APPEAL COURT

Dominion, Volume 10, Issue 3136, 14 July 1917, Page 12

APPEAL COURT

IMPORTANT DECISIONS AN ENKMY ALIEN'S PROPERTY SIGHTS Tho AppMl Court resumed its siliinp yoHurday, and delivered reserveil jiiilg-' mpnl. On tho Bench were the Chief Just.i.:o (Kir Hobert Stout.) and Their Honours Mr. Juetico Edwards,' Jit. Justico Cooper, Mr. Justico >Siin, and Mr. .liutico Stringer. In the caso ot the Public Trustee v. .Tohn Honrj Hcidcinann, the rpiostion involved was whether m enemy alien cmild henofit under a. will and hold freehold property. According to the affidavit Illeil !>y the I'ublir. Trustee, ])liza,Ueth .l<ine Jtainham died on April 13. 1916. and on Fehrnary 0. 1917 an order to adiuinitter the estate was granted tho Public TruslßU, a rrior apntication for probalo by the executor having been abandoned on account of the Solicitor-General refusing to give his eonsent.. Heidemann was a Prussian, si ml oiio of tho beneficiaries under the 'will, and the Public Trustee km in doubt, as to whether Hcidoraann wa«. under the nijl. entitled to acquire, freehold property in South Dunedin. valued at. £500. Ueidomann, in his allidavii, admitted that he wne of finrnian iiationalit.y, having been born in Prussia in 1818. He came to New, Zealand in 1869, Tcsi'ling in the Dominion ever since, but did not apply for letters of naturalisation until September. 1914, and they wore then refused to him.

Mr. Salinond, K.C., who appeared tor the Attoriioy-fieiieral, asked the Court to make a declaration that, the land deviled, to HcidemaDii should be held in tru«t by tho Crown, and argued that notwithatandine that a, German Jost Jlis lighta after ten years' abicnee Irqm nis couuVry, in English law lie remained tin alieu, Ins Batatat status uot having ueeu completeiy discharged. - l'he Court held that although Heiilcmann was entitled to acquire the li:n«l under the will, he did so subject to the fight of the Crown at any time to claim tho laud by virtue of its old common low rifrhts in relation to alien enemies, whicli hod never been altered so fay «b Zealand was concerned, 'iho sift hr Uio will was not void so as to give rise to an intestacy, and the next-of-kin were therelore not entitled to the eatate. The Grown was entitled, on takinj appropriate proceedings, to establish its superior title to the land, and in this case ■ the Court hold hat the trust should be administered by the Public Trustee for the Benefit, of the Crown instead of for the benefit of Ho'demann. ' At. the hearing the Solicitor-General (Mr. J. W. Salmond, K.C.), appeared for tho Attorney-General, Mr. R. H. Wool, for Hoideraann, and Mr. E. P. Hay for the Public Trustee.

KARORI TRAMWAY LOAN

.ludffment -was also given in the cjiso of Andrew James PaUrson, of Northland, engineer, against the Borough of Karori, on originating eummons asking for a <leclaratorr order determining tho construction of tho Tramways Act, 1908, and its application to tho moneys received for the working of the Karori Electric- Trainway, and defining his (Paterson's) rights as a ratepayer upon the followip? questions:— (1) Must not the defendant borough apDly the moneys received from the working of tho tramway in each year to the payment of tho cost of maintaining the tramway in'good ordor and repair, the other matters mentioned in the Aot: and in payment of interest and sinkinp lund in respect of the special loan raised for the construction o£ tho tramway before transferring «ny surplus to any other account?— Answer: Yes.

(2) Must not the defendant borough expend all moneys receivod from the working of the tramway for the purposes speciHed iu Sections A and 1) of Clause 11, of the Act, before collecting the special rate? —Answer: Yen.

(31 -Whether the defendant borough is entitled, under the Act, to set r.nidc the sajd sums amounting to £5269 9s. 2d. as a replacement fund whilst collecting the special rate?— Answer: No.

(4) Has the defendant borough the power to transfer any part of the moneys received l'rom the 1 working of the tramway excopt in accordance with Clauso il of th« second Echedulo to the Tramways Act, 1908?— Answer: No.

At the hearing ilr. T. Young appeared for Hie plaintiff. Mr. T. W. Mlislop lor the defendant borough, and Sir. J. W. Salraoml, K.C., for the Attorney-General.

A MINING CASE

The Court dismissed the appeal of George James Willis, miner, ol ltecfton. The rcBpondcnt was Joseph Clai'dner, also of Hccfton, miner. Tho facts wens that the appellant applied to the Wardeu for a. special quartz claim, known as the .Scotin. The application was not completed within six months, aa required by the Minins Act, and consequently an application was made to the Warden to recommend the Minister to further extend the time, on the ground of special circumstances relating to non-deposit of plans of the property. In 1911 the Scotia claim had belonged to the respondent, who ha,d had it surveyed, but had lost his righie throujh. failure to doposit plans in time. The respondent now objected to the appellant's application for extension of time, and hie objection was upheld by the Warden. The question of whether these were special circumstances was referred to the Supremo Coiu't. which decided that there were no special circumstancos. The opinion of the' Supreme Oourt was then filed in tho Wa rdou's Court, and the Warden, in pursuance of that decision, dismissed appellant's application. On this dismissal an appeal was made to the Supreme Court, and Jlr. Justice Sim dismissed the appeal. It. was against this latter decision that an appeal wes made to the Full Court.

Costs were allowed oh the highest wale, and us from a distance.

At tlia hearing Mr. JI. 1 , . liawry. of licclloii, , and Mi , . M. Bonbon, of (jrcymouth, appeared for the appellant, and Mr. A. W. Blair,, of Wellington, nnil Mr. J. Patterson, of Iteeflon, lor respondent.