children and dangerous objects : degree of care...

New Zealand Law Journal.

New Zealand

“ A dictator’s will supplanting the will of the people in creating laws is not the gracest possible infliction upon freedom. What I consider worse are administraGe decisions supplanting or influencing the Court oj justice in applying law to the indiGlua1. Frederick the Great was a tyrant in the political sense. But we are told that the King of Prussia boasted of ha,aing lost his case

against the owner of a windmill which disturbed the King’s peace in Xans-Xouci.”

-PROFESSOR ERWIN SCHR~DINGER, in Ereedom, a cohection of B.B.C. talks.

Vol. xv. Tuesday, November 21,1939. No. 21.

Children and Dangerous Objects : Degree of Care Required.

II. WHERE a child is doing an act which contributes to

the accident is only following the instincts natural to his age and the circumstances, he is not guilty of contributory negligence : Lynch v. Nurclin, (1841) 1 Q.B. 29, 113 E.R. 1041, and Glasgow Corporation v. Taylor, [1922] 1 A.C. 44. But the taking of reasonable precautions by the defendant to protect the child against his own propensities may afford evidence that the defendant was not negligent, and, therefore, not liable : Ross U. Keith, (1888) 16 R. (Ct. of Sess.) 86 ; Royan v. McLellans, (1889) 27 SC. L.R. 79 ; and Haughton n. North British Railway Co., (1892) 30 SC. L.R. 111.

Knowledge that children were likely to meddle with that which the defendant himself provided, which was dangerous in character and a manifest allurement to children imposes on the defendant a relatively higher degree of duty to take care. This principle was applied by Groom-Johnson, J., in an action heard in Liverpool recently, Culkin v. McFie and Sons, Ltd., [1939] 3 All E.R. 613. The facts were unusual. The infant plaintiff, a boy of seven years of age, ran out from the pavement towards a lorry and trailer, laden with sacks of sugar, for the purpose of catching some of the sugar escaping from one of the sacks. At the time he ran out, the lorry had passed him, but not the trailer. He was injured by the trailer running over his left foot. It was found as a fact that the leakage of sugar was not due to any act of the infant plaintiff or other boys, but was due to damage suffered by the bags either during unloading from the ship or during loading on the lorry, and the leakage of the sugar was, in the learned Judge’s opinion, within the knowledge

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of the defendants by their servant. The lorry was proceeding at a reasonable speed, and the driver had kept a proper look out, and he was in no way negligent in his driving. There was a look-out man on the lorry, and, while he was in no way negligent, he was not in a position to see the boys approaching the lorry and to warn them to keep away. In the street in which the accident happened, there were three large elementary schools, and the accident happened outside one of them, on a day which was a whole holiday. The practice of the boys to run after such lorries was well known, and the driver of the lorry had frequently had trouble with the boys. There was an alternative route close by, and the defendants had done nothing to cover or protect the sacks in any way, or to prevent the sugar from escaping on to the roadway, which could have been effected by quite simple care.

It was the practice of children in this neighbourhood, when a lorry laden with sacks of sugar hove in sight, to raise the cry of “ Togy ! ” and thereupon they descended upon what fell from it as their lawful spoil. The defendants’ driver said, in evidence, that he had frequently had trouble with boys, having to pull up to avoid their getting hurt ; and that his mate had chased boys away on other occasions, that there were scores of children in the neighbourhood, and that he had, at some other time, stopped at one of the schools and complained to the mastey. He said that he had seen children filling their caps Gith sugar from other vehicles, but not from his. His Lordship could not believe that these facts had not come to the knowledge of at least one responsible officer of the defendants. They were not new or recent. On the facts, Croom-Johnson, J., observed :

“ I can think of few things more likely to tempt young children from the comparative safety of the footpath (or parapets, as they are commonly called in Liverpool) into the dangers of the roadway, and into close proximity to & vehicle bearing so tempting a cargo, than the spectacle of sugar dropping from the vehicle and being abandoned to whomsoever chose to pick it up. It was not suggested that any attempt was made by anyone on behalf of the defendants to gather up the fallen sugar, and I was satisfied that the property in it was abandoned as it escaped and fell. I find that the infant plaintiff W&S 80 tempted on the day in question, and succumbed to the temptation for the first time in order to seoure some of the escaping sugar for his own immediate consumption. I find th& he sustained the injuries complained of by being run over by a wheel of the trailer whilst, being so tempted, he was securing some of the sugar referred to.”

In his judgment, His Lordship came to the conclusion that neither of the defendants or their servants took any effective steps or precautions to prevent an induce- ment, or opportunity, for children to run into danger or to guard against the consequences. Although there was no personal negligence on the part of the defendants’ driver and look out man, they were given, in all the circumstances, an impossible task by the defendants and could not be acquitted of a breach of duty.

The defendants contended that a mere lorry is not an allurement : Rawsthorne v. Ottky, [1937] 3 All E.R. 902 ; but his Lordship said that this was not a mere lorry, but a species of juggernaut dropping sugar into the roadway as it went and blinding children of such tender years as the plaintiff’s to the danger of too close an approach to it.

The danger in the circumstances to this plaintiff was in effect a concealed one, said the learned Judge. in. answering the defendants’ proposition that the:

New Zealand Law Journal. November 21, 1939

allurement must be to a concealed danger or trap, in support of which they cited Cooke v. Midland tieal Western Railway of Ireland, [1909] A.C. 229, and L&ham v. R. John-son and Nephew, Ltd., [1913] 1 K.B 398.

The defendants said in argument that the plaintifj was not in the roadway for the purpose of passing and repassing, but for some other purpose, and was therefore, a trespasser : Liddle V. Yorkshire (Nod Riding) County Council, [1934] 2 K.B. 101. Hir Lordship, in the course of his judgment said :

“The motive which induced the plaintiff to run out intc the roadway in the exercise of his lawful right so to do is, 1 think, immaterial. It is a question of fact whether a persor is using a highway as .a highway for passing in accordana with reasonable and ordinary u&r of-it for- that purpose Harrison v. Duke of Rutland, r18931 1 Q.B. 142. I come to the conclusion he was not a &es&sser inon the hiehwav and that he was,

L Y in all the c&cumstances, maging L

reasonable use of it. To hold otherwise would be to turr into a trespasser any child who chased his ball into the road, way or ran across the roadway in play.”

In the circumstances of this case, the defendantr contended that they owed no duty to the plaintifj to take care other than a duty not to cause him wilfU; damage or not to do a wilful act in reckless disregard of humanity towards him : Latham v. R. Johnson and Nephew Ltd., [1913] 1 K.B. 398. This contention did not find much favour with the learned Judge who said :

“To send this moving and attractive vehicle down this street with an insufficient number of look-out men, as I find that the defendants did, was. in the circumstances, to act with a reckless disregard of the consequences.”

A further proposition of the defendants was that the plaintiff knew he was doing wrong, and therefore could not recover damages flowing from his own wrongful act or his own contributory negligence. In reply, His LOrdship stated the law to be as follows :-

“ The defendants, having tempted this child into danger, ought not to reproach him for yielding to the temptation. Bird v. Holbrook, (1828) 4 Bing. 628, 130 E.R. 911, is a decisive authority against the general proposition that misoonduceeven wilful and culpable misconducGmust necessarily exclude the plaintiff who is guilty of it from the right to sue : Lynch v. Nurdin, (1841) 1 Q.B. 29, 37, 113 E.R. 1141, 1143. The plaintiff was only a little over seven years of age, and he merely indulged in the natural instincts of a child in chasing this tantalizing offer of a free sweetmeat : Lynch v. Nurdin (supa) at p. 38.

“Applying the tests indicated in 23 H&bury’s Laws of En&n& 2nd Ed. 689, para. 972, I find aa a fact that the plaintiff was not guilty of contributory negligence : Lynch V. Nurdin (supru) has been explained upon the basis that the horse and cart, left unattended constituted a nuisance. Without expressly so deciding, I should be prepared to hold that the use of the defendants’ vehicle scattering sugar as it went, upon the roadway was not a reasonable user by them of the highway, and was capable of at least being a nuisance. In any event, even if the plaintiff was EL trespasser upon the highway, that does not relieve the defendants of the duty of taking care toward him.”

Strong reliance was placed by the defendants on the decision as to the duty to child trespassers in Cooke’s case ; Hardy v. Central London Railway Company, [1920] 3 K.B. 459 ; R. Addie and Sons (Collieries), Ltd. v. Dumbreck, [1929] A.C. 358 ; Excelsior Wire Rope Co., Ltd. v. Callan, [1930] A.C. 404 ; and Lime v. Yorkshire (North Riding) County Council, [1934] 2 K.B. 101 ; but His Lordship held that none of these cases was in point. The plaintiff was not trespassing upon any property owned or occupied by the

defendants. He neither climbed upon or touched the vehicle or any part of it. There was no evidence that he even as much as touched one of the sacks. It was argued that the sugar was t,he property of the defendants at the time when the plaintiff caught it in his hands, but the learned Judge did not find that it was. He knew of no authority for the proposition that the defendants owed no duty to a trespasser upon a highway. The law was quite the reverse.

It was further submitted (a) that there was no element of a concealed trap or danger, in as much as the vehicle was moving at all material times ; (b) that there was nothing about a mechanically-propelled vehicle which a child would not encounter every day ; (c) that there was no reported case in which it had been held that a temptation to a child to get itself into a position of danger was an allurement or enticement ; and (d) that there was no reported case in which the enticement of a child into the street in circumstances such as these had been considered. But His Lordship held that (a) a moving vehicle may be a dangerous one : see per Acton, J., in Donovan v. Unima Cartage Co., Ltd., [1933] 2 K.B. 71, 74 ; (b) there was something about this vehicle which a child might not encounter every day-namely, its special attraction; and as to (c) and (a), he referred to Lynch v. Nurdin, (1841) 1 Q.B. 29, 113 E.R. 1143.

Reliance was also placed by the defendants upon the decision in Mangan v. Atterton, (1866) L.R. 1 Exch. 239 ; but His Lordship pointed out what was severely criticized in Clarke v. Chambers, (1878) 3 Q.B.D. 327, and, having regard to the manifest distinction between the facts of that case and those of the present case, he did not regard himself as being bound by that decision to decide in favour of the present defendants. No property of the defendants was touched or interfered with by the plaintiff.

Finally, His Lordship accepted the defendants’ proposition that the question of whether or not a child trespassing on another person’s land had been allured 3r enticed thereon was a question of law ; but he said that it seemed to him, having regard to what he had already said, not to be in point.

We have referred to this case in some detail, as it reviews and applies the authorities relating to children snd dangerous objects in an unusually detailed and comprehensive manner ; and we feel that in future sctions of its kind it will receive great consideration by all who may be asked to advise on this rather difficult branch of the law relating to negligence.

To suggest that any generalization or categorical :onclusion can be drawn from the decided cases, is to iread a slippery path ; but the decisions would appear ;o justify the following summary :

1. If the object causing injury is a nuisance and there s a true relation of cause and effect between the existence of the nuisance and the occurrence of the tccident to the child, then the person causing the misance is liable for the resulting damage : Lynch ). Nurdin. If there is no such relation of cause and :ffect, there is no liability : Dmocan v. Union Cartage 90.

2. If the child is a trespasser, the landowner is not intitled intentionally to injure him, or to put dangerous raps for him intending to injure him : but the land- lwner is under no liability, if, in trespassing, a child njures himself on objects legitimately on the owner’s snd in the course of his business : R. Ad&e and Sons

November 21, 1939 New Zealand Law Journal. 283

(Co&Series) Ltd. v. Dumbreck, alzd Liddle v. Yorkshire (North Riding) County Council.

3. To a child licensee, the occupier owes a duty not to expose him to danger which, though manifest enough to an adult of ordinary sense, is not manifest to a child : Cooke v. Midland Great Western Railway Co. of Ireland, as explained in Glasgow Corporation v. Ta~ylor.

Whether or not an object is, to a child, a trap in the double sense of being fascinating and fatal is a matter of law. ” No strict answer has been, or perhaps ever will be given to the question,” and each case must depend on its own particular facts : Latham v. R. Johnston and Nephew, Ltd., per Hamilton, L.J., as he then was.

4. Knowledge that children are likely to meddle with that which the defendant has provided, which is dangerous in character and a manifest allurement to children-such as a special attraction which a chiId might not normally encounter-imposes on the defendant a relatively higher degree to take care : Lynch, v. Nurdin and Cullein v. McPie and Xons, Ltd.

Summary of Recent Judgments. COURTOFAPPEAL.

Wellington. 1939.

October 2, 13. Myers, C. J.

:

GLEESON v. DRAKE AND OTHERS.

Ostler, J. Johnston, J. Fair, J.

Workers’ Compensation-Statute-Construction-Judgment of Nonsuit in Common-law Action-Whether “ Determination ” or “ Decision ” as to Defendant’s non-liability independently of the Statute--Workers’ Compensation Act, 1922, s. 52-Code of Civil Procedure, R. 272.

A nonsuit in an action by a worker or in the Supreme Court to recover damages independently of the Workers’ Compensa- tion Act, 1922, is not a determination in such action that the accident in respect whereof such action was brought is one for which the defendant is not liable independently of the said statute within the meaning of s. 52 (1) thereof; nor is it a decision that the employer is not so liable within the meaning of s. 52 (IO).

A worker, issued in the Court of Arbitration a writ claiming compensation under the Workers’ Compensation Act, 1922, in respect of injuries received in an accident, but proceeded no further with it. Later, he took proceedings in the Supreme Court against the same defendants for damages in respect of such injuries independently of the Act, and, on the hearing at the request of the defendants, he was nonsuited by the learned Judge, who purported to grant leave to the plaintiff to apply to the Court within fourteen days to assess compensation under the Act, and allowed the defendants’ costs. No application to the Supreme Court to assess the compensation was made. The plaintiff then brought on for hearing in the Court of Arbitration the claim for workers’ compensation. The defendants thereupon applied for an order setting aside the writ on the grounds that the Court of Arbitration, pursuant to s. 52 of the Workers’ Compensation Act, 1922, no longer had jurisdiction to deal with that claim.

On a case stated by the Judge of the Court of Arbitra- tion,

Cleary and Gascoigne, for the plaintiff; Leicester, for first group of defendants ; Parry, for second group of defendants.

Held, by the Court of Appeal (Myers, C.J., Johnston, and Fair, JJ., Ostler, J., dissenting), That the Court of Arbitration had jurisdiction to hear and determine the claim for compensation.

Cresswell v. Dominion Farmers’ Institute, Ltd., [1933] N.Z.L.R. e. 184, G.L.R. 759, overruled.

Bowiey v. W. Booth and Co., Ltd., [1918] N.Z.L.R. 77, G.L.R. 72, applied.

Powell v. Harcourt, (1886) N.Z.L.R. 5 S.C. 249 ; Angelini v. Antieo, (1902) 31 N.Z.L.R. 841, 14 G.L.R. 654; Mansfield v. Blenheim Borough, [1923] N.Z.L.R. 842, G.L.R. 193; Gibbs v. Graham, (1902) 21 N.Z.L.R.‘495, 4 G.L.R. 390; and Knock v. Newrick, [1916] G.L.R. 341, referred to.

Solicitors : Smith, Ward, and Gascoigne, Blenheim, for the plaintiff; MeCallum, Wicks, and CO., Blenheim, for the first group of defendants ; Buddie, Anderson, Kirkcaidie, and Parry, Wellington, for the second group of defendants.

COURT OFAPFEAL: Wellington.

1939. September 27, 28 ;

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TAURANGA ELECTRIC-POWER BOARD October 10.

Myers, C. J. KARORA KC& ET UX. O&r, J.

Smith, J. Johnston, J.

Negligence-Infants and Children-Minors of Fourteen Years and Upwards-Traffic Regulations-Standard of Care required -Traffic Regulations, 1936 (Serial No. 86/1936), Reg. 22 (2), (5)s (6).

The same standard of care in the observance of traffic regulations is required of every normal minor of fourteen years and upwards as of an adult.

Canning v. The King, [1924] N.Z.L.R. 118, [1923] G.L.R. 595, and The King v. Storey, [1931] N.Z.L.R. 417, G.L.R. 105, applied.

So held, by the Court of Appeal, ordering a new trial, on appeal from the judgment of Pai?, J., dismissing a motion for a new trial on, inter a&a, the ground that there had been jurisdiction as to what constituted contributory negligence on the part of the seventeen-year-old son of the respondents killed in the accident, and alternatively for judgment for the defendant non obstante veredicto, or for nonsuit.

Counsel : Meredith and Bollard, for the appellant; Cooney, for the respondents.

Solicitors : Meredith, Meredith and Kerr, Auckland, for the appellant ; Cooney and Jamieson, Tauranga, for the respondents.

FILL COURT. Wellington.

1939. October 2.

Myers, C. J. I TAKAPUNA BOROUGH v. PUBLIC TRUSTEE.

Ostler, J. Johnston, J. i Fair, J. )

Rating-Rates and Rate-book-Concession of half rates where Dwellinghouse “ remains actually vacant and unoccupied ” for specified Period-Application where Ratepayer deliberately refrained from Letting when House could have been Let- Rating Act, 1925, s. 69.

Section 69 of the Rating Act, 1925, applies where a dwellinghouse or other building “ remains actually vacant and unoccupied ” for the requisite period, whatever the ratepajier’s intentions may have been and whether or not he deliberately and for his own purposes refrained from letting when the same could have been let.

Counsel : O’Shea, for the appellant ; Carrad, for the respondent.

Solicitors : McGregor, Lowrie, Butler, and White, Auckland, for the appellant ; District Solicitor, Public Trust Offioe, Auckland, for the respondent.


Liquor at Dances. A Review of s. 59 of Statutes Amendment Act, 1939.

By F. J. GREEN, LL.M.

A perusal of s. 59 of the Statutes Amendment Act, 1939, reveals an astonishing type of legislation which cannot be allowed to pass without comment. The dangers of hasty legislation have frequently beer stressed, but a more ill-drawn enactment than this would be hard to find.

To avoid misapprehension I may say I have nc quarrel with the real object of this section-namely to protect young people from over-indulgence ir alcoholic liquors while attending at dances, but thf form of the legislation adopted cannot be too strongly criticized. I in detail.

now proceed to analyse the subsectiom

Section 59 (1) provides as follows :- “ Every person who, having the control or management

of any dance being held in any hall, supplies int,oxicating liquor to any person in the hall, or permits any liquor to be taken into or consumed in the hall, commits an offence and is liable on summary conviction to a fine of twenty pounds.”

There does not appear to be any objection to this subsection. Its object is clear and t,he expression i6 reasonably certain.

Section 59 (2) provides as follows :- “ Every person who, while a dance is being held in any

hall, drinks any intoxicating liquor in the hall, or has any liquor in his possession or control in the hall or in the vicinity of the hall, or supplies liquor to any person in the hall, commits an offence and is liable on summary conviction to a fine of ten pounds.”

I can foresee a number of very interesting legal arguments under this subsection. For instance, what does “ while a dance is being held ” mean Z Does it mean during the official hours for which the dance is advertised, or does it include a period before and after, when patrons are arriving or departing ; and, if so, what are the limits (if any) ? Then the words “ supplies liquor to any person in the hall ” are rather ambiguous. Is the supplying to be in the hall to any person or to be to any person in the hall ; and, if so, is this description of person meant to be coextensive with that of a patron of the dance Z Or, in other words, once a person has been in the hall, does he remain such a person if he goes outside ? Comparing this offence with the others dealt with in subs. (2), it is seen that they (with one exception) take place in the hall, so that it is probable that these words would be read as modifying the verb “ supplies,” and not as qualifying the noun “person.” But these are minor matters of construction and pale into insignificance when subs. (3) is considered along with subs. (2) in connection with the offence of having liquor in the possession or control of a person.

This offence is defined in subs. (2) as follows :- “ Everv person who, while a dance is beine held

has any “liquor in his’ possession or control- . vicinity of the hall . . . commits an offer&”

in the

Subsection (3) provides :- “ For the purposes of the last preceding subsection liquor

shall be deemed to be in the vicinity of a hall wherein a dance is being held if it is shown that the liquor was in the possession or control of any person attending or proceeding to attend the dance, or was consumed or intended for consumption by any person so attending.”

It is this last subsection which so gravely violates all sound principle3 of legislation. It is axiomatic that statutes limiting the rights of subjects and imposing penalties should show clearly when these penalties may be incurred. If there is to be a general prohibition of an act, the statute should say so ; but, if not, the limits should be clearly shown.

According to the newspaper reports this section was referred to the Statutes Revision Committee which heard evidence, inter alia, from the Commissioner of Police. Apparently the Commissioner of Police gave some undertaking that the section would be reasonably construed by Police officers, and that no prosecution would be instituted without definite instructions from a senior officer of Police. Thereupon, swayed no doubt by the evidence adduced as to the evil to be remedied, the Committee recommended that the clause should be passed in the form set out in the Bill and now embodied in the statute. But what a state of affairs is revealed : any person may commit an offence against 9. 59 until a senior officer of Police decides he may not. Nothing in this article is to be regarded as any reflection on our excellent Police Force, who do their duty very well indeed, sometimes under difficult circumstances, but is it fair to the public or to the Police to enact legislation in such a form.

Apparently some attempt has been made to limit the generality of subs. (3), as subs. (5) provides that s. 59 does not apply to liquor in a dwellinghouse or licensed premises. So, apparently, a householder who happens to own a bottle of whisky and have it at home, or an hotelkeeper (who naturally owns many bottles of whisky at home), may attend a dance with a clear conscience. But there are still a number of classes caught probably unintentionally by the section-e.g., (a) A person who attends the dance and who has liquor in his shop or office or anywhere else which is not % dwellinghouse or licensed premises. Examples of ?his would be a doctor who had liquor in his surgery jr a chemist with liquor in his shop. (b) Assuming ;hat “ person attending a dance ” includes a person vho has attended the dance and has left but who later &urns (which is probably what was intended, dthough, whether this meaning can be implied is by 10 means certain), then any such person who during #uch absence consumes liquor in any place other than s dwellinghouse or licensed premises.

The difficulties mentioned above could easily have been avoided by careful draftsmanship. The pro- aibition against having liquor “ in his possession or :ontrol in the vicinity of the hall ” could have been nade a prohibition against having or consuming liquor :n any motor-car or other vehicle parked within a ‘ixed distance-say, 880 yards-of the hall or :onsuming any liquor in any public place within the ike distance or on or in any private property within ;he like distance without the consent of the owner or mcupier thereof. To help in enforcement, the onus )f proving such consent could be placed on the le fendant.

This would be wide enough to catch most of the :vil practices which the legislation is designed to stop, znd, indeed, is wider than s. 59, as it would make an Iffence the consumption of liquor outside the hall within ;he above limits. Surely it is better to have offences :learly defined so that breaches cannot be unwittingly :ommitted, rather than to have a loosely-drawn enact- nent which technically at any rate creates offences

November 21, 1939 New Zealand Law Journal.

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285

which may and must be committed unwittingly by many people. To allow such technical breaches at the discretion of the Police is to bring the enforcement of law into disrepute, and is an unfair responsi- bility to place upon the backs of the Police however willing they may be to accept it. It is to be hoped that this matter may be reconsidered and the enactment redrawn to obviate the objections outlined above. Clear law and wise education of the young would probably do a great deal to eradicate the evil aimed at by s. 59. Rightly or wrongly, many organizations seem to think our existing licensing laws are not or cannot be properly enforced ; and it would indeed be unfortunate if the same impression should arise with regard to s. 59.

A Wrong Practice. Petitioner’s Service of Citation in Divorce.

His Honour the Chief Justice (the Rt. Hon. Sir Michael Myers, G.C.M.G.) during the recent sessions at Hamilton, made some pertinent remarks regarding the petitioners’ service of citations on respondents and co-respondents.

His Honour said that the case before him had been left in a very unsatisfactory position. In the first place there was no evidence against the co-respondent other than certain uncorroborated evidence of the petitioner. It is true that there was an admission by the respondent in the letter that she sent the petitioner when she left his home during his absence and that that admission involved the co-respondent, but it was not evidence against him.

But the case, he added, was extremely unsatisfactory in another respect : he was not satisfied with the proof of service of the citation upon the respondent and the co-respondent. He then proceeded :

“ It is in my opinion pessimi exempli that a citation in a divorce suit should be served by the petitioner. That is appreciated in England by an express written rule upon the subject which says :

“ ‘ A petition shall be served personally by delivery of such sealed copy as aforesaid. It may not be served by the petitioner.’

“ In my opinion, that is a very salutary rule, and for my part, although we have no written rule upon the subject, I have myself acted upon it in the past. Had there been no otheI evidence before me now than was before me on the last sitting day, I would have insisted upon the petition and citation being m-served on the parties, and I would have ordered the suit to be stood over until the next sitting for trial.

“A moment’s consideration of the principles upon which the divorce law is based and of the effect of a decree will show at once what I mean when I say that service by the petitioner is pessimi ezempli. It is, of course, a different matter if evidence of the fact of service by the petitioner is corroborated by some independent person. In this presenl case, even if there had been (which there was not) a writter acknowledgment by the respondent and co-respondent 01 service, I would not have accepted that as sufficient unlesr possibly the signatures had been proved by the testimon] of some person other than the petitioner to be those of tht respondent and co-respondent.”

The difficulty, however, had been overcome, Hir Honour proceeded. It appeared from the furthe] evidence given that morning that, service was effected by the petitioner in the presence of his solicitor, whc is an officer of the Court, and whose testimony, oi course, His Honour accepted at once. Had it not been

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ror that testimony, he would have taken the course of refusing a decree and of insisting upon the parties being -e-served and adjourning the hearing until the next iitting of the Court,.

Then the learned Chief Justice went on to say :

“ It is not often, fortunately, that service in divorce suits that come before the Court has been effected by the petitioner. I have myself had before me one or two cases but on each occasion there has been some further testimony without which I could not have acted. It is desirable I think that the importance of this matter should be emphasized and should be recognized by the profession. I hope that in future practitioners will be careful to me that the service of papers is not effected by the petitioner.

“ I need hardly point out that proper service of the papers is the foundation of the proceedings and it is very important that service should be effected by some other person than the petitioner.”

It is quite clear that grave injustice could arise from the practice to which the learned Chief Justice took strong exception. The question of change of status .s always present in divorce proceedings, and the necessity for strict proof is inherent in them. Very unfortunate results may easily arise if the greatest care is not taken by the practitioner concerned to avoid Sven the appearance of any danger to the parties, who may be completely innocent, by reason of any wrongful set or omission by the interested petitioner. Conse- quently, His Honour’s warning is one that is timely, hnd the practice he proposes to adopt-and has already sadopted-is in consonance with strictly applied justice, ts the English rule quoted by him makes clear.

Emergency Powers and Recovery of Possession of I’enements.-A case of present interest to New Zealand practitioners is that in which Sir Rollo Graham- Campbell gave a considered judgment last, week at Bow Street (Times, October 13). The question was, in brief, whether the Courts (Emergency Powers) Act, 1939, applies to proceedings under the Small Tenements Recovery Act, 1838 [which is reproduced with slight alteration as s. 180 of the Magistrates’ Courts Act, 19281. Before the passing of the new Act a warrant was issued giving the landlord possession of the premises in question, for which arrears of rent were in fact due. Section 1 (3) of the Courts (Emergency Powers) Act [which is reproduced as the Courts Emergency Powers Regula- tions, 1939 (Serial No. 176/1939)] requires leave of the Court for the recovery of possession of land in default of payment of rent. But under the 1838 Act arrears of rent are not material, and it was argued that tenants of such premises were adequately protected by the Rent Restriction Acts. In 1914 they were not, and this is probably why there is no express provision in the Courts (Emergency Powers) Act, 1939, as there was in the corresponding Act of 1914, to include applications under the Small Tenements Recovery Act. The learned Magistrate held that applications under the Small Tenements Recovery Act did not, come within the Courts (Emergency Powers) Act, even if, as in the case before him, rent was in fact owing. There does not seem to be any obvious reason why a distinction should not be drawn to exclude from the 1939 Act applications under the Small Tenements Recovery Act where rent is not owing, and to include cases where it is. Such cases are, after all, within the intention of the Act, which is to relieve financial difficulties caused by the war.

-AP!FERYX.


The Year Books. The Ancestors of the Red Book.

By S. H. MOYNAGH.

(Coduded from p. 275).

The second Lecture deals with the question : “ Had the Year Books an offical origin Z ” The Professor considers this question can only be satisfactorily considered by a preliminary survey of the Plea Rolls. These, of course, were written in Latin engrossed on parchment skins about a yard ‘ong and about 9 in. in width. They were not accessible to Counsel or litigant. As the Law Terms wore on, it can easily be seen that they soon grew into unwieldy masses of parchment and not handy for sudden use or reference in Court. You find in the time of Edward III’s reign the Rolls for one single Term containing as many as 400 skins loosely sewn together at the top. It is little wonder that the Judges did not encourage much citation in Court from them. They were full of multitudinous detail-the names of the parties to the action and their occupation ; the nature of the case ; the plaintiff’s statement of his case ; the defendant’s case ; the pleas on which both parties finally rested his case ; the issues left to the jury ; the verdict of the jury, if one were delivered ; on the verdict.

and the judgment of the Court The system, cumbrous as it appears

now, ensured finality in litigation. On the other hand, the Year Books were drawn up

for a different purpose. The Plea Rolls were State Documents drawn up in the general public weal ; the Year Books were intended for the use and instruction of the legal profession, just as the contemporary Rituals of the ancient Guilds were. The Plea Roll contained, with meticulous care, a record of everything that could be cramped into the parchment, even though it contained nothing of public or general interest. Again, the Year Books abound in gossipy facts written without any tiresome detail. Sometimes the names of the parties to the case are omitted altogether, sometimes fictitious names are used, and many other details are left out, if they were of no importance and could not interest the busy Court man. These details were of no educative value ; if necessity arose, it is presumed the Court would devise some method for an inspection of the corresponding Plea Roll. Time and labour were thus saved, and it must be remembered that even down to our times the cost of parchment was a deterrent to much expansion. It is all summed up by Mr. Bolland, thus :

“The Reports (i.e., The Year Books) are the living body acting and speaking and thinking and wrangling and changing its mind on the pressure of the moment; the Record (i.e., The Plea Roll) is the skeleton-the dry bones of the bare facts.”

Still we have got to get on as we have not yet decided who wrote the Books. Down to a very recent period ehe mass of authority, supported by the monumental names of Coke, Bacon, and Blackstone, held that they were Official Reports. It would take up too much space to give the reasons for this theory, and how it developed its impetus ; but now most students of the books incliqe to the view that the Reports were written

,

November 21, 1939

by an Official of the Courts for his own use and that of others. When you know that the Plea Rolls were refused to the public, and even to counsel, the necessity for some one undertaking the work of compiling, issuing, and publishing them becomes apparent. This mention of the refusal of the Court to grant access to the Plea Rolls by counsel seems so extraordinary as to call for verification. Here it is : In the reign of Edward II Serjeant Toudely was anxious to obtain an inspection of them. He applied to the Court, but was rather peremptorily called upon “ to go on with his case.” Then again Precedent, that prolific father of so much legal offspring, may have helped in their conception ; for, in the much superior legal system perfected in Ireland 800 years earlier, we have officials-the Tanists-whose occupation was reporting-as the Year Books do- all that happened in the local Courts.

In view of the development of newspaper legal reporting and the uprising of a worthy class of modern scribes, whom we have to thank for so much, a digression of the genial Professor’s can justifiably be followed here also. He advances a further theory that the Year Books were the work of reporters (sic),

“ who made it at any rate part of the business of their lives to report oases heard in the Courts, making their reports not in any way as officers of the Court, but merely as men supplying for a price an article for which there was sufficient demand to make the regular production of it sufficiently lucrative.”

The Professor now indulges in a day dream, and describes the work of these medieval reporters in their scriptorium :

“ There will be brought to each Scriptorium probably only the reporter’s note of such cases as it has been thought worth while to report. Some one will read this note aloud. The scribes will follow the spoken word as accurately as they can without taking too much trouble; but they will not follow it quite accurately. They will mistake one word for another that has a somewhat like sound ; but a quite unlike meaning and they write the wrong word-it being no business of theirs to trouble themselves with the meaning. Others, drowsy, perhaps, in the close atmosphere of a hot and unventilated Scriptorium on a summer afternoon have not been able to make their pens keep pace with the reader’s tongue and have to write a great deal of what they eventually do write from memory, so flurried with anxiety lest they should fall too hopelessly behind the reader that it is often but a muddled copy that they turn out, faulty both in its omissions and repetitions as well as in its actual perversions of fact and couched in a style and in an orthography which vary with the skill and intelligence of the individual scribe. And so from inaccuracy of hearing, from carelessness, from inability or neglect to follow the reader with the closeness necessary for accurate reproductions, we get a series of variants from the same set of original notes.”

Has any reader ever had his pet watertight set of articles or memorandum of association, or his best set of model by-laws, handed to him after a similar mauling ‘1 The pathos of Professor Bolland still flows in a stream :

“ These the very best of them really copy them mistakes and all. But some of the scribes will be very careless. They will, indeed, be very careful not to amend mistakes already made, but will certainly add to their number. They will copy down some word and then, raising tired eyes to their book, they will catch sight of the second occurrence of the same word lower down in their text and will mechanically continue their copy from that second occurrence, leaving out all that intervenes, be it much or little, and sometimes the omission amounts to several lines.”

I’his is better left to the individual reminiscences of readers without further comrsent.


Perhaps some straggler will here ask when the Year Books were first printed. Even the printed copies have quite a respectable antiquity, beginning with the work of William de Machlinia, who printed them some seven or eight years after the introduction of printing into England. If the date of his printing is more accurately required, it is put at 1481 or 1482. The Iast edition of the Encyclopcedia Britannica gives the honour to Richard Pynson, in 1510. Caxton, the Professor says, is not known to have printed them ; and it is equally uncertain if that ancient “ Butterworth,” Wanklyn de Worde, who printed all that came his way, did either. The first and most systematic edition was that of Richard Tottell in 1553, and it was he who may be said to have given them to English Literature for all time. Pausing here, just, true, and generous tribute must be given to the magnificently heroic work of the Selden Society on the old MSS. Cramped and hindered for funds as they were, the Society struggled to give the Books, modernized into readable and under- standable language to the modern student, and it was some of its Editions that the writer saw in a New Zealand Law Society’s vestibule, and that threatened to wreck a holiday.

The Third Lecture is facile princeps. The Professor opens with a statement that has a modern application :

“ In the ordinary way the men of the Middle Ages, broadly speaking, got justice in the Courts of the Common Bench when he did not, or could not, for some reason or other get it in their own local Courts. The procedure in that Court was not easily adaptable for the remedy of many wrongs, which might be very real wrongs and yet could not be brought within any of the heads for which a man might get a writ. The Court which administers strict law, and strict law only, is not so adaptable ; and the Court of Common Pleas administered strict law, and law strictly administered often involves hardship and morally inequitable results.”

This might have been written about the want of any Equity Jurisdiction in our Magistrates’ Courts, a want we hope soon to see supplied. This lecture contains many delightful sidelights on the administration of justice in these so-called Dark Ages, and perhaps a few culled at random will be of general interest.

A jury had acquitted a man charged with felony, evidently to the great dissatisfaction of the Sustices- Scrape and Spignurnel-who had taken the case. “ Since the jury has acquitted you, we acquit you,” Scrape said grudgingly. “ Get you gone ! ” And Spignurnel, not to be outdone in courtesy, ventured the remark that “ upon the evidence the man should have been hanged.” The Chief Justice (Bereford) who seems to have had an ambulatory supervision then arrived and the facts were stated to him. Conversationally and informally he proceeded to tell a story. He was sitting, he said, with another Justice at a Gaol Delivery :

“A master had a servant, and the servant was punished by him, and when the master was asleep in bed, the servant planning to carry off his master’s goods, came to the bedside at night with the object of cutting his throat. The master was lying sound asleep with his back towards the servant who gave him a deep wound in his back believing he had out his throat. The servant then ran away. The master was quickly awakened by the copious bleeding from his neck, and recognized that he had been wounded. He alarmed his neighbours, who got up and arrested the servant. He was charged before me but I refused to let the matter go before a jury because the master was alive and the servant was remanded to prison. And afterwards, by St. Mary ! he was arraigned before my companion and was hanged on the ground that in the circumstances the will must be taken for the deed.”

The Professor says Bereford was a great teller of stories with a point in them. Many a time we find him telling

a tale to make plain and drive home some principle of law. A delightful Arcadian procedure, but difficult of modern application. Lord O’Brien of Kilfenora was, I think, its last exponent.

Another story about Bereford. It was in Parliament and the Chief Justice was insisting upon the necessity for a writ to make it quite plain what charge a defendant was called upon to answer. To illustrate his point he proceeded :

“ In the time of King Edward that is dead [he was speaking early in Edward II’s reign] a writ was issued out of the Chancery to the Sheriff of Northumberland to s-on Isabel, Countess of Aumale, to appear at the next Parliament to answer the King, and the writ ran that ‘ she was to answer such charges as should be brought against her.’ The lady came to the Parliament, and the King himself sat in the Parliament. And afterwards she was arraigned before a Justice on thirty definite charges. The lady, by her Serjeant, asked judgment of the writ, since it made no definite charge, and she was now called upon to answer divers different charges. There were two Justices present who wanted to rule the writ a good one. But Sir Ralph of Hengham said to one of these Justices, L Would you give judgment here after the manner you did at C. when the receiver was hanged and the principal was afterwards acquitted before yourself ? ” And then he said to the other Justice : ‘ When you were sitting at N. you caused one who had been outlawed on a matter of accounts to be hanged. Those judgments were not in accordance with the Common Law.’ And afterwards Sir Ralph said that ‘ the law willeth not that any should be taken by surprise in the King’s Court, but you would have the lady called upon to answer in Court of other matters than those she had notice of in the writ. She must have notice of the articles on which she will be arraigned and that is the law of the land.’ And then the King, who was passing wise, rose and said, ‘Naught wot I of your quibbling, and, by God’s blood, you shall give me a good writ before you get up from hence,’ ”

What a complete picture this gives us of the King sitting amidst the Judges. I think the lady the King sought to impeach was his own mother.

A last story from Bereford, and we will pass on :

“A plaintiff was seeking to recover some land, of which it appears that an ancestor of the defendant had illegally obtained possession. All that the defendant could plead 1 was that the land had been in the possession of his ancestors for some time, and that he had succeeded to it in the ordinary course of descent. This was a defence that did not commend itself to Sir William Bereford. ‘ If you have continued the wrongful estate of your ancestors you have done all the more wrong,’ ”

tnd then he went on to tell the story : “ Once upon a time a man lay sick abed, and was so weak

that he swooned, and lay in a trance, and it seemed to him that he came unto a certain place and there saw three pair of gallows, each one higher than the last, and on the shortest hung his grandfather, and on the middle one his father, and he therefore asked wherefore this was so ; and one answered him that his grandfather did a disseisin, and for this trespass was hanged, and afterwards for continuance of the wrong his son was hanged higher, and the third and highest pair of gallows was for his own proper use when he should be dead, because of the yet longer continuance in the wrong. So I do not trust too much to what you say about your doing no wrong in continuing the estate of your ancestors ; for if their estate be wrongful, so is your own.”

Clonsidering the times, the spiritual rather than the logi. :a1 aspect of this reasoning may have appealed more to the defendant ; anyway, we hope he was satisfied and iustice did appear to be done. On the statement of the facts it seems doubtful.

The position of the medieval juror even in the days 3f the Plantaganets was not too comfortable. Under the Tudors it was perilous. In one of the Year Books of Edward II, we find a juror imprisoned because be would not agree with the others and in another


case where the jury could not agree we find this contemporary report. The presiding Justice-Hervey of Stanton-thus addressed them : “ Good people, you cannot agree ? ” Then turning to John Allen, the Marshal of his Court, he said : “ Go and put them in a house until Monday, and let them not eat or drink.” This was duly done and about Vesper-time they agreed, and John went to Sir Hervey and told him that they were agreed. Then Sir Hervey gave them leave to eat.

A similar disagreement took place in the nineteenth year of Edward III. The Court got tired of waiting and went home to dine. When the jury was at last in agreement they were brought to St. Clement’s Church and there Justice Thorpe took their verdict. A Serjeant Pole objected to the verdict because it had been given out of Court and not at a proper time. ” We can take a verdict by candle light,” said Chief Justice Scott, “ if the jury will not agree ; and if the Court were to move we could take the jurors about with us in carts and the Justices of Assize do so.”

A’ delightful account is then given of the rights of, and the procedure to be followed on a prisoner taking sanctuary with Holy Church, but we must leave it, and get on to that monastic institution-in the monasteries of England, “ a carrody.” A carrody was the enjoyment of board, lodging, and clothing, and all necessities, in a Religious House. This was granted to one not a Religious on the appointment of one who had the right of nomination, and the King was entitled (with certain exceptions) to nominate to a carrody in every house of Royal foundation. When the house was a Convent of Nuns, there was certainly a carrody for a female, but the genial Professor must whet our curiosity by a consideration of the question could the King annoy a recalcitrant (and there were many such), strong-minded, Lady Abbess, by ordering her to take in a male boarder. Very possibly he had such an inherent right, but still there was always the Brooding Paternal Figure away in Holy Rome with the power and the will to deal with impertinences such as these ; and we may safely assume none of the Plantaganets attempted to come to grips with it on this particular question but they did on others with varying success. The Year Books tell us-thirteenth of Edward III-what rights of carrody the Grantee had. He was first to have a suitable room in the Monastery. He was to have stabling for six horses, six loaves of one kind of bread and three loaves of another kind of bread daily, with six gallons of ale and two monastery dishes of pottage. On every flesh day, there were to be two monastery dishes of meat ; and, on fasting days, two monastery dishes of fish-besides a further allowance for supper. Six wax candles were allowed each day, and, for his two horses, a bushel of oats daily and twelve loads of hay, with a yearly allowance of six loads of straw for his chamber. He was allowed twelve loads of wood for fuel, and every year one robe. One cannot imagine God Saz;e the King being sung with any particular fervour by the Community on the receipt of the precept, and the Brother Bursar must have lost quite an appreciable amount of sleep. Still it is an instructive and interesting statement and shows us clearly what, in the Middle Ages, was the standard of living of a man in the position of the barrister or solicitor of to-day. The nomination in this case was to the unlucky Priory of Merton, and, as the man was an Esquire, the comparison of the equivalent rank would be about correct.

__ - ~~ ~--- -~-.-~~___

by modern standards. There was no other means of locomotion but horses and on foot, and there does not spear to have been any reasonable ground for curtailing the consumption. Still the Englishman got a continental reputation for drinking too much of it, that penetrated even into the sacred precincts of the Papal Court. So far back as the first half of the thirteenth century, Mr. Bolland says Pope Innocent IV : “ held this national weakness for ale responsible for a certain want of clearness of grasp in the principles of ecclesiastical law in our English Masters and Professors.” There was in dispute as to certain matters between the Abbot of Evesham and the Bishop of Worcester a suit pending, which was moved into the Court of Appeal over in Rome. In the course of his argument, Robert Clipstone, who was of counsel for the Bishop, thus addressed the Pope : “ Holy Father,” said he, “ we have learned in our schools, and such is the opinion of our Masters that prescription runneth not against episcopal rights.” “ Of a surety then,” replied the Pope, “ both you and your Masters must have drunk deeply of Euglish ale when you learned that.” an unpleasant conjecture.

A pleasant way of translating

The Professor concludes his tales with a series of short stories selected to show the comprehensive contents of the Books. We will conclude this with a few pictures of certain phases of English life in the 13th and 14th Centuries. Cutting out the tongues of those who had been injured in person or property so as to suppress the evidence was so common that a special statute (5 Hen. IV, c. 5) was passed in 1403, to suppress the practice-apparently not before it was needed ; for in 1313 we find,

“ John of the Mill that lived opposite St. Lawrence’s Gate in Canterbury, together with other m&factors whose names be unknown, came to Ellis Honeywood’s house in Little- bourne and broke into the said house and wounded the said Ellis and Christina his wife, and cut out their tongues. And they put the said Ellis upon a brazier wherein a fire was burning. And one Philip Hole they slew in the same place and straightway fled.”

1 Here is a pathetic account of a rather unseemly

lappening and its results :

“ John Whityng and Alice of Strood had boiled some water in the house of John Saul in the Borough of Wyke and they poured it into a certain large bowl. And then they began to sport with each other, and in embracing the one the other with their arms they fell into the said water and were both so badly scalded that on the next night following they died.’

As the Professor says, these obscure people lived their

3 :ommonplace lives and died their tragic deaths in the England of more than six hundred years ago ; but ;hey have had immortality conferred upon them by jhe Year Books. How surprised they would have been.

There is, of course, a lot more of it, but space and time lo not allow of a further prolonged culling. With iwo last stories, selected for obvious and different ‘easons, I must draw this sketch to a close, well satisfied if I have scattered some fruitful seeds of rurther interest.

The amount of beer drank in Plantaganet England _ _ .._-

In a case tried before Chief Justice Mettingham, in the fifteenth year of Edward I’s reign, the paternity of the party to an action was contested. Though it was admitted he was born within wedlock, it was alleged that his father was not his mother’s husband. But the Chief Justice refused to entertain any such objection. He observed : “ Hwo so boleyth myn kyn, ewere is the calf mine.” A judgment stran&

seems to have been enormous, but that is judged only ’ reminiscent of the judgment delivered in 523 by-t&


Ard Righ over in Ireland against St. Columba : “ To every cow belongeth its calf-to every book its copy,” and which he must have said, as he appears to have been a sound lawyer.

And this, for the delectation of any of my younger readers who have kept up the pace and not fallen out : Serjeant Mutford, afterwards a Justice of the Common Bench, seeing that his opponent in an action tried in Edward II’s reign was growing hot and angry, said : “ I learned this verse from a Master I once had, Lex vi&t iratum, imtus not vi& illam ” (“ Selde grendeth well the lothe and selde pledeth well the wrothe “).

Conveyancing Notes. -__

Trustees’ Powers of Attorney.

The occasions on which a trustee can delegate to an attorney his trust powers as a whole are set out in ss. 103 and 104 of the Trustee Act, 1908. By s. 108 these sections are made to extend to executors and administrators. The st)atute uses, quite correctly, the term “deed of delegation,” and though some draftsmen prefer a deed of indenture between principal and attorney, the ordinary form of a deed poll is the more artificial and convenient. The permitted cases are (1) where the trustee for the time being is residing out of New Zealand, (2) where he is residing in New Zealand but may be about to depart therefrom. The safer opinion is that the powers are exercisable only whilst the trustee is actually absent from the Dominion. The statutory authority being limited, whenever the power is acted upon in a case in which the trustee character of the donor appears (as to which see below), it is proper for the third party concerned to require and preserve evidence that a case has arisen to justify (1) the giving, (2) the exercising, of the power. A clause in the usual declaration of non-revocation is generally sufficient evidence. If the instrument be drawn so as to be available in a case where no notice of trust appears in the transaction in connection with which the power is used, the special evidence is then unnecessary. To avoid the need of tendering proof of sufficiency of the power in such a case, there should be no general introductory recital of absence or intended absence.

The range of property in the tit,le to which no notice of a trust appears is nowadays considerable. It com- prises all registered interests in land held by Land Transfer title ; all mortgages, of whatever kind of property, if properly drawn ; shares in companies, debentures and debenture stock of the Government, local bodies, and companies ; besides the less commonly met with shares in British ships. A power of attorney expressly limited to property of a named trust is therefore undesirable, as its use involves proof that the property being dealt with is in fact trust property, thus conflicting with the st)atute or art#iides of association requiring trusts to be ignored ; or at best (in the case of a mortgage) clouding a title with notice of a trust.

The instrument should therefore be in two parts- first, a delegation of the donor’s powers as trustee ; second, a power to deal with property of the kinds held

-

by the trust, to such extent as may be desired, without any reference to the existence of a trust, but on the contrary with a declaration that an exercise of the power shall not affect with notice of a trust any person not otherwise so affected. If the donor be one of joint trustees, a possible restriction is to limit the scope of the power to property vested in him jointly with his co-trustees (referred to by name but not by office) ; but there is this objection, that if during the donor’s absence a change in the personnel of the trustees takes place, the instrument will fail in respect of property standing in the name of the new set of trustees.

Where there are three or more trustees, there would seem to be no objection to giving a power of attorney to one of the number. Where there are only two trustees, a power from one to the other will be legally valid as regards property on the title to which no notice of the trust appears, and may be legally valid for other property, but on grounds of general principle should be avoided, on account of the undesirability of, in effect, creating a position of sole trusteeship.

In the case of a sole trustee, the second part of the power will necessarily be in the same terms as if it related to the donor’s own property ; and could no doubt be used to deal with such property. The trustee has to trust the attorney not to make an improper or unauthorized use of the powers conferred upon him.

The usual “ general words ” should be inserted, for what they are worth ; which is not a great deal General words do not confer additional express powers, but only necessary ancillary powers : Esdaile v. Lanoge, (1835), 4 L.J. Ex. 46; Lewis v. Ramsdale, (1886) 55 LT. 179 ; and such ancillary powers are probably jmplied in any case.

The usual ratification clause should also appear ; but this also is of no great force. It extends only to acts within the attorney’s ostensible authority (which must be gathered from the express powers conferred), and was but a broken reed in Midland Bank v. Reckett, [1933] A.C. 1.

A deed of delegation of trust powers is in its nature a document that belongs to the trust estate rather than to the trustee personally. It is desirable therefore in the case of a person who acts in several trusts that a separate instrument be prepared in respect of each trust.

It is sometimes thought convenient that a general personal power of attorney shall contain power for the attorney to act in cases where the donor is, or may in the future be, trustee, executor, or administrator, not with the idea of dispensing with proper separate delegations for existing trusts in which trust powers may require to be exercised, but to meet cases of trusts thereafter arising, or the emergency of some small existing trust where the probability of requiring trust powers to be exercised during the donor’s absence is considered to be too remote to justify a special deed of delegation. If such a power is inserted, the ordinary general powers take the place of the second part of a special delegation. The delegation of trust powers should of course be general, relating to “ all property now or hereafter vested in me as trustee, executor, or administrator.” In case the donor is or may &, nominated executor in a will, it should contain a power, in common but general form, to apply for probate and letters of administration, and take steps ancillary to such applications.

-A.E.C.


New Zealand Law Society. Council Meeting.

-- A meeting of the Council of the New Zealand Law

Socie’y was held at the Supreme Court Library, Wellington, at 11 a.m. on Friday, September 22, 1939.

The following Societies were represented : Auckland, represented by Messrs. W. H. Cocker, J. B. Johnston, and H. M. Rogerson ; Canterbury, Messrs. J. D. Godfrey and J. D. Hutchison; Gisborne, Mr. J. V. W. Blathwayt ; Hamilton, Mr. H. J. McMullin ; Hawke’s Bay, Mr. H. B. Lusk ; Marlborough, Mr. W. T. Churchward ; Nelson, Mr. J. Glasgow ; Otago, Mr. A. I. W. Wood ; Southland, Mr. T. R. Pryde ; Taranaki, Mr. C. E. Monaghan ; Westland, Mr. A. M. Jamieson ; and Wellington, Messrs. H. F. O’Leary, K.C., G. G. G. Watson, and A. T. Young. Mr. P. Levi, Treasurer, was also present. An apology for absence was received from Mr. A. H. Johnstone, K.C., who was unable to be present on account of illness.

The President, Mr. H. F. O’Leary, K.C., occupied the chair, and welcomed Mr. A. M. Jamieson who was attending the Council for the first time.

Minutes.-The minutes of the meeting of June 16, 1939, as circulated were confirmed.

Examinations for Barristers and Solicitors.-Messrs. A. C. Stephens and K. M. Gresson reported as follows :-

“ The result of the inquiry shows that there is no unanimity of opinion of any substantial matter.

“We suggest that the whole of the reports might now be referred to the Council of Legal Education with the recom- mendation that they might consider the following matters :-

“ 1. The desirability of overhauling the prescriptions of all the technical subjects.

“ 2. The possibility of allowing students to have statutes in the examination-room.

LL 3. The constitution of the four Deans as an Advisory Committee to overlook examination-papers and to have some voice in the appointment of examiners.

“ 4. The inclusion of the four Deans on the Council of Legal Education.

“ I forward herewith a report from myself and Mr. Stephens expressing our inability to co-ordinate the various suggestions made by District Law Societies regarding the new Law Course. It would seem that this is a matter in which the Society speaks with many voices.

“ H. M. GRESSON.” Report enclosed :

“At its meeting on Friday, June 16, 1939, the Council referred the reports from the various District Societies on Legal Education to us with the request that we should, if possible, co-ordinate these reports. We have summarized them in a statement given hereunder, but we first set out the essence of our own memorandum upon which these reports were based.

“ I. Aim of Course : “To ensure (a) a standard of culture proper for a learned

profession ; (b) sufficient knowledge of principles to equip lawyers to perform legal work.

“ 2. Length of Course : “ The course is not too long or overcrowded. The student

should not qualify at too earli an age. “ 3. Individual Subjects :

“ Latin : Should remain compulsory. ” Roman Law : Those who desire its exclusion should

establish their case. ” Technical Subjects : Criminal Law, Company Law,

Bankruptcy Law, Contracts, and Procedure : Statute law bulks largely ; the student should be trained in application of principles and be supplied with statutes in the examination-room. “ 4. Teaching Disparity :

“ Hours in different colleges should be standardized.

November 21, 1939

” 5. Examinations : “ Teachers should have some part in formulating the

prescription of the subjects, in selection of examiners, in settling the type of question and in passing students. The Deans should be a Committee to overlook examinations. “ 6. Council of Legal Education :

“ This should be enlarged to include the four Deans.

SUMMARY OF REPORTS BY LAW SOCIETIES. “ 1. Report Approved in Toto :

“ Gisborne ; Southland. “ 2. Length of Course :

“ Otago, too long, as it delays a student from entering an office ; Wellington, a little too long to students having to work in the daytime and study at night. ” 3. Individwll Subjects :

“ Latin.-Otago, its position in the course should be reconsidered.

“ Roman Law.-Otago, question whether it should form a part of a solicitor’s course at any rate; Auckland, would reduce importance of translation; Wellington, would omit.

“ International Law.-Wellington, would omit. “ Technical Subjects.-Otago, not sufficient time is given

to Contracts, Pqmty, Wills and Administration ; Wellington, more time is required for Property, Contracts, Wills, &XC. These subjects should be divided into two parts. Procedure could be cut down. “ 4. Statutes in Examination-room :

“Auckland, confine to Procedure and Criminal Law in the meantime. ” 5. Examinations :

“ Otago, postpone consideration until after course settled ; Auckland, supplies a special report by Professor Stone ; Wellington, recommends that there should be no departure from the present system without careful consideration.”

The President outlined the various steps which had led up to the present position and pointed out that the matter had been before the District Societies on several occasions. The question was whether all the reports should be referred to the Council of Legal Education as recommended.

In discussion, one member thought that as there was no unanimity, the report should not be forwarded, while another was of opinion that as the reports showed dissatisfaction with the curriculum they should be sent to the Council. It was said that the Wellington Society would oppose the suggestion that the four Deans should be appointed as super-examiners as under the present arrangements the Deans were asked to nominate examiners, and two Deans were already on the Council of Legal Education.

It was unanimously decided that no action should be taken in the meantime but that the Council of Legal Education should be asked to submit to the Society any suggestions it was making concerning examinations or the curriculum before these were adopted.

Centennial Legal Conference.-The following letter was received from the Conference Committee :-

“ The members of the Conference Committee have been giving much anxious thought to the question of whether or not an attempt should be made to hold the Conference next Easter.

“ Some financial commitments have already been made and a considerable number of tentative arrangements exist, but the Committee have come to the unanimous conclusion that while a state of War exists, it would be unwise to carry

on with the Conference, and they are therefore of opinion that a definite pronouncement should be made at an early date indicating that the proposed Conference has been cancelled.

“ As, however, the matter is of New-Zealand-wide interest, they would like to have the views of your Council on the subject.

“ In the unlikely event of the conclusion of the War prior to next Easter, the Committee would recommend the immediate renewal of arrangements for the Conference.” It was unanimously decided that the Conference

should be abandoned unless War ceased in the meantime.


History of Legal Profession.-The Auckland District Law Society wrote as follows :-

<‘In view of the fact that it has not been found possible to publish the proposed history of the Administration of Justice in New Zealand, the Council of this Society has had under consideration the publication of a history of the legal profession in New Zealand.

“ The Council is of opinion that an effort should be made to publish such a history, It has been ascertained that Messrs. Butterworth and Co. are willing to renew in respect of such a publication the offer which they made in respect of the original publication-namely, to print and publish the volume free of cost provided that the material is handed to them ready for printing. Messrs. Butterworth and CO. state they would have in mind a book somewhat like the Life of Sir Francis Bell. They are prepared to use paper of the same quality and to incorporate, say, ten photographic blocks.

“ The Council has discussed with Mr. Good the question of preparing the material for and writing the book. Mr. Good has been collecting material for such a book for some years, but a good deal of further work is required. Mr. Good is of opinion that he could complete the preparation of the book before the end of the next year. The necessary research has already involved Mr. Good in a fair amount of travelling and will involve some further travelling as some of the material is in other centres. The Council feels that Mr. Good should receive payment for his work and is of opinion that a fee of El50 would be proper, together with a further sum of $50 to reimburse Mr. Good for expenses already incurred. In addition there would be expenses of future travelling and expenses of typing, Mr. Good estimates these expenses as not more than $60.

“ Allowing a wide margin for contingencies, it would seem that the cost should not exceed the sum of $300.

“My Council takes the view that as the publication will be of interest to practitioners throughout the whole Dominion, it should be undertaken by the New Zealand Law Society and the Council suggests that the matter be considered at the next meeting of the Society.

“ If the Society is prepared to undertake the work, it would no doubt wish to appoint a Committee to exercise general supervision over the work.

“A synopsis of the ground proposed to be covered was attached to Mr. Good’s letter of December 8, 1938, but this would probably require some revision if the publication is proceeded with as a separate volume dealing only with the history of the legal profession. Mr. Good is of opinion that sufficient material is available for a volume of 300 to 400 pages.”

The Hamilton Society wrote agreeing to the suggestion of the publication of such a history, provided the cost were defrayed from the funds of the Council of Law Reporting.

The Secretary reported that a letter had been received from Mr. Good enclosing a letter from Messrs. Butterworth and Co. in which they stated they were willing to undertake the publication on the terms previously set out-namely, free of cost provided that they were supplied with the matter.

The President was of opinion that the history should be printed whether the Conference were held or not, and it was decided that the Society should undertake the preparation and publication of a history of the legal profession in New Zealand in accordance with the proposal set out in the letter from the Auckland District Law Society, dated August 10, 1939, that the offer of Messrs. Butterworth and Co. to print and publish the volume free of cost be accepted, that a sum of E300 be made available for the cost of preparing the material and that an editorial committee be appointed (after consultation with Mr. Good) to supervise the publication.

Audit Regulations : Joint Audit Committee Decisions. -The following report was received :-

“ The Joint Audit Committee has considered the various questions submitted to it and has decided as follows on the

matters set out under No. 12 of your Minutes of the 30th September, 1938 :-

“ 12 (@.---Audit Regulations (II) 6. “ The Joint Audit Committee is of opinion that the

sxpression ‘ engaged or concerned in keeping the books of such Solicitor ’ in Regulation 2 (b) applies to both the trust account books and the office or general account books.

“The Joint Audit Committee is also of opinion that the expression applies to cases in which the accountant prepares a Profit and Loss Account and/or balance sheet and/or income-tax return and/or Social Security charge declaration whether or not he is otherwise engaged or concerned in keeping the books.”

Approved and adopted.

“ (c) List of Securities.-Letters from Wellington Society and Wellington firm.

“ The Joint Audit Committee is of opinion that a solicitor is under a duty to include in the statement required under Regulations 5 (12) particulars of all documents that fall under paragraph (b) or paragraph (c) whether or not such documents have come into the possession of the solicitor by an operation on his Trust Account or have been lodged with him for safe keeping or for any other purpose ; and, as the question has been specifically raised as to the position when the solicitor holds a power of attorney, the Joint Com- mittee adds that it is of opinion that in the case of all documents that fall under paragraph (6) or paragraph (c) the duty referred to above exists whether or not the solicitor holds a power of attorney.

Considerable discussion took place, a number of delegates inclining to the view that though the decision was correct, it was probably impracticable.

The matter was held over until the next meeting for further consideration.

The Secretary pointed out that if the regulation were impracticable or onerous, it would be far better to have it deleted or amended rather than to leave it in force and to have it disputed.

” (2) Letter from Canterbury Society. “ The Joint Committee is of opinion that the words ‘ Upon

making any examination ’ in 5 (12) apply to each and every examination made under Regulation (5) and not solely to the examination that completes the audit for the year.”

Before discussion of the foregoing decisions, it was decided that all rulings of the Committee when adopted should be sent out as rulings of the Society.

It was stated that this was clearIy a case for amending the regulations to make it incumbent on auditors to have only one examination of securities at the end of the audit year, and this view waa adopted by the Council.

Receipts for Amounts paid to Stamp Duties Depart- men&-The New Zealand Society of Accountants forwarded the following letter and receipt :-

“ Please find herewith for the information of your Council a copy of two letters received from an Auckland accountant.

“ Possibly the matter could be referred to the Joint Audit Committee with a view to representations being made to the Commissioner of Stamp Duties if so decided.” Enclosures :

“ (a) One of the problems confronting the auditor is the vouching of payments made by the solicitor on behalf of clients to the Stamp Duties Office. Requisition forms are filled in by the solicitor in duplicate, and it is possible for a triplicate to be made out, this latter procedure being frequently followed. Payment of the actual stamp duty is made at another counter, the receipt referring to a number only, unless the clerk is specially requested to write details of the payment on the receipt.

“ I have discussed this matter with the Commissioner of Stamps in Auckland, who is aware of the position and

New Zealand Law Journal, .~ __---

acknowledges the inability of the auditor to identify the payments.

“ I have suggested to him that the difficulty be got over by the solicitor supplying a triplicate copy which could be stamped by his Department with the receipt attached, but Mr. points out that this would entail checking of the triplicate copy by his Department, and, with the staff and premises at his disposal, this could not be done con- veniently. He, however, stated that he has already suggested to his Department that the stamping could be done by machines, in which case a triplicate would not be required, the duplicate being available to the solicitor, but that his Department has vetoed the suggestion.

“ No doubt this matter has already been considered by your Society through its Committee, and I will be glad to hear from you if any proposals are in train for remedying the position.

“ (b) Further to my letter of 15th instant, I am enclosing a receipt from the Stamp Duties Office for an amount of $1,200, which has been loaned to me.

“ This is an excellent example of what I have already complained, there being no identification of any sort on the receipt.”

RECEIPT. No. K17295. Original.

To bc handed to the Payor. Stamp Duties Office.

Ak 29.7.193s.

Received from N. N ..,,..._......,....., the sum of One thousand two hundred pounds for estate duty as per requisition No. 9974.

L. G. . . . . . . . . . . . . . . . . . . . . . . . ~1200/0/0. Assistant Commissioner of Stamp Duties.

per

It was decided to ask the Joint Audit Committee to make representations to the Commissioner of Stamp Duties as suggested with a view to having the position rectified.

Standard Form of Audit Certificates.-Reports were received from most of the Societies, generally favouring the introduction of a standard form, though certain modifications were suggested.

On the motion of the President, it was decided to ask the Auckland delegates to draft a standard form for submission to the District Law Societies for their approval.

Appointment of Auditors.-All Societies replied, all being in agreement that something would have to be done to tighten up the system of auditing. Several Societies were in favour of the approval of a limited number of auditors only, others thought that an inspecting auditor should be appointed, and two others were of opinion that a formal audit programme should be adopted. The Hawke’s Bay Society suggested that all auditors should have to enter into a bond to the trustees of the Guarantee Fund to protect the Fund against the consequences of default or neglect of the auditor.

Lengthy discussion took place in connection with the proposals, and it was finally decided, on the motion of the President, that a committee consisting of Messrs. Wood, J. B. Johnston, Wellington members, and the Secretary should confer with the New Zealand Society of Accountants concerning the appointment of auditors.

Solicitor with Power of Attorney : Duties of Auditor.-The following letter was received from the Taranaki Society and was referred to the Joint Audit Committee for an opinion :-

“ I have been instructed by my Council to obtain a ruling as to the duties of an auditor in the case of a solicitor who operates upon a banking account under a power of attorney.

November 21, 1939 - -

The matter has arisen in Taranaki owing to the fact that an auditor has noted in his report that power of attorney transactions have not been investigated by him.

“The principle would apparently be whether or not, in the event of the theft of such moneys by the solicitor acting as attorney, the guarantee fund would be liable.”

Death Duty Procedure.-The Wellington Society forwarded a lengthy report concerning troubles which arise in connection with the Death Duties Office and its procedure concerning deceased estates.

Members were of opinion that the report set out exactly the difficulties which they experienced in their own distriots, and it was accordingly unanimously decided to ask the Council of the Wellington Society to act as a Committee of the New Zealand Society to follow up the report and to try to obtain the necessary alterations, the other District Societies to forward any suggestions concerning points they might desire included in the representations being made to the Commissioner of Death Duties.

It was decided that no useful purpose would be served by taking up this matter at the present juncture and it was accordingly dr0pped.

Divorces in Forma Pauperis.-The Nelson Society wrote as follows :-

“ The Society has received the following letter from a practitioner :

IL ‘ I should like to obtain a definite ruling as to the obligation of a solicitor to undertake a divorce “in forma pauperis ” upon request.

“ ‘ My difficulty arises out of a case now before me, and of the following ruling of the New Zealand Law Society (No. 26 following the 1929 consolidation) :-

“ ‘ Where a practitioner is requested to take proceedings in for,na pauperis and he is satisfied that the case is an appropriate one, it is the opinion of the Society that it is his duty to launch such proceedings.’ “ The facts in my own ease are as follows : Wife separated

from her husband by mutual consent in Dunedin four years ago. Wife convicted of theft in Nelson in March last and released on probation subject to condition that she repaid E65 with costs of prosecution. Four children. A male friend is helping her to repay the $65 and wishes to marry her when she gets a divorce. She is receiving maintenance from her husband, money from the male friend, and wages from her work. Husband is a working carpenter, but she does not know what he is earning-he has no property. She is not worth more than t20 in property.

“The case seems to be ‘appropriate ’ within the strict reading of R. 31 of the Divorce Rules.

“If the ruling quoted above means that the solicitor himself is entitled to use his discretion in being satisfied that the case is an appropriate one (the word ‘ appropriate ’ not being strictly limited by R. 31) then I am not satisfied that this is an appropriate case. It appears to me that the wife should carry on with her work, and her male friend should assist her to obtain a divorce in the usual manner.

<‘ I suggest that the rules as to divorces in forma pauperis, having been made before the institution of divorce on the grounds of separation by mutual consent, need reconsidera- tion in their application to such cases.’

“This letter was considered at a meeting of the Council yesterday, and I was instructed to send it on to you, with an expression of the Council’s opinion that it was desirable to obtain a ruling of the New Zealand Law Society to clear up any doubt as to the meaning of the word ‘ appropriate ’ in the ruling No. 26.

“ The view of the Council is that in deciding whether any particular case is an ‘ appropriate ’ one for proceeding in

forma pauperis, the practitioner is entitled to take into consideration the resources of the applicant from current income, earnings, relations and friends, and not only the assets referred to in R. 21.”

On the motion of the President, it was unanimously decided that the deoision in each case was one for the individual practitioners.

(To be concluded).


Obituary. Mr. D. L. Poppelwell, Gore.

Mr. Dugald Louis Poppelwell, one of the best-knowr citizens of Gore, died recently at the age of seventy-six years.

Mr. Poppelwell was born in the Tokomairiro district and was a son of the late Mr. and Mrs. William Poppelwell, who settled on land two miles north of Milton in 1853. He was educated at the Milton Primary School and the Christian Brothers’ School. Dunedin ; and, after studying at Otago University, he qualified as a solicitor and later as a barrister. He commenced practice at Gore in 1892. He took a keen interest in the welfare of the town and had a long association with the municipal management. He was elected a Councillor in 1893. Two years later he was elected Mayor, but in 1896 he was defeated. After serving as a Councillor in 1902 and 1903, Mr. Poppelwell was again elected Mayor, holding office in 1904 and 1905. He was defeated at the 1906 election, but he was again elected in 1910 ; and he served for another three terms before being defeated by a narrow margin at the 1913 poll. It was not until ten years later that Mr. Poppelwell was again elected Mayor, serving in 1923-24, 1925-26, and 1929-30. He thus served the borough of Gore for sixteen years as Mayor and Councillor. He was Mayor for ten years, seven yearly and three two-yearly periods ; this is a record for the borough.

Mr. Poppelwell showed himself to be a progressive administrator, with a thorough knowledge of finance, in the conduct of municipal affairs, He was also keenly interested in public reserves and he was the instigator of the movement which secured for Gore much of the attractive and valuable domain at Croydon Bush.

Mr. Poppelwell’s all-absorbing interest throughout his long and active life was fauna and flora. He was a widely-recognized authority on these subjects, and compiled numerous papers. On many occasions he made visits to the less-frequented parts of Southland and the outlying islands, spending weeks in search of specimens and classifying them. He discovered varieties of native flora hitherto unlisted, Govern- ments of the day gave Mr. Poppelwell every assistance, and his reports were made public in pamphlet form, and he supplied many papers for the Institute of Horticulture and other bodies. Certain native plant’s have been named after him.

Rlr. Poppelwell was widely known and respected by the Maoris of the South as an historian and a friend. Stewart Island and Ruapuke Island were among the places most frequently visited by him in holiday periods, and it was during these journeyings that he assimilated a valuable knowledge of Maori tradition, arts, and crafts.

As a member of the Catholic Church, he took a deep interest in its activities, and was decorated by the Pope with the Papal Cross “ Pro Ecclesia et Pontifice,” He was one of the first members of the New Zealand National Catholic Historical Committee.

Mr. Poppelwell took a keen interest in sport, and he played a prominent part in the Hibernian sports and football clubs during their existence. He was a life

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Among other organizations on which he served were the Gore Chamber of Commerce, of which he was the first president, the Gore High School Board of Governors, the Gore Library Committee, the Gore Bowling Club, and the Gore District Early Settlers’ Association. He was also chairman of the Gore Unemployment Committee when it was formed in 1930, and chairman of the Seddon Memorial Hospital Corn mittee, which raised the sum of &X,360 towards the cost of the erection of the present hospital. He was an enthusiastic member of the Gore Tramping Club when it was formed a few years ago. He was a foundation member of the Gore Club, of which he was president 317 several occasions. ,

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In his younger days Mr. Poppelwell was a keen tennis player and cricketer, and he also played golf and bowls. For ten years he was a lieutenant in the Gore Volunteers. For many years he was senior member of the Gore Bar.

In 1894, Mr. Poppelwell married Miss Nora Green, a daughter of the late Mr. Thomas Green, and he is survived by his widow, two daughters, Sister Mary Joan, of Winton, and Sister Mary Cuthbert, of Mosgiel, md three sons, Messrs. W. T. Poppelwell, H. M. Poppelwell and D. L. Poppelwell, all of Gore.

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After Mr. Poppelwell’s funeral, which was largely &tended, the Gore practitioners assembled at the Magistrates’ Court to pay a tribute to his memory.

On behalf of the present members of the Bar, Mr. A. L. Dolamore said that since the last sitting of the Court the death of Mr. Poppelwell had occurred with almost tragic suddenness, and it was fitting that his brother-practitioners in the Gore district shouId pay t tribute to his memory,

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“It seems but a few days ago since our colleague was in his accustomed place at the head of this table, and it is difficult to realize that we shall see him no more,” said Mr. Dolamore. “ Mr. Poppelwell was an outstanding personality in this town and district. He was admitted as a solicitor nearly half a century ago, and over that long period of years he practised his profession here and won the deepest respect and the affectionate regard of us all. character.

He was a man of sterling Being of a deeply religious nature, he was

slways actuated by a strong Bdherence to principle,

sense of duty and a firm He was one of the old school,

member of the Gore Racing Club and he had acted as a steward for forty-two years. He was president in 1911, 1912, 1913, and in 1925-26. He was also a life member of the Gore Agricultural and Pastoral Association.

and was versed not only in the written law, but he had t sound knowledge of the principles on which it is based, and having a clear and logical brain and a phenomenal gift of expression, he was able to expand hose principles, so far as they affected his clients, ts few advocates in our experience have been able to 10.”

Mr. Poppelwell, continued Mr. Dolamore, had figured n many of the most important cases which had been *ought in the Gore Court during the past forty-seven Tears, and he always showed a most conscientious levotion to the interests of those he was called upon ,o serve. He was a strenuous and doughty fighter, rut he was always fair in his conduct of cases. He )ossessed the rapier of a gentleman and not the dagger If an assassin. If the Court.

He never forgot his duty as an officer In his business dealings he was a man of

294 New Zealand Law Journal. November 21, 1939

integrity. His word was his bond. As a citizen he had a splendid and unique record of public service as Mayor of Gore, and he took a leading part in the life and development of the town and district.

“ Now, full of years and honours, he has gone to his well-deserved rest after a life of great and varied activity, usefulness and service,” said Mr. Dolamore. “ Our deepest sympathy is extended to his widow and family, and we feel sure that their sense of loss will in time be tempered by their pride, in our colleague’s record at the Bar and in his distinquished service for the community. We feel his death as a personal loss. We shall not forget him. We deeply regret his passing and we trust that aRer life’s fitful fever he sleeps well.”

A tribute to the memory of the deceased was also paid by Mr. R. C. Abernethy, S.M., who said that Mr. Poppelwell’s service to the law and the community left a mark on the characters of the persons with whom he was associated which would be remembered by the children in generations to come. Written words which impressed him as referring to the deceased were, “Whosoever would be the greatest of you all, let him be the servant of you all.”

The Court was then adjourned for five minutes as a mark of respect to the memory of the late Mr. Poppelwell.

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Mr. J. C. Peacock, Wellington.

Mr. John Campbell Peacock, whose death was the result of an accident while he was returning to his home in his motor-car, was the youngest son of Mr. and Mrs. Thomas Peacock, of Auckland. He was born in 1879. After leaving Auckland Grammar School he attended Auckland University College, gaining his LL.B. deg ee at the age of twenty-one. Called to the Bar in 1901, he joined Mr. Carruth in partnership in Whangarei. Later he came to join his uncle, Mr. J. P. Campbell, as a partner in the firm of Messrs. Travers, Campbell, and Peacock. This firm was afterwards amalgamated with that of Messrs. Moorhouse and Hadfield, and subsequently became the present firm of Messrs. Hadfield, Peacock, and Tripe.

Mr. Peacock for many years was one of New Zealand’s foremost tennis players. He won his first New Zealand championship in 1901, when he was just twenty-two years of age, and he took the national singles title again in 1910. He won the New Zealand doubles title no fewer than six times, in 1900 with H. A. Parker ; in 1901, 1902, 1909, and 1910 with F. M. B. Fisher ; and in 1925 with M. L. C. Wilson.

He represented New Zealand in Davis Cup matches against Yugoslavia and Portugal. He was champion of the Thorndon club in 1920, 1921, 1922 and 1925.

Besides his great ability as a player, Mr. Peacock did signal service for the game as an administrator. He was a vice-president of the New Zealand Lawn Tennis Association since 1921, and was president in 1934-35. He was also president of the Wellington Lawn Tennis Association since 1921, and represented Wellington as a player on many occasions. “He was mainly responsible for the creation of the association’s grounds at Miramar, which have contributed soHFg;E to the welfare of tennis in Wellington. president of the Thorndon Lawn Tennis Club in 1931-32 and vice-president from 1925 to 1931.

Mr. Peacock was a prominent member of the Wellington Golf Club and an untiring member of the Committee, being interested and helpful with improve-

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ments to the course and grounds, and always helping young and promising players. He had been captain of the club for the last three years of his life, and as an exponent of the game was one of the leading players. He was also a member of the New Zealand Golf Council, in which he took a live interest.

As a member of the Wellington Club he took a prominent part in its affairs and was a member of the Committee for a number of years.

In 1913, he married Miss Margaret Simpson, daughter of the late Mr. R. M. Simpson. He leaves, besides his wife, a son, and a daughter.

Mr. E. H. Thomas, Wanganui.

The death occurred recently of Mr. E. H. Thomas, District Solicitor to the Public Trust Office at Wanganui.

After his funeral, members of the profession assembled at the Magistrates’ Court to pay tribute to his memory.

The President of the Wanganui District Law Society, Mr. A. D. Brodie, said that the sad purpose of their assembling was to lament the untimely passing of one of their number, in the person of the late Mr. E. H. Thomas, and to give due and well-merited honour to his memory.

“ A few hours ago he was among us, well and about his work ; now with swiftness, and in accordance with an ordering to us inscrutable, he has been taken in the approaching fulness of his powers and in the apparent meridian of his years,” the President continued.

“ Though not in private practice, he was one of’ our number and a member of the Wanganui District Law Society. After a period of such practice, he entered the office of the Public Trustee, in which, in the responsible position of Office Solicitor and Deputy District Public Trustee, he was, and was recognized as, a strength and stay. But, while a loyal servant of the Office, he never forgot the obligations of his status in the legal profession, and he had need to give place to none in his observance of professional ethics.

“ It was a pleasure to work in his company-whether with him or as his antagonist. There was no rancour or pettiness in him ; but an unaffected kindliness and urbanity. He had a sound knowledge of law, and great industry. Of the latter an instance is that he found time to add accountancy to his studies to qualify himself for that profession also.

“ His excellence in work had its counterpart in play, and on the cricket field, where he was eminent, he gained the esteem of all by those same qualities that endeared him to us.”

Mr. Brodie concluded by saying that he knew that he gave utterance to the feelings of all practitioners in Wanganui when he deplored his early death. It remained to offer to his widow and kin the heartfelt sympathy of the Wanganui Bar.

Mr. Alfred Coleman, S.M., who presided, said that he would like to join with the gentlemen of the Bar, in that time of sorrow at the untimely death of the late Mr. E. H. Thomas, and to add his tribute of esteem for his worth and character.

“ I first knew Mr. Thomas some twenty years ago in Taranaki,” Mr. Coleman said. “ He was then a young man commencing his legal career. Of late years, I have frequently met him in his appearances


before the Court of Review, where he most ably, conscientiously, and tenaciously upheld the important interests he represented, but sought no unfair advantage and never pressed for a harsh or unreason- able determination.

“ It is always sad to experience the loss of one in the prime of life and with, in the ordinary course, the expectation of many useful and happy years yet to be lived. That sorrow is doubled in t’he case of the loss of a comrade and I think that in no other civil profession is the feeling and actuality of comradeship stronger and more real than in ours.”

Mr. 1. El. Mahoney.

Last week, after a seven years’ fight against tuberculosis, there passed away in the Waipukurau Sanatorium a young lawyer of great promise, Eric Mahoney, aged twenty-eight.

At Sacred Heart College, Auckland, Mahoney won a scholarship that enabled him to enter the Law School at Victoria College in 1928. He was scan recognized as one of the best all-round students in the College, He excelled at boxing, winning two New Zealand University titles ; became a member of the football first fifteen ; was elected to the Students’ Executive ; was a keen rowing man; graduated Master of Laws in the least possible time ; and was finally chosen as a candidate from Victoria for the Rhodes Scholarship.

It was a fine sum of achievement for four or five short years-too fine, for it drew overmuch on his vitality. Believing that manhood lay in striving, Mahoney strove with all the strength of his mind and body. But it would seem that he strove too hard. He demanded too much of himself. but only a man could have made it.

It was a mistake,

He practised for a time in Wairoa after his admission, but ill-health compelled him to relinquish practice,

and he then became legal adviser to the Colonial Mutual Life Assurance Society, a position he held until his admission to the Pukeora Sanitorium.

He was not yet twenty-one when he graduated Master of Laws.

Had he been spared, Mahoney would have won for himself a high place in the profession. His ability and industry would have secured for him the confidence of his clients, whilst his capacity for friendship, and his integrity would have attracted the affectionate regard of his brethern.

It is idle to speculate how far he would have gone in the profession, for he was struck down just as he was crossing the threshhold. But this much can be said : that no gain or success that might have come his way could have made him more than he already was in the things that matter-honour and high purpose and courage-courage all the way. For seven dragging years, day by day and hour by hour, he savoured the bitterness of frustration. He fought the good fight.

But he kept it all to himself.

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” Irrespective of democracy and forms of government, there are fundamentals of freedom for which the lawyers of every free country must stand firm at all hazards.”

-HON. R. L. MAITLAND, K.C., the delegate of the Canadian Bar Association at the recent meeting of the American Bar Association.

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Practice Notes. Courts Emergency Powers Regulations (No. 2) 1939.

Practitioners have been confronted with some difficulty in proceedings under the Imprisonment for Debt Limitation Act, 1908, in consequence of the Courts Emergency Powers Regulations which came into force on September 20, 1939. There was little doubt that the regulations applied to judgment summons procedure, but the exact extent of the application was far from clear. In a carefully considered judgment, Mitch&n u. Rerell, (1939) 1 M.C.D. 248, Mr. Goulding, S.M., held that the regulations did not apply until after the judgment debtor had disobeyed the order made on the judgment summons. That is to say, the judgment creditor was required to obtain the leave 3f the Court before applying for the issue of a warrant If committal. Interpretation.

This was a reasonable and practical

Subsequently, however, a new regulation was issued, Idopting the recent procedural rules relating to udgment summonses, made by the Lord Chancellor n exercise of the powers vested in him by s. 2 of the ?ourts (Emergency Powers) Act, 1939 (Gt. Brit.). Phe operative clause is as follows :

2. (1) An application under the Courts Emergency Powers Regulations 1939 for leave to enforce a judgment or order by proceedings in the Magistrates’ Court under the Imprison- ment for Debt Limitation Act, 1908, may be made on the hearing of the judgment summons on notice to the effect of the form in the Schedule hereto, incornorated in or annexed to the judgment summons and served on the judgment debtor with the judgment summons.

(2) No order shall be made on the hearing of a judgment summons unless the Magistrate is satisfied either that a notice has been served in accordance with the provisions of the last preceding clause or that the judgment or order is one which may be enforced without leave under the regulations.

The effect of the new regulation is to prohibit the making of an order on the hearing of a judgment summons unless the Magistrate is satisfied either that a notice to the effect of the form in the Schedule to the regulation was “incorporated in or annexed to the judgment summons and served on the judgment debtor with the judgment summons,” or that the judgment or order is one which may be enforced without leave.

A “ commitment order” under the Debtors Act, 1869, (Eng.) (32 & 33 Vi&, c. 62), IHalsbury’s Complete Statutes of En;Zand, 573) differs materially from an order of commitment under the Imprisonment for Debt Abolition Act, 1908 (N.Z.). Williams, J., pointed >ut in Tke Queen v. PhilE&s, (1889) 7 N.Z.L.R. 749, bhat s. 8 (now s. 7) of the New Zealand statute has no section corresponding to it in the English Act.

In England the commitment order authorizes the Registrar and his bailiffs to arrest the judgment debtor bnd lodge him in gaol. This commitment order is made 3y the Court at the hearing of the judgment summons.

In New Zealand, the order of commitment is an order ;o pay the judgment debt in a certain manner, which .f not obeyed renders the judgment debtor liable to be arrested and lodged in prison for the term specified in the order. In The Queen v. Phildips (supra), Williams, J., said, at p. 753 :

“ The jurisdiction given by the 8th section [of the 1874 Act] is not, however, to commit absolutely for a term on default of payment of a sum due on a judgment. There must be first such a default, and then the Court has jurisdiction, not to order an imprisonment unconditionally, but to order

296 New Zealand Law Journal, November 24, 1939

that, unless the money, in payment of which default has been made, be paid either forthwith or by instalments, or within a fixed period, the debtor is to be imprisoned . , he would have a distinct interval of time to pay &to Court before a warrant could issue for his arrest. The 11th section of the Act of 1878 [now s. 143 also &&les that when any such order of committal shall have been made, and the money and costs specified therein or any part thereof, etc., shall not have been paid into Court, the Registrar is to issue a warrant. The words ‘ money specified therein,’ etc., imply the existence of a written order.” l

It is clear, therefore, that the order of committal must be drawn up and served on the judgment debtor, before it may be enforced by a warrant of committal. Indeed, the warrant must recite such service (see Form of Warrant : Debt Form No. 24).

The new regulation, therefore, merely adds the necessity of serving the prescribed notice on the judgment debtor before the order of committal may be made by the Court. The necessity to apply again for leave before the warrant of committal may issue, remains: as Mr. Goulding, S.M., held,

“ The making of an order by the Court against a judgment debtor uuder the Imprisonment for Debt Limitation Act, 1908, is itself a judgment within the definition of that word in Regu- lation 2 (of the Court,s Emergency Powers Regulations, 1939). It is an order for judgment of money, and in default of payment, for committal of the debtor to prison. It is committal to prison which is the means of enforcement of that judgment. Therefore, before the warrant of committal can be issued, leave must, of course, be obtained.”

It is possible that the Court may interpret the words “leave to enforce a judgment or order by proceedings under the Imprisonment for Debt Limitation Act, 1908,” in cl. 2 of the new Regulations (SWJWU), as applicable to a judgment or order under that Act and not to the judgment or order upon which the judgment summons is based. If that happens, the Court on making an order of committal may grant leave for the issue of the warrant of committal.

The new regulation will cause practitioners a further inconvenience. Every judgment summons which is waiting to be heard must be adjourned until a new summons has been extracted and re-served with the prescribed notice annexed thereto. A similar position arose in England. The Law Jouml (London) referring to the effect of the Lord Chancellor’s rules stated ir? Vol. 88, p. 243 : “ This rule renders ineffective all summonses served before Sebtember 1, 1939. And the best procedure, therefore, for all judgment creditors who desire to have the sanction of a possible committal behind their judgment summonses is to withdraw the old summons and issue a new one . . .”

The following is the form of the newly-prescribed notice, as it appears in the Schedule to the Regulations :

NOTICE TO ACCOMPANY A JUDGMENT SUMMONS. (Title as in Judgment Summons.)

UNDER the Courts Emergency Powers Regulations 1939 a person is not entitled, except with the leave of the Court, to proceed to the enforcement of a judgment or order to which the regulations apply, and if the Court is of opinion that the person liable to satisfy the judgment or order is unable immediately to do so by reason of circumstances directly or indirectly attributable to the present war, the Court may refuse leave to enforce the judgment or order or may give leave to enforce it subject to such restrictions and conditions as the Court thinks proper.

If you desire to take advantage of the protection afforded by the said regulations, and attend the hearing of the accompanying judgment summons, you will have an opportunity of showing cause why the discretion of the Court should be exercised in your favour. To the judgment debtor.

Recent English Cases. Noter-up Service

FOR

H&bury’s “ Laws of England ” AND

The English and Empire Digest.

FACTORIES AND SHOPS. Dangerous Machinery-Unfenced Travelling Crane-Injury to

Sub-contractor’s Workman-Liability in Damages of Factory Owner-Breach of Statutory Duty-Factory and Workshop Act, 1901 (c. 22), 8. 10 (1) (c).

Ij machinery cannot be fenced or made as safe as if it were fenced, then such machinery cannot be used.

FOWLER P). YORKSHIRE ELECTRIC POWER Co., LTD., [I9391 I AU E.R. 467. K.B.D.

As to fencing of dangerous machinery : see HALSBURY, Hailsham edn., vol. 14, pp. 594, 595, pars. 1130, 1131 ; and for cases : see DIGEST, vol. 24, pp. 908-911, Nos. 62-81.

MASTER AND SERVANT. Contract of ServiceRestrictive Covenanecope of

Restrictions on &r&+-Radius Agreement-Radius of Five Miles-Trade Proved not to exceed One Mil+Validity- Manager of Butcher’s Shop.

A covenant in restraint of trade in a certain area will be unenforceable if it is unnecessarily wide,

EMPIREMEATCO.,LTD.V.PATRICK, [I93912 AU E.R.85. C.A. As to radius agreements : see HALSBURY, 1st edn., vol. 27,

Trade, pp. 569-580, pars, 1105-1115 ; and for cases : see DIGEST, vol. 43, pp. 19-30, Nos. 120-234.

Liability of Master at Common Law-Safety of Employee- Dangerous Employment-Duty of Master to Ensure that Danger is Minim&d.

Practice-Jury-Conummication from Jury-Desirability of Recording on Judge’s Note or Shorthand Note.

The duty of a master to a servant is greater than that of a98 in&or to an invitee.

NAISMITH v. LONDON FILM PRODUCTIONS, LTD., [I9391 1 All E.R. 794. C.A.

As to master’s duty towards a servant : see HALSBURY, Hailsham edn., vol. 22, pp. 187-191, pars. 313-321; and for cases : see DIGEST, vol. 34, pp. 194-199, Nos. 1580-1626.

TRUSTS. Rule in Allhusen v. Whittell-Gift of Residuary Estate

Charged With Payment of an Annuity-Settlement by Will of Property including that Estate--No Personal Covenant to Pay Annual Sums-Exclusion of Rule.

The rule in Allhusen v. Whittell is not applicable to an annual payment which is a mere charge upon the property settled, but is restricted to such cases where there is a personal covenant by the settler to pay the annual sullzs.

R~DARBY; RUSSELLCMACGREGOR, [1939]3AllE.R.B. C.A. As to the rule in Allhusen v. Whittell : see HALSBURY, 1st

edn., vol. 28, Trusts, p. 34, par. 64 ; and for cases : see DIGEST, vol. 40, pp. 656, 657, Nos. 1957-1962.

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Rules and ReguIations. Fair Rents Act, 1936 : Fair Rents Amendment Act, 1939.

Wellington Residential Accommodation Regulations, 1939. November 1, 1939. Serial No. 1939/235.

courts Emergency Powers Regulations, 1939 (No. 2). November 6, 1939. (1939 New Zealand Gazette, p. 3027- Serial No. 1939/236.)

Noxious Weeds Act, 1928. Noxious Weeds Act Extension Order, 1939. November 8, 1939. No. 1939j239.

Health Act, 1920. Hairdressers (Health) Regulations Extension, 1939, No. 3. November 8, 1939. No. 1939,‘240.

Post and Telegraph Act, 1928. Post and Telegraph Studentship Regulations, 1939. November 15, 1939. No. 1939j241.

Emergency Regulations Aet, 1939. Defence Canteen Emergency Regulations, 1939. November 15, 1939. No. 1939/242.

Customs Act, 1913. Customs Export Prohibition Order, 1939, No. 4. November 15, 1939. No. 1939/243.

Emergency Regulations Act, 1939. Photography Emergency Regulations, 1939. November 15, 1939. NO. 1939/244.

Companies Act, 1933. Companies (Winding-up) Rules, 1934, Amendment No. 1. November 15, 1939. No. 1939/245.