SUPREME COURT.

Press, Volume LIV, Issue 9703, 15 April 1897, Page 3

SUPREME COURT.

SITTINGS IN BA*CO,

WKDSKSOAV, APKTL 14. (Bef-rc hi--. Honour Mr Justice Dcnn's'.cn.) His Honour sat in banco at-11 a.hi. ELL V HAUFKR. Mr Caygill applied herein for an order reversing and rescinding an order made by his Honour in Chambers on March sth. He explained that this was v, mere formal step in the direction of carrying the matter to the Court of Appeal, as it would not be safe to go direct to the Court of Appeal on a judgment in 'Chambers. Mr Hall, for defendant, said he wa_ quite content Avi'.h his Honour-.judgment. After some argument, His Hoaoiu- dismissed the application, with £1 Is costs. RE LAND TRANSFER ACT. Mi* Hall applied herein for an oi\"-?r varying the order ot 21st July, 1896. Learned counsel said that he appeared for the caveator, the Receiver in the estate of the | Midland Railway-Company. Mr Beswick appeared on behalf of tho Gas and Water Trust, the mortgagees, to : ask for the removal oi the caveat so far as I they were concerned. ! Mr Hall said notice had been given to the District Land Registrar to withdraw the caveat so far as the mortgagees wore concerned. It was agreed to take the applications together. After some argument, His Honour made the order as prayed varying the order, with £2 2s costs to mortgagee and disbursements. No order on the motion to remove the caveat. OARD'SKR AND OTHERS V BURNIP AKD O-lIKRS. Mi* Kippenberger mentioned this case with regard to the carrying out of the terms of his Honour at ; -Vw.i Priiis. Mr Russell for defendants. After some argument the matter stood over to h. mentioned again prior to his Honour's departure to Wellington, tlie parties to draft a minute of the order required by them. BANKS (.\PPK__AS_) V DRTSDALE (RESPONDKNi'). This was a case on appeal from the judgment of Captain Wray, S.M., in which Robert Lindsay "Banks was appellant and Robert Drysda'le respondent. The appellant, who was the informal!t in the Court below, laid an information against the respondent for having on 4th May, 1896, in the Mackenzie County, unlawfully used a traction engine, which, together with the weight carried thereon, weighed more than one and a half tons for each pair of wheels, on a road within the county on the 23rd September. Tlie S.M. dismissed the information, aud the informant appealed. It was contended on the hearing that the by-law under which the information was laid was invalid, on the grounds—(l) as being unreasonable ; (2) as not being general in its application ; (3) as being repugnant to the general law, in that it attempted to prohibit certain classes of vehicles which by law were entitled to use the highway from such use ; (4) in providing that licenses shall only be granted to such vehicles as are submitted to inspection as appear to the inspector to be safe and sufficient, and in respect of which the owner contracts with the Council to observe the by-laws ; (5) and not being certain in its euactment. The . S.M. stated, in giving his judgment, that the question was, whether the County\ Council (who had undoubtedly the power to make a by-law providing for a yearly license fee on any vehicle or machine engaged in heavy traffic), can by that by-; law exclude, on inspection, such vehicles or machines as are considered unsafe or insufficient, whether they are either for public or private use, and by not granting a license prevent their use. The S.M. on all the facts came to the determination that the County,. Gotipc'l had :i gone...beyond ; their, powers in extending to private traction engines what they could only apply to public vehicles, and that the by-law was bad and would not support the information, which would be dismissed. The question for the opinion of the Cdurt was whether this determination of the S.M. x was erroneous in point of law or not. Mr Joynt, with him Mr Tripp, for the appellant, Mr Kippenberger for the respondent.

Mr Joynt opened the case for appellant, and cited tfiersections, of the Act under which the County Council derived the power to make the by-laws referring to traction engines, and also several authorities on the various points raised in the case in sup- ! part of the appeal. He submitted that the whole by-law was good; The engine was used by the public in the threshing of grain, and had to pass along the road to the farms of those who employed it. This certainly took the engine out of the category of a private traction engine, as the words in the by-law." insufficient for public use," meant the use of the fraction engine in public, and if it were used off the grounds of the owner he submitted that it was a " public use." Reference was also made to the dictum of Baron Alderson in a patent case, in which the learned Judge said " public use is use in public." On the point of inspection he submitted that the County Council had the same power as a local body in reference to the inspection of cabs, and that the power was given to the County Council to impose conditions, which meant inspection, and the obtaining by the owner of a traction engine of a license. Mr Tripp having addressed the Court shortly, Mr Kippenberger addressed the Court. Mr Joynt replied, and his Honour took time to consider. The Court then rose.