SUPREME COURT.—In Banco.

New Zealand Herald, Volume XI, Issue 4045, 29 October 1874, Page 5

SUPREME COURT.—In Banco.

Wednesday, 28tii OcroiiE]i. [Before His Honor Sir G. A. Arney, Knight, Chief Justice.] Tiikre was a sitting in banco this morning. JA.MES WII.UMSON' V. IMPROVEMENT COMmissioners.—This was a judgment upon I demurrer. The action was brought to recover the price (£5000) of a piece of land in Shortland-street, proposed to be taken by the defendants, and the value of which had been assessed by a Sheriff's jury. The defendants pleaded the statute (Auckland Improvement Act), and that they were not in possession, nor had received conveyance, nor was conveyance tendered. The plaintiff demurred, and His Honor now delivered judgment as follows: —If, in disposing of this demurrer, it were necessary fur me to decide whether this action could be maintained on the present declaration, 1 should have required further time to collate and compare the numerous authorities which were quoted in the course of the argument. For, notwithstanding the decision of the Court of Common I'leas in Corrigall v. the London and Jilackwall Railway Company, 5 M. and (Jr. 21!>, J am not quite clear that this declaration is good. But having come to the conclusion that the notice given by the defendants under the 13tli section of the Auckland Improvement Act, 1573, as set forth in the plea, was a good notice, and the plea a bar to the present action, I will not keep the parties waiting for the judgment of the Court. I think that the power given by section 13 to the Commissioners to withdraw from their notice of intention to take the land of any proprietor affected by that notice should be held to be as extensive"as the wording of the section will ; admit. For the Commissioners are a public | body, acting in the discharge of public functions, ami, although they do not directly re present the Crown, ami are not entitled on that "round to the full immunity which was conceded by the Court of Queen's Bench to the Commissioners of Woods and Forests in the case of the Queen against those Commissioners, 15 Q. I!. 751, I think the Legislature may be deemed to have intended to confer upon the Auckland Improvement Commissioners a somewhat similar immunity within the limits expressed in the 13th section of the Auckland Improvement Act, 1873. By that section the power given to the Auckland Improvement Commissioners to withdraw their notice for the purchase and taking of the land of the plaintiff is limited within two conditions. In point of time the notice of withdrawal must be given within three months after the giving their first notice ; which was done. As regards the stage in the order of procedure and subject to the"condition as to time, it is consistent with the language of section 13 that the notice ot withdraws? may be given at any time before the Commissioners can be said to have completed the taking of such land- Here the defendants have not taken possession of the plaintiff's land, nor have they done any act to complete the taking thereof, further than by ascertaining the price which they would be

bound to pay if they resolved to complete that taking. Doubtless it is now established by a Beries of authorities, some of which were quoted upon the argument of this case, merely that in ordinary cases, and in the absence of Legislative provision to the contrary, the notice given by the promoters of an undertaking to a proprietor of their intention to purchase and take the hind of the latter, is irrevocable; but further, that in such cases, after the verdict and judgment of the sheriff fixing the price to be paid, have been duly registered, the relation of the parties as vendor and purchaser is established between them, and the obligation of one to convey and of the other to take the land will be enforced by this Court, in an action for specific relief, as fully as if a formal and regular agreement for sale and purchase had been signed. (Stone and others v. Commercial Railway Company, 1 railway cases, 400; Adams v. the Loudon and Blackwall Railway i Company, 11) L.J., cli. 55 ; Regent's Canal Company v. "Ware, 20 L.J., ch. 500, and other cases.) But even in; such cases the position of the parties as to their respective estates and interests remains the same ; although the promoter is bound by his notice which may be said to constitute, in a certain sense, an incoliate contract, as against him to purchase and take the land, such notice does not operate as a conversion of the realty iuto personalty (Haynes v. Hayues, 30, L.J., ch. 378) ; and it is, I think, doubtful whether the obligation arising out of the verdict and judgment of the Sheriff works such a conversion. The proprietor remains at law the owner of the land ; his possession and right of possession remains undisturbed, and even after the verdict and judgment of the Sheriff, the whole matter continues at most in contract between the parties. It was, indeed, contended, this demurrer suggests, that although the Commissioners might have relieved themselves from the obligation arising out of their original notice, they Uavn no power to withdraw from their contract to purchase which supervenes upon tlm price being fixed by the verdict of the jury. Such may be the proper construction to be placed upon section 13, but I think that section may bo construed as conferring upon the Commissioners the right to exercise their option, whether they will complete the taking of the land comprised in their original notice to purchase and take the same, provided they exercise that wption within the period prescribed by that section, and that the verdict of the jury, and judgment thereon of the Sheriff, ascertaining the price and value of the laml, has not the effect of determining the option thus conferred on the Commissioners.—Judgment for the defendants, with costs. —His Honor intimated that lie would give leave, if motion, were made, to bring the decision before the Court of Appeal. Ireland v. Bkogdex and So.vs.— Mr. MacCormick gave notice that he would move on Friday for leave to enter a nonsuit in this case. Tliis concluded the business before the Court.