SUPREME COURT.

Lyttelton Times, Volume XXIX, Issue 2212, 23 January 1868, Page 3

SUPREME COURT.

IN BANCO.!

Tuesday, Jan. 21,

GRAHAM V. WALKER AND OTHERS. His Honor delivered judgment. This was a motion to dissolve a provisional injunction obtained by the plaintiff as trustee of the estate of G. A. E. Ross, a bankrupt, restraining the defendants from interfering with the sheep, cattle, and personal effects, upon a certain run or Btation of the defendants', known as the Mount Four Peaks station. The plaintiff's equity is founded on a deed which is set forth in the declaration and which is dated 6th October, 1866, and made between three of the defendants, therein called the lessor, of the one part, and the said G. A. E. Ross, therein called the lessee, of the other part, whereby the lessors demised to the lessee certain runs therein described, with the station buildings and plant thereupon, and also certain flocks of Bheep, amounting in number to 20,000, for a term of ten years from the Ist January, 1867, at a certain rent, and subject to certain covenants therein set forth, and, among3t others covenants by the lessee to keep all the sheep for the time being upon the said run in proper condition, and from time to time during the said term before the 31st Dec. in each year to brand with the brand of defendants therein specified the flocks of sheep thereby demised and their natural increase, and during the continuance of a certain security by way of mortgage therein mentioned not to brand or

permit to be branded any sheep upon the said runs with any other brand than the brand specified, and save at afterraentioned, not to sell or remove from the said runs any of the said sheep thereby demised and their increase; and to keep and maintain in good and proper repair and" condition ail fences then erected or which should thereafter be erected on the said demised premises, and not to part with or in any wise charge or encumber the said sheep and premises or the wool to beproduced from the same without the consent in writing of the lessors first had, and at the expiration or sooner determination of the said term, to yield up the said runs with all buildings and improvements effected thereon, and the said demised flocks of sheep then depastured thereon to the number of 40,000—20,000 whereof should consist of sheep of the same ages and sexes as the sheep., to be delivered by the said lessors to the said lessee on the Ist day of January then next, and the remainder thereof should consist of sheep of the ages and sexes specified in the 3rd schedule thereunder written. Proviso for re-entry in default of performance by lessee of all or any of the covenants on his part to be performed; covenant by lessors subject to due performance of lessee's covenants for quiet enjoyment of the said runs, and the said demised sheep with the wool arising therefrom; power to the lessee out of the said demised sheep in every year during the said term to sell and remove from the said runs 4000 wether sheep of the age of two-tooth and upwards, the lessee replacing the wethers so sold'by an equal number of lambs of either sex before the Ist January next following the day of such sale and removal; covenant by the lessors that they would on the Ist day of January in each year of the said term cell to the lessee all the increase of the said flocks of sheep specified in the first and second schedules and all such part of the said flocks then upon the said runs as should then exceed the number and classes of the sheep set opposite the said dale in the said third schedule, for the sum of one shilling, and on payment thereof the same should thenceforth become the property of the lessee. The declaration further states that on the 28th September, and from thence to the commencement of the action, there were depasturing on the said waste lands in I

■ heeaidflecdinentioned&odo sheep branded f with' two' brands-one' of them being that 1 of the defendants, specified in the deed, and ' a large number-to wlt-20,000 sheep purs porting to ho the ahqep In the said deed men- ! (toned, all which said sheep were the pro- : perty of the said G. A.'E. Ross; that oh the 28th, Soptember, , and fronv thonce till the commencement of tiio aotion, thero was upon tlie said waste lands a Inrgo number of Cattle, and also of fencing wire, station plant, household furniture, and effects, the property of the saldG. A. 10. Hoss; that tho dofeudants entered upon the said run and wrongfully seized and retained possession of the said 3000 sheep and all the said sheep and cattle upon the said run, and the snid wire and station plant, household furniture and effects, and refused to deliver the same to tho plaintiff, and are removing from the run a lurge number of the sheep; that the said deed of 6th October, 1866, Is not registered under the Bills of Sale Hegiatration Act, &c. The declaration is supported by the affidavits of the pluimiff's solicitor, the plaintiff, Mr Charles Harper, and Mr Halkett The defendants contend, •by py of preliminary objection, that the declaration has not been properly verified, and undoubtedly the verification falls short of what is usual in such cases. It is said, moreover, that the deed which is the foundation of the plaintiff's claim ought, in a case of this nature, to have been proved by the attesting witness; and f. r this latter proposition a case has been cited from Ist Jurist N.S., which appears to bear out the view contended for, but it is unnecessary for me to decide this case upon these narrow grounds, nor yet upon the somewhat Mess narrow grounds which have been also urged, that material facts were withheld from the Court on the application for the injunction. I think that the defendants have reason to complain of the statement in the plaintiff's affidavit, that defendant Deßourbel had refused to deliver the sheep, wire, and effects, when it appears from an affidavit since filed by the plaintiff's solicitor that Deßourbel offered to deliver certain sheep on being indemnified, and to give up the wire and other effects on their being identified as having been the property of the bankrupt. I shall not enter into this part of the case further than to state my concurrence m the law as laid down by Lord Cranworth in Dalgliah v. Jarvie, 20 L. J. Chancery 475that in applications for exparte injunctions the plaintiff is bound to state not merely what lie may think material, but everything which is in fact so, and that if he abstains

from stating facts which the Court sees are material, lie forfeits his right to the injunction. The defendants also complain of a statement in the plaintiff's affidavit imputing to them improper motives in proceeding as they did to resume possession on such a statement ; this added nothing to the strength of the plaintiff's case, and in my opinion ought not to have been made. It has been contended on behalf of plaintiff that the deed of Oct.,. 1866, was of such a character that it ought to hare been registered under the Bills of Sale Registration Act, 1856, and that not having been so registered, the sheep deraised by it being in the apparent possession of the bankrupt, became the properly of the plaintiff as his assignee. I may observe, in passing, that if such contention were well founded, the blame of the apparent injustice that would be suffered. by the lessors would not properly attach to the Jaw, but to the lessors themselves for neglecting to comply witli its provisions by registering the deed. But I do not think that the deed will bear such a construction. It is admitted that it does not come within the tarms of a definition of a "bill of sale "given by the Act; neither is it within the mischief which the Act seeks to remedy. It has been likened to a bill of sale given by a pu: chaser for the price of sheep which he has bought, but at the time the' purchaser gives such bill of sale the sheep are absolutely his, though unpaid for, whereas there is evidence through out this deed of intention on the part of the lessors not to part with the dominion of the

sheep, and the clause as to giving other sheep at the expiration of the term is not sufficient, in my opinion, to counteract the .general scope of the deed. Again, it is said that the defendants were not justified in retaining possession under the proviso for re-entry, unless the lessee made default in the observance of all the covenants, not merely of any one or more of them. It

seems to me that such a construction is at variance with the other parts of the deed in which the lessee covenants

to perform the several covenants on his part to be performed, and in which the lessors covenant for quiet enjoyment on condition of the lessee's observance of his several covenants. Whether all or any of the lessee's covenants were broken by the branding, Bale of sheep, want of proper care and attention in keeping them, dilapidation of buildings and state of the fences, are questions of fact as to which the affidavits are conflicting, which must be decided by the verdict of e jury, and on which it is not my duty to express an opiniou. In cases of this nature, where the equitable jurisdiction of the Court is merely ancillary to the legal right Courts of Equity, as a general rule, take care that the right be ascertained before they interfere by injunction, unless the effect of withholding it will be to allow irreparable damage to be done. Kigby v. the Great Western Railway Company, 2 Phil., 44; Spotteswoode v. Clarke, ib. 154; rlarman v. Jones, 1 Craig & Phillips, •229 ; the Attorney-General v. Hallet, 16 L.J., N.s., Ex,, 131, In this case Ido not apprehend danger of any such result from the order which lam about to make—that the injunction be dissolved, the defendants to keep an account. They will probably be able to manage the run better and at less expense than it could be managed by the plaintiff. 1 have expressed my opinion upon the points of law in the case, and in so doing rather deviated from the practice of Courts of Equity in Kngland in similar cases, under the impression that, constituted as this Court is, with both legal and equitable jurisdiction administered by the same Judge sitting alone, the plaintiff may desire to have ray opinion with a view to its assisting him in determining the question whether or not he should continue the present litigation. If I am right in thinking that the lessors have not lost their ownership in the property demised as against the plaintiff, I cannot understand what advantage the creditors can derive from establishing their right to have the lease treated as subsisting. I presume that the interest under it can hardly be considered beneficial, or Mr Charles Harper would not have offered as his alternative terms so much less favourable to the lessors, thanthose which the lease gives them. I offer no opinion as to tlie validity or invalidity of the bill of sale to Mr Hall, as that question is not before me. at present. The injunction must be dissolved on the terms of the defendants keeping 1 an account of all receipts and disbursements from or on account of the station. Under the circumstances, I feel bound to dissolve the injunction, with costs; hut I am disposed to allow tho plaintiff his costs out of the first funds which will come to his hands applicable thereto.

LONQDOTTOM V. lIAWKES AND ANOTHER,

Mr Duncan, on behalf of plaintiff's counsel, made application for settlement of the issues and change of venue to Hokitika.

His Honor made an order changing the venue ns prayed; issues to be settled on next chamber day. Mr Garrick appeared for defendants,

TOOTH V. CHAPMAN. Dr Foster, instructed by Mr Fereday, on behalf of defendant, applied, ex parte, for a rule calling on the plaintiff to hliow cause why he should not forthwith set down application to settle issues, and fix a day for trial, at the next sitting of the Circuit Court in' Christchurch, defendant undertaking to appenr on notice of such application j or why this action should not be dismissed under rule 408. Mr Garrick appeared on the other side, and urged that he could not go to trial in March, as he required to hear from Mr Tooth beforehand. After argument, his Honor granted the rule as prayed, to be returnable in a week. In Bankruptcy, re 0. a, e. ross. Mr Garrick applied for an ordtr to include certain creditors in the final order, made in the matter of the above bankrupt, on the petition of Rose Alice Poole, a creditor.

His Honor made an ordof- for the pro raid distribution of tlw estate amongst the crodi-tors;-the trustee'tb'have his cists of the motion out of the funds.