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SUPREME COURT.

SITTINGS IN CHAMBERS AND IN BANCO. Tuesday, April 16. TBefore his Honor Mr Justice Williams.J His Honor sat ia chambers and banco at. 11 a.m. In Chambers. WILL OE CHARLES PADDOCK, DECEASED. On the application of Mr Fereday, leave was given to register copy of will herein. RE JOHN SMITH, DECEASED. Mr George Harper applied for leuve to issue probate to John Gillet, one of the executors herein, reserving leave to the other. His Honor made the order. RE BURRELL PARKERSON, DECEASED. On the application of Mr Garrick, his Honor made an order granting probate herein to Edward Farkerson, reserving leave to the others to come in. His Honor made the order. _RB J. W. EARLE, DECEASED. Mr Fewiay applied herein fur probate to one of the exeeuiW;?, reserving eave to the others to come in. His Honor made t&o order as prayed. KE GEORGE JOHNSTON. Mr J. S. Williams applied m this case to examine the bankrupt and two other witnesses. The bankrupt was examined at some length respecting his transactions with regard to some horses handed over to a creditor just before filing, aud also as to the of a section of land at Ashburton, sold by bankrupt to his brother. In answer to a question, as to the existence of a bill of sale over bis furniture, the baukrapt efcated that at the time the bid tf ante was given uoi w article of iraiuv WfiffZ*

also examined, touching the return by the bankrupt to him of some horses just before his filing. The examination then closed.

In Banco. land transfer act and re application of edward knapman. In this cahe a rule nisi had been issued to the District Land Registrar, requiring him to show cause why he should not issue to Edward Knapman a certificate of title of town section 595. Dr. Foster appeared to show cause to the rule, and on behalf of the District .Land Registrar. Mr Joynt, in support of the rule and for the application. Dr. Foster opened hiß case by reading a statement of the case, from which it appeared that the applicant being seized in fee simple of town section 595, made a marriage settlement upon his wife of it, vesting it in certain trustees. Mrs Knapman died in August last, there being no issue, and the applicant now claimed to be registered as owner of the fee simple of the section as aforesaid, there being no issue, and the section, therefore, under the marriage settlement reverting to the applicant. The settle ment provided that after the death of Mrs Knapman the section should revert to the applicant, his heirß, and assigns. The applicant, therefore, claimed to be registered as the owner of the tee simple the Land Transfer Act The Dintrict Land Registrar, however, declined to do this on the ground that the use of the words " and assigns " only gave the applicant a life estate in the property, with a remainder in fee to the heirs, and not a fee simple as claimed. Hence the applicant obtained a rule nisi, which was served on the Land Registrar calling upon him to show cause why he should not issue a certificate of title in fee simple to the applicant as requested. The rule now came on for argument

Dr. Foster showed cause and read an opinion from Mr Whitaker, the late Attorney-General, advising that the applicant should be registered as the owner in fee simple, but still thinking that it would be as well if the opinion of the Supreme Court were taken on the law paints which were capable of being used. The learned counsel contended that the words " and assigns" were surplusage, and that, therefore, all the estate devised by Mr Knapman was an estate for life, with remainder to his heirs. [Cases cited in support—l Jarman on Wills, p. 483; re Walton's Estate, 25 L.J., ch. 569.] Mr Joynt, contra, submitted that whilst not contending that the applicant had an estate, he had a power of assignment which would bring him under the sub-section of the 21st section of the Land Transfer Act, 1870, and thus enabled him to be registered as owner in fee simple. He also contended that the authorities went to prove that the limitations in the settlement gave a power of appointment. For this reason he submitted that the applicant had a right of appointment to the fee simple. [Cases cited in support Quested v Mitchell, 24 L. J., ch. 722; Tnpner demise Peckham v Merlott, Wille», 179 ; Boothman v Smith, L. R., 6 Ex. 291.] He did not know whether, as Mr Knapman had made his application in his own name instead of an appointee, it would not be necessary to amend it. His Honor pointed out that Mr Knapman could appoint himself. He would carefully consider the caics brought forward by Mr Jojnt, and would endeavour to give ade.ision at an early date. Case stands for consideration. RE GRACE ELLIOTT HUNT, AN INFANT. In this case, which was a return to a rule nisi, calling on John Hunt to show cause why a writ of habeas should not issue for him to produce the body of the infant, Mr G. Harper applied for an enlargement of the rule. His Honor granted the requestOrdei: Return to rule nisi enlarged without any date fixed. RE WII STEVENS, A DEBTOR. In this case, on the application of Mr Bam ford, his Honor made an order enlarging the return of the summons to April 26th. BASSINGTHWAITE V. MANDEVILLE AND RANGIORA ROAD BOARD. This was a demurrer to the plaintiff's replication. Mr Joynt in support of the demurrer and for the defendant. Mr G. Harper contra and for the plaintiff. The plaintiff in this case brought an action for trespass against the defendants fjr having ente<ed upon the land of the pkintiff and cut a ditch thereon to drain certain water without reasonable cause. Mr Joynt in support of the demurrer, sub mitted that the replication was no answer to the pk'a of defendant that it was necessary to enter upon the land of the plaintiff and cut the ditch, as it was admitted by the replication that the drain was necessary to be cut to enable the defendants to make a road, and also admitted the right of defendants as a Road Board to enter on the land of the plaintiff, and to make such drain. The only objection alleged in the replication of the plaintiff, was tbat the defendants had not connected the drain with the road. He should submit, under the Public Works Act, 1870, the plea showed that defendants had the statutory power, and that the demurrer must be allowed. [Authority cited, Public Works Act, 1870, sec. 79 and 87.] Mr Harper, contra, submitted that the replication ffas a good answer to the plea. The Hoard rested their whole defence on the allegation that it was necessary for them as a Road Board to enter on the land of the plaintiff, and to cut a drain to take the water off the road, and he should contend that the statutory powers conferred by the Public Works Act were given to draiu water from the road, so that the defendants were bound to connect with the road. The replication was a good answer to the plea because the only right of entry in the defendants wa» throufi h the Public Works Act. and this to drain the road. Now the drain cut by defendant through plaintiff's land was simply at' open ditch, having at the end of it a piece of land dividing it from the road, so that he submitted this was not a drain within the meaning of the Act giving the statutory powers to enter upon plaintiff's land. If the ditch had been continued up to the road then probably the plaintiff would have had nothing to say, but the drain mutt be connected with the road to come within the meaning of the Act. It would be a matter of fact for the jury to decide whether on jthe evidence the drain thus cut was a drain necessary for the maiutenance of the road. [Authority cited—Hoskyn v Philips, 3 Exch., 268.] After hearing Mr Harper at some length, His Honor said he thought the demurrer must be upheld. Mr Harpei? Baid if his Honor held that the demurrer was bad in law he should contend that the proper course to have been pursued would have been to have struck out the replication and not forced them to take this expensive course His Honor delivered judgment. The replication wac yicious on the ground that it contained matters of evidence, and was al j o an argumentative traverse. But though this was so it was a matter of law that a replication was not demurrable, even though it were vicious as stated, so long as it was a good answer in law to the pleas, and must follow as a conclusion of law from the facts that the previous pleading was answered by the pleading in which the facts were set out. Now the rep ication did not do this, and for this reason he considered it was bad. It would have been quite sufficient for the plaintiff to have given a general denial in his replication. The demurrer would be allowed with costs.

JOHNBtGN y. OXFORD EOAD BOARD. This was an action iu which the plaintiff sued the defendants for having by making ftf a drain damaged the plaintiff's land. The defendant now demurred to the declaration of the plaintiff. Mr Joynt in support of the demurrer and tor the defendant. Mr George Hai'per eo»£ra and for the plaintiff. The contention of Mr Joynt in support of the demurrer was that the plaintiff, in alleging that the Road Board had control of the roads, drains, &c, in the district was wrong as a matter of law. He submitted that the Road Board had not, in fact, the control of the roads, drains, &c, in the district, which are under the control of the County Council. Besides which, aßsuming that the Road Board had the control, his I*tt*ned friend had not set out the descnption of the Road Board with sufficient distinctcess, inasmuch as he had not alleged that it was the Oxford Road Board which had cpntrol.but the Road Board, which might mean aw Road Board. As to the drains being vested in the Counties Council, he would quote the lbbth section of the Counties Act, by which it would be seen that every drain coming within the dennition of a public drain was vested in the County Council. [Section 166 of Counties Act quoked.J It had been suggested by his Honor that probably a County Council did not exist in the district If that was so, then his learned friend should "nave this. Besides, under the 11th section of the Counts Act ]t was provided that unless the County Counql itself did an act to prevent the coming into operation ot tne County Act, it should be deemed to be w operation. [Section 11 Counties Act quoted, j He submitted, therefore, that the paragraphs in the declaration demurred to must be struck out, and the demurrer allowed. . Mr George Harper contra submitted that too declaration was a good one, as paragraphs demurred to were »ot matenal. Besides there was enough left in to make a good cause of action. Under thei 79thl udj»M Lotions of the. Public Works Act, the. Road

the district vested in them. [Sections 78 and 81 quoted.] If sufficient remained in the declaration as alleged by him to succeed in the action the allegations were material, and the defendants would not be entitled to the costs of the demurrer. [Wyatt v Harrison, and Reiudell v SchelL] Another point was that there was no necessity to describe the defendants as the Road Board ; it would be sufficient to describe them as defendants. His Honor took time to consider. NEWTON AND OTHERS V. CRAMOND. This was an argument on demurrer by the defendant to the plaintiff's declaration. In this case Messrs Ford and Newton were plaintiffs, and John Cramond defendant. The plaintiffs claimed to be occupiers of a certain section of the waste lauds of the Crown at Timarn under a license issued to one William Smolt Robison of Christchurch by the Commissioners of the Waste Lands Board. '1 his section was transferred to the plaintiffs by the said William Smolt Kobison, through theßiv.kof New f"outh Wales. Tho declaration of the plaintiffs went on to allege that the defendant was in unlawful occupation of a portion of the said section. Dr. Fobter.in support of the demurrer and for the defendants. JMr George Harper contra, and for the plaintiff. Dr. Foster contended that the title of tho plaintiffs was only an equitable one, and the right of ejectment only vested in a legal title. [ wicher v Wicher, 7 B. and C] His Honor poiute i out that it was a statutory right to possession upon which the plaintiffs were proceeding. Dr. Foster replied that all the Waste Lands Board did was to give a licence to occupy. They gave no legal right to do so, but said simply take the license for what it is worth. Even supposing there was a statutory title, how far wa3 that estate transferable except by deed. He submitted that all that was given was an equitable and not a 1- gal estate. Mr G. Harper, in reply as to the objection raised by Dr. Foster respecting the failure of the equitable right to maintain an action for ejectment, said he quite agreed with what had been t-aid by his learned iriend so far as actions for ejectment in England went; but _ their practice here for the recovery of possession of land was not now analogous to an action for ejectment in England. It had been assimilated to the Judicature Act of 1873 which provided that any one holding under an equitable estate or right could bring an action for possession of land. [Cited Roscoe on Evidence, pages 313—974.] Therefore, assuming that the license to occupy only conferred on them an equitable right, they could come to the Court under the Judicature Act, 1873, and sustain an action for possession of land. But he contended that the Urown, through the Legislature, had conterrcd a statutory grant on the holder of the liceuse to occupy. It was not only a license but a grant, an irrevocable license to the holder to occupy the land as against anyone else, it was a better title than the license t • depasture, and the Legislature had recognised it by allowing an ante-vestment by transfer of a legal estate under certain conditions. Ho con tended that the plaintiff, by reason of the transfer, had become seised of a legal estate to bring an action for possession against the defendant.

His Honor put the question as to what would be the position if the answer by the defendant hid been that he held a Crown grant of the same land ; that is, if the Board had issued two licenses to occupy the same piece of land, and Crown grants issued for each? Mr Harper said the only course then would be to issue a scire facias. After argument by the learned counsel on both sides, His Honor took time to consider.

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Permanent link to this item

https://paperspast.natlib.govt.nz/newspapers/GLOBE18780417.2.15

Bibliographic details

Globe, Volume X, Issue 1273, 17 April 1878, Page 3

Word Count
2,575

SUPREME COURT. Globe, Volume X, Issue 1273, 17 April 1878, Page 3

SUPREME COURT. Globe, Volume X, Issue 1273, 17 April 1878, Page 3