Law Intelligence.

New Zealand Mail, Issue 219, 20 November 1875, Page 19

Law Intelligence.

VICE-ADMIRALTY COURT. Saturday, November 13. (Before* the Worshipful James Prendergast, Esquire, Judge.) IN THE MATTER OE THE .SCHOONER YOUNG DICK. Ihe Court sat to hear argument on this matter. Mr. Allan, who appeared on behalf of the pursuer, Charles dial Iter Beare, master of the Jane Spiers, submitted that upon the evidence given, which proved that the schooner had had not observed the regulations, the decree sought for against the Young Dick must bo given. He referred to the case of the American (43 L. J., Ad. cases 25), to show that a vessel close-hauled on the port tack must give way to one close-hauled on the starboard tack, and that the vessel close-hauled on the starboard tack is entitled to keep her course to the last moment, and pointed out that it had been held in this case to be negligence on the part of the vessel on the port tack not to have kept a good lookout, and thus failing to see the other vessel earlier. The cases of the Traveller (2 William Robinson Rep.) and others were also cited to the same effect. The case of the Livingstone (1 Swabey, 519), and Colla (1 Swabey, 4tis) were also quoted to show that any negligence in non-observance of the Admiralty regulations as to lights would render a vessel infringing them liable to damages; and the evidence of the captain and mate of the Young Dick was cited to show that the Young Dick had been taken to sea without proper light; and that again, contrary to the regulations and all sensible seamanship, one of the makeshift lights was taken down from its proper place, even at the time collision was imminent. The evidence of the captain and mate and lookout man also showed conclusively that a proper lookout had not been kept.. The night was clear, and the Pencarrow light could be distinctly seen; and, therefore, if a proper lookout had been kept, the Jane Spiers must have been seen earlier; and having been seen the Young Dick’s duty was to keep away, and thus avoid any chance of an accident. There could not be a doubt that the collision was solely owing to the misconduct of the Young Dick. One of the witnesses very properly put the matter when he said “I would not have got in such a position”; and that, he (Mr. Allan) submitted, was the proper way for the Court to look at the matter. Ought the Young Dick to have got . into such close contiguity (as was admitted she was in) to the Jane Spiers ? If she through neglect placed herself in that position, was she not resnonsible for all that occurred afterwards ? It had been suggested that the Jane Spiers had done wron< r m porting her helm. She had done that in endeavoring to avoid a collision, and supposing for a moment, though he did not admit it, she had not acted in the most correct manner, could that disentitle her to damages, seeing that the Young Dick had through neglect forced that course upon her ? He submitted it could not. But the Young Dick could have been got out of the way if she had been handled properly. At four and a half cables there was plenty of room. Even taking the distance she first saw the Jane Spiers away to be correct, viz., two and a half cables, then according to the deliberately given evidence of the most experienced captains in Wellington, there was plenty of time for the Young Dick to have gone away and avoided the collision ; but, instead of doing this, she kept her course and dropped her headsails, and thus according to the evidence of the eight captains, caused the collision. According to the same evidence the Jane Spiers did right in keeping her course; porting her helm was good seamanship, and she had a right to expect that the other vessel would give way, and that, further, when the captain of the Jane Spiers found that the infraction of the rules by the Young Dick had rendered collision imminent, backing his mainsails was the best and most prudent course which could be adopted. The learned counsel quoted largely from the evidence, and submitted that inasmuch as the vessel had carried no lights, or at anyrate improper lights, had kept an insufficiently good look-out, and had bioken the rules of tlie road when the position was realised, collision was solely attributable to the laches of the Young Dick, and that the Court would grant the decree as prayed, and order that the Young Dick should pay damages and costs. Mr Travers, who appeared on behalf of the master , of the Young Dick, said his learned friend in this case sought to recover damages by reason of a collision which had taken place between the two ships, and in order to establish his right to recover he must show that his vessel (the Jane Spiers) was entirely free from blame, and that the collision ivas entirely owing to the fault of the Young Dick; because, if the Court came to the conclusion that the Jane Spiers was in any degree to blame—in any degree contributed to the collision—then, inasmuch as the rules laid down in a variety of cases, established this proposition, that where both vessels were to blame the damages and costs were to be divided between the parties, the Court could not grant the degree. That rule was laid down in many cases in the Privy Council, and would be found particularly in the case of the Hibernian 31 L. Times, N. S. (h ebruary last.) He then proceeded to call attention to the evidence as it bore upon the case for the defendant. They had never contended they were free from blame. At once they admitted that there was sufficient evidence to justify the Court in assuming the V oung Dick had contributed to the collision, and that she was in fault in connection with the collision, because they had been unable to show anything that would exempt them from the strict operation of the regulations in reoard to lights ; but while they did not contend that the collision was brought about entirely by the conduct of the Jane Spier he believed he would be able to show that th Jane Spiers was

sufficiently in fault to justify the Court in dismissing the claim as against the Young Dick, and in charging both vessels witli the damages —dividing the costs and damages between both vessels.

The Judge : You contend I ought to dismiss the suit if I find there was negligence on the part of the Jane Spiers, but direct that the damages caused by the collision to both sides should be divided between both parties '! Mr Travers : Yes.

The Judge : So that really the pursuer may be a loser in taking proceedings in this case ?

Mr. Travers : He takes proceedings at that risk. The pursuer had to show that all the fault was on the other side, and if he failed in that and it was shown that blame was attributable to him, then the Court might divide the total damages as it thought fit, although he was pursuer in the suit. It might be within the recollection of His Honor that on the occasion of the hearing, a number of what were termed on both sides skilled witnesses were brought forward, and that there was a very great deal of conflicting testimony given respecting the relative positions of the vessels when first sighted. Diagrams were drawn, and upon these the relative positions of the vessels were laid down, in the manner mentioned by each side ; and it was a somewhat remarkable fact that there was not one of all the skilled witnesses who were called in support of the plaintiff’s case, as well as those called against him, but came to this conclusion, that if the testimony given by Captain Beare and his witnesses were true, collision was absolutely impossible. At all events, that if the positions given by the witnesses for the plaintiff were correct, then it was clear that if the vessels had kept on their respective courses without any attention whatsoever, collision would have been absolutely impossible. They came to the conclusion, moreover, that even if the vessels had altered their course in the manner indicated by the Jane Spiers, the one porting and the other starboarding its helm, collision would have been impossible in the manner in which it took place ; and, looking at the relative positions of the vessels, and taking the relative rates of speed as given, and considering the other circumstances deposed to, they found it impossible to say in what way the collision could have taken place at all. Take the positions of the vessels. According to the Jane Spiers, when the other vessel was first seen, she (the Young Dick) was four or five points on the lee bow of the Jane Spiers. Assuming that to be so, then the Young Dick would be steering stem on as it were, square, at a right angle to the course of the other ship. A vessel four points on the lee bow steering in the manner indicated would be in such a line as to form a right angle to the line of the ship from which she was seen. If she was five points on the lee bow she would be coming in a line at right angles, or almost so, with the line of the other vessel, and the vessel from which she was seen would inevitably have crossed her bows. That was a mere mathematical question. If a vessel was five points on the lee bow of another vessel, at a distance of four and a half cables away, one on the port tack and the other on the starboard tack, the wind N.N.W., the one going westerly and the other N.E., both close hauled, the vessel to the windward, which, in this case, was the Jane Spiers, must have actually crossed the bows of the one to the leward, the Young Dick. There would under these circumstances have been no necessity for the slightest change of course, for by each vessel keeping its course collision would be a physical impossibility; the Young Dick must have passed considerably astern of the other vessel. Every one of the expert witnesses for plaintiff had at first said all the J ane Spiers had done wa3 advisable, and all that the Young Dick had done was erroneous, but when brought to the test of a diagram exhibiting clearly the relative positions of the two vessels as stated by Captain Beare, one and all came to the conclusion that the collision was absolutely impossible under the circumstances, and that the positions of the vessels must have been something entirely different from that which was stated by Captain Beare. That was clear beyond a doubt. There was no difficulty in putting the positions of the vessels on paper ; and then taking the relative rates of speed, collision became a mathematical impossibility. This showed how little reliance could be placed upon the evidence of Captain Beare in regard to the positions of the vessels when first seen; and he also submitted that it proved that these positions had been put down by Captain Beare at random, imagining that no examinations as to their correctness would be made, and basing his whole case upon the ground that the fact that defendant had not his proper lights would be quite sufficient to show that the cause of collision was with the Young Dick. He (Mr. Travers) was sure that when his Honor came to analyse the evidence he would find that the testimony of Captain Beare and those who supported him was entirely untrustworthy, in so far as it related to the relative positions of the vessels at the time preceding the collision ; and this would lead him to the belief that if there was a bad look-out on the Young Dick, there was an exceedingly bad look-out on the Jane Spiers. There was one little point in connection with this part of the case to which he wished to draw special attention. Captain Beare, in his evidence, had said that when the other vessel was reported by the man on the look-out, he (Captain Beare) was aft, but he walked forward to the forecastle for the purpose of looking at the stranger; but if his Honor would look at the diagram he would sec that a vessel being in the position Captain Beare alleged the vessel to have been in, could have been seen much better from the poop where the captain was than from the forecastle, to which ho went to see her. From the forecastle he would have to turn round and look towards the stern of his own vessel. If she was five points on his lee bow she would be practically astern, and woidd be more easily seen from the stern of his vessel. Taking this to be a fact,

that he could not see the vessel from the stern, 1 he (Mr. Travers) submitted that the position in which Captain Beare attempted to place hfs vessel was not based upon facts. It was more consonant with facts that the Jane Spiers was four or five points oil the lee bow of the Young Dick, under which circumstances the Jane Spiers would have seen the Young Dick one or two points on the starboard bow. The people on board the Young Dick said when they first saw the other vessel, she was bearing right down upon them, being four or five points on their lee bow, and this to a certain extent was confirmed by the people on the Jane Spiers, for they said they saw the other vessel right ahead ; but then the captain said they struck her very nearly square on the starboard side —an occurrence which, supposing the other statements of the captain to be correct, could not have taken place. Captain Johnston had been asked “How could the barque strike the schooner in the forerigging if the barque was to the windward of the schooner ? Observe their relative speed and distances ? Witness, after looking at the diagram, and pointing out possible answers to the question, said, I cannot explain it.” Again, Captain Johnston had drawn a diagram of the positions of the two vessels, as given by the captain of the J ane Spiers, and then had said there must be something wrong about the positions of the vessels as given for them to have come into collision. Looking at the statement of the lookout-man, that the other vessel was two and a half points on the lee bow, it might be that if the vessels had kept their respective courses, collision would have been possible ; but the order was given to port, which woidd have taken them right away one from the other. Whether the captain was right, or the lookout-man was right, the collision could not be rationally accounted for, because, whether the Young Dick was five points away, or two and a half points away she would, to have caused the collision under the circumstances, have had to go a further distance than the J ane Spiers, though the Jane Spiers was travelling at a rate of four and a half knots, and the Young Dick only two and a half knots. He submitted that the Jane Spiers must have been upon the lee bow of the Young Dick when the vessels first collided each other, and that the vessels were uncommonly close to each other when first seen—in fact, to use a common phrase, “right on top of one another,” and were unable to take any effectual method to get out of the way of one another. As far as the evidence in respect to time went, no reliance could be placed upon that, for there were so many difficulties in the way. He suspected that the true solution of the matter was that the two vessels were snug for the night, no lookout being kept, and when they found themselves in trouble there was no time for either to take the steps which ought to have been taken. If the Jane Spiers was on the lee bow of the schooner it was pretty clear there was no necessity for an alteration in her course, for she had crossed her bows, and porting her helm was likely to bring about a collision. _ He cited the case of the' Cleadon, 14 Moore s, P.C., Rep. 92, remarking in passing that keeping a course was keeping on in the exact direction a vessel was going, and that keeping close hauled was not keeping a course. He also cited the case of the Independence, Ibid 118,119, Eclipse and Saxonia, 15 P.C.,Rep.263. He did not deny that there had been negligence on the part of the Young Dick in respect to light, but contented that it had not been proved that the collision had been owing solely to the action of the Young Dick. How & - ever on the authority of the ruling in the case of the North American, 12 P. C., Rep., the Court must be guided by the facts actually before it, and if the cause of collision was not shown the Court could not speculate as to the cause. The Jane Spiers had not staid by the Young Dick after the collision to see if assistance were wanted, and he contended that on that ground alone plaintiff was disentitled to recover.—Germania (21 L. Times, N. S., 44.) He asked that damages and costs mi<dit be divided.

Mr. Allan replied at some little length, and said his friend had made one important admission, viz., that the vessels were on top of one another before seen. Accepting this to be a fact, then, according to the cases cited, the decision must be against the Young Dick, for it was laid down that the vessel on the starboard tack must keep her course to the last, and that it was the duty of the vessel on the port tack to look out for, and keep out of the way of, vessels coining on the starboard tack. The Court then adjourned. Monday, November 15. (Before the Worshipful James Prendergast, Esquire, Judge.) IN THE MATTER OP THE YOUNG DICK (SCHOONER). The Judge delivered his judgment in this case as follows : It appears from the evidence that 'on the night of the 4th of September, at about ten o’clock (the night being moderately clear, the stars visible, and the lights of the lighthouses at Mana and Pencarrow visible at a considerable distance), the barque Jane Spiers was in Cook Strait, bound outwards from Wellington at the time mentioned. The wind was N. by W. 4W. or N.N.W. The barque was steering a west course on the starboard tack, the lights at Mana bearing N. E. ? K., the Capo Campbell lights JIV and Pencarrow light IS.N. i N„ and the barque was at a distance of eight or nine miles ofF Cape Tcrawiti. The barque had her regulation lights in proper situations and brightly burning. There was as look-out an able seaman, William Taylor, on the topgallant-fore-castle. The master was on deck with his second oflicer who mcio walking the deck aft, and a seaman also on the look-out on the main deck forward. It was sworn on the part of the barque that she was going closehauled. It was contended at the hearing on behalf of the Young Dick, that on the evidence it appeared that this was not so, but in fact slie (the barque) was going free.

1 have arrived at the conclusion that she was not going free, but close-hauled within the meaning of the sailing rules. °

This being the position of affairs with regard to the barque, the look-out man reports a vessel without lights on tho lee bow. it appears probable from the evidence that at this time the vessel sighted was distant somewhat less than half a mile. Upon this report the captain ordered the man at tho wheel to luff a little, and went forward immediately Tho vessel was visible, but it could not be seen how she was steering As no lights were visible, tho captain ordered a. flash-light to bo shown, which was done and according to some of the evidence of those on the barque, done twice before any reaponso from tho other

vessel. I consider from tho evidence on both sides that the barque was unable to determine, until tho answering light was shown from the other vessel, what course that vessel was steering, though she was able to determine she was on the port tack. I also conclude that at the time when the light was shown to tho barque from tho other vessel that a collision was imminont though not inevitable.

I lie barque, it is contended, did wrong in porting her helm. It is contended that she did not, within the meaning of the sailing rules, keep her course, but thereby altered her course. On this I consider that she did not, within the meaning of the rnles, do otherwise than keep her course, and that if she did so when she put her helm hard aport, that she did so under circumstances of poril, brought about by the conduct of the approaching vessel, and to lessen the cllects of the collision. The vessel was the Young Dick, then standing north-east on tho port tack admittedly, with a starboard light not burning brightly, aim otherwise not in accordance witii the regulations, and with such a look-out that the schooner did not see the barque first, notwithstanding the great difterence of size of the two vessels. Indeed, admittedly the schooner did not see the barque till too late to avoid collision, while the barque’s evidonco is that the schooner was seen at about half a mile off. I conclude on the evidence that tho schooner did not exhibit proper lights : that being so. the onus is on her to prove that the omission was not the cause of the collision. (See tho Fenharn, L.K. 3, P.C. 212.) She not only has not so proved, but she has proved I think that her look-out was bad, and brought her into an improper position with regard to the barque ; and by her defective light she also prevented the barque from taking measures to avoid the collision. Ido not tlunk that the barque refused or wilfully omitted to stand by the schooner. I think that the schooner could have come to the barque had she wanted assistance. I therefore pronounce tho Young Dick alone to blame.

Mr. Allan (on belralf of the Jane Spiers) intimated his intention, hy leave of the Court, to ask next day that the question of damages and costs might be referred to the Registrar and merchants. The Court then rose.

SUPREME COURT.—MATRIMONIAL JURISDICTION. Monday, November 15. (Before their Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Gillies, and Mr. Justice Williams.) BLAIR (PETITIONER), BLAIR (RESPONDENT.) Petition for dissolution of marriage on the ground of adultery. For petitioner, Mr. Stout; respondent, neither appeared, nor was represented. Evidence as to facts had been taken by commission, and there was no denial of the adultery, and numerous affidavits had been filed as to citations, notices, &c., having been duly served. ° Petitioner was examined by the Court under section 47. The decree nisi was granted as prayed. SPITTAL (PETITIONER), SPITTAL (RESPONDENT.) A. rule nisi for the dissolution of the marriage had been granted at the last sitting of the Court, and on the motion of Mr. Hart the decree was made absolute. J’OULKES (PETITIONER) FOULKES (RESPONDENT.) . Mi. Stafford moved that the decree nisi for dissolution of the marriage, granted last sitting of the Court, should he made absolute. The Court granted the decree as prayed. KNOWLES (PETITIONER) KNOWLES (RESPONDENT.) Petition for dissolution of marriage on the ground of adultery on the part of the wife, both in Wellington and Melbourne. Evidence as to the facts had been taken by commissions in Melbourne and Wellington, and the question arose, could the Court, on mere affidavits in regard to the adultery at Wellington, grant the decree. Mr. Izard submitted that the Court could s o, and. after discussion, the case was adjourned till Monday to enable the learned gentleman to produce authorities for his position, or in the event of his being unable to do so, to produce oral evidence. THOMAS (petitioner), THOMAS (RESPONDENT), AND HAYES (CO-RESPONDENT). The parties live in Dunedin, and the husband prayed for a rule dissolving the marriage on the ground of adultery. Evidence as to the facts had been taken hy a commission, but none of the parties appeared. The Court considered that there was no means of its satisfying itself of the absence of collusion and condonation, and further pointed out that according to the evidence the adultery was alleged to have taken place after the petition was filed. Under these circumstances their Honors considered the case for a decree had not been made out.

Mr. Izard, who appeared in support of the petitioner, obtained permission to make an application on Monday for the case to be either adjourned or dismissed, which he might think best for the interest of his client. I he Court then adjourned till Monday next. APPEAL COURT. Friday, November 12. (Before their Honors the Chief-Justice and Mr. Justice Johnston.) KARAITIANA V. SUTTON. The hearing of this case was proceeded with. Mr. Connolly having concluded his argument commenced the previous evening, Mr. Cornford followed on the same side, and Mr! Carlile and Mr. Travers replied shortly, substantially reiterating their previous arguments. REWI HAOKORE (APPELLANT) V. SUTTON (RESPONDENT). This w r as an appeal from the judgment of his Honor the Chief Justice, delivered on the 28th of September, 1875. For appellant, Mr. Travers and Mr. Izard ; for respondent, Mr. Connolly and Mr. Cornford. Mr. Travers opened the case for appellant, and said it was an appeal from a judgment of his Honor the Chief J ustice, upon an application for a decree on the part of the plaintiff Rewi, the decree sought being for a rectification of a conveyance made by himself and Paora Torotoro of lands at the Omaranui, in the district of Napier. The circumstances under which he sought the decree, so far as they appeared by the verdict of a jury on certain issues, showed that land had been included in the conveyance by mistake, though it was not shown that the land had been so included by mutual mistake. So far as the facts appeared upon the pleadings, and as they were affirmed by the findings of the jury on the issues submitted to them, they were in this position

land, which for the purposes of the case he would call Omaranui land, was granted to two natives, Paora Toratoro and Rewi Haokore. Paoro negotiated with the defendant Sutton for advances upon the security of this land, there having been in the first instance a lease made by the natives to a Mr. Braithwaite of all but 1(13 acres. After this lease Paora negotiated with Mr. Sutton for advances upon the security of the land, and a jury had found that these negotiations extended to the whole of the land included in the grant. But it was established that Rewi had taken no part in the negotiations for these advances, and it was found by the jury that the mortgage which had been executed was read over and explained to the parties, but that there was no evidence that it was understood by Rewi. A conveyance of the equity of redemption was afterwards made to Sutton, in pursuance of negotiations for the purchase which has been entered into by Sutton with Toratoro, Rewi taking no part in the negotiation, but executing the conveyance. And it had been found by the jury that in regard to the conveyance Rewi was not aware at the time he executed it that it comprised the 163 acres which had not been leased to Braithwaite; and moreover, the jury found that although it was read over and interpreted and explained to both of them, there was no evidence it was understood by Rewi, though it wasunderstood by Paora. The effect of the findings of the jury was that the nature and extent of the transaction, both as regarded the mortgage and the conveyance, were understood by Paora, but that at the time he executed these deeds, Rewi was not aware that they included the 163 acres of land, and that he in fact only became aware of it on the 11th December, 1873, or form years afterwards. It was not imputed that there had been any laches on his part in seeking to have this state of things remedied, if the law gave him the right to have any remedy. The plaintiff, together with other natives, were found to be iu adverse possession of the 163 acres, having lived upon it for three or four years, ignorant of the existence of the deed in respect to the 163 acres. Under these circumstances, he sought a rectification of the conveyance by the omission from it of the 163 acres, which he alleged were improperly included in it, and it was for the Court to decide whether the plaintiff was entitled to the rectification, which the Court below had answered in the negative. The principle upon which the Court had proceeded in rectification, he (Mr. Travers) was free to admit was upon that of mutual mistake, and where the facts were as clearly proved against the defendant against whom rectification was sought as if they were admitted by him. The contention in this case was based upon the only authorities he was in a position to bring under the notice of the Court, namely, that the Court should proceed upon the doctrine as affecting vendor and purchaser, and not upon the doctrine of mistake in the ordinary acceptation of the term ; but he did not ask for rectification in the ordinary sense of the term, but to have the deed absolutely cancelled so far as related to the 163 acres, on the ground that there had been no contract whatsoever between Rewi and Sutton in relation to it—that it was improperly included in the conveyance —that it formed no part of the transaction by which he was bound —and therefore that it was inequitable on the part of the defendant to retain the benefit of a conveyance obtained under these circumstances. There was no magic in the words contained in the prayer; and if the prayer was not altogether well conceived as it applied to the facts, yet, if the Court saw a case for relief, it would grant it without regard to the technical character of the relief sought in the prayer. Instead of rectifying it might strike out. Mr. Justice Johnston : You did not ask for an amendment of the prayer in the Court below. • Mr. Travers : No.

Mr. Justice Johnston said the question was whether it would be competent for the Court to grant relief other than that asked for in the Court below without the parties agreeing to the amendment.

Mr. Connolly disputed his friend’s right to go upon the ground he had sketched out. The Judge in'the court below had said that the deeds could not be altered, and his friend then, on any appeal from that judgment, came to the Appeal Court to ask for something he had not asked for in the court below. Mr. Justice Johnston remarked that it might be said cancelling a covenant was an alteration in a deed.

Mi'. Connolly said if it was the same alteration asked for now that was asked from the Court below, he had no objection ; but if a destruction of the whole deed were asked for, he should object. Mi'. Travers said he wished for a cancellation of the transaction in part, although he admitted that the language used by the Chief Justice in his judgment, and which was supported by the authorities, seemed to say that the transaction could not be set aside in part. The Chief Justice said that could not be controverted. In this case the facts were: First, the grant, say of 1200 acres. A portion of 200 acres was separately described from the rest. At the time of the purchase by Sutton 1000 acres were under lease to Braithwaite, and the other 200 acres were in the occupation of a number of natives, connections and relatives of plaintiff. Sutton purchases from Rewi and Paora under circumstances found in the issues, namely, that Rewi knew nothing about parting with the 200 acres, although he did know about the sale of the 1000, while Paora knew about the sale of the whole, and the purchaser intended to buy the whole. Mr. Travers : No doubt. Rewi had no intention of selling the 200 acres, and did not know it was in the conveyance. As soon as he knew it was in the conveyance, he was guilty of laches iu endeavoring to claim to have the deed rectified and altered. What he submitted was this, that if the real position of the parties had been in no degree altered, the case would have come within the doctrine of Harris v. Pepperell and Garrard v. Frank el, and the Court would have rectified or set aside the whole transaction. The questiou was whether

the circumstances of the parties had so altered as to take the case out of the principles laid down, and whether matters were not in such a position that the Court would be justified in dealing with the case within the authority of cases of the class mentioned. His Honor the Chief Justice, in giving judgment, said: “Accepting, however, the authority of Harris v. Pepperell, that though the mistake be not common, the instrument might be set aside if the parties can be placed in their former position, yet, as already pointed out, the plaintiff has not laid that foundation for the decree. There is no finding of the jury on which I can proceed to make a decree on the supposition that the parties can be placed in their former position, and I canot look beyond the issues. I may remark, however, that it was indisputably proved at the trial, though there was no issue to meet the fact, that the defendant had some time since sold to the lessee the fee simple of the whole of the land included in the lease, and no doubt the purchaser had no notice of the alleged mistake. If that fact had been found by the jury, then it would have been made apparent that the parties could not be restored to their former position. If the plaintiff Rewi asks for a reference and inquiry into the matter, I should be disposed to grant it, though it is clear to me on the evidence that no benefit would accrue to him from it.” But he (Mr. Travers) thought there was a question whether the circumstances of the parties were not such that the parties couldnothave been placed in their former position, assuming the transaction to be set aside. He submitted that it had been shown that the sale of the property which had been in the possession of Braithwaite, had more than repaid Sutton’s outlay, and that these 163 acres represented additional profit of the transaction. What then would be the injury so far as he was concerned if the transaction were set aside quoad the 163 acres ? The Chief Justice said the Court could only be guided by the answers to the issues, and there was nothing about these matters mentioned. At the trial he had asked Mr. Travers if he would have an inquiry into the rights of the question; but he had declined to have it, and it was questionable whether he could have it now. Hitherto he had argued upon the bare facts found by the jury. He (the Judge) had given his judgment on those facts. Mr. Travers : No doubt the judgment proceeded upon that. Looking at the matter in that light, I can offer no further observation. Mr. Connolly said he supposed he need not address the Court. Mi-. Justice Johnston : No; Mr. Travers has gracefully thrown up the sponge. The appeal was dismissed, with costs. Tuesday, November 16. (Before their Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Gillies, and Mr. Justice Williams.) MORRISON V. PEARSON AND OTHERS. In this case George Morrison, John Morrison, and Henry Bannerman Morrison are plaintiffs, and Walter Henry Pearson, John Mitchell, Duncan McArthur, John Holland Baker, Sir John Larkins Cheese Richardson (Knight), George Lumsden, and William Wood, Commissioners of the Waste Lands Board of Southland are defendants. It is a special case stated by the parties without pleadings for the opinion of the Supreme Court, and by consent, and in pursuance of an order made by his Honor Mr. Justice Williams, removed into the Court of Appeal under the 19th section of the Court of Appeal Act, 1862. The case set forth that on the 9th July, 1873, the Governor, by an order in Council, and upon the recommendation of the Superintendent and Provincial • Council of Otago raised the price of rural land in the district of Southland, until the publication of the classification of the lands by three commissioners, who, under authority of the Superintendent, classified the unsold rural lands not included within any existing Hundred in the district of Southland, and sent in their report on the 10th of April, 1871. Onthe 11th July, 18 71, the Superintendent, by authority of the sth section of the Southland Waste Lauds Act, in which it is enacted that it shall be lawful for the Superintendent, with the advice and consent of the Provincial Council, to set aside lands for sale on deferred payments, such lands to be sold and dealt with in terms, and subject to the conditions and provisions embodied in sections 47 to 64, inclusive of the Otago Waste Lands Act, 1572, set apart a number of lands for disposal under the system of deferred payments, and included in these lands were 960 acres on run No. 159, to which plaintiffs had a right as holders of a depasturage license -which does not terminate by efiiuxion of time till 1881. On the 19th August, 1874, Archibald Finlayson, Newman Finlayson, and Kenneth Finlayson, respectively, applied under the provisions contained in the 47th to the 64tli sections inclusive of the Otago Waste Lands Act, 1872, embodying what is commonly known as the deferred payment system of alienating rural land, for licenses to occupy three several parcels of land, each containing 200 acres, situate in the Taringatura district and on the run No. 159. The applications were opposed by plaintiffs, but notwithstanding such opposition an interim certificate was, in pursuance of the 3rd subsection of the 50th section of the Otago Waste Lands Act of 1872, issued to each of the said applicants. The Waste Lands Board had refused to issue to the said applicants respectively, licenses to occupy the lands referred to in such interim certificates respectively, until the opinion of the Court had been obtained. The questions for the opinion of the Court were : (1.) Is the said proclamation of the 11th day of .Tuly, 1874, mentioned and set out in the third paragraph of this case, so far as it affects lands comprised within the limits of the said run No. 159, or any other run held under licenses issued in pursuance of the Southland Waste Lands Act, 1865, valid ? (2.) Are any of the lands comprised within the limits of the said run No. 159, or any other run held under the provisions of the Southland Waste Lands Act, 1865, legally liable by virtue of the pro-

visions of the Southland Waste Lands Act Amendment Act, 1873, to be set aside for the purpose of being sold on deferred payments, or otherwise dealt with according to the provisions contained in the 47th to the 64th sections inclusive, of the Otago Waste Lands Act, 1872. (3.) Are any of the lands comprised within the limits of the said run No. 159, or any other run held under the provisions of the Southland Waste Lands Act, 1865, legally liable by virtue of the provisions of the Southland Waste Lands Act Amendment Act, 1873, to be sold on deferred payments, or otherwise dealt with according to the provisions contained in the 47th to the 64th sections inclusive of the Otago Waste Lands Act, 1872 ?

Mr. Macassey and Mr. Ilaggitt appeared for the plaintiffs, contending that it was not the intention of the Legislature to embody all of the sections from 47 to 64 of the Otago Act into the Southland Act, because the other provisions of the two Acts were so different, and the circumstances of the two provinces so diverse, that provisions which were perfectly applicable in the one case would be absurd if applied to the other. It was submitted that if two constructions could be placed upon the sth section of the Southland Waste Lands Act of 1873, then the Court would adopt that construction which would not interfere with vested interests of individuals. It was pointed out that under the regulations of 1856, pastoral tenants held land by licenses, in respect of which they paid £5 per annum ; but their occupation was liable to be determinated at any time, and for such determination they were not entitled to compensation. The province then got into considerable difficulties, and in adopting means to extricate the province from the difficulties, it was the policy of the Legislature to hold out inducements to the tenants to giv e up the tenures they then held, and to pay the provincial authorities larger sums for their tenures, the inducement held out being that they would attain great security in their holdings. They were led to believe that their tenure would remain unaffected except by the land being sold, granted, or reserved for public purposes. When the Act for the reunion of the two provinces was passed, the position of the pastoral tenants was confirmed, by special provision being made to retain the same land law for Southland as was then in existence, and therefore it was submitted for the plaintiff that a lease could not be determined by proclamation of the Superintendent without compensation being given. The certificate of occupancy granted upon the application within terms of the law regarding the deferred payment was not a purchase, grant, or disposal, or reservation for public purposes, within the meaning of the Act of 1865, s. 59, and the license could not be abrogated. It was inconsistent and unreasonable that individuals should be so deprived of their rights, and the fair construction to be placed upon the Act was that it applied to all land open to be dealt with, without interfering with existing rights of individuals. The validity of the proclamation was contested, and it was urged that a mere proclamation did not comply with words used in the Act, “ with the advice and consent of the Provincial Council.” An Ordinance was necessary. Even supposing proclamation was sufficient, there ought to be two ; one setting aside the land, and another proclaiming it to open for selection under the deferred payment system. Wednesday, November 17. Before their Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Gillies, and Mr. Justice Williams. MORRISON V. PEARSON AND OTHERS. The hearing of this case was continued from he previous day. Mr. Barton (with whom was Mr. Stout), in replying to the arguments of Mr. Macassey and Haggitt, contended that land when set aside under the deferred payment system was set aside in order that it might be (sold, and reading the Act of 1865 and the Act of 1873 together, the disposal of the land under the deferred payment system was an absolute sale. He quoted preamble, and sth section of the Southland Waste Lands Act, 1873. Mr. Justice Gillies had doubts as to whether there was a contract for sale. He thought there was merely the acquisition of a right to purchase on certain conditions being performed.

Mr. Justice Johnston asked if it could be a sale when the Provincial Government had no power to enforce specific performance. It seemed to him that there was a want of mutuality which rendered the transaction less than a sale.

Mr. Justice Gillies said it might be a sale so far as the Government was concerned, yet the purchaser was not bound to buy. The Government were bound to sell, but the purchaser was in a position to refuse to buy. Mr. Justice Williams : It is not a sale till all the payments have been made. The Chief Justice : It is quite clear it cannot be a sale, because it is optional with him till the end of three years whether he will purchase or take a lease. Mi'. Barton : In law a lease was a sale pro. tanto. The transaction was a contract for a sale, which might be defeasible : but still the pastoral tenant would have to go to the rightabout on the commencement on the purchaser’s occupation. He went on to argue that the pastoral tenants had not been injured by the change in the law. If they had given up their licenses under former regulations, they had had many concessions granted them. Ten yeai-s’ additional term of tenure was given. Mr. Justice Johnston : Which, according to your argument, is defeasible. Mr. Barton pointed out that their title had been defeasible under the original arrangement. The Legislature had given them a ten years’ defeasible lease, additional to the fourteen years’ defeasible lease previously held. He argued that the tenants were not harshly treated, and pointed out, in answer to the assertion that the Acts of 1865 and 1873 were inconsistent, that clause 6 of the la3t Act said

the former was to be read in so far as its provisions were not repugnant to the Act of 1873. Speaking on the law on this subject, he cited a case 5 Beavau, 582, and Daw v. Metrop. Board of Works, 12 C. 8., N.S., 161. To show that private interests must give way to public right where the two aonflicted, he mentioned the Great Central Gas Consuming Company v. Clarke 13 C. 8., N.S., 838. Mr. Justice Williams inquired whether the rights of the license were determined on the land being set aside, or when it was sold on deferred payments. Mr. Barton said he had hoped not to he asked the question, for he was not prepared to answer it. However, Mr. Stout had thought over the matter, and would submit his views directly. He then passed on to combat the contention that it was necessary to pass an ordinance instead of a proclamation to set land aside.

A long discussion ensued on the question whether the Provincial Council had consented to the setting aside of the land. It was pointed out by the Court that, on the case, it appeared that James Macandrew had issued a proclamation setting the land aside ; but it was not alleged that he had done so with the advice and consent of the Provincial Council. It was necessary that such consent should be given, and, if as a fact it had been, it should so appear on the case. Mr. Barton said he should ask permission to amend the case, presuming Mr. Macassey would have no objection. Mr. Macassey replied he was quite willing to consent to the amendment, provided the other side would consent to insert in the case the terms of the messages sent by the Superintendent to the Council on the subject ; the resolution of the Council, and to insert in the case a record of the fact that the proclamation had been issued after the Provincial Council had been prorogued. Mr. Barton said that would raise new questions, and he must decline to consent to that. Mr. Macassey said he should not consent to the other amendment. Mr. Stout remarked that if they chose they could raise a couple of points which would necessarily involve the dismissal of the case. They did not wish to take that course, but it might be necessary to do so, and plaintiff would not gain his point. Mr. Macassey said such threats often defeated the object with which they were made, and if the various messages were not set out his side should decline to allow any amendment. Mr. Barton : Then I ask the Court to dismiss the case with costs. Mr. Macassey : I shall claim the judgment of the Court, as defendant cannot sustain his case. Mr. Barton said he should ask the Court to dismiss the case because the plaintiffs were not the proper persons to bring the action, and because the defendants named in the suit were not the proper defendants. The Waste Lands Board consisted of five members, but by some means plaintiffs had got seven defendants in the bill. Mr. Justice Johnston thought it would be much better if the parties could arrange it between them, as it would be a pity that all the expense incurred should be with no result. The only effect of dismissing the case would be to waste time, for doubtless the facts would come before the Court later. The Court then adjourned for luncheon. On resuming, Mr. Barton stated that an arrangement had been come to, and he was willing to make the admissions sought for by the other side. The first message from the Superintendent recommended the setting aside of a quantity of land, including that piece mentioned in the case No. 159. A resolution of the Council was subsequently passed approving the recommendation of the Superintendent, and requesting him to set aside the lands mentioned. The proclamation was admitted to have been made after the Council had been prorogued. He then continued his argument that the proclamation was sufficient, for a resolution of the Council assented to by the Superintendent was and had the full effect of an Ordinance. The Chief Justice : Is it such an Ordinance that the Governor might disallow if he thought fit? Mr. Barton : Perhaps not, but it had the full effect of an Ordinance. Mr. Justice Johnston dissented from such a proposition. A resolution only affirmed that in the opinion of the Legislature such and such a thing was desirable. It was an expre*sion of opinion of what ought to be done, whereas in an Ordinance there were enacting words and an expression of the will of the Legislature. It might be that a resolution justified action, but that was a totally different thing from an expression of will which required no further action to make it valid. If the Parliament resolves that a certain thing is proper to be done, the resolution has no opera tion of itself.

Mr. Barton submitted that if a resolution commenced “be it resolved, &c.,” and then went on to declare that the meaning of such and such a section of a certain Act should be taken to mean so and so, and the Governor gave his consent to the resolution, it would have the force of an A ct. There was no magic iu the words “ Be it enacted.” Mr. Justice Johnston thought there was magic in the words “be it enacted.” Mr. Barton submitted that, although the words in the Act might justify an ordinance liable to be disallowed by the Governor, a resolution would meet the requirements of the Act. As to the alleged absurdity in fixing the price of land on deferred payment less than the cash price, he failed to see it ; for under the deferred payment system a number of onerous conditions were imposed upon the purchaser, and the laws were of such a nature as were calculated to put industrious people upon the land to develope the resources of the country ; but even if some of the clauses introduced from the Otago Act did not apply that was no reason why those that did apply should be ignored. He disputed that the fair

construction of the Act was to apply the provision of the deferred payment clauses to the land which was not occupied by pastoral tenants, and referred to sections 47, 49, and otlieis, to show that such a construction was unreasonable. He submitted that the proclamation was valid.

Mr. htout spoke of the reasonableness of the policy of the Legislature, and gave reasons why 1/s. (id. for land sold, conditionally on the purchaser residing on it, cultivating, fencing, and draining it, was more than equivalent to. 40s. cash, when these conditions were not insisted upon. As to how the Court should treat objections raised against public policy, he cited .Dwarras on Statute 214. From the wording of sections 98 and 149, Otago Act, he argued that by inference leases were determined when the land was set aside. Tn answer to the arguments that the land had not been sold, granted, or reserved foi public purposes, ho urged first, with regard to the word “ sale,” that although a sale on deferred payment might not be regarded as a sale in the strictest legal dictionary sense of the word, yet if the Legislature declared it to be a sale the Court must consider it to be a sale. Tf the law without that declaration from the Legislature would not consider it a sale, yet when the Legislature had called it a sale the Court was bound to accept it as such. AY hen day after day Courts gave effect to the meanings of words in Acts as that meaning was set forth in interpretation clauses, they were but doing what the Court was asked to do in. this case. Thus interpreted, a horse sometimes came under the denomination “ cattle.”—Dwarras ©n Statutes 215 and 272, Queen v. Inhabitants of St. Ormonds, 2 Q.lb 84. Tt was a conditional sale—AttorneyGeneral v. Jones, Mac. 306. A “grant” did not necessarily mean a Crown grant/ It might be a grant of a license or lease. If the land was not set aside for public purposes, what was it reserved for ? Hot for private purposes ; but assuredly for public purposes. Beyond this, it might be pointed out that under the Act of 1865 there was a contemplation of disposing of lands otherwise than by sale, the land might be “ disposed of by sale or other<r ise ” „ tte couterKle d that wherever the words “ lands” occurred it meant waste lands of the Crown generally, and did not merely refer to land in Hundreds, and not occupied by pastoral tenants. Mutuality was not necessary to constitute a sale. The Court at 4.30 adjourned. Thursday, November IS. (Before, their Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Gillies, and Mr. Justice AVilliams.) MORRISON V. n:ARSON AND OTHERS. Air. Alacassey having replied to the argumeEts put forward by the other side, The Court reserved its judgment. MACINTOSH (aBPELUANT) V. SOUTHLAND WASTE LANDS BOAED (RESPONDENTS). Air. Alacassey and Air. ITaggitt for appellant , Air. Barton and Air. Stout for respondents. Counsel for the respondents raised the question of jurisdiction, contending that as this was an appeal from a judgment given by the Court below on an appeal from a decision of the AVaste Lands Board, it would not lie. The Supreme Court was the highest tribunal in the colony to which the appellants could go, for ncithei the AVaste Lands Acts nor the Court of Appeal Acts provided for an appeal from the Court below iu such a matter as this bein«entertained by the Appeal Court. Air. Alacassey said he was much taken by surprise, but must admit that the Court had no jurisdiction.

Mr - Haggitt submitted that, under section 1 ‘ the Appeal Act, 1872, an appeal would he, contending that the AVaste Lands Board vv as a court; a decision of which might be reviewed by the Court of Appeal.—McLean v Alacandrew, AI.C. report; vide Chapman’s judgment.

Air. Stout urged that the appeal must be dismissed, with costs ; and in answer to remarks from the court, said his side had been guilty of no laches in not having stated at the time the order for leave to appeal was made tnat such an appeal would not lie. They were not in a position to make that objection. The application for an order was essentially an ex parte application ; and, more than that, a judge in the court below could not dictate’to the Court of Appeal as to how far its jurisdiction went. He would have to grant tlie order for leave to appeal. AVhether the court had jurisdiction or not, was an arguable point, as was proved by counsel for the respondent contending in the affirmative on the present occasion. Even supposing, when the application for an order was made, he and his friend Air Barton were aware of the fact that an appeai would not he—which he did not admit, for it vvas not until they arrived iu AVcllington that the point had been investigated— still it was not his place to advise counsel on the opposite side. They made the ex parte application at r *' l3 it was to be presumed that, before making such an application, they had made themselves acquainted with the law upon the subject. If costs were not allowed the jurisdiction of the Court of Appeal would never lie challenged, because litigants would know they would be cast in costs.

Mr. Justice Johnston said if at the time the application had been made in the court below respondent had been aware that such an appeal would not be, they should have raised the point there.

r TV \ r , Cr>ly t 0 the ar S umen t in support of costs, Mr. Alacassey quoted Saubageou v. Gauthier L.lv. 5 P.C. 494 and 499.

After consultation, his Honor the Chief Justice delivered the judgment of the Court and said -AVe are of opinion that upon the mam subject of the preliminary objection raised by the counsel for the respondents judgment must be for the respondents. The AVaste Lands Board Appeal Act, 1867, gives no appeal from the expresion of the opinion of the bupreme Court upon a case submitted to it by a AVaste Lands Board ; on the contrary, sec-

tion 6 provides that such opinion shall be intimated to the Board, who shall act in accordance therewith. The Court ef Appeal Act does not provide for this case, which was probably not within the contemplation of the framers of that Act. Upon the question of costs, we are of opinion that as the respondents allowed the order for leave to appeal to be given, and have themselves acted upon it, they are to blame in the matter, and are not in a position to ask for costs. The appeal must therefore be dismissed without costs.

HERBERT V. THOMSON AND OTHERS. Mr. Barton expressed a wish to move fora rule nisi calling upon plaintiff to show cause why this case should not be set down for argument during the present sitting. The Court intimated that probably it would hear Air. Barton on the subject next morning. ■Shortly after four o’clock the Court adjourned, having decided to take Auckland cases next day.