SUPREME COURT.

Evening Star, Volume IX, Issue 2729, 15 November 1871, Page 2

SUPREME COURT.

IN BANCO. This Day. (Before His Honor Mr Justice Chapman.) Cargill v. Green. This case is an equitable action brought by Mr John Cargill against Mr George Green, to enforce performance of a certain deed of arrangement, so as to affect and apply to certain lands other than those originally conveyed by the deed, but to which, under the circumstances set out in the declaration, the defendant has become entitled by an Act of the General Assembly, in lieu and in substitution of the mortgaged lands. The declaration prays—1, That it may be decided that the deed of mortgage extends to the substituted lands. 2. That the defendant be required to execute a mortgage of the said lands, 3 and 4. That an injunction be granted to restrain the defendant from obtaining a Crown grant, and otherwise dealing with the substituted lands; and, 5. That an account may be taken of what sura still remains due to the plaintiff upon the security of the mortgage. The facts of the case are shortly these Green purchased a quantity of land in the Middle Island from the natives, prior to the date of the' establishment of the Queen’s authority; and under “ The Lands Claims Settlement Act, 185G,” his claims were referred to Mr Commissioner Bell, who adjudged him to be entitled to 889 acres, distributed over stated localities. After this, and before any Crown grant had been issued in respect of the award, Green obtained an advance of L 3030 from the plaintiff, to secure which he mortgaged the SS9 acres. Of that sum L 1723, with interest, remains due. After the mortgage Green became dissatisfied with the award, and petitioned the Assembly for a reconsideration of his claim—the result being that by “The Green Lauds Claims Settlement Act, 1879,” he became entitled to 5000 acres of land in Otago, in lieu of that awarded him by Mr Bell. Green, in his plea, admits that the plaintiff is entitled to some relief, but not to the extent which he claims. His Honor delivered an elaborate judgment, in which he referred at considerable length to the arguments of counsel on both sides, concluding as follows : Rejecting then the measures suggested both by Air Cook and Mr Macassey, what remains to guide us ? 1 answer the express understanding of the parties when the deed of July was executed, as nearly as the same can now be carried out. At that time it was probably thought that the land awarded by Mr Commissioner Bell was all that Green would ever get. Cargill took a mortgage of those lands, and they are expressed to amount to 889 acres. A mortgage of 889 acres of waste land is what the plaintiff bargained for, and that, I think, he is entitled to receive. 1 have considered the matter in every possible light, and I can find no other solution of the case. I see no equitable difficulty, and very little practical difficulty, in reducing the uncertain to the certain. By the shifting of the plaintiff’s equitable right from the Bell lands to the lauds to be granted under the Act, it. is as if Green granted to Cargill 889 acres out of his estate of 5000 acres. This, 1 think, gives to the plaintiff the election as to what portion he shall choose. I suggested in the course of the argument that, although there can be no election by the subject against the Crown, there can be uudoubtely by subject against subject. On the one side it would be inequitable to permit the defendant to put the plaintiff off with the worst pieces of land in the 5000 acres ; on the other it would be equally so to permit the plaintiff (to use a well-understood Australian phrase) to pick the eyes out of the whole estate. I think therefore that the election should be exercised by selecting the 889 acres in one block. This course avoids the necessity ?of any proceeding for partition. I doubt whether upon this decree, it will be necessary to have any enquiry before the Registrar as to the sum which remains due upon the mortgages ; however, as the sum claimed by the plaintiff is not at present admitted by the defendant, the account prayed for will be directed. Finally, I think this case comes clearly within the rule that the successful party is entitled to the costs of suits. The submission or offer of the defendant falls short of what is necessary to relievo him from costs. I reserve further directions with the usual leave to apply, should it hereafter become necessary. Decree accordingly. Mr Macassey asked for leave to appeal, which was granted. Steadman v. Harris. — lt was mentioned that this ease had been settled, the parties agreeing to the tule being made absolute. Coste v. M‘Donald. —Argument of a rule nisi to show cause why a verdict should not

be entered for the plaintiff on the -first, second, and fourth issues ; and failing that a new trial. Mr B, C. Haguitt moved the rule absolute ; Mr Barton, with whom was Mr Stout, showed cause.