SUPREME COURT.

Evening Star, Volume VIII, Issue 2283, 31 August 1870, Page 2

SUPREME COURT.

IN BANCO. Tins Day. (Before Mr Justice Chapman ) M‘KF.LI.au V. MAOANDKI'.W.

His Honor delivered judgment in this case, in which the plaintiff sought to restrain the defendants, as tile Waste Land Board of Otago, from putting in force a certain notice that 73(55 acres of land, (part of the plaintiff s run, No. 103, be laid open to purchase. The circumstances under which the plaintiff claimed title to the run and the right claimed by the defendants to declare th i said 73G0 acres open to applications to purchase, were disclosed by the pleadings. The declaration stated that before the passing of the Otago Waste Laud Act, 18(50, one Win. Pinkerton, was the occupier of the laud in question by license, according to the laws then in force ; under the provisions of that Act he surrendered his Jicenso, aud thereby became entitled to receive a lease of the same land from the Crown. A coordingly, on the 23rd December, 1807, a lease was issued to him. This lease was made by her Majesty the Queen, not as was previously customary, by deed poll, but by indentures between the parties. By that instrument, her Majesty demised the land to Pinkerton for 15 years, from July 15, 18(5(5. Pinkerton afterwards mortgaged the land to Mary Greer, who subsequently sold it to the plaintiff, to whom it was duly assigned by .Pinkerton aud the mortgagee. Notice of the assignment was given to the defendants, and they sanctioned it, and the plaintiff had been in possession of the land ever since. So far for the plain-

tiff's title. The declaration then set out the proceedings of the Hoard in derogation of the title ; and as that constituted the defence, he would notice it as it appeared in the pleas. The pleas justified the notice that the land should be open to applicat on under a deed of covenant executed by Pinkerton on be half of himself, executors, administrators, and assigns, on the date of the Crown grant. Pinkerton covenanted with Jam s Macandrew as Superintendent, to permit the Waste Land Board to allow any part of his run not exceeding 8,001) acres to be sold, on receiving one month’s notice, without any compensation or consideration, except a proportionate redaction of rent. The plea then averred that the plaintiff before and at the time of his purchasehad notice of this deed of covenant. But these pleas were demurred to on several grounds—lst. That the covenant was illegal, not being warranted by the Waste Land Act. 2nd and 3rd. If not illegal, the covenant was merely personal and not binding on the plaintiff. 4th. The dead of covenant did not authorise the sale of the land without Pinkerton’s consent, but merely covenanted to give such consent, and provided licpiidated damages in case of breach. The fifth seemed to him (the Judge) to be scarcely a ground of demurrer. Treating the covenant as one which Pinkerton might legally make, the first question was whether it ran with the land at common law, so as to hind the assignees of the land T-;c question as to whether certain covenants ran with the land usually arose between landlord and tenant; and if this covenant had been embodied in the lease, no question could have arisen. But the covenant was made with the Superintendent, and it appeared to him (the Judge) that, so far as the original grantor was concerned, he was a mere stranger; therefore, whatever covenant Pinkerton made with him although touching and concerning the land, could only he regarded as a personal covenant, binding upon himself and his personal representatives, and not affecting the assignees of the term. fTo make a covenant run with the land two elements were necessary : first, that it should he touching and concerning the laud demised ; second, priority of estate between the trustees ; and it was this last element that was wanting, but touching the argument of notice, his Honor held notice could not give to the covenant a greater effect than the law gave to it. Hitherto he had treated of the effect of the covenant at common law, But it was urged by the learned counsel for the defendants that, admitting the covenants did not run with the land and that it was merely a personal one, it was nevertheless made to affect the plaintiffs by section 15 of the Otago /'Hundreds Regulation Act. [His Honor ' read the section.] Now there was nothing whatever in the language of that section to show that it was intended to apply to any persons except to the parties to the covenants. The Waste Land Board is empowered to give effect to such agreements. To give effect to what agreements? He answered to give all the effect it was legally capable of giving. There was (quite enough to give effect to the covenant without reverting to so strained a construction as to make it extend to persons not partico thereto, wbicji would be to change its legal effect. He thought the plea founded on the covenant, failed to furnish any answer to the deck’a* tion, therefore the demurrer would he allowed. Judgment for plaintiff with costs.

110SS V. (JITAI’MK, In this case a ride nisi for a new trial had been ob'ained on several grounds, but which were practically reduced to two—viz., misdirection, and that the verdict was against the weight of evidence. His Honor said that, after a careful examination of the evidence and his direction, he had come to the conclusion that his direction had been inadequate, in leaving to the jury the question of negligence, and in putting that question, and the conduct of the passengers as the proximate cause of the accident as separate and distinct propositions, and wholly unconnected with each other ; he was, therefore, of opinion that a new trial should be granted on the ground of misdirection only. Order for new trial granted with costs ; each party to bear his own share of the costs of the day.

Mr Smith applied for leave to appeal, which was granted, security to be given to the satisfaction nf the registrar. The Court then adjourned,