The Courts.

New Zealand Mail, Issue 998, 17 April 1891, Page 28

The Courts.

SUPREME COURT. His Honor the Chief Justice on Friday gave judgment in the patent case heard last month. The ease was one in which an application was made on behalf of Charles Robertson, of New South Wales, for a reoisioa of a decision of the Patent Officer in favour of an invention by Charles Campbell, of Otago. The Registrar had granted a patent to Campbell, and the case was brought into the Supreme Court to set it aside on the ground that the principle had already been patented by Robertson. The question which the Court was asked tc decide was how far a new applicant could copy the patent of a previous invention. Mr Quick appeared for the respondent, in whose favour judgment was given with costs £l2 12s. Mr Jellicoe appeared for the appellant. The Hon E. Richardson sat with his Honor as an assessor. IN BANCO. Wellington, 15th April. 1891. ( Before his Honor Mr Justice Edwards). WILKINS V. RO3INSON. In this case the facts and arguments in which were reported last week his Honor now delivered judgment regarding the writ of prohibition. His Honor held it to be established that there was a clerk of the Resident Magistrate’s Court and an officer of that Court at the Lower Hutt, and that the petition had been properly filed there. He also intimated an opinion that this being a question of fact, it was one onwhich the Magistrate’s finding was conclusive, even though a finding the other way would have crushed his jurisdiction, but did not decide this point, as it was unnecessary to do so. His Honor also held that the Magistrate had had facts before him from whicb, not being bound by the strict rules of evidence, he could well infer that the petition had been signed as required by the Re- * gulation ef the Local Elections Act ; and ] further that the Magistratehaving received . the petition as one properly signed and instituted an enquiry, upon it, it was for the j plaintiff to have shown that the petition j was informal and insufficient to support' the proceedings. The writ was therefore refused. The question of costs was allowed to stand over at the request of Mr Gully, counsel for the plaintiff. SHEATH V. BLYTH. This was an appeal from a decision of Captain Preece, R.M., Napier. The appellant is a solicitor, and the respondent employed him in the preparation of a mortgage from a Native, Hapuku, to himself. The appellant had a lien upon the Native’s title deed, and to enable the mortgage to be given as a first charge it was arranged that, to release the lien, the respondent should pay off the amount owing to the appellant, adding it to the amount to be secured by the mortgage to himself. This was accoidingly done, and themortgageexeeuted. When themortgage came before the Trust Commissioner he refused bis certificate on the ground that it provided for further advances, and that he had to be satisfied that the whole consideration had been actually paid. It was decided to take counsel’s opinion as to the advisability of appealing against this decision, but in doing so the time for appealing was allowed to pass. The respondent then brought this action against the appellant to recover the sum paid to discharge his lien, and the Magistrate gave judgment for the respondent on the grounds mentioned in the judgment of this Court reported below. Mr Chapman, for the appellant, was stopped by his Honor, who, after hearing Mr Gully for the respondent, delivered judgment as follows :—I have no doubt whatever about the matter. The respondent based his claim in the Court below on two grounds, the first, that of negligence ; the second, that of failure of consideration. I am unable to see anything in the statement of claim or in the findings of the Magistrate to justify me in concluding that the appellant ever contracted to give a valid mortgage. I am satisfied, looking at the whole facts, that there was no such contract. That being so I do not think I ought to remit the case for the Magistrate to find something which would be inconsistent with what he has already found. If there were any ambiguity I should, of course, remit, but I think that there is none. Mr Gully relie3 upon the second paragraph in the particulars of claim which reads as follows : —“That it was airanged and agreed upon between the plaintiff, defendant, and the said .Tames Grindell and the said To One Hapuku, that the said Te One Hapuku should execute in favour of the plaintiff a mortgage over tho share estate and interest of the said Te Ono Hapuku in the Koparakore Block to secure the sums of money owing by the said Te One Hapuku to the plaintiff, th 9 defendant, and the said James Griudell, and that the plaintiff should pay the defendant and the said James Grindell ihe sums owing by the said To One Hapuku to them I respectively on the plaintiff being secured under tho said mortgage.” Then there is also the clause in the case in which the Magistrate states that the respondent agreed to pay the sum of L 73 5a 6d to the appellant on a mortgage over the interest of the said Te One Hapuku being executed to secure the respondent. It is said that these paragraphs together amount to an allegation by the respondent and a binding by the Magistrate of a contract by the appellant to procure, a valid mortgage. I am unable to agree. I think that if

there was any contract it was a contract to get a proper mortgage executed. This the appellant did. Owiug to a misconception of the Magistrate acting in another capacity the Trust Commissioner’s certificate was not given. If an appeal had been properly prosecuted the certificate would have been allowed. The appeal was not prosecuted, and the mortgage is valueless. All that may form a ground for an action against the appellant for negligence, but that I cannot deal with now. On that point the Magistrate has decided against the respondent. He has entered a nonsuit, and there is no cross appeal. The action might have been presented on tho ground eicher of fraudulent misrepresentation or of negligence, and the respondent might possibly have been able to hold a judgment on either of these grounds, but he cannot hold it upon the present ground. Before the mortgage was executed it was necessary to take steps to have the lien satisfied. The consideration was quite clearly the giving up of the lien. The lien was given up and the mortgage is actually or potentially in the possession of the respondent. If the loss has occurred to the respondent in consequence of any breach of duty by the appellant, then it is satisfactory to , see that it is still open to the respondent to proceed again on that ground. He has merely been non-suited, and he may go before the Magistrate again on that point, when he may possibly convince him, or if necessary there will further be open to him a proper appeal to this Court. The appeal is allowed with costs L 7 7s. STAINS V. WELLINGTON CITY COUNCIL. This was an appeal from a decision of H. W. Robinson, Esq., R.M., Wellington, giving judgment against the appellant as mortgagee and subsequent purchaser of property in the city of Wellington for arrears of rates amounting to over LBO. The principal ground of appeal was that the special order adopting certain statutory provisions as to the recovery of rates had not been properly I made. Section 121 of the Municipal ' Corporations Act, 1886, provides that the | power to do anything by “ special order ” shall only be exercised by a resolution adopted at a special meeting, such resolution to be confirmed at a subsequent meeting held not sooner than four weeks thereafter. The question was whether a meeting held 28 days after the first, exclusive of the day of the first bnt inclusive of the day of the second, was too soon, and whether there ought not to be an interval of 28 clear days between the dates of the two meetings. Mr Skerrett was for the appellant, Mr Martin for the respondent. His Honor reserved his decision. (per press ASSOCIATION.) Nelson, April 13. The Supreme Court sessions opened this morning before his Honor the Chief Justice, who complimented the grand jury on the totol absence of crime in the district. There was only one case, Regina v. Flanagan, for impersonation at the general election, and in this the gfand jury found no bill. Dunedin, April 13. In bankruptcy to-day, Mr Justice Williams refused a discharge to Hy. Benjamin. In regard to the retention of jewellery, there was nothing, he said, beyond a suspicion which did not warrant a refusal of an order. As regards tbe second objection, there was the fact that after his books came into the hands of the Assignee, Benjamin had fabricated evidence in support of a claim which the wives of the bankrupts were about to raise against the Assignee and tbe general body of creditors. This appeared to his Honor to be a mercantile offence of the highest degree, which alone justified tbe Court refusing an order. On the third objection, a 3 to the £4OO received from the Rev Harrington, he did not believe the bankrupt, when receiving the money, intended to rob the depositor, but from tho facts within his means of knowledge Benjamin was not justified in inviting the public to treat his firm as a bank of deposit. At the time of receiving this money his account at the Bank of New South Wales had been, in fact, in liquidstion for five months. Looking at wtiat Benjamin knew, or should know at the time of the loan, His Honor was eatisfied be was not justified in posing before the public aa a banker, open to receive deposits. He must have been aware if he had wanted an overdraft without security be could not have obtained it to carry on when in that position. It was simply layiug a trap for the public.