October 3, 1933 New Zealand Law Journal. is$

New Zealand

” Government is a contrivance of human wisdom to provide for human wants. Men have a right that these wants should be provided for by th,is wisdom.”

-EDMUND BURKE.

Vol. IX.

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Tuesday, October 3, 1933 No. 18

The Solicitor’s Right of Audience. --

The Law Practitioners Act, 1931, provides that any person who acts as a solicitor in any Court whatever without being at the time enrolled as a solicitor, and any solicitor who acts as such unless he has obtained from the Court a practising certificate, shall each be deemed to be guilty of a contempt of Court, and be liable to a fine not exceeding fifty pounds. While the Act confers on barristers of the Supreme Court all the privileges, duties, and responsibilities that bar- risters have in England, it is silent on the rights of solicitors to be heard in the Courts ; though by implica- tion of the above-quoted provision, a solicitor may act in any Court. In England, these rights have been defined quite recently by statute : see s. 44 of the Solicitors Act, 1932 (G.B.). The omission from our statute does not imply that solicitors have no special rights here ; the omission is due, no doubt, to the fact that the Courts have a common-law right to determine who shall appear before them and in what circumstances.

The general principle of common law that “ every Court of Justice has the power of regulating its own proceedings ” was laid down by Littledale, J., in Collier v. Hicks, (1831) 2 B. & Ad. 670, 109 E.R. 1292 ; and it was elaborated by Parke, J., in the same case, as appears on the pages following those respectively re- ferred to. The latter learned Judge said :

“ No person has a right to act as an advocate without the leave of the Court, which must of necessity have the power of regulating its own proceedings in all cases in which they ape not already regulated by ancient usage. In the Superior Courts, by ancient usage, persons of a particular class are allowed to praotise as advocates, and they could not lawfully be prevented ; but justices of the peace, who are not bound by any such usage, may exercise their discretion whether they will allow any, and what persons, to act as advocates before thern.”

In New Zealand, as the Courts over which Magistrates or Justices preside are statutory Courts, the right is given to solicitors to appear therein on behalf of parties : Magistrates’ Courts Act, 1928, s. 67 (1) ; Justices of the Peace Act, 1927, s. 64.

Other examples of the authorisation of solicitors to appear without being required to employ counsel are found in our statutes. For example : The Minister of Marine is empowered by s. 244 of the Shipping and Seamen Act, 1908, to make general rules for the pro- cedure and the parties and persons allowed to appear before shipping inquiries and Courts. There is, of course, the statutory right of solicitors to appear in

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the Supreme Court when sitting in bankruptcy, and in matters before Judges or Registrars in Court or in Chambers in bankruptcy matters. “ Counsel ” is not defined in the Commissions of Inquiry Act, 1908, which, by s. 6, gives the same privileges and immunities to counsel as in Courts of law ; but the term, in the sense in which it is used, may be given “ large and liberal construction ” to include solicitors, and, so far as we are aware, the right of solicitors to appear before any such Commission has not been challenged.

There remains consideration of what rights a solicitor has at common law to audience before a Judge. These rights may arise by virtue of a Court exercising its discretion in a particular case in accordance with its right to regulate its own proceedings. Thus, in Butter- worth v. Butterworth and Queenan, (1913) 57 Sol. Jo. 266, Sir Samuel Evans, presiding in the Probate, Admiralty, and Divorce Division, asked, in the absence of counsel for the petitioner, if the solicitor were present. On being told he was not there, the learned President him- self proceeded to examine the petitioner and two of his witnesses ; and, on the arrival of the solicitor’s clerk, His Lordship inquired whether he were a qualified solicitor, but was told he was not. The learned President then said that if the clerk had been a qualified solicitor he would have granted him right of audience. (See, however, the observations of Williams, J., in Re Lynch, (1913) 33 N.Z.L.R. 433.)

The right of a solicitor to appear before a Judge in Chambers is “an ancient usage ” (see Parke, J., in Collier u. Hicks, supra), arising from the long-established recognition of a solicitor as an officer of the Courts administering the common law. In England, as in Greece and Rome, suitors were obliged to appear with- out the assistance of any one versed in the law. But, at a very early period ‘in English legal development, the Courts assumed the power to permit suitors to appear with legal assistance, and to name a representative to give such aid. The Court could, at its pleasure, accept or reject an application to this effect, so it became customary to obtain the King’s writ commanding the Courts to permit the person in whose favour the writ issued to appear by an attorney therein named. Eventu- ally all persons had the privilege allowed them to appear by attorneys named by themselves :’ Statute of West- nknster II, c. 10. The matter developed thence onwards, as appears exhaustively in Blackstone, Vol. 3, 25, 26. Attorneys (or solicitors) by the end of the Middle Ages had become officers of the Court, though in a limited sense. The Court admitted and controlled them, but they were not paid by the Court or from the public revenues ; they conducted their practice away from the Court and lived on their own earnings. Gradually, the common-law pleadings which were at one time conducted by the Court officials, became solely the work of the attorneys, whose position as officers of the Court was maintained.

So far we have considered the position of the solicitor in common-law proceedings. But in Tudor times new Courts had been established bringing with them new systems of law. Both the Star Chamber and the Court of Chancery had, as part of their personnel, clerks who acted in Court as the attorneys of the parties after having prepared their pleadings. The new procedure in equity was unfamiliar to the common-law attorneys, and, in this manner, the Courts provided the public with as- sistance. In the Chancery Court at first these officials were the historic Six Clerks. Later their number reached sixty ; and it was incumbent on a suitor to

New Zealand Law Journal. October 3, 1933

appoint a “ sixty clerk ” to act for him, and, later, to advise his private attorney. This procedure became cumbersome and highly expensive, and the growing frequency of resort to the equity Courts necessitated the complete employment of the private solicitor ; especially so as, through the limited number of these clerks, one often acted for opposing parties, and we are told of a Mr. Shaldrick, who “ was a good clerk in Court even when he was a lunatic.” For these and other reasons, we are told in 1826 that “the solicitors have now become the attorneys of the parties and do their business.”

Complaints were made of the delays in the equity Courts, and the Chancery officials tried to place the blame on the solicitors and the parties. Giving evidence before a Royal Commission appointed in 1826, Mr. Winter, a competent solicitor, proved that it was the system which was at fault. In the course of his evidence, he said :

“ When it is said that, the delays in the Courts of Chancery rests with the solicitors, the observation seems to imply that a solicitor and an attorney are two different persons ; for no one hears of the delays of attorneys in the Court,8 of law. But everyone knows that every attorney is a solicitor, and every solicitor an attorney . . . To say, therefore, that the delays in equity are attributable to solicitors, is to assume that a solicitor is divided into two parts ; the one all activity, the other all indolence ; and that whilst he bestows all his energies on the Court of law, he reserves his sloth for the Court of equity. But surely the obvious ex- planation of it all is to be found in the difference between the instrument which the solicitor had to use in a Court of law, and the instrument he has to use in a Court of equity; the essence of the practice of our Courts of law is dispatch ; and I have no difficulty in saying that the esscncc of our Courts of equity is delay.” (Parliamentary Papers, 1828, xv, 308.)

This passage gives point to the report of the Chancery Commissioners in 1852 that the ridiculous system of the equity procedure was at fault ; and that such procedure had arisen, like many other abuses of the Court of Chancery, from the time when the Master and his clerks were paid by fees charged the parties in their capacity of acting for and advising them. In 1852 Acts were passed to amend the practice and procedure of the equity and common-law Courts. The Masters dis- appeared, and their judicial duties were transferred to the Judges in Chambers, and the solicitors followed the Judge into the Judges’ Chambers and therein dis- played the mastery of equity procedure which they had made their own in the similar proceedings before the Master. The fusion of the Courts by the Judicature Act established solicitors of both branches of their profession in the privileges they had won through, the centuries ; just as the barrister has jealously retained his “ ancient usage ” of appearing in the superior Courts, subject to the right of the Court to regulate its procedure in any special manner as occasion arises.

Under the old systems of procedure, the solicitors’ profession grew and developed. It was “ mysterious science and a profitable trade,” as Gibbon says of the Roman counterpart in the days of Justinian ; and the “ innate perplexity of the study was involved in tenfold darkness by the private industry of the practitioners.” The ingenuity of the clerks in the Courts, who had the right to be paid fees, in so augmenting their incomes was proverbial, and was, at the outset, the real cause of the solicitor coming into his own-at first in the common-law Courts, and, later, in the Courts of equity. In Gibbon’s words, “ The expense of the pursuit some-

- times exceeded the value of the prize, and the fairest rights were abandoned by the poverty or the prudence of the claimants.”

Summary of Recent Judgments. COURT OF &PEAL

Wellington. 1933.

June 29, 30 ; Sept. 18.

Myers, C. J. Her&nun, J. Blair, J. Kennedy, J.

PERROTT AND ANOTHER v. NEWTON KING LIMITED.

Principal and Surety-Bankruptcy-Guarantee to pay Interest in arrear or unpaid by Mortgagor on the Principal Sum of a Mortgage “ while any money remains owing on the security of the memorandum of mortgage “-‘& Owing “-Bankruptcy and Discharge in Bankruptcy of Mortgagor and Sale of Mort- gaged Premises by prior Mortgagees-Effect on Surety’s Lia- bility-Bankruptcy Act, 1908, ss. 53, 98, 102 (li), 132, 13P Land Transfer Act, 1915, s. 115.

Questions of law removed into the Court of Appeal for argu- ment before trial and arising from the undermentioned facts.

W. executed a mortgage over two separate properties, each of which was subject to a prior mortgage, to secure the sum of $4,500 advanced by the plaintiffs to W. at the request of the defendant, W. covenanting, inter alia, to pay the principal sum and

“ so long as the principal sum or any part thereof shall remain unpaid interest on the principal sum or on so much thereof as shall for the time being remain unpaid.”

Contemporaneously, defendant as guarantor and plaintiffs as mortgagees executed an agreement of guarantee wherein the following recital appeared :-

“ Whereas the mortgagees have at the request of t#he guar- antor lent and advanced to James Wood of Huiroa farmer (hereinafter called ’ the mortgagor ‘) the sum of four thousand five hundred pounds (E4,500) upon the security of a memor- andum of mortgage of even date herewith of certain lands in the Ngatimaru Survey District wherein the mortgagor has covenanted to repay the principal sum thereby secured on the first day of September one thousand nine hundred and thirty-four and has further covenanted to pay interest on the said principal sum or on so much thereof as should remain owing from time to time by half-yearly payments after the respective rates at the times and in the manner in the said memorandum of mortgage provided.”

The consideration for the guarantee was expressed to be the plaintiff-mortgagees’ advance of the said moneys at defendant’s request. The agreement then proceeded :

“the guarantor hereby agrees with the mortgagees that if any half-yearly payment of interest or part thereof payable as aforesaid shall at any time while any money remains owing on the security of the said memorandum of mortgage be in arrear or unpaid for the space of fourteen days after any of the days whereon the said interest shall be payable in terms of the said memorandum of mortgage the guarantor will forthwith pay such interest or part thereof as the case may be bo the mortgagees.”

The final clause of the agreement of guarantee was the fol- lowing :

“And it is hereby declared that although as between the guarantor and the mortgagor the guarantor shall be a surety only nevertheless as between the guarantor and the mortgagees the guarantor shall be a principal party and shall not be re- leased from this guarantee or any liability thereunder by reason of any time indulgence matter or thing given shown or done to the mortgagor by the mortgagees whereby the guarantor as surety only would or might be released.” On August 22,1931, W. was adjudicated bankrupt. The whole

of the land upon which the moneys advanced by the plaintiffs had been secured was sold by prior mortgagees, and on the sales there was no surplus for payment to the plaintiffs. W. obtained his discharge in bankruptcy on November 17, 1931.

Plaintiffs sued defendant for interest for the half-year ending on September 1, 1932, which was unpaid, as was the whole of the principal sum.

The following questions of law were removed into the Court of Appeal for argument before trial :-

(u) Whether the liability of the defendant under the agree- ment of guarantee, slrpra, has ceased 4

October 3, 1933 New Zealand Law Journal.

(5) If the answer to the above question be in the affirmative, upon the happening of what event did such liability cease ?

Finlay and P. H. Watts, for plaintiffs ; P. B. Cooke, with him R. H. Quilliam, for defendant.

Held by Myers, C.J., and Herdrnan and Kennedy, JJ. (Blair, J., dissenting), That the liability of defendant under the agreement of guarantee ceased upon the mortgagor obtaining his discharge in bankruptcy.

Bank of New Zealand v. Baker, [1926] N.Z.L.R. 462, and In re Moss, ex parte Hallet, [1905] 2 K.B. 307, considered.

Lainson v. Tremere, (1834) 1 Ad. & E. 792, 110 E.R. 1410; Carpenter v. Buller, (1841) M. & W. 209, 151 E.R. 1013 ; Heather and Son v. Webb, (1876) 2 C.P.D. ; and Parker v. Bayly, [1927] G.L.R. 265, followed.

Dictum of Sim, Stringer, Reed, and Adams, JJ., in Bank of New Zealand v. Baker, [1926] N.Z.L.R. 490, 491, applied.

In re FitzGeorge, ex parte Robson, [1905] 1 K.B. 462, and Official Assignee v. Jarvis, [1923] N.Z.L.R. 1009, distinguished.

Held by Blair, J., dissenting, 1. That, by reason of the effect of ss. 53, 102 (II), 132, and 134 of the Bankruptcy Act, 1908, defendant, as surety for the bankrupt, was not released by the latter’s order of discharge, and, on the construction of s. 115 of the Land Transfer Act), 1915, the sale and transfer of the land by the prior mortgagees did not affect plaintiffs’ right against defendant ; consequently, the principal sum secured by the mortgage being still owing in the sense of “outstanding,” the guarantee was still alive.

2. That, by construing the word ‘I owing ” as “ unpaid ” or “ not paid ” or “ outstanding,” it is given complete business efficacy in a contract made by bommercial men in relation to a commercial matter.

In re Moss, ex parte Hallet, [1905] 2 K.B. 307 ; Bank cf New Zealand v. Baker, [1926] N.Z.L.R. 262, and Parker v. Bayly, [1927] G.L.R. 265, explained and distinguished.

In re FitzGeorge, ex parte Robson, [1905] 1 K.B. 262, applied. Saunders v. Baker, [1916] N.Z.L.R. 1137, and Sole v. Ward,

[1919] N.Z.L.R. 212, referred to.

Solicitors : Watts and Armstrong, Hamilton, for plaintiffs ; Govett, Quilliam, and Hutchen, New Plymouth, for defendant.

NOTE :-For the Bankruptcy Act, 1908, see THE REPRINT OF THE PUBLIC ACTS OF NEW ZEALAND, 1908-1931, Vol. 1, title Ba&ru;atc?~, p. 466 ; and for the Land Transfer Act, 1915, see Vol. 8, title Real Property and Chattels Real, p. 1162.

Case Annotation : Lainson%. Tremere, E. & E. Digest, Vol. 21, p. 254, para. 790 ; Carpenter 2). Buller, ibid, p. 280, para. 959 ; Heather and Son o. Webb, Vol. 4, p. 585 ; In re Moss, ez parte Hallet, Vol. 26, p. 85, para. 603 ; In re FitzCeorge, ez parte Robaon, ibid, p. 87, para. 610.

SUPREME COURT In Chambers.

Dunedin. 1933.

I

IN RE M. AND OTHERS. Aug. 9, 11.

Kennedi/, J.

Mortgagors and Tenants Relief-Pooling Arrangement-Dis- tributable Surplus-Priorities between Lessor and Mortgagee of Leasehold-Principles to be applied-Mortgagors and Ten- ants Relief Act, 1932, s. 8.

Applications for relief under the Mortgagors and Tenants Relief Act, 1932, by two lessee-mortgagors, each holding a sheep- run as tenant of the Crown under pastoral licenses issued under the Land Act, 1924, both runs being worked together, and each being subject to a mortgage.

Payne, for the mortgagors ; I. M. Paterson, for the mort- goes of D. I Lousley, for mortgagee of A. ; A. I. W. Wood, for the su&n:rtgagees ; I-I. S. Adams, for the Commissioner of Crown

Held, 1. That in pooling arrangements the Court is concerned not to interfere with the rights of creditors inter se.

2. That for the purpose of determining the shares in the distributable surplus of a pooling arrangement, a first mortgagee

)f leasehold premises may not, while rent is in arrear and un- ,aid, be credited with a sum said to represent the goodwill )f the leasehold premises ; and he may not be so entitled, in .espect of goodwill, to claim a share in the distributable surplus ts against the lessor to whom rent is in arrear. The mortgagee ,f leasehold premises cannot, therefore, properly cla.im in the listributable surplus until the lessor’s claims for rent have first 3een met.

Solicitors : Downie Stewart and Payne, Dunedin, for the tpplicants.

NOTE :-For the Mortgagors and Tenants R.elief Act, 1932, ;ee Kavanagh and Ball’s New Rem! and Interest Reductions and Mortgage Legislrction, p. 26.

SUPREME COURT In Banco.

Christchurch. 1933.

Aug. 25; Sept. 9. M”, /2mn,r T

Insurance-Policy-Construction-Warranty-“ Not . . . de- clined by any other Office “-Answers to Questions in Proposal Form-Proposal and Declaration as to its Truth and Correct- ness-Basis of Contract-Effect of Non-disclosure in Proposal of Material Facts.

Appeal from the decision of a Magistrate sitting at Ashburton.

A motor-truck was insured with the New Zealand Insurance Co. on March 16, 1931, by its then owners, T. and McK. Later, all McK.‘s interest in the truck and in the policy was trans- ferred to R. On receipt of the policy sent to it for endorse- ment of the transfer, the Company cancelled the risk, notified both R. and T. by letter and forwarded the unexpired proportion of the premium, on December 30, 1931. R. wrote to the Com- pany asking that the truck be insured in his name for the re- maining portion of the year and sent the premium therefor. The Company replied that it preferred to cancel the policy, and returned the premium.

On April 11, 1932, respondents insured the truck with Lloyds, and in their proposal for a comprehensive motor-car policy agreed to accept and be bound by the conditions of the policy to be issued thereunder.

They further declared and warranted, “ that the answers given above are in every respect true and correct, and that this Proposal and Declaration shall be the basis of the Contract.” In answer to the following question,

“ 4. Has any proposal for insurance, or any policy on any car in which you were interested, ever been withdrawn, declined, or cancelled ?,”

respondents answered, “ No,” ilnd to a further question,

<’ 5. Do you hold or have you held a Motor-car Policy ? If so, with whom ?,”

they answered, “ (a) Yes. (b) New Zealand Insurance Co.” On the face of the issued policy this indorsement appeared :

“ Warranted Not Insured with nor declined by any other Office.” On November 2, 1932, the motor-truck was destroyed by

fire, and respondents claimed El00 under the Lloyds’ policy. Of this sum g38 12s. lld. was paid. On payment of the balance being refused, respondents sued for same, and judgment in their favour was given by the Magistrate.

On appeal from the Magistrate’s decision,

W. J. Sim, for the appellant ; Brassington, for the respondents. Held, allowing the appeal, That there was a breach of the

warranty, “ Not Insured with nor Declined by any other Office,” as material facts had not been disclosed in the proposal, the answer to question No. 4 in the proposal form being untrue and incorrect as applied to both branches of that question, inas- much as another company to which the risk had been offered had declined it and had declined a subsequent proposal and cancelled its policy.

Glicksman v. Lancashire and General Assurance Co., [1925] 2 K.B. 611, aff. [1927] AC. 139, Provincial Insurance Co. v. Morgan, [1932] 2 K.B. 70, aff. [1933] A.C. 253, sppliad and followed.

Willcooks v. New Zealand Insurance Co., [1926] N.Z.L.R. 805, and Bryce v. Mercantile and General Insurance Co. Ltd., [1930] N.Z.L.R. 231, distinguished.

New Zealand Law Journal. October 3, 1933

Solicitors : Duncan, Cotterill, and Co., Christchurch, as agents for Bell, Gully, Mackenzie, and O’Leary, Wellington, for the appellant ; Wilding and Aoland, Ashburton, for the re- spondents.

Case Annotation : Glickslr~art o. Lancashire and General As- ~twan~e Co., 20 E. & E. Digest, p. 415, para. 3252.

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SUPREME COURT In Bunco.

Wellington. i

CRESSWELL v. DOMINION FARMERS’ 1933. INSTITUTE, LIMITED.

Sept. 14. Ostler, J. I

Workers’ Compensation-Construction-Judgment of Nonsuit in Common-law Action-Whether a “ Determination ” of Defendant’s Liability independently of the Statute-Workers’ Compensation Act, 1922, s. 52.

Originating Summons for an order determining the following question as to the construction of s. 52 of the Workers’ Com- pensation Act, 1922 :-

“ Is a judgment of nonsuit in an action brought by the plaintiff against the defendant to recover damages independently of the Workers’ Compensat,ion Act, 1922, a determination in such action that the accident in respect whereof such action was brought is one for which the defendant is not liable independenc,ly of the said Act ? ”

This quest,ion arose out of the following circumstances : C. had brought au action for damages against the defendant in respect of injuries alleged to have been caused by defendant’s negligence. She was nonsuited. It was admitted that defendant was liable under the Workers’ Compensation Act, 1922, s. 52 of which is, in part, as follows :-

“ If within the time limited by this Act for commencing an action for the recovery of compensation an action is brought in the Supreme Court to recover damages independently of this Act in respect, of an accident, and it is determined in the action that the accident is one for which the defendant is not liable independently of this Act, the action shall be dismissed ; but the Judge before whom the action is tried . . . shall, on the application of the plaintiff . . . proceed to determine whether the defendant is liable to pay compensation under this Act, and, if he is found to be so liable, the Judge shall thereupon assess the compensation as if in an action for the recovery thereof, but he shall deduct from the amount of compensation the costs which in his opinion have been caused by the plaintiff suing for damages instead of for compensation.” On the question whether the judgment of nonsuit was a

“ determination ” in the action that the accident in respect of which such a&ion was brought was one for which t,he defendant was not liable independently of the Workers’ Compensation Act,

Foden and Heine, for the plaintiff ; Parry, for the defendant.

Held, Tha.t, in nonsuiting the plaintiff, the Court did determine in the action that the accident was not one for which the de- fendant was liable at common law within the meaning of the above-quoted section : but, it was subject to a conditional right on plaintiff’s part to bring the claim up again for determination --viz., condit,ionally on plaintiff’s first paying the costs of the action in which she fa,iled.

Semble, If the plaintiff does not comply with the condition, the determination will become a final one ; or, if the plaintiff elects to apply to the Court of Arbitration to fix compensation under the Workers’ Compensation Act, 1922, then, the condition subsequent not having been complied with, the determination of the Supreme Court would have become a final one and it would be the duty of that Court, which would then alone have the power to fix the compensation, to dismiss the action. If the plaintiff does nothing, then the matter remains as it is and she cannot obtain any compensation.

Questioned answered “ Yes.”

Solicitors : Foden and Thompson, Wellington, for the plaintiff ; Buddle, Anderson, Kirkealdie, and Parry, Wellington, for the defendant.

NOTE :-For the Workers’ Compensation Act, 1922, see THE REPRINT OF THE PUBLIC ACTS OF NEW ZEALAND., 1908. 1931, Vol. 5, title Master and Servant, p. 597.

COURTOFARBITRATION I Auckland

1933.

i

WILLIAMSON AND WIFE v. Sept. 20. ROSS AND ATKINS.

Frazer, J.

Workers’ Compensation-“ Worker “-Contract of Service- Worker lent by Employer to Neighbour and working under Latter’s Direction-Whether under Control of Original Em- ployer-workers’ Compensation Act, 1922, s. 2.

Claim for compensation in respect of the death of Alexander Campbell Williamson, the son of the plaintiffs, who died on March 16, 1933, as a result of injuries accidentally received on February 16, 1933.

The defendants were neighbouring farmers, the defendant Ross being the general employer of the deceased. For some years it had been the custom of the two defendants to assist one another on their respective farms at busy t,imes. On the morning of February 16, 1933, the defendant Ross, knowing that the defendant Atkins had some hay to stack that day, sent the deceased to him, with instructions that he was to assist Atkins, if required, until 3.30 p.m. that afternoon. Atkins accepted the offer and the deceased accordingly took part in the work cf stacking. In descending from a stack t,he de- ceased fell on the broken handle of a hay-fork, which pene- trated his body, causing injuries from which he died.

Munro, for the plaintiffs ; A. K. Turner, for the defendant, Atkins ; R. G. Sellar. wit’h him Bone, for the defendant, Ross.

Held : 1. It is a question of fact in each case, whether the circum- stances in which a worker was temporarily lent by his employer to another person are such as to justify a finding that the original contract of service had not been suspended and that the worker, though working under the immediate cont,rol of another, was doing so under the direction of his origins,1 employer, and was, to that extent, under his control.

2. When such a finding is justified, the measure of control or direction exercised by the person to whom the worker had been lent cannot be invoked as evidence of a new contract with such person, for the work that was being performed by the worker is directly referable to the contract of service into which he had entered with his general employer.

Richards v. Sangster, [I9261 N.Z.L.R. 1.43, and Wilson v. Knight, /1907], 10 G.L.R. 171, referred to.

Judgment accordingly.

Solicitors : Bond and Munro, Auckland, for the plaintiffs ; Connell, Trimmer, and Lamb, Whangarei, for the defendant, Atkins ; Sellar, Bone, and CowelI, Auckland, for the defendant, Ross.

NOTE.-For the Workers’ Compensation Act, 1922, see THE R,EPRINT OF THE PUBLIC ACTS OF NEW ZEALAND, 1908-1931, Vol. 5, title Master and Servant, p. 507.

Rules and Regulations. Customs Act, 1913. Revocation of the additional Customs

(Tariff Preference and General) Regulations, 1933.-Guzette No. 61, August 24, 1933.

Small Farms (Relief of Unemployment) Act, 1932-33. Amended Regulations-Gazette No. 62, August 31, 1933.

Post and Telegraph Act, 1908. Amendments to Regulations re Unclaimed Letters.-Gazette No. 64, September 7, 1933.

Transport Licensing Act, 1931. Regulations relating to the Rehearing of Appeals.-Gazette No. 64, September 7th, 1933.

Transport Licensing Act, 1931. Amended Regulations relating to Passenger-services.- Gazette No. 64, September 7, 1933.

State Advances Act, 1913. Revocation of Seventh Schedule of Regulations dated 28th February, 1933.-Gazette No. 64, September 7, 1933.

Motor-vehicles Act, 1924. Amendment to Regulations as to the Equipment and use of motor-vehicles, as to notices and signs, and generally as to motor-traffic.-Guzette No. 67, September 21, 1933.

Native Trustee Act, 1930. Amended Regulations re Rate of Interest payable on Moneys in Hands of Native Trustee.- Gazette No. 67, September 21, 1933.

October 3, 1933 New Zealand Law Journal. 257.

The Conveyancing Scale. Its Revision Urged.

Amid the multifarious activities that engage its attention, the Law Society might well consider the revision of the Dominion conveyancing scale of charges. One inherent vice in the present scale is the fact that the costs borne by the public vary according to whether the parties are jointly or separately represented. There are not a few members of the public quite alive to this fact, and not above doing their best to manipulate matters so that it shall enure to their advantage. The result is not infrequently a degree of acrimony between practitioners which a more equitable conveyancing scale could avert.

For instance, in general where a solicitor acts for vendor and purchaser only the scale fee for a purchaser’s solicitor is payable, and the purchaser pays it. If, therefore, the vendor can pursuade the purchaser to instruct the vendor’s own solicitor, the latter gets the benefit of legal advice in completion for nothing. Where the same solicitor acts for both parties, his work and responsibility are both substantially increased. A solicitor acting for the purchaser alone has the ad- vantage of a check on his drafting ; he checks, but does not have to prepare, statements of the amount required to settle ; he requires the clearing from the title of encumbrances to which the sale is not subject, but does not himself have to attend to the clearing ; he is relieved of the task of obtaining execution by necessary parties ; and in a case where special covenants are required, he can frame them with a single eye on the purchaser’s interests, without having to hold the scale equitably between them and the interests of the vendor. It is reasonable, therefore, that a solicitor acting for both parties should have his remuneration increased, by being allowed 60 charge a separate fee to the vendor for the work done in the latter’s interest. Such work is readily distinguishable from that done for the purchaser. It is, in fact, substantially the same whether the same or another solicitor acts for the latter. It may, indeed, be questioned whether it is justly assessed (as in the scale provision for a solicitor acting for the vendor separately) at one-half of the purchaser’s solicitor’s fee. Probably one-third would be a fairer approximation. It is pertinent to observe that the English scale avoids the defect in thcl New Zealand scale. Provisions exist, as with us, for vendor’s solicitor’s costs and purchaser’s solicitor’s costs, but where the same solicitor does all the work he charges each client with the appropriate fee. The advantage here stressed is that such a system removes the present incentive to a wily client to inveigle from his own choice of a solicitor a purchaser with whom he has dealings.

Somewhat the same position exists in the case of a mortgage, with the difference that the mortgagor pays all costs. In the case of a mortgage which is an in- dependent transaction the mortgagee and his ad- visers can adopt a take-it-or-leave-it attitude which discounts the advantage of an independent perusal; and the mortgagor who shows his loyalty to his own solicitor by instructing him is virtually penalised for no appreciable advantage. It is true that even in such cases it may be possible, between reasonable practitioners, to make representations leading to the

modification of a provision shown to be unduly onerous to the mortgagor in the circumstances without adding nibstantially to the security of the mortgagee. Where the mortgage is given in pursuance of some pre- existing agreement in that behalf, as in the case of a vendor’s mortgage to secure purchase-money, the intervention of the mortgagor’s solicitor, and his re- quirement that the security shall not go outside the terms of the agreement, may be more effective, and result in decorating the title with a much less formidable encumbrance than were the mortgagee’s solicitor to go about his work unchecked. In all cases, however, there is a distinct abatement of the mortgagee’s solicitor’s work, in deducing title and obtaining execution, and a distinct assistance in obtaining an independent check on draft and statements, which should not go un- recognised. Where he is not acting for the mortgagor he does less work and should get a lower fee, the balance going to the mortgagor’s solicitor as the latter’s fee ; or, to put it the other way, where he acts for both he should get a larger fee. The principle is the same as in the case of vendor and purchaser ; the scale should not be so constructed as to offer a member of the public an incentive to interfere with another person’s free choice of a solicitor. Although in this case it is usually the mortgagor’s solicitor who is penalised for his loyalty, sometimes the boot is on the other foot, and the mort- gagor is the “ knowing one ” who persuades the mortgagee that it is quite a proper thing for the whole transaction to be carried through by the mortgagor’s solicitor. It may be added that the position is par- ticularly difficult for a solicitor instructed to act for a purchaser, when a mortgage is being raised to complete the purchase, with which mortgage he is told to have nothing to do ; it generally ends in his having to do a substantial amount of work for nothing in order to get the transaction brought to a settlement.

So far as leases are concerned, the position is sub- st,antially the same as with mortgages, inasmuch as the lessee pays all costs, according to the present rule ; save that the opportunities for the lessee’s solicitor to procure by negotiation a result more favourable to his client are often substantially greater. Here again, in the ultimate best interests of the profession, the same rule should apply-the cost to the person who has to pay should not vary according to whether the parties are jointly or separately represented.

As regards leases, an observation may be added as to the questionable equity of the rule that requires the lessee to pay the lessor’s solicitor’s costs. In order to counteract the age-old leaning of the Courts to the side of the tenant, most of the express provisions of a lease varying what would otherwise be the rule of the common law arc for the benefit of the landlord. It may well be contended that the landlord should be the person to pay for these benefits. As a rule of law, the present incidence of costs of a lease cannot be altered by the Law Society on its own discretion. Primarily it con- cerns the public rather than the profession. But as it is believed to have a distinct bearing on the public’s attitude to the profession and its ways, it may be a matter in which the profession would be much better justified in moving for legislation than many of the matters which it has taken up, more in client’s interests than its own. It is instructive to note that this ques- tion is at present engaging the attention of the Law Society in England-a body not as a rule prone to fight the battles of sections of the public where the interest of the profession as a whole is not directly and specially involved.

I 258 New Zealand Law Journal. October 3, 1933

As regards the actual figures of the Dominion Scale, those relating to leases are perhaps most in need of reconsideration. At present, with some slight elasticity, the fee for a lease depends solely on the consideration, and mainly on the rent. This, however, is not a fair measure of the responsibility involved. A lease for a couple of years at a large rent may be no more im- portant, in regard to the value of property depending on it, than a ninety-nine years’ lease at a much lower rental ; but it is virtually impossible to reflect this similarity in the charges. “ Special ” covenants are to some extent provided for ; but it would be more satisfactory, and lead to a fairer assessment, if the term were also taken into consideration in framing the regular charge. The scale is also defective in not providing more definitely for the case where a sub- stantial part of the consideration passes as premium instead of rent. The amount so paid is just as relevant as rent in indicating the solicitor’s responsibility, but the scale ignores it, and the only direction on the point is the vague one that “ a reasonable amount having regard to the extra work and responsibility involved ” may be charged. Even the differentiation between terms for five years or over and those of a shorter period has now been deleted.

The Vacant Judgeship. Possible Denial of Justice.

Practitioners are aware of the general inconvenience which has resulted from the fact that the Supreme Court Bench is not yet up to its prescribed strength following on the retirement of Mr. Justice Adams. To this matter, reference was made by Mr. Justice Reed in the Court of Appeal on Wednesday last. The Court had granted leave to a man to appeal as a pauper to the Court of Appeal from a judgment of the Supreme Court, whereupon Mr. C. H. Weston, counsel for ap- pellant, said it was desired, if possible, to have the appeal heard at the present sitting of the Court of Appeal. Mr. Justice Reed, the presiding judge, said :

“ It is highly improbable that a fixture can be made for the present sitting, because we are short on the Judicial Bench. It is causing a great deal of incon- venience, and possibly in some cases it may result in a denial of justice ; but we cannot help that.”

In an editorial comment in its issue of September 28, the Dominion (Wellington) says : “ Heed should be paid by the Government to the statement by Mr. Justice Reed in the Appeal Court that the shortage on the judicial Bench was causing a great deal of in- convenience. More serious was His Honour’s addition that possibly in some cases the shortage might result in a denial of justice. No doubt the pressure on the higher Courts has been increased by much recent legislation, some of it involving the determination of fundamental principles. It is important that Judges should not be over-pressed in hearing and deciding cases, and just as important that litigants should not be subjected to unnecessary delays, which may them- selves involve injustice. Among the primary functions of the State is the administration of justice, and the fact should not be overlooked. First things should come first. And while the question of the vacant judgeship is up for review, the Government should consider what can be done about the recurring complaint of work in arrears in the Arbitration Court.”

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Suits By or Against Government Departments The Draft Bill Considered.

By R. L. ZIMAN.

(Concluded from p. 249.)

II.-PLAN OF PROPOSED REMEDIAL BILL. In drafting the Bill, similar legislation which has been

in force in Australia for many years has been used as a guide. In particular the provisions of ss. 56 to 64 3f the Judiciary Act, 1903, of the Commonwealth of Australia have been availed of for that purpose. Sec- tions 56,61, and 64 of the Commonwealth Act mentioned provide :

56. Any person making any claim against the Commonwealth whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth in the High Court or in the Supreme Court of the State in which the claim arose.

61. Suits on behalf of the Commonwealth may be brought in the name of the Commonwealth by the Attorney- General or any person appointed by him in that behalf.

64. In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either aide, as in a suit between subject and subject.

These three sections have been taken as the general basis of the draft Bill. It will he seen that ss. 56 and 64 give a right of action against the Commonwealth to any person making any claim against the Commonwealth whether in contract or in tort ; and provide that, in any suit to which the Commonwealth is a party, the rights of parties shall as nearly as possible be the same and judgment may be given and costs awarded on either side as in a suit between subject and subject. It is well established that these provisions, though brief and simple, are effective to give the subject substantially the same rights, both as regards procedure and as re- gards substantive law, in an action to which the Com- monwealth is a party, as he would have in an action between subject and subject.

As regards procedure a notable illustration is the judgment of the High .Court of Australia in Common- wealth v. iIliller, 10 C.L.R. 742, affirming a decision of the Supreme Court of Victoria which ordered that the Commonwealth (by some officer named by it as conversant with the facts in dispute in the action) answer interrogatories and make discovery of docu- ments. The reason for the decision is that the “ rights ” referred to in s. 64 above cited include the right of one party to obtain discovery from another. It is made clear in the judgments that the Commonwealth does not lose any right to claim privilege for particular documents as being documents of State, but is bound to give discovery and to produce any documents that would not be privileged in a suit between subject and subject.

To the same effect is the decision of the Privy Council in Jameson vu. Downie [1923] A.C. 691 on the similar section in the New South Wales Act (Claims Against the Government and Crown Suits Act, 1912, s. 4).

As regards substantive law reference may be made first to Farnell v. Bowman [1887] A.C. 643, which arose on provisions in The Claims Against the Govern- ment Act, then in force in New South Wales, which

October 3, 1933 --

New Zealand Law Journal. l

259

gave a right of action in respect of “ any just claim or sections cited) for suits by and against the Common- demand ” and further provided that “ the rights of wealth. “ The Dominion of New Zealand ” appears parties shall as nearly as possible be the same and to be clearly established as a national entity on an judgment and costs may follow or may be awarded on even footing with the Commonwealth of Australia. either side as in an ordinary case between subject and See for example, the third and fifth recitals in the subject.” The Privy Council held that under these Preamble to The Statute of Westminster, 1931 (Im- provisions the Government of New South Wales is perial), (Public Acts of New Zealand Reprint, Vol. 1, liable to be sued in tort. The judgment in Farnell v. p. 1005). Bowman was followed and applied by the High Court of Australia in Baume v. Commonwealth (1906) 4 C.L.R.

In the Commonwealth Judiciary Act, and in the N

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97, in which it was held that ss. 56 and 64 of the Common- wealth Judiciary Act (above set out) give a subject the same rights of action against the Commonwealth as he would have against a subject in matters of tort as well as of contract : and that the Commonwealth is therefore responsible in an action for the tortious acts of its servants in every case in which the gist of the cause of action is an infringement of a legal right, if the act complained of is not justified by law a& the person doing it is not exercising an independent dis- cretion conferred on him by statute, but is performing a mere ministerial duty.

-ew South Wales a,nd Queensland Acts above referred 1, a right of action is given the subject against the ommonwealth and States respectively in respect of .aims arising out of exercise of any function of Govern- lent, there being no such exemptions as are contained L cl. 3 of the draft Bill. It seems reasonable, however, zat the Royal Prerogative be preserved in regard to he primary functions of the State-War and the ,dministration of Justice (including ,Maintenance of ,aw and Order)-and the functions of Legislation and !axation which serve to secure the sufficient fulfilment f the primary functions : and no doubt the Bill will .ave an easier passage if these exemptions be conceded. For example, when the Na.tion is at war, the whole nergies of the State must of necessity be bent to the uccessful prosecution of that wa,r ; and it is essential hat the Executive have that freedom of action which he Royal prerogative gives. The same principle would ,ppear to apply in the administration of justice (in- iluding maintenance of law and order). The State, as ,dministering justice between its subjects, must of necessity have full and unquestioned freedom to en- orce the law ; and for this purpose again the pre- ,ogative rights of the Crown appear reasonably neces- ,ary. So also with the functions of legislation and ‘axation (which serve to secure the fulfilment of the primary functions). In connection with these, it appears neasonably necessary that the State have the extra ?ower and freedom of action which the Royal pre- eogative gives.

I r

A recent decision of the High Court of Australia of importance in this connection is Pitcher v. Federal Capital Commission (1928) 41 C.L.R. 385, in which it was held unanimously (by a Bench consisting of Knox, C.J., and Higgins, Gavan Duffy, Powers, and Starke, JJ.) that the effect of ss. 56 and 64 of the Commonwealth Judiciary Act (szcpra) is t,o render binding on the Com- monwealth (in an action for a tort committed in the Federal Capital Territory) an Act in force in that Territory to the same effect as the (N.Z.) Deaths by Accidents Compensation Act,. The same decision makes it clear that the said ss. 56 and 64 are effective in a suit in which a statutory agent of the Commonwealth Government is a party. It follows that ss. 4 and I of the draft Bill will be effective in a suit in which a statutory agent of the New Zealand Government (such as the State Advances Superintendent) is a party.

In view of the effect of ss. 56 and 64 of the Common. wealth Judiciary Act (supra) being thus well settled it seemed best to adopt the language of them rather thar attempt an enumeration of a large number of specific rules to be made binding on the Dominion.

It is right to mention that the Queensland AC{ (Claims Against the Government Act, 1866, s. 2) ant the New South W’ales Act (Claims Against the Govern ment and Crown Suits Act 1912, s. 3) give a right o action in respect of “ any just claim or demand what ever ” against the Government ; whereas, under the Commonwealth Judiciary Act, s. 56 (su~ra), the righ of action against the Commonwealth is limited tc claims “ in contract or in tort.” There may, perhaps be ground for objection by reason of the generality o the expression “ any just claim or demand whatever.’ The right. of action under the Bill has therefore bee] based on the Commonwealth Act, s. 56-giving a righ of action on claims “ in contract or in tort.” Thi definition seems sufficiently comprehensive to in&d all usual types of claim against the Government fo which an amendment of the law is desirable ; an the Bill makes it clear (cl. 13) that, in any case to whicl the Bill does not apply, the procedure under the Crow: Suits Acts, if previously available, can still be invoked.

Following the model of ss. 56, 61, and 64 of the Con: monwealth Judiciary Act (supra) which have been i force unamended for 30 years, provision is made i the Bill for suits by and against the Dominion b analogy with the provision (in the Commonwealt

3 , t : 1

‘) f

It may possibly be suggested that there should be t wider right of action against trading than against non-trading Departments. Apart from the exercise of bhe primary funct.ions of war and administration If justice (inclut?ing maintenance of law and order) %nd the allied functions of legislation and taxation, the State in New Zealand engages in many activities which may be claimed to be non-trading. In regard to these last-mentioned activities there seems no sound reason for the State being under any less liability in contract or in tort than it is in regard to its trading activities, e.g., a breach of contract by the Education Department should be remediable in hhe same way and to the same extent as a breach of contract by a Trading Department. Similarly if a person is injured by a vehicle belonging to the Internal Affairs Depart- ment he should have the same rights as if the injury had been caused by a vehicle belonging to a Trading Department. There would also in practice be con- siderable likelihood of difficulty in determining whether or not a particular Department was a Trading De- partment. The plan adopted is therefore submitted as reasonable in principle and calculated to work smoothly in practice. n

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A small difficulty arose when considering the best means of ensuring that, the rights given by the Bill be not taken away by the Crown Suits Act, 1908, and amending Act of 1910. The Bill has been drawn (cl. 12) so that the rights given by it are not taken away by

New Zealand Law Journal. October 3, 1933

those Acts : and on the other hand (cl. 13 of the Bill) those Acts are to continue to apply to every claim which before the passing of the Bill lay by or against the Crown and for which a suit does not lie by or against the Dominion under the Bill. The Government might, perhaps, object to being deprived of the benefit of s, 5 of the Crown Suits Amendment Act, 1910, by virtue of which the Governor-General, Judicial Officers, and Members of the Defence Forces are not to be deemed servants of the Crown within the meaning of the law relating to Employers’ Liability. As regards Judicial Officers and Members of the Defence Forces, this is preserved by the general provisions of cl. 3 of the Bill ; and, to attain the same point in regard to the Governor- General, the plan adopted has been also to provide in cl. 3 that the Bill does not affect or alter the law re- garding the relations between the Dominion and the Governor-General. The Commonwealth Judiciary Act (see s. 56, supra) only permits the suit to be brought in the High Court or in the Supreme Court of the State in which the claim arose. But in Queensland (Claims Against the Government Act, 1866, s. 5) and in New South Wales (Claims Against the Government and Crown Suits Act, 1912, s. 4, re-enacting similar legisla- tion first passed in 1876 and re-enacted in 1897) the suit may be brought “ in any competent Court.” There seems no reason against following in this respect the Queensland and New South Wales models. The draft Bill accordingly provides (cl. 4) that the suit may be brought “ in any Court which would have jurisdiction if the suit were between subject and subject.”

In regard to enforcement of the judgment, the Com- monwealth provision for the issue of a certificate appears unsatisfactory from the New Zealand point of view. As held in Broad V. The King, already cited, the effect of a mere certificate in New Zealand is to confer no right to interest and to create no obligation on the Government to pay. The New South Wales Act (Claims against the Government and Crown Suits Act, 1912, s. 11) does not provide for the issue of a certificate, but requires the Colonial Treasurer to pay the damages and costs adjudged out of any moneys in his hands legally applicable thereto or voted by Parliament for that purpose, and provides that if payment is not made within 60 days after demand, execution may be levied against any property of the Colonial Government. The Queensland Act of 1866 contains similar provisions.

It seems rather undignified (and would, no doubt, lead to opposition) to suggest a right of execution against Government property ; but a reasonable plan, by analogy with the New South Wales procedure, will be (see cl. 10 of the Bill) to cast on the Minister of Finance an express duty to pay the amount of the judgment out of the Consolidated Fund within two months without further appropriation than the Act itself, with power to the Court in case of appeal to direct that all or part of the moneys be withheld. There is some objection to legislation providing for payment of annual grants without further appropriation ; but this objection is quite inapplicable to the case of an actual debt established by judgment of a Court. Once the debt is established there should be a definite obliga- tion to pay, without the uncertainty and delay which the need of a Parliamentary appropriation may entail. By analogy reference may be made to s. 3 of the Judica- ture Amendment Act, 1920, which provides that the salaries therein mentioned shall be payable to the Judges of the Supreme Court “ without further appro- priation than this section.”

i

In cl. 9 of the Bill it has been made clear that interest accrues as in suits between subjects. Clause 14 of the Bill has been adapted from s. 39 of the Crown Suits Act, 1908, as preserving to the Crown any exemptions specially given it by any Act other than the Crown Suits Acts. This appears reasonably necessary to prevent any suggestion that the Bill may by implication take away exemptions, powers, authorities, or liabilities now existing under Acts other than the Crown Suits Acts.

III.-EFFECT OF THE BILL SUMMARISED. The substantial effect of the Bill may be briefly

stated to be :- (1) The Bill does not apply to claims by or against

the Dominion arising out of exercise by the State of the functions of war and administration of justice (includ- ing maintenance of law and order) or the allied functions of legislation and taxation.

(2) Save as last mentioned, the Bill applies to :- (a) All claims by the Dominion ; (b) All claims against the Dominion in contract or

in tort. (3) Claims by or against the Dominion not coming

under the Bill, but which could hitherto have been brought under the Crown Suits Acts can still be brought under those Acts.

(4) In respect of the claims against the Dominion to which the Bill applies it will :-

(a) Give a procedure as in suits between subjects with incidental rights, such as full power of amend- ment of pleadings, power to join co-defendants, dis- covery of documents and interrogatories :

(6) Give the right to bring in an inferior Court a suit which could have been so brought if it had been between subjects :

(c) Provide for the judgment carrying interest and impose an obligation to pay :

(d) Take away the unreasonable exemptions and limitations which the Government at present enjoys under the Crown Suits Acts, e.g., non-liability to actions for libel or slander, and limitation to 52,000 of liability in respect of causing death or personal injury. There are, no doubt, many matters not touched by

;he Bill which practitioners may consider should be eemedied. It is submitted, however, that there is a Jetter chance of succeeding in having the Bill passed f it adheres as closely as possible to well-tried Australian Jrecedent and is so reasonable and moderate in its tim as to ensure general support.

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Our Profession.-Lord Macmillan asked recently if ;here existed any profession more delightful than that of ;he law. With all the differences that existed between awyers, the same spirit animated lawyers all over the world and made them brothers. The laity did not in ;he least realise what a fascinating study the law was. l?hough lawyers were said to be die-hards, they were eeally progressive. Lord Atkin was at the moment surveying the whole field of legal education, and had lone more than any other man to make lawyers real&e ;hat they were professional men and not tradesmen. l!he whole difference lay in this : that the professional nan did his work because he liked it and for its own Jake, while the tradesman worked in order to make noney-a legitimate aim, but a different one.

October 3, 1933 New Zealand Law Journal. 261

New Zealand Conveyancing. By S. I. GOODALL, LL.M.

Debts Charged on Estate.

(Concluded from p. 250.)

Moss’s case (in addition to the point of constitutional law there illustrated) shows that a direction in a will to pay off a mortgage on one property with the proceeds of sale of a second property does not, when those proceeds are insufficient for the purpose, exonerate the first property from payment of the balance of the mortgage debt or transfer liability therefor to the personal estate contrary to the principle of Locke King’s Act. Aga.in the question of such apportionment is not referred to in the report of the case.

In Ramsay 2:. Lowther (supra) the testator specifically bequeathed all his personalty (including the proceeds of sale of certain vacant land) to his wife on trust there- out to pay one of two mortgages on his real estate. The latter was devised to the wife for life with remainder to the children. The general estate being insufficient to pay the debts of the testator, recourse was had to the specific devises and specific bequest. In valuing the realty and the personalty for the purposes of con- tribution the Court held there was no difference in principle between a charge on real estate created by the testator in his lifetime, and a direction in the will to pay a debt out of a specific property. Accordingly, there should be deducted from the value of the realty the amount of the mortgage debt not made subject to the trust but paJrable by the devisees under Locke King’s Act, and from the value of the personalty the amount of the debt directed by the will to be paid thereout. Yet again the quest’ion of apportionment of interest between devisee and t’he representative of the deceased was not raised.

In the fourth of the a,bove cases, In re Mqior, the question in issue was (with reference to the large pro- portion of mortgage debts not discharged out of an express trust fund) whether on the one hand the pro- portion of each mortgage debt fell in the ordinary course on the property subject to the particular mortgage, or whether on the other hand the words of the will were strong enough to throw all mortgage debts on all the properties and to make the properties a, common fund for the rateable discharge inter se of the total mortgage liability. It was held that the will had not the effect so claimed, with this result : (1) The pro- portion of mortgage debt,s not discharged out of the express trust fund remained as charges on the sepa.rate mortgaged properties ; (2) the proportion of the other debts and of the funeral and testamentary expenses not discharged out of the express trust fund as between the various specific devises fell rateably on them in proportion to their values ; and (3) these values were ascertained in the case of such of them as were subject to mortgage on the total value of each property less the amount of that proportion of its mortgage or mort- gages not dischargeable out of the express trust fund.

And still the use of the statutory wording “ mortgage debt ” and still no light on the question of apportion- ment.

Nor does the “apportionment ” section of the Property Law Act (s. 108) assist. It will be recollected

on the construction of that section that a specific bequest of a mortgage carries with it not only principal moneys but also arrears of interest acerued and interest accruing to the date of death of the testator : Gibbon V. Gibbon, (1835) 13 C.B. 205, 138 E.R. 1176 ; Taylor v. Guardian Trust and Executors Company of New Zealand, Limited, [1930] G.L.R. 186. Rent is apportion- able between the devisee and the representative of the testator, but that does not help.

And so one reverts to the wording of the statute, “ mortgage debt ” used in the original enactment of 1854 and reproduced without further definition in s. 35 of the Law of Property Act, 1925 (Imp.), but apparently assumed from the outset not to differentiate between principal and interest moneys included in the mortgage liability. Equity, too, prior to 1855 had no occasion to draw, and did not draw, any distinction between principal and interest moneys in this regard. Finally in New Zealand at least there is the analogy between “ mortgage debt,” and “ mortgage money ” defined (as above pointed out) in s. 2 of the Property Law Act to include all moneys, worth secured by a mortgage ; and the use of the plural mortgage debts in the latter part of subs. (1) of s. 108 refers not to principal and interest as component parts of the liability under one mortgage, but to the several liabilities under more mortgages than one. So that, whatever may be the law of New South Wales in that respect, there does not appear to be a strong case for the devisee who seeks to have paid out of the personal estate interest accruing and arrears of interest accrued on the mortgage to which the property taken over at the death of the deceased is subject.

The third subsection of the New Zealand legislation merely declares that the principles of Locke King’s Acts shall not affect or diminish any right of the mort- gagee of such lands to obtain full payment of his mortgage debt either out of the personal estate of the deceased or otherwise. Again the expression “ mortgage debt ” seems to include all moneys whether for principal or interest thereon recoverable under the mortgage security.

The provisions of s. 109 of the Property Law Act do not apply to personalty. Hence, while the devisee of a farm property must take it cum onere, the specific legatee of the live and dead stock takes his bequest free from payment of debts of the testator. The posi- tion under the English enactment was similar (see In re Bourne, Martin v. Martin, [1893] 1 Ch. 188, at p. 191 per Stirling, J.) until January 1, 1926, when s. 35 of the Law of Property Act, 1925 (Imp.), extended the operation of the principles of Locke King’s Acts to “an interest in property, which at the time of (the testator’s) death is charged with the payment of money, whether by way of legal mortgage, equitable charge or otherwise (including a hen for unpaid purchase money) . . .”

It is best, after all, to obtain express instructions from an intending testator as to his intentions regarding the incidence of debts.

. Precedents ( Clauses in Will).

1. Clause negativing principle of Locke King’s Acts.

2. Clause providing for apportionment of interest on principal moneys of mortgage debt charged on devise.

3. Clause imposing on chattels primary liability for moneys charged thereon by instrument by way of security.

262 New Zealand Law JournaL October 3, 1933

1. Clause negativing principle of Locke King’s Acts : 1 DECLARE that the provisions of s. 109 of the Property Law Act, 1908, shall not apply to the devise of my said (farm) property at (Gio) hereinbefore made IT BEING my intention that (my said son John) shall take the said farm exonerated from any or all mortgage debt or debts to which the same or any part thereof may be subject at my death.

London Letter. Temple, London,

My dear N.Z., July 26th, 1933.

The Summer Term is now drawing to an end in a

2. Clause providing for apportionment of interest on principal moneys of mortgage debt charged on devise : I DECLARE that in the application of s. 109 of the Property Law Act, 1908, to the devise of my said (farm) property at (Oio) hereinbefore made (my said son John) shall take the said farm subject to the principal moneys (but not interest moneys accruing thereon or arrears of interest accrued thereon at my death) included in any or all mortgage debt or debts to which the same or any part thereof may be subject at my death IT BEING my intention that all such interest and arrears of interest shall be apportioned between my; estate and the devisee as at the day of my death.

blaze of sunshine which makes the Long Vacation seem even more desirable than usual. Although the Law Courts are among the coolest places in London, the streets and even the Temple Courts are uncom- fortably hot in this weather ; for the thermometer has been registering 80 degrees or thereabouts during most of the last eight or nine days. Moreover an army of workmen has recently invaded the Temple precincts and are now busily engaged in erecting scaffolding around many of the buildings preparatory to vacation repa,irs, so that most of us will be glad to get away to the country or seaside next, week.

3. Clause imposing on chattels primary liability for moneys charged thereon by instrument 1j.v way of security : I DECLARE that (my said son John) shall take the said (farm chattels and livestock) subject to the payment of any or all mortgage debt or debts (inclusive of interest and arrears of interest if any thereon at my death) with which the same or any part thereof may then be charged I by any instrument or instruments by way of security and (my said son John) shall not be entitled to have such mortgage debt or debts paid either wholly or in part out of my other personal estate save where the debt (or debts) is or are charged not only upon (the said farm chattels) but also upon my other estate or part of it in which case every part of the estate whether real or personal so charged shall bear a proportionate part of the debt (or debts) according to its value.

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Legal Literature.

Proceedings before Magistrates and Justices.

Stone’s Justices’ Manual, being the yearly Justices’ Practice for 1933. Sixty-fifth Edition, edited by F, B. Dingle, Clerk to the Justices for the City of Sheffield and to the West Riding Justices, etc.

Judges’ Salaries.-A regular furore has now started over here on the question of Judges’ salaries, which, unlike the salaries of your Judges, were reduced in common with those of various public services under the National Economy Act, 1931. The matter was brought to a head on the 3rd of this month at a dinner given at the Mansion House by the Lord Mayor and Lady Mayoress of London, when Mr. Justice Avory, replying to the toast of His Majesty’s Judges, said that the Judges had been performing their duties under the shadow of a grievous wrong. They had, he said, been classified as servants of the Crown in direct violation of the Act of Settlement. There followed letters to the Times, a question in the House (when Mr. Baldwin stated that he would be prepared to debate the question), and more letters to the Times (still continuing). Much hot air has been talked, to the point in some cases of losing the main question at issue altogether, which really amounts to whether the Judges are or should be servants of the Crown. NO doubt in one sense they are properly servants of the Crown in that they serve the State and owe allegiance to His Majesty ; but almost every one is agreed that they should not be servants of the Crown so as to make them subject to the control of Parliament or liable to obey the commands of the Crown. It has been suggested that the National Economy Act, 1931, by making pro- vision for the reduction of the remuneration of “ persons in His Majesty’s Service . notwithstanding any- thing in any enactment,” has to that extent amended the Act of Settlement, but this depends on the interpre- tation of “ persons in His Majesty’s Service.” It has also been suggested that the real reason for all this fuss is the desire of the Judges to have their full salaries restored, but the only Judge who has so far com- mented upon the matter, as far as I am aware, has been Mr. Justice Avory, who is said to be about to retire and is therefore disinterested.

No less than a hundred and forty-four new cases have been added to the present edition of this exhaustive treatise, which is brought down to January of the present year. The quality of the work is widely recognised,

I’ and one notices that in a recent judgment, Lord Merrivale, Master of the Rolls, in dealing with a dis- charge of a maintenance order, referred to and approved a note in Stone’s Justices iVanua1 for 1932 which com- mented adversely on the correctness of the decision _.. _ . _ in Wailer v, ll’aller (1927) P. 154, which he overruled : see Nntborny v. Natborny (1932) 48 T.L.R. at p. 593.

More about Grand Juries.-The Grand Jury is dying hard. Now that it is too late, many are the pleas for its retention, including one by Professor Holdsworth which appeared in the form of a letter in the Times about a fortnight ago. While allowing that the argu- ments of economy may apply to quarter sessions, Professor Holdsworth defends the Grand Jury at

The many thousands of cases quoted, explained, and commented upon in Stone’s 2,284 pages make it indis- pensable in practice in the lower Courts.

Assizes as an important part of the procedure of a criminal trial and as a piece of constitutional machinery which we cannot afford to lose. Comment was also made on the abolition of the Grand Jury by the Recorder of London at the opening of the July session of the

Odtober 3, 1933 New Zealand Law Journal. 263

Central Criminal Court at the Old Bailey, when he vouchsafed the information that in the last three and a half years eleven people, had been saved by the Grand Jury from having to stand trial for murder. In ad- dition to the expressed views of various legal authorities, Grand Juries themselves all over the country have been making presentments regretting their abolition.

In the Privy Council.-New Zealand’s appeals to the Privy Council came on for hearing in the early part of this month, naturally that one exciting the most interest which relates to the claims for compensation under the Workers’ Compensation Act, 1922. The Judicial Committee consisted of Lord Atkin (an astut’e lawyer who can, if he pleases, give you an uncomfortable time while you are arguing your case), Lord Tomlin, Lord Macmillan, Lord Wright, and Sir George Lowndes. I-called in one day for an hour or so and heard Wilfred Green arguing for the respondents. He is an admirable advocate and has the great gift of being able to remain quite unruffled however much he may be interrupted by questions put to him by members of the Committee.

1

The Judicial Committee has been sitting in two Divisions for the past few weeks and the New Zealand Appeals have been heard in the Board Room instead of the usual chamber. The arrangements are similar- the semi-circular table for the Judicial Committee and the little high desk facing them for Counsel arguing- but there is less space in the room for the solicitors and the general public.

I ;

Record Trials.-The Fire Insurance case, as it is called, in which sixteen men are on trial at the Old Bailey for defrauding insurance companies, seems likely to fulfil its promise of providing a record for long trials, although several of the defendants, including Harris who has been described as the ringleader of the alleged conspiracy, have withdrawn their plead of not guilty and pleaded guilty to certain counts. The trial is now in its fourth week and the case for the prosecution, though nearing completion, is not yet closed.

What may possibly constitute another record is a case which was finally disposed of in the Chancery Division only this week. It was a matter which had been before the Court for over two centuries, and re- lated to a will made in 1716, the original Bill having been filed in Chancery in 1725.

From my Case-book.-A point which may not be without interest to you came before the Court of Criminal Appeal early this month. The case was one in which a man named Thomas appealed against his conviction at Merionethshire Sessions of sheep-stealing on the ground that two members of the jury did not understand English. In support of that allegation the Court was asked to look at affidavits by the two members of the jury, but this the Court declined to do. Where a verdict is delivered in the sight and hea.ring of all the jury without protest, they said, it is conclusive, and it is not open to any one of them to say afterwards that they did not assent to it.

His Honour Judge Chapman.-The legal profession has lost a popular member by the death on Friday last of His Honour Judge Chapman, County Court Judge of the Yorkshire Circuit. He had many interests be- sides the law, not the least of which was his love of the hunting field. He was a keen supporter of the annual Bar Point to Point Races, where he invariably rode his own horse. I well recollect a race in 1928, in which the Prince of Wales also took part, when Judge Chapman had a bad fall. His death at a compara- tively early age is much to be deplored.

Yours ever, H. A. P.

Practice Precedents. -_

Guardian ad Litem : The Judicature Act, 1908.

Infants may sue by a guardian ad litem admitted for ;hat purpose by the Court : It. 67 of the Code of Civil Procedure (Stout and Sim’s Supreme Court Pra,ctice, 7th Ed. 85. Before any person is allowed to act as a guardian zd litem under this Rule, he shall first be admitted for ;hat purpose by the Court upon a petition signed by him. No married woman is eligible to be admitted a Tuardian ad litem. The guardian ad litem shall be a person not interested in the result of the action (RI. 69). “ Interested ” means “ not interested adversely ” to the infant.

The guardian shall be liable for costs, and shall not be allowed tc retire without giving security for the costs already incurred, if such security is required by the opposite party : Provided that a solicitor appointed guardian ad litem under R. 71 shall not be so liable- R. 74.

The forms herein contemplate the appointment of a guardian ad litem in an intended action in the Supreme court.

1. PETITION FOR APPOINTMENT OF GUARDIAN AD LITEM. IN THE SUPREME COURT OF NEW ZEALAND.

. . . . . . . District.

. . . . . . . . Registry. IN THE MATTER of the Judicature

Act, 1908, AND

IN THE MATTER of an intended Action BETWEEN

A.B. of an infant suing by his father C.D. of , Clerk, and the said C.D. as Plaintiffs

AND E.F., of Salesman, Defendant..

To the Right Honourable the Chief Justice of New Zea- land. THE HUMBLE PETITION OF the above-named C.D. showeth r&s follows :-

1. That your petitioner is the father of the above-named intended plaintiff A.B. who is an infant of the age of ten years.

2. That your petitioner is resident in the City of within the jurisdiction of this Honourable Court and is desirous of being admitted as the guardian ad litem of the intended plaintiff A.B.

3. That the &aid intended plaintiff A.B. claims to recover damages from the above-named defendant E.F. in respect of an accident which occurred on the day of 19 when the said A.B. was negligently run into by a motor- car driven by the defendant E.F.

4. That, as a result of the said negligence t,he said A.B. suffered severe injuries.

5. That your petitioner is not in any way incapacitated from acting as such guardian ad litem and has no interest directly or indirectly in the subject-matter of the above intended action ADVERSE to that of the said A.B.

6. That your petitioner believes that the intended plaintiff A.B. has a good cause of action on the merits. YOUR PETITIONER THEREFORE HUMBLY PRAYS : For an Order that, your petitioner be admitted as guardian ad litem on behalf of the said A.B. for the purposes of the said intended action.

(Sign&we.) Signed by the said C.D. in the presence of

A solicitor, etc. .

( z4ff;dauit wevijying.) I, C.D. of etc., the above-named petitioner make oath and say that so much of the foregoing petition as relates to my

New Zealand Law Journal. October 3, 1933

own acts and deeds is true and so much thereof as relates to the acts and deeds of other persons I believe to be true.

Sworn, etc. (Signature.)

2. MOTION IN SUPPORT ox PETITION.

Mr. (Same heading.)

of counsel for the above-named C.D. TO MOVE before the Right Honourable Sir Chief Justice of New Zealand at his Chambers, Supreme Courthouse at on day the day of 19 at 10 o’clock in the forenoon or so soon thereafter as counsel can be heard FOR AN ORDER in terms of the prayer of the pet,ition filed herein that the said C.D. be admitted as guardian ad Z&em on behalf of t,he said A.B. UPON THE GROUNDS that the said C.D. is a fit and proper person to be so admitted AND UPON the further grounds set out in the affidavits filed in support of the said petition AND FOR A FURTHER ORDER as to the cost? of and incidont’a,l to this application.

Dated at this day of 19 . Counsel for petitioner.

Certified pursuant to Rules of Court to be correct. Counsel moving.

Reference : His Honour is respectfully referred to R. 67 of the Code of Civil Procedure.

3. AFFIDAVIT IN SUPPORT OF PETITTON. (Same heading.)

I, G.H. of the City of Clerk in Holy Orders, make oath and say as follows :-

1. That the said A.B. is an infant of the age of ten years. 2. That I have known C.D. the petitioner named and des-

cribed in the pet,ition herein for the past thirty years. 3. That I know the said petitioner to he of good character

and to be a fit and proper person to be appointed the guardian ad litem on behalf of the said A.B. and that the said C.D. has no interest in the said intended action adverse to the interest of the said A.B.

Sworn, etc. (Sigmture.)

4. ORDER APPOINTING GUARDIAN AD LITEM. (Same heading.)

day the day of 19 . Before the Honourable Mr. Justice

UPON READING the petition of C.D. above-named and the motion filed herein and- the affidavits filed in support of the said petition AND UPON HEARING Mr. of counsel for the said petitioner IT IS ORDERED that the said C.D. be and he is hereby admitted GUARDIAN AD LITEM on be- half of the intended INFANT PLAINTIFF A.B. for the pur- pose of the above-intended action AND IT IS FURTHER ORDERED that the costs of and incidental to this application are hereby reserved.

By the Court. Registrar.

Bills Before Parliament. --.- Law of Libel Amendment. (HON. MR. COBBR.) [The purpose

of this Bill is to protect persons who, in good faith and with- out malice, publish in- newspapers or- other publications reports of the proceedings and findings of domestic tribunals established by the controlling authorities of sports organisa- tions.] Qualified privilege in respect of publication of pro- ceedings of inquiries held pursuant to rules of society formed for promotion of sport.-Cl. 2.

Judicature Amendment Bi!l. (HON. MR. COBBE.) [The pur- pose of this Bill is to alter the procedure prescribed by the Judicature Amendment Act, 1932-33, for summoning special sittings of the Court of Appeal in cases of emergency. The Bill provides that such a sitting shall be held only after a certificate given by three Judges of the Supreme Court (of whom the Chief Justice shall be one), to the effect that by reason of special circumstances it is desirable that a special sitting be held. For purposes of convenience it is proposed to repeal the existing Act, and to reenact it with the modifica- tion indicated above. The Bill has been promoted at the request of the Right Honourable the Chief Justice of New Zealand.] Cl. 2.-Special sittings of the said Court of Appeal

shall be held at such t,imes and places as may be from time Do time appointed by the Governor-General by Order in Council published in the Gazette. (2) The authority con- ferred on the Governor-General by this section shall be exer- rised only on a certificate of not less than three Judges of the Supreme Court (of whom the Chief Justice shall be one) given on the ground that it is not desirable or expedient that the hearing of any appeal or other proceeding, to be specified in the certificate, should be deferred until the next ordinary sitting of the Court of Appeal. (3) In any appeal or other proceeding to be heard at a special sitting of the Court of Appeal the whole jurisdiction of that Court may be exercised by any three or more Judges of the Supreme Court (whether of the same Division of the Court of Appeal or not). (4) A special sitting as aforesaid shall not be re- garded as a sitting of the Court of Appeal for any purpose other than the hearing and determination of the appeal or other proceeding in respect of which a certificate is given in accordance with subs. 2. Cl. X-The Judicature Amend- ment Act, 1932-33, repealed.

Trustee Amendment Bill. (RT. HOLY. MR. COATES.) [By sec- tion 46 of the Finance Act, 1931 (No. 2), temporary authority was conferred on trustees, subject to the approval of the Supreme Court, to borrow on the security of the trust property and to apply the moneys so borrowed for the benefit of persons for whose benefit the trustees could lawfully apply capital moneys of the trust, if such were available. In England (by virtue of s. 16 of the Trustee Act, 1925), trustees have permanent authority to borrow in such cases, and the exercise of their borrowing-powers is not restricted to the same extent as in New Zealand. The purpose of the present Bill is merely to remove the restriction contained in subs. (4) of the section above referred to (which prohibited the exercise after March 31, 1933, of the borrowing-powers conferred by the section), and could have been effected simply by the repeal of that subsection. But it was thought advisable to take the opportunity of transferring to the law relating specifically to trusts and trustees (to which they properly belong) the provisions now contained in ss. 45 and 46 of the Finance Act already referred to.] Trustee not liable for continuing to hold investment which has ceased to be an authorised investment. Repeal.-Cl. 2. to borrow moneys for benefit of

Authority of trustees persons

of trust property. Repeal.-Cl. 3. entitled to capital

New Books and Publications. Encyclopaedia of Local Government, 1932. (Butterworth

8t Co. (Pub.) Ltd.). Price 55/-. Butterworths’ Workmen’s Compensation Cases, Volume

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assisted by Walter Somerville Wigglesworth. (Butter- worth & Co. (Pub.) Ltd.). Price SO/-.

Applied Psychology for Advertisers (Library of Ad- vertising Series, Vol. 6). By A. P. Braddock, M.A. (Butterworth & Co. (Pub.) Ltd.). Price 10/6d.

The Rent Act, 1920-1933. By H. Heathcote-Williams, M.A. (Property Owners’ Protection Association). Price 8/6d.

Rent and Mortgage Interest Restrictions. Fourteenth Edition (Law Notes). Cloth, Price 12/6d. ; Paper, Price lo/-.

Conduct at the Bar and Some Problems of Advocacy. By J. E. Singleton, K.C. (Sweet & Maxwell Ltd.). Price 3/-.

The Children’s Act. With Introduction by G. G. Raphael, Enid Rosser, Wilfrid Fordham, and Index by H. A. C. Sturgess. (Eyre & Spottiswoode). Price 12/6d.

Everyday Law. By Guy Coleridge. (Eyre 8~ Spottis- woode). Price 3/6d.

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