SUPREME COURT.

Evening Star, Issue 3865, 14 July 1875, Page 3

SUPREME COURT.

IN BANCO. Tuesday, July 13. (Before Mr Justice Johnston.) Davidson v. Gillies and Street.— This was a demurrer by plaintiff to pleas of the defendants, and a cross demurrer by the defendant Gillies to the plaintiff's declaration. There was an agreement between plaintiff and defendants concerning certain lands, and the plaintiff, under this agreoment, obtained advantages by, it was alleged, fraudulent representations. Mr Macassey appeared for plaintiff; Mr George Cook for defendants. Mr Macassey submitted that if a party sought to renounce a contract, he must first renounce all benefit from the same. Defendants had not done so, and could not ask, even on the ground of fraud, to have the transaction set aside. Mr Cook argued on the other side. His Honor reserved judgment. St Submarine Goldmining Company.—Mr Mouat appHed for a rule nisi to set aside an order for the winding up of the Company. Mr Mouat applied on behalf of certain shareholders. The application was made on the ground that there were no facts to show that the Company was not able to pay its debt. Rule nisi gr>nted. Cause to be shown on Wednesday, 21st instant.

Wednesday, July 14. Mr Macassey, with whom were Messrs G, Cook and B. Cf. Haggitt, moved, in the case of Herbert v. Thomson and others, for a rule calling upon Messrs D. Beid, H. Bastings, and H. Clark to show cause why they should not stand committed to the public gaol at Dunedin for the breach of an injunction order made by hi* Honor Mr Justice Johnston. The order wa» made in the matter of the Heriot Hundred, ex parte, on the sth inst., and by it the officers of the Waste Lands Board were enjoined against receiving applications and deposits. Notwithstanding this restraint, the above-named gentlemen, as constituting the Waste Land Board then assembled, had ordered these officers to receive applications and deposits under the 47th section of the Waste Lands Act. The present aprlication was made on behalf of Messrs Herbert and Mackellar (who acted in their own direct interest), and of Mr Larnach (on behalf of himself and the public). Messrs Barton and Stout appeared for the defendants, and pleaded that the act complained ef had been done in the interest of the general public. The motion was founded on the following grounds :—Herbert held a pastoral run. There was the power of the Governor by proclamation to open Hundreds in] any pastorol run. Thereupon, the runholder was entitled to compensation for the land taken from him; and till compensation and sale, he was further entitled, under section 124 of the statute, to rights of pasturage. The opening of any Hundred for ■ale was to be provided for by a separate proclamation. The Act of 1874 enabled the Superintendent to defer from time to lime the opening of lands for Bale which had been proclaimed into Hundreds. The opening for sale of the Heriot Hundred, on plaintiff's run, was deferred for a certain time named. The Waste Lands Board also passed restrictions withdrawing part of the Heriot Hundred from sale, and declaring it of special value. The Provincial Council, in session, also passed a resolution to set apart, and thus attempted to set apart 6,000 acres of the Heriot Hundred for sale on deferred paymentp. The plaintiff in this action contended, first, that once lands were brought within Hundreds they could not be made the subject of the deferred payment system at all. The statutes provided for two distinct systems of land sales independent of each other. It was further contended that the taking of 6,000 acted from tbe Heriot Hundred must be some particular definite 6,000 acres, and not an undefined section located nowhere in particular on the run. By a subsequent proclamation the Superintendent sec apart 13,0C0 acres for Bale on deferred payments. Those included 7,000 acres of the Heriot I lurired. Thus there were 1,000 acres set apart in excess of the 6,000 acres authorised by the Provincial Council. The proclamation, therefore, was so far invalidated by a subsequent protfamation issued without any authority from the Provincial Council The Superintendent and his Government tried to correct this error of the 1,000 acres in excess. The proclamation was in the * Gazette' of 23rd June, 1875, but it was submitted that the subsequent proclamation was altogether invalid.

Mr Barton mentioned that, on behalf of defendants, a notice had been bled accounting for the acts complained of. He proposed to read the affidavit.

Ilacassey objected, and contended that lavit contained matter which the Court ncey would characterise as scandalous jertinent. He was not usine the words sonal sense, but technically. Honor was not aware of what was conv. the affidavit. If there was anything pus or improper, or showing contempt of it would not be taken into consideralacassey asked that he should be allowed the affidavit, a; he Bhould then bo able port his objection. His Honor would i that they bad no option in the matter ,ilier opportunity of knowing what was contained. It wao only received after art rose yesterday, and this was conser the first opportunity they had of look- ) the affidavit. Elonor: Perhaps it will be as well if it is anything scandalous or impertinent should not be read aloud. If so read, come before juries by publication in the ipers. If it contains anything scanor impertinent I cannot allow it, nnd astion is whether it is to be read. (His here looked through the affidavit, and what was the nature of counsel's objeche saw nothing scandalous in the it.) Macassey replied that the objections wo-fold. Mr Reid had entered into a issertation without any cause. Had his read paragraphs nineteen and twenty ? Honor: Yes* It sayß "I am ad- ' so-and-so in doing particular acts would prove detrimental to the public, es on to say that he has good reason for iig thai the injunction would bo dis- . It merely showed that the injunction id through a misdirection of facts, following are the paragraphs referrel also advised by the said legal advisor that my a this matter if treated as the acts of a sr of the Provincial Executive ore not each a would render me liable to an action at the any person and I was advised that for error jment (if they be errors) in the course or con)f the business of the Executive Council of rovince I am cot answerable or liable to any iction at the suit of any individual who be injuriously affected by such action 9e in the honest exercise of my discretion, ilso advised that as a member of the Waste Board of Otago I have been acting in a judipaeitj and that so losg as I acted to the best

of my judgment and ability I was entitled to as full ?>rotection in the honest exercise of my judicial unctious as the Judge of any other Court is entitled to and I was further advised that for any such judicial act the learned Judge of the Supreme Court would not interfere with me in the fair exercise of such judicial discretion or allow it to be made the cause of any action or suit which would put me to personal expense or tend to intimidate me in the free exercise of my judicial discretion. I wjs farther advised that the proper mode of restraining any Court from the improper exercise of its ministerial or judicial funotions is by prohibition to such Court and not by any personal attack upon its individual members or by any unfair or improper attempt to harass them or put them to expense or in any way to intimidate them in the future discharge of their functions and that such Court is entitled to protection so that it may without fear or favor to any man or set of men however powerful perfoim its duties.

Mr Macassey mentioned that in a similar matfctr bi ought before the Court of Queen's Bench, London, the Chief Justice held a long st tement of a like nature to be improper, and refused to receive it.

His Honor said that the paragraph referring to the powers of the Executive was quite unnecessary, and should not have been inserted. It defined the powers of the Supreme Ooutt and the political indepence of the Board, an 1 this might be considered impertinent. Mr Barton replied that Mr Reid's object was to show the advice the Board had received. Nothing disrespectful was intended. Mr Macassey submitted that the filing of the affidavit was not only unprecedented, but contained a statement of facts which should be disallowed, His Honor: It does contain some characteristics—put in in an oblique fashion by way of advioe of counsel—not entirely resp«ctful and straightforward, but I am not prepared to say it ought to be excluded. In the affidavit filed by him, Mr Reid states :

That I believed when I voted for the said resolution and I still believe that the Chief Commissioner had no authority to interfere with the District Land Officers and I was advised that were the said officers to have refused to receive the said applications they would have laid themselves open to grievous litigation and actions for damages. That I had then been advised and I then believed and I still believe that the Waste Lands Board has no jurisdiction or authority to interfere with applications for land for sale on doferred payments until under Bection 52a of the Otago Waste Lands Act 1872 the District Land Officers had submitted a duplicate certificate to the Board for its decision and determination.

Mr Barton argued that the defendants were desirous of showing the greatest possible amount of respect to the Court, as was shown by the notice attached to the affidavit. A material part of tbe application before the Court charged the defendants with disposing, or attempting to dispose, of land under the 47th section of the Act, notwithstanding the injunction restricting the Chief Commissioner from so "doing, and he would show that there had been no attempt to sell. His Honor : If you say these gentlemen only did what in their knowledge they considered to be right in the so-called disposal, that they dispute any contompt of court, and are prepared to apply for the dissolution of the injunction, can there be any use going on and getting the Court to determine whether they are liable to be committed ? If they are still of that mind, which has been stated by counsel, viz., that what they did they considered necessary for the protection of the public, and that what they had done was in order to prevent mischief which might accrue if they acted on the injunction, I cannot help thinking that there was no intentional violating of the injunction, and consequently no use going on with the order.

Mr Baiton : Your Honor, they ask on the other side that defendants should pay all costs as between solicitor and client. If counsel will agree that this motion be Bimply discharged with costs, we will agree. Mr Macassey could not agree to this course. He would insist as a matter of right that the costs should be paid. As Mr Barton declined to pay the costs, his Honor said the motion would have to be pro* ceeded with.'

Mr Barton then submitted that tho Board had no power to prevent the applications being received by the officer appointed by statute. His Honor : Then you say that its members are not responsible for the act of an inferior officer ?

Mr Barton: Precisely. A ministerial officer is appointed, and he must receive the applications. If the applications had not been received, the Government would be open to 200 or 300 actions for the officer refusing to perform his ministerial acts. Plaintiff's right to the lend ceased when the Hundred was opened. So far as the Board kitew, plaintiff had no land in the Heriot Hundred, for which applications had to be received on the morning on which applications were to be received. In conclusion he submitted that costs should not be given againßt defendants, who were officers of the Government.

Mr Stout followed on the same side, and contended that the Court could not take the belief of one man against the statements on oath of all the defendants. The only difference between Hetbert and any other person was that he had held pasturage land on tho Heriot Hundred?; but he had no more right to complain of the illegal acts done by the Superintendent c.r the Waste Land Board than any other man. The action of the Board in receiving applications could not damnify plaintiff 'a right. [Left sitting.]