends of justice,
subject, as to the offences which come within
subsection 4, to the special provision therein
contained.

An order for a separate trial of each count
ought to be made if it appears that there is a
real danger that the evidence upon one count
may wrongly be taken into consideration in
dealing with another count, or that the prisoner

Statement of Offence-Sufficiency Amend- will be seriously embarrassed in his defence.

ment.

Where this is the case the question of increased
expense ought not to be taken into serious con-
sideration.

An order made for the separate trial of each
count where the indictment contained six sepa
rate charges of common assault, alleged to
have been committed upon six different per-
sons, at different times, extending over a period
of two years.
REGINA . SOLAN
217
Practice-Seizure of Things evidenc
ing Guilt-Right to arrest-No Actual Arrest—

CRIMINAL LAW-continued.
Search Warrant-Second Entry under- Instru-
ments of Gaming”—Books and Papers- The
"Gaming and Lotteries Act, 1881,”‍ Section 3.]
A constable who is legally authorised to arrest
an accused person may, at the time of such
arrest, and as incidental to it, seize and take
possession of articles in the possession or under
the control of the accused person, as evidence
tending to show the guilt of such person.

But the authority to seize and take posses-
sion of such things, and the legal justification
for so doing, arises from the actual arrest of
the accused person, and not from the mere
right to arrest. It does not exist, therefore, in
a case in which no arrest has actually been
made.

The respondent, a constable and detective
officer, entered the premises of the appellants,
under a warrant issued under section 3 of
The Gaming and Lotteries Act, 1881," which
alleged that the premises were kept and used
as a common gaming house, and which re-
quired him to enter and search for instruments
of unlawful gaming, and to arrest, search, and
bring before a Justice of the Peace the keepers
of the premises and the persons found haunting,
resorting, and playing there. The respondent
searched the premises, and found one of the
appellants, Grant, there, and also certain books
and papers.
He then left the premises, taking
nothing with him, but returned about twenty
minutes afterwards and took away the books
and papers.
He did not, however, then or after
wards, make any arrest. The respondent had,
previously to the issue of the warrant, sworn
an information against Grant charging him,
under sections 11, 12, and 13 of The Gaming
and Lotteries Act, 1881," with keeping the
premises as a common gaming-house, and the
books and papers seized would have been
relevant on that charge; but the charge was
not proceeded with.

Held,-

(1.) (Affirming the decision of Williams, J.)
That the books and papers were not instru-
ments of gaming within the meaning of
section 3 of "The Gaming and Lotteries Act,
1881," and were not therefore within the ex-
press terms of the warrant.

(2.) (Reversing the decision of Williams, J.)
That the seizure was not justified by the fact
that the warrant authorised an arrest, no arrest
having been made.

Held, also (affirming the decision of Williams,
J.). That the exigency of the warrant was not
spent by the circumstance that no seizure or
arrest was made on the first entry, so that the
respondent might have arrested Grant on the
second entry, and have seized the books and
papers as incidental to the arrest.

Crown

CROWN GRANT - Impeachment of
not a Party-Conclusiveness-Cession to Crown
by Natives - Grant by Crown upon Trust
Effect of Avoidance of Grant-Power of Governor
to grant-Charter of 1846-Instructions of 1846
-Laches of Natives-Statute of Limitations-
Native Title- The Native Rights Act, 1865."]
In 1848 the chiefs and leading members of
the tribe or tribes which owned certain land
according to Native custom wrote a letter to
the Governor, which was expressed to be the
full and final giving-up" of the land

as a

I college for the bishops of the Church of Eng-
land," and they shortly afterwards gave up
the possession or occupancy of the land to the
then Bishop of New Zealand. In 1850 the Go-
vernor issued a Crown grant of the land to the
Bishop and his successors in trust for the use
and towards the maintenance of a school.
There was not, at the time of the letter or
grant, any statute regulating the acquisition
of Native rights of occupancy by the Crown
or the extinguishment of Native title. In 1901
the Court of Appeal, in a suit between the
Solicitor-General and the Bishop of Wellington
and others (the successors in title of the Bishop
of New Zealand), declared the Crown grant to
have become void owing to failure to carry out
the trust. In 1902, whilst the decision in the
last-mentioned action was under appeal to the
Privy Council, the plaintiff, claiming as suc-
cessor according to Native custom to one of
the Native parties to the letter of 1848, brought
another action against the Bishop of Welling-
ton and the other trustees parties to the previous
action, and the Solicitor-General, in which he
sought to have it declared that the Crown grant
was void, and, further, that the land had never
been ceded by the Natives, that the Native title
had never been extinguished, and that the land
was still owned according to Native custom by
the successors of those entitled in 1848.
Held,-

(1.) That the Crown grant could not be de-
clared void as between the plaintiff and the
defendants for matter not appearing on its face.

(2.) That the issue of the Crown grant was
an implied declaration by the Crown, and was
conclusive, that the Native title to the land
had been extinguished.

(3.) That, if the Native title had been ex-
tinguished, then, even if the grant were set
aside, the land would remain Crown land.

(4.) That the letter of 1848 was a cession of
the land by the tribe.

(5.) That, the land being in the Crown, the
plaintiff's remedy, if any, could only be against
the Crown.

(6.) That the plaintiff's claim, in the action
against the defendants, to dispute the validity
of the cession, was barred by delay and laches;
but

(7.) That the Statute of Limitations did not
run against the plaintiff's claim as owner ac-
cording to Native custom of land the title to
which had never been investigated, the occu-
pation of such land by a European having been

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