SUPREME COURT—IN BANCO.

New Zealand Times, Volume XXXI, Issue 4877, 8 November 1876, Page 3

SUPREME COURT—IN BANCO.

(Before his Honor the Chief Justice.) There was a banco sitting of the Supreme Court at 11 o’clock yesterday morning. STAPLES V. MCLEAN, This was a demurrer to the _ plaintiffs “declaration; - The argument was-adjourned on the application of Mr. Barton until the first • sitting in banco after the Court of Appeal. DJ RE THE WILL OF JAMES FIRTH, DECEASED. ; This was a petition under the Trustee Relief Act, that the Registrar might join in certain conveyances, the present trustee being out of the jurisdiction of the Court, and there being mo power to appoint new trustees contained . in the will. Messrs. Brandon, Travers, and Stafford appeared for the beneficiaries under the will. ■ , Mr. Brandon, In opening the case, said that under the will an annuity was grainted to the wife which was charged on. the estate. _ The devise of the remainder was to the children who were married. A sale had been effected, and it was proposed to make proper provision for the widow. Owing to the absence of the trustee a vesting order was required, ' His Honor said that they proposed to commit a breach of trust, and he did not see how the Court could help them under the Act. It was not the kind of case contemplated for ,» vesting order. He would adjourn the case until next sitting, the petition to be amended by a statement of the fact that there was no power of appointing new trustees contained in the will. UCBULTZE v.mator and corporation of WELLINGTON. Tide was a special case suggested by his Honor after the late trial on a rule being • applied for that the verdict of the jury might V be entered for tha defendants. I Mr, Brandon and Mr. Chapman appeared for the plaintiff, and Mr. Travers for the de? Mr. Travers raised a point as to the right to begin, but hla Honor decided that the right ,■ rested with the plaintiff. . Mr. Chapman then read the special case, consisting of pleadings ' and the details of - the case, which have been ’ said that ho would not contest ''the principle that whore a new right is given ty a statute the ordinary remedy le token

r away, but the plaintiff in the present action had been driven to the ordinary remedy by the action of the defendants. The Corporation had not fulfilled the obligations _ cast upon i them by ! the statute, and the plaintiff had consequently to avail himself of his common law remedy. He then, as illustrating this,_ read the correspondence which has been previously published in our columns. Under clause 6 the Corporation were to make full compensation, hut all claimants if residing within the province were to' make demand within six months. The obstruction complained of was a nuisance going on from day to day, and as a fresh claim for compensation arose every day this limitation would not run as against the plaintiff. The Lands Clauses Consolidation Act, 1863, was incorporated with the Wellington Waterworks Act, and the Corporation were bound under its provisions to give notice of their intention to take and to demand a statement of the estate of the persons interested. No notice of this kind had been given to the plaintiff, and the duty clearly lay with the defendants to make some offer. After the notice from the plaintiff to the defendants of his claim, it was their duty to issue a warrant to the Sheriff to call a jury; and. this, too, had not been done. It might be said that the notice should have been more formal, but default had been made by the defendants, and the statute was very clear that in the case of default ,the sum claimed might ■be recovered with costa by action. The neglect or refusal of the Corporation to call for a jury within the twenty-one days re-entitled the petitioner to his common law right of action, in addition to the power of issuing a mandamus.: He then cited L. and N. W. By. Co. v. Smith, 1 MoN. and G., p 216, and Adams v. London and Blackwall Ry. Co.; 2 McN. and G., p 118, as to the question of notice, and Regina v. Vestry of St. Luke’s, Chelsea, 6 Law rep, 28., p 572, as to the incorporation of the Land Clauses Act, and as showing that-all the provisions were to be read together. This view of the law was correct, and was supported by Hodges in his work on railways.; After a claim was made it was the duty of the promoters to take every other step— Ferrard v. Corporation of Bradford, 21 Sevan, : p 412. Section sof the New Zealand Land Clauses Act de Jt with the question of notice, and the petitioner having complied with its provisions, the promoters were bound to pro-' ceed, the words being directory. His Honor pointed out that if the plaintiff: had fulfilled the conditions 7 he should have; sued for the £SOOO claimed as a debt under the, statute. The present action was simply tres-! pass on the case. Mr. Brandon then quoted! Doe d’Armitage r, N. Staff. Ry. Co. ~ . His Honor expressed an opinion that thei action should have been for the full amount claimed, quoting from the precedents in Bullen and Leake on pleading. Mr. Brandon then proceeded to argue that the defendants should have pleaded iu abatement by demurring instead of pleading gene-' rally.. The general issue should simply cover the wrongful act, and not open up the whole question. There had been a complete submission to the jurisdiction of the Court, and the: defendants’ objection came too late. By their action the plaintiff had been remitted to his common law right, and this view was supported: by the judgment Of the Vice-Chancellor in; S. Staff. By. Co. v. Hall, 1 Simons, N.S., 373. . His Honor asked if Mr. Brandon was prepared with any authority bearing out hiaview that the action could be brought for the simple tort.

Mr. Brandon then cited' from Trustees of Emanuel Hospital v. Met. Dist. Ry. Co. 19 L. J. Rep., and Corrigal v. London and Blackwall By., referred to in 3 McN. and G., p. 171/ His Honor thought that the last case sup-; ported Mr. Travers’view. , Mr. Brandon, in conclusion, argued that the powers of the Corporation with regard to the, stream were conditional, and they had no "power to interfere with the right of a riparian proprietor, except under these conditions. , Mr. Travers, in reply, said that bis: learned friend had mistaken his course. It was for,the claimant in these oases to indicate whether he; wished to go to arbitration, or/,to take the verdict of, a jury. On failure by the Corporate call for a jury within twenty-one days, two courses were opened t > the plaintiff, provided the: notice given was sufficient, which, he did not think was the case, viz., either to issue a mandamus, or to commence an action.of debt for the whole amount claimed. All he would have to do then would be to prove that the claim ■: had been properly made, that f.’.ere had been default, and his interest. He would only quote one- case - (Byrne v. G. W. By, Co., 31' L. J., Q B. 101), which'was the report of an action for damages on account of the construction of an embankment, whereby the plaintiff’s premises were injured, owing to damp, &c. The defendants pleaded their statute. The replication was, that the embankment was wrongfully constructed, by being badly drained, &c., and it was held to be good; This was very important as showing that unless there 'was 1 some excess or negligence, the statute was a complete l bar. He then quoted from Lloyd, on compensation, as bearing out the theory of the defence. He would not produce any authorities as to notice, as his learned friend had not done so.

Mr. Brandon replied, quoting from Regina v. Metropolitan Commissioners of Sewers 1 Ellis and 8., p 702. and Cranwell v. Corporation of London (5 Ex. Law Rep., 284). His Honor reserved judgment. The Court adjourned until Friday, at .12 o’clock.