SUPREME COURT.

Press, Volume XII, Issue 1618, 15 January 1868, Page 2

SUPREME COURT.

IN BANCO: Graham v L. Walkeh and Others. In this case which has stood over for judgment, Dr. Foster, instructed by Mr. Wjnn Williams, appeared for the defendants on Friday, the 10th instant, on a motion to dissolve the provisional injunction which had been obtained by the plaintiff, Mr. J. E. Graham, (as trustee in the estate of G. A. E. Ross, Esq.,) restraining the defendants, Messrs. Walker and CJogstoun, and Mr. deßourbel, from dealing with the runs known as Mount Four Peaks Station, and about 20,000 sheep running thereon. Messrs. Garrick and Cowlishaw appeared for the plaintiff, in opposition to the motion. It appeared by the plaintiff's declaration that on the 4th of October, 1867, Miss Poole filed a creditor's petition agaiDst Mr. Ross, and obtained a final order on the 15th November, by which plaintiff was appointed trustee ; that on the 6th of October, 1866, the defendants, being owners of the run and sheep, had leased the same to Mr. Boas by a deed, which was set out at length on the declaration, and occupied some twenty brief eheets. It will suffice here to say that the run and sheep were demised for ten years at a rent of £ , and that the provisions usual in well drawn deeds were, if anything, more fully set out than usual in the deed in question, along with some others which did not prove to be material to the present motion. The declaration further stated that the lease was in point of law a bill of sale, and had not been registered; and that the defendants had wrongfully resumed possession of the run on the 28th September, and detained the sheep, and claimed back the sheep or £20,000 damages. Upon certain affidavits filed in support of the injunction the Court had granted it some weeks back, and the defendants now moved on contra affidavits to have it dissolved. The defendants' affidavits had been again replied to by several others filed on the part of the plaintiff, and these last by one filed by Mr. deßourbel. Dγ; Foster in opening the case for the motion said, that however the Court disposed of it he hoped the occasion would be taken for insisting on a stricter practice respecting injunctions than had hitherto prevailed. In the whole course of his experience he had never seen more slovenly affidavits than those on which the injunction was granted. Their allegations were of the vaguest character, reported on hearsay evidence, and he believed he should satisfy the Court that they were chargeable with misrepresentation of the actual truth, and that the injunction ought to be dissolved on this ground only. His Honor would bear him out in saying that the declaration ought to be verified paragraph by paragraph and affidavite sworn to by the person best, qualified to inform the Court. The absence of Mr. Ross was excused only by saying " his medical advisers say" that he cannot attend to business; and while the whole case for the plaintiffs rested on the deed set out in the was not from one end of the affidavite to the other a tittle of evidence that any such deed was in existence.

Mr. Garrick: Yes, Mr. Cowlishaw's affidavit proves it. Dr. Foster : All Mr. Cowlishaw cays is that he believes the deed set out to bo a truo copy of the original. There is no proof that there is any original. In Taylor on Evidence it is laid down, as the unanimous rule of all tho equity Judges in England, after consideration, that "in all ex pa He applications, and tho same applies still more strongly in injunction cases, deeds must be proved by tho attesting witnesses. His Honour said no doubt tho affidavit was extremely loose, but he would not'stop the case, in the face of the important questions for argument, on this objection only. Dr. Foster would then go into the whole case. As well as he could collect from the affidavits, the case for the injunction rested on a series of propositions which he would now controvert. It was said on the other side that they claimed Mr. Ross's effects as trustee under his bankruptcy; that part of these effects consisted of his interest under this deed; and that we had wrongfully possessed ourselves of them. That we had acted wrongfully was contended on these grounds—first, that this being a lease of a chattel, we had no power of re-entry at common law; and secondly, that the power which the deed gave us was so informally drawn as to be useless. Tho defendants further contended that the deed was not really a lease at all, but in point of law was a bill of sale, and not being registered was void. These were the points for the plaintiff. The last point must have resulted from a confusion of ideas on the defendant's side, as if the contract under which Ross held was void, the effect was that the run and sheep remained the property of the defendants, and there was an end of the plaintiff's case. The other side could only get out of this dilemma by contending that a lease from A to B must be conetrued as a bill of sale from Bto A. Hβ would wait to hear that argument before replying to it. Assuming, till he heard the defendants' side, that (the deed, which purported to be a lease, created a term and reserved rent, teas a lease, the next question was as to the power of re-entry. The defendants' side relied on a passage in Woodfall's Landlord and Tenant, based partly on " Coke on Littleton," and partly on Bacon's Abridgement, which said that there would be no reversion in a lease of chattels ; and then they said further that a "run" was not a subject of demise, and that the Court of Appeal had so decided in " McLean v. the Attorney General." The Court of Appeal decided nothing of the sort, though it had been too hastily aesumed by counsel on both sides; but the Privy Council had expressly decided that the Crown licence to depasture sheep on a run was a lease : Falkland Island Comp. v. Beg. 11 L. Tn. c. p. 9. Mr. Garrick: I give up that point. Dr. Foster : Then, the question was reduced to the validity of the re-entry. The rule in law was that provisoes for re-entry were not to be construed strictly, like conditions ; but were to receive a fair and reasonable construction agreeable to the obvious intention of the parties. This was first held by Lord Tenterden in " Doe v. Elsam " Mood and Malk, p. 189, and since settled by "Doe v. Gladwin," 6. Q.B. 961, and " Croft v. Lumley, 5 Ell. and 81., p. 677. The leaning of the Court to go a long way in supporting these provisions against inartificialities of construction was shown in " Doe v Jepson," 3 B. and Ad, 402, " Doe v. Carew," 2, Q. B. 317, " Doe v Bowditch," 8, Q. B, 402. In this case the clause was bo far inartificial, that the words " all or any " might have been better read " all and every;" but both the words must have a meaning given them, and the other side blot out one. The fact was that it was the old form of the proviso, now generally superseded by .the neater and shorter precedents of modern conveyances. He had a collection of manuscript precedents which he had obtained from one of the soundest conveyancing Counsel in England; the editor of Roper's Legacies, Cruises Digest, &c, and with one exception all these precedents adopted the form now objected to. He had a right to believe, therefore, that the form had been in general use; and after carefully searching through the cases, he could not find one in which it was held bad. Believing then that his Honor would be able to enforce the power, the next queetion was as to the breaches of covenant. In the first place, there was a distinct covenant to use no other but the brand (1), while the mortgage to the Bank was in continuance. The plaintiffs own affidavits oho wed that other brands had been used, and Mr. deßourbel swore positively that this was done before the discharge of the mortgage. All that the other side produced in reply was a letter from Mr. Palmer, saying that he would be willling to release the property ao far as the Bank was concerned, but that ho must still hold the mortgage for a Mr. Fenwick, who it appeared also claimed it. They did not even add that the branding was after this letter, or that the mortgage was not even now in force. The next point was the bill of sale to Mr. John Hall. This was in direot breach of the cove- | nant not to incumber the sheep. All that the other side said was that this bill of sale was a fraudulent preference. So aiuoh the worse for us. But the fact was that the law as to fraudulent preference made a clear distinction in | cases where the debtor assigned only part of his effects, and a part too in this instance to which Mr. Hall had an obvious moral claim— " Johnson v. Feeenmeyer, 25 Beav. 85, S. C. 3De G and J. 13. Another breach was the dilapidations. There was no question as to this covenant, and Mr. deßourbel spoke distinctly to the breach. It was, however, to some extent matter of opinion, and Mr. Chas. Harper was produced to contradict us. It did not appear very clearly when Mr. Harper was there or how long, and he appeared to consider that property ought to be out of repair until it had been some time in use. But he must place Mr. Harper against Mr. Harper. He had letters written by that gentleman as late as September 2, about three weeks before we tool possession, stating that be had then an opportunity of visiting the property, and complaining in warm terms of its miserable condition as *o repair. [The learned counsel read several passages from the letters]. He must observe that when his learned friend obtained his consent to postpone the motion, this affidavit had not been shown him. Ifc wae put in as an answer to everything j not that he thought it answered much. His Honour : Mr. Harper's affidavit is very vague. Dr. Foster: But it ought to have been shown mc when I was asked to postpone my notice. Mr. Garnet: It was on my brief with the others.

Dr. Foster : I must say, neither Mr. Preeton nor I caw it, and wo both looked carefully through what was shown us. Of cours o I nccept my friend's assurance. Tlvve W!4 then tho chargo of mismanagement. His Honour : That is tho strongest enso of the whole. Dr. Foster : Yes; Mr. Roes had actually left tho station in July, and remained avray three months, mid had paid oiT his men matinger, and all his hands, for want of funds except four men and a boy. Fivo thousand sheep had died of scab and starvation. Xhis appeared by Billett's affidavit, who had been manager for all tho parties, and knew what the truth was if anybody did. The defendants' side again brought up Mr. Charles Harper who told the Court of his boing thoro, it did not appear exactly when or in what capacity with four experienced shepherds, to take care of 80,000 acres of country, and 2-4,000 sheep, during the worst weather ever known in Canterbury. We had also Mr. Wilkin to toll us that there was bad weather, which was no reason for Mr. Roas's going away; and Mr. D, Macfarlan, jun., whoso affidavit was filed be. fore it was sworn, and could not bo read [thii point was afterwards waived] ; and Mr. Gra. Imm, whoso visit to the run might, for auglit that appeared, have been twenty years ago; and then the plaintiff, who gave us tho gossip of tho country, but said nothing as to tho 5000 dead sheep, whose carcases were all on the run. There was no case in reply to this point; and he might bo content to rest his case upon it. Ho had however com. plained at the outeot of tho original affidavits oa which the injunction was granted, and ho would now take up that point. The first was Mr, Halkett, who began with an extract found among Mr. Ross's papers. Ifc had no date and it began with, " much of the above," &c. Where was the " above." We had not the whole case. Then there came a letter to Mr, Hall. Again no date. All wo know waa that these memorandums were obtained nnd perhaps drawn up at a time when Mr. Boss could not attend to business. The Court would not act on such things ac these. Thots came Mr. Graham. Were this gentleman the opposite of all we know him to be, it would be impossible to take any hold of hk affidavit. It did not appear to what deed or run ifc referred. It might all bo true, and refer to some wholly different transaction or some other run. Mr. Graham spoko nil from hearsay ; and in one case in which ho imputed an improper motive, no authority was produced. Dr. Foster then read the passage, and said he was sure the Court would think ho would have acted most improperly if ho had advised any notice to be taken of the concealed insinuators of this slander. Again Mr. Graham said that Mr. de Bourbel had refused to deliver up Mr. Hall's sheep. This refusal, it appeared by tho affidavit, was contained in letters, and those letters ought to have beon produced. They wero now produced in answer to our denial, and ifc appeared that the defendant had not only not refused, but had actually offered to deliver them on ia indemnity against Mr. Hall's claim. Hβ eaV mitfed this was a misrepresentation within the case of " Fuller ». Taylor," 32. L. J. eh. p, 377, and upon that ground alone, according to the authorities, he was entitled to have' the injunction dissolved. Mr. Garrick, in reply, insisted that th proper construction of the lease mado itsM/ of sale, and it was not registered. It wm a lease of chattels, and practically gave all tta lessors had in the sheep to Mr. Rose. The , defendant had no reversion in it, and had no right to have the same sheep returned. This was shown by the covenant, which stipulated for the return of sheep of the same oges n were delivered, which of course could not bs the same. Being a hill of eale it required registration, and for want of registration a!l the effects which at the time of bankruptcy were in the apparent possession of Mr. U<m passed to his trustees. It was true tlie defendants had taken possession, but they ought first to have brought an ejectment, and not having done so the apparent poeaessios must betaken to be in Mr. Ross at tho tto specified. By the interpretation cluuso ia ths Bills of Sale Registration Aot, many things which were not strictly bills of sale wore defined as euch for the purpots of the Aot. In this case Mr. Boas gave the - defendants under certain conditions a power to resume possession of the cheep. What was this but a bill of sale. The power of re-entry w&a is , sensible. It might mean that if Mr. Boss fa!* filled any one of the covenants then there wsJ to be no re-entry. Iα one of the cases ia which theie was a similar slip " Doo and Gob win, 4 M. & 8. 265,' ? and the word tliereinctfUt was written instead of thereinbefore, tha Court refused to interfere. With respect to thi breaches, the proviso against branding was orfj? to laet till the mortgage to Mr. Hall waa paid off, and Mr. Palmer's letter showed it was k> practically. T he bill of sale to Mr. Hall'did not comprise any of the sheep demised by t!tf deed, but were since purchased o* Mr. HaH himself, which was perfectly legal. The wl* of the wethers was also within the deed, $ Mr. Ross had till the Ist of January to pa*'ohaee others, and would have done so if $* defendant had not prevented him by rd-ettiff . As to the alleged bad state of repair, it sppeared by Mr. deßourbol's own affidavit *W the premises were in bad repair whea ®" mised, arid the real truth was that ft Ross had not had time to get them to order. There was no miamansgemesk Mr. Ross was not bound to be there alwsj 3 himself, and he had left a most efficient eulj , tituteinMr. Charles Harper. The weathef was dreadful, but all was done that could ¥• If his affidavits were vague they gavo all th« information they had. Mr. Cowlishaw, on the same side, contend* this was a bill of sale within the definition k " Miller & Collier." It contained very W powers, amounting practically to the abaotot*. ownership. All that the defendants I>* according to Woodfall, was a possibility 81 property in case of the sheep surviving. -l' fi power of re-entry amounted to a license w take possession within the Bills of Sale Act* Dr. Foster, in reply, said that the other «'*« had refused his challenge to say by whom &* lease had been given, if given as a bill of &<•' If it was given by the defendants it was voiw the property remains the defendants, bdu y plaintiffs had no case. The only BUgge^ 5 ; that defendant's side mado was that tho f$ m of ro-entry was a license to take possession J the Act. Why if that wero so, every lease # ! .New Zealand and in the mother countif* must be registered as a bill of sale. His Honour : The argument certaujly ecfl0!l to go that length.

Dr. Foster: The &et was the Act only applied to powers given ; ibis was not a power given by Mr. Rose, but a power reserved by the defendant. As to the idea of Mr. Ross being in apparent possession, after we had actually taken it, and he was no longer there, be really must say that the Court sat there to hear arguments, and ought not to have its time wasted with notions to which it was impossible to pay attention. His Honour deferred judgment.