THE COURTS.

New Zealand Mail, Issue 897, 10 May 1889, Page 24

THE COURTS.

COURT OF APPEAL. Monday, 6th May. (Before tJkeir Honors Mr Justice Ricliniond, Mr Justice Gillies, Mr Justice Williams, and Mr Justice Dcmibtun.) MATTHEWS V, FXRA'ONS. Mr Harper moved for leave to set down this case. Mr Bell for the respondent. Leave to “be granted ; ,to be treated as if not set down in the case of its being struck out. THE AAHLL OF BURKE. Mr Bell obtained leave to set this case down within a week. Mr Stafford objected that the notice of motion xvas not in time. Leave granted without prejudice to the objection. LEVIN V. DEATH. Mr Bell applied for leave to set this case down. Leave granted. REGINA A'. SINCLAIR. This case was ordered not to be called on earlier than four or live days hence. m‘caul v. BOOTH. Mr Bell obtained leave to set this case down. The following order of cases xvas settled :—Williams a 7, the Queen, first; then, to-morrow, rc Ell, a bankrupt, second ; le the Ivauri Timber Company, (Limited), third ; Young v. Harper, fourth ; and McGregor v. McGregor, fifth. avilliams v. the queen. Appeal from a jurlgnr nt of hi 3 Honor the Chief Justice. The suppl ant served as a magistrate from 1861 to 1880, xvheii he was compelled to resign on account of reductions. He received a pension. In 1881 he was appointed a Native Lands Court Judge with a larger salary. In 1887 he Avas again compelled to retire on account of reductions. In this action he claimed to have his pension recomputed and allowed fit a higher rate—that is, for twenty-four years’ service, instead of eighteen, and on a salary of L6OO instead of L 450. His Honor the Chief Justice decided against the claimant, who now appealed. Mr Bell for the appellant. A person discharged just before h.e earned his pension, ivho received compensation, and avlio is re-appointed, can get a pension by refunding his compensation. If he is ali’eady entitled to a pension, according to the Chief Justice’s judgment, he is in a worse case. This is assuming the Act of 1866 stood alone. Section 12 of that Act provides for the case of an officer Avho has not earned his pension. Section 18 provides for this express case. The Legislature says you are to arid the terms together. Section 38 fixes the amount in certain cases, but the appellant’s allowance came under section 37- Section 36 is also material. There is a clear vested interest. The dilemma put by the Chief Justice docs not exist, as the new salary esnnot be below the allowance. "We ask that we be allowed to add the lafc'er period to the former period, not that the Court compute the retiring allowance. Wo rely on section 18. There is nothing in section 36 to bar U 3. The additional pension is correlative to the duty imposed on us by section 36 to serve, again if leo-.ired Passing to the Act ot 187-1. Mr Williams’ position is not interfered with. IF lie had the right under the Act of 1860 it is saved by the second section 2 of the Act r of 1871. He would have the right to tack , his services under the Act of 1366, and s th 1 1 right is kept alive by the Act of - 1871. ["Richmond, J. : Section 36, which

gives the Government the right to call on his services, is also repealed.] [Denniston, J. : If he Voluntarily took a smaller salary, how would you compute his salary ?] The right was a contingent right. [Richmond, J. : Would it make any difference if you read in “in respect of such appointment ” before the second proviso ?] No. The preamble of the Act of 1878 puts our case. We do not come within the words of section 7, but the Gliief Justice decides Ave come within the meaning of that section. Such a doctrine would en tail dangerous consequences. Sufficient weight Avas not given to the preamble. Payne v. the Queen, 7 V.L.R., Law 7 55, decidesthe service neednot be continuous ; it is also strong on the other branch of the argument. Brown v. the Queen, 12 V.L.R, 397. The cas ■; throws light on the meaning of the saving clause. [Richmond, J. : Do you agree with the construction of the Chief Justice that reappointments apply to reappointments to the same office as where an pealed and new warrants avo issued ?] It may so apply, but lh may cover us too. We do not conm lO[ , g race p, th e Act of lSi 8 ; w* 1 lely on the Act of 1866. Tuesday, May 7. (Before Richmond, Gillies, and Williams, J, J.,) IN THE MATTER OF ELL '(AHlffikiiAiNT) AND of the BANkrWtcy M3!', 1883. This was an appeal by G. W. Ell, a bankrupt, from his Honor Mr Justice Deunisibn, sitting as a Judge of the Superior Court of Bankruptcy in Christchurch on the 12th March, 1889, granting an order discharging the Official Assigrte'6 from his office in respect of Eli’s xßst&'te*. Mr Bowman appealed for live appellant-. Mr Bell, before appearing en the appeal, asked the Ooiirfc to .bear a motion, td strike out th'e appeal, on the ground tl\afc the seeutity ordered had tidb'b't&A given. He cited the Bankruptcy Act, 1883, section 14, subsect,job %. and sections 15, 16, ft id 8, and rule o 7 of the rules under that Act, to ffiiow that the appeal could not be heard under these circumstances ; and Ell v. Harper, N.Z.L.R., 4 C. A., 143, to show that ho was tr-’ ng the proper course in making a -ifeanMvo motion, Mr Bowman, for tile Contended that Rules £>3-57, as to security under [he Bankl6ptey Act, were ultra vires, as imposing an additional condition on litigants Hot imposed by the Statute (Reg. a 7. Paulet, L.R. 8, Q.B. 491), and that an Act delegating subordinate legislative powers should be construed strictly: Maxwell on' statutes, p. 357. If the Court were against him, he asked for leave to deposit the security then. The appellant was a bankrupt, and the money had not been obtainable within the time fixed. Mrßell, in reply, pointed out that the sections of the English Bankruptcy Act, and the rule thereunder, were in the same words, and that it had never been contended the rule was ultra vires; and that the Court of Appeal rules as to security had been made under similar provisions of the Court of Appeal Act. He opposed leave being given to deposit security notw th standing the expiry of the time, citing Macandrcw 7 v. Barker, 7 Cli. D, 705 ; and in re Bligli 13 Ch. D, 420. Richmond, J. : The Court has no doubt at all on t‘ e first point raised. We are all of opinion that the 27tli rule, requiring the deposit of security, is not ultra vires. The 4tli sub-section of section 14 of the Act provides that no appeal is to be entered except in conformity Avitli the rules to be made. Therefore it was clearly contemplated by the Statute that conditions upon appeal were to be imposed by the rules. That entirely distinguished the present case from that of Regina v. Paulet, wfiich was cited. In this case it is quite plain thae the Legislature invites the G*>vomor-in-Council to impose conditions, and Ave are clearly of opinion that this condition is within the purvieAV of the statute. The English rule is precisely similar under a precisely similar poAver given by the English Bankruptcy Act. Our own Legislature has made a provision of the same kind in our Court of Appeal Act, and under that Act a rule requiring security to be given for costs has been treated as a rule relating to procedure. We have not the slightest doubt that this rule is within the powers of the Governoivin-Council. Next we are asked to dispense Avith a strict compliance Avith the rule under the particular circumstances of this case. In the first place, however, Ave are very doubtful Avhether Ave possess poAver to do so. There is no general provision in the Bankruptcy Act enabling us to extend the time prescribed for any Act. The extension applied for is opposed, and avo agree that the respondent cannot be expected to make any concession ; and avc further think that, even if avo hav 7 e the poAver, this is not a case in which avo ought to exercise it. The appellant avhs aware o fthe rule, and has been speculating on an objection to it as being ultra vires. He had a plain rule fully in Anew, and, havung chosen to rely on an objection ivliich has so little in support of it, it is not a case for relief. We are therefore of opinion that Mr Bell’s objection mu--t prevail, and that the appeal must be struck out. Mr Bell asked for costs, which were allowed at L 5 ss. Mr Bell then asked that an affidavit of a Mr Brook, filed in the Court below and forming part of the case on appeal, should be removed from the records of the Court a» being irrelevant and scandalous. He cited ex parte Simpson, 15 Vesfiv, 477 ; Christie a 7. Christie, L.R. 8 Ch. 449; and Crack-

nell v. Jansen, 11 Ch. D. Mr Bowt man opposed on the ground* ainongsochers, that a motion of the same, kind was before the Court below, and the CoWrt ntitmating that the affidavit Totm?n£ phr of he ca se sent them by thfb Jkfdge below, ought certainly to be vTcalfc ivSth by him in the first place.. An order was made by consent that all matter should be expunged from the case on appeal which the Court beloAV should order to be taken off'it's file IN RE THE KAURI TIMBER COMPANY. (Before Rich moil’d.* 'Gillies, Williams and Deimiston, J.J.) This Was a motion to have removed a CRA’eat lodged by the Kauri Timber Company against lands of the Kaihu Valley Railway Company, the motion having, by consent, been removed from the Supreme Court at Auckland to the Coitf fe t>f Ajpptel. Mr Theo. Cooper iff support of the motion. Ml’ ]MI opposed. The caveat >yas Imaged by the Timber CombM'iy tO protect its interest under an agreement for the sale of the Railway Company to it of timber standing on the lands of the Railway Company. Mr Cooper proposed to shoAV, first*-,.tii&t the agreement passed Ho ilio lands, and so Was nOt 'ba'/eat vblc ; secondly, that the (lgS f eeUVeni Was never properly exebu'ited by the Raihvay Company ; and thirdly, that it avhs ultra vires of the Company. Mr Justice Williams raised the objection that the second and third points could not .be determined on a motion to remove a caveat, but should be decided iu au Sbti'Oh to be brought for that ’pVvrpbSik Mr Copper stating that, t’hc parties, wished these poiiits Uoh 7 decided, Mr Bell kaid ,hb was hot so instructed. After c6fisidei‘able discussion, the Qoutt iiitilhated that they thought SonVAUi the questions of pure law might be decided on the motion to remove the caveat if the parties agreed, and the case Avas adjourned to to-morroAv morning, at 10.30 o’clock, in order that counsel might obtain further instructions. Wednesday-, May 8-. (Before thbir .Honora Mr Justice Richmond-, Mr Justice Gillies, Mr Justice Williams-, akid Mr Justice Denniston.) Sn re The Kauri timber company. Argument in this case Avas now resumed, the parties having agreed that all the questions raised by the notice of motion to have the caveat removed should be argued and decided on that motion, and a declaratory decree made, subject to the same right of appeal to the Privy Council as from an ordinary j u figment. Mr Cooper contended, first, that the agreement with the Kaihu Valley Railway Company Avas entered into by a Mr Holdship as a principal, though acting as a promoter of the Kauri Timber Company, Avhich had not then been formed ; and that, though the Kauri Timber Company Avas afterAvavd substituted for Holdship as a party to the agreement, and the alteration initialled .by authority of the Railway Company, this could not amount to a ratification by the Timber Company of the agreement originally sealed by the Raihvay Company. The doctrine of ratification Avas inapplicable in the case of a company not in existence at the 1 time the contract Avas made. Kelliner v. Baxter, L.R. 2 C.P., 174; Melhadev. Port Alegre Company, L.R. 9 C.P., 503 ; re the Empress Engineering Company, 16 Ch. D., 125. The alterations constituted an entirely new agreement, of which the initialling was an insufficient execution. Initialling is not sufficient under the Statute of Frauds or Lord Tenterden’s Act. Taylor on Evidence, Bth edition, 1029 ; Hubert v. MurroAV, 2 C. and P., 528 ; 12 Moore, 216 ; Benjamin on Sales, 3rd edition, pp. 220, 225 , Caton v. Caton, L.R. 2H.L., 107. These initiallings ivere not intended as a reexecution, nor as an execution of a neAv agieement, but as evidence of assent to alterations in an agreement assumed to have already been sufficiently executed. The subsequent assignment under seal by the Railway Company to the Colonial Bank of the benefit of tlie agreement was not an execution of tlio agreement, nor an adoption of the seal originally placed on it There is no real analogy to similar cases under the Statute of Frauds, because that statute required only the agreement on some note or memorandum of it to be signed, A\ 7 hile subsection 2 of section 96 of the Companies Act, 1882, required the agreement to be signed. The assignment containing a recital of the agreement might perhaps, ur.der the Statute of Frauds, be treated as a note or memorandum of the agreement. There could be no estoppel as the assignment, not between the same parties, and the Timber Company had not altered its position on account of the assignment. The initialling here Avas merely by the attesting Avitnessos. The agreement Avas Avholly ultra vires, because under it the Company proposed to enter in business as timber contractors. The objects of the Company as stated in the memorandum of association were practically to construct and work a railway, and to acquire lands under the Railways Construction and Land Act. This was an agreement undertaking the preparation and delivery of large quantities of kauri timber. There was no doubt power to sell the timber, but not to contract to fell it, prepare it as baulk, and deliver it. He cited on this point Richie v. Ashbury Railway Company, L.R. 7, II.R. 703. The land was an endowment for the Company, but it could only make a profit of it by sale or lease. A raihvay company could not carry on a coal mining business. Attorn ey-

Generil v. 'Grp’Aj -No’rtljern Railway Cd/ru pany, '1 Di*. & 'oi% 154. . The Company might, ’however, have felled and used timber for construction and fuel. Lyed- a 7. Eastern Railway Company, 36 Bqav. IQ,’; Gregory V. Patplett, 33 Beav. ,’595, It was ultra vires of the i’o borrow the rhoiicy's rhfetVed to in the agreement. By tire ih.bnioi-andum of association the Oiihipany could not borrow beyond the unpaid capital. The unpaid capital was L52,0Q0, but L 47,000 had been preA’iously borKWecl on debentures. Only LSOOO could have been borrowed, though the agreement Ava.n to borrow I -25,000-. A limitation of' borrowing powers jtmSfc be stiietly eoiistr.ue;4. , Rjiitjr Dee jL.Ki jo ; App’., Gag, 354. Th'e.iJtfiscnb ixdViUice of the. L25,0b0 wits a [principal part of thb consideration. As that failed the whole agreement must fall to the ground. The question was Avhether specific performance of this agreement could be decreed. It could not, as the contract Avas indivisible..apd phiff could not be pe;.fqrmecV. Fry on Specific Perfp.thvande; &nd ed. 357 ; Merchants Trading Company v. Banner, L.R. 12, Eq. 18, 23 ; Clark v. Price 2 Wils. Ch. Cas. ; Ogden v. Fossick, A DeG. F. and J. 426. This was a sale of chattels which Avould not be specially performed. Fryon Specific Performance, p. 360, sec. 811 and 815. The part of the agreement as to an advance of L25-,fioo* and the security to be given bring Stru'ck bfic; tills remainder kbas aii figre'efiifeiit for thfi sale of chattels-. Tlie tihißer Md first to be converted by. the vendoi. No interest in land passed Avitfiin the meaning of the Statute of Frauds. Marshall v. Green, 1 C.P.D. 35 ; Smith v. Surman, 98. and C. There was an absence of authority as to what was a caveatable interest in land under the Land Transfer Act. Mr Cooper having concluded, Mr Bell gave the Court Avhat Avould be the heads of his argument, and the Court then adjourned to 10.30 the next morning.