SUPREME COURT.-SITTING IN BANCO.

Otago Daily Times, Issue 825, 12 August 1864, Page 5

SUPREME COURT.-SITTING IN BANCO.

(Before Mr Justice Richmond and Mr Justice

Chapman.) The Judges took their seats at tea o'clock, yesterday. A LEASE QUESTION. Young v. MacKinnon. — The question involved in this case, which has heen tried before Mr Justice Richmond and also before Mr Justice Chapman, arose out of the occupation of premises ia Stuart street. Mr Barton now moved for a rule nisi for a new trial, on the case as tried before Mr Justice Richmond ; the motion being to enter a verdict for the plaintiff, pursuant to leave reserved, or for s new trial on the ground of misdirection. It appeared at the trial that there had been a payment, which one side said was for rent, and the other contended was simply interest. His Honor told the jury that it thsy thoughtthe payment was for rent, that would be sufficient to create tenancy from year to year; and, in that case, they must inquire, further, whether^ there had been notice to quit. The short question on which Mr Barton now addressed the Court was whether there could exist a valid estate of year to year, which was not created by deed; the learned counsel's contention being in the negative, and based on the 6th section of the Conveyancing Act. Mr Justice Kichmond: We think this is a case in which we ought to grant a jule nisi ; but you must take it .with, the knowledge that the opinion of the Court, as against you, is unshaken. The question is of great public importance, and should be thoroughly discussed, so we give you the opportunity of putting your argument legically before the Court; otherwise, we might be inclined to say, the rule shall not go. Mr Cooke obtained a cross rule, on grounds reserved at the trial by Atr Justice Chapman, but which weie not stated, as his Honor's note-book was not in Court. ACTION FOB FAISE IMPRISONMENT. Stewart v. Mills.—Mr Barton moved for a rule nisi, for a new,trial in this case. He apprehended the rule would be granted without his occupying much of the time of the Court. The action was for false imprisonment. The defence was that the defendant, acting as an officer of Customs, caused the arrest; that he was entitled j to the protection of an Act of the Colony, re- ' quiring that notice of action should, in such cases, be given to officers of Customs; and that such notice had not been given. Mr Justice Richmond: On what ground do you apply 1 It caunofc be non obstante veredicto, for nothing went to the jury. I held that it was my preliminary duty to decide whether notice was required and whether it was given ; and I held that it was required and had not been given. I feel some doubt whether the discretion of the Judge can be reviewed. In Arnold and Hammill, Baron Parke said that a bill of exceptions would not lie to the Judge's decision upon the point I decided ; but it seems to me that it ought, perhaps, and in that very case they reviewed the discretion of the Judge. I know there is another case, inuhich Baron Martin intimated a very different opinion. In such a case as this was, 1 acted as Judge of fact, as well as of law; and my conclusions oa the matter of fact, perhaps, cannot be reviewed. Mr Barton: Your Honor told the 'jury that the whole matter lay in your hands. 1 might apply on the ground that that was misdirection. Mr Justice Richmond: Somehow, it •'can be worked out. If I was right in assuming the ordinary functions of the jury in the case, I suppose that my conclusion would be as incantestible as that of a jury. If I was wrong in law, that is another matter. It was arranged that a rule, should be granted on two grounds—lmproper rejection of evidence; and misdirection, in that the Judge told the jury that it was for him alone to say whether the defendant was entitled to notice of action. . Mr Justice Richmond: It is a very fair case for a rule, seeing that the Act is of so exceptional a character. Mr Barton: My contention would be, that the Act does not apply, under the circumstances. Mr Justice Richmond: Inasmuch as the charge against the plaintiff was one of larceny. Bat, at the trial, I held that, inasmuch as by a larceny the revenue would be defrauded, the defendant, as an officer of Customs, was justified in prosecuting the larceny. . ATTAOHMENT FOR A BIHi OF COSTS. Re South, ex bartb Murison.—Mr Harvey, on behalf of D. Murison, moved to make absolute a rule calling upon the defendant, S. M. South, to deliver a bill of costs. A rule absolute was granted ; the question of costs to be spoken to, when the defendant purged himself of the contempt. AN INTESTATE ESTATE. M'Lean v. Chapman (Registrar). ~ In the matter of the intestate estate of John M' Lean, Mr Barton, on behalf of the children, moved for a decree for further directious. There was a decree in the case, that accounts and inquiries shpuld be taken by Mr Chapman, the official administrator. Mr Cook, for the widow and her present husband, David Gray, said that the case did not appear to be ripe for further directions. The inquiries had not been answered. There was a f omraon decree for taking an account of the personal estate, for an inquiry as to the debts, what was outstanding, and with respect to the children. There was also an agreement for a settlement between David Gray and the widow: or, rather, Gray had made au assignment of his , interest, for the benefit of creditors. There was a certificate filed in that matter, but he objected to it. He should like to have an opportunity of examining- the children, or of being present: when they were examined; as the document stood, it was a little defective. Then, again, one of the children had died since the intestate; and there should be representation of that child, before decree for further directions. Gray's trustees were interested to the amount of some L2OOO, and they should be parties fco the case. If' Gray should happen to die before the funds (?ot to the trustees, it would very much complicate the matter. Mr Justice Richmond: What was the amount of the estate 1 > Mr Cook: L25/TOO. Mr Barton: And ifc is a positive fact that the children are in a state of starvation. Mr Justice Chapman: Surely an application might be made for maintenance for them. Mr Barton: Either a receiver should be appointed, or Mr Chapman or some one else should be appointed to pay out, say LSOO. Mr Justice Richmond: The difficulty is, that the estate does not yield enough interest. Mr Justice Chapman: The Court, qua Court, does not trust banksMr Justice Richmond: In theory: but in fact, we do. This money is, and very properly, in a Bank. Even if it was paid over to the Colonial Treasurer, he would put it into a Bank; and. which is a difficulty, he does not always leave it there. The difficulty is as to an investment. The General Government debentures are, I believe, all but wholly placed in London; the Union Bank has them. It would be a very good thing if, in the case of any further loan, the General Government would reserve a certain proportion for the Colony. Provincial debentures would not do. If trust fnnds were invested in them, why not in Town Board debentures, or even those of the Gas Company? | Mr Justice Chapman: What we want is something with what Lord Overstone called "the elegant simplicity of Three per Cents." Mr Barton: Something ought to be done for the children. Mr Justice Chapman: In Victoria a small sum is paid out of the fund itself. Mr Barton: It is now 18 months or two years since this suit was instituted; and the family is going from bad to worse in the matter of privations. Mr Cook : The case began ia January, 1864. Mr Barton: I learn that there is now L 22,350 8s 6d in the official administrator's hands. Might not L2OOO be invested for the children, leaving the rest at the order of the Court. Mr Justice Richmond: The difficulty is to tell •what to do with it. The Court of Chancery AT THE

would make a trustee who invested i n a town house that happened to be burned down, pay every penny of the money. It is generally sup posed that if a trustee gets a policy of insurance, it is enough; but a thousand things might happen to prevent that being a real security for the money. Rural property is subject to violent fluctuations in such a country as this. We certainly could not lend tnut money upon what are called improved values. Take the assumed value of a Town Board section: who can say how soon that value might be brought vown to oiie quarter or even to one-tenth. A diversion of the course ot traffic might do all the mischief. It investment in town property is speculative, and I believe it is held so, i» London, how much more is it so in Dunedin. If property in Oheapside may be said to have a speculative value, what shall be said of property in Princes street 1 Mr Harvey, as amicus ciwios, said that there was L 4,000 to go to Gray's c>ediiors and the widow. We took half of a third share. Mr Justice Richmond said that there would be no decree. But it really was the duty of everybody to put a shoulder to the whee! so as to get this case through. From what the Court had been told, it was a very serious thing indeed, that the estate should remain in the hands of the official administrator. He (Mr Justice Richmond) wis prepared to facilitate the progress of the suit as much as possible. The inquiries, and some of the joinders, he thought, might be made, so as to enable the suit to- be spoken to again when the Court sat next week. A- QUEER CASE. Qdadri v. Quadri.- Mr Barton moved for a rule nisi' to set aside judgment and execution in the matter of uavid Qnadri v. ..Daniel Quadri. Judgment and execution had issued, upon affidavit, certificate of service of writ, &c, and there was a seizure of effects in the Roaring Meg Hotel, Dunstan district, as for a debt of L 136 2s 9d, for goods sold and delivered. He (Mr Barton) had an affidavit ttat there never had been any service, and, what was more, that there never had been any such debt as that alleged, or in fact, any debt at all. His client stated that the Antoine Quariri. who stated that he served the writ, was his father, who was wholly ignorant of the English language, and who could not understand the nature of any document.

A; rule nisi was granted. Some other cases were mentioned, but Mr Justice Richmond said they could be spoken to in Chambers. The Court adjourned.