SUPREME COURT.

New Zealand Times, Volume XXXIX, Issue 6694, 30 September 1882, Page 3

SUPREME COURT.

IN BANCO, • His Honor Mr Justice Richmond continued sitting on Monday : afternoon last, the 27 th instant, when the following further business was disposed of :■— i ‘ ■ REO. V. MICE, EX PABTB COLEMAN AND ANOTHEK Y. DONAHOO AND OTHERS. This was a rulecallio'g upon Matthew Price, Resident Magistrate at Gisborne, to show cause why he should not hear and determine the above case in his Court,- in which he nonsuited the plaintiffs, on the ground that a question of title to land was involved. The affidavit’s; filed in support of the, rule show that the plaintiffs bolding a certificate of title under the Land Transfer Acts took out a summons against;the defendants in the Resident Magistrate’s Court for. £IOO damages for trespass upon the land of . which it plleged the defendants held possession. The land originally belonged to, one of-the .defendants, Mere Ti Punu and others, but it was alleged that she had sold her, interest to Captain Read, w bo brought the land under the - provisions, of the Land Transfer Acts. , The, plaintiffs are the trustees of Captain Read’s estate, Before the Magistrate,; the only evidence given for the . plaintiff n was the'.certificate, of title and proof of the -damage done. , Meta Ti Punu, for the defence, alleged that she had neyer parted with hpr interest to Captain Read,.^nd- never executed any conveyance ; upon this anq upon production of , a copy of the Crown grant the Magistrate held that a bona fide question of title to land had arisen, and, while saying be had no jurisdiction to adjudicate on the question, nonsuited - the plaintiffs. Mr Izard moved the rule absolute, the grounds being—(l) that no question of title had arisen, (2) that the evidence of Mere Ti Punu did nofrai-e a question of title. -Mr Forwood, oh behalf of the defendants' except the Magistrate, contended that the rule could not'be' made absolute/because' a question of .title vras . bona fide involved. Jones v. Ashton, 4, N.Z. Jur,, N.S., 103 ; Chew y. Holroyd, 8, Ex., 249, S.C., 22, L. J-, Q.8.',i124 ; Proudfoot v. Banbui j j Mao., N.Z. Rep., 1060. It will be contended on behalf,, of, the 'defendants that thej certificate Of title "is conclusive evidence of title, and the Land Transfer Act, 1870, Section 46, will be relied , on ; but it will be seen that the 11 right is not unimpeachable. For instance/fraud may be set up 1 ; nowhere, the allegation of the defendants amounts to fraud. (Mr Justice Richmond’; It appears from Donahoo’s affidavit that the defendants were in possession 'before ’the supposed sale, and never ceased .to 'occupy‘-the land; as of right. A scintilla of right is enough ; B. v. Turner, L R. 5, QB; 237.' The magistrate having nonsuited, the property remedy was by. appeal.) Mr Izard, for the. plaintiffs : The question of title must not only be bona fide but ‘also must be reasonable. There can be ' no reasonable question of title here, as the certificate of title prevents that, as that certificate caimot' be questioned ’in'such an action as this. (Mr Justice Richmond : What can a person who has really never signed a deed.do ! It he swears he never signed a conveyance, does it not raise a question of title?) Not in the face of the certificate that must be attacked otherwise.' (Mr Justice Richmond : You have to make out your case. I must assume the magistrate right till he is shown ( to be wrong. He could only give judgment to the plaintiff 'in case of a clear trespass without title.) A mere assertion of title is not enough. Eilerslie v. Barnett, 4 C.B. N.S. ; Everslie v. Newmap,ibid 318. Elderton v. Rhodes, L.R., 4 Q. 8.; Liddy v. Harvey, 17 L.J./Q.B. 357 ; Royd v. ‘Jones, ibid'‘C;P.,"2o6. His Honor, in giving judgment/ ! said: I felt considerable doubt in ‘grahtVng-* the‘: tulE' :'I have come: to the conclusion that there was not sufficient material to justify the Resident Magistrate in deciding that be had;no jurisdiction. He should have required a circumstantial denial of the plaintiff’s title. It is not enough to take a| simple 'denial. : All he had before him were the three facts, viz., the grant, the possession by Mere; and her denial. These ‘ are not enough. I do not think that, assuming her to have [been a

grantee, it ii enough that she should simply deny that she conveyed. I say nothing aa the other points either as to the legal or the substantial merits. Buie absolute ; costs against the defendants in the original case. BLACK V. GWTNNETH. Mr Chapman applied for leave to appeal to the Court of Appeal from a judgment on demurrer delivered on 21st January, 1881. There had been lengthy proceedings for irregularity, including a case in the Court of Appeal, citing Court of Appeal Act, 1862, sections 24, 26, and 36, and section 4 of the Amending Act. Mr Oliivier : The long delay precludes the plaintiff from having the leave ; also, the Court bad no power to grant the leave. Judgment reserved. BE EOBJOHNS. Mr Chapman obtained a rule making a submission to arbitration a rule of Court. Henderson’s trustee v. divbb. Mr Oliivier moved for a rule nisi to attach Henry Mace for not paying the costs of a demurrer in which he had failed, or for a peremptory order to pay the costs. Citing re Hope, 41 L.J., Ch. 797. (Mr Justice Richmond : Bat you have no order for the payment of the money.) Wright v. Burroughs, 2 D. and L., 94. Adjourned to Chambers.