SUPREME COURT.

Dominion, Volume 4, Issue 966, 5 November 1910, Page 14

SUPREME COURT.

SINCULAR MATRIMONIAL SUIT. DIVORCE WITHHELD. A reserved decision in a divorce suit of a singular character was delivered yesterday by Mr. Justice Cooper. The Court on March 19, 1910, on the petition of William Jobson, the respondent- being Edith Lilian Jobson, and the co-respondent James Athol Bailie, granted a decree nisi for the dissolution of marriage. Subsequently, when the petitioner moved in person to have ihe decree made absolute, Mr. Young (for the respondent) mentioned that there had been relations between the parties since the decree nisi was granted, but both parties desired the ecreo to be made , absolute. His Honour dismissed the motion, and stated that, if the respondent desired to move for a decree absolute, notice should be given to tho Solicitor-General. This was done, and the' Solicitor-Gen-eral, 'as a result, interviewed the respondent, and was informed by her that she. laad met the petitioner in Gisborne about two months after the 'decree nisi was granted, and that they had thereafter lived together at the Parkville Private-Hotel, AVanganui, and the Columbia Hotel, Wellington. The Solici-tor-General, on receiving this information, intervened, iu terms of section 33 of tlie Matrimonial. Causes Act, and applied for the reversal of the decree nisi, on the ground that the resumption of matrimonial relations constituted a condonation by the petitioner of tho misconduct of his wife. •- The application was heard last Tuesday, when tho Solicitor-General (Mr. J. W. Salmond) appeared in person, Mr. T. Young ai> peared for the respondent. The petitioner was not represented. His Honour, in his judgment, said that this was, he believed, the first case in Now Zealand in which the AttorneyGeneral or the Solicitor-General had in-' tervened in a divorce suit.,. It "was certainly the first reported case.. After discussing the questions ,of law that had been raised, he concluded that it was, in his opinion, quite clear that the Court, having become seized of tho fact that since tho decree nisi the parties had cohabited, and having already upon that ground dismissed tho' petitioner's motion to make, the decree, absolute, could npt possibly make the decree absolute . upon the respondent's motion. That motion had, technically, not yet been moved, but all the .circumstances were before the Court. ' (Those circumstances established condonation by the petitioner, :■ and the. matrimonial offence on' which the dectee nisi had been granted'; /was- extinguished, and upon-a motion to .rescind that decree the Court was, in my opinion, bound to act. The pith and marrow of the suit had £one,, and with it must go the decree nisi! His Honour, accordingly rescinded the decree nisi, amLdismissed' tho petition. Tho;..ordei; made.\inpreference.' to the respondent's costs;;, would,of course, ijuqa'.:: • did not costs against the petitioner.

TRESPASS ON A RACECOURSE. A ,TEST CASE. Is the Wellington Racing Club entitled to exclude anyone from its course at Treritham without proving that such person is an undesirable? This question .was argued and settled in tho Supreme.: Court i yesterday r before , the Chief Justice (Sir. Robert,- Stout),. Mr. Justice Cooper, and Mr. Justice Chapman, on an appeal from a decision of ¥ r -,,? ■G- Riddell, S.M., in the caso of J. Waldcn v. W. Collins. ■ The appellant,-Walden, acting as a. detective for tho club, had warned Collins off the ground) and the latter had refused to go. 111 the proceedings before the Magistrate, the elub had not tried to prove that Collins was ail undesirable, because the Magistrate had held that the club was not entitled to exclude persons from the course without •proving.that they were undesirables. It was against this decision that Walden appealed. ..

.appellant was ' represented bv 1 1 i, J l, and tho respond-ent-by Mr. F. E. Petherick. During the hearing, Mr. Justice • iS 6r S u that a mail had no more right to be on private property against the ; owner s will than to go into a person s house- If the racecourse wero a reserve, tho case would be different.. . ...

Mr. Bell admitted that Collins had a ticket, and that the money was not reiunded to liim when he was ejected. j i ust ' ce Chapman said that if it had' neen tho proprietor of the. ground who ordered < Collins off, nobody would have suggested a doubt, tut it was an_agent of the proprietor, and agency had to be proved. - Mr. Petherick contended., that tha ticket sold _to tho respondent was a ticket to view the races, which were oferod as an entertainment" bv the Wellington Racing Club. The club sold him'a right to see the' entertainment, and that involved the right to go on the. land for the purpose of seeing it. So long as Collins, complied with tho conditions' on which the ticket was issued, he had a right to remain on the land.

The Chief Justice, in delivering judgment, said that, in his opinion, the Magistrato was wrong. The whole question for the Magistrate was whether Collins was a trespasser' or not, and the only point that could be raised in support of the Magistrate's decision was that tho decision in Wood v. Lidbetter had been overruled, and that the ticket gave Collins a license which Was irrevocable to go on the land. Ho (tho Chief Justice) did not consider that the decision in Wood v. Lidbetter, which had been acted on for many years by the highest Courts, had beeil over-ruled by tlie Judicaturo' Acts or otherwise.* Assuming that the law as there laid down had not been altered, the trustees of the club had a right to declare a man a trespasser, even if he was not an undesirable character. The - detective was acting under the authority of the freeholders, and tlicy; had a right to do what they did. ■ Perhaps, if Collins had sued for wrongful ejection they might have been unable to justify their action unless they could show that Jie was ail. undesirable, but that was •not the present case. If a man liked to say to another man who was- on. his land, "You aro a trespasser," ho could do so, and could order him off.

The other Judges concurred, and the appeal was therefore allowed, and the Court ordered that tho case should bo remitted back to the Magistrate's Court. _ Costs wero not asked for, as tho action was regarded as a test case; STREET VVIDENINC. MEANING OF "DEDICATION." An important decision relating to tho dedication of land for street widening in s compliance with Section 117 of tlie Public Works Act . was .delivered in tho Supreme Court yesterday. The case was tha t'of Mrs E. C. Cooper v. the Karori Borough Council, which is pending in a Compensation Court, and the parties asked : Mr. Justice Chapman to sit and hear tho question of law now raised before hearing , tho evidence. Regarding it as impor--1 tant that there should be unanimity in such cases 110 asked their Honours tho Chief Justice and Mr. Justice Cooper to: sit. with him. The decision which he, pronounced yesterday embodied the collective opinion of those judges and himself.

The claimant proposed to soil in subdivision her property at Karori. To

this end she caused a plan of subdivision to be prepared. This showed first _ a frontage to tho main KaroriWellington Road, next a frontage to Donald Street, and thirdly to Cooper Street, a new street wholly within the property. The Donald Street frontago was not 66 feet wide, and consequently, to comply with Section 117 of tho Public Works Act, 1908, the frontage of the land had to be set back and a strip' of land 25 links wide dedicated for the purpose of widening tho highway.

Tho question which the parties wished _ settled was from what date tho limitation of time for making the claim for compensation should be reckoned. His Honour said that an important question arose at the outset as to whether the Legislature had fixed any period of limitation . for this peculiar class of claim, which sprang from. the voluntary. act of tho claimant, Tho Court did not think it necessary? to decide this question, and he only mentioned it in order that the attention of the Legislature might be directed to it.

Tho important facts (continued his Honour) were as follow The plan of subdivision and . reading was prepared and was verified by tho surveyor's declaration on January 24; 1903. It was approved by the claimant on January 26. In that month it was freely circulated, and the property was fully advertised. There was an auction sale in that month, at which two sections were sold. Later in the year other sections were sold privately. In April, 1905, for the first time, sections were sold fronting Donald Street. In September, 1906, an instrument of dedication, dated September 12, 1906, was lodged with tho District Land Registrar; and in that month the consent of the mortgagee, the Government Insurance Commissioner, on behalf of tho King, was given. The instrument of dedication had, in fact, been executed in 1903, but the date was altered to that, stated, it having been in the interval retained by the. claimant's solicitors by her directions. There had been no public user of the land dedicated prior to the lodging of the'instrument. The-land remained within fences, and was • occupied by the claimant. Tho claim for compensation was lodged on February 25,' 1909. From these circumstances it might be inferred that at the outset tht claimant did everything that was required to make -the piece of land a part of the public highway, except the setting back of the boundary and tho lodging of the dedication. The borough contended that tho true construction of Section 117, or its earlier statutory equivalent, resulted in the dedication having been made at the date, when the plan was mado and published, in January, 1903. • The Court, however, held that the dedication must bo by instrument in writing under the hand of the owner, and registered by him in the office of the District Land Registrar. Until that was done it was impossible to contend that there had been a compliance with the statute, or that any dedication had been -made. The right to compensation arose under Sub-section (5), when tho land "so dedicated" became part of the road or street by tho process expressly and exclusively, laid down. It could not arise sooner.

What the rights of tho purchasers wore against! their vendor was also plain. They had tho right, when completing their purchases, to have carried out by their vendor the bargain they had made, but they made their contracts before the dedication, and wero not entitled to complain that it had not been made before that date. If it had, that was their concern. It was not tho concern of tho Borough Council, and gave 110 assistance in finding -an answer to the questions hero raised. •' Mr. Bell asked the Court to fix- tho costs, in view of tho fact that' the amount of compensation might bo-set-tled by the parties. > Mr. Justice Chapman said the Court' could not do. so at that stage. A SETTLER'S BANKRUPTCY. FRAUD NOT PROVED. Mr. Justice' Chapman gave judgment yestorday in;a caso arising out of tho bankruptcy of Edwin Barker, a settler of tho Pongaroa district.. Tho bankrupt had transferred his farm to Albert Packer at a price considerably below the Government valuation. Those two men had previously worked tho farm in partnership. ; The Official Assignco asked the Court to decide whether" the transfer was a fraudulent transaction., and the caso was heard last August", Mr. M. Myers appearing for tho Official Assignee and Mr. C. B. Mori ion for tho bankrupt. His Honour, in his judgment, said that in' order- to find that a fraud was proved, it would have to bo held either that some kind of understanding existed botween Packer and Barker, amounting to a trust for the debtor, or else that Barker mado a fraudulent sale at a price below the valuation to oblige a friond. Neither of theso things had been proved. He did not think Barker ever looked upon the valuation as representing the selling value of tho property. A general rise in values had doubtless been foreseen by the valuer, and had influenced liis valuation, but had not affected the ideas of Barker as to the value of the land. It was a case for suspicion, but nothing inore. The application was dismissed without costs.