BY-LAW-continued.

the making of a by-law providing for a yearly
licence fee on any vehicle or machine engaged in
heavy traffic. A County Council made a by-
law providing for the issue of licences for traction-
engines, to continue in force until the 1st of
January then next, on payment of a licence fee
of £5 in each case, with a proviso that where an
engine was brought into the district within six
months from that date the Council might, in
its discretion, refund a proportionate part (not
exceeding one-half) of such licence fee.

Held, That the by-law was bad because the
fee fixed did not entitle to one year's use of the
roads in each case, and the question of a rebate
was left entirely to the discretion of the Council.
Semble, That if the by-law had fixed a rebate
in accordance with the time the licence had to
run it might have been valid. MCPHEE v.
WOLTERS
498

2.

CHINESE IMMIGRANT - "The Chinese Immi
grants Act Amendment Act, 1888," Sections 8
and 5- Chinese Member of Crew — Poll-tax-
Penalties. "The Customs Laws Consolidation
Act, 1882," Section 52.] Section 8 of "The
Chinese Immigrants Act Amendment Act, 1888,"
absolutely prohibited the landing in New Zealand
of a Chinese member of a vessel's crew, except
in performance of his duties in connection with
the vessel; and the section at the same time
abolished any liability on the part of the master
of the vessel to pay poll-tax in respect of a
Chinese member of his crew who might land
with the intention of remaining in the colony,
notwithstanding the prohibition.

Decision of Stout, C.J., upon the above
points in Bannatyne & Co. v. Carter (19 N.Z.
L.R. 482) affirmed.

Per Denniston, Conolly, Edwards, and Cooper,
JJ.-The second paragraph of section 5 of the
Amendment Act of 1888 made it an offence to

mitted or suffered with intent to evade payment
vessel only in the case of the escape being per-
of poll-tax.

Making -- Validity 'The Counties
Act, 1886," Sections 124, 304, 303, and 311-permit or suffer any Chinese to escape from a
The Public Works Act, 1894," Section 130,
Subsection 2, (d), and (g) Heavy Traffic
"Yearly Licence Fee" Damage to Roads
Conditions of Licence.] Subclause (d) of sub-is

-

-

section 2 of section 130 of The Public Works

Act, 1894," authorises a provision in a by-law
that any damage done to any road, bridge, or
culvert by a vehicle engaged in "heavy traffic "
shall forthwith be repaired and made good by
or at the expense of the owner of the vehicle,
unless it can be proved to the satisfaction of the
local body that such bridge or culvert was not
at the time in a fit and proper condition to carry
the ordinary traffic thereon; and authorises,
further, making the giving of security for such
damage a condition precedent to the issue of a
licence.

66

Section 311 of "The Counties Act, 1886,"
when read with section 130 of The Public
Works Act, 1894," sufficiently empowers a
County Council to affix certain conditions,
other than the payment of a licence fee, to
licences to be issued in respect of vehicles
engaged in heavy traffic.

The same decision as in the case of McPhee
v. Wolters (ante, p. 453) given upon questions
as to the procedure for making a by-law under
The Counties Act, 1886," and as to the neces-
sity for a yearly licence fee, imposed on vehicles
engaged in heavy traffic, under subclause (g) of
subsection 2 of section 130 of "The Public Works
Act, 1894," entitling the owner to a year's use
of the roads, or, at all events, to a rebate where
the licence issued to him will give him less than
a year's use. HARDING V. THE CHAIRMAN, COUN-
CILLORS, AND INHABITANTS OF THE EKETAHUNA
COUNTY
501

.

Construction-Validity.

See HARBOur Board.
Making-Confirmation.
See Town DISTRICT.

CHEQUE.

See BANKING LAW.

payable to the Collector of Customs, it is not
Although the poll-tax on a Chinese immigrant
Customs Laws Consolidation Act, 1882," and
a duty within the meaning of section 52 of "The
the provisions of that section have no applica-
tion. THE KING v. W. M. BANNATYNE & Co.
(C.A.)
232

CODICIL.

See WILL. 1.

COMMISSION-Executor.
See EXECUTOR.

Principal and Agent.

See PRINCIPAL AND AGENT. 1.
Trustee.

See WILL. 3.

-

COMPANY Memorandum of Association
Power to take Shares in other Company-" Simi-
"lar or Analogous" Business-Share or Interest
in Undertaking Contract partly ultra Vires-
Separability.] The business of a flour-millers'
co-operative association, formed for the pur-
poses of fixing the price of flour and limiting its
output, and of purchasing the manufactured
article from its shareholders and selling it to the
public, is not "similar or analogous to the
business of a flour-milling company, the objects
of which are substantially the purchase of the
raw material and the manufacture of it into
flour, and the sale of the manufactured article;
and such a company is therefore not authorised
to become a shareholder in a co-operative
association of the kind by a clause in its memo-
randum of association declaring it to be one of
its objects to purchase the undertaking of any
other company, association, or person carrying
on business of a nature similar or analogous to
the company's business, or any share or interest
therein.

INDEX

The business of a producer or manufacturer
of a certain article is not "similar or analogous the new company, on trust for the creditors

by the plaintiff company (in liquidation), the
Official Liquidator, and Burnett suing on be-
half of himself and the other creditors of the
plaintiff company.

Held by the Court of Appeal,—

1. That the sale in May, 1892, to the pro-
moters of the proposed new company was an
absolute one, and not in trust for the plaintiff
company or its creditors not promoters of the
proposed new company.

2. That it was very doubtful whether the
sale was one which could be made under the
general powers of the company, without liquid-
ation; but-

3. That, if it were ultra vires, it did not
follow that the purchasers could be treated
as trustees, and called on to account not only
for the property, but also for profit made by
its use.

4. That no claim for the property or for
accounts could be maintained against the
defendants solely.

5. Semble, That, assuming the sale of May,
1892, to have been ultra vires, the subsequent
purchase by the defendants from the mort-
gagee could not be attacked by the plaintiffs,
that purchase not having been made by the
defendants while acting as representatives or
agents of the plaintiff company, the plaintiff
company being for all practical purposes dead,
and all parties believing that a valid disposal of
its property had been made.

Quare, Whether the defendant Daniell could
be deemed to have constructive notice that the
sale of May, 1892, was ultra vires.

6. That, assuming that the plaintiff Bur-
nett's conduct at the time of the defendants'
purchase, in May, 1893, did not bar any right
on his part to object to it promptly, his sub-
sequent conduct in standing by for eight years,
during which the property, from being value-
less at the time of their purchase, had been
made profitable by the exertions of the defend-
ants, amounted to acquiescence making it in-
equitable to ask for the relief sought, and barring
any right thereto.

The plaintiffs set up as an answer to the
defence of acquiescence that the defendants
had, before the purchase by them, been in
negotiation for certain timber rights, which
they afterwards acquired, and the possession of
which was essential for the profitable carrying-

COMPENSATION-Measure.

See PUBLIC WORK. 3.

CONFISCATED LAND-Grant under The New
Zealand Settlement Act, 1863," and The New
Zealand Settlement Act Amendment and Continu

ance Act, 1865 " -- Presumption of Purchase by

Grantees- The Native Land Court Act. 1894,"

..

Section 117 - Meaning of Words by Purchase
from the Crown."] The Native grantees of
land granted to them, under the provisions of
The New Zealand Settlement Act, 1863,"
and The New Zealand Settlement Act Amend-
ment and Continuance Act, 1865," out of lands
confiscated to the Crown, leased their lands to
the appellant, who applied to the Native Land
Court for confirmation of the deed. The Native
Land Court refused confirmation.

Held. That there was a presumption that the
grantees acquired the land by purchase from
the Crown, and that, under that presumption,
the land came within the exceptions specified
in section 117 of The Native Land Court Act,
1894," and, therefore, not being subject to the
restrictions on alienation contained in that Act,
In re MUIR'S
185

the lease should be confirmed.

LEASE

CONTRACT

Construction Local Custom
First-class Chairmaker”. Work undertaken.]
The appellant, a furniture manufacturer and
dealer, of Wellington, advertised in Sydney and
elsewhere for a first-class chairmaker to do
chairmaking work for him in Wellington. The
respondent, a chairmaker in Sydney, answered
the advertisement, and was engaged on the
representation that he was a first-class chair-
maker. He proved unable to do a certain class
wood in the round for certain parts of a chair—
of chairmaking work-namely, the boring of
and was dismissed. The evidence was that in
Australia that particular class of work was not
done by workmen called chairmakers, but that
the wood was bored in the square by turners
before being turned, and then passed on to the
chairmakers.

Held, That if a man undertakes that he is a
first-class chairmaker he ought to be able to do
all the work in connection with chairmaking,
and that it was quite immaterial that, accord-
ing to a local custom in the place in which the
respondent had been working, a chairmaker
only did certain kinds of chairmaking work.

Held, also, on the other evidence, That if the
respondent had been a first-class chairmaker of
any kind he would have been able to do the work
in question. FIELDER v. CHRISTOFANI

2.

-

491

on of the business, and that the fact of these
negotiations was unknown to the plaintiffs.
Held, That this was no answer to the defence,
it being common knowledge that further timber
rights would have to be acquired to make the
Sale of Goods Season's Output
property profitable, it not appearing that the Implied Condition - Delivery by Instalments
negotiations had put the defendants in a better Acceptance of Part Reasonable Fitness - War-
position than any other purchaser would have ranty-" The Sale of Goods Act, 1895," Section 13,
been in, and there being nothing to suggest Subsection 3, and Section 16, Subsection 1.]
that knowledge of the negotiations would in A contract for the sale of the output of the
any way have affected the conduct of the plain-cheese of a dairy factory for a defined period,
tiffs. D. HENDERSON & CO. (LIMITED), (IN without any express condition as to quality,
LIQUIDATION), AND OTHERS v. DANIELL AND and at a uniform price, is not a severable con-
OTHERS. (C.A.)
tract, although deliverable by instalments: nor

722

CONTRACT-continued.

McW. entered into a contract with a Borough
Council to construct a tunnel. After partly per-
forming the work he abandoned it. The sure-
ties for the due performance of the contract con-
tracted with S. that he should complete the
work under the superintendence of the Engineer
of the borough. During the work S. was ordered
by the Engineer to increase the thickness of the
brickwork, and to do this he had to remove the
wooden lining already erected, excavate further
soil, and re-erect the lining, which were dangerous
operations, to the knowledge of S., the ground
being treacherous. While this was being done
the portion of the tunnel which had been con-
structed collapsed, causing large additional ex-
pense and loss of material. It appeared that
before the contract with S. there had been a
slip in the earth above the tunnel, leaving a
cavity, which had been packed with brushwood
and logs; and it was alleged that this was a
latent defect of which S. had no knowledge,
and that there was an implied warranty against
such latent defects. S. claimed from the sureties
the loss and expense incurred by the collapse.

Held (affirming the decision of Edwards, J.),
That there was no implied warranty; and that
if the extra work was not within the contem-
plation of the contract S. was entitled to refuse
to do it unless under a new contract, but that,
having gone on without objection, he was pre-
cluded from claiming in respect of a resulting
loss.

The Borough Corporation was joined as a de-
fendant in the action, it being alleged that the
Corporation had, through its Engineer, con-
tracted with the sureties for the completion of
the works in discharge of their obligation. A
condition of the original contract with McW.
provided that on McW. making default the En-
gineer could, on behalf of the Borough Council,
relet the works to another contractor upon such
terms as the Council should think fit. After
the letting of the new contract to S. the Council
adopted a report of the Engineer, made pre-
viously to such letting, recommending an
amended scheme. The statement of defence of
the Corporation apparently admitted the con-

tract.

Held by Edwards, J., in the Supreme Court
(no appeal having been commenced as to this
part of the judgment),—

(a.) That the approval of the Borough Coun-
cil was necessary to a reletting under the above
condition.

(b.) That it lay upon the contractor to
tain that such approval had been given.

CONTRACT-continued.

(f.) That a Corporation of this description can-
not be bound by acquiescence of the Council in
a contract not in itself binding.

(g.) That, there being no valid contract, there
could be no implied licence to S. to enter upon
the land so as to bind the Corporation.

(h.) That sureties for the performance of a
contract to construct works have no legal right
on failure of the principal to themselves enter
and complete the works. SLOWEY . LODDER
AND ANOTHER. (C.A.)

Ultra Vires.

821

CRIMINAL LAW-Libel-6 & 7 Vict., c. 96, Sec-
tions 3, 4, 5-Statutory or Common-law Offence
"The Criminal Code Act, 1893," Section 6
Proceeding at Common Law - Section 378
Special Pleas-Application to Indictments under
Statutes other than Code.] Section 5 of the 6 & 7
Vict., c. 96 (Lord Campbell's Libel Act), did not
create a statutory offence of defamatory libel,
but merely fixed the punishment to which a
person should be liable on being convicted of
the existing common-law offence of defamatory
libel. Reg. v. Munslow ([1895] 1 Q.B. 758) fol-
lowed. An indictment for ordinary defamatory
libel remained, therefore, notwithstanding Lord
Campbell's Act, a proceeding at common law.
After The Criminal Code Act, 1893" (which
contained no provision in regard to ordinary
defamatory libel), a person could not therefore,
in view of section 6 of that Act, be indicted
for ordinary defamatory libel in New Zealand,
although Lord Campbell's Act had not been
repealed.

Sections 3 and 4 of Lord Campbell's Act, how-
ever, created new statutory offences—namely,
section 3 the offence of publishing or threaten-
ing to publish a libel for purposes of extortion,
and section 4 the offence of publishing a libel
ascer-knowing it to be false; and a person could be
indicted for either of these offences, after the
Criminal Code, under Lord Campbell's Act.

(c.) That the resolution of the Council was
not an adoption of the contract.

(d.) That a public body should not be bound
by a slip in pleading, and that, if necessary,
the Corporation should be permitted to amend
its defence by striking out the admission.

(e.) That the Corporation could not, even
under its seal, delegate power to make a con-
tract except to two members of the Council,
as provided by section 221 of "The Municipal
Corporations Act, 1886."

Per Stout, C.J.-Semble, That, assuming sec-
tion 5 of Lord Campbell's Act to have created
a statutory offence, section 6 of the same Act,
providing for a special plea of justification,
would have constituted an inconsistency with
section 378 of the Criminal Code, providing
that only certain special pleas therein named
may be pleaded; and that an indictment under
section 5 of Lord Campbell's Act would not,
therefore, have lain.