SUPREME COURT.

Evening Star, Issue 3938, 8 October 1875, Page 2

SUPREME COURT.

CRIMINAL SITTINGS. Thursday, October 7. (Before his Honor Mr Justice Williams.) _ HERB RT V. THOMSON AND OTHERS. Hi- H. r delivered judgment in this castUs fol.O V's ; The plaintiff in this action obtained, on the hr' .Tolv l n >it, im ex parti! injunction, restraining tin. iuti-uJnnis (the Chief Commissioner and the otht i Commissioners of the Otagv- Waste Lauds Boar of the Province of Otago) from offering for sale, o deferred payments under section 47 of the Otag Was'e Lauds Act of 1872, certain land, formerly par; o the plaintiff’s run. These defendants non m-'-yi to dissolve the injunction. The grounds oi. ■-vhich the dissolution is sought maybe reduced to two: —1. That tliis Court lias no jurisdiction to restrain the Waste Lands Board by injunction. 2 That tho plaiutill has no equity. The tirst groun< was attempted to bo supported by the cm - teiitiou that the Waste Lauds Board, by th< terms cf the Act of 1672. was a court of justice, and that therefore the remedy was by pro uibitiou and not by injunction. It appears to me that the Board is constituted by this Act an administrative body, and >hat the powers conferred upon it by the Kith section for deciding disputes and differences are merely auxiliary to its adminis trative functions, and do not constitute it a conn of justice. I concur in the opinion expressed ,\ Air Jus ice Chapman in Macamlrew v. M'Lcan and j others, that if the members of the Board act in. I administratively, are instrumental in carrying iut j ex-cutiou an i legal proclamation, they may be r<. i strained by injunction. In ordot, however, tluv j tnis jurisdiction may bo properly exercised in any particular case, the person seeking an injunction must show that, he has iu other respects a suificicuv equity. This brings us to the second ground of the j motion for dissolution. Iu order to consider it, it will be necessary to state shortly tho principal facts. The plaintiff is the assignee of the has of a run granted under the Otago Waste Lauds Act, ISGti, comprising infer alia the land proposed to bo opened for sale or lease under section 47 of tne Otago Waste Lauds Act of 1872. :By a proclamation of the Governor iu Council, issued under the 46th section of this Act, and published iu tho i 1 Now Zealand Gazette’ uf the 3rd of September ; 1874, this laud was proclaimed n Hundred by the i name of tho Heriot Hundred. By the 149;h scctio, j of tlie Act the lease '-cases and determines as tot lie lauds included in the proclamation 'rnm the dnteoi the proclamation. By the 134 th section of the Act, the right of pasturage over ho lands proclaimed n Hundred, and included iu any lease, remains with the lessee until regu atious are made under the Act n-' r depasturing cattle iu tho Hundred. At the time i this action was brought no such regulations had | been made. It appears therefore that, at the time ! this ac ion was brought, the lease of the plaintiff ; over the laud in question had determined, hut he ! was still entitled to a right of pasturage under the ! 13tth section. The plaintiff, however, claims i more than this. He asserts that he has a lien ; on tho hind for compeusatiou for the determi- ’ nation of his lease, and that rent iu respect of 1 the 1 -ud was paid by him and accepted by the Crown, so as n> constitute him a tenant from year ; to year. 1 can find uothiug iu the Act. by which I iUi - v Ben is given. It is only after tue lease has de- ! tern.-Tied by virtue of the statute that the tenant is j entitled to compens. tiou. A vendor i« England . fr-is certainly an equitable lien for unpaid purclmsej money, Put iu ibis Colony that lieu lias been ex pressiy taken away by statute. Had it not been taken away, tho present plaintiff is not, in tho position of an unpaid vendor, and I know of no other equity by which the lien claimed could be supported If the plaintiff wants compensation for the determination of his lea-e the Act points out how he can obtain it, and ho is confined to thcstauitor remedy. The plaintiff further claims to be tenant from year to year of the laud iu question It appears, in September last, that after the land was proclaimed a Hundred, and the lease of the plaintiff theiefore at an oud ns to such land, the plaintiff made a return as directed by section 137 of the Act of the stock usually depastured ou the land held by him under his lease, and ou the Ist of October, in pursuanco of section 138. paid tho amount of the assessment due iu respect of this stock to the Receiver of Laud Ri-veuue. I gather that the amount paid was the same as had been paid in the preceding year, before the Hundred had been prochurned. The return is to be made, and the assessment paid ou the number of stock usually depast o.'. J on tne laud held under lease : iu this case -iti.-reiore, ou the balance of the land included ii' j J .a 'ease a. ter deducting what had been proclaimed a ii'indrod. If tho plaintiff has made a mistake ! : i.. i rotumed a arger number of stock than an ( usually depastured ou tho unproclaimed balance \ iu-' l -»s passed too much, ho may possibly have a I !e/and, but such payment would iu no way alfee; i the land already proclaimed, as it could not ban 1 be ,u made in respect of it, but iu respect of the mi j I’i-oeiauaed balance only. Even had tho plain til j paid, and tho Waste Lauds Board received a .mu of nuniey expressly by way of rent for tho lam included iu the proclamation, I doubt if a teuaue from year to year could have been created The Waste Lauds Board can only create sue. estates and interests as they are authorised to m statute, and they have no power to create 1tenancy of this kind of land in a Hundred. I do not think this conclusion is inconsistent with Tin decision of the I’rivy Council iu Dn Hi more v. Dalliinore. It appears, therefore, that at tho time oi the commencement of this action the lease of tin plaintiff in the laud included iu the Heriot Hun i.red was at an oud, and that the only right he ban over tho laud was the right of pasturage under section 134 of the Act—a right liable to be determined at any moment, by the vtaste Lauds Board, by Uu publication of regulations for depasturing cattle in the Hundred. Since the sth of July, tho day the injunction was granted.au affidavit has been file, i by tho defendants, showing that regulations for depasturing cattle on the Heriot Hundred were madi by the vVaste Lauds Board, and approved by the Superintendent ou the 13th, and were published in the 1 Provincial Gazette’ ou the 14th July last A copy of tho ‘Gazette* is annexed to the affidavit It was contended by tho counsel for tho plaint hj. t.mt the fact of regulations having been madi should have been brought before the Court by pW and the ease of Wroe v. Clayton (10 Sim., 1851 iva,. cited iu support of tho contention. This case illustrates the old practice of the Court of Chancery in he case of common injunctions, which were granted until an answer was put iu. I urn not aware that tins -a as the practice with regard to special injuuetious, even before the Chancery Procedure Ac , 1552. By the existing practice, a motiou to dissolve mav be made ou affidavit before au answer is put in anil if uu answer has b en put iu, it is by the 59t hj section of tho Chancery Procedure Act regarded merely as an affidavit of tho defendant for the purpose of evidence on sue ; a motiou, and affidavits may bo received mid used in opposition to it. It appears, therefore, competent for a defendant, or too motion to dissolve, to rest his defence on afii davits solely, and to ra:se by them all matters of defence he might have raised by plea. JSo affi davits have been tiled in opposition to the affidavit m question, and it must therefore be taken for grant od i hat the regulations it refers to were dulv made. As tbo plaintiff immediately the regulat ons were urndo, ceased to have any interest whatever m tho land tho subject of this suit, the iniunotion must be uissolved. It will be, however, nec-s----sary, iu order to come to a decision ou iLe question ■f costs, to ascertain wuotlur the plaintiff was onru.c i io an injunction at The time tho iiijunctn.n WI..H i.-in!iiod. When the right of pasturage over the ;,w was s:.-h vested in him. It nppe irs b» the del ciaoumii that the Waste Lands Board had publicly m.nacd that the laud ui question would bo opened ■ , > !i ';.°™ k:ls ’ 3 onnua a Be. the 6th Jtny. il iC > ivt wb ob ipjreuf UHrc 1

my person desirous rtf trtiymg or leasing way apply A the Land Officer of t.lie district for a license to iccttp'y. The officer therefore fixes, by ft.lvtn-tisc nent, a day, iio't I“3S than fourteen nor more :hnn thirty <lava from the receipt of the applieslion, on which day, if n) objection has been odjrecl, and no reason is known to the District I'.Ticer why the application should not begnirtei, ui interim cert ifi.-ate is Issued. This ccrlifica.e i“ 3 bsoquent'y exchanged for ft license to occupy. I. objections are lodtrea, tbe Act provides a ffl'de o trying their validity. A duplicate of the interim certificate is forwarded to the \Vft?t-e Lands Board, nul the Board are at liberty, within thirty days from the date of the certificate, to refine trt issue a license to occupy. It. appears, therefore, that ft'ter tlio loud i- open for sale, even if no objection ' 8 raised to an application, a period of at lea-til ourtecß days must elqiso from the date of :.u applies! on uutil au interim certificate fe granted to the ipph" evut; and that, after such certificate has beet* granted, the Waste bands board has a Mirtner period of thirty nays within v-hidi it can elect refuse to grant a license to occupy, nn i can t ono void tho o-rUiioatc. Tlio issue of the interim co titlcatc (nvboviseithe applicant to take poa chsi n of tho land, but ho must give up possession i the Hoard wit hin thirty days refuses to issue a license. The position at tho date the injunction was granted was sain .lias follows Tho plaintiff had a right i f pasturage over the land, liable at any moment to be extinguished by the making of regulations by the defendants. No possible interference could take plan with the plaintiff'll right hy ;e» -on of tlio defendants’ action for fourteen days from the sth July. Hither before the expiration of the fourteen days ■>r at any time after, the defend infs could at on ti extinguish the right of the pla ii'iff by making regulations. If tlio defendants did not so extinguish the right of the plaintiff, the plaintiff had still a remedy at law against persons claiming nude' interim certificates or licenses to oc.-upy. As neither of these instruments is a record i would not be uocesnary for tne plaintiff to liavproceeded by ncirc/acids, but he could have proceeded against tho ho.dcrs as tres. aggers. The plaintiff’ had, .Moreover, a further remedy by appeal indor tho Waste Lands Board Appeal Act, 18U7 uk'ug all the circumstances into consideration, tho extreme tenuity of the plaintiff’s interest in the and, determinable as it was practically at the wid if the defendants—tho Waste Lands board -and hat oth. r legal remedies existed even if it wore uoi loterniiucd. I am clearly of opinion that the plain- ■ iff had no equity to come to this Court for an in junction, ana that the injunction must be dissolved with costs. MONSON V. MONBOK. Mis Honor delivered judgment in tin’s cm c. He said The questions to be decided in tho first instanc. ,n the suit were upon the construction ol the will •t Henry Monsoii. Ho then quoted from the will uid said that there,'was nothing in the context l i cm which it appears that the testator had used tic words in which ho has expressed himself in any ■lher than their stric. and primary sense, and the ■uosfc conclusive evidence, tneretoro, of the testai -r’s intention to limit the meaning of the words used would be inadmissible. GELLIBKAND V. ED AHDS. In tins case las Honor gave judgment <vi follows : This action is brought to compel a sale of certain leasehold interest in laud originally demised in i)c- , ember, 18G8, to . ue William Langmuir and tlio defendant in partnership as market-gardeners. Tho plaintiff is • utitled to a decree for a sale of the pn ■ i-crty, hut there should bo au inquiry ns to the value •>f the improvements of a permanent nature effected by tlie defendant, and the value of them should be . aid to the defendant out of the gross proceeds of he sale bt-foro the net proceeds are divided. As the defendant has failed, there is no reason why costs should not follow the event.