COURT OF APPEAL

Dominion, Volume 9, Issue 2806, 26 June 1916, Page 3

COURT OF APPEAL

A ZOO,CASE

ONEKUNGA BY-LAW DECLARED ULTRA

VIRES

A eittiutj of tho Appoal Court was held on. Saturday morning, when Their Honours Sir llobert Stout (Chief justice), Justices Edwards, Sim, and Hosking gave judgment in the appeal case, J. J. Boyd, of Kilbirnie, v. the Mayor, councillors, and burgesess of tho Borough of Onehunga.

This was an appeal case in respect to the validity of a oy-law of the Borough of Onohunga prohibiting tho keeping of wild animals within the borough. The Supremo Court at Auckland had decided that the by-law (No. 17) of the said borough was valid, because it was held that the keeping of ".animals, reptiles, and birds" within the borough iu any zoological garden wan likely to become a nuisance or injurious to tho public health. ' The by-law also provided that no person after tho expiration of sis. months from tho coming into force of the by-law "shall keep within the borougli any animals, reptiles, or birds which axe wild by nature." The by-law specifically excluded animals belonging to' a travelling circus-or menagerie, as woll as poultry and domesticated animals.

His Honour tho Chief Justice, in his judgment, said it should be observed that tho council of a borough may prohibit the keeping of any animals, • reptiles, or birds within the borough if the council so determined. "If the council," continued. His Honour, "had considered the question and had come to the con-: elusion that tho keeping of any animals, reptiles, or birds, which are wild by nature, was likely to become a nuisance or injurious to health, then, in my opinion, a by-law prohibiting such keeping would be valid. In that event all the arguments adduced' about unreasonableness, inconvenience, and injury to existing interests would be irrelevant. 1 '- -His Honour, therefore, held that the by-law itself was invalid, as it was too wide in its application; but under tho by-law the council and its officers had authority at their discretion to make their notion valid if their action was not unreasonable.

Mr. Justice Sim, in the course of his judgment, 6aid that the power conferred by the Act of 1913 had to bo exercised subject to tho restriction that tlie council is not entitled to prohibit the keemug of any animal, reptile, or bird, the keeping of whicli could not reasonably be regarded as a nuisance or likely to become a nuisance. Subject to that' restriction the council had an oHsolute discretion as to the animals to which its prohibition should bu applied. It was clear to His Honour that the bylaw in the present case did prohibit tho keeping in the borough of all animals, reptiles, and birds, wild by nature, 6ubject to the exceptions mentioned in the nrovisu, nnd not kept in tioological gardens; but before a prohibition so uni. vorsal as that in question could be justified tho council must have a survey of the whole animal kingdom, and must have : come to the -conclusion that thero ifl not in tho witb world any beast, bird, or reptile, wild by. nature, that could be kept in the Borough of Onehunga .without such keeping being, either a nuisance or likely to become such. "It is impossible," continued Mr. Justice Sim, "fur any body of reasonable)'men to have.come honestly to any such conclusion as that." The prohibition extended to all animals wherever kept, even.',to fish in a'pond or bees 'in a hive, a'n'd they could not be regarded reasonably as likely to become a nuisance. The council h«s gone beyond the limits'of its statutory authority in its by-law. .' / The by-law was also regarded, as invalid on the ground Hint ?t '« ultra vires by Their Honours-Justice Edwards «ud Hosking, who • also agreed that tho appeal must,be-allowed!. An order was made declaring the by-law to be invalid, wore allowed the appellant of the originating summons (.£lO 10s. and dis•lursements), and ; also costi of the appeal on the highest scale as on n caso from h'distance.'. Costs in the Lower Courtwere also -allowed . appellaiit:- " '■' At the hearing of the case,-. Mr. C. P. Skerrett, K.C, Sir John Findlay. K.C., and Mr. D. M. Pindlay appeared for tho appellant, -xnd Mr. C. U.-Morison, X.C., and Mr. J, -C. Peacock for the re. *poudents

PLEDGING LIVE STOCK. INTERESTING - MORTGAGE CASE. ' This was au appeal 'by the Official Assigheo in bankruptcy of the property of' Douglas Roy Bailey from a decision of the Supremo Court as to the validity of a mortgage over live stock given to the Union Ba,nk of Australia and othors. Their Honours on the Bench were:— The Chief Justice (Sir Robert Stout), Justice Edwards, and Justice Sim. Tho security granted to the respondent bank contained the clause, "The mortgagor does, hereby transfer, assign, and set over by way of mortgage, unto, the bank all and singular the stock mentioned in the schedule hereunder written, together with all stock belonging to tho grantor and now being at, in, or upon the lands owned, used, or occupied by the grantor, and worked in conjunction with all stock which, by the provisions of Section ) 26 of tho Chattels Transfer Act, 1908, are made subject to these presents and also together with all stock winch 6hall hereafter, during tho continuance of this security, be acquired by the grantor,, and be brought upon the lands mentioned in the schedule hereto or any other lands mentioned in the schedule hereto." Tho Chief Justice, in the course of his judgment, said:—"The first objection to this security 'giving the bank the, right to seize the stock on the lands is that Section 25 requires the stock comprised in any instrument to be described or referred to in the schedule thereto by some brand or brands or other mark or marks, otherwise the' instrument would be void. As no brand is mentioned, the contention was that the whole covenant was bad,; but His Honour held that there was a covenant in the deed requiring the marking or branding of the "stock, ami that was suffinient he held to let in the opera.: tion of Section 20 of the Act. Theiap. pellant had failed to show that Section 26 was not applicable, therefore, Die apv peal should be dismissed. Mr. Justice Sini concurred .with the Chief Justice. Mr. Justice Edwards, who (lid not deliver his judgment, dissented.

The appeal was dismissed with costs according to scale. Mr. D. M. Findlay. for Mr. Lloyd, of Dannevirke, accepted judgment on behah' of the appellant.