COURT OF APPEAL.

Dominion, Volume 4, Issue 960, 29 October 1910, Page 14

COURT OF APPEAL.

AN HISTORIC ENDOWMENT. GOES TO THE OKOWN. . Tlio case of tho Auckland Education Board v. tho .Public . Trustee and others, winch was concerned with tho valuable piece of public estate known as tlio old Supremo Court site, Auckland, was decided by judgment of tlio Court of Appeal delivered yesterday. The question for tho Court was what right, title, or interest, tho Auckland Education Board had in the income from tho land mentioned, but the discussion of this question involved a number 01" others, and the representatives of several parties had to bo lieard. The land itself is about an acre in extent, and is situated in the heart of Auckland, at the_ junction of' Queen Street and Victoria Street. It is valued .at-£250,000.' The Auckland Provincial Council bought it from the General Government under an Act of 1864 for £25,000. Tho SuCourt Site Leasing Act, 1876, made it an endowment for educational purposes in terms of the provincial Education .Act, 1872. Other legislation authorised the raising of a loan • of £25,000 by debentures charged on the land, £3000 to go to tho Auckland Board of Education, and the balance to be used in erecting additions to the Auckland Provincial Hospital. The Auckland Hospital Reserves Act, 1883, vested tlio endowment in the Public Trustee, and authorised him to grant leases of the land aud to pay interest and sinking fund out of the income. A clause in tho Special Powors and Contracts Act, 1886, authorised the Public Trustee to.pay tho surplus income, remaining after providing for payment of interest and sinking fund, to tho Auckland Hospital Board, and the money has Lean paid accordingly. In June of this year the loan moneys raised in 1876 werA finally paid off, and the Auckland Education Board thereupon, claimed from the Public 'Trustee' the benefit of tho whole endowment. The Public Trusteo replied that. the position re-' quired judicial investigation. Hence the proceedings under notice, which began with an application by the. Auckland Education Board to the Supreme Court for a declaratory judgment; and were removed by consent into the Court of Appeal. ■ Argument was heard three weeks ago by; the Chief Justice (Sir Robert Stout) and Justices. Williams, Edwards, Cooper, and Chapman. Mr. J. R. Reed (Auckland) appeared for tlie Auckland Education' Board, Mr. J. W. Salmond (Solicitor-General)- for the Public Trustee and for the Minister for Education; Mr. H. P. Richmond for the Auckland Grammar School Board; and Mr. C. P. Skerrett, K.C., with him Mr. R. M'Veagh (Auckland), for the Auckland Hospital and Charitable Aid Board.- .1 . '.•■

Tho conclusion arrived ■ at by the Chief Justice, as expressed in the judgment which lie delivered yesterday, was that the Auckland Education Board had no right, title, or interest in the land in question. The property was now, in his opinion, vested in the King, and under; Section 6 of the Act' of 1883 the rents must ho held by the Public Trustee for education purposes as defined by. tho Supreme Court. Site Act, 1875,. and these appeared .to be "educational purposes generally in accordance with the provisions of the Education Act, 1872." The' present Education Board of Auckland -was not the. successor ; of the board appointed under tho Education Act, 1875. Its district -was not ..tho same, and its functions and responsibilities were different. It was' therefore clear to his mind that the Education Board had no right to demand the rents, and neither the Auckland Grammar School nor, the Auckland Hospital and Charitable Aid Board had any claim upon tho funds. The land was now an education reservo, and the question how ( it was to be administered by the Public Trusteo must be settled by the Crown and the Public Trustee. The costs of the Minister for Education on ■tho highest scale should be paid by the Public Trustee out -of the fund,- arid the, Public Trustee was entitled to his [costs, which would be nominal, out of J the fund. The costs of tho plaintiff ' would be £15 155., for costs in the court .below, .and in this court on :.the highest scale as from a distance. The other parties were not allowed costs. The judgments 'of Justices Williams, Cooper, and Chapman were to the same effect.'

Mr. Justice Edwards dissented. . He said that in his opinion the Education Board was clearly entitled to tho income from the, land, but as this opinion could have no effect, and as it was contained in 20 pages of . .typewritten foolscap, he did not. think ; it necessary to inflict tho reading of it upon the Bar, especially as they would not understand it. Ajiyone'Who was interested could obtain a copy. _, The Court therefore gave a majority judgment.

A NATIVE LAND MORTCACE.

APPEAL DISMISSED. A question connected with the-, registration of a mortgage. of Native land was decided by the Court of Appeal yesterday, when judgment was delivered in the case of Mata to Rautahi v. the Registrar-General of Lands—a special case stated for the opinion of the Supremo Court, and removed by consent into .the Court of Appeal. The questions for the opinion of. tho Court were: —(1) Whether a ccrtain memorandum of mortgage executed by the, plaintiff was invalid and unlawfully registered by the District Land Registrar, for the reason that it had not been confirmed by the Native Land Court nor by the District Maori Land Board, or for any other reason. (2). Whethor any cause of action was disclosed against the defendant under Sections 189 and 196 of the Land Transfer Act (compensation for mistake of Registrar). The plaintiff, who is a Native woman, leased from the Aotea District Maori Land Board 1120 acres of land, in the Ohutu Block, and subsequently executed to_the United Farmers' Co-operative ■Association, Ltd., the mortgage in question purporting to charge her estate in the land with the amount due by her husband, John Alfred Jury, to the company and all sums which might afterwards become duo to the company by !him or 'her. No papakainga certificate Avas issued as to any lands suitable for the occupation and support of the plaintiff, nor was any land reserved by the Native Land Court, nor by any ' District Maori Land Board, but the Land Registrar at Wellington, without ascertaining whether the plaintiff had. sufficient land left for her occupation • and support, registered it. The mortgagees, : in January, 1909, claiming that the plaintiff had mado default in payments under tho mortgage, sold the land to Arthur Maurice Campbell. . ' Tho appeal was heard by the Chief Justice (Sir Robert Stout) and Justices Williams Edwards, Cooper, and Chapman. Mr. G. Hutchison appeared for the plaintiff, and Mr. J. W. Salmond (Solicitor-General) for tho defendant. > The unanimous judgment of the Court, as delivered yesterday, was that the memorandum of mortgage was not invalid, and that no cause of action against tho registrar had been disclosed. Tho registrar was allowed full costs.

THE WAIWETU CASE AGAIN. QUESTION OF COSTS. A question of costs arising out of tlie judgment of the Court of Appeal in. the case of Ellis v. Rasmussen came before that tribunal yesterday mohiing. In tho Supreme Court judgment by the Chief Justice, Karl Rasmussen, farmer,

of Waiwetu, was granted £2 damages and an injunction ordering Edith Dorothy Ellis and John Eli Ellis to remove a dam from the Waiwetu Stream. Tho defendants appealed, and the Court of Appeal decided against tho issue of the injunction, but ordered them to pay £20 damages in lieu thereof." The Court made no order as to costs.

Mr. C. B. Morrison, for the appellants, asked yesterday, whether the Court intended that, his clients should pay for the printing 1 of the caso and the disbursements. So: submitted that they should not bo called upon to do so. Tho contrary was argued by Mr. W. F. Ward, for tho respondent. The Court reserved its decision with a view to consulting Mr. Justice Williams who presided at the hearing. THE CASE OF J. F. PULLEN. POSTPONED. The case of J. F. Puiien, solicitor, of Auckland, who has been summoned by the Auckland District Law Society, to show cause why he should not be dealt with under the punitive clauses of the Law Practitioners Act, has been indefinitely postponed. It ' had been set down to be heard by tho Court of Appeal yesterday, but Mr. C. P. Skerrett, K.C., intimated that it would bo 'dropped, or else made the subject of an application at a future sitting. The Court adjourned'until 10.30, next Monday.