TESTATOR'S FAMILY MAINTENANCE-contd.
if he were living, and such persons are entitled
to preference over those who may possibly
come within the statute, but who would have
had no claim against the testator if he were
living.

The position of a testator's widow differs from
that of his adult children, both in morals and
in law. During his lifetime he was bound to
support his wife in a manner suitable to their
station in life, and that although she might not
be destitute; but he was not under any legal
obligation to support his adult children unless
they came within the provisions of "The Des-
titute Persons Act, 1894."

A testator left an estate of at least £1,500 net.
He left a widow, and six adult children by a
former marriage, him surviving. Of the latter,
the youngest was forty years of age; two were
sons, and four daughters; three of the daughters
were married, one a widow; several of them
were in poor circumstances, but none were desti-
tute. The testator's widow was sixty-one years
of age, and there was medical evidence that she
was not capable of carning her living by manual
labour. She was possessed of about £95, but
had no other property. The only provision
made for her by the will was a legacy of £200.
On an application by her under "The Testator's
Family Maintenance Act, 1900,”

Held, that an order ought to be made that an
annuity of £52 a year, payable to her during her
life, be purchased out of the estate of the testator,
she abandoning her claim to the legacy of £200.
In re RUSH, RUSH v. RUSH AND OTHERS 249

TIME.

See VENDOR AND PURCHASER. 2.

TITLE-Abstract of.

See VENDOR AND PURCHASER. 2.
Vendor bound to show.

See VENDOR AND PURCHASER. 2.

TOLLS-Establishment-Resolution adopting Re-
port of Committee Continuance Resolution
to let Toll-gate-Public Notification-Signature
-Authorisation-Clearance Notice - Mandatory
Provision-" The Public Works Act, 1882," Sec-
tions 105, 106, 117-"The Public Works Act,
1894," Sections 124, 143, 154.] Where the
matter of the establishment of certain toll-gates
had been referred by a local body to a com-
mittee, and the committee brought up a report
recommending their establishment and recom-
mending a certain scale of tolls,-

Held. That a resolution of the local body that
the report be adopted amounted to a resolution
establishing the toll-gates and fixing the scale
of tolls.

TOLLS continued.

Held, therefore, That the scale might be
notified by advertisement signed by the Chair-
man without a separate resolution authorising
the notification.

In November, 1889, a local body resolved
that certain toll-gates be established for the
term of three years, and the 1st of January,
1890, was afterwards fixed as the date for the
commencement of the tolls. In December,
1892, the local body resolved, first, that tenders
be called for leasing the gates from the 1st of
January, 1893, and, afterwards, that a certain
tender be accepted.. In Dece.nber, 1893, the
local body by resolution accepted a tender for a
lease of the gates for the twelve months ending
the 31st of December, 1894. On the 5th of
March, 1894, the lessee having apparently given
up his lease, the local body resolved"
that a
"receiver be put in for the remainder of the
"month, and that tenders be called for renting
"the same from 1st April to end of year.'
From the month of April, 1894, until the year
ending the 31st of March, 1901, the local body
each year by resolution let the toll-gates to
different persons.

Held by the Court of Appeal (Stout, C.J., and
Cooper, J.; Edwards. J., doubting as to the
first and dissenting as to the second proposition),
affirming the decision of Conolly, J.,-

1. That the resolutions referred to amounted
to resolutions to continue the collection of the

tolls throughout the period covered.

2. That, the scale of tolls having been pub-
licly notified in 1889, it did not require to be
notified again on the occasion of each resolu-
tion, the tolls not being new tolls each year, but
the same tolls continued from year to year.

Section 143 of "The Public Works Act, 1894,"
provides that no toll shall be payable unless
certain conditions are observed, one of the con-
ditions being that the scale of tolls shall be
painted in black letters not less than 2 in. in
length on a white board placed in a conspicuous
place on or near the toll-house. Section 154
provid that whenever any toll-gate clears any
other toll-gate the words
66 Clears the
gate shall be painted upon the board men-
tioned in section 143.

Held (affirming the decision of Conolly, J.),
That compliance with section 154 was not a
condition precedent to the right to collect the
tolls. HOOKER v. MORRIS. (C.A.) -
195

TORT-Excess of Powers.

See LOCAL BODY.

A

66

TOWN DISTRICT-continued.

ing adopting such by-laws, and not merely a
confirmation of the minutes of such meeting.

The common seal of the Board being in fact
affixed to the by-laws as they appear in the
minutes, it must be taken, in the absence of
any proof to the contrary, that it was properly
affixed. No resolution is necessary.

The effect of section 2 of "The Municipal Cor-
porations Act, 1886," is to incorporate the whole
of the provisions of Parts X. ("Powers of the
"Council") and XI. ("By-laws ") of that Act
with "The Town Districts Act, 1881," in place
of Parts XI. and XII. of "The Municipal Cor-
porations Act, 1876," repealed, the former Parts
corresponding with the latter in substance and
effect within the meaning of the said section 2.

The mere occurrence of the word "channels "
in section 256 of "The Municipal Corporations
Act, 1886," does not, considering the provisions
of section 257, authorise reading that word into
section 255; and a Town Board constructing
channelling other than in the manner provided
by section 257 cannot recover any portion of
the cost from the owners or occupiers of pro-
perty fronting on such channelling. THE TIN-
WALD TOWN BOARD v. WATKINS
306

TRESPASS—Tenant in Common of Land-House
built on the Land by one Co-tenant with the Con-
sent of the Other-Removal of the House by Tres-
passer-Measure of Damages-Land held in Fee-
simple by Natives-" The Native Land Court Act,
1894."] A husband who erects a house on his
wife's land has no right to remove it, and can be
sued by his wife in trespass for such removal.
The fact that the wife is a Maori makes no dif-
ference if the Native title has been extinguished.
HARPER V. HARPER AND ANOTHER

317

VALUATION OF LAND The Government
Valuation of Land Act Amendment Act, 1900,’
Section 2- Unimproved Value "-Lessee's In-
terest - Principle of Assessment.] The Govern-
ment Valuation Department, in assessing the
value of a lessee's interest in the unimproved
value of land under the above Act, should take
the lease, and, looking at all its provisions, ascer-
tain what the unexpired term might be expected
to realise by sale if there were no improvements
whatever upon the land, and if such unexpired
term were offered for sale on such reasonable

VALUATION OF LAND-continued.
conditions as a bonâ fide seller might be expected
to require.

To treat the annual value as being necessarily
equal to 5 per cent. upon the capital value is to
proceed upon an erroneous basis.

In dealing with the matter the existing im-
provements must be completely put out of the
question. It is fallacious and misleading, there-
fore, to enter upon calculations as to the value of
the existing buildings, and the amount required
to provide for a sinking fund sufficient to recoup
their cost, with a view to determining the value
of the lessee's interest in both land and improve-
ments, and then, by a process of deduction,
arriving at the value of his interest in the land
alone. DUTHIE v. THE VALUER-GENERAL - 585

· Option to pur-

VENDOR AND PURCHASER
chase - Deposit Right to recover back.] The
defendants agreed with the plaintiffs, as agents
for a foreign syndicate, to grant to the syndicate
a three-months option to purchase a tailings
claim belonging to the defendants, in order to
permit of an expert inspecting and reporting on
the claim. In the event of a favourable report
being received the defendants were to receive a
cash payment of £500 and to be allotted one-
sixth of the total shares in any company formed
to work the tailings, such shares to be fully paid
up; and it was stipulated by the defendants
that they should receive £100 cash deposit.
expert's report was unfavourable, and the op-

tion was never exercised.

The

Held, That the deposit paid could not be
recovered back. SIEVWRIGHT AND ANOTHER v.
THE CROMWELL PROPRIETARY GOLD-MINING
COMPANY (LIMITED)

2.

-

487

Time Whether of Essence Private
Hotel Title When Vendor bound to show-
Time for taking Possession-Time for Payment
of Purchase-money—Refusal to procure Consents
Rescission by Purchaser Abstract of Title.]
Semble, That, on a sale of a private hotel (not
licensed for the sale of intoxicating liquors) and
of tea-gardens attached, as a going concern,
time is of the essence of the contract just as
much as on a sale of licensed premises.

A contract for the sale and purchase of build-
ings and land, used as a private hotel and tea-
gardens, provided for the payment of a deposit
on the execution of the contract, that the pur-
chase should be completed on a certain day,
that the balance of the purchase-money should
be paid, at the purchaser's option, either by a
cash payment on the day for completion or by
the execution of an agreement covenanting to
pay the balance eighteen months thence, and
that the purchaser should be entitled to posses-
sion as from the day fixed for completion. The
purchaser elected to execute an agreement, as
provided, in lieu of paying cash on the day for
completion.

Held,-

1. That the vendor was bound to give the
purchaser a complete title on his executing the
agreement provided for.