SUPREME COURT.

Otago Daily Times, Issue 10171, 4 October 1894, Page 4

SUPREME COURT.

IN BANCO. Wednesday. October 3. (Before his Honor Mr Justice Williams.) LOGAN V. M/CDONALD. Motion for attachment of defendant. Mr A. S. Adams appeared for the plaintiff, Thomas Logan, contractor, »nd Mr Solomon for the defendant, Daniel Douglas Macdonald, solicitor. Mr Adams said that the only reason why the motion came on was as to the costs. The accounts were filed yesterday afternoon, and he had only to ark that the costs1 be paid. The costs of this motion should not, he submitted, be thrown on the plaintiff. His Honor asked when the accounts should have been filed. Mr Adams said that 10 days vrers allowed as from the 21st of September, when the decree was i made. ■ ■ ■ ■■ ■■.••■■'■.■ . - I Mr Solomon said that notice was given to Mr Adams that the accounts were being prepared with all expedition, and would be filed in the course of a day or so. His Honor remarked that there had been excuses for delay before. Mr Solomon could nni say that the time had not been exceeded, but Mr Macdonald could not get, the accounts completed in time, and it was only a question of a day's delay. He could bot say that plaintiff was not entitled to costs, but h« raised the question that they might te reserved pending a h'na! settlement. -His Honor observed that there might be something in that. Looking through the papers he saw that, apart from any question of costs and charges, there was a balance of £240 in favour of Mr Macdonald, and that circumstance might be a g-ound for reserving the question, because if the accounts did not turn out as Mr Macdonald said ihf.y would that might be a reason for not giviDg costs. He did not know whether it would or not Mr Adams submitted that it "would not>e. This motion was made necessary by disobedience of the decree, and the fact that the defendant only hied the accounts on the eve of this motion showed

His Honor: That the motion was a necessary stimulus. . . ... .

Mr Adams said tnat lie wrote warning the defendant that he would' move, and he alao wrote to the solicitors, but got no reply to his letters.' <■■<■...

Mr Solomon said that he saw, a, letter in .his office, and understood it had been' sent. . Mr Adams replied that the only notice he got was from a friend of defendant's who met him in the street and said that Mr Macdonald was goto" to file she accounts. : °

■■His Honor, after consideration, said that he thought Mr Adams was entitled to costs. Mr Solomon asked to be allowed to place before the court, Mr Macdonald's contention on the point. He (Mr Solomon) quite agreed that Mr Adams was entitled to move as he had moved and that if defendant had not put in his accounts Mr Adams would have been entitled to an order on account of the'order of the court being disobeyed. But Mr Macdonald said that he_had alw&ys been.readyto give information and that the claim of the plaintiff: was not correct—that no- money was owing by him (defendant). Mr Macdonald's p o int of view was that plaintiff had treated him harshly in the matter, and that, well knowing that the accounts would be rendered in the courae of a day or so, he Sir J u, shed ? nv.hia motio° for attachment. He (Mr bolomon) did not say that plaintiff might not be ultimately entitled to the;eosts of this motion ■ ' but whether he was or njt would largely depend on the result.oTtheacWn.: If costs were now ■ allowed it would be to a certain extent anticipatln^. the resiilt of the whole proceedings betweenl plaintiff and defendant, and in thatiense it would be unfair to grant the application. It was not proper at present to anticipate the'merits of the ' matter; but if it turned out to be the case that at the conclusion of the action his Honor was of 1 opinion that the defendant was in the right, and that no, costs ihould be allowed to plaintiff' then his. Honor would say that it was a pity that plaintiff was allowed costs on the present motion. ■ It might be that plaintiff had no merits in. the .matter,- s>,nd!;that he was unduly rushing it on. What harm could happen by the question of costs being' reserved ?■ No harm could possibly accrue; and the fact that the application was pushed to make costs payable at present at any rate lent colour to the view taken by the defendant that this was not an action taken to. redress a grievance of the plaintiff, but to harass the defendant. ; , ■Jlr Adams was about to address the Court, when , •' ■ . ■■ ■' ' ■■■■..■■■

His Honor said.,: I need i\ot trouble you, Mr Adams. Ido not tlijnk Mr Solomon's contention is a sound one. I will assume for the purpose"of I this • motion -that it is reasonably possible that tjie ultimate result of the inquiry may be" in favour or the defendant, but still all these transactions were in the hands of the defendant, and the plaintiff did not know his position; and in order to know whether he stood in the relation of debtor or,creditor to the defendant he had a right to accounts, and it was for not furnishing those accounts that this motion was made. I think f^'xl" a efficient reason for giving the plaintiff the costs of the motion." I cannot say he was m a hurry to make it* because he was promised accounts before, and if prbmißes had been made subsequently th"c plaintiff might siy that he had reason to anticipate thit the defendant's prom«« would riot be punctually carried out, although he in the end might get the accounts. I think; therefore, the defendant being in default m not filing the accounts, that thii motion cannot be said to be unreasonable on the part of the plaintiff, and consequently he is entitled to3gs costs, and disbursements. • •■;'■■ •■; ■ ■

IN CHAMBERS/ :' (Before his Honor.Mr Justice Williams.)

BE SECTION 5,,; BLOCK 111, TOWN OF INTER. _ ■ .■■■■ " CAROILI. ■"' -': " hummons to decide that Rose Ann Johastone has proved her title to this land. Mr Solomon, with him Mr W. C. MacGregor appeared to mpve;> and Mr Woodhouse to oppose on behalf of the Public Trustee. ■iax Solomon: said that this was the first summons under the Unclaimed Land Act of last session—an act^of an extremely progressive character. No similar act found a place in the Statute Book of ai.y other part of the British dominion*. Iho effect of it-was that where there was no knownownerof apiece of land the Public Trustee could cause a notice to be published in the newspapers calling upon the occupier to prove his title, and if he'did not. do so the Public Trustee could then claim the land. Giving the fullest effect to that act it meant State confiscation without compensation In the present case the applicant and .her predecessors had been in continuous possession since 1572, and had expended ,£750 on it. The Public Trustee now claimed this property, with the improvements, was his ! The applicant contended that by virtne of her posses"on soe had acquired a title by prescription which the Public Trustee could hot • defeat. Learned counsel argued the legal points at some length urging in conclusion that the court would adopt any. possible view of the matter which would prevent a title that had accrued prior to this act from being put an end to. • ■■■-"■'■ ' ™r MacGregor followed on the same side. Mr .Woodhouse submitted that' the object of the act was, to enable the Public Trustee to claim for the benefit of the public lands; which intruders mieht otherwise keep possession of; that there was no hardship in ignoring possessory titles in INew Zealand, where intruders always knew when their possession was wrongful., He pointed outfl that in the present case that it wa6 known all along by the persons who occupied the .land that their title was not. a good one.; Moreover, assuming that a 20 years' possession conferred a title as against the Public Trustee—which he by no means admitted—even then there was no sufficient title since a 20 years' title had not been proved. All that was shown was that a possessory title by persons claiming through Mrs Smith, wife of the first intruder, William Smitlvarid her possession on y began on her, husband's death in 1875. The title derived from ; Mrs Smith was clearly only a 17or 18 years'title, which was really no stronger than a title of one day or one j ear; Learned counsel further.contended'that there-were two persons against whom Mrs Smith and those claiming under her, including the present claimant, could,tlssert no title-r-nainely,* the heir-at-law or devisee,of William Smith and the heir-at-law or devisee of the original owner. Against the latter he (Mr Woodhouse) submitted the statute would not run for 30 years had he been out of the colony or under disability in 1872, when the first intrusion took place. He also submitted that a title based on possession only could net be deemed/a title within the meaning of the act, but if a possessory title could be held to be a good title under the act it must be at least a 40 years' title, and here it could not be said to be longer than a 17 years' title. '■ . ■ • Mr Solomon, in the course of his reply, remarked incidentally that the principle on which this case rested weuld affect large areas of land in various parts of the colony. His Honor, in giving judgrusot, said : There is no doubt that this act makes very important alterations in the law, arid it is impossible to give any reasonable construction to the act without

giving effect to the alterations in the law which it is impossible to avoid concluding that the act makes. One important alteration in the law is this, that whsreas by the old law if a person was in occupation of land and he was sought to be ejected the plaintiff must succeed in his ejectment not on the weakness of the defendant's title but on the strength of his own. That principle is certainly altered in tho easea mentioned ia the act

by the very terms of the act. Heading section 8 together with section 5 it is quite clear that the act contemplates that the Public Trustee may act in a case where there is some person in occupation, and may call upon that person to establish his title to the satisfaction of the Supreme Court, and if that title cannot be ■established, may eject him. This, of course, is a complete reversal of the old rule. If there is such a person in possession, then I think the words of the act are clear beyond donbt that in order to prevent the Public Trustee being registered in fee simple, such person must prove his title as owner to the satisfaction of the court. There is, of course, a great deal to be said on both sides as to the policy of the act; but it is very unsafe to construe an act on one's own opinion about it 3 policy. It is far safer to coastrue the act accord-

ing to the language. If it turns out upon such construction that unsatisfactory results, and results which may not have beon anticipated, ensue, then the attention of the Legislature can be called to them, and the act can be altered. However, in the present case what I have to decide is simply, Has a title been established to my satisfaction by the persona who are in possession ? It is admitted that their right (if any) rests upon the occupation, which was in its inception wrongful. It, therefore, at least lies upon them to prove that at the time the act came into operation they had beeu there so long that they could not then have baen ejected by any person who had tho real title. la that they certainly have failed. Apart from the question as to whether the original owner or his representatives could have ejected them there can, I think, be no doubt, on the authority of Asher against Whitlock, that the heir-at-law or devisee of William Smith, who died in 1575, could h-Ava ejer.tedthem, he having a superior title. It cannot be said that tho possession of Mrs Smith went back t» 3872, when she went upon the property with ber husband. During her husband's lifetime that possession was her husband's, and her possession certainly did not commence until her husband died. That, I think, is sufficiently established by the case of Dixon v. Gayfcie, the j case of Dold. Carter v. Earnard, and the case of ! Asher v. Whitlock. It is, therefore, unnecessary to decide—aa there has been, as against the original owner and his representative?, a continuous hostile possession of over 20 ye.-irs—that

BOVAL COLORS TOBACCO.

the fact of such possession is sufficient to establish a title. That certainly would not ba sack a titla aa any judicious conveyancer would recommend his client to accept, and he would not recommend his client to accept it for this reason—that it is no proof that at the time possession was taken in 1872 the original owner was not beyond the seas and was not under disability. Should it turn out that the original owner was at that date beyond the seas or under disability then there would be no title at all. However, aa I have said, it is not necessary to decide that point, and that point does involve to some extent the consideration that the operation of the act would ba to deprive a person of the right already acquired should it be the case that at the time possession was originally taken the real owner was in the colony and was not under disability. Of course, if that really were the case a complete title would have been acquired; but, as I havesaid, this act reverses the well-known principle of law that personal eject* ment must succeed on the strength of his own title, and instead of that puts the burden of proof of title upon the person who is in occupation ; and such proof has not been established. So far as the fact that a considerable amount of money has been expended on the property is concerned, that to ray mmd goes for very little. The property was originally taken wrongfully. If persona lake property which does not properly belong- to them, and if in such case they choose to> spend money upon' it, they take the risk of it; they have no equitable claim for compensation, and certainly I don't thiak that they have any moral one. For these reasons I think that the summons must he dismissed with costs, five guineas. . At his Honor's suggestion, in view of the pes> sibility of an appeal, the matter was treated instead of as upon a summons in Chambers as t, motion of the court.