COURT OF APPEAL.

New Zealand Times, Volume XXIX, Issue 4259, 13 November 1874, Page 3

COURT OF APPEAL.

Thursday, November 12. (Before Sir G. A. Amey, Chief Justice ; Mr. Justice Richmond, Mr. Justice Gresson, and Mr. Justice Chapman). BUSSELL V. SEALBY. This was a special case, stated for’ the opinion of the Court, by consent. Mr. Travers appeared for the plaintiff, the Attorney-Gene-ral and Mr. Hart for the defendant. The plaintiff is a sheep-fanner, residing in the province of Hawke’s Bay, and the defendant is Commissioner of Crown Lands for the same province. On Saturday, the sth of April, the plaintiff attended at the defendant’s office at Napier about ten minutes before the office closed, for the purpose of purchasing a tract of unsurveyed land at Motuotaria, Hawke’s Bay, which was then open for Sale, according to the land regulations 'of the province, at ten shillings an acre. It was; the custom of the office to enter the application and make out a “receive order,” directed to the Receiver of Landßovenue, authorising him to receive the specific .amount of. the, purchasemoney for the land, without .wiicK “receive order” the Receiver cannot accept the pur-’ chase-money. It being near two o’clock on the day named, and the defendant being engaged with two other applications in respect to other laud, he was unable at once to make out the “ receive order” for the plaintiff, and although he did make it out as soon as he had completed the other business in hand, he did not deliver it to the plaintiff until about seven minutes after the hour for closing the office, and, as a fact, the application was not entered in the registry of applications until the following Monday, the 7th, but was then entered as having been made on the sth. Previous to the delivery to the plaintiff of the “receive order,” and a few minutes before two o'clock, the plaintiff went to the Receiver of Land Revenue and told him that he had presented an application for the purchase of some land, and that a “receive order”, was then being prepared for him, authorising the Receiver to accept the purchase money. He requested the Receiver to wait and receive it, but the Receiver refused to do so, and closed his office at two o’clock. At the time of making the application the plaintiff offered to the defendant, in payment for the land, a cheque upon the Bank of New; Zealand, the bank into which the Receiver paid moneys r cceived in payment for land ; but it was ad mitted by the plaintiff that the bank was th cn closed, so that the value of the cheque could not bo tested. It was also admitted on the other side that it was the custom of the Receiver to take marked cheques in payment for land. On Monday, the 7th April, the plaintiff presented to the Receiver the “receive order ” obtained from the defendant,' and ten-

dered in payment for the land the same cheque which he had offered to the defendant ou the sth. The cheque was received without objection, and on the 9th it was paid in to the credit of the Provincial account. On Monday, the 7th, Mr. Kinross, went to the office of the defendant, and applied to purchase 3106 acres of the land which had been applied for by the plaintiff, the remainder of the 6645 acres being applied for by Mr. Kinross in the name of other persons. The applications were received, the necessary “receive orders” were issued by the defendant and presented to the Receiver, and the purchase money was paid in to the Provincial account on the 9th, the same day upon which the plaintiff’s purchase money was paid in to the same account. It was admitted by the plaintiff that Mr. Kinross was in the defendant’s office on Saturday, the sth, when he presented his application, and that Mr. Kinross then became aware that the office of the Receiver was closed before the plaintiff received his “receive order.” Mr. Kinross claimed, and still claims, that the applications were simultaneous within the meaning of the land regulations of the province, and the defendant, concluding that the applications were simultaneous, determined that the land should be put up to auction, and notice was given to the parties; but on the 23rd October, the plaintiff commenced an action against the defendant, with the object of restraining him by injunction from putting the land up to auction. The question for the opinion of the Court was, whether or not the plaintiff was entitled to a decree to restrain the defendant from selling the lands. If the plaintiff was so entitled, then judgment would he given for the plaintiff; but if the plaintiff was not so entitled, then judgment would be for the defendant.

Mr. Travers, after recapitulating the facts of the case, said the first question the Court had to consider was’whether the Receiver of Land Revenue, having been informed that certain proceedings had been commenced for the purchase of the land—properly and duly . commenced within the ordinary office hours—he being part of the machinery for carrying out the laud regulations, was justified in leaving his office precisely at two o'clock. As far as the case was concerned they had nothing to do with the discipline of the office, but although two o’clock might have been fixed upon by the officers of the department as a convenient time for concluding their business on Saturday, there was no provision in the laud regulations fixing two o’clock as the hour at which they were justified in shutting off the transaction of all business, and therefore he would submit that an officer was not justified, merely because the ordinary hour for closing .had arrived, in defeating an application properly commenced before the ordinary hour for closing. In the case of banking institutions all persons who entered before the ordinary hour for closing were permitted to complete their business, and it would be absurd to say that a person who bad to meet a bill, for example, upon a particular day, should be deemed to have dishonored a bill for which payment had not been made till after the hour for closing the bank although he was inside before the door closed. Mr. Travers then proceeded to argue at length- that the applications of the plaintiff and Kinross were not simultaneous ; that on the Monday the plaintiff attended with the “receive order” which he received on the Saturday, and presented it to the Receiver of Land Revenue, together with a marked cheque ; that the duty of the Receiver was at once to place the cheque to the credit of the Provincial Government; that the receiver might have refused to receive the cheque at all, as the regulations stipulated that no credit should be given—-implying that cash must be paid—but having received it, according to the practice of the office, and paid it in to the credit of the Provincial Government, he submitted that that was equal to a payment in cash. Therefore there'was no default on the part of the plaintiff, and he submitted that the judgment of the Court should be in his favor. The Attorney-General argued that the applications were simultaneous, because if the application of Bussell was not completed till Monday, when the cheques were received, or till Wednesday, when the amounts were paid in to the bank, then both parties were on the Same footing. But, to go further than that, the language of the regulations was imperative that nothing but hard cash ■ could be accepted by the Receiver ;' unless there was money paid in the current coin of the realm there could be no credit given. His learned friend had put forward the argument that the payment of a marked cheque honored by the bank, made a difference, but it made no difference in principle. The Legislature said that the money was to be paid “in cash” or scrip ; there must be no credit given ; but there could not be otherwise than credit given unless payment were made in current coin of the realm; and payment in cash constituted the application. The plaintiff went to the office a few minutes before two o’clock on the Saturday, knowing very well that if he could get in and make his application at that hour he might succeed in keeping it quiet. It was possible he might have done so had he brought money with him, but he'did not do so, and his application therefore was no application at all. Moreover, the plaintiff bad delayed six months before applying for an injunction, and such a delay, was sufficient in itself to prevent him obtaining it. Then there had been no good reason shown why the Commissioner of Crown Lands should he enjoined in such a suit. The regulations did not say that he was to decide whether the land should be put up to auction or not. The ease was not one- foe equitable consideration. The defendant had sailed as close as he could to the strict letter, of the regulations, and the Court should treat him in exactly the same way. Judgment was reserved, and the Court adjourned till eleven o’clock next day.