CROWN FARM TENANTS

Waipa Post, Volume 48, Issue 3482, 21 June 1934, Page 2

CROWN FARM TENANTS

ORDER ON i*HLK CHEQUES. RECEIVER'S INVALID ACTION. A reserved judgment which may have an important bearing in deteimining the relations between Crown tenants and their mortgagee (the Crown) was delivered in the New Plymouth Magistrate's Court last week by Mr. W. H. Woodward, S.M. The case, which was heard 'in April, was\ one in which Harold J. Fitzsimmons, a farmer residing in the Waitara district, as first plaintiff, and the Receiver of Land Revenue for New Plymouth, as second plaintiff, each took action against the North Taranaki Dairy Company for the sum of £4 4s 4d, held by the court. Fitzsimmons had given the dairy company an order for a certain percentage of his milk cheques to be paid to the Receiver. The latter deemed this insufficient and desired Fitzsimmons to sign an ordei for u

larger percentage. This Fitzsimmon < declined to do and the Receiver, purporting to act under his power cu attorney, signed the order in Kit/ simmons' stead. The magistrate held that, in the terms of the Crown's agreement with Fitzsimmons, the Receiver had exceeded his power of attorney and that the money, representing the difference between the original order and that signed by the Receiver, must go to Fitzsimmons. Leave for the Crown to appeal again:;! the decision was granted, the magistrate remarking that he would be pleased to hear a Supreme Com I Judge's ruling in the case. In giving his decision, which was or. strict legal grounds, Mr. Woodward stated that Fitzsimmons was a Crow; tenant and a dairy farmer supplj in; his milk to the North Taranaki factory. He had mortgaged to the Crown certain chattels and stock 1 secure the payment of moneys owm< to the Crown, including rent. ..".

clause in the instrument appointe; the Receiver of Land Revenue at New Plymouth (the Crown Land Commissioner) as Fitzsimmons' attorney for certain purposes. When Fitzsimmons became in arrears in his rent the Receiver demanded an order for an increased percentage of the millcheques. On Fitzsimmons refusing this, the Commissioner, purporting tc act under the power of attorney, signed such an order himself. Tht only question was whether this ordei was valid.

The magistrate held that the signing of an order on milk cheques war not an act necessary for more fully transferring, assigning and assming tc the Crown the stock, chattels, brands, wool or milk, and premises, or any of them hereby assigned or assumed tc be included in this security, which was a power granted the attorney under a clause in the contract with Fitzsimmons.'lt followed that it was not within the ambit of the Receiver's power under his power of attorney. Mr. Woodward did not agree with the Receiver's counsel's contention that clause 26 in the agreement compelling Fitzsimmons to deliver all milk and cream, being the products of the cows bound in the security, tc tlie North Taranaki or any other dairy company appointed by the Crown, and tc give the Crown "an inevocable order on the said company to receive

the whole or such portion of the gross amount payable by the said company for the purchase of the said milk or cream as the Crown may direct," amounted to ah equitable assignment to the Crown of such proceeds of the sale of milk as the Receiver might require Fitzsimmons to sign an order for. In the present form of the covenant the magistrate believed that the Receiver's right was a personal one against Fitzsimmons and enforceable only by an action for damages for breach of covenant if Fitzsimmons refused to give the order required. The present action was not in that form.

On Mr. Macallan's request leave to appeal was then granted, no security being fixed. The question of costs was left to arrangement between the counsel.