2. In Parcels Boundary by High - water Mark-Alteration of High-water Mark between Purchase and Issue of Grant · Foreshore." Certain persons applied in 1853 to purchase Section No. 65 on the plan of the Pahautanui District from the Crown, and their application was granted on the same day, and they were shortly afterwards let into possession. The section was shown on the plan of the district as bounded towards the west by the high-water mark of Porirua Harbour, and as regged out on the ground it was then actually so bounded. No Crown grant was issued until 1859. 1855 an earthquake took place, one of the effects of which was that high-water mark was removed several chains to the westward. The Crown grant issued in 1859 described the land as containing a certain area, and as being the Section No. 65 on the plan of the Pahautanui District, and as bounded in certain directions by other sections (giving the linkages), and towards the west by Porirua Harbour, 1620 links." Section No. 65 was still shown on the plan of the district in the same way as it had been in 1853, no alteration having been made in that plan on account of the earthquake. The plan of the section in the grant was taken from the plan of the district. The grant contained no antevesting date. If the grant had been read as including the land up to high-water mark as it existed at the date of the issue of the grant, it would have included more than the Section No. 65 shown on the plan of the district, and the area and the linkages on three sides would have been wrong. Held (affirming the decision of Stout, C'.J.), That the dominant and leading words of the description in the grant were the words "the | CROWN GRANT—continued. ground and a site for a public hall, authorised the Governor to declare that all that area in the County of Hutt, being part of the foreshore of Porirua Harbour, bounded as described, should be a recreation-ground, except 1 acre. to be determined, which the Governor was authorised to set apart as a site for a public hall. Held (affirming the decision of Stout, C.J.). That, the definite legal meaning of the term "foreshore "being the sea-shore to the line of high water between spring and neap tides, the land described was prima facie land below highwater mark at the date of the Act; that, there being land below high-water mark at that date which had been reclaimed by natural causes from below low-water mark, and which was capable of use in certain ways as a recreation-ground. it was not inconsistent with the recital to give to the term foreshore" its proper meaning; and that, for these reasons, and for the further reason that the other boundaries given pointed clearly to land below the highwater mark existing at the date of the Act, it was impossible to read the clause as covering land above the existing high-water mark which had been wholly reclaimed from the action of the tides by natural causes. PEARCE v. BOULTON; BOULTON . THE KING. (C.A.) - 464 CROWN LANDS - Possession of. for more than Twenty Years Right of Action against Trespassers-21 Jac. I., c. 14.] A person who has been in possession of Crown land for more than twenty years can maintain an action for trespasses committed before judgment has been obtained against him by the Crown in a suit for possession. The 21 Jac. I, c. 14, is in force in the colony. Doe d. Watt v. Morris (2 Bing. N.C. 189; 4 L.J. C.P. 285), Corporation of Hastings v. Ivall (L.R. 19 Eq. 558), Johns v Rivers (2 N.Z. C.A. 344), and Mudgway v. Davy (N.Z. L.R. 4 C.A. 192) followed. PEARCE . BOULTON; BOULTON v. THE KING. (C.A.) 464 CUSTOMS LAWS. See REVENUE. 1. DAMAGES. See CONTRACT. 1, 4, and 5. See CONVERSION. DEED OF GIFT. See REVENUE. 2. DEFAMATION Libel New Trial - Verdict against the Weight of the Evidence-Functions of the Court and Jury - Untrue Statement.] The mere fact that an untrue statement has been made about a person does not give him a right of action if the statement is not defamatory. Whether the statement is defamatory is a question for the jury, and their verdict will not be disturbed unless it is either perverse or so unreasonable as to lead to the conclusion that they have not honestly considered the facts. COUGHTREY V. THE EVENING STAR COMPANY (LIMITED) 116 2. DIVORCE_Collusion—Meaning of Term in New 66 Section 3 of "The Divorce Act, 1898," must be read as qualified by sections 23 and 24 of The Divorce and Matrimonial Causes Act, 1867." Where no specific fact has been falsely dealt with or withheld from the Court, an agreement by which a divorce suit is initiated, but which contains no term to abstain from a defence, is not collusion for the purpose of obtaining a divorce contrary to the justice of the case within the meaning which should be given to those words in New Zealand, having regard to the present form of the divorce law in the colony as laid down by statutory enactments. Slander-Qualified Privilege-Malice.] G., an importer of fruit from the South Sea Islands, received a large consignment of oranges, in cases marked with various brands. In accordance with the Government regulations, these cases, together with cases belonging to other consignees, were stacked in the Government fumigator for fumigation, under the direction of the officials of the Stock Department. G., on taking delivery of his oranges from the fumigator, found that he was a number of cases short. On making complaint to the officials of the Stock Department he became associated with them, in conjunction with the police, in making inquiries as to the missing cases. It was ascertained that C., an auctioneer and fruit-merchant, had purchased from another The petitioner and respondent were living importer a portion of a shipment of oranges, apart, and the petitioner was receiving a certain also stacked in the fumigator, and had taken measure of support under a deed of separation delivery of the same. Č. had sold some of entered into between them. The petitioner was these oranges to S., a fruiterer. G., on making desirous of obtaining a divorce, but abstained inquiries from S., found that the latter had two from taking proceedings in the honest belief cases bearing the brand of some of the cases that it would interfere with the support she which were missing. In the course of separate was receiving under the deed. The respondent conversations with S. at different times G. aswas living in adultery with another woman, serted that C. had stolen the missing oranges. whom he was desirous of marrying. To induce® On another occasion, in the course of a con- his wife, the petitioner, to take proceedings for versation with the late partner of C., G. asserted a divorce he paid £500 to a third person, to be that C. had also stolen two cases belonging to held by the latter during the proceedings and another importer. Evidence was adduced show-paid to the petitioner at their conclusion. ing that two cases marked with another importer's brand were found in C.'s store, and that he had also shown to a witness a number of cases bearing some of G.'s brands, at the same time telling the witness that these were the cases for which the Stock Department officials had just previously been looking. Held, That the conversations with S. and with C.'s late partner were privileged; that the evidence showed that G. had strong grounds for his suspicions against C.; and that, the words complained of being spoken bona fide and without malice, the plaintiff could not recover. CUTBUSH v. Grove - 67 See HUSBAND AND WIFE. DIRECTORS-Authority. See COMPANY. 1. The petitioner, in pursuance of this agreement, filed a petition for a dissolution of the marriage. The respondent, repenting of his bargain, filed a defence pleading collusion and condonation. He abandoned the latter plea, and it was admitted that if the agreement was not collusive there was no other defence. Held, That, in the absence in the agreement of a term not to defend, and there being no evidence of any attempt or intention to mislead or not fully inform the Court, the facts did not disclose collusion between the parties so as to disentitle the petitioner to a divorce. Churchward v. Churchward ([1895] P. 7) distinguished. LIVINGSTONE v. LIVINGSTONE 2. 626 Evidence of Adultery Sufficiency. Conduct contributing to Adultery-Cruelty-Sepration Deed - Subsequent Adultery - I what Cases Court can refuse Divorce-Counterclaim in DIVORCE-continued. Answer- Simultaneous Decrees - The Divorce Act, 1898," Sections 3 and 11.] Per Stout, C.J. In divorce proceedings the evidence of adultery must be such that guilt must be inferred. Per Williams, J.-It is not enough that there are circumstances of suspicion. The evidence must be incompatible with innocence. Per Edwards, J.-The evidence must be such as is consistent only with adultery. Appeal allowed from decree of dissolution of marriage against the husband on the ground of adultery by him, the Court of Appeal being of opinion that the evidence was insufficient to justify the finding of adultery. Although a separation between a husband and wife may have been caused by the husband's cruelty, yet if they live separately for two years under a deed of separation, the husband providing the maintenance for the wife and her children which has been stipulated for by the deed, and the wife then commits adultery, the husband's original cruelty cannot be said to have induced or contributed to the wife's adultery within the meaning of section 3 of "The Divorce Act, 1898." Decision of Denniston, J., affirmed. Dagg v. Dagg (7 P.D. 17) and Proctor v. Proctor (34 L.J. P.D. & A. 99) distinguished. Per Stout, C.J.-A defence of conduct inducing or contributing to the wrong complained of should be pleaded, although the Court may raise the question itself and make it a ground for refusing a decree. Per Denniston, J. (in the Supreme Court):-(1.) The effect of the repeal of section 26 of The Divorce and Matrimonial Causes Act, 1867," by section 25 of "The Divorce Act, 1898," and of the enactment of section 3 of the last-named Act, is that the Court is no longer entitled to refuse a decree of dissolution when the petitioner has established any of the grounds mentioned in section 3, though it be proved that the petitioner has committed adultery, shown unreasonable delay in prosecuting his suit, treated the other party with cruelty. or deserted or wilfully separated himself from the other party without reasonable excuse, unless it be proved further, to the satisfaction of the Court, that the petitioner's own habits or conduct induced or contributed to the conduct of the respondent complained of. EMPLOYERS' LIABILITY—continued. Held, That, the foreman being a person whose orders could not be disobeyed without contumacy, the plaintiff was entitled to recover under subsection 3 of section 3 of the abovementioned statute; further, that the order given by the foreman was a negligent order. BowRON BROS. v. STACE - 91 2. Approbating and Reprobating-Certi ficate of Title. Antevesting Date - The Land Transfer Act, 1885," Section 65-Land acquired from Natives-Liability to Special Rate.] A poll of the ratepayers within a certain area, upon the question of raising a loan under "The Local Bodies' Loans Act, 1886," and "The Government Loans to Local Bodies Act, 1886," was taken in January, 1891 and in February, 1891, a special order was made levying a special rate as security for the loan, and the loan was granted in due course. The appellant acquired certain land within the area in question from the Native owners, who held under certificate of title issued under "The Native Land Court Act, 1880." The transfer to the appellant was executed by ten of the Native owners on the 13th of November, 1890, by another on the 4th of March, 1891, and by the remaining owner on the 13th of April, 1891. The transfer was enrolled on the Native Land Court certificate of title on the 27th of August, 1891. The appellant afterwards obtained a certificate of title under The Land Transfer Act. 1885," by which the land was expressed to be vested in him as from the 13th of November, 1890. EMPLOYERS' LIABILITY — Held by the Court of Appeal (affirming the Liability Act, 1882," Section 3, Subsection 3-decision of Edwards, J.), That it was not open (2.) The words "shall oppose the relief sought on the ground of," in section 11 of the Act of 1898, must be read as meaning "shall allege " in his or her answer," even though such allegation is not a ground of defence, but a measure of offence-in fact, a counterclaim. (3.) Where husband and wife have both claimed a dissolution of the marriage, and the petitioner has established his case, the Court can nevertheless go on and hear the case of the respondent, and, if this is established, grant, simultaneously, decrees nisi on the suit of each. HALL. HALL. (C.A.) 251 The Employers' ESTOPPEL-continued. to the appellant to set up, in the face of the certificate of title under which he was holding, that the antevesting to the 13th of November, 1890, was without statutory authority, that the Native title was not in fact extinguished until the 27th of August, 1891, and that the land was therefore Native land at the date of the levying of the special rate, and so exempt from the rate. Section 65 of The Land Transfer Act, 1885," was conclusive upon the point, and also the general principle that a person cannot both approbate and reprobate. HEARN . THE INHABITANTS OF THE UPPER WANGAEHU ROAD DISTRICT. (C.A.) 445 3. Res judicata-Relief which might have been claimed in Former Action-Same "Cause of · Action."] Every remedy which can be claimed in respect of the same cause of action must, under the present procedure, be claimed in the one action, and if a plaintiff chooses to limit his claim for relief in one action he cannot afterwards take a second proceeding claiming another remedy in respect of the same cause of action. (Per Curiam, affirming the decision of Edwards, J.) McGowan v. Middleton (11 Q.B.D. 464) and Serrao v. Noel (15 Q.B.D. 549) followed. Whittaker v. Kershaw (45 Ch.D. 320) distinguished. DILLON V. MACDONALD. (C.A.) EXECUTOR 375 Commission given by Will "The Administration Act, 1879," Section 20Order for Commission-Application to set aside -Excessive Remuneration-Acquiescence.] The Court may allow a commission to executors under section 20 of The Administration Act, 1879," even though the testator may have provided for their remuneration by commission; and in such a case executors do not, by simply taking out probate, waive their right to apply to the Court for remuneration. All that the Court has to do is to see that the executor does not get both. Where, for a period of nearly eleven years after an order for remuneration had been made, a beneficiary under the will had been furnished year by year by the executors with accounts showing exactly what they had done, and the money they had retained in terms of the order, and she herself had received for one of the executors his share of the remuneration, she cannot apply to set aside the order; but an ex parte order for remuneration may be set aside on the ground that the rate allowed is excessive, if there have been no laches or acquiescence. Remuneration at the rate of 2 per EXECUTOR-continued. cent. on moneys received from investments of the trust funds, though reinvested, was held in the circumstances to be excessive. Persons interested in the rate of remuneration ought, when accessible, to be brought before the Court on an application therefor. In re LANGLANDS 100 EXTRAS. See CONTRACT. 5. See CONTRACTORS' AND WORKMEN'S LIEN ACT. FENCING - Trespass by Cattle. - Obligation to fence. Failure to fence - The Fencing Act, 1881 The Impounding Act, 1884," Appendix, Section B.] It is at common law a good defence to an action for trespass by cattle if the the defendant can show that the plaintiff was under an obligation to fence, and that the trespass of the cattle was the result of the nonSuch a case is, performance of that obligation. by virtue of section 34 of "The Fencing Act, 1881," not affected by the provisions of that Act, and the appendix to The Impounding Act, 1884," section B, does not prevent the defendant from raising the defence. YOUNG v. WARD 213 FORESHORE. See CROWN GRANT. 2. FRAUD-Claim under Void Instruments. See LAND TRANSFER. 4. Pleading Fraud. See NATIVE LAND COUrt. 1. FRIENDLY SOCIETY-Surgeon-Contract with -Rule excluding Private Contract-Operation of -Implied Contract-Evidence-Agreement to submit to Arbitration-Dispute between " Officer" and “Member "-Ouster of Jurisdiction.} A lodge of a friendly society had two surgeons, each of whom was, under his contract with the trustees, to attend those members of the lodge whose names were on a list to be supplied to him each quarter by the secretary. One of the surgeons having met with an accident, at his request the respondent, who was the other surgeon, attended the child of the appellant, a member who was on the list of the first-named surgeon and not on the respondent's list. The child had to be removed to a private hospital and operated on, and the respondent set up a special contract by the appellant to pay him for his services. One of the rules of the society was that no surgeon should be allowed to enter into any private contract with a member. Held, That, as the appellant was not on the respondent's list, they must be regarded as strangers to each other, and the rule did not apply. The respondent admitted that his first attendance on the child was as a lodge surgeon, and that he could not have charged the appellant for it. When it appeared that the child would have to be FRIENDLY SOCIETY-continued. A person may be convicted on a charge of By the agreement between the surgeon and against another member, or against an officer of Held, That a claim made by a surgeon of the 244 GAME Taking or killing out of Season- See ANIMALS PROTECTION. - GAMING- The Gaming and Lotteries Act, “ས words of section 4 although no one has been Where a conviction under the concluding Held, That an essential ingredient of the conviction in such a case under section 272 of · not be proper to amend it where it does not Cox 2. - 584 "The Gaming and Lotteries Act, Nor is the fact that a person tried to take But the fact that a person was drawing away Before, however, a person can be convicted. The effect of section 10 of "The Gaming |