SUPREME COURT.

Evening Star, Issue 3378, 17 December 1873, Page 2

SUPREME COURT.

IN BANCO. Wednesday, Delemper 17. (Before Mr Justice Chapman,) Greck; v. Krull.— His Honor delivered judgment heroin—a rule nid, for a writ of prohibition in a case in the Resident Magistrate’s Court, Dunedin; Wra, Gregg being plaintiff, and F. A. Krull defendant. The rule was granted by Mr Justice Johnston at Wellin''ton, where the defendant resides, and was made returnable here, the place of plaintiff's residence, and of the Resident Magistrates Court where the case was tried. The ground on which the rule was granted was, that the summons was not served forty-eight hours before the defendant was to appear ip answer thereto, as required by section 23 of the Resident Magistrate’s Court Act, 18(i9. The summons bore date .September 11, and required the defendant to appear on October 1. But according to Krull’s uncontradicted affidavit, it was not served till September 30, so that the defendant had not the forty-eight hours to appear in, to which ho was entitled by section 33 of tiie statute. To remedy the irregularity, the Resident Magistrate acting, as he believed, under section 50, adjourned the case from time to time until October 17, and then there being no appearance of defendant proceeded c.t parte and gave judgment for plaintiff. He (the learned Judge) was opinion that there having been no Jugal service of the summons, the time to which the defendant was entitled by statute not having boon given to him, the magistrate had no jurisdiction in October, to hear the case or adjourn it under section 50, as the defendant was not before the Court. Rule made absolute without costs.

The Southland Land Act.— Mr Smith applied, for a rule nisi calling upon Andrew J. Ellis, Receiver of Land Revenue at Invercargill, to show cause why a mandamus should not issue commanding him to receive from W. J. M. Larnach payment at the rate of lit per acre for every acre of land whi6h the said Larnach hail applied-to purchase under the Southland Waste Land Act, 1805, on July 4th lust; also, that he (the said Ellis) should grant the usual receipt. It appeared by the affidavit of Mr Dalglcish, agent for Mr Lar'iaoh, that on July 4th the latter applied for 1,245 acres of unsurveyed land iu the Hokonui district, but, through press of business, the application did not come before the Waste Land Loan! for consideration on that day ; but at the adjourned sitting on the Bth July it was granted in ordinary course. His agent was not able to get the necessary receipt forms till the lltli, when on their being presented to the receiver he declined to accept payment at Tests than LI an a:re. On the !>tb the Governor-in-Council,'>o the recommendation oi the Simper*

intendcnt and Provincial Council, raised the price to L 3 —His Honor : The whole turns upon the Governor's proclamation, whether it touches 7>arnach’s application at all.—Mr Smith : That is the view the receiver takes of it. -His Honor : I suppose he knew of it on the 10th —Mr Smith; Yes, ami ou that ground he decline' i to receive payment at the rate of LI an acre.— Mis Honor : When did the Superintendent recommend, —Mr Smith : It tiras before the Bth, at all events.—His Honor'.; All_ the world knew that.—Mr Smith : I submit it ia, nothing to the purpose when or .what the the Superintendent or Provincial Council recommended ; tha 1 winch may be of importance and is the only material thing in this case, is when the Governor in ('oune.il exercised the power, and if the exercise of that power affects this particular case. I submit the most careful perusal of the Act will not enable the Court to find anything in it which militates against the actual and legal position, viz., that before the Governor exercised his power of raising the price of the land it was competent for any one of the public to select any unsold Crown lauds in Southland, and Mr Larnaeh, having putin Aan application in due form, signified his intention of exercising selection over the area applied for, and having been ready and willing to pay the purchase money, it was the duty of the receiver to take payment at LI an acre. —The rule was granted. Pearce v. Smyth. —Air Smith applied to dismiss the action for want of prosecution. Order made to dismiss if the next step be not taken within five days from service. Koss v. Keith. —Mr Stewart applied for a rule nisi to rescind the order drawn up by plaintiff’s solicitor. Granted. The Waste Land Board and A. Maclean. --(Special Case,)—Mr Branson, instructed by the Provincial Solicitor, for the Board; Maclean was unre presented. On July 18,1807, Maclean was granted a pastoral lease for sixteen years of run 237; ou May 0,1870, the Provincial Council, acting under section fi2 of the Land Act of 18WJ, passed resolutions recommending the Superintendent to reserve, as an endowment for benevolent institutions, &c., inter alia, run 227, and in July of the same year it was so reserved. In this year Maclean applied to the Waste Land Board, under section 103b, for an agricultural lease of 010 acres, within the boundaries of the run. On his part it had been contended that section <52 must be read with section 83, that the Superintendent anil the Land Board meant one person, and that the power of reservation could only be exercised over part of the run ; but Mr Branson argued that the, sections should bo read separately, that the Superintendent and Board were distinct persons, and that while the Board's power of reservation was limited, that of the .Superintonpent was unaffected. For Maclean it was also urged that the Board had admitted the invalidity of the reservation by receiving-rents.—His Honor: All that does is* to make the Board trustees for the institutions. It appears Maclean sets •up a claim under section 103 a or 1031), and the question is whether that claim is a valid one in the face of what the Superintendent has done under section 62. Maclean says, “Yes, my application, be it under one section or the other, is valid, because section S3 controls the power of the Superintendent under section 62.” “No,” say the Board, “that section does not apply to <32 at all; it is another thing.” I nni' very much inclined to take that view. However, I will look a Ijttlp further, and have the certificate prepared on Friday.