THE COURTS.

New Zealand Mail, Issue 1160, 25 May 1894, Page 32

THE COURTS.

COURT OF APPEAL-

Argument in the case of Noa Huke and others v. G. B. Davy and others was concluded on the 16th at the luncheon hour. Their Honors reserved judgment. In the afternoon the Court proceeded to hear argument on an appeal by the Oamaru Harbour Board against a decision by Mr '"‘- Justice Williams. By the Oamaru Harbour Board Acts of 1878 and 18/9 the Harbour Board was authorised to borrow in the manner prescribed by the Oamaru Harbour Board Ordinance of 1874 a sum of .£IOO,OOO in addition to the ,£IOO,OOO originally authorised to be borrowed under the Ordinance. The security was to be the dues and rents, but the later loan was made second charge upon these subject to the original loan of .£IOO,OOO. By the Oamaru Harbour Board Act of 1882 further provision was made for borrowing .£50,000, and V special security by means of a rate was authorised to be given. A rate of 3d in the pound on the annual value was accordingly struck and given as security. It was ' declared by the Act that each year any surplus, after paying interest on the .£50,000 in the sinking fund, should be paid into the Harbour Board fund. A similar Act authorising a loan of .£40,000 was passed in 1887. Some time since, on the application of a holder of bonds (Mr Beckwith Smith, of London), issued under Acts of 1878 and 1879, a receiver was appointed, and the Board afterwards moved the Court to alter the order by leaving out the rates under the Acts of 1882 and 1887, on the ground that they were only meant as a security for special loans under these Acts, and not meant as security for any other loan. Mr Justice Williams dismissed the motion, holding that the bondholders under the Acts of 18/8 and 18/9 were entitled to the surplus, and therefore entitled to the appointment of a receiver to receive these rates, but so that the annual charges in respect of the special loans should continue as a first charge. Against this order dismissing the motion referred to the Board now appeals. Mr Hislop appeared for the appellants, and Mr Woodhouso (Oamaru) for the respondents, the Trustees and Executors Company (carrying on business in Dunedin), who are the receivers. Judgment reserved. On Thursday (May 17) the Court proceeded to deal with the appeal case of Barre, Johnston and Co. v. Oldham. Tho appellants, who were tho plaint id's in the lower Court, are merchants carrying on

business in Sydney, and the respondent- (otherwise the defendant) is a manufacturer of tinned meat at Patea. Tho plaintiffs entered into a contract with the Netherlands Government to supply them with tinned meat at Batavia, and plaintiffs thereupon made a contract with defendant to obtain from him supplies of tinned meat, which were to bo in strict accordance with tho requirements set forth in their contract with the Netherlands Government. This contract between tho plaintiffs and the Netherlands Government contained tho provision that the reports of tho administration at Batavia should bo taken as conclusive as to the condition of the meat, and that the Netherlands Government should have tho power to make deductions for any deficiency in quantity or quality. Tho Netherlands Government having under this provision made large deductions from tho contract price agreed to bo paid by them to the plaintiffs, tho plaintiffs then sought to recover from tho defendant the amount so deducted from them. Issues of law were stated for the opinion of the Supreme Court in Wellington upon the question whether the defendant was bound by the conditions in the original contract between the Netherlands Government and tho plaintiffs, making tho reports of the Batavian administration conclusive. Mr Justice Richmond, before whom the matter was brought, held that tho defendant was not so bound, and tho plaintiffs thereupon bring tho present appeal against that decision. Mr H. D. Bell appeared for the appellants, and Mr Hislop for the respondent. Judgment was reserved.

The Court on May 18 proceeded to hear argument upon the matter of a lease of the Ngawhakatutu block (Poverty Bay district) from Hemi Whakararo and other Natives to Mr J. N. Williams. The Regis-

trar-General of Lands, with the consent of ] the lessee, submitted a case for decision : under section 197 of the Land Transfer j Act, 1885. It appears that the Native owners of the block in question (which has an area of 5000 acres) number 223,; that the title to it was an order of the Native Land Court dated May last, and made under the Act of 1886; that the Native owners or some of them have executed a memo, of lease to Mr J. N. Williams of their undivided interests in the block, and that the lease is now in course of preparation. It is essential to the validity of the lease that it should be registered under the Land Transfer Act, 1885, but the Land Registrar of the Hawke’s Bay registration district, in which the block is situated, informed the lessee that he would refuse to register tho lease on the ground that it is a dealing with land in contravention of section 5 of the Native Lands Frauds Prevention owned by more than 20 Natives. The lessee contended that section 3 of the Native Lands Frauds Prevention Act Amendment Act of 1889 and the proviso contained in it regarding leases takes the block out of the operation of section 5 of the Frauds Prevention Act of 1888 inasmuch as the land does not exceed 10,000 acres and is the subject of a title which is registerable under the Land Transfer Act, and as such land was so owned for moro than 40 days before the memo, of lease was executed. The District Land Registrar demurred to this contention on the ground that tho order bears a date subsequent to the passing of the Frauds Prevention Act of 1888. The question submitted for the decision of the Court was as followsls the Registrar right in refusing to register the memo, of lease upon the grounds that tho block became the subject of an order of the Native Land Court

subsequent to the passing of tho Native Lands Frauds Prevention Act of 1888, and is owned by more than 20Nativcs ? Mr Stafford argued the matter on behalf of the Registrar-General of Lands, and Mr Edwards on behalf of tho lessee. Tho Court gavo its decision in favour of tho Registrar’s contention, and as the Regis-trar-General of Lands thought the contention of tho lessee was a fair one to raise, ho had instructed his counsel tr consent that the lessee’s cost should come out of the assurance fund. An order was made accordingly, <£ls 15s costs being allowed tho lessee. Tho decision in this case will govern a number of others. The Court adjourned until Monday, at 10.30 a.m.

The case of tho Canterbury Seed Company (appellants) v. tho J. G. Ward Farmers’ Association of New r Zealand came before tho Court on Monday morning on appeal from a judgment of Mr Justice Williams, given at the last sittings of the Supremo Court at Invercargill. It appeared from tho statement of claim that tho J. G. Ward Farmers’ Association in March, 1893, sold to tho Canterbury Seed Company a cargo of ryegrass seed to bo shipped f.o.b. at tho Bluff, the price agreed upon being <£223 lfis 2d. The seed was duly shipped f.o.b. at tho Bluff, and sent on to Lyttelton, whence it was removed by the Seed Company to their store at Addington. They subsequently dishonoured the draft of tho Farmers’ Association on the ground that some of the seed was not up to sample. The Canterbury Seed Company’s store was afterwards destroyed by fire, and the seed was all burnt. They objected to pay to the Farmers’ Association the stipulated price on the ground that they had rejected the seed as not being up to sample. The Farmers’ Association then brought an action in the Supreme Court which was

tried by Mr Justice Williams and a common jury of four. The jury found that the seed could quite conveniently have been sampled at the Bluff and the Court decided that the Seed Company ought to have inspected and sampled the seed at Lyttelton, and that not having done so and having removed the goods to their stoie they lost their rights of rejection, and therefore would have to pay. Judgment was accordingly given for tho plaintiffs (the Farmers’ Association) for the amount of the claim, less £8 15s 6d, a deduction, agreed upon at the trial, for deficiency in quality. Mr Edwards, with him Mr F. Wilding (Christchurch), appeared yesterday for the appellants, and Sir Robert Stout, with him Mr J. 1,. Watson (Invercargill), for the respondents. Sir Robert Stout, as a preliminary objection, submitted that the Seed Company had no right of appeal. The action in the Court below had been tried by judge and jury, and the next step in the matter ought to have been an application to the Supreme Court for a re-hearing. In support of this contention a number of English authorities were quoted. Mr Edwards complained that lie had had no notice of this objection. There ought to have been notice of motion to strike out the appeal. He would liko time to look into the authorities.

The Court decided to proceed with the hearing of argument on the appeal and intimated that if necessary it would give Mr Edwards an opportunity of replying to the preliminary objection. Sir Robert Stout stated tliat the points relied upon for the respondents were: —(1) There was a sale of specific goods and no sale by sample. (2) There was not a sale by sample at all; not even a warranty. (3) There was no rejection of the goods. (4) There was noj‘power to

reject tho goods because the ge*ds had been receival at tho Bluff, and tho power of rejection was then too late. As subsidiary points it would bo contended : —(1) That tho appellants had an insurable interest in the goods after arrival at tho Bluff, and (2). the right to stop in transitu was gone after arrival at Lyttelton if not at the Bluff.

Mr Edwards then entered upon his argument in support of the appeal, lie had not finished when the Court adjourned.