SUPREME COURT.—In Banco.

Auckland Star, Volume II, Issue 435, 2 June 1871, Page 2

SUPREME COURT.— In Banco.

FRIDAY, JUNE 2,

[Before His Honor Sir G-. A. Arney, Knight, Chief Justice.]

Dawibis and Lye v. CvxtTWßiaHT.—Judgment.—Mr. Wynn for plaintiff.—Mr. Rees for defendants.—His Honor gave judgment in this case this morning. He suid : This was abaction for possession of land. The plaintiffs disclosed, in their declaration, a clear legal title, having acquired the fee simple from the iormer owner (one Wroe), by conveyance, so far back as 1863, under which Hold the land upon trust for religious pur- ?«« c QS" 16 declaration alleged that in March, LUb6 defendant wrongfully took possession of ana (now) refused to gire up the same. The defendant pleaded, in effect, as follows :— iL «™fter four y«"-« occupation, by leave of Wroe, and after making improvonnijf' A eru° n ' he > in Ma™h 18™> memoraS, th% all°^ent, and obtained a memorandum of purchase and sale in writing from Wroe, together with the title deeds, and

that in 1860 lie left New Zealand, appointing the plaintiff Lye his attorney, to get the conveyance, collect rents, &c. The declaration farther alleged that the plaintiffs were aware of the purchase by defendant, and that the deed of conveyance was " fraudulently:■ ob>, tamed," with the view of defeating defendant's' claim. (2) Also an equitable plea. And to these the plaintiffs demur: (!)_ That dsfenclant ought, to have alleged that proceedings had been taken by him with the view to plaintiffs baing declared trustees for defendstnt respecting the land, and also with a view to his obtaining n. conveyance from the plaintiff. (2.) The finding of ii jury on the issues of fact raised on these plens, wpuld not determine the right of the parties. The defendant contended* that the only question raked by the pleas was"whether the matter set up would in the' Court of Equity in England entitle the defendant to nil injunction to stay the plaintiffs from further proceeding in this action. In regard to the first ground of demurrer, the defendant would not have strengthened hig plea if. he had appended the allegations suggested by the plaintiffs. In regard to the second, that the finding of a jury upon the facts raised by the defendant would not determine the rights of-parties, it is enough for the defendant, upon these issues beiug found for him, he would be entitled, according to the practice of the Courts of Equity in England, to an injunction, fop"he would thereupon be entiled to judgment upon the action. This was the material questions- raised by the. demurrer.—His Honor having cited a number of authorities, gave judgment on the demurrer for the plaintiff.

Macparlane and Axothee r. Haebis. —The argument in this case was adjourned till next sitting in-Banco.