C.A. 1902. Ex parte MAYOR OF visions as applying only to a subdivision for the purposes of sale in the popular meaning of these words-to such a subdivision, in fact, as "The Land Transfer Act, 1870," section 107, would have compelled the District Land Registrar WELLINGTON, to require a plan of subdivision to be deposited, and as would under "The Land Transfer Act, 1885," section 171, enable TRANSFERS. him to require such plan to be deposited. In many cases, as in those under consideration, it would be impossible to comply with the requirements of the statute as it has been interpreted by the District Land Registrar. In such cases, upon that interpretation, the statute means, not that its provisions shall be complied with, but that the landowner is deprived of the ordinary right of alienation inherent in the owners of property. The Legislature can take away the right of alienation, but to do so it must use express words. The intention must not be left to be gathered from words. easily susceptible of a more rational construction. The inference is against an intention to destroy the ordinary rights in property, and practically to confiscate it. The maxim Ler non cogit ad impossibilia applies. It may be that upon the construction which I place upon the statute there may in some instances be a difficulty in determining whether the particular case comes within the definition which I think ought to be adopted. It may also be that in some instances the operation of the statute may be evaded. That this is so does not constitute any real objection to the construction which, in my opinion, ought to be adopted. The same difficulty and the same possibility of evasion must occur upon any construction of the statute, unless it be held that the sale or lease of any portion less than the whole of a property held as a whole comes within the statute. The evil hit at by the statute the subdivision of land upon a sale-plan with narrow streets and ways-would be impossible. Even if this were not so, it is, in my opinion, better to construe the statute in the popular meaning of the words, though evasion may in some cases be possible, than to construe it in a sense which is unjust and tyrannical to the owners of property, and which would result in grievous and useless burdens to the ratepayers. Neither of the dealings under consideration in this case comes within the meaning of the statute, as I read it. I agree, therefore, that there should be an order to the District Land Registrar to register them. In re C.A. 1902. Ex parte I am aware that the present case might well be decided upon narrower grounds than those upon which I base my opinion; but the true construction of this statute is a matter of immense MAYOR OF importance, not only to the applicant in the present case, but to property-owners and local bodies throughout the colony, TRANSFERS. and I prefer, therefore, rather to rest my decision upon broad, general grounds than upon considerations which affect only the particular case. WELLINGTON, In re COOPER, J.: I do I also agree that these transfers must be registered. not think either of the transactions in question is within the statute. Under section 20 the land must not only be "sub"divided" into allotments, but the subdivision must be "for "the purpose of disposing of the same." By this is meant, in my opinion, that the purpose must be the disposition by sale or lease of the allotments generally. In each of the present cases the object of the division was to sell only the portion in each case agreed to be purchased by the Corporation. There is nothing in either transaction which can justify an inference that the small strip of land reserved in each case. by the particular vendor-11 links in one case and 2 ft. 10 in. in the other-was reserved for the purpose of sale, or that either vendor in dividing the particular allotment did so for any other purpose than to sell the portion in each instance transferred to the Corporation. I prefer to express no opinion upon the important questions discussed by Mr. Justice Edwards, as it is clear that, whatever may be the correct interpretation of the term subdivides into allotments" used in section 20 of "The Public Works Acts Amendment Act, 1900," neither of these transactions is within the Act. Order for registration. Solicitor for the Corporation: T. F. Martin (Wellington). Solicitors for the District Land Registrar: Chapman & Tripp (Wellington). [IN THE COURT OF APPEAL.] REX r. POWER. Justices-Jurisdiction-Taking of Depositions-Committal for Trial-Place of Commission of Offence-" The Justices of the Peace Act, 1882," Sertions 4, 118, 145. Justices, or a Magistrate acting under the Justices of the Peace Act, sitting in any part of the colony, have jurisdiction to take depositions on a charge of an indictable offence against a person brought before them, in whatever part of the colony the offence may be alleged to have been committed, and to commit the accused for trial at any place within the colony. It is not necessary that the committal should be for trial at a place within the judicial district of the Supreme Court within which the offence is alleged to have been committed. THIS HIS was a Crown case reserved by Conolly, J., for the opinion of the Court of Appeal. The accused were resident in the Waikato district, within the Auckland Judicial District of the Supreme Court, and were arrested there and brought before the Stipendiary Magistrate at Cambridge on a charge of horse-stealing, alleged to have been committed near Napier, in the Wellington Judicial District of the Supreme Court. The Magistrate took the depositions, and committed the accused for trial at Auckland at the next sittings there. The accused appeared at the sittings, and pleaded guilty. Conolly, J., reserved for the opinion of the Court of Appeal the questions whether the Magistrate had jurisdiction to take the depositions and to commit the accused for trial at Auckland. A Justice of the Peace has jurisdiction throughout the colony: "The Justices of the Peace Act, 1882," section 4. The jurisdiction is quite general. An accused can be brought before any Justice: Section 118. Section 145 concludes the matter. The accused may be committed to any prison, either within the provincial district or elsewhere. That must mean that the committal may be for trial at any place: See also C.A. 1902. March 26 C.A. 1902. REX v. POWER. section 162. It follows that the Supreme Court has jurisdiction to try: Johnston's Justice of the Peace(1); Haselden's Justice of the Peace(2). Section 5 of "The Criminal Code Act, 1893," does not take away the jurisdiction of Justices. Section 347 only gives a power of altering the venue after committal. STOUT, C.J.: In my opinion the Magistrate had jurisdiction to take the depositions and to commit the accused for trial in Auckland, although the offence had been committed in the Wellington District. No limitation is placed upon the jurisdiction of a Magistrate with reference to the place where an offence has been committed. A Magistrate is appointed for the whole colony, not for a particular district, and he may sit anywhere and deal with the business which may be brought before him wherever he may be sitting. Then, again, there is nothing in our statutes saying that the place of the commission of an offence is to fix the place for the trial of the person charged. No doubt, if it causes inconvenience to the accused to be tried at a place distant from the place of the commission of the offence it might be proper te commit for trial in the district where the offence was committed, and if the accused has been committed for trial at a particular place and that causes inconvenience there is power in the Supreme Court to change the place of trial. In this case, however, no inconvenience was caused to the accused. On the contrary, it was better for them. Auckland was the place of sittings of the Supreme Court nearest to where they resided, and they surrendered to their bail there and pleaded guilty. I am of opinion that the first and second questions should be answered that the Magistrate had jurisdiction to take and complete the depositions and to commit the prisoners for trial, and that he had jurisdiction to commit them for trial at Auckland, although the offences were committed in Napier. It is unnecessary to answer the third question. WILLIAMS, J. : — I am entirely of the same opinion, and have nothing to add. CONOLLY, J.: I concur, though the decision goes against my inclination in the matter. The case was, I think, dealt with in an unusual and, in my opinion, irregular manner. As the law stands, however, it appears, that a Magistrate may commit for trial at whatever place he pleases. His Honour the Chief Justice has said that no inconvenience was caused to the accused in this But, on the other hand, the action of the Magistrate necessitated the bringing of all the witnesses from Napier to Auckland. That should, in my opinion, have been considered. EDWARDS, J.: case. I concur in what has been said by His 'Honour the Chief Justice. COOPER, J. I concur also. Solicitor for the Crown: Crown Solicitor (Auckland). C.A. 1902. REX v. POWER. IN THE COURT OF APPEAL.] HANNAH . THE COMMISSIONER OF STAMPS. C.A. 1902. April 7. Revenue-Deed of Gift-Transfer to Son of Land purchased with Money of Mar. 25, 26 : A transaction is not liable to duty as a deed of gift under the Stamp Acts Amendment Acts, 1891 and 1895, unless there is some instrument, or series of instruments perhaps, executed by the donor for the purpose of giving effect to the gift. Where, therefore, a son purchased land in his own name, but with moneys of his father, and a transfer from the vendor to the son was taken, and the son then leased the land to his father for his life at a peppercorn rental, and executed a declaration of trust by which he declared that he held the land upon trust as the father should appoint, and in default of appointment upon trust for himself and his brothers,— Held, That neither the transfer nor the transaction as a whole was liable to duty as a deed of gift. Per Edwards J.-There having been a resulting trust in favour of the father on the transfer of the land to the son, the so-called declaration of trust executed by the son was a nullity, it being necessary, under section 7 of the Statute of Frauds, that any declaration of trust should be signed by the beneficial owner. THIS HIS was a case on appeal from a decision of the Commissioner of Stamps, removed by consent into the Court of Appeal. |