THE COURTS

New Zealand Times, Volume LII, Issue 9284, 2 May 1891, Page 4

THE COURTS

COURT OF APPEAL.

Thursday, April 30.

{Before the Chief Justice, Mr JuatUe "Williams, and Mr Justice Denniatou). BROWN* V. BENNETT AND OTHERS.

This was a case which was argued at the last sittings of the Court of Appeal, and judgment was now delivered. The plaintiff was the holder of certain promissory notes made by the late William Fletcher, of Napier, blacksmith, upon which they sued the defendants, his executors. The jury found that the amounts of some of the notes had been altered from small to large sums after they had been signed by* Fletcher and without his knowledge, but before they 7 came into the hands of the plaintiff. They also found that Fletcher had enabled the alterations to be made by the careless way in which he had filled the notes up, and but for the plaintiff’s want of care whenhe took the notes he wonld have discovered the alterations. On these facts their Honors row each held that as the notes were complete and negotiable when they passed out of Fletcher’s hands he could not be said to have given an implied authority to alter them in any way ; that his wnnt of care in filling them up did not estop his executors from denying that he had made them in their altered form, their being no such legal duty to use care iu the maker of a promissory note towards subsequent holders, as there is in a customer towards his banker, in filling up a cheque, and that the finding but for plaintiff's own want of care he would have discovered the alterations was a bar to hia recovering on the altered notes in any case. COLONIAL BANK V. BENNETT AND OTHERS. In this case the defendants were the same as in the last case, and the facts similar, but the jury had found that the plaintiff Bank could not, by the exercise of ordinary care, have discovered the alterations. Judgment therefore went for the plaintiff for the original amount of the notes. Costs of appeal on the highest scale wore awarded the defendant iu each case. Application was made to have the terms of an appeal to the Privy Council fixed. Messrs Saiusbury and Mac - lean appeared for the plaintiffs in each case, and Messrs Cornford and Skerretfc for the defendants. (Before the Chief Justice, Mr Justice Danniston and Mr Justice Conolly.) OFFICIAL ASSIGNEE OF MARTI V. 11IICE. — (Continued.) In this case the argument of Sir R, Stout for the respondent was now taken. He contended on the facts that there bad been no fraud or mala fides on the respondent's part, and that the finding of the Judge below on that point ought to be given the same consideration as the verdict of a jury ; that the respondent bad not been a creditor of Mart at the time of the transaction, which was a purchose of the property for its full value ; that it was immaterial that the purchase money bad been applied iu the pay* ment of some of the creditors only ; that the property was not taken by the respondent as a trustee for creditors, but as a purchaser, and that there was no case in which such a sale had been held an act of banka ruptcy. Mr Woodhouao having replied, their Honors reserved their decision.

Friday, May 1. (Before Mr Justice Williams, Mr Justice Denniston, and Mr Justice Conolly.)

ROrniA TAMAEAHO AND OTHERS V. THE NEW ZEALAND NATIVE LAND SETTLEMENT COM-

PANY (LIMITED), AND OTHERS. This was a case removed into the Court of Appeal by consent of the parties by order of Mr Justice Conolly. The action was one in which the plaintiffs claimed a decree that a conveyance of certain lands by the plaintiffs and other Native owners to the defendant Company was void. Mr Theo. Cooper, of Auckland, instructed by Mr Howarth, of Wellington, appeared for the plaintiffs; Messrs H. D. Bull and De Lautour for the defendants. On behalf of the defendants a preliminary objeotion was raised that the action was barred by section 28 of the Native Land Court Acts Amendment Act, 1889, which, as amended by the Act of 1890, provides that no action is to be brought for the purpose of questioning the validity of any alienation of land which might form the subject of an enquiry before the Commissioners under the Act of 1889 until the expiration of the period of twelve months within which application might be made for suoh an enquiry. The action had been brought within the twelve months, but Mr Cooper contended that the alienation was not one the validity of which could form tho subject of an enquiry before the Commissioners. The title of the native vendors was derived from a certificate of title under the 17th section of the Native Land Act, 1867, which certificate when issued was accompanied by a report under the 20th section of the same Act, recommending a restriction upon alienation by sale, mortgage, or lease, except for a term of tweuty.one years. Mr Cooper contended that the case did not come within section 27 of the Act of 1889, and therefore not within section 20, readingjthat section in the light of section 27 ; and, further, that if a wider meaning were given to section 20, the case still did not come within that section, because the alienation was not one barred or invalidated by any law,” but barred by the report under Section 20 of the Act, 1867, which was itself a restriction in. dependency of the statute; Seymour v. Macdonald, N.Z. L.R. 5 C. A., and Apiata v. Seymour, 7 N.Z. L.R. 60, 65 ; and which he therefore argued was barred not by any law, i.e., not by any statute, but by the report issued in the discretion of the Native Land Court Judge. The Court uphold the pre. limiuary objections without calling on Mr Bell. Mr Justice Williams : Wo do not think it necessary to call upon you, Mr Be!!. The question is whether the present action comes within section 28, of the Native Laud Court Act Amendment Act, 1889, and whether the alienation of land which is in question iu, the present action might have formed the subject of enquiry before tho Commissioners under the Act. The poweis given to the Commissioners ate contained iu section 27 and 20 of the Act. I think Mr Cooper has shown that it does not come within section 27. I think, however, that it does come within section 20. I do not think that section 20 is governed by section 27. The result of an enquiry under section 20 is a report by the Commissioners merely ; under section 27 it may be a certificate completing the title. Mr Cooper contended that the words in section 20, “ barred or invalidated by any law,” would not apply to a case whore there had been a restriction on alienation imposed by recommendation of the Native Land Court under section 20 of the Native Land Act, 1867. Ho contended that such a restriction on alienation would not be a barr. ing or invalidation by law or an alienation, but that an alienation would be barred or invalidated by the act of the Court, attempting to draw a distinction between the direct effect of the statute and that of an Act directed by the Statutes. But it seems to me that when alienation is restricted by an act done in pursuance of the statute, that comes to tho same thing as when it is done by the statute itself. Looking to the provisions of the Native Land Court Acts Amendment Act, 1889, as a whole, this alienation appears to come within the mischief aimed at. The object of the Statute seems to hare been that where a transaction had been entered into in good faith, but contrary to law, litigation should be suspended, that the Commissioners should report, and that there should be legislation on the basis of the report. So far as tho spirit of the Statute is concerned, there is no possible distinction between this case and one in which an alienation is invalidated by the direct effect of a Statute. For these reasons I think the alternative defence to the action stated on page 13 of the ease is sufficient to entitle the defendants to succeed. Mr Bell: The Court does not actually decide that the ease is not within section 27. Tho defendants contend it is, and they have not been heard on the point. Mr Justice Williams : Perhaps it would be better to say that Mr Cooper relied mainly on section 20, hut at first glance It does not seem as if the case came within section 27. Mr Justice Denniston : I concur in the judgment of Mr Justice Williams. Mr Justice Conolly: I am of the same opinion. With regard to section 27,1 should rather say that this case did not come within it; but section 20 is much wider, and, whether the case does or does not come within section 27, it comes within section 20. That is what I base my decision upon. Mr Justice Williams : We do not say that the case is not within section 27- We base oar decision on section 20. Mr Bell: The Court does not decide that the report is itself a restriction on alienation, Mr Justice Williams : We have assumed for the purposes of our judgment that the report is a restriction. We have assumed it in favour of Mr Cooper, but we express no opinion on the question, Judgment of nonsuit was entered, with costs on the highest scale. The Court then adjourned to Monday at 10.30 o’clock.