SUPREME COURT.

Nelson Examiner and New Zealand Chronicle, Volume XVIII, Issue 59, 23 July 1859, Page 2

SUPREME COURT.

Satubdat, July 16. [Before Mr. Judge Johnston.] The Crier declared the Court to be opened for sittings in banco.

SNOW V. LOCKHABT. The Pboyincial Solicitor mof ed for a rule nisi, for an attachment against Ninian Tertius Lockhart. His Honoub sud the application not having been made earlier, he should like to grant Lockhart an opportunity of showing cause against the rule before the sittings of the Court concluded. Later in Die day, Mr. Kingdon, on behalf of Mr. Lockhart, submitted to the rule being made absolute.

The Court then Bat for the despatch of the Civil business adjourned from the previous day.

THE EXECUTOBS OF SIBBALD V. LOCKHABT. No further evidence was produced in this case. The Counsel having addressed the Jury on behalf of their respective clients, the Jury retired, and, after a short absence, returned with a verdict for plain tiff of £214 ss. sd. His Honoub suggeited that this was not a conclusion of the affair. He would suggest that they submit it to arbitration ; for in cases of this sort ifc was almost impossible for people to know their own right. This concluded the Cml business before the Court, the sittings of which were then declared to be at an end.

His Honour then again sat in banco. GIBBS AND MOOBE V. BOBINSON. Mr. Tbavjgbs moved for a rule calling upon John Perry Robinson, Superintendent of the Province of Nelson, to show cause why a writ of mandamus should not issue directed to John Perry Robinson, Superintendent of the Province of Nelson, commanding him to determine the amount of land to be leased to William Gibbs and Daniel Moore, in accordance with a certain application delivered to Alfred Domett, Commissioner of Crown Lands for the said province, on the 11th July, 1859. Mr. Tbavees referred his Honour to a copy of the motion which had been annexed to the affidavits for his Honour's convenience. His Honour said he observed that this application was against the Superintendent ; if Mr. Travers were, therefore, relying upon Provincial law 9, he presumed they were set forth in the affidavits. Mr. Tbayebs said they were, in so far as they were material for the purpose of this application, which was made to compel the performance of a duty imposed by the Nelson Land Regulations, under the provisions of the Waste Lands Act, 1854, which regu* lations were published in f.he Government Gazette. His Honoub asked if Mr. Travers contended that he was bound to take judicial notice of Provincial laws and of the Government Gazette. Mr. Tbavebß said he apprehended that his Honour was bound to do so. The Provincial Councils were legislative bodies, created by the same Act which created the General Assembly, and they held a coordinate power with the latter in framing laws for the government of the Provinces. Hiß Honoub asked to be shown how he was to be bound by the Government Gazette. He raised these points, not merely upon technical considerations, but with a view that some settled course might be arrived at, as he found that, in practice, many points of the kind had been assumed, which in his opinion were not entitled to any weight, and the soaner this was known the better. Mr. Tbayebs asked if his Honour held that the Court was not bound to take judicial cognizance of the Provincial laws ? His Honoub: Decidedly, nntil they are duly proved; The Judges of the Bupreme Court were not Judges for the Provinces ; and, without disrespect, he would suggest that the difference between the laws of the General and Provincial Councils was as great as that between the laws of the General Assembly and the bylaws of a corporation. It would be foolish to suppose that any Judge would take judicial notice of all the laws of all the Provinces. Mr. Tbavbbs said this was an application for a rule to show cause why a mandamus should not issue against the Superintendent of this Province, com* manding him to do an act which he is directed to do by the Land Regulations of the Province. The provisions of the Land Regulations were imperative ; for, in the first place, by the 38th olause it is declared that any applicant becomes, of right, entitled to a lease of some land, but the quantity of land to be included in the lease was to be ascertained in the manner directed 'by the 39th section, which declared that the amount of lsnd to be leased should be determined by the Su^ perintendent, acting with the advice o* "his'TSeoufive 1"*1 "* Council and the Land Commissioner/but in no case to exceed two square miles. This section, it would be seen, was also imperative ; a duty being imposed upon the Superintendent, and it restetjf with him to obtain the advice of the Executive Council and the Land Commissioner, in performing that duty ; it not being within the power of the applicant to compel the Ea> eoutive Council and Lund Commissioner to- give tb« advice required. ■ 3> i:.,.

His Honoue asked Mr. Travers if he had shown that he had done all that was required on the part of the applicant under these regulations ? Mr. Tbavebs said he had, by the affidavits. His Honoub said he should like also to know whether the Commissioner of Crown Lands was an officer of the General or of the Provincial Government? Mr. Tbavebs said he was an officer of the General Government, appointed by the Governor, under the Crown Lands Ordinance, to act within a particular province, and he being the proper person to whom applications for leases were to be made under the Waste Lands Regulations, the application in question was made to him. His Honoub said Mr. Travers must trace his application to the Superintendent, or how could he be connected with the present motion. Mr. Tbavebs said tho affidavit did this ; for the letter containing the refusal was from the Provincial Secretary, and stated in express terms that the application for the lease had been referred by the Land Commissioner to the Superintendent; ; moreover, it added that he (the Provincial Secretary) wrote by the direction of tlie Superintendent. An applicant could not obtain his lease until the amount of land to be leased had been determined by the Superintendent, who so far had a mere naked duty to perform. The lease mu9t ultimately be issued in the same manner as a Crown grant. His Honouh said, but suppose the Superintendent determined the amount of land to be 0 acres, 0 roods, 0 perches, in fact to bo none, what then would be the consequence ? Mr. Tbavebs said he apprehended that the Superintendent (looking to the wording of the clause on which he relied, and to its context) was bound to certify to some amount of land, however small that amount might be. The act stated that the amount of land to be leased was not to exceed a given quantity, and must therefore be held to mean some land. The words " amount of land to be leased " would not be satisfied by fixing no amount at ali. His Honour said the question raised was an important one, if Mr. Travers contended that every applicant for land for mining purposes was entitled to a certificate from the Superintendent, fixing some quantity of land to be leased. Mr. Tbavees said this was so. He did contend that the Superintendent was so bound ; for it was undoubtedly the intention of the Legislature, in framing the Regulations, to give extreme facilities for the development of the mineral resources of the province. His Honotte asked if he rightly understood the application to be made because the Superintendent was considered as bound to fix a certain amount of land, upon application being made for a mineral lease ? For instance, the Superintendent might say three feet by two feet. Mr. Tbavebs said that was jusfc his point : he contended that the Superintendent could not set up any opinion of the Government as to the expediency or otherwise of granting gold mining leases as a defence to such demand, he being bound to certify under the Land Regulations. His Honoue said that was a bold argument. Mr. Tbavebs contended that he was right nevertheless, for before an application for the lease itself could be successfully preferred against the Government, the applicant must show that the Superintendent had fixed the amount of land to be included in the lease. His Honoub asked if the Governor was empowered to grant such leases ? Mr. Tbavees said he was by his Commission. Hia Honour said he had the Commission with him, and on referring to it said he did not find that the Waste Lands Act, 1854, had withdrawn from the Governor the power of executing grants, leases, &c. His Honour then asked if he rightly understood Mr. Travers to contend that the Superintendent was compelled to do an act the non-performance of which caused the present motion. Mr. Tbavebs : Decidedly so, for the letter sent to his clients contained the refusal of the Superintendent to fix the amount of land sought to be leased. His Honoue Baid the letter was not a refusal to determine the amount of land ; it was simply a refusal to grant a lease. Mr. Tbavebs said the Superintendent had not been asked to grant a lease ; he wbb simply required to state the amount to be included in the lease lor which they applied to the Commissioner of Crown Lands ; the letter refused to certify constructively, though not in positive terms, on the grounds then stated. His Honoub said he supposed then that Mr. Travers relied upon the letter as a specific application to determine the amount of land to be leased. j

Mr. Tbavebs said the letter, after being referred to tho Superintendent by the Commissioner, amounted to such a request, and he maintained that a grievance had been inflicted upon the applicants by the Superintendent's refusal to do his duty ; for until that duty was performed they were not in a position to obtain a mandamus against the Governor to compel Mm to issue the lease. He apprehended, too, looking at the matter in another light, that iiv a question of aueh importance to the province the Superintendent ought to be quite as anxious as his (M. Travers's) clients to have the point at issue determined. This refusal to perform a manifest duty prevented the development of the mineral resources of the province, and if the Superintendent entertained doubts of his power to do that which wonld be beneficial to the community, he ought not to hesitate in assisting to obtain a judical opinion on the point. His Honour said these latter arguments would not affect his decision. He should, however, grant a rule nisi, and as the subject seemed one of very great importance, and ought to be speedily determined, he would be glad if some arrangement could be made by the Superintendent's advisers to have the question argued immediately before him, and if that could be done he would willingly submit to personal inconvenience' and remain in Nelson to decide it. If this could not be done, however, he would suggest that a special case should be drawn, in which all the* facts should be fairly admitted and stated, and a day fixed for the argument at Wellington. Mr. Teavees said he was quite willing and prepared to adopt either of the courses suggested by his Honour.

The Provincial Solicitoe, who was present during the application, said he was not then prepared to state the course he would pursue, but would .consult his colleagues and inform His Honour in the course of the day.

It was ultimately agreed that the rule should be returnable at the first sittings of the Court in Banco at Wellington.

Erparte dampiee.

Mr. Tbavees moved for a mandamus against the Commissioner of Crown Lands, to compel the grant to him of an occupation license, under the Waste Lands Regulations, of a run in the Hurunui district, for which he had applied in the year 1857, and was still the claimant, having complied with the Regulations, in all respects. It appeared that, in the latter part of the previous year, 1856, a Mr. Morrison had made application for a run in the same district, by a •wide description, not identical with the country, of which Mr. Damper had given specific natural boundaries ; but Mr. Morrison had obtained a decision on the 20fch of May following, the boundaries to be defined by a plan and survey, to be lodged by him with j the Commissioner, within nine months from that date, i or the country would be declared open to other applicants, according to the, regulations. Mr. Morrison failed to comply with that condition, and, on the 3rd of June, 1858, the Commissioner declared these lands open to other applicants, of which the Commissioner made a note at the foot of his application. Mr. Dampier, [afc that time, stood as next applicant, if the country for which he had applied were the same as that claimed by Mr. Morrison ; but this did not ap£ear, no survey of the country applied for by Mr. [orrison ever having been rendered by him. On the sth of June, two days after Mr. Morrison's default had been declared, a Mr. M'Rae put in' an application for the country previously applied for by Mr. Morrison. On'tlio 25th of March, 1859, after several applications by Mr. Dampier for the Commissioner's decision, the Commissioner made decisions in favour bflth of Mr. Dampier and Mr. M'Rae, which were published cJn the 6th May following; the deoision in fttf our of Mr. Dampier being professedly limited by the Commissioner to such lands as had not been ap-

plied for by Mr. Morrison, the authority for which Mr. Dampier denied. Mr. Dampier had since delivered in a plan and survey of the run applied for by him, and having complied with all the requisitions of the Regulations, now demanded his license, whether the lands might eventually turn out to be the same or not.

The Court granted a rule nisi, observing that by the rule cut prior et tempore potior est jure, a case was established ; adding that if Morrison were before Dampier, Dampier was before M'Rae. Cause to be shown at Wellington, at the first sittings in Banco after Ist September next.

[There were several other trifling cases in Banco, after having heard which, the Judge declared the sitting of the Court to be at end.]