SUPREME COURT.

Evening Star, Issue 3002, 2 October 1872, Page 2

SUPREME COURT.

IN BAN ( C°. Tim Day. (Before Mr Justice Chapman.) ftEOIKA V. SINCLAIR. This was a demurrer to a, declaration upon a writ of scire facias to repeal a grant of land made to the defendant within the boundaries of the Stuart Hundred, and comprising land ,a’lef'ed to be held under a previous lease from the Crown to F. S. Billaus. The matter was argued last The Hundred was declared by the Governors proclamation undertbe “ Definition o l ' Districts Act, 1858, and it was contended that although it was effectual for that purpose, it was wholly ineffectual to defeat the lease to Billons, ou the ground that under the 82ud section of the Waste Lands Act of lßooapropl.qpation, to have such effect, must name a day from and after which leases within the proclaimed fDmdn d shall cease and determine, and that this omiuistt >y."S not supplied by the date at the end of the proclamation. His Honor, in delivering judgment, sajd this was in fact the cardinal point in which the respective rights of the lessee and grantee in fee turned. If the lease to Pillans be not effectually extinguished by the proclamation, then the case came witjbin the principle that where the Crown granted an estate in feesimple in possession of lands, which were already in tbe possession of another under an unexpired lease from the Crown, without citing that lease (so as to make the estate in fee-simple subject thereto), such grant in fee-simple was void, The Crown might in such cases grant the reversion jfubject to the lease, but no more, for the very obvious reason that the reversion was all that the Crown had in the laud. He agreed with Mr Barton that the general policy of the statutei providing for the alienation and disposal of the waste lands of the Crown continued the same down to the Act of 1801); hot the mode of carrying out that policy had varied from time to time, according to the continually growing interests which tho Legislature had bad to deal. Mr Barton seemed to be under tbe iiCipi'.ecsiou that the language of the 82nd section of the Act of 18S0 was an innovation, which meant nothing; and that under the law in force up to 1806 the cessation'and cancelling of the lease took effect from the date of the proclamation. No doubt that date was sufficient for the purpose of ‘defining the boundaries of Hundreds under tho “Definition of Boundaries Act,” ISSS ; but because tho proclamation in this case was legally sufficient for that purpose, it did not fallow that it was sufficient to extinguish an existing lessee’s right. But Mr Barton was wrong in supposing that the language of that section was an innovation; the language of section 114 of tbe Regulations of 1856 was similar; and as the Legislature had before them two modes of determining leases when the Act of 1860 was under consideration, and adopted the language of tho first, could it be said that the selection had no object or meaning ? Could it be said that the words “a day to be named in the proclamation” were equivalent to or syuomymous with tbe date of the proclamation? If the Legislature had intended that all leases should cease from tbe date of the proclamation, what need was there for the words of special import which they bad employed ? The single word “thereupon,” properly introduced, would have been sufficient. He had been informed by Mr Barton as a matter of fact that a great number of proclamations had been issued

without a day named, and that only three had been found which named a day in compliance with sec. 82, That some proclamations named a day seemed to show that the Executive was alive to the distinction, and certainly so long as the purposes of the Act of 1858 were alone iu contemplation, no such naming of a day was necessary. After noticing the other arguments, bis Honor said he did not think there had been any such delay, followed by consequences, as amounted to acquiescence. If it hj .d, a writ of sore facias would probably have been withcld. In conclusion, it seemed that the only question raised by the writ and demurrer was, whether the proclamation, not having a day named from and after which the lease to Piilans should cease, sufficiently complied with the 82nd section of the Waste Lands Act, 1866, to put an end to that lease; and for the reasons which he had given, he thought it did not. The judgment of the Court would, therefore, be for the Crown. IN RE JOHN PATTERSON, OP OAMARU. This was a petition by the trustee in the bankrupt estate of John Patterson, praying that a certain agreement made by the bankrupt with Messrs Fb ming and Hedley, of Oaraaru, which it Is alleged acted as a bill of sale and was not registered as such, might be declared void as against the bankrupt’s creditors. Ti'.e principal point raised by the argument was, whether the Court sitting in bankruptcy under the Act of 1867 had jurisdiction to dispose of this raattea by petition. Mis Honor’s judgment wag to the effect that without the “appearance” and “submission ” referred to in the 10th section of our Bankruptcy Act—the section relied on—his jurisdiction was confined to questions between the bankrupt and trustee ; and as that “appearance” and “submission” were wanting in this case, it did not extend to “any creditor or other person.” Thcjpetition would, therefore, be dismissed, without costs. MACHIN V. WALKEM—MOTION TO DISSOLVE INJUNCTION. Mr Holmes in support; Mr Haggitt, with whom was Mr Howorth, contra. A preliminary objection that affidav ts had been sworn before the issue of the summons was held to be fatal; the question of costs being reserved,