The New Zealand Law Reports

VOL. XX.]

INDEX.

See CRIMINAL LAW. 2.

NUISANCE- Dangerous Tree.] A person who | PERJURY.
keeps on his land a native tree which is to his
knowledge dangerous is liable for any damage
done by the fall of the tree. TURNER v.
MCCHESNEY
768

PARENT AND CHILD-Undue Influence.
See GIFT.

kept, either as owner or manager, open shop as
a dispensing or homopathic chemist shall be
entitled to be registered as a pharmaceutical
chemist without examination.

PHARMACY ACTS" The Pharmacy Act, 1898,"
Section 27 Registration as · Pharmaceutical
Chemist" without Examination-Having " kept
Open Shop."] Subsection 2 of section 27 of
The Pharmacy Act, 1898," provides that any
person of the age of twenty-one years or up-
PARTNERSHIP Liability of Partner to ac-
wards who, at any time after the 1st day of
count for Benefit obtained-Competing Transac- January, 1881, and before the coming into opera-
tion-"The Partnership Act, 1891," Section 32.]tion of the Act, has for not less than two years
T. was managing partner in New Zealand of
G. & Co., wholesale leather-merchants. Cer-
tain debtors of the firm assigned their estate to
trustees, of whom T. was one, for the benefit of
their creditors. The deed of assignment gave
each of the trustees the right to purchase the
assigned property. T. became the purchaser of
the whole estate on his own behalf, through the
agency of a third person. He resold, making a
considerable profit. The stock, being in small
lots, and mixed, was not in itself suitable for
G. & Co.'s business, but, when made up with
goods that they had in stock, could have been
sold by them in their ordinary course of busi-

ness.

Held (Conolly, J., dissentiente), That T. must
account to his partners for the profits made on
the resale, (per Stout, C.J.) on the ground that
the resale competed with the firm's business,
and (per Williams, J.) on the ground that T.'s
right to purchase existed for the benefit of his
firm, and that the transaction came within
section 32 of "The Partnership Act, 1891.”
GIBSON r. TYREE. (C.A.)
278

2. Partner decreed to account to Firm for
Profit-Joint Purchase of Two Properties-Sepa-
rate Resales — Ascertainment of Separate Profits
- Presumption against Wrongdoer-Evidence of
Actual Profits.] The respondent, when in part-
nership with the appellants, purchased certain
stock-in-trade and machinery for one price for
the whole, and resold the stock-in-trade and
machinery separately, making a profit on the
whole transaction. He was decreed to account
to his partners for the profit on the resale of the
stock-in-trade, on the grounds that the resale
thereof competed with his firm's business, and
that he had no right under the circumstances
to purchase the stock-in-trade on his own
behalf. He was not decreed to account for the
profits on the resale of the machinery. The
evidence showing beyond all reasonable doubt
what he would have had to pay for the stock in-
trade if he had bought it separately, and there
being no reason to suppose that he obtained it
at a less price by buying the machinery with it,

the difference between what he would have had

to pay for the stock-in-trade and what he sold
it for was treated as the profit for which he had
to account, although the effect of this was to
attribute the greater part of the profit on the
whole transaction to the resale of the machinery.
for the profits of which he had not to account.
GIBSON V. TYREE (No. 2). (C.A.)

562

Held, That an applicant for registration under
this provision must have himself "kept "a shop
for the period and in the manner mentioned,
either being the owner of it or the manager of it
for some one else, and that it is not enough that
he should have owned a shop "kept" by some
one else on his behalf.

Held, further, That it was not enough that the
applicant in the particular case should have
kept open shop as a herbalist, offering, as a
trifling adjunct to his business, to dispense pre-
scriptions to those who chose to intrust that
duty to a herbalist, but not keeping a stock of
drugs requisite for carrying on the ordinary
business of a chemist, and actually dispensing
only an absurdly small number of prescriptions.
AYERS v. THE PHARMACEUTICAL SOCIETY OF
NEW ZEALAND -

Administration Action

418

Filing

PRACTICE
Accounts
Costs
- Claims against Trustees
Infants.] The failure of trustees to file accounts
under the rules of 1844 and 1863 will not deprive
trustees of their right to be paid their costs,
charges, and expenses in an administration action
if the action was not caused by such failure.

Where in an administration action the bene..
ficiaries set up claims against the trustees in
respect of alleged breaches of trust, and fail in
respect of some. of them and abandon others,
they may be ordered to pay the trustees' costs
in connection with such claims. In such case
the costs of the trustees exclusively relating to
the items on which they have failed are not
ordered to be paid by them cr set off, and are
included in the costs which they may have out
of the estate.

Infant parties to the action may be ordered
to pay the costs of matters they have litigated.
MILLS v. ISAAC -
752

PRACTICE-continued.

petition served on the co-respondent was under
the seal of the Registrar instead of being under
the seal of the Court, as required by Rule 9
under "The Divorce and Matrimonial Causes
Act, 1867"; and the writ of summons served
on the co-respondent required him to appear
and answer within fourteen days after service,
instead of twenty-one, the time allowed by
Rule 23.

Held, That the service was bad, and must be
set aside. The Court will not take judicial notice

of the distance from one another of two points
within a judicial district. STONE v. STONE AND
ANOTHER -
769

4. Multiplicity of Actions - Vexatious
Proceedings Abuse of Procedure of Court.]
When some out of a large number of persons
bring an action in respect to their alleged rights,
having a common interest in the same property
with the consent or knowledge of the rest, and,
after the disposal of that action, the cthers, or
some of them, bring an action against the same
defendants in respect to the same interests and
claiming the same relief, the Court will dismiss
it on the grounds that it is vexatious and an
abuse of the Court's procedure, as the plaintiffs
in the latter action might, had they so chosen,
been joined as plaintiffs in the first action.
MERK REIHI AND OTHERS V. THE ASSETS
COMPANY PANAPA WAIHOPE AND OTHERS v.
THE ASSETS COMPANY. TIARA RANGINUI AND
OTHERS V. THE ASSETS COMPANY
54
[NOTE. This case has been reversed on ap-
peal.]

Trial of Actions Action to recover
Possession of Land - Trial by Jury. Code of
Ciml Procedure Rules 251, 252, 254.] An
action by a landlord to recover possession of
land by reason of a breach of covenant by an
assignment without licence, the principal de-
fence being that leave had been unnecessarily
or arbitrarily withheld, is not one that can be
more conveniently tried by a jury.

When an action depends on the finding of a
pure question of fact upon which the Court
would be bound to give judgment, it is one
which can be more conveniently tried before a
jury: but where the action depends on the
finding of a mixed question of law and fact the
action is not one that can be more conveniently
tried before a jury. CAMERON » NASH - 516

PRACTICE-continued.

The mere fact that the question of testa-
mentary capacity is involved in such action is
not sufficient to make it one that can be more
conveniently tried by a jury.

In order to obtain an order under Rule 254
it must be shown that the decision must depend
on conflicting evidence, or that there are other
circumstances which would make a trial by jury
more convenient. THE PUBLIC TRUSTEE .
EVANS AND OTHERS -
- 521

Writ of Summons Residence and
Calling of Defendant - Rule 12, Paragraph 4.]

A writ of summons was issued against a com-
pany in which the company was described as in
the title of the action, infra, no further descrip-
tion being given in the writ of the nature of the
company's business, its place of operations, or
the situation of its registered office, though the
latter was given in paragraph 2 of the statement
of claim.

Held, That these omissions were fatal, and
that the writ, must be set aside as invalid.
FRASER & SONS v. THE GREENSTONE GOLD-
DREDGING COMPANY (LIMITED) -
- 766

PRINCIPAL AND AGENT Letting Pur-
chaser unable to complete-Right to Commission.]
B. authorised H., a land agent, to let his hotel,
the lessee to pay £1,000 for the goodwill and
furniture, the stock to be taken at a valuation.
The authority was silent as to commission. H.
procured two persons who, on the 4th of June,
entered into an agreement with B. in writing to
take the hotel upon the terms mentioned.
prepared the agreement, and the intending
lessees paid him £20 by way of deposit. The
matter was to be completed on the 20th of June.
When the time for completion arrived the in-
tending lessees were unable to find the neces-
sary money, and the sale fell through.

Held, That the authority was to let upon the
terms mentioned, and that this meant not
merely procuring a person to enter into an
agreement to lease upon those terms, but one
who actually should lease upon the terms men-
tioned, which in this case meant a person able
to pay £1,000 for the furniture and goodwill and
take the stock at a valuation; that H.'s implied
right to charge a commission only arose upon the
transaction being completed, or where the non-
completion was owing to the vendor's fault,
and, the non-completion being owing to the
inability of the intending lessees to pay the
purchase-money, H. was entitled to no com-
mission. BAKER v. HOPKINS

518

Revocation of Agency-Damages.] An
agent employed to effect a sale has no claim on
his principal in consequence of revocation of
the agent's authority before a sale is effected
unless he has, before the revocation, found a
person ready and willing to purchase on the
terms fixed by the principal. HINCHEY V.
KEAM
- 478

PRINCIPAL AND AGENT-continued.
Volunteer encampment was about to be held at
Timaru. Colonel Gordon, the Officer Command-
ing the Canterbury District, called a meeting of
officers, of whom Palairet was one. At this meet-
ing the question of catering was discussed, the
outcome being that an advertisement was in-
serted in a newspaper stating that tenders
would be received by Colonel Bailey, the
Officer Commanding the South Canterbury
Sub-district. The tenders of the respondents
were accepted by Colonel Bailey. The latter
did not profess to contract for Palairet, nor
did the respondents profess to have contracted
on the faith of Palairet's credit. Palairet was
shown to have acted throughout as the sub-
ordinate and agent of Colonel Gordon.

Held, on an appeal from a decision of a
Magistrate in favour of the respondents in an
action by them against Palairet and others,
That Palairet was not liable. PALAIRET v.
REILLY. PALAIRET . BUDD

PROBATION.

See CRIMINAL LAW. 5.

442

Note to

PROMISSORY NOTE - Promissory
Order of Payee - Indorsement by Guarantor
before Payee Liability of Indorser- The
Bills of Exchange Act, 1883," Sections 20, 29.
55 (Subsection 2, a), and 56.] Where a pro-
missory note in favour of certain payees or
order is indorsed by a third person with the
intention of guaranteeing the payment at the
due date, and then signed by the makers and
handed by them in that condition to the
payees, the payees have authority, under
section 20 of The Bills of Exchange Act,
1883," to complete the instrument by them-
selves indorsing it (either with or without re-
course) above the indorsement of the guarantor,
and can sue the guarantors upon it in the
event of non-payment by the makers. Steele v.
McKinlay (5 App. Cas. 754), Jenkins & Sons v.
Coomber ([1898] 2 Q.B. 168), and South Wales
and Cannock Chase Coal Company (Limited) v.
Underwood & Son (15 T. L.R. 157) distinguished.
ERIKSSEN v. BUNTING AND ANOTHER

See REVENUE. 3.

388

PUBLIC WORK-Negligent or Improper Design
-Damage-Action for Damages-Compensation
Drainage Plan - Preparation by Engineer
- Alteration by Borough Council The Public
Works Act, 1894."] Although a public body
may have proceeded negligently or improperly
in the design or in the mode of constructing
a public work, and have thereby caused damage
to the property of others, it is not liable to an
action for damages for so doing where it has
acted in the exercise of statutory powers which
it has not exceeded. The only remedy is a claim |
for compensation under the Public Works Act.
The President, &c., of Colac v. Summerfield
([1893] A.C. 187), The Corporation of Raleigh
v. Williams ([1893] A.C. 540), The Inhabitants of
Le Bon's Bay Road District v. Oldridge (17 N.Z.

PUBLIC WORK-continued.

L.R. 321), and The Chairman, &c., of the County
of Grey v. Frankpitt (18 N.Z. L.R. 111), followed.
Clothier v. Webster (31 L.J. C.P. 316) and
similar cases distinguished, on the ground that
there the damage was caused by negligence
in the actual operation of constructing the
public work, and not by negligence or defect
in its design or mode of construction.
There is nothing in the judgment in The
Corporation of Raleigh v. Williams ([1893]
A.C. 540) which amounts to laying down as
a proposition of law that a municipality the
governing body of which altered a plan pre-
pared by its engineer would thereby necessarily
be exceeding its powers; and, where a Borough
Council altered the plan of certain drainage-
works by reducing the size of a certain cul-
vert, which afterwards proved insufficient, and
it did not appear what led to the alteration,
but there was nothing either in the findings
of the jury or in the evidence to justify the
conclusion that the Council in making the
alteration was not acting in the bona fide
desire to exercise its statutory powers for the
public benefit,-

Held, That it could not, merely by reason of
the alteration of the plan, be held to have ex-
ceeded its powers. THE MAYOR, COUNCILLORS,
AND BURGESSES OF THE BOROUGH OF PALMERS-
TON NORTH . FITT AND ANOTHER

396

Protective Works Bridge Main-
taining and repairing — Right of Contribu-
tion- The Public Works Act 1882 Amendment
Act, 1884," Section 11.] Under the powers
contained in section 11 of The Public Works
Act 1882 Amendment Act, 1884," the inhabit-
ants of a road district were appointed to have
the control of a bridge, and the cost of main-
taining or repairing the same was apportioned
between such local body and other local bodies
of whom the defendant Corporation was one.
The controlling body, in pursuance of what it
considered its duty in maintaining and repair-
ing the bridge, spent a large sum of money
in the erection of a groin or gravel bank in the
bed of the river, the object being to divert the
stream back to its original channel under the
bridge, from which it had, during a flood,
broken out, making a new channel in the
shingle-bed south of and beyond the bridge
and its actual constructed approach. The de-
fendant body protested against the expenditure,
and refused to pay its proportionate share.

Held, That such expenditure was
maintaining or repairing" of the bridge
within the meaning of those words in section 11
of The Public Works Act 1882 Amendment
Act, 1884," and that the defendant Corpora-
tion was not liable to contribute.

TRICT

PUBLIC WORK-continued.
liability to repair a public bridge, unexplained
and unrestricted, includes the liability to repair
the highway at the ends of it within the dis-
tance of 300 ft., is not applicable to New Zea-
land, where the obligation is statutory. THE
INHABITANTS OF THE ASHLEY ROAD DISTRICT
v. THE INHABITANTS OF THE KOWAI ROAD DIS-
482
"The Public Works Act, 1894, Sec.
tions 34, 68-Compensation — Injurious Affec-
tion of Land - No Land taken - Measure of
Compensation.] The effect of "The Public
Works Act, 1894," is to entitle a person
whose lands are injuriously affected to full
compensation for all damage sustained by the
execution of a public work, irrespective of
whether any land has been taken. The Legis-
lature has in that Act departed from the nar-
rower measure of damage defined in Hammer-
smith, &c., Railway Company v. Brand (L.R.
H.L. 171) as recoverable under the English
Lands Clauses and Railways Clauses Consolida-
tion Acts, and has given to a claimant for com-
pensation the right to recover all damage which
he suffers from the injurious affection of his
land by the exercise of the powers contained
in the statute, and has also introduced an
element in the assessment of such damage not
contained in the English Acts, namely, that
any increase in the value of the claimant's
land likely to be caused by the execution of
the works is to be deducted from the amount
of the compensation to be awarded.

The principle upon which a Compensation
Court must assess compensation in a case of
the kind is therefore as follows: It must first
find what was the full value of the claimant's
property at the time of the commencement of
the construction of the work. It must next
find how much it has been depreciated in value
by the construction of the work, and in doing
so it must take into consideration as a basis
of its estimate the user of the work as a going
concern, and any depreciation in value likely
to be caused by matters arising out of such
user. It must assess the damage sustained by
the claimant arising from any structural injury
to his buildings, but not the temporary personal
discomfort caused to the claimant by the work
of construction. It must take into considera-
tion, by way of deduction, any increase in value
to the property likely to be caused by the work
as a going concern, and the balance (if any) is
the amount of compensation the claimant is
entitled to.

Proof of actual physical damage to the
claimant's land is not essential to his right
to recover compensation for injurious affection.
FITZGERALD V. THE KELBURNE AND KARORI
TRAMWAY COMPANY (LIMITED)
406

RATING continued.

Quashed" The Counties Act, 1886,"
Sections 127, 125-" The Road Districts Valida-
tion Act, 1898."] Per Curiam (Stout, C.J.,
and Williams, J.; Edwards, J., dissenting).--
Where a special rate has been made by a
Road Board as security for a loan, and sub-
sequently, during the currency of the loan, a
part of the road district is constituted a new
The Road
road district, under section 4 of
Boards Act, 1882." the special rate ceases to be
payable to the Road Board of the old district
by the ratepayers of the new district. The
matter is one for adjustment between the
Boards of the two districts under subsection 4
of section 5 of "The Road Boards Act, 1882."
Per Williams, J.-The effect of section 14 of
"The Road Boards Act, 1882," protecting the
rights of creditors of the old road district in
such a case, is, however, that, if default should
be made by the Road Board of the old district
in payment of the interest or sinking fund of
the loan intended to be secured by the special
rate, the creditor may apply for the appoint-
ment of a Receiver under section 47 of "The
Rating Act, 1882." and the Receiver will have
power to collect the special rate from the rate-
payers within the whole of the district origin-
ally rated, including the part thereof which has
been constituted a new district.

Per Edwards, J. Looking to all the pro-
visions of "The Road Boards Act, 1882," "The
Roads and Bridges Construction Act, 1882,"
and The Rating Act, 1882," subsection 4 of
section 5 of "The Road Boards Act, 1882,"
cannot be reconciled with section 14 of the
same Act, and should be regarded as overridden
by it, and be rejected.

Per totam Curiam. · A petition under sub-
section 1 of section 4 of The Road Boards
Act, 1882, for the constitution of a new road
district must be signed by two-thirds of the
ratepayers of the whole of any existing road
district part of which is to be comprised in the
new district. Curle v. The Oxford Road Board
(N.Z. L.R. 5 S.C. 211) and The Birkenhead
Road Board v. The Waitemala County Council
(6 N.Z. L.R. 17) approved.

The only public notification of a petition
under the above section was published on the
17th of December, 1897, and was in the follow-
ing terms: A petition will be presented to
"the County Council praying that a part of

the Kaiti Road District be constituted a new
"road district, to be called the Titirangi.
"Road District.' This was signed by a rate-
payer on behalf of the petitioners. The peti-
tions which were presented were dated the
29th of August. 1898. A special order in ac-
cordance with the petition was made on the
23rd of September, and confirmed on the 4th
of November, 1898.

RATING "The Road Boards Act, 1882," Held (per Stout, C.J.), That it was doubtful
Sections 4, 5, 6, 14 New District Special whether the above was a sufficient notification,
Rate Collection by Old Board - Petition to but, semble, that it was immaterial whether
constitute New District- Signature-Public Noti- or not the petition was signed at the date of
fication-Objections to Validity of Special Order the notification; (per Williams, J.) that the

petition need not be signed at the date of the
notification, but that the notification was insuf-
ficient because it did not set out the boundaries
of the proposed new district; (per Edwards, J.)
that the notification must be a notification of
an existing petition, and that the statute had
not, therefore, been complied with.

REVENUE-continued.

death the sons and daughters executed a deed
reciting that for various good reasons they had
mutually agreed between themselves that a
distribution of the estate and effects of the
testatrix should be made, in manner after-
wards appearing in the deed, instead of the
.distribution provided for by the will, and that'
the drapery business carried on by the testatrix
should be continued in manner afterwards ap-

Per totam Curiam.-Although compliance with
each of the subsections of section 4 of "The
Road Boards Act, 1882," is a condition pre-pearing; and by this deed it was agreed between
cedent to the power of a County Council to make
a special order constituting a new road district,
the effect of section 127 of The Counties Act,
1886," which provides that no special order
shall be quashed by any proceedings in any
Court or otherwise unless such proceedings shall
have been commenced within six months of the
making of such special order, is that a special
order constituting a new road district must,
after six months from its making, be deemed
valid for. all purposes in proceedings in which
its validity comes in question collaterally only,
as well as in any other proceedings.

Section 2 of "The Road Districts Validation
Act. 1898," provided that in any case where,
at any time before the coming into operation
of that Act, any County Council had by special
order constituted a new road district under
section 4 of "The Road Boards Act, 1882,"
the validity of such special order, or of the
constitution of such road district, should not
be questioned or affected by reason merely that
the petition pursuant to which such special order
was made was not duly signed as prescribed
by that section. A special order constituting
a certain new road district was completed
by a County Council on the 4th of November,
1898 (the day before the coming into opera-
tion of the above Act of 1898), but it was not
until the 9th of March, 1899, that it was gazetted,
as required by section 125 of "The Counties Act,
1886," which provides that a special order of
the kind shall be gazetted by the Colonial Secre-
tary, and shall only take effect from the date
of such gazetting.

Held (per Edwards, J.), That, the County
Council having, so far as it was concerned, con-
stituted the new road district before the Act
of 1898 came into operation, that Act applied
to the case and validated the proceeding, not-
withstanding that the special order was not
gazetted, and so did not take effect, until after
the Act came into operation. Sed quære, per
Stout, C.J. TUCKER V. THE INHABITANTS OF
THE KAITI ROAD DISTRICT. (C.A.) -

607

the five parties that they should become partners
in and carry on the drapery business for a period
of ten years, and that (with the exception of cer-
tain properties to which one of the sons was to
be solely entitled) the interests which the parties
respectively took under the will in the property
of the testatrix should be brought into the
partnership capital. Certain of the parties were
minors. Those who were of age conveyed and
assigned their interests in the property to the
eldest son and another person as trustees for
the partnership, and the deed purported to vest
the whole property in the same persons as
trustees. Looking merely to the value of the
interests contributed by the daughters to the
partnership, and to the value of the shares
which they were to take in its total capital,
the daughters appeared to be the gainers to the
extent of about £1,000, and the deed was as
sessed by the Commissioner of Stamps as liable
to duty as a deed of gift on that amount.
Held by the Court of Appeal (affirming Stout.
C.J.),—

1. That the scope and aim of the deed was
not to transfer or otherwise dispose of the pro-
perty to or for the benefit of any person, within
the meaning of section 6 of The Stamp Acts
Amendment Act, 1895," but to establish a
partnership and to provide the capital with
which it should be carried on: and that it was
not, therefore, liable to duty as a deed of gift.
2. That it was not liable as a conveyance on
sale.

3. That it was not liable as a deed of settle-
ment. THE COMMISSIONER OF STAMPS v. W. P.
GIRLING & Co. (C.A.)
259

"The Land and Income Assessment
Sections 55 and 68-Life-insurance
Act, 1900,'
Company-Deduction for Land occupied and used
for Business.] A life-insurance company can-
not make a deduction from the income on which
income-tax is payable by it (under section 55
of The Land and Income Assessment Act.
1900") in respect of land occupied and used
by it for business purposes, as an ordinary tax-
REVENUE - Deed-of-Gift Duty-Deed of Part-payer may under section 68 of the Act. THE
nership between Brothers and Sisters-Family COMMISSIONER OF TAXES V. THE AUSTRALIAN
Arrangement Business Transaction — Convey.
ance on Sale-Deed of Settlement-" The Stamp
Acts Amendment Act, 1891," Sections 7 and 11-
"The Stamp Act, 1882,' Section 88, and Sche-
dule.] A widow, who had been carrying on a
drapery business, died leaving a will by which
she disposed of all her property amongst her
two sons and three daughters. After her

MUTUAL PROVIDENT SOCIETY

255

The Stamp Act, 1882," Sections 69,
70-Bill of Exchange-Promissory Note-Letter
of Credit-Request to advance-Guarantee.] A
document in the. following words-"Palmers-
ton N., 7/6/97.-Mr. E. M.,-Please to ad-
vance Mr. A. F. the sum of fifteen pounds,
and I will be answerable for the repayment

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