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THE COURTS.—TO-DAY., Issue 7927, 7 June 1889
SUPREME COURT—IN CHAMBERS,
(Before His Honor Mr Justice Williams.)
Brown v. Sampson and another. — In this previously-heard ease—an action by the lessor of a coal mining lease against the lessee and his assignee for an account of royalties due for damages for breaches of covenant, and for possession by reason of those breaches His Honor now gave judgment, saying that there was not, in his opinion, sufficient identity between the claim of the plaintiff ag.-inst the defendant and that of the defendant against the company (the Equitable Investment Company) to justify the making of an order which the Court has a discretion to grant, and which, if it is to be of any avail to the defendant in the present case, must necessarily cause embarrassment in the conduct of the action by dividing up the issues raised by the pleadings. The summons would be dismissed, with costs. Re The Companies Act oe 1882 and the ‘Herald’ Newspaper Company. —ln this previously-heard case, a summons to settle claim of Robert Loftus Stanford, His Honor now gave judgment, saying that the passing of the liquidation resolution on October 4 did not stop the business of the company or the employment of Mr Stanford as editor. An offer was made on October 5 by one Cuttle for the property and assets as they j stood on October 1: some days after ' the offer was accepted, and Cuttle i then gave the liquidators the names I of Brown and Stanford as the persons to whom the assignment was to be made, which was accordingly done. Stanford, in his cross-examination, had said that he and Brown took over the business as a going concern—servants and everything—- ■ and the deed of assignment contains a covenant by them with the liquidators that they will, as and from October 1, pay all liabilities incurred in carrying on the business of winding-up and publishing the newspaper. It seemed clear, if the contract for service between Stanford and the company was a subsisting contract at the time of the assignment to Brown and Stanford, that the assignment exonerated both the company and Stanford from the further performance of the previous contract of service ; the subsequent contract, in fact, rendered impossible the further performance »*f the earlier contract. He (His Honor) did not think that tim contract of service was necessarily determ;. c-d by the liquidation resolution. That the contract was treated by the terms of the assignment as a subsisting contract was manifest. The assignment related back to October 1, before the contract of service could from any point of view have been determined, and provided that the purchasers should pay all liabilities from that (late. Among them, of course, would be Stanford’s salary for the interval between October 1 and the date of the assignment. He thought, therefore, that Stanford’s claim ought not to bo allowed. Re Edward Bowes Cargill and OTHERS AND TUB LAND TRANSFER Ad.— Summons to Cargill and others to deliver up certificate of title, volume 43, folio 166, for correction. —In this previously-heard case His Honor now gave judgment as fo lows : “ Certain land was granted by the Crown in 1864 to one Valpy, and it subsequently became vested in one Jeffreys, who in 1874 made an application to bring it under the Land Transfer Act, and obtained a certificate of title. The land comprised in the certificate was in 1878 transferred to Cargill and Anderson, who became registered proprietors, and remain so. It was alleged that by mistake tire certificate to Jeffreys included not only the land to which he was entitled, but also a piece which was not included in the grant to Valpy, and which the Crown had never disposed of. If Jeffreys had remained the registered proprietor there could be no question that the mistake could have been corrected, as the 4th subsection of section 56 expressly preserves the rights of persons deprived of land by a misdescription to recover from the registered proprietor, not being a transferee bona fide for value. Here, however, it was admitted that Cargill and Anderson were transferees for value and bona fide, and therefore had a private person suffered loss by the misdescription he would have been without a remedy. The question was whether the same rule applied where the land, erroneously’ included in the certificate, was land that had never been alienated or contracted to be alienated by the Crown. It seemed to him (the Judge) clear that it did not. By the Land Transfer Act 1870 Amendment Act, 1871, section 6, all Crown lands, and all lands set apart as roads or for public purposes, unalienated by the Crown, and not the subject of a subsisting contract with the Crown for alienation, should, if and when contracted to be alienated from the Crown in fee, be subjected to the provisions of the Act. By section 21 of the Act of 1870, as amended by section 7 of the Act of 1871, land theretofore alienated, or contracted to be alienated, by the Crown in fee may be brought under the provisions of the Act on application in the manner prescribed. The earlier Acts were repealed by the Act of 1885, and sections 10 and 17 in the later Act correspond to these two sections. By the later as by the earlier Act, land before it was alienated, or contracted to be alienated from the Crown in fee, was not subject to the provisions of the Act, and could not be brought under it on application. Apart from the general question how far the Act bound the Crown, it was clear that the terms of the Act were in effect equivalent to an express exemption from its operation of land not alienated or contracted to be alienated by the Crown. So far as such land was concerned, there was not only the want of the express statement which by the Interpretation Act, 1888, section 5, subsection S.
was required to bind the Crown, hut there was the clearest indication of intention that the Crown was 'not to be bound; in fact, in purporting to deal with such laud as under the Act the Registrar was acting entirely without jurisdiction. It was suggested that the piece of land in dispute was a road, and that on the creation of the borough of Caversham in 1877 the land was divested from the Crown, and vested in the Borough by virtue of the Municipal Corporations Act, 187 C. If, oa the true construction of the latter Act, r-■•••iih; tu ,i b.’,rough arc vccU-.-t n. tinborovqdi in fee, they were nevertheless soli jeef to an absolute right of user hy tlie public until the road war, closed or disposed of by the Corporation under its statutory powers, and sections 55 and 67 of the Land Transfer Act do not bar this right. Furthermore, if the issue of the original certificate to Jeffreys was entirely without jurisdiction so far as the land in dispute was concerned, the same defect would affect the subsequent transactions.” Reid v. Dey and Rain.— Summons by plaintiff for statement of accounts and list of all documents relating to case (Mr Sinclair). —Order accordingly by consent. Hunter v, Dickson.—Motif t. for leave to plaintiff to issue charging orderin'*! (Mr Sinclair). —Order accordingly. Be \\ illiam Grec.ory, deceased.—Motion in terms of petition filed (Mr Sim).—Referred to Registrar to inquire and report. Be John Gray, a bankrupt,—Motion for order closing bankruptcy and firing date of application for order of discharge (Mr Solomon).—Order accordingly; July 1 fixed. Be Jeremiah O’Keefe (Mr Gallaway).— Report herein confirmed and order made accordingly. Probate was granted in the following cases:— Be John Russell (Mr Barclay), James Miller Bryce (Mr Reid), Alexander Rennie (Mr Stewart), Joseph Hall (Mr Findlay). Be John Mortimer, deceased.— Motion for letters of administration (Mr Reid), — Order accordingly. Be William Garrick, deceased.—Motion for re-grant of administration (Mr Sim).— Order accordingly. SUPREME COURT.—IN BANCO. (Before His Honor Mr Justice Williams.) Waterston (appellant) v. Carswell (respondent).—Case on appeal from Resident Magistrate’s Court at Invercargill. Mr Haggitt appeared for appellant; Sir R. Stout for defendant. After argument, His Honor reserved judgment, RESIDENT MAGISTRATE’S COURT. (Before E. H. Carew, Esq., R.M.) Dr Teevan v. Galland.— Claim, LI Is, amount due for professional services rendered. Mr Gallaway appeared for the plaintiff.—Judgment was given for plaintiff for the amount claimed by default. Otago Harbor Board v. M. Joel.—Claim, L 4 10s, for wharfage dues.—Sir Robert Stout appeared for the plaintiffs; Mr Joel for the defendant. This case was adjourned till Monday to amend the statement of claim. Meenan v, Walshan.—Claim, LI 12s lOd, for goods supplied.—Judgment was given for plaintiff by default. CITY POLICE COURT. (Before Messrs J. Logan, W. Langlands, and J. P. Jones, Justices.) Drunkenness. A first offender was convicted and discharged. James MGonigal was fined 10s, in default forty-eight hours’ imprisonment.
Wandering Cattle. Allan Johns!»n was fined Is and costs for allowing a horse to wander; William George 5a and costs for a similar offence.
Assault.— James Jennings, charged with assaulting bis wife, admitted that he bad hit her with his open hand, but it was done under provocation, Complainant’s story was that defendant had hammered her head against the side of a sofa, and tried te smother her, telling her that she was ngly looking and that it was time she was dead. Two young women came in and prevented further violence. —Mrs Wilson gave evidence as to accused’s violent demeanor.—Defendant said that his wife neglected her duties and allowed a drunken woman to come to the house. One way and another be had the life of a dog.—The further hearing of the case was adjourned for a week to alio ,t of the production of further evidence.
THE COURTS.—TO-DAY., Issue 7927, 7 June 1889
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