SUPREME COURT.

Globe, Volume IX, Issue 1252, 12 March 1878, Page 3

SUPREME COURT.

Monday, Mabch 11. [Before his Honor Mr Justice Johnston.] His Honor sat in Chambers and in banco at 11 a.in. IN CHAMBEES. FULLER Y THE QUEEN. In this case his Honor said he had carefully looked into authorities on the case, and he thought it would be as well if he took further time to consider. He intended to go to Dunedin on the following day to sit in banco there, and if the matter was pressing for judgment it might be given. As at present arranged Mr Justice Williams would hold the circuit sittings here. Mr Joynt said there was no pressing cause for judgment. Matter stands for further consideration. WASTE LANDS ACT AND CAVEAT AGAINST SECTION 29406. In this case a rule nisi had been granted calling upon the District Land Registrar to

show cause why a caveat entered by , him against section 29-406 should not be removed, Mr C. F. Barker had purchased this section and when wishing to register it under the Land Transfer Act the District Land Registrar entered a caveat, on the ground that a portion of the land had already been granted. After hearing counsel on both sides his Honor reserved judgment. He now delivered judgment to the effect that the caveat entered by the District Land Registrar against the section referred to should be removed. Order —Rule nisi made absolute without costs. IN THE MATTES OF THE WILL OF EEV. O,

NORTH, DECEASED. This was a case in which probate was asked for by the executor, who was in England. His Honor now delivered judgment to the effect that the executor could not, from 'the very nature of the affidavits, receive probate. The only way in which it could be done was for the executor to issue a fresh power of attorney, accompanied by an exemplification of the will. The attorney of the executor, who had obtained probate in England, had no power to obtain probate in New Zealand. He had consulted with his brother Judges, and they were unanimous in agreeing that the very nature of the case prevent ed the executor complying with one of the rules as to affidaviis. Order—Application refused. KERRY y FRASER. Mr G. Harper applied herein for a summons calling upon the defendant to render an account of the partnership matters, under a decree of the Court. His Honor made tho order as prayed. RE GEORGE JOHNSTON. Mr J. Struthers Williams applied on behalf of tho trustee herein for an order to examine certain witnesses touching tho dealings and estate of the debtor. Order made for summons to issue as prayed, the examination of witnesses to take place on 16th April next, RHODES AND ANOTHER V WADSWORTH. Mr Thomas applied for an order herein, fixing date of assessment of damages. Order made, assessment of damages to be heard before a jury at next circuit sittings at Timaru. RE RICHARD HOWE, DECEASED. Mr George Harper applied for probate herein to Mary Anne Rowe, as sole executrix of t he deceased. His Honor made the order os prayed. RE ANN LETFORU, DECEASED. Mr Thomas, for Mr Wynn Williams, applied for an order issuing probate to William Let ford as one of the executors. His Honor made the order, reserving leave to the other executor named to come in and apply. WILL OF R. B. PAUL, DECEASED. Mr George Harper applied for probate herein to Mr E. J. Lee, limited to the estates and credits of tho deceased in New Zealand. His Honor made the order, limiting the probate as provided under the will. RE WILLIAM DUNN, DECEASED. In this ca-e, on the application of Mr G. Harper, probate herein was granted to Ellen Dunn, wife of deceased, and executrix of the will. IN BANCO. NEWTON AND ANOTHER V CRAMOND. This was an argument on demurrer. Mr Garrick appeared in support of the demurrer. Mr George Harper appeared contra. In this case Messrs Ford and Newton were plaintiffs, and John Cramond defendant. The plaintiffs claimed to be occupiers of a certain section of the waste lands of the Crown at Timaru under a license issued to one William Smolt Robison of Christchurch by the Commissioners of the Waste Lands Board. This section was transferred to the plaintiffs by the said William Smolt Robison, through the Bank of New South Wales. The declaration of the plaintiffs went on to allege that the defendant was in unlawful occupation of a portion of the said section. The defendant demurred to the declaration upon the grounds that the license to occupy did not confer a legal title, that it had not been alleged upon what authority the said license had been issued, nor did it appear that tho plaintiffs had any title or interest in the parcel of land referred to. Mr Garrick submitted that the Court could not take any judicial notice of the title called the “license to occupy,” because his learned friend had not set out the authority from which it was derived. Whatever the title of the plaintiffs might be he was remitted to the statement of his title on the authority of a certain document. Now he contended that this was not set out properly so that judicial notice could betaken. Without reference to the Waste Lands Regulations the Court could not take judicial notice of the persons stated to be acting as Commissioners of the waste lands, nor unless the authority from which these gentlemen derived their power was set out, could the Court judicially take cognizance of their acts.

His Honor would ask Mr Garrick whether, knowing as they did the general scope of the waste land laws of the district, he did not think the allegation contained in a certain document called a license to occupy, given under the hands of certain gentlemen at a sitting of the Waste Lands Board, proved some title ? Was it not sufficient for the plaintiffs to say “ We hold under a certain document called a license to occupy which we set out, the Court having cognizance of the existence of such a Board and such a document ?” Mr Garrick submitted not. It was necessary for the plaintiffs to set out what particular Waste Lands Board was referred to, and what was the jurisdiction over which they exercised their powers. But nothing of this kind was done, and no allegation was made as to the sufficient authority possessed by the socalled Board to issue a license to occupy. All the plaintiffs did was to quote the license to occupy purporting to be signed by certain gentlemen. His Honor would ask Mr Garrick if the Commissioners hud power to grant licenses outside the regulations. Mr Garrick submitted not. They had to be bound under the regulations as to the issue of licenses to occupy. His Honor must recollect that the license was not absolute, and was revocable and open to amendment. If the survey was found to bo incorrect, the license could be altered by the Commissioners previous to the issue of the Crown grant. Of course, until survey had taken place, tiiere was no locus in quo upon which the purchaser could enter.

His Honor desired to see what was the status of the title under the regulations. Mr Garrick submitted that the plaintiffs were bound to shew the statutory powers which had been exercised by the gent lemen signing the license which they set up as their tit le. The plaintiff should have set. out the statute under which the Commissioners were authorised to deal with t he waste lands of the Crown within the Province of Canterbury. Nor was there anything to show that these were waste lands of the Crown. What should have been done was to sot out that, they were waste lands, and that under certain regulations the Commissioners, in pursuance of powers vested in them, had issued a license to occupy, which would then be a fair til le. It must be remembered that all the plaintiffs alleged was that they were entitled under the license to’occupy. They did not chum to be possessors in fee. Even supposing that the licensee possessed all the power that the plaintiffs claimed, until they had entered into possession, which was not alleged, they had no right to take steps for ejectment. As regarded the transfer from W. S. Robison through the Bank of N.S.W., he should contend that it was no evidence of title. The amended Land Transfer Act was passed in order to facilitate the registration of land which had not been Crown granted, and provided for the provisional registration of such land by the production of receipts tor purchase. He submitted under section 8 of this Act that the endorsement on the license to occupy did not come within the provisions of the Act as regarded receipts. As the plaintiffs had not alleged that the commissioner had power to issue the license, no receipt, as required by the Act, had been, he submitted, placed before the District Land Registrar. Ihe en * dorsements on the license to occupy ffy the District Land Registrar, which would, it the document were properly set out, and proved as a title, have had all the effect the plaintiffs

contended, could not now, he submitted, for the reasons he had urged be brought within the provisions of section 8 of the Act of 1871. Section 9 of the same Act only made such registrations indefeasible as against the person claiming through for or in trust for the original grantee. Hence it could not affect the defendant, who did not, nor was alleged to claim for or through the original grantee. He, therefore, submitted that none of the endorsements showed the title to the property alleged to be passed by them. They were not, under section 19 of the Act, accurate statements of the property intended to be transferred. Admitting for a moment that the license to occupy was a legal title, there was no legal evidence of the transfer from William Smolt Robison through the Bank of New South Wales to the plaintiffs. The endorsement could only derive its value as a title from the operation of the Land Transfer Act. He argued that the defendant not having any interest through the grantee, therefore the license or the endorsements were not indefeasible against the defendant. He might be rightfully in possession, because the pleading did not set out under what title the plaintiff had a right to come in and take possession of the land as against the defendant. He (Mr Garrick) submitted that the plaintiffs had done nothing under the Act or under the regulations to show that their title was indefeasible as against the defendant, and that, they were entitled to the possession. He might; say that the Waste Lands Board had sold this land twice over, which was the whole dispute. In support of his submission he would quote authorities: [Regina v. Macandrew, Court of Appeal cases.] The plaintiffs were bound to prove a number of things, and for the reasons ho had stated, he submitted that the declaration was bud.

Mr Harper, contra, submitted that the Court was bound to take judicial cognisance of the license to occupy, inasmuch as the Canterbury Waste Lands Act had been validated by an Act of tho Assembly in 1858. Therefore tho regulations had been made under special Acts and recognised by the Assembly and the regulations themselves were, he submitted, to be taken as though they were included in the Acts of the Assembly. The one in particular which created the Board of Commissioners, gave them power to hear applications for land and to issue licenses to occupy to the purchaser on payment of the purchase money in the form set forth by the plaintiffs, had been validated by the Act of 1858. He submitted, therefore, that it was not necessary to set forth the regulations under which the Commissioners issued a certain license. The license itself said that it was granted by the Commissioners, which he submitted was sufficient to prove it. if the case were to be decided upon this point, he would rather submit to the demurrer and amend his declaration, as the case was a most important one. In the case of Archer v But ler all the documents were set out in the pleading, and his Honor Mr Justice Richmond stated that the Court would be bound to take judicial cognizance of the regulations. His Honor said that he had not held that it was necessary to set out the whole of the regulations, &e., but that the plaintiffs’ declaration should have stated that the Commissioners had issued the license to occupy upon which the plaintiffs founded their title, pursuant to certain regulations for the sale, letting, and disposal of waste lands of the Crown within the Province of Canterbury. Mr Harper said that he would submit to the demurrer, and apply for leave to amend the declaration. Order Demurrer allowed with costs ; leave to amend the declaration given to plaintiffs. MTCINNON V LOUDEN. In this case there was an application for a ew trial set down, Mr Garrick now applied for an adjournment. His Honor could not grant an adjournment. A ride nisi for a new trial had been applied for, and this date fixed for the moving of it. The plaintiff, it would bo seen by this adjournment, would be kept out of the fruits of the verdict. Was Mr Garrick prepared now for a rule nisi ? Mr Garrick was not prepared to argue the rule, though he asked for it. His brief was singularly short. His Honor could not consent to an ad journment. Even had he been inclined to doubt the credibility of the plaintiff he did not think it was a case for a new trial. The rule would therefore be dismissed. Order —Rule nisi for new trial discharged. LOUGH (APPELLANT) V GREEN (RESPONDENT). Mr Thomas applied for the appellant to have the case stated by the Resident Magistrate at Timaru for appeal sent back for amendment. The case contained no statement of the grounds of the decision. The respondent’s solicitors had sent a telegram stating that they had no objection to the reference being made to the Resident Magistrate. His Honor pointed out that the Resident Magistrate had stated in his decision that the reason for his dismissal of the case was that it was not within the jurisdiction. Mr Thomas contended that the Resident Magistrate should have so worded his decision as to leave the onus of proof on the Town Clerk. His Honor could not see that the Resident Magistrate could put his reasons for dismissing the case in plainer language. Ho said in effect that there was not evidence sufficient to go on; hence tho case was dismissed. Mr Thomas said if his Honor was of opinion that tho points could be fairly argued on the case before tho Court they had no objection to the case as stated. All they wanted was to get the whole case before the Court. His Honor should refuse the application. Order : Application refused. In answer to his Honor, Mr Thomas said that he was not prepared to argue the special case on appeal. His instructions , were only to apply for tho remitting of the case back to the Resident Magistrate.

His Honor said that under these circum stances he should discharge tho appeal. Order made —Appeal discharged. The Court then rose.