SUPREME COURT.

Star (Christchurch), Issue 5487, 12 February 1896, Page 3

SUPREME COURT.

♦ IN BANCO. Wednesday, Feb. 12. (Before his Honor Mr Justice Denniston.) j AITKEN, APPELLANT, V. DURANT, RESPONDENT. V This was an appeal from a decision of Mr R. Beetham, S.M., at the Magistrate's Court, Leeston. / Mr Joynt appeared for the appellant, and Mr Russell for the respondent. The facts of the case were that the respondent, Thomas Durant, the defendant in the Court below, had in November, 1879; sold to one Patrick Aitken, an eighth of an acre of land, part of lot 50 in deposit plan 101. By mistake an additional eighth of an acre was included in tbe transfer from Durant to Aitken, neither of whom intended that it should be sold, nor knew that it had been transferred. The second eighth of an acre remained in the occupation of Durant. In April, 1882, the appellant purchased from Aitken the eighth of an acre sold to him by Durant, but Aitken transferred to her the quarteracre which had been transferred in error by Durant to him. She did not know until i some years afterwards that more than an ; eighth of an acre had been transferred to | her.' She entered into possession of . onei eighth of an acre, and rented the remaining eighth included in Aitken's ! title for some years' from, Durant. In July, 1894, Durant sold to the appellant for .£20,. 33} perches of land; being the [/balance of Lot 50. This, included the land ! transferred in error to Patrick Aitken, but neither party knew this. Durant received . 1 from the appellant £10 on account of the sale. On Oct. 19, 1894, Durant was informed in Mr Charles Clark's office that he could not transfer 33} perches to the appellant, as he had already transferred a quarter of an acre to Patrick Aitken. Thereupon he informed the appellant's husband that' there had been some mistake about the land. On Nov. 6, 3894, the appellant paid Durant the balance of the £20 purchase money. On Nov. 8, 1894, Durant, acting as the appellant's agent, caused a transfer to be prepared of the balance of the land, i.e., 13£ perches, and transferred the same to her. In August, 1895, the appellant was informed by a surveyor, who had examined her certificate ! of title to ascertain the boundaries of her land, that when she purchased the 33} perches she was the registered proprietor of 20 perches thereof, and on Sept. 25, 1895, the surveyor informed Durant that he had made a mistake about the land. Durant then, on his own responsibility, offered to take the land back and to return the purchase money. The offer was not accepted, and he said he was willing to pay any damages she had sustained by reason of the twenty perches having been transferred to Patrick Aitken, but the negotiations for settlement were broken off. The appellant, alleging fraudulent misrepresentation, afterwards brought an action against Durant in the Magistrate's Court to recover .£ls as the ; value of the land included in the transfer by error, and -£12 for twelve years' rents and profits received by Durant from the time the land was transferred to her by Patrick Aitken. The Magistrate gave judgment for the de- j fendant without costs. Mr Joynt argued on behalf of the appellant. His Honor, without calling on Mr Russell to reply, said that on the facts as stated the appellant had no right to recover any damages from Durant. She had not been damnified, as she had never any right to the land. What puzzled him was the extent to which the Magistrate had thought it necessary to criticise the conduct of Durant. It would have been more straightforward for Durant to have told the appellant the ' actual position, though her knowledge of the facts would not have altered her legal position, but why he should have been spoken of as he had been hie (his Honor) could .not see." It was quite clear on the facts as found by the magistrate that Durant had only done to the appellant what the law would have 'done had she appealed to it. The appeal [ would be dismissed with £7 7s costs. [Per Press Association.] INVERCARGILL, Feb. 12. ■ At the Supreme Court, James Power and ■ Charles Pemberton, who yesterday pleaded guilty to a charge of burglary, were sentenced, to -two years^ and fifteen months' imprisonment respectively. This concluded the criminal business. The Court is now engaged with the case Murray Bain v. James Walker. Bain is the executor in the estate of John Bain, deceased, and the claim is £260, for five years' wages as a farm servant.

Theatre Royal.— The Theatre Royal was again cr&wded in every part last night, when the Bland Holt Company produced The Fatal Card for the last time. Among those present in the dress circle were the visiting cyclists and a large number of officers and members of the Christchurch Cycling Club and other cyclists. The piece 'went splendidly throughout, and the audience enthusiastically applauded the performers. Mrs Bland Holt was the recipient of two very pretty bouquets, one Of them being from the Christchurch Cycling Club. This evening Messrs Sydney Grundy and Henry Petitfs nautical drama, The Union Jack, will be staged. The piece when produced here some six years ago had a very succesful run, and Mr Bland Holt's representation of the character of Peter Fly, aman-of-wars-man, is generally considered one of his best efforts. On Friday evening The Union Jack will give place to A Woman's Revenge, and the season will close on Saturday evening. One of the greatest curiosities among the domesticated animals of Ceylon is a breed of cattle known tothe zoologists as the "sacred; running oxen." They are the dwarfs of the whole ox family, the largest specimens of the species never exceeding 30in in height. One sent to the Marquis of Canterbury in the year 1891, and which is still living, and believed to be somewhere near ten years of age, is only 22in high, and weighs but 109_lb.