Law Intelligence.

New Zealand Mail, Issue 384, 21 June 1879, Page 10

Law Intelligence.

COURT OF APPEAL. The judgment of the Court was delivered by his Honor the Chief Justice as follows in the cases Kawatina and Others v. Kinross and Kawatina and Others v. Barnett : These are appeals from the judgment of Mr. Justice Richmond, over-ruling demurrers by the plaintiffs to each defendant’s second plea. The defendants were sued jointly, and pleaded separately. The plaintiffs demurred to the second plea of each defendant ; both demurrers were over-ruled in the Supreme Court, and the plaintiffs having appealed in both cases they were brought on together for argument. The plaintiffs in their declaration allege that by Deed of Grant from the Crown (which deed is set out) the land mentioned in the grant was granted to the plaintiff, Paora and three others, naming them, and their heirs and assigns, on the conditions therein named. It appears from the grant set out that it was made subject to the proviso that the land granted should be inalienable by sale or by a lease for a longer period than twenty-one years from the maldng of the lease, or by mortgage, except with the consent of the Governor being first previously obtained to such sale, lease, or mortgage. That by deed of lease, dated 19th August, 1867, they demised the said land to Gully and Morecroft for a period of twenty-one years from the Ist January, 1867, at a yearly rental of £260, and that Gully and Morecroft entered under the lease. That by deed, dated 13th September, 1876 (set out), Gully and Morecroft assigned the said term of years to the defendant Kinross on the terms and conditions therein mentioned. (The assignment was by way of mortgage.) That by deed (set out and purporting to be made on 14th September, 1867) Kinross assigned the term (by way of mortgage) to one Braithwaite, as manager of the Union Bank. That* by deed (set out and purporting to be made 2nd June, 1879),Braithwaite,by direction of Gully and Morecroft, and of Kinross, assigned to defendants, Kinross and Burnett, the unexpired residue of the term. That the defendants have entered under the said deeds (by this must be meant the last deed), and have continued in possession till the present time. There are other allegations as to the deaths of two of the lessors, after the making of the said lease, and the appointment, in 1876, under the Natives Land Act, of successors to those two in respect of the said land. Since the commencement of the suit, Kawatina, one other of the lessors, has died, and there is a suggestion of administration "ranted of his effects by the Supreme Court to one Petiti, who is made plaintiff instead of Kawatina. The declaration then goes on to state that,

by virtueof the premises, theplaintiffs havebeei since the date of the assignment to Kinross anc Burnett, and are still entitled to receive fron the defendants the yearly rent of £260, bu' the defendants have not paid it or any part o it, and concludes with a claim of £2340, beins rent from January 1, 1868, to January 1, 187/ and £748 for interest, at the rate of 8 pei cent.; in all, £3OBB 16s. The second plea o: Kinross alleges that since June 2,1869 (the date of the assignment to the defendants .of the lease), it was agreed between the plaintiffs am the defendants that the said lease should be surrendered, and that a new lease should be granted in the terms thereafter mentioned that an agreement in writing was signed ir the words and figures set out, and purporting to be made on the 30th July, 1569. Notwith standing the averment it seems certain that the agreement was made with the. four lessors, and not with the present plaintiffs, but nc point has been made as to that. The agreement states that the said natives agree tc accept a surrender of a lease of the said land, and to grant to the defendants a lease of the said land for 21 years, from Ist June, 1869, at the reduced yearly rent of £IOO ; it then states that the rent reserved in the former lease is £9O ; and that in consideration of such lease the defendants agree to pay £586.195. And in the agreement is stated a proviso that the present agreement was made expressly on the condition that the new lease be approved and consented to by the Governor in Council.in conformity with the Native Lands Act then in force and that the proposed lease be in the same terms as the aforesaid lease, with the exception of the term of the rent reserved. Not only is the agreement set out but what purports.to be the execution thereof by each of the natives is set out, together with the attestations thereof, each execution purporting to be attested by a licensed interpreter and another person, after translation and explanation to the persons executing. The plea then goes on to aver that by deed of lease, dated 16th August, 1870 (setting it out), the grantees and lessors demised the said land to the said Burnett ; that Burnett entered into possession, and that the sum of £795 10s. 3d., mentioned in the last-mentioned deed, as still owing to the defendants, and that all rent reserved in the last mentioned deed has been paid. By this lastmentioned deed of lease the lessors demise to Burnett thesaid land, to hold from June 1,1869, for 21 years thence next, Burnett paying yearly during the said term, a rent of £IOO .by yearly payments, the first having been paid on Ist June, 1870, and being due on the. Ist June in each year. This plea no doubt is intended as an answer to the whole claim. As an answer not only to rent under the lease of 19th August, 1867, accruing after the execution of the lease set out in the plea, but also to rent accrued during the period between the assignment to the defendants of 2nd June, 1869, and the execution of the lease set out in the plea. The defendants rely on the lease as effecting a surrender from the date of the agreement, or a release of all rent since the date of the agreement. The plaintiffs demur on several grounds. The first is, that it is not alleged in the plea that the agreement of. 30 th July, 1869, had ever been carried into effect ; that is, that it does not appear that the lease had been surrendered. Assuming for the present that the plea sufficiently avers a valid lease made on the 16th August, 1870, then, from that date at any rate, there was a surrender of the lease of 19th August, 1867. But this ground of demurrer seems to be taken upon the supposition that the defendant intends, by the introduction of the aver-

ment as to the agreement, to set it up, with the lease as a surrender at an earlier date than the date of the lease of August, 18/0. And for the plaintiffs it was contended that, even assuming a sufficient averment of a valid lease made on the 16th August, 1870, there was nevertheless nothing alleged in the plea from which it appeared that there was any surrender earlier than the date of the lease of 16th August, 1870, and consequently that the rent accruing due under the lease of 19th August, 1867, during the period between the 19th August, 1869, and the date of the execution of the new lease was not answered. This objection is that the plea though, pleaded to the whole answers only a part and is therefore demurrable ; but no such ground of demurrer is taken by the demurrer, nor was it attempted to be so argued in the Supreme Court. I think that, though possibly the objection may be made out from the record, it is not so apparent that on appeal the Court ought to take notice of it, the plaintiff not having made it a ground of demurrer, it not having been argued in the Court below, and the Court below not having proceeded upon it or noticed it. The second ground of demurrer is, that it is not alleged that the approval of the Governer in Council had been obtained to the new lease. But this proviso, it was competent to the parties to waive, .and as the plea alleges an absolute demise, and not one subject to condition, it must be intended that the parties had waived thi3 stipulation. The third ground of the demurrer is that the lease of 16th August, 3870, is a mortgage as well as a lease, and consequently that it is contrary to the proviso in the grant, and is bad. No doubt a mortgage of the land in the grant without the Governor’s consent would be void. But the lease does not purport to be a mortgage of the land : it may be that evidence might show that the parties intended the lease to be a security for the debt referred to in the lease, and the lease might upon such evidence be held to be an equitable mortgage of the land ; but there is nothing from which it can be inferred that the lease is other than what it purports to be, that is a lease in possession for a period of not more than twenty-one years with an authority to the lessee to apply the rents in payment of a debt due to the lessee by the lessors. This does not require the Governor’s consent. As to the fourth, fifth, and sixth grounds of demurrer, they may be dealt with together. I think that as the plea alleges that the deed was '• a deed of lease,” and that by it the lessor “ demised” the land, it is good in substance,

and that the objections, even if well founded, are not such as can be taken on demurrer. I should have arrived at the same conclusion had I thought that the lease was made in the exercise of a power given by the Native Lands Act, for even in such a case the objection be one not open on demurrer ; for if the deed did operate as a demise, it must have been well executed, and there must have been compliance with all requirements of the Statute law (if there be such) necessary to make the lease a valid demise, otherwise it would not be a demise, therefore the demurrer must be overruled. As this is the conclusion at which I have arrived, it is unnecessary to give any opinion on the construction to be put on the 32nd section of the Native Lands Act Amendment Act, 1867, relating to the declaration to be made by the interpreter of deeds by Maoris affecting lands passed through the Native Lands Court. For the reason given with regard to the plea by Kinross, I think that none of the grounds of demurrer taken against the plea of Burnett can be sustained ; but for the same reasons that Kinross’ plea is no answer to the whole claim and therefore bad, is Burnett’s plea bad also. The demurrer in each case must be overruled with costs in this Court, and in the Supreme Court.

The following is the judgment of the Court in the case of Henderson v. the Napier Harbor Board : “ In this case the claim of the plaintiff is made up partly of the unpaid balance of the original contract price of £30,500, partly of a sum for extras. With respect to the former portion of the claim, the plaintiff has not obtained the written certificate of the engineer that the works have been satisfactorily completed as required by the 26th clause of the contract. With respect to the claim for the extra works, the plaintiff is unable to produce any written orders for their execution either of the engineer or of the Harbor Board, as required by the sth clause. In order to excuse non-production of the final certificate, the declaration alleges that the engineer, in refusing it, is acting in collusion with the Harbor Board and by its procurement. A case of virtual fraud is also set up. as regards the extras, and it will be convenient first to examine this latter part of the plaintiff’s case. “ The declaration, as amended at the trial, in effect alleges that after the execution of the contract the defendant wrongfully and improperly, and without the knowledge or consent of the plaintiff, altered the site of the western embankment, and thereby increased the cost of the works. The additions rendered necessary by this alteration are what it is sought to charge as extras. On the part of the°defendant it wag not denied that an alteration had been made by their engineer, Mr. Weber, on the site of the western embankment. It appears that the contract plan was founded upon the official survey of the town of Napier, which turned out to be incorrect. Mr. Weber says :— ‘ After discovering the error in the survey of Napier, I was compelled to sharpen the curve so as to get a distance of 400ft.’ We understand the witness to mean that, as the contract plan showed a width of 400 ft. between the eastern and western moles, some connection was absolutely necessary to render the plan consistent with itself. The rectification of such a discrepancy would probably come within the terms of the third condition. But it further appears that some actual change in the site of the western embankment wa3 fmade in order to avoid the necessity of passing over sections on the Spit belonging to Mr. T. Williams. Evidence was adduced on behalf of the plaintiff that the alterations thus made in the plan of the works had greatly, increased the cost and difficulty of construction ; that no notice was given to the contractor of the altertions ; that the contractor, suspecting a change in the centre line of the western embankment, had more than once made inquiry on the subject of the engineer ; that the engineer on two occasions denied the existence of any alteration ; and, lastly, that the contractor remained in ignorance of the alterations until some time afte'r the commencement of the works. These several points taken together would establish a case of gross misconduct against the engineer. The evidence adduced to prove such a case is open indeed to much comment, and was contradicted by evidence adduced on the part of the defendant. Nevertheless we are of opinion that there was something to go to the jury on all these points. It is however well settled by a series of decisions, of which Clark v. Watson (34 Law Journal, C.P. 148) is one of the most recent, that in order to disentitle the employer to insist on the strict terms of such a contract as the present, it is essential to show that he has been acting in collusion with the engineer. On this point we are of opinion that the plaintiff made no case at all. We are, indeed, ready to assume in his favor that the Harbor Board were cognisant of the deviation made to avoid the sections of Mr. Thos. Williams, but there was no evidence at all that they supposed, or could suspect, that the quantity of work to be done would be increased thereby, or that the contractor wa3 not perfectly aware of the alteration, and assenting thereto. The first mention of the matter between the contractor and the Board is contained in the letter of Mr. Davis, junior, dated 14th May, 18/7. Mr. Davis begins with a remonstrance against the disallowance by the engineer of a part of the sum claimed by the contractor as. a progress payment for work done in the previous month He then proceeds to notice the alteration of site in the following terms : —‘ I would also be" to direct attention to the fact that the western embankment, as it now stands, is not the embankment I contracted for, but a new one removed from the original site nearer to deep water, and containing more than double the quantity of stone shown on the original plan and cross-sections upon which my tender was based. To the alterations alluded to I repeatedly called Mr. Weber’s attention, but ha invariably assured me there were none, until, on April 2nd, during a conversation and dispute with Mr. Weber about measurements,

he admitted that the site of the embankment was altered by the consent of the Board, t® save buying some sections from Mr. T. Williams.’ “It is evident that Mr. Davis had at this time no thought of imputing to the Board any complicity with Mr. Weber in the alleged attempt to deceive the contractor. The idea of such an imputation does not seem to have occurred until a very late stage in the proceedings, when it appeared that the plaintiff's case would absolutely depend upon establishing the fact of collusion. We are unable to discover any evidence on the subject which could justify a finding in the plaintiffs favor upon this part of his case. And we may remark in passing, as a highly significant fact, that the letter to the Board to which we have just referred was not written until six weeks after the day on which (as Mr. Davis alleges) Mr. Weber finally admitted the alteration to have been made. “ We have now to consider the case made by the plaintiff with respect to his claim to the balance of the contract price. Mr. Weber’s letter to the defendant of 13th May, 1878, certainly tends to show that he was withholding his final certificate, not because the works were incomplete or were badly executed—although, in fact, there were certain exceptions taken to the execution —but in order to compel the contractor to forego his claim for extra payment in respect of the alteration in the site of the western embankment. We do not doubt that in this Mr. Weber was acting quite conscientiously ; but such was not a legitimate use of his authority, and the Board would have been better advised to pay the balance properly due upon the contract, leaving the plaintiff to establish if he could his additional claim upon them. We think there was evidence to go to the jury that the final certificate was improperly withheld; but here again the plaintiff failed to adduce any evidence whatever that Mr. Weber acted as he did by procurement of the Harbor Board, or in collusion with them. It is on the contrary pretty clear, that Mr. Weber in the discharge of what he conceived to be his professional duty, was acting quite an independent part. “ For these reasons we are of opinion, that a nonsuit must be entered pursuant to the leave reserved for the purpose by the learned Judge who presided at the trial. In thus setting aside the verdict we are acting in accordance with the opinion of that learned Judge, who is not satisfied with the finding of the jury on the cardiual question of collusion. The jury themselves appear to have affirmed with difficulty and reluctance the charge of fraud made against the Harbor Board. They proposed at first to absolve the defendants from moral fraud ; but upon it being suggested to them that such a qualification was inconsistent with the existence of collusion, and consequently with a verdict for the plaintiff, they withdrew the qualification, and returned unqualified findings in the affirmative upon the issues imputing collusion. “ We have dealt with the plaintiff’s claim for extras as limited to the stone in excess of the proper contract quantity, which is alleged to have been employed in the construction of the western embankment. But in addition to the sum of £2563 4s. for extra stone, the jury allowed the plaintiff the sums of £7O 4s. for spare rubble, £192 for driving 32 piles, and £56 for iron shoes to the same. No argument was addressed to us in favor of the right of the plaintiff to retain his verdict for any of these smaller sums ; nor was our attention called to any evidence that any one of these claims is chargeable as an extra. The rubble seems to have been part of the 1200 cubic yards which the contractor was required to keep stacked on each side of the water [see specification], which certainly cannot be charged for as an extra. The 32 piles and shoes were supplied under orders from the engineer to replace defective piles, and not in addition to the proper contract number. Even supposing that we could assume that these items, or any of them, had been ordered in writing as extras by the engineer, the plaintiff's case would still be defective for want of a written order from the Board, as required by the sth clause of the conditions.

“ The rule is made absolute, with costs.”

SUPREME COURT—IN BANCO. Wednesday, June 18. (Before his Honor Mr. Justice Richmond.) MOTION FOR INJUNCTION. In re Plimmer and another v. Hickson. Mr. Ollivier moved, on behalf of the plaintiffs, for an injunction to restrain a threatened sale of property. The motion was an ex parte one, and he proceeded in the matter on the ground of urgency, the writ having just been issued. He explained the case at some length. The action was brought by the plaintiffs, as trustees under a deed of arrangement filed by Mr. Kreeft, against the defendant as mortgagee of a certain leasehold property. It appeared that Mr. Hickson had advanced £750 on mortgage in August, 1877, and that the money was to be repaid in 1882, with interest in the meantime at 9 per cent., payable quarterly. The quarter’s interest which became due on the 30tli of April remained unpaid for thirty days and upwards, and after the deed of arrangement had been assented to at a meeting of creditors held on 10th June, the plaintiffs offered to pay the interest in arrear. Defendant, however, refused to accept it, and said he would sell the property under the power of sale in hie mortgage, and he advertised the property accordingly. The plaintiffs made a formal tender of the interest on the 14th June, and offered to pay any costs incurred by defendant in. connection with the intended sale. This was refused, and defendant expressed himself determined to proceed to sell. Mr. Ollivier moved for a provisional injunction to restrain the sale on payment of interest and costs. Considerable discussion ensued, and ultimately, His Honor refused the motion, holding that if he were to grant any such injunction it

wnii!fi )<•-, i'-f t ■•• hieing a now ( quit." as against : i i” u who w -i qor. r ill V a", liberty to exerci-a. all his r< ln-Hio- tmlo ! s proceedings to ro'lfi-in :ili-idutel \ were taken. DEMURRER IN lit: RICHARDSO • V. II.VNK OK NK'.V SOUTH WALES. Mr. Forward Applied that this case might stand over, as it had been arranged that it should not come on till next day. He had received a telegram from Mr. Connolly, who was detained at Nelson, but would be in Wellington next day. The case was allowed to stand over. DEMURRER IN' RE RROWN V. CITY TRAMWAY COMPANY. Mr. Travers appeared in support of the demurrer, and Mr. Ollivier supported the declaration. Mr. Travers explained the case at some length, pointing out that the Corporation consented to the construction of tramways by the promoters, who afterwards became the company. It was agreed in writing between the promoters and the contractor, that the latter should construct, and maintain the tramway in good order for twelve months, and this was set forth in the declaration, the particulars of the demand being also appended at schedule prices. The demurrer was that the declaration did not show any privity of contract to entitle the contractor to sue the company on that ngre rrient. The agreement was made between the plaintiff and the promoters, and did not show that there was anything to bring him into privity with the company. It was an absolutely personal contract with the promoters. If plaintiff had failed in the performance of his contract, the company could not sue him except in the name of the promoters, and Mr. Brown’s remedy was against the promoters. The Court of New Zealand had decided that such eases must be brought in the names of the original parties, and the law of England was the same. The case having been fully argued, judgment was ultimately given for plaintiff, the defendants having leave to amend the declaration on payment of the costs of the demurrer.

AITUiAL FROM DISTRICT COURT. Ml-. Gordon Allan appeared on behalf of the trustees in bankruptcy of All-. Nathan, in shpport of an appeal from the decision of the District Court. Mr. Edwards appeared for the respondent. Mr. Allan having fully entered into the case aud stated the grounds of appeal, His Honor reserved his decision. MOTION ADJOURNED. A motion for a rule nisi to set aside the decision given in the case of Minilie and Martin was adjourned. Several other cases were postponed, and the Court adjourned till to-day. RESIDENT MAGISTRATE’S COURT. Friday, June 13. (Before T. A. Mansford, Esq., R.M.) PERJURY.

Alphonsus Rush was charged with having on the 28th May, falsely, knowingly, wilfully, and maliciously committed wilful and corrupt perjury by swearing that on the night of the late Kaiwarra fire Mrs. Phillips, the accused, was in her father’s house at the laita, and in his (prisoner’s) company, and that she never left him until the day after the fire. This case arose out of the evidence given by the accused on the charge of arson against Mrs. Phillips, his sister. Mr. Bell prosecuted, and the Hon. Mr. Bucklov defended. The first witness called was Sergeant Anderson, who deposed that he administered the oath to accused when Mrs. Phillips stood her trial for arson. Ebeuezer Baker, Clerk to the Court, testified as to the accuracy of the depositions. Mrs. William-, landlady of the Albion Hotel, Taita, deposed that on Saturday, the 10th May. she saw accused at her house at seven in the evening, sitting with the servant in the back room. He was there for some

time. Lizzie Jane Milrum, servant at the Albion Hotel, deposed that she knew accused. He had been keeping company with her. She remembered the 10th May last. Accused was with her that night, and remained in the house until eight o’clock at night. She saw him al ,am about three hours later. He passed the house, and returned again aft> r midnight from the direction of the Lower Hutt. Since Mrs. Phillips had been acquitted accused had told witness that the railway guard had not been mistaken, and that Mrs. Phillips had been at Kaiwarra on the night of the fire. Witness 1 iad now given accused up altogether as a lover. This was the case for the prosecution. Accused, at the instance of his solicitor, reserved his? defence. Prisoner was then committed for trial. J3nil was allowed, himself in £SO, and two sureties of £IOO each. Thursday, June 19. (Before T. A. Mansford, Esq., R.M.) Thomas Bird was charge ! with stealing a coat, valued at £2 10s., at the lire on thelOlli instant, and was sentenced to four weeks imprboiunent. Frederick Olson, for stealing two bottles of wine, was sentenced to two days imprisonJolm Martin was sent to gaol for 14 days for stealing a blanket valued at £l. John Setter, for stealing a number of miscellaneous articles, was found guilty, and sentcntvd to 14 days’ imprisonment. John Tlionr-en, for a similar offence, was ! !• be inne-isone 1 for a similar term. George Beil wa< a’so sent to g.i >1 for 14 days for n similar olieiioe.

TV, “hi ' turnip s*. e> ais at hand. There wr.s’.'ne show a in’ [nverc..rgill the other day which weighed no less than 201 b., if we are to IP tile' Sov.lU'nul. rimes. It should certainly be exhibited as a curiosity.