SUPREME COURT.

Evening Star, Volume IX, Issue 2680, 19 September 1871, Page 2

SUPREME COURT.

Tins Day. (Before Mr Justice Chapman.) JUDGEMENTS. Crook v. Prou ;foot and others.— This was a motion for an injunction to restrain the defendants from making and constructing the Dunedin and Port Chalmers railway in, through, and over land be'o.iging to the plaintiff and from taking compulsorily any land belonging to the plaintiff, and from constructing the railway over water in front of the said land at Sawyer’s Bay. The defendants relied on an Ordinance of the Provincial Council, i‘< o. JOS, entitled The Port Chalmers llailway Compulsory Lands Taking Ordinance. It was contended on behalf of the plaintiff’ that this Ordinance was ultra virtu and illegal; that its provisions were so dependent upon and interwoven with Ordinance 307 (admitted by defendant’s counsel to be invalid) as to taint the Ordinance 308 with its invalidity ; and that, if not so, the last-mentioned Ordinance was itself invalid, as over-stepping the provisions of the Act by far extending the powers of Provincial Councils passed in 18(33. His Honor, in giving judgment, said that as to the lirst point he did not think it could be sustained. He did not entertain the slightest doubt that Ordinance 307 was absolutely mill and void. It was wholly repugnant to the 11th section of the Public Loans Act, ISG7. it attempted to give legality to a contract which was itself illegal, and neither the contr act nor the Ordinance affirming it could be supported. Hut he knew of no principle of construction nor of any authority for saying that one invalid Ordinance could vitiate another, unless the one could not be read without the other. In that case it seemed to him (the learned judge) that the tv. o were wholly independent of each other, and that the powers conferred on the defendants by Ordinance 308 were independent of the validity of the contract —independent of the contract itself. The validity of the contract itself under Ordinance 307 was a question between the defendants and the Provincial Government, or between the latter and the General Government. If the defendants, acting upon the supposed efficacy of their contract chose to go on and expend their capital and labor upon the construction of the railway they did so at their own risk, and the only question between the plaintiffs and the defendants, as the promoters (so called) of the undertaking, was whether, Ordinance 308 was effectual in conferring upon the. defendants the powers by virtue of. which they acted. He therefore proceeded to examine the validity i f Ordinance 308, which dealt not merely with lands which have been granted by the Crown, but with Grown lands, and undoubtedly land covered by water was Crown land. By the Constitution Act, section Iff, sub-section 10, the Superintendant and Provincial Councils are prohibited from making or ordaining any law “affecting lands of the Crown.” But this prohibition has been relaxed and removed in certain cases by certain Acts of the General Assembly. 1 he Public Deserves Act, 1854, is one of these ; but he might dismiss that Act with one remark, viz—that it could have no affect in imparting validity to Ordinance 308, because sections 1 and 2 mere]}' provide for what the Governor may giant to Superintendents, and there was nothing to show in the present case that ihere had been any grant. Thus, in order to test the validity of the Ordinance in question it was necessary to refer to other Acts, and the only Acts referred to

and relied upon by the counsel were the Provincial. Co\inciw;Powers Extension,.-Ait, lj>6s, and the Provincial Compulsory Lands Taking Act, - 1866. By the second section of > the first-named Act, Provincial Councils may i a-s Ordinances 1 affecting the waste lands of the Crown, embracing the following particulars :—l. Any part of which now is or hereafter may be a public street, highway, road, or thoroughfare ; 2. Or a drain, for tho outfall of water ; 3. Or which is the bod of any creek, stream, river, pond, or lake. It appear, dto him that the arm of the sea or inlet which roaches Dunedin from the Otago Heads was a creek within the meaning of the Act. It was true that in Austral a and New Zealand the flowing streams of the interior are often called creeks ; hut that was not the meaning of the word in the English language After citing authorities to show that the “inlet of the sea” on which the plaintiff’s land is situated was a creek in accordance with the proper explanation of the word as used in England, his Honor went on to say that his own impression and interpretation of the word was that it always included a tideway—an inlet from, the sea or from a river, into and from which the tide flowed and ebbed. He knew of no case in which thq word creek was applied as in America, 'Australia, and Now Zealand ; but possibly there might be some instances of creeks which are inlets from non-tidal lakes, but the waters of such lakes must have free access to them. He was also of opinion that the Legislature did not use the word in the colonial sense—l. because it had not been used long enough in New Zealand in the sense of a rivulet to become established in tliat sense, and not only in that sense, but exclusively so. 2. The Legi-lature in a former Act (the Public Reserves Act, 1554) had employed the words “ arm or creek of the. sea. ” 3 The Legislature clearly intended the words “ any creek, stream, pond, or lake” to be exhaustive, because the title of the Act had the word “ water-courses,” and the preamble the words “river, streams, creeks, and other waters and although neither title nor preamble could add to a statute, they were, as Lord Coke said, “ keys wherewith to unlock its meaning.” H*. therefore entertained no doubt that the 1 words “ bed of any creek” were sufficient to support the validity of Ordinance 30S, so far as that objection was concerned. As to the second objection, that it was not a work of a public nature because it remained the property of the promoters, be thought it could not be doubted that a railway was a work of a public nature ; because, though constructed by private promoters as they Were called, and the condition against endowment seemed to contemplate this, though the condition against payment in land might apply to mere contractors for the work. Moreover, the very general words “ authorise the compulsory taking,” seemed wide enough for the authorising of any persons whatsoever. The first condition already referred to was fully complied with by the fuh section of the Ordinance incorporating the Lands Clauses Consolidation Act, 1863 ; and as if this were not wide enough, the 9th and 10th sections commence " subject to the provisions ... in the l ands Clauses Consolidation Act, 1803, it shall be lawful,” - &c. The second condition was also strictly complied with by limiting the power of taking lands to the necessities of the line of the railway and the w'orks in connection therewith, and not a lino in tire whole Ordinance had been painted out, nor had he been able to discern any, which indicated thatfa single acre of land was authorised to be taken for either of the purposes forbidden by the second condition. Ho thought that the plaintiff must seek his remedy in the provisions of the Lands Clauses Consolidation Act, 1805, and that he was not entitled to an injunction. Motion refused, with costs, Mr Macassey obtained leave to appeal. Catomokh (Trustee of] Fuller) v. Murray.— Ibis was a rule nisi obtained by Mr Barton, pursuant to leave reserved, calling upon the plaintiff to show cause why the verdict in his favor should not be entered for the defendant, on the ground that the plaintiff is not trustee in Fuller’s estate. The verdict of the jury was entered by consent for the plaintiff, subject to the question reserved. The facts are as follow Fuller was adjudged bankrupt on October 19, 1 SOS, and a meeting of creditors w r as appointed to take place on the 27th October. The meeting was duly called, the Deputy-Registrar attended, hut no creditors appeared, and under the provisions of the Bankruptcy Act, 1867, the plaintiff, who as Registrar was provisional trustee, continued to act in that capacity—his functions by the 132 nd section lasting until the order confirming any elected trustee should be made, or until the appointment of a provisional trustee under the 22nd section of the Act. After the meeting of the 27tli October (it is stated on the 29th October) the Bankruptcy Act Amendment Act, 1868, was received in Dunedin. This Act Lad become law on the 20tli < ’ctober. By the 6th section it appeared that the meeting of the 27th ought to have been followed by an adjourned meeting, and then, if no creditor had appeared, the provisional trustee’s “rights, dukes, and powers” would have become complete and permanent. But no such second meeting was held, no trustee was ever chosen or could have been chosen, and Mr Catomore continued to act as provisional trustee until superseded on the 10th December, 1868, by the appointment of Mr Bathgate under the provisions of the 22nd section of the Bankruptcy Act of 1867. On the 19th December, 1870, Mr Bathgate obtained an order under the 7th section.of the Bankruptcy Act Amendment Act, 1868, appointing Mr Catomore trustee in accordance with his nomination. This appointment was gazetted on the 30th of December. After an elaborate review of the arguments pro. and . con., His Honor gave judgment as follows: —That Mr Catoj norc's title to sue is indisputable ; that the judgment in this action is a liar to any other action by any subsequent trustee, and that consequently this rule must be discharged, hut I think it should be discharged without costs. The defendant submitted to the verdict on the facts, and he was armed with the leave of the Court to move for the rule. I do not say that this alone ought to release him, but this rule has been generated, so to speak, by the untoward accident, as I suppose I must call it x of the Act of 1868 having been law for nine days before its existence was known in this part of the Colony. Rule discharged without costs.

At the Italian Opera House, London, on the 19th of July, a handsome testimonial was presented to Signor Mario on his linal retirement from the lyric Stage. It consisted of an elegant octagon-shaped casket, richly ornamented with gold mounts at each corner and having a medallion on which was engraved a verse laudatory of the recipient.