Law Intelligence.

New Zealand Mail, Issue 221, 4 December 1875, Page 20

Law Intelligence.

SUPREME COURT.—IN BANCO. Monday, November, 29. (Before Mr. .Justice Williams.) The Court sat at 10 a.m. BAI'CKE V. VOGEL. Argument on demurrer. PlaintiiFs declaration was filed on 16th .Inly, 1875, and set out that defendant was a member of the Executive Council of New Zealand, and was sued as Treasurer of the colony, and that the Executive Government of the colony had placed itself under a certain responsibility to plaintiff to recover a sum of A") 00, purchase money with interest of property purchased by Archibald Watson Slmnd, an officer of the Government. The money was recovered by the Government and deposited in the Colonial Treasury under the hand and in possession of defendant, acting as Colonial Treasurer, who refused to pay it over to plaintiff. The declaration then went on to allege that plaintiff, exporting the sum of .£3OO, had entered into negotiations for the purchase of a farm for £llsO. He had paid £4OO, hut owing to the default of the defendant he had been unable to fulfil the terms of bis bargain, and had forfeited the £4OO. He had besides been put to great loss of time, and expense, and inconvenience, and bad otherwise been s-riously injured in bis estate, credit, &c., wherefore he claimed from defendant, the £3OO and interest thereon from the 6th October, 1860, to the Ist September, 1875, in all £ll7, and in addition to this lie claimed the further sum of £5768 in special damage, as set out in particulars of demand. To this declaration defendant demurred on three grounds, the first being that the action was brought against the defendant in his individual capacity, whereas the claim made in the declaration was a claim against the defendant as Colonial Treasurer.

Air. Cordon Allan appeared, cm behalf of defendant, to support the demurrer; and

plaintiff in person argued contra. After considerable discussion, Air. Justice Williams gave judgment, saying : I shall dispose of this demurrer on the first ground, that the action is brought against the defendant in his individual capacity, whereas the claim is made against him as Colonial Treasurer. There is no doubt that notwithstanding anything in the declaration to the contrary, the action is brought against the defendant as an individual. If a judgment were obtained, no doubt it would be against the defendant personally, and his private property would be alone liable to be seized under execution. The question as to whether defendant is liable as a private person for claims made against him in his official capacity is therefore fairly raised by the first ground of demurrer. But the declaration charges that the Executive Government of the colony, of which defendant is a member, entered into certain obligations and received certain monies for the plaintiff. The Executive Government are advisers of the Crown, and an averment that acts were done by the Executive Government would mean that such acts were done by them in their public character. It is quite clear that an action will not lie against any member of the Executive Government or against the Colonial Treasurer in respect of expressed or implied obligations contracted in bis official capacity. The demurrer, therefore, must he allowed with costs. The Court then rose.

VICE ADMIRALTY COURT. Monday, November 29. (Before the Worshipful James Prendergast, Esq., Judge.) The Court sat at 2 o’clock. IN EE YOUNG DICK. Air. Gordon Allan applied that the report brought up by the Registrar might be confirmed. The application was not opposed, and the award was therefore confirmed.

COURT OF APPEAL. Friday, November 26. (Before their Honors Air. Justice Johnston, Air. Justice Gillies, and Air. Justice Williams. ) VENNELL V. BRANDON. On their Honors taking their seats, Air. Justice Johnston said the Court did not desire Air. Allan to reply on behalf of the defendants, and would give judgement next morning. (Before their Honors the Chief Justice, Air. Justice Johnston, Air. Justice Gillies, and Air. Justice Williams.) REGINA V. THOMAS SPENCER AND FREDERICK MAYO. This was a case reserved under .the G9th section of the Court of Appeal Act, 1862, by his Honor Air. Justice Gillies. The case stated that at a sitting of the Circuit Court at Auckland on the Bth July, 1875, Thomas Spencer and Frederick Mayo were indicted before his Honor for a forcible entry and detainer. The indictment was set out, and alleged that defendants, with six other persons, on the 28th May entered into a dwellinghouse at Parawai then in possession of one Frederick Bennett, and did with a strong hand expel Bennett and his family from the dwelling-house and still keep them out, “ to the great damage of the said Frederick Bennett, and against the peace of our Lady the Queen,” &c. To this indictment the prisoners pleaded not guilty, and evidence was adduced from which the following facts appeared:— One Cassin was assignee of a lease by the accused Spencer of lands known as “ Parawai Gardens.” Cassin took Bennett into partnership, and by agreement gave him an interest in the lease. Bennett and his family lived in one house on the property and Cassin in another, and jointly managed the property. On the 26th Alay the rent was twenty-one days in arrear, and Spencer proceeded to exercise his right of re-entry under the lease, by placing a bailiff in Cassin’s house. Bennett, however, refused to surrender possession of the house in his occupation, or to allow any one to enter. Spencer on the 28th May assembled a number of men (“ sufficient to overawe any resistance by Bennett and his family ”), proceeded to the house with them (amongst whom was the accused Alayo), and with their assistance, and without any warrant or process of law, broke open by force and violence the door of the house, forcibly ejected Bennett and his wife and family, and took out Bennett’s furniture and placed it on a dray they had brought with them. For Spencer it was contended that, this being an indictment at common law and not statute, and lie having by virtue of his lease the right of re-entry and possession, he was entitled at common law to enter and take possession by force and evict Bennett, and the Judge was asked so to direct the jury. (3 Bae. Abr. 711.1 This he declined to do, holding that inasmuch as Bennett had entered lawfully, and was at the time in lawful occupation, he could only be ejected by legal process, but on the request of counsel for the accused, be agreed to reserve the question for the Court of Appeal, as to whether Spencer had, in the circumstances, such common lawful right, as his counsel contended for. The accused were both convicted, and sentenced to pay small fines, which had been paid. 'Mr. Allan, who appeared for the Crown (defendants being unrepresented), contended that under the facts found, the indictment must be supported. During the course of his argument he cited 5 R, 11., e. 8, 15 R. H. 2, 8 11. iv., e. 9, 21 .1.1., c. 15, King v. Blake, 3 BurBurrows, 1731, Telford v. Bowes, 31 U.T. 60, 1 Bussell on Crimes, 426, Wilson v. McLean, 2 C. and P. 17, Regina, v. Smyth, 5 C. and P. 201, Davis v. Wilson, 11 Q.B. 890, Burley v. Reed, ildd. 904, 1 M and G. 644, King v. Wilson, 8 L.R. 1357. The learned counsel had not concluded his address when the Court intimated that they had come to a decision. The Chief Justice said: Without going into the question which is mentioned in King v. Wilson, as to whether a person may use some degree of force iu taking possession of a freehold in oc«

cupation of another person without the sanction of law, it is quite sufficient for mo to say that in this ease the facts shown satisfy me that there was a breach of the peace committed by an exhibition of force, such as to create in the minds of the persons against whom it was used, alarm and fear of resisting the persons who were coining to take possession ; and it seems to me that this was a breach of the peace and a criminal offence.

Air. Justice Johnston : I am of the same opinion. There is a good deal to be said as to the amount of force that a person is entitled to use in order to get possession of his property, and that amount of force which is necessary to constitute a breach of the peace ; but it is sufficient for the purpose of this ease to say that the amount of violence and force found by the jury to have been used is ample to bear out the allegations that what was done amounted to a breach of the peace. Therefore, whatever the rights of the party using it might he as against the persons iu possession, still it was a public offence. Air. Justice Gillies : I concur. Mr. Justice Williams : I quite agree with wliat has already fallen from the Bench, and have nothing further to add. The conviction was therefore confirmed. (Before their Honors the Chief Justice, Air. Justice Johnston, Air. Justice Gillies, and Air. Justice Williams.) HARDING V. GALBRAITH. This case has been before the Court for the past two years, and had relation to a disputed sale of two thousand sheep. It now came before the Court in error. After arguments by Air. Travers for defendant, and Air. Bell for plaintiff, the Court gave judgment for defendant. The Court then adjourned till 11 a.m. on Wednesday. Wednesday, December 1. (Before their Honors the Chief Justice, Air. Justice Johnston, and Air. Justice Williams.) KARAITIANA V. SUTTON AND OTHERS. His Honor the Chief Justice delivered the judgment of the Court and said : In order to answer the questions on which the opinion of the Court is to be taken, it will be necessary to go through shortly the various transactions affecting the land included in the Crown grant to Karaitiana and others. This grant was dated the 29tli December, 1863, and was made to Karaitiana, the plaintiff, and eight other natives, their heirs and assigns. Karauria. one of the grantees, has died since the date of the grant, and the remaining seven are defendants in this action. Karauria died on the stli December, ISGS. The grant being to the nine in joint tenancy, his share accrued to the eight survivors. By deed dated the 29th December, ISOS, and made between Te Waaka Kawatini, one of the grantees, of the first part, William Parker of the second part, and Henry Parker of the third part, reciting that Te Waaka was seized of the land tiierein described as joint tenant, and that he had agreed with Henry Parker for the sale to him of all his interest in the said lands in consideration of the rent charges therein mentioned, Te Waaka in consideration of certain rent charges conveyed to William Parker and Ills heirs, inter alia, ‘‘all that equal undivided ninth part or share of him, the said Waaka Kawatini, of and in all that parcel of land included in the above grant with the appurtenances, and all the estate, title, and interest of the said Te Waaka in the said parcel of land,” upon trust, to pay the rent charges to Te Waaka during his life, and subject thereto upon trust for Henry Parker in fee. This deed on the face of it transfers a ninth share, and all the estate and interest of Te Waaka in the land included in the grant. The general words are sufficient to carry all tiie estate Te Waaka had in the land, and there is nothing in the recitals to narrow the general words. The recitals do not specify any particular share to which Te Waaka was entitled, they state simply that he was seized as joint tenant of certain lands with other natives, and that he had agreed to convey all his interest in such lands. In the case of Roope v. Lord Kensington, it was held that a manor did not pass under the words “ all other the lands, tenements, and hereditaments in the county of Middlesex,” and that the intent of such words was simply to sweep in other property cj mclcm tjeneris with the property conveyed and not to include manorial rights of property of a totally different character. Tiie one-eighth of one-nintli accruing to Te Waaka by the death of Karauria was strictly ejmcleni i inner is witli the undivided ninth expressly mentioned, and would pass under the general words. The case of Huntv. Remnant (9 Ex. 635) is clearly distinguish able. There tiie question was whether a right of entry, accrued by forfeiture of a sub-lease, passed by general words in an assignment of the original lease. Such a right of entry, if assignable at all, was only made by 8 and 9 Viet., c. 106, and the assignment in question was made expressly subject to the sub-lease. It was held that the right of entry did not pass. The assignment on the face of it treated the sub lease as subsisting. The instrument thus negatived by implication the existence of any right of entry, and contained no express words to rebut the implication and pass the right. The interest parted with by Te Waaka under the above deed became again vested in him, and was subsequently, on the 21st June, 1870, conveyed by him to the defendant Sutton. As an absolute conveyance of this interest had been made by Te Waaka to Parker before the passing of the Native Lands Act. 1869, the subsequent dealings with it would be unaffected by that Act, and Sutton would be entitled absolutely to the one-eighth share of Te Waaka acquired by him under grant, and the accrual of Karauria’s share.

On tiie 19th July, 1869, Paora Torotoro, another of the grantees, mortgaged to Rob. Cashmore all his share in tiie land included in the grant. By deeds dated the 26th July and 30th August, 1869, respectively, Urupene Puliara and Krueti Nganui, two other grantees, mortgaged their shares to the defendant Sutton.

On the Ist September. 1809, Tareha, a grantee, agreed !u sell his interest Lu Sir Donald McLean for £3OO, receiving £SO as a deposit. The quantum of interest intended to be affected by this agreement is shown by the terms of the deed, afterwards executed in pursuance of it, to be Tareha’s original ninth only.

On the 3rd September, 1569, the Native Lands Act. 1869, came into operation. At the time, therefore, of the coming into operation of that Act the interests of tiie grantees and persons claiming under thorn were as follows Assigns of Te Waaka, one-eighth absolutely. Sir LI. McLean, equitable interest in oneninth. Tareha, legal estate in one-ninth, legal and and equitable estate in one-eighth of one-ninth, (‘ashmore, legal estate in one-eighth as mortgagee of Paoro Torotoro. Sutton, legal estate in two-eighths as mortgagee of ITrupene Puliara and Krueti Nganui. Paora Torotoro, Urupene Puliara, Krueti Nganui, each equity of redumption of one-eighth share Ahore te Koare, Nikera Whitingara, and plaintiff, each absolute one-eighth share. The 12th section of the Native Lands Act, 1869, enacts that in any grant theretofore made under tiie Native Lands Acts the grantees shall lie deemed to have been tenants in common and not joint tenants. The 13tli section makes it quite clear that this section was intended to have a retrospective operation in cases where a grantee had died between the date of the grant and the passing of the Act. The proviso in the 12th section prevents the retrospective operation only as to such part of the land included in the grant as had been alienated by absolute conveyance in fee. By tl*e 14th section

the estate of the grantees is not to bo deemed to be equal or of equal value, unless stated in the grant, but this provision is not to apply to “ shares, estates, or interest already purchased from any such grantees, which for the purposes of such transactions shall bo deemed to have been equal.” The intention of these clauses is quite clear, and the intention has been expressed by not unapr, words. The manifest object of the Legislature was to repair a mistake that had been made, in granting land to natives as joint tenants, and giving eacli grantee an equal interest, to amend the grants, and to make such amendment relate back to the time of the issue of the grants, so far as could be done without affecting the rights of persons claimg by purchase from the grantees. The Act of 1869, therefore, leaves undisturbed the interests of the assigns of Te Waaka and of Sir D. McLean. So far as the mortgages to Cashmore and Sutton are concerned, the shares of the mortgagors for the purposes of the transaction are by the Act deemed to have been equal ; but it is only when the interest of a grantee has been absolutely alienated in a fee simple that he is considered as having held in joint tenancy under tiie grant. The mortgagors and Karauria are therefore made tenants in common ; and the effect of the retrospective operation of the Act is to divest them and their mortgagees of the share vested in them by accrual on the death of Karauria. The tliree-eiglith shares lieid by Cashmore and Sutton as mortgagees are, therefore, reduced to three-ninth shares only. A further effect of the Act is to vest in the representatives of Karauria his share, whatever it was, as tenant in common under the grant, less one-eightli of one-ninth of the whole land vested in the assigns of Te Waaka by accrual. The grantees other than Te Waaka would, with the representatives of Karauria, then be tenants in common in undefined shares of the land undisposed of, that is, of tiie whole less oneeighth vested in the assigns of Te Waaka, and oneninth vested in Sir D. McLean. Whether Tareha or not remained interested, would depend on whether his share was greater or not less than the one-ninth lie sold to Sir D. McLean. The shares of Paoro Torotoro, Urupene Puliara, and Erueti Nganui, would be equal only so far as necessary for tiie purposes of the mortgages. The 15th section of the Act of 1869 enacts that it shall not be lawful for less than a majority in value of tiie grantees and their successors to make any contract, lease, mortgage, or conveyance of their estate or interest in the land granted, or any part of it. Cundell v. Dawson (4 C. 8., 376) decides that a contract entered into in contravention of a statutoryprovision, will not support an action. In Pliilpott v. St. George’s Hospital (0 H.L., 349), the Lord Chancellor says, that prohibitory statutes prevent you from doing something which formerly it was lawful for you to do, and whenever you find anything done that is substantially that which is prohibited, it is open to the Court to say that it is void, because by reason of the true construction of the statute it is tiie tiling, or one of tiie things actually prohibited. There is nothing in tiie Act of 1869 from which any absurdity would result iu treating these transactions as absolutely void, or from which it can be gathered that it was tiie intention of the Legislature to treat them as voidable only under particular circumstances. The intention of tiie Legislature. as disclosed by the Act, was apparently to prohibit these transactions on the ground of public policy. Tiie case admits that none of the conveyances and mortgages made by the grantees since the Act of 1869 were made by a majority in value of the grantees. All these, therefore, would bo invalidated except the conveyance from Tareha to McLean, Tareha, at the time of tiie passing of the Act, being'a mere trustee of the one-ninth contracted to be sold. The transfers of mortgage from Cashmore to Kinross and from Kinross to Sutton, though made since the passing of the Act, as they are not made by grantees, are not affected by its operation.

Tiie answers to the questions proposed would therefore be:—

1. The interest of Karauria on his decease passed by the operation of law to the surviving grantees in the grant named : but by the operation of the Native Lands Act, 1869, tiie interests so vested in the surviving grantees were divested except as to one-eighth of one-ninth of the whole land, included in the grant, which remained vested in tiie assigns of Te Waaka Kawatini. This one-eighth of one-ninth was not subject to any equity on behalf of the children of Karauria. The remainder of tiie estate of Karauria is now vested in the defendants, Samuel Locke and Tareha Moananui, as trustees for the children of Karauria, mentioned in the tenth paragraph of the case.

2. Sir Donald McLean took an estate in fee simple in one-ninth of the whole of the land included in the grant, by virtue of the agreement of the Ist September, 1869, made with Tareha Moananui, and the conveyance of tiie 25th May, 1872, made in pursuance of this agreement. The defendant Sutton took an estate in fee simple in one-eighth of the land under the conveyance of the 21st June, 1870, from Te Waaka Kawatina to him. Under the mortgage of the 19th July. 1869, from l’aoro Torotoro to Robert Cashmore, and the subsequent deeds of assignment from Cashmore and Kinross, and by operation of the Native Lands Act, 1869, Sutton took the legal estate in one-ninth, by way of mortgage to secure the sums mentioned in this deed.

Under each of the deeds of mortgage, of the 2Gth July and the 30th August, 1869, made respectively between Urupene Puhara and Krueti Nganui and Frederick Sutton, and by operation of tiie Native Lands Act, 1869, Sutton took tiie legal estate in one-ninth by way of mortgage to secure the sums mentioned in those deeds respectively. Under the other deeds of mortgage and conveyance mentioned in the case, the defendant Sutton took no estate or interest. These deeds were executed after tiie passing of the Native Lands Act, 1809, and are therefore void. WILLIAMSON V. PEARCE. The judgment of the Court was delivered by the Chief Justice as follows: This was an action for the rectification of a lease by inserting in the deed an exception of certain roads which tiie plaintiff alleges it was agreed between his attorney and the defendant should be excepted. The plaintiff, in deference to the opinion of the judge at the trial, elected to be nonsuited, leave being reserved to him to move to set aside the nonsuit, and for a new trial. A rule nisi was granted, pursuant to leave, and on cause being shown in the court below, the rule wa3 discharged. Against this judgment the plaintiff appealed to this Court The Court is unanimously of opinion that tiie appeal should be dismissed.

Without going so far as to say that there was an entire absence of evidence tending to prove the proposition that according to tiie terms of the original agreement the roads were to be excepted, we are of opinion that if we assume the whole of the evidence given on behalf of the plaintiff to be true, without considering the contradiction of it by the defendant’s evidence, there would not be a sufficiently clear and satisfactory case established to enable the Court, within the principles laid down and the practice pursued in Courts of Equity in England, to entitle the plaintiff to the rectification which lie seeks, and for that reason we think that the nonsuit should not be disturbed, and the appeal should be dismissed with costs. Appeal dismissed with costs. VENNELL V. BRANDON. The judgment of the Court in this case, which had been heard before Mr. Justice Johnston, Mr. Justice Gillies, and Mr. Justice Williams, was delivered by Mr. Justice .Johnston, who said : The important facts of this case appear to be that one liowler mortgaged to one Rhodes certain freehold and leasehold lands, and subsequently conveyed the freehold lands only to the plaintiffs in trust for his wife, &<:., by way of marriage settlement, but this settlement remained unregistered until after registration of certain memorials of judgments after memorials. Thereafter Bowler became bankrupt, and in August, 1867, Rhodes sold both freehold and leasehold in one lot under liis mortgage, which produced £199 7s. 9cl. over his mortgage debt. This surplus Rhodes paid to one Brown, to be paid liy him to the person or persons entitled by law to receive the same, lie having notice of tiie settlement. In the meantime, and before payment to Brown, two creditors of Bowler registered memorials of judgments against the freehold lands settled as before-mentioned. The

plaintiffs, and the defendant as solicitor for the judgment creditors, respectively claimed the amount in Brown's hands, and Brown in January, 1868, paid the money to the defendant, being such solicitor, he having knowledge of the settlement, and the defendant paid over or accounted to his clients for the monies so received by him. The present action, commenced in December IS7I is under rules an action for specitic relief, not an action for money, the relief sought being a declaration that defendant is trustee for the plaintiffs of the re ? e i vc<l by him, although the claim is added that the defendant he ordered to pay. The trust witli which it is sought to clothe the defendant is not in respect of any specitic identifiable property, hut of a sum of money arising from a specitic source, and of an ascertained amount. Its being an ascertained amount is not essential to the cause of action, as it might have been equally well alleged as an unknown amount, and if the right were established, inquiries as to amount would he subsequently directed. Irom the record it may be gathered that the money was paid by Brown to defendant, and claimed and received by him on behalf of his clients, under the luea that the registration of the memorials of judgment prior to the registration of the settlement gave the judgment creditors a priority over the trustees of the settlement. That this idea was an erroneous one is clear (it was virtually admitted on the argument that it could not be supported), and, therefore, the money was paid to and received by the defendant under a mistake of law

We may, therefore, eliminate from the facts before stated, all those relating to the non-registration of the settlement, and to the registration of the memorials of judgment.

lor the purposes of this action it is necessary to determine the respective liabilities of Rhodes and Biown The defendant appears to have claimed and received the money from Brown as agent for and in right of his clients. He accepted no trust in respect oi the money paid to him, even if Brown did so. Brown paid it to him upon no trust, but as an absolute payment on behalf of defendant’s clients. How ,?£ n „ he sai( l to lie a trustee on behalf of the plaintiffs ? It was contended that although he received it under a claim of right as an absolute payment to bis clients, yet because be bad notice of the settlement and knowledge of the origin of the fund, and of the claim of the plaintiffs to it, he therefore, ny Ins wrongful receipt of the amount, became trustee lor them But surely something more is requisite to constitute the relation of trustee and cestui quo trust. (Vide Man v. Pearson, 28 Beav.. 100.) A person wrongfully receiving monies to which he knows there a counter claim does not necessarily become a trusJ®.® ;? r u t ; le counter claimant on the latter establishing lis right. He may be liable or not to refund to the person paying him the payment made to him, but he cannot property be called a trustee of that sum of money _ Having received the amount merely as an agent, his receipt and possession was that of his prin- £ fr Hc "; as Kmnd to pay over to them, and he „*, 11 do so. Notice to him of a counter claim , not convert him into an implied trustee. (^h°ls° n v. Knowles and others, 5 Inad., 47 ) nnwmi e r’ er Rhofl ?s', Brown’s, or the defendant’s niay be ’ lve consider that t hi 1 bable as a trustee, and that therefore the judgment of the Court must be for the defendant.