SUPREME COURT.

Globe, Volume XXIV, Issue 2517, 3 May 1882, Page 3

SUPREME COURT.

Tuesday, May 2. (Before his Honor Mr Justice Williams.] IN BANCO. LAND TRANSFEE ACT —SB OATBAT LODGED BY BENJAMIN BDE. Return to rule nisi of December 21st, ISBI. This was a rule calling upon the District Land Registrar, and upon Denis Hoare and Alexander Rennie Hay, to show cause why a caveat lodged by Benjamin Ede on the 19th September, 1881, forbidding the registration of a transfer, should not be sustained, and why a memorandum of lease should not be registered. Mr Joynt took the preliminary objection that this was a matter which could not be entertained by the Court in its present form. The caveat was lodged by a lessee against the registration of a transfer by his lessor to another person. After the lease the lessor (Denis Hoare) sold the land to his client (Hay), and after the sale, but before the presentation of the lease for registration, the leasee lodged a caveat to prevent the registration of the transfer. There was nothing in the affidavits to show that the lease was ever presented for registration.' His contention was that the leasee could not come under a rule calling upon the District Land Registrar and the transferee of the fee simple to show cause why the caveat should not be sustained. He should have applied to the Registrar to register the lease, and if the Registrar refused, he might summon him under the 115th section of the Act. Or he might come to the Oourt in its ordinary equity jurisdiction and bring an action to have the transaction between the registered proprietor of the fee simple and his purchaser, the transferee, set aside as fraudulent, and so brought within the 119th section of the Act.

Mr Harper, who appeared in support of the rule, was heard in answer to the objection. Section 89 of the Act provided that “ every caveat lodged against a registered proprietor shall, unless an order to the contrary be made by the Supreme Court, be deemed to have lapsed on the expiration of fourteen days after notice given to the caveator that such registered proprietor has applied for the registration of any transfer or other dealings with such land, estate, or interest.” Now the question was, how was the order of the Court mentioned to bo obtained so that the caveat should not lapse ? He submitted that it was in the manner now sought to be adopted, and quoted from 5, Victorian Law Eeportg, p. 53, in ra Transfer of Land Statute Exjparte Brissel. His Honor sustained the objection, being of opinion that the Court, in the present proceedings, had no jurisdiction to go into the merits of the case.

Mr Harper applied that the caveat might bo extended until the 15th June next, for the purpose of enabling the parties to test their rights by proceedings in the Supreme Court. Hia Honor granted the application. Mr Joynt asked that the other side should be required to give an undertaking that they would prosecute the action or proceed by injunction within the time specified, and also to give security for the costs of the action and for damages. His Honor thought the same rule should be followed as if Edo had obtained an interlocutory injunction to restrain any dealing* with the land until the 15th June, and the order would be that the caveat should remain in force until the 15th June; that Kdo should give the usual undertaking as to damages as if he had obtained an injunction, and that the coats of the rule should bo re ' served until a further order,

LAND TRANSFER ACT. ] Ko memo of leeio Hoare and to! Thomas Flaherty. Return to rule nisi of I January I7th, 1882, Mr Stringer appeared in support of the rule, and Mr Joynt to oppose The facts were similar to those of the last case, and a I’.he order was made.

HB COMPENSATION CLAIM OF E. WILKIN. Return to rule nisi of February 13uh, 1882. lu thn matter the Compensation Court, sitting under the Publio Works Act to hear a claim by Robert Wilkin for compensation for damages sustained by the construction of certain Government railway works, made an award on the 17th September last to the effect that the claimant was not entitled to any compensation, and that he should pay the costs of the case. The amount of the costs was not then specified in the award. They were taxed and fixed at £469 12s 61. The respondent then issued a writ of execution against the claimant, who thereupon paid the amount over to the sheriff. The latter then applied to the Court for a rule calling upon the Minister for Public Works to show cause why the sum of £469 12s 6.1 should not be struck cut of the award, the writ of execution be set aside, and the money paid to the sheriff be restored to the said Robert Wilkin, and why the Minister for Publio Works should not pay the costa of this motion.

Mr Harper now moved to make the rule absolute, and Mr Joynt appeared to show cause.

Mr Harper contended that under the Public Works Act it was the duty of tho Compensation Court to have included in the award the amount of the costs at the time, or previous to their filing tho award in Court. Ha quoted sections 49, 50, and 60 of the Public Works Act, 1876. The award haying been made in blank there was no power to insert the amount afterwards. There was no doubt that the award was made before the costs were taxed, but the Compensation Court should have determined the amount of the costs either themselves or through the aid of the Registrar, and they should have inserted the amount in the award before it was signed. After the award was filed the Compensation Court was funetus officio, and had no power to deal with the question of costs. The claimant in this case was actuated by a desire to obtain his rights, and had no wish to take advantage of a slip. Mr Joynt showed cause. The claimant did wish apparently to taka advantage of a slip—for it was a slip, partly by Mr Justice Johnston, the president of the Compensation Court, and partly by his (Mr Joynt's) clerk. It bad always been the custom in Christchurch to file awards [in blank. He submitted that the document in this case did not come within tho category of awards, but was practically a judgment of Court, and like a judgment of tho Supreme Court might be rectified. The Compensation Court had certain statutory powers, end it was not functus officio until its functions had been completed, and they could not be completed while there was a blank in the award, and the amount of the costs were undetermined.

Mr Harper replied, and his Honor reserved his decision. ADJOURNED. Tho following motions were adjourned until next Court day:—ln the matter of a plaint in the Resident Magistrate’s Court, Temuka, between Michael Quinn, plaintiff, and James Roddick, defendant. Return to rule nisi of April 21st, 1832. In the matter of a plaint in the Resident Magistrate’s Court, Timaru, between James Bruce, plaintiff, and Robert Mackay, defendant. Return to rule nisi of April 21st, 1832. The Court then adjourned until this morning at eleven o’clock. Wednesday, May 3. JOHNSON V m’ANULTY. This case was heard on the previous Court day, and his Honor now gave judgment. He found that MoAnulty had a right to dispose of tho crop ; that Mendelsohn, who purchased it, received notice from the administratrix of the deceased partner not to deal with McAnulty ; but that notice could not override the legal right in law and equity which McAnulty had to dispose of tho property, subject to an account. That being so, Mendelsohn was an innocent purchaser, and he could not to asked to givo a greater sum for the crop than he had done, namely, 3j per bushel. Further than that, having done nothing wrong, he was brought into Court in a partnership suit, and was entitled to have his costs out of the partnership estate. The order of the Court would be made accordingly.

DKBTOBB AND OBHDITOGB ACT AND BB JAMBS WOOD, BBNIOB. Return to summons (by way of appeal) of March 31st, 1882. This was an appeal by the Bank of New Zealand against a decision of the trustees in the eetate of James Wood, sen., rejecting a proof of the Bank upon a promissory note for the sum of £350. The proof was rejected on the ground that the Bank had not given credit for two dividends which had been received by them in a certain other proof, and because they refused to give credit for the value of a mortgage security which the trustees alleged they were entitled to deduct from the debt. Mr Garrick appeared for the Bank of New Zealand, and Mr Stringer for the trustees. Learned counsel having been heard on both sides, his Honor reserved his decision. thb land act, 1877. In the matter of the Land Act, 1877, and an appeal of John Cathoart Wason from a decision of the Canterbury Land Board. For argument of ease on appeal. Mr Harper for the appellant, and Mr J. C. Martin for the respondents. Mr Harper said this was a case stated under the Land Act, 1877, for the opinion of the Court. On the 12th January the appellant made an application to the respondents under the Forest Trees Planting Encouragement Act for a free grant of land containing 300 acres. He had previously obtained from the Waste Lands Board a grant of 250 acres under the provisions of the same Act. The respondents refused the application for the 300 acres on the ground that it was not intended that the same person should obtain more than 250 acres. The 3rd section of the Forest Trees Planting Encouragement Act provided that every person planting trees should be entitled to receive for every acre a free grant of two acres of land. Section 5 said that “no grant shall be issued under the provisions of this Act for leas than twenty aorea nor more than 250 acres.” His contention was that this limitation was only as to the quantity in one block —that the one block should not contain more than 250 acres. The very object of the Act, which was to encourage the planting of forest trees, would be frustrated if a man could only plant 230 acres —if having once got 250 acres bo received no encouragement to plant any more. His Honor—What is the object of the limitation ? Mr Harper said no doubt it was to prevent the acquisition of large holdings. The State in giving away land possibly did not wish to allow largo estates to be created. He might say that the present proceedings wore of a friendly character, the objaot being to obtain the opinion of the Co u’t on a question which was frequently nisod. The practice of the Board hitherto had been not to limit the application of the Act, as was done in regard to Mr Wason’s application. Mr Martin submitted that the fifth section of the Act should be interpreted to mean that not more than one grant should be issued to any one person. If that was not its meaning what could have been the object in inserting it in the Act ? Because if a man could obtain half a dozen grants, of 250 acres etch, what was there to prevent his obtaining, the six sections together, and so getting possession of the large block. His Honor reserved his decision.