LAW AND POLICE.

New Zealand Herald, Volume XXXIII, Issue 10223, 29 August 1896, Page 3

LAW AND POLICE.

SUPREME COURT—In Chambers. Friday. [Before His Honor .Mr. Justice Conolly.) PROBATE. Probatb was granted to the executors named in the wills oi the following deceased persons; -James Crawford, Jeremiah Keleher, William Hliuter, Philip Bennett, and Stauier Henry Burniugham (the latter not to issue before Monday). ADMINISTRATION. Letters of administration were granted in the estates of the following deceased persons Finlay M.icdonald, Peter Morris Cough, Edward Hill, and It y Rita Odium. Sureties were dispensed with in the last case. LUNATICS ACT. Re William Edwards, u lunatic, Mr. Ileaketh moved for aii order in terms of the petition for leave to sell certain land, the property of the lunatic. Objection had been made by the Public Trustee, aud Mr. Claytou, who now appeared in support ol the application, applied that it mil'ht be allowed to stand over till the tirstchamberday after the civil sittings, as the Public Trustee had not yet instructed his solicitor. LAND TRANSFER ACT. Re the Land Transfer Act, 1885, and an application of James Reid Hendry. Mr. Graham moved that the applicant be registered as proprietor of an estate in fee simple. The application was made under section 47 of the Act, and several affidavits were filed. The affair arose out of the purchase of certain land scrip, by virtue of which one Annie Roue selected the land, the subject of the application, which now stood in the name of Mr. Tlios. Londergan (nowdead)as proprietor, and his sun had become bankrupt. Mr. Hendry claimel that he was entitled to a transfer from uoudergan. His Honor said he could not make nil order, as the Official Assignee had lodged caveat, without having the Official Assignee before him. He ordored that the title of Hendry be investigated at the sitting in Chambers on the 22nd September, summons to issue to James Londergan and the executors of Thomas Londergan, and the Official Assignee, and the District Land Registrar. In Banco. TIBBITS V. CKRfURD—APPEAL.

I This was an appeal from the decision of Mr. R. S. Bush, S.M., given at the Magistrate's Court, I'aparoa, in an action brought by Ernest U'm. Gervase Tibbits, farmer, Paparoa, against John W. Gerrard, owner of adjacent land, The action >vaß for the recovery of £6 13s 2d as a contribution towards the cost of a dividing fence. The plaintiff was non suited, and he appealed. As counsel could not agree on a case to be stated, the magistrate stated a case in which he dealt with the facts and arguments heard before him. He non-suited the plaintiff, holding that a notice to repair did not enable the giver of such notice to erect a new fence of a totally different character to the then existing fence, and that if plaintiff required 18 chains of old fencing to bo replaced bv 18 chains of fencing similar to that erected by the defendant, the notice slionld have been to erect IS chains of new fencing ot a certain kind, ii rid not a notice to repair by substituting quite a different kind of fence for that already standing. The question for this Court was : Was the magistrate right in so deciding? The case was heard at Paparoa on the lUth of February. Mr, J, A. Beale now appeared for the appellant, and Mr. Carruth, ot Whangarei, for the respondent. Mr. Carruth at the outset drew attention to section 103 Magistrates' Act, 1895, and contended that under that a nonsuit, not being a final judement, there could be 110 appeal, us it was not a final determination. Mr. Beale replied, quoting Victorian County Court cases, but His Honor said the decisions of the Victorian Courts and English Courts were only of value when the law was lie same, and the Victorian Act did not coutain such a provision as that contained in section 103 of the New Zealand Act, 1895. He reserved his decision on this point, and decided to hear the case on its merits. Mr. B'-ale then opened the ease for the appellant, ami referred to the Fencing Act, and the notice required under that Act. He argued that, this notice was a notice to repair, hut if that was not sustained, then he should argue that it was a notice to fence, although the form of notice given in the statute was not fully followed. In this case the defendant had put up a fence which the appellant continued, mid he contended respondent was not entitled to ignore the notice, as ho was fully protected by the Act. The real grievance was that the respondent had already erected his half of the fence, while the land now owned by Mr. Tibbits was owned by another person, and Mr. Oerrard felt that he should not be called on to pay half the cost of the other half of the fence. He contended that the notice was a good notice to fence. Mr. Carruth, in reply, said the notice was a notice to repair, and was so referred to throughout, but in any case the notice was bad, for it required certain things to be done within seven days, while the Act itself required 28 days' notice, so that the person receiving the notice may have time to consider what he should do. He quoted a decision in ;< similar case giveu by Mr. Justice Williams. His Honor said the notice was to repair 36 chains of fencing, half of which was not to be touched, and the other half to be put up new. He need not trouble Mr. Carruth further. Mr. lie&le replied. His Honor said he thought the magistrate was quite right in bis decision. The appeal was dismissed. He had to express his regret that such a trivial case should be brought to this Court. Costs £2 is were allowed.