The New Zealand Law Reports

LICENSING continued.

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was withdrawn,-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

128

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

VOL. XX.]

LIMITATION-—continued.

INDEX.

-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.

LIMITATION-continued.

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.)

Tort

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

Powers.

See PUBLIC WORK. 1.
Resolution.

See TOLLS.

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

LUNATIC-continued.

Public Trustee, where the estate was small and
could well be managed by her. In re BAR-

NETT

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

524

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

Βουντ

COUNT

DE
312

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,-

MANDAMUS-continued.

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.

Held,-

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)

686

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

MINING LAW-continued.

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

225

NATIVE LAND continued.

"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

NEGLIGENCE

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.

See 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.

NEW TRIAL

"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

See CRIMINAL LAW. 3.

ciency.
See CONTRACT. 4.

« iepriekšējā Turpināt »

Grāmatas

The New Zealand Law Reports, 20. sējums