SUPREME COURT.

Evening Star, Volume VIII, Issue 2199, 25 May 1870, Page 2

SUPREME COURT.

This I'ay

(Before Mr Justice Chapman.)

hi,Ml V. MACANDUEW AN 0 OTIIEKS,

—ApoUJIgN’T ON' DEMU-UKKU.

Mr Macassey appeared’ foi the phjdptiff, a runbolder; and Mr Smith for tbc defendants, the members of the Waste Land 'Board. The plaintiff’s declaration stated that prior to the coming into operation of the Otago Waste Lands Population Act, )$"/(>, ope William Pinkerton was the bolder of a certain depasturing license over lands situate at Tapanui, and known as Bun KW; that within six months after the coming into operation of the Waste Lauds Act of IStiG he siUTcmiered hit? license, and obtained by

virtue of it an absolute lease of the run for the term of fifteen years ; that on the 3rd June, 1868, Pinkerton by deed duly assigned by way of mortgage to one Mary Greer, spinster, his interest in the run, notice of such assignment being given to the Waste Land Board, and the assignment being sanctioned by them ; that on the 7th September, IS6S, the said W. Pinkerton and M. Greer assigned absolutely to the plaintiff their interest in the estate for the residue of the term of years, notice of such further assignment being given to the Board, ami sanctioned by them, and that the plaintiff was now the legal possessor of the run ; that in the Provincial Gocernincnt Gazette the Board had given notice that 73(55 acres of the said run would be laid open for application for purchase on the Ist December next; that such sale was announced without the consent of the plaintiff ; that the defendants claim to ho justified on the ground that contemporaneously with the granting of the lease to Pinkerton he executed a certain deed of covenant to allow, on receiving a month’s notice, the Bea d to sell, without cunpciration or consideration, any part of the said run not exceeding 8,000 acres; that such pci mission, if given, was made without the plaintiff s knowledge or consent ; that if the sale were allowed, the value of the plaintiff’s property would he diminished ; wherefore he prayed that it might be declared that the said lease was valid ; that the deed of covenant between Pinkerton and the Superintendent might be declared ultra rm'.s-, and not sanctioned or authorised by the Waste Lands Act, 18(56; that if the sad deed has been validated by the Hundreds IGgnlation Act, 1869, it may still ba declared not binding on the piaintiff; that in the event of it being declared binding, that the plaintiff should have the option given him of purchasing those portions of the run on which his improvements were, or be allowed compensation for such improvements ; that a writ of injunction might issue, restraining the sale of land announced for selection, or that the plaintiff might have such other remedy as to the Court might sccip (it. The defendant pleaded two pleas—-one setting forth the deed of covenant, and the other averring that before and at the time of the assignmeet of the transfer from Pinkerton to Greer, the plaintiff had notice of the deed. To those pleadings the plaintiff demurred ns follows :

]. That the deed of covenant in the said ■ plea setforth was at the time of the making thereof void and illegal, and was not a i- > thorised hy the Otago Waste Laud Act of 1 Stiff 2 That the covenants contained in the said deed, if valid, were personal covcnntsmeiely. 3. That even if the sai 1 deed has been validated by the Otago Hundreds RegulaUfiff Act. ISlifi, the covenant 3 have not*been rendered obligatory uppji tlle plaintiff as the assign of William Tinketton, the lessee of the Crown. 4. The covenants contained in the said deed do not authorise the sale of lands without the consent of the said W iiliam Pinkerton, his executors, administrators, or assigns ; but merely stipulate that such consent shall be given, and in default thereof, that certain liquidated damages should be paid. 5. lint upon such covenant being withheld, the defendant stupild have instituted proceedings to compel the specific performance of the covenant, and not have proceeded if such consent had given, Mr Maeasscy would admit for the purposes of the demurrer, that notice of the deed of covenant had been given, an 1 proposed to deal with the second ground of demurrer fir t, as if the Court decided against him on it it would be unnecessary to go onwith the others. Upon the ground that the Superintendent was an entire stranger to the lease, and not interested in the subject matter, ho contended that this covenant could not he regarded in any other way than as being simply a personal obligation between I inkei - ton on the one hand and the Superintendent on the other. On that point theio iwie a number of authorities (Addison on contracts, ?80, OoLe upon Lyttelton, 384 !’> and 383 A) Webb v. Par-'sell (3 Term. Pep., 393); Stokes v. Pusscll, same, &c. these cases were singularly applicable to the col enacts : in tljc deed ; and from them it niigbt be assumed tnat tbo position that the Supeiiutendent bad no interest whatever, iu the subject matter of tbe covenant, was beyond dispute, Those eases he had cited were the cases at law, and tbe rule in equity, as established by Keppel v. Bailey, {2 Maine ciud Turning to the Hundreds Regulation Act, ISGi), he cited the loth section, and said the words of it, if examined, very clearly showed that “the parties thereto” plainly imbed the 2 ,ai ’t* es entering into the covenants. He would refer to the section afterwards, but then referred to it for tpc purpose iff shewing tljat there was in it an entire absence of language applicable to assigns—there were ho words of sum cession. He took, as an instance, tbe Conveyancing Ordinance Amendment Act, 1800, and referred to tbe second clause as showing that if the Legislature intended making o the loth clause of the Regulations Act, applicable to persons, other than the original tenants, it would have done so in suitable terms. Further, if statute 32 of Henry the Liglffh vpo taken, it would lie seen that if the Legislature' intended to hind persons not expressly paipoi], bi'ist dp so in suitable terms. There was the further ground suggested, that if the covenants were originally altra rirrs, the Legislature would not have validated them beyond what was absolutely necessary. But as he should afterwards content], they were illegal, the Legislature might very well have validated tljeuf as hfitwocu_ “ the parties thereto,.'’ but not as against strangers. Brpom’s niaxims wen? cited to show that retrospective legislation should' not be encouraged, apd should not be construed'more liberally than wat» pgceysjtjry. Tijere; fore, lii> apprphpudcd the covenants being iu gross or collateral ones, the Court would not readily infer that the Legislature intern ded to depart from the well known rule that covenants in gross should be treated as running with the land, unless the Legislature very clearly expressed that opinion. Referring to the first ground, he contended that the covenants were ultra vires. It was only possible for the Superintendent to refuse to grant leases ; he could not impose conditions. He had no possible legal authority or power to mafic tjfein, the only pretence being contained: iu .see. S3 of the V/aste Land Act, which did not at' all meet {fie "present pasc, - the provisio to that clause was only applicable to reserves made for public purposes.

rl,eft sitting.]

Ex-Queen Isabella and her husband have agreed to submit their differences to a trL hiiual of arbitration of five persons, one of whom is to be Jules Favrc.

RESIDENT MAGISTRATE'S COURT. Tins Day. (Before A. C. Strode, Esq., E.M.) Civil Cases, judgment.

France and Another v. Solomon.—l have carefully considered the evidence adduced in this case, and have arrived at the following conclusions:—With regard to the alleged representation of the defendant to the plaintiffs at the time the contract was entered into, that all the glass required in the work could be had for Lo 12s. I am of opinion from the evidence and the probabilities of the case that no such representation was made, I am inclined to take the evidence of Tishler ns the correct view with regard to this matter, who says that two prices were given, viz., Lo 12s for glazing certain cases, and a larger price for doing certain additional work. Moreover it appeared to me very improbable that the b ire mention of such a small sum as Lo 12s to supply glass and labor estimated to cost L 22 12s (would would not strike any man who knew at all what he was doing that the contract was an abssnrdly low one, and have caused some remark on the part of the plaintiffs. I place no reliance on the statement of one of the plaintiffs that “he took no heed of the matter of the glass after what Salomon said,” all L can answer is that it was the business of the plaintiffs to have taken heed of all matters connected with the contract, and have weighed them properly before tendering. As to the circumstance of the plaintiffs having used 2G ounces of crown glass in the glazing of the new cases, I am satished that under their contract they were bound to put in plate glass. With regard to the workmanship generally, I am of opinion that it was not of that character which shoiihl have been given, keeping in view the purpose tor which it was required. As regards this point, even the principal expert witness for the plaintiffs seemed to me to give Ids evidence with some qualification. The p.ise appears to me to be one of that class in which workmen in keen competition with others of the same trade have tendered at a price -which could not possibly be remunerative, and hence have not given that time and attention to the work which would have been given under more favorable circumstances. Looking at all the points in the case, I have come to the conclusion that the plaintiffs are entitled to the sum of LIO Iks kd. Judgment for the plaintiffs, LlO Iks kd, together with costs, Peterson v. Martin. —LI 7s, being 14s for money lent, and Iks for meals. The defendant endeavored to show that the money claimed was not owing ; that he never borrowed any money, nor owed for any mca's. A witness was called, who said he had seep the defendant borrow (money while playing at cards. Judgment for plaintiff, LI 7s and costs.

W. 0. Ball v. Alex. Fraser.—Mr Catamore for the plaintiff; Mr Bathgite for the defendant. A claim for L 4 13s fid, for money lent, with interest. For the defence it was stated that the money was advanced by the plaintiff as trustee in Phillips’ estate, and a set-off. The plaintiff stated that the money was advanced in his private capacity, and that he never was trustee in the estate, but only accounraVjt. Judgment fiff the plaintiff for the amount, bss interest, L 4,

Pritchard v. Bcthuno—A claim for L 5 10s for alleged service of a mare. The defendant pleaded not indebted and a speacial agreement, which hid not been fulfilled. Judgment for plaintiff L 5 Ids and costs. I’obcrt Inglis and P. Brice v, John Mathieson and others, members of the Higholifl'e District lioad Board—For’ balance of account, L 7 I7s 9d. The plaintiff's are contractors, and undertook to do certain work amounting to L 74 ss, which amount, except the balance claimed, was paid. The defendants pleaded the non-performance of the work according to agreement. The tender and specification were put in. The plaintiffs said that the work had been passed by tljc Inspector of Koads and a voucher given that it was done according to contract. For 'the defence, ’it was stuped phqt an embankment that was to have been a foot high was pufy four Inches; that the water table was nqt depp enough, and that the gradient qf the pond, which was fo have begn'iinifornply 1 in 8 throughout, was 1 in 13 in some places, and lin 5 in others. On production of the voucher no mention was made of the manner in which the work was done, and evidence was given to prove the incompleteness of it. The plaintiffs were nonsuited. Jones v. Mee—A claim for a Gold chain detained, LI2. The chain was given up. Judgment for the plaintiff Is and costs.