LAW REPORTS.

Dominion, Volume 5, Issue 1248, 3 October 1911, Page 3

LAW REPORTS.

I ft . THE COURT OF APPEAL, LAST WORD. ABOUT KING'S ROAD, MIRAMARThe Court o£ Appeal opened its sittings in Wellincton yesterday morning. After the preliminary business of arranging fixtures hail been disposal of, thu Court proceeded to hear (ho appeal of the MV'ainar Borough Council v. Hector Noriimn Jl'Leotl, nnil the Attorney-General. On the llcuch were Ilr. Justice Pciiniston, Mr. Justice-Edwards, and Mr. Justice Chapnuui. Tlie appeal was in referencq to King's Koad, ilirainar, which occupied .several sittings of the Supreme Court some two months back. The Borough Council decided to narrow the width of the street from 99ft. to 66ft., and the case first came into Court in the form of an application by. the lliramar Borough Council for an order, removing a caveat which had been lodged by Hector Norman M'Leod, one of the property-owners affected, to prevent the registration of an order of the council diminishing King's Uoad to 66ft. Oil July 25 this phase of the question was argued, when ilr. T. F. Martin, with him .Mr. T. Young, appeared for the Miramar Borough Council; Mr. Martin Chapman, K.C., for the caveator; and Mr. J. AV. Salmond, Solicitor-General, represented the Attorney-General. "When this preliminary point- was being oJßiiod. .Mr. Chapman interposed, and asked that the Court should decide upon tile efficacy or otherwise of the caveat to restrain the council. The preliminary objection that the caveator had no riglit to lodge tho caveat might prevail, and counsel thought that it would be well to have the caveat disposed of before other proceedings were, brought. An adjournment was then decided on, in order to give the parties an opportunity of conferring as to the manner in which the case should bo presented. Subsequently, it was decided to discontinue the original proceedings, the application was deemed to have been successful for the purposes of costs, and the power of the- council to diminish the width of the street and dispose of the surplus land was then tested before the Chief Justice. On that occasion the Solicitor-General contended that a municipal corporation could only diminish the. width of a street in accordance with the seventh schedule of the Municipal Corporations Act, and this contention was supported by Mr. When the Chief Justitc delivered decision on August S, he held that the Borough Council of Miramar had no right to diminish the width of the street called King's lioad by special order, unless the conditions of tho seventh schedule were complied with.. It was from this decision "that the Borough Council appealed, on the ground that it was erroneous in point of law. Mr. T. F. Martin, with him Mr. T. Young, appeared for the appellants, and Mr. Martin Chapman, K.C., with him Mr. i , '. F. Newman, for Hector Norman M'Leod, while the Attorney-General was .represented by tho Solicitor-General (Mr. J. W. Salmond). When Mr. Martin and Mr. Young had concluded their argument, tho Court intimated that it did not propose to call on. the other side unless the SolicitorGeneral wished to support Mr. Young. The Solicitor-General stated that hi> "was opposing the appeal. Mr. Justice JJenniston said that he thought, especially in view of the Court of Appeal decision in the Selwyn County Council case, that the appeal "should be dismissed. He did not propose to go at length into the sections of the Act, but it was clear that, unless compensation could lie obtained, the property-holders would be placed in such a position that they would be deprived of access to their property, unless they were willing and.liad tho means to buy tho land (cut oil from the road), at the corporation's value. The distinction between stopping and diminishing a road was unsound, and provisions with regard to the one were applicable to the other. lie did not think that this (narrowing tho width of the street) could be said to bo tho construction of a public work, and, therefore, the position was that property-holders were to be deprived of ajcess to their land or else they must [ buy tho. land cut oft' froni the street. It might be that this decision would preveint a street from being widened in that way, but that was n position that could be met by legislation with proper provision for compensation. Mr. Justice Edwards was also of opinion that the appeal should bo dismissed.' Tho could not be distinguished from the Selwyn County Council cas?. His Honour further considered that tho contention of counsel for the appellant assumed that the decision in the- Selwyn County Council case was wrong, but tho decision was put beyond doubt bv the fact that the words of tho Court of Appeal in the .Selwyn County Council ea's.l had been used by the Legislature in another Act. There could be no doubt, his Honour thought, that the whole provisions of Clause 8 and tho seventh schedule of tho Municipal Corporations Act were intended to apply io every case where the powers given *to borough councils might have the effect of depriving a property holder of access to his land, the position was really unarguable. Mr. Justice Chapman o.*reed with the other members of the Court, and leinarked that tho Chief Justice in his decision had referred to consequences that might have ensued from the particular construction that was desired to he placed upon tho Act, and had certainly not overdrawn the position. After a lengthy reference to -the law, Mr. Justice Chapman concluded by stating that he was pjrfpctlv clear that the decision of the Chief Justice was a correct ono, and ought to be upheld. Costs on the middle, scale were.allowed the , respondent. M'Lto;!, and ,£ls 15s. the Attorney-General. ALLEGED LIBELLOUS CARTOON. MASSEY-"N.Z. TIMES." APPEAL TO PRIVY COUNCIL. Leave to appeal to the Privy Council was yesterday granted to plaintiff in the easo of ilassey v. the "New Zealand Timed" Company, Ltd. The case was mentioned when the Court of Appeal mot, oil the Bench being the Chief".justice (Sir Uob?rt Stout), and Justices Denniston, Edwards*, and Chapman. The facts of the case are well known. A= a result of a cartoon appearing in the "New Zealand Times" on December .'!, 1910, 'William Fcrr;u.-.ou Mas-;ey, Leader of the Opposition, >n:d tiie proprietor* of the papjr to recover the sum oi' .tJOUi) as damages for alibied li|>3l. Plaintiff claim-■c-d that the publication was fal?e, and malicious, but the- defendant company de»kd this, and contended that the cartoon and the words used were fair comment, made without iiialico. Tho jury -found that the figure in the cartoon represented Mr. Miisscy, but were of opinion thai- the cartoon was "a political cartoon pure and simple and not libellous." Mr. Justice Chapman, who heard the case, decided that on that finding a verdict must 1:3 entered for tho defendant company. : Au application by plaintiff for a new trial, on various grounds, was refused by tho Chief Justice and Mr. Justice Chapman. Plaintiff then carried the case to the Court of Appeal, and at the hearing of the appeal Sir Joshua Williams and Justices lJennis'.on,-Edwards, and Sim were on ths Bench. D-reuinn was delivered in August last, Justices Denniston and Edwards holding that a new trial should be- ordered, and f>ir Joshua \\illiams and Mr. Justice Sim holding that it should be refused. With tho Judges ("inallv divided, the position remained as i< was". Mr. 11. I). Bell. K.C., thereupon -i'.v'o notice to move for leave to appeal to i'-• •• Privy Council, and the motion was ..ijourncd until the present sittings. I festerday Mr. Hell mentioned the case I ;s;rain and asked lor the necessary ieave i<j appeal io tho Privy Council. No slay .-•I proceedings was needed, as plaintiff had ' '..'aid tho cosU. Mr. A. W. iilair, who appeared for the defendant company, intimated that there was no objection and the Chief Justice slated that leavo would be granted accordingly. Mr. Bell (tan, said that at Ore hearing of the application for a new trial before the Chief Justice anil Mr. Justice Chapman, it came to l» common ground th;it tho words "pamphlets free" in the cartoon referred to the- pamphlet reflecting mi the Prime Minister. That, was adopted in the Court of Appeal by both Ilr.

Solomon, K.C., and liimsdf (Mr. Boli). When tlio motiou for leave to aiipeal to the. Privy Council was moved at the last sitting of the Court, lie hail asked Hint that should bo recorded and counsel for defendant company had u.ss-entcd. lie (Mr. Dell) now asked how this should be done. The. Chief Justice: How do you propose ? Mr. Bell suggested that the Begistrar should bo directed by tho Court lo say in a miuuto attached to the case that tho words "pamphlets free" are nfjroed by both parlies to refer to the pamphlet reflecting on the Prime Minister. 'I'he.ir Honours would fee (ho importance of Ihe position, bemuse at the trial it was treated ;i> a matter not in dispute, whereas it would appear from tho records «s if it was left to the jury to find the fact either way. TheCourr agreed that the matter could 1» left to Mr. Bell and Mr. Blair unt.il this morning to prepare a uiinule to attach to the records. The position now is that plaintiff has obtained what is known as conditional leave to appejl. He will lodge security in a sum not exceeding .£SOO for the due prosecution of tho appeal and compliance with the judgment of tho Privy Council. In the ordinary course final leave to appeal will be granted at the next sittinsr of the Court of. Appeal and the case will then likely bo heard by the Privy Council about the middle of next year. ORDER OF CASES. TVhen the Court of Appeal sat yesterday morning, cases were set down for hearing in the following order:— Tuesday, October 3. Motion under the Law Practitioners Act, 1908, in the matter of Arthur Harold Bunn, solicitor. Paiiro Marino v. Tho Aotea District Laud Board. Wednesday, October -4. William Schmidt and William Bollshaw v. Willio Uroenvrood. Bridge v. Bailey. Monday, October fl. John George Alexander Baird, and others, v. Githa Unid Pergusson ami others. Motion under the Law Practitioners Act, in re J. ii. Lundon, solicitor. Taituma Marangataua and others v. Patena Kereni and another. Wednesday, October 11 Tho-Land Tarnsfer Act, lMß,'and The Native Land Act. 1909, in the matter of the Kopaatuaki Block. Other Cases. Other cases on the list are: Motion under the Law Practitioners Act, 1908, in tho matter of Walter Wilkes, solicitor. II.M. the King v. Mary Brown.