S.C. 1901. HILL v. BENTIN OK. diction over the subject-matter, the Courts of other countries [EDWARDS, J.-Was there anything upon the face of the proceedings to show that there was land in New Zealand?] The question was as to all the lands of which the Earl of Bective was tenant for life in possession. And that is the judgment. [EDWARDS, J.-Surely the general declaration is limited by the heading!] The prayer was general. If it was not intended, the defendant should have had the order amended. M. Chapman, for the defendant :- This order is not an order affecting New Zealand lands. The words can only be deemed to have been intended to apply to lands over which the Court had jurisdiction to make such an order. There can be no estoppel if the Court had no jurisdiction. The person setting up an estoppel must show a record. The fact that the defendant appeared by counsel is nothing. That might be acquiescence in equity, but here the question is purely one of law-had the Court jurisdiction? S.C. 1901. HILL 0. There can be no estoppel by the judgment of a foreign Court unless the Court had jurisdiction: See the notes to The Duchess of Kingston's case(1), and especially Castrique v. Imrie(2). The Fines and Recoveries Abolition Act is in force in New BENTINOK. Zealand; section 51 of "The Conveyancing Ordinance, 1842," shows that. An acknowledgment under that section could only be made in consequence of the Fines and Recoveries Abolition Act. The argument on the other side would go to this: that the Act is not in force at all. The Act does not relate to a matter of local policy, like the mortmain Acts, but to the general law of property and forms of assurance. The Act being in force, enrolment must be in New Zealand. The reason and meaning of enrolment is that the document should be a record of the Courts of the country in which the land is. In the early days of the colony it would frequently have been impossible for a deed to reach England within the six months. Stafford, in reply: Dicey's Conflict of Laws(3); Westlake's Private International Law(4). EDWARDS, J.:— Cur. adv. vult. The questions for decision in this case are first, whether the enrolment in the High Court of Chancery in England of a disentailing assurance is effectual as regards land in New Zealand; second, whether, if not, the defendant is estopped by reason of certain proceedings in the High Court of Justice (Chancery Division) in England. The first point has already been decided by Mr. Justice Williams in Mason v. Mackerras(5). In that case it was held that the Fines and Recoveries Abolition Act (3 & 4 Will. IV., c. 74) is in force in this colony, and that any disentailing assurance affecting land in this colony must, to comply with the provisions of that statute, be enrolled in this Court. Counsel for the plaintiffs asks me to say that the second branch of this judgment is wrong—that the statute is in force in this colony, but that a disentailing assurance affecting land in New Zealand must be enrolled in the English High Court of Chancery. The argument principally relied upon in support of this contention is that no Court having the jurisdiction of the Court of Chancery was created in this colony until the (1) Sm. L.C. 10th ed. Vol. ii. 770. (4) pp. 181, 183. (2) L.R. 4 H.L. 414, 435, 448. (3) pp. 217, 218, 219. (5) N.Z. L.R. 2 S. C. 331. S.C. 1901. HILL V. BENTINOK. passing of the Supreme Court Ordinance of 1841, Session II., No. 1, which came into force on the 22nd of December, 1841. Therefore, it is urged, there was not in this colony, between the date of the Charter of the 16th of November, 1840, and the 22nd of December, 1841, any Court in which a disentailing assurance could be enrolled. The deduction drawn by counsel is that, to avoid the inconvenience of this construction, this Court should hold that disentailing assurances ought to be enrolled in the English High Court of Chancery. The construction of a statute can seldom be determined upon considerations of inconvenience alone, especially when, as in this case, the inconvenience is of a very trifling and temporary nature. There can be no doubt that the Charter under which New Zealand was created a separate colony contemplated that tribunals having the jurisdiction of all the English Courts should be speedily erected, and this intention was carried out by the Ordinance of the following year. Estates tail have never been a favourite mode of tenure in New Zealand, and it is exceedingly improbable that any person sustained any inconvenience from want of a Court in the colony in which a disentailing assurance could be enrolled. On the other hand, it has, I believe, been the common opinion of conveyancers that disentailing assurances should be enrolled in this Court. This was judicially decided in Mason v. Mackerras (1) in 1884. That decision has never since been questioned, and there can be no doubt that it has been acted upon by conveyancers in the colony. If, therefore, I should hold that disentailing assurances affecting land in this colony ought to be enrolled not in this Court but in the English High Court of Chancery, I should not only disregard the decision of this Court, but I should throw doubt and discredit upon titles which have been acquired in reliance upon it during a period of over seventeen years. The case is one in which it is certainly desirable to act upon the maxim Stare decisis. Even, therefore, if I entertained doubts as to the decision in Mason v. Mackerras (1), I should feel bound to follow it. I see no reason, however, to doubt that that case was well decided. The plaintiffs must also, in my opinion, fail in their second contention. Counsel for the plaintiffs admits, upon the authority of British South Africa Company v. Companhia de Mocambique(2), that the English High Court of Justice has no jurisdiction to inquire into and make a declaration as to (1) N.Z. L.R. 2 S.C. 331. (2) [1893] A.C. 602. S.C. 1901. HILL V. the title of land in New Zealand, but he contends that the decree of the English High Court of Justice upon which he relies is not a declaration of title, but merely a declaration as to who, under the limitations of the will of William Thompson BENTINOK. set out in the statement of claim, are entitled to his property. I am unable to appreciate this argument. The paragraph of the decree relied upon is, "This Court doth declare that the "late Earl of Bective became on his death absolutely entitled "to the hereditaments and premises whereof he was tenant "for life in possession under the limitations and trusts con"tained in the will and codicil of the testator." The decree recites and is founded upon the disentailing assurance upon which the plaintiffs now rely. So far as concerns the lands in question in this action, it is, if it extends to them at all which in my opinion is not the case a decree declaring title, and nothing else. If it operates at all, so far as such lands are concerned, it precludes the defendant from setting up her title, and renders her liable in this colony to an action for trespass upon her own lands at the suit of the plaintiffs. This, it appears to me, is what the House of Lords has decided, in British South Africa Company v. Companhia de Moçambique(1), the English High Court of Justice cannot do. So far as the material before me enables me to judge, however, the English High Court of Justice has not attempted to determine the title to the lands in question. The decree, which is the only evidence before me, is headed, not only in the action in which it is made, but in the matter of a large number of English estates, separately, and sufficiently described. It purports to be founded upon a certificate of the Chief Clerk, and upon a large number of orders previously made. It seems hardly possible to doubt that the generality of the words relied upon by counsel for the plaintiffs is limited by the material upon which the decree purports to be founded. At all events, it must be held to be limited to lands over which the English High Court of Justice had jurisdiction. The lands in question in this action do not come within that category. There must, therefore, be judgment for the defendant in the action. Judgment for defendant. Solicitors for all parties: Stafford, Treadwell, & Field (Wellington). (1) [1893] A. C. 602. S.C. IN CHAMBERS. 1901. Nov. 26, 29. EDWARDS, J HALLENSTEIN. THE MAYOR, COUNCILLORS, AND Public Works Act-Compensation-Interest on Award—“The Public Works, Interest cannot be claimed upon a sum awarded by a Compensation Court under The Public Works Act, 1894," unless and until the award takes effect as a judgment of the Supreme Court under section 76 of the Act. ORIGINATING summons. M. Chapman for the plaintiff. T. F. Martin for the defendants. EDWARDS, J.: Cur. adv. vult. This is an originating summons for the purpose of determining whether or not the plaintiff is entitled to interest upon a sum awarded to him by a Compensation Court for a period between the date of the filing of the award under section 76 of "The Public Works Act, 1894," and the date when, under subsection 4 of the same section, such award would have the effect of a judgment of this Court. The award for £4,996 was filed on the 12th of September, and the amount awarded was paid over to the plaintiff on the 15th of October following. It is unnecessary to inquire into the cause of the delay in payment. For the reasons given by Mr. Justice Richmond in Walker v. The Wellington and Manawatu Railway Company(1), I am of opinion that the question raised must be determined solely upon the construction of "The Public Works Act, 1894," and that the English cases afford no assistance in the determination. In my opinion, interest cannot be claimed upon a sum awarded by the award of a Compensation Court unless and until the award takes effect as a judgment of the Supreme Court, under the provisions of section 76 of the statute. Under the statute, land taken for public works vests in His Majesty, or in the corporate body taking it, upon the gazetting of the (1) N.Z. L.R. 5 S.C. 193. |