LAND TRANSFER-continued. -Surveyor's Pegs-Measurements in Certificates The Licensing Act, 1881," Sections 38, 44 of Title "More or Less - Estoppel-Agreed (Subsection 5), and 56-" The Alcoholic Liquors Line of Fence-" The Land Transfer Act, 1885,' Sale Control Act Amendment Act, 1895."] Per Section 57.] A town section, under the Land Curiam.-The abandonment by the licensee of Transfer Act, was subdivided by the owner for a publican's licence for certain premises, and sale. The subdivision was made by an au- application by him for a new licence in respect thorised surveyor, who prepared a plan, and of other premises within the same licensing dis- pegged out the lots on the ground. The sub-trict, is a different proceeding, both in substance divisional plan was never deposited in the Land and in form, from an application for removal of Transfer Office, and the transfers made of lots a licence, and the restrictions upon removals of sold did not refer to it, but the different pur- licences imposed by section 22 of “ The Alcoholic chasers went into possession on the supposition Liquors Sale Control Act Amendment Act, that the subdivisional survey was correct. 1895," do not apply to an application for a new licence under the above circumstances. Laceby v. Lacon & Co. ([1899] A.C. 222) followed. Per Curiam (Stout, C.J., dissentiente).—A]. though the result of the last licensing poll has been that the number of licences in the district is to continue the same, it is not necessary that a vacancy should have occurred when notice of intention to apply for a new licence is given under section 56 of "The Licensing Act, 1881," or when the hearing of the application for a new licence is commenced: it is sufficient if a vacancy has occurred when the new licence is granted. And, where notice of withdrawal of an application for renewal was handed to the Clerk of the Licensing Committee and produced by him to the Committee during the bearing of an application for a new licence, and the hearing was adjourned, and afterwards, and before the hearing of the application for a new licence was resumed, the application for renewal was called on and counsel for the applicant stated that it was withdrawn,-
Held, in an action involving the question what was the true boundary between two adjoining lots, That the peg originally put in by the surveyor in laying out the lots ought, under all the circumstances, to be followed, notwithstanding that this might give the de- fendant some four inches more of frontage than was shown in her certificate of title, and that there was some question whether there was sufficient frontage in the whole section to give the other owners as much as was shown in their certificates, and notwithstanding that the occu- pation had not been exactly according to the peg. The Equitable Building and Investment Company v. Ross (N.Z. L.R. 5 S.C. 229) and Tanner v. Thomson (7 N.Z. L.R. 71) followed.
A variance of 4 in. on a frontage stated as 30 ft. is not more than is covered by the use of the words be the said measurements a little "L more or less."
Where adjoining owners concur in putting up a fence along a certain line, on an erroneous assumption by each that it is the true boundary, neither party having made any representation to the other upon the subject, neither is estopped from setting up that some other line is the true boundary.
Semble, That, in any case, section 57 of "The Land Transfer Act, 1885," would prevent such an estoppel from operating in the case of land under that Act. MOORE v. DENTICE
Held, That the Committee had power to grant the new licence.
Subsection 5 of section 44 of "The Licensing Act, 1881," is directory only, and, in any case, contains nothing to prevent a Committee from reserving its decision on an application for a new licence until after the applications for renewal have been disposed of.
Per Curiam (Stout, C.J., dissentiente).—It is not necessary that the requirements of section 38 of "The Licensing Act, 1881," in regard to accommodation should be complied with at the time of giving notice of intention to apply for a licence under section 56. It is sufficient if they are complied with at the time of the granting of the licence.
Per Stout, C.J.-Tho requirements of sec- tion 38 must be complied with at the time of giving the notice under section 56; and the question whether they were then complied with is a collateral one, to be decided before the applica- tion for a licence can be heard; and a Licensing Committee cannot give itself jurisdiction by finding that they were complied with when they were not in fact complied with. Its deci- sion on this point is open to review by the Supreme Court. Ex parte GAUKRODGER, In re O'DRISCOLL'S APPLICATION 660
LIMITATION-Mortgage-Presumption of Pay- ment - Barring of Remedy - Barring of Title
-Absence of Possession Conveyancing Ordi- nance-Power of Sale-Application under Land Transfer Act Refusal of Title.] A mortgagee received no payment, either on account of principal or interest, for over twenty years. The land remained unoccupied during the whole time.
Held, That, though there had been absence of possession on the part of the mortgagee for upwards of twenty years, yet, as no one had been in possession adversely to him, the Statute of Limitations did not run against him, and that he could therefore give a good title to a purchaser, in exercise of his power of sale under the mortgage.
Held, also, That a sale by a mortgage in exer. cise of the powers vested in him is not a pro- ceeding to recover mortgage money within the meaning of section 40 of 3 & 4 Will. IV., c. 27. PEACOCKE AND PEACOCKE v. AUCKLAND DIS- TRICT LAND REGISTRAR 81 2. Title of Land Purchaser let into Possession Sub-purchaser - Tenant at Will Cestui que Trust under Section 7- Right of Entry at Law where Equitable Defence-Priority by Prior Registration of Subsequent Dealing- Actual Knowledge Possession of Land Notice-Sale of Pretenced Title-Innocent Pur- chaser-3 & 4 Will. IV., c. 27, Sections 2, 7— The Deeds Registration Act, 1868," Sections 50, 54-32 Hen. VIII., c. 9.] A purchaser of land let into possession under an agreement to purchase an estate in fee is not a cestui que trust of the vendor within the meaning of the pro- viso to section 7 of the Statute of Limitations (3 & 4 Will. IV., c. 27), and, being a tenant at will of the vendor, comes within that sec- tion for the purpose of acquiring title under the statute.
A sub-purchaser let into possession by the original purchaser is not a tenant at will of the original vendor, and does not come under sec- tion 7.
The right of entry referred to in section 2 is a right of entry at common law, and the fact that equity would restrain the entry, or that there would be an equitable defence to such an entry, does not affect the right so as to prevent the statute from running. Drummond v. Sant (L.R. 6 Q.B. 763) and Warren v. Murray ([18941 2 Q.B. 648) distinguished, and the dicta therein dissented from.
Held (reversing the decision of Edwards, J., in the Supreme Court), That R.'s right of entry was barred by the Statute of Limitations, and that the registration of his conveyance gave him no priority which would defeat the title acquired by virtue of that statute.
Per Edwards, J. (in the Supreme Court).- The "actual personal knowiedge" required by section 54 of "The Deeds Registration Act, 1868," to defeat the priority given by section 50 must be the knowledge of the person himself, and not of an agent. The possession of land under an unregistered deed or contract does not avail to affect the priority given by the said section 50 to a subsequent deed or con- tract duly registered. A sale prohibited by 32 Hen. VIII., c. 9, is not void as against the purchaser unless he knew of his vendor's want of title. Wardell v. Buckeridge (4 N.Z. Jur. N.S. C.A. 19) followed. GLENNY . RATHBONE AND ANOTHER. (C.A.)
LOCAL BODY Excess of Powers Damages-Bonâ fide Belief in Power-Drainage Powers Act affecting Land outside of County- Public Works Acts.] If a local body does an act honestly believing that it is exercising the powers given to it by law, but the act is in fact in excess of those powers, and amounts to a tort, it is liable to any person damnified in an action for damages.
Per Stout, C.J., and Cooper, J.--The powers of drainage conferred on County Councils by the various Public Works Acts, and exercisable in certain cases by Road Boards, are confined to the county area, and do not authorise the construction of drains and diversion of streams within the area so as to turn a river or stream on to the border of an adjoining county, and so destroy land in that adjoining county or force the adjoining county to continue the drain. BLUNDEN V. THE INHABITANTS OF THE OXFORD ROAD DISTRICT. (C.A.) 593
See PUBLIC WORK. 1. Resolution.
LUNATIC-Receiver of Estate of Lunatic not so found by Inquisition-" The Lunatics Act, 1882," Section 283- The Lunatics Act Amend.
Section 13 of "The Lunatics Act Amendment Act, 1895," which provides that the property of a lunatic of whose estate there shall be no committee shall vest in the Public Trustee in the same manner as it would have vested if the Public Trustee had been appointed commit- tee, has not impliedly repealed section 283 of "The Lunatics Act, 1882," which empowers the Court to appoint a receiver of the estate of a lunatic not so found by inquisition. In re Bacovich (20 N.Z. L.R. 135) distinguished.
On the 13th of February, 1873, Daniel agreedment Act, 1895," Section 13-Implied Repeal.] in writing to sell a piece of land to Davern, who entered into possession. On the 14th of May, 1873, Davern agreed in writing to sell the same land to G., who entered into possession. No conveyance was executed in respect of these purchases, and neither agreement was registered. Davern died on the 12th of July, 1873. In 1884 Daniel conveyed the same land to R. for value, and the conveyance was duly registered under "The Deeds Registration Act, 1868." G. remained in possession until September, 1894, when R. for the first time asserted title to the land.
The wife of such a lunatic appointed receiver under that section, with the consent of the
Public Trustee, where the estate was small and could well be managed by her. In re BAR-
139 The Lunatics Act, 1882," Sections 209, 210-" The Lunatics Act Amendment Act, 1895," Sections 13, 17- The Lunatics Act Amendment Act, 1900," Section 2-Implied Repeal Power to remove Public Trustee and appoint Committee where no Inquisition.] Sec- tion 17 of "The Lunatics Act Amend- ment Act, 1895," was impliedly repealed by section 2 of " The Lunatics Act Amendment Act, 1900"; and it was so repealed for all purposes, although section 2 of the Act of 1900 applies only in the case of a lunatic so found on inquisition.
The Supreme Court has no power to remove the Public Trustee from the position in which he is placed by "The Lunatics Act, 1882," and its amendments, with regard to the estates of lunatics not so found by inquisition, and to ap- point some other person to be committee of the estate of such a lunatic. In re BACOVICH 135
MAGISTRATE'S COURT Appeal "The Magistrates' Courts Act, 1893," Sections 61, 161 Third-party Procedure - Admitting Further Evidence on Appeal - Correcting Magistrate's Notes.] The power given to the Supreme Court, by section 161 of The Magistrates' Courts Act, 1893," of taking additional evidence on an appeal from a Magistrate's Court to the Supreme Court on the facts ought only to be exercised under very exceptional circumstances, as where, owing to some strain or stress, a party has had no opportunity of giving certain evidence in the Court below, or when for some other reason it appears that there will be a failure of justice unless the power is exercised.
Affidavits admitted for the purpose of supply- ing certain omissions from the Magistrate's notes. An application to be allowed to adduce additional evidence refused.
Semble, That section 61 of "The Magistrates' Courts Act, 1893," was meant to provide for a third-party procedure such as that provided for by Rule 95 of the Supreme Court Rules. In the case before the Court,-
Held. That if that section is not efficient for the purpose, then the case should have been removed into the Supreme Court and the third- TATTLE party procedure applied in that Court. v. MCKERROW
2. Appeal on Facts—Additional Evidence -Principles on which should be admitted-New Evidence Trial- Discovery of Fresh Evidence.
to contradict Witness as to Previous Statement-- 'The Magistrates' Courts Act, 1893," Section 161.] The Court ought not to allow an application to take additional evidence on the hearing of an appeal from a Magistrate on the facts, under section 161 of "The Magistrates' Courts Act, 1893," unless under circumstances which would justify it in granting a new trial of a Supreme Court action on the ground of the discovery of fresh evidence.
MAGISTRATE'S COURT-continued.
The power given by section 161 should only be used when it is clear that there would be a failure of justice if further evidence were not Beaumont v. Whitcombe & Tombs admitted. (16 N.Z. L.R. 133) and Tattle v. McKerrow 534 (ante, p. 524) followed. BIGGS v. ELIAS
MALICIOUS PROSECUTION ·Termination of Proceedings-Extradition Proceedings-False Im- prisonment - Imprisonment under Legal War- rant.] Where the Governor, or, in his absence, his Deputy, has issued his warrant delivering over an alleged fugitive criminal to the authori- ties of the foreign State demanding extradition, and the Supreme Court has refused an appli- cation for a writ of habeas corpus, the extradi- tion proceedings have terminated, and, having terminated unfavourably to the prisoner, he cannot maintain an action for malicious prose- cution against the person by whom the requi- sition was addressed to the Governor or his Deputy. It is immaterial that the prisoner. having reached the country to the authorities of which he was handed over, was subsequently released by those authorities.
Where such a prisoner has been imprisoned in the colony by virtue of a legal warrant issued by the Deputy Governor, no action for false imprisonment can lie against the person by whom the requisition was addressed to the Deputy Governor. COURTE
MANDAMUS The Pharmacy Act, 1898," Section 28-Mandamus to Board to register- Mandamus to hear Application afresh — Func- tion of Board-Judicial Nature of Decision Evidence not disclosed to Applicant.] Section 28 of The Pharmacy Act, 1898," provides that every person who applies to be registered under section 27 shall furnish evidence in support of his application satisfactory to the Pharmacy Board established under the Act.
Held, That, to entitle a plaintiff to a manda- mus to the Pharmaceutical Society to register him under section 27, he must show, first, that he had established his claim before the society so clearly that they could not in refusing registration, have been acting in the bona fide exercise of their functions, and, secondly, that in his case as presented to the Supreme Court he has also clearly established his right to be registered.
Where, however, it appeared that the Phar- macy Board had taken steps to obtain evidence upon the plaintiff's application, which was not disclosed to the plaintiff,—
Held, That it would have been proper to grant a mandamus to the Board to inquire afresh into the plaintiff's application if upon his case as presented to the Supreme Court he had shown himself to be prima facie entitled to registration.
But, the evidence satisfying the Court that the plaintiff was not entitled to be registered,-
Held, That a mandamus to hear afresh ought not to issue, as it could not be supposed that a further hearing would lead to any different result.
The decision of the Pharmacy Board upon an application for registration under the above provisions is in the nature of a judicial decision, and the Board in arriving at such a decision is bound to act upon the ordinary principles upon which justice is administered.
Where it had not done so, although a man- damus was refused, costs were not allowed. AYERS V. THE PHARMACEUTICAL SOCIETY OF NEW ZEALAND 418
MASTER AND SERVANT-Liability for Injury to Servant-Common Law-Defect in Plant- Knowledge of Servant-Volenti non fit Injuria- "The Employers' Liability Act Amendment Act, 1891," Section 5-Direction by Judge-Request by Jury-Omission of Formal Compliance-Ap plication for New Trial-Rule 271.] Where a servant is injured through a defect in plant in connection with which he was employed to work, it is no answer to an action for damages against the master at common law to show that the defect existed when the servant en- tered upon the employment. It must be shown further that the servant knew of the defect, and that he knew the nature and extent of the risk to which he would be subjected by it.
And where in such a case it is set up that the servant subsequently to entering upon the employment acquired a knowledge of the defect, this is no defence unless it is shown further that he continued in the employment with full know- ledge and appreciation of the nature and extent of the risk which he was incurring, and with an acceptance on his part of that risk.
Where, in such a case, the defect was in a furnace, and gave rise to the generation and ex- plosion of gases in the furnace, causing flames to blow out from the door, and it appeared that the plaintiff knew at the time of entering upon the employment of fireman that flames did from time to time blow out, with consequent risk to the fireman, but it was admitted that he did not, either then or until after the injury, know the cause of it, and the case for the de- fendants was that the cause of the blowing-out was a down-draught owing to the situation of the factory near a hill,—
Held, That it was competent for the jury to come to the conclusion that the plaintiff did not fully appreciate the nature and extent of the danger, since if owing to the one cause it might be much greater than if owing to the other.
There is no distinction between a case where an injury is caused to a servant by a defect in machinery and a case where it is caused by a defect in the system of carrying on the works.
Smith v. Baker & Sons ([1891] A.C. 325) and The Wellington and Manawatu Railway Com- pany (Limited) v. McLeod (19 N.Z. L.R. 257) followed.
MASTER AND SERVANT--continued.
The plaintiff claimed £1,000 damages at common law, or, in the alternative, £500 under the Employers' Liability Acts. At the trial counsel proposed and agreed to the following issue as to damages-"What damages is the plaintiff entitled to (a) under the Employers' Liability Act, (b) at common law ?”—and the Judge directed the jury that under the Em- ployers' Liability Act the limit of the damages was £500, and that if they thought the extent of the plaintiff's injuries warranted it they might under question (a) assess the damages at any sum not exceeding that amount, and inti- mated that in his opinion it would be proper so to assess the amount. The jury brought in a unanimous verdict, awarding under (a) £500, and under (b) £600 in all. No objection was taken at the trial to the direction, or to the form of the verdict.
1. That the defendants were precluded from afterwards taking the objection that there had not been a literal compliance with the provi- sion of section 5 of "The Employers' Liability Act, 1891," that compensation under the Em- ployers' Liability Acts is not to exceed three years' earnings unless the Judge shall, at the instance of the foreman, upon being requested by three-fourths of the jury, direct that in his opinion such earnings would not be a fair and reasonable compensation.
2. That, in any case, the objection was one which went to a misdirection, and was not, therefore, in view of Rule 271, a sufficient ground for a new trial, it being plain that there had been no substantial wrong or miscar- riage of justice. DOYLE . THE NEW ZEALAND CANDLE COMPANY (LIMITED)
MINING LAW" The Mining Act, 1898 Application to forfeit Claim and to be declared First Applicant - Non-disclosure by Applicant - Forfeiture for Fraudulent Misrepresentation.] Where, on an application, under subsection 1 of section 147 of "The Mining Act, 1898," to forfeit a claim on the ground of fraudulent misrepresentation, it is not proved to be the practice for the applicant, or for the applicant for a claim, to disclose unasked any arrange- ment he may have made with other parties as to the claim, such silence ought not to be held to be wilful and for the purpose of deceiving the Warden.
A mere breach of duty by non-representation, even if a duty to represent exists, is not fraudu- lent under subsection 1 of section 147 of "The Mining Act, 1898," unless the applicant knew of such duty and abstained from performing it.
An applicant to forfeit a claim, and to be declared the first applicant for his own benefit, has something which he is in a position to deal with, and may make bona fide contracts with other persons, including the then holders of the claim, with reference to the claim, should he succeed in obtaining a grant of the claim. GIFFEN v. LEGGATT AND ANOTHER - 427
Warden's Court-Jurisdiction-Action for Deceit Action to set aside Contract for Misrepresentation - · Contract relating to Mining Claim The Mining Act, 1898," Sections 5, 254, 274, 294-"The Mining Act Amendment Act, 1900," Section 14.] An action claiming (a) damages for false and fraudulent representa- tions in regard to the auriferous qualities of a mining claim, and fraudulent "salting" of the claim, or (b), in the alternative, that a contract with respect to the claim should be set aside on the ground that it was obtained by material misrepresentations in regard to its auriferous qualities, is not an action concerning a contract, tort, question, or dispute of any kind relating to mining privileges or operations, within the meaning of subsection 13 of section 254 of The Mining Act, 1898," and is not, therefore, within the jurisdiction of the Warden's Court. The jurisdiction of the Supreme Court is there- fore not ousted in such a case by section 294 of that Act. THOMSON'S BULLOCK CREEK GOLD-
DREDGING COMPANY (LIMITED) AND ANOTHER
v. THOMSON AND OTHERS
"The Orakei Native Reserve Act, 1882"-Power to Lease.] "The Native Land Court Act, 1894," does nct impliedly repeal "The Orakei Native Reserve Act, 1882," and, therefore, leases granted by the beneficial owners of the partition lots of the reserve are valid. In re HAWKE'S LEASES - 34 3.
Validation Court-Jurisdiction-Power to order Removal of Caveats - Power to ad- minister Trusts" The Native Land (Valida- tion of Titles) Act, 1893," Sections 3, 6, 7, 9, 13, 19, and 20.] The Validation Court, under The Native Land (Validation of Titles) Act, order the removal of a caveat lodged in a Land 1893," and its amendments, has no power to Transfer Registry against land comprised in a certificate of title which has been issued pur- suant to a validating decree made by it.
Quære, Whether, apart from section 21 of "The Native Land Claims Adjustment and Laws Amendment Act, 1901," the Court could have been held to have jurisdiction to make a decree validating a title and at the same time reserving power to itself to control the manage- ment or administration of the land, or of trusts MISTAKE Money paid under-Recovery back In re TAHORA. (C.A.) - 643 Illegal Demand Colore Officii - concerning it. The Crown Suits Act, 1881," Section 37, Subsection 1-Claim founded upon Breach of Contract-Implied Con- tract.] Money paid in discharge of a demand illegally made under colour of office, although claimed and paid in the common belief that the officer had a right in law to demand it, may be recovered back as a debt. It is not a voluntary payment, and so not irrecoverable as having been voluntarily paid under a mistake of law.
The action for money had and received being founded on a contract implied by law to pay, on request, money which it would be uncon- scientious as against the plaintiff to retain, where money has been received on behalf of the Crown under such circumstances that an action for money had and received would lie if it had been received by a subject, it may be claimed from the Crown by petition under "The Crown Suits Act, 1881." as upon a con- tract within the meaning of subsection 1 of section 37 of that Act. Lorimer v. The Queen (1 W. & W. (L) 244) and Stevenson v. The Queen (2 W.W. & A'B. (L.) 176) followed. THE KING v. W. M. BANNATYNE & Co. (C.A.) 232
MORTGAGE Presumption of Payment. See LIMITATION. 1.
NATIVE LAND - Alienation by Some only of the Owners of Customary Land Existing Law
Agency-Daughter driving Gig of Father.] The appellant was the owner of a horse and gig in which a step-daughter of his habitually drove out his wife, with his know- ledge and consent.
Held, That his step-daughter was the agent of the appellant, and that, if she was guilty of negligence in driving, the appellant was responsible, although she was not his servant or otherwise in his employment. LEARY V. OSBORNE 416 Failure to take Reasonable Steps to pre- vent Gaming.
Harbour Board-Powers and Duties- Receiving and Delivery of Goods. See HARBOur Board.
Public Work-Negligent or Improper Design-Damage-Action for Dam- ages-Compensation.
See PUBLIC WORK. 1.
"The Employers' Liability Act Amendment Act, 1891," Section 5 -Direction by Judge-Request by Jury-Omission of Formal Compli- ance-Rule 271.
See MASTER AND SERVANT.
Verdict against Weight of Evidence- "The Criminal Code Act, 1893," Section 416.
as to Alienation at the Time of the Dealing.] A transfer of land held under a certificate of title issued under the provisions of "The Native Land Court Act, 1880," must be signed by all the owners. A transfer not so signed is not validated by subsequent legislation, and is in- capable of being confirmed under "The Native NOTICE Determination of Contract - Suffi-
Land Court Act, 1894." In re TAHANUI BLOCK No. 2
« ForrigeFortsett » |