APPEAL COURT

Dominion, Volume 12, Issue 229, 21 June 1919, Page 3

APPEAL COURT

RESERVED JUDGMENTS ! ! IMPERSONATION AT ELECTION V \ ABATTOIR FINANCE The Appeal Court sat yesterday, morning, and delivered a number of judgments. On tho bench were His Honour the Chief Justice (Sir Robert Stout), Mr. Justice Edwards, Mr. Justice Chapman, and Mr. Justice Sim, , . The first judgment dealt with the case of the King v. James Luke Raglan. The respondent. Raglan was tried in the Supreme Court in November last before Mr. Justiee.'.Chapnian on nn indictment of three counts of impersonation, and also on the charge.that having already voted lie applied for a voting paper iii his own name. Raglan pleaded guilty on two counts. The point raised,in respect to tho fourth count was tha't Baglan. not having previously obtained a voting paper in his own jiame, was entitled to apply. fpr> one. The Judge directed the jury in terms of section 218 of the Legislature Act, 1908, to find a serdict of guilty, on the ground that the prisoner,, having once voted,, committed an offence by again applying for a voting paper in his own name. It was immaterial whether nny former application was in his own name or some, other name. The question submitted to the Appeal Court was whether the direction of the learned Judge was correct. . The Court was unanimously of opinion that the conviction should be quashed. ■At tho hearing Sir John Snlmond, K.C.; appeared .for the Crown, and Mr. 11. F. O'Leary for Raglan. . REX V. CUNNINGHAM. 'The ease\of Rex v. Cunningham was an appeal 'from a decision of Mr. E. l'age,> S.M;, lit Napier, in a petition of rights commenced by Thomas Cunningham. The respondent was for twentyfive years in the sen-ice of the New Zealand Government Railway Department, and was stationed at. Invercargill. Winion, Gore, and other places. : In September. 1912. while employed at Invercargill as booking clerk, he contracted lung trouble, duo, in the opinion of his medical'adviser, to. tho constant draught from the window .of -the booking office and acting upon • medical advice he applied lor. and obtained, a transfer to Hastings, where he was employed as clerk in charge of the goods office, a position ho held for four years. In January, 1917, Cunningham was entitled to, and should have received, three weeks' leave of absence and a pass. At the request of the stationmaster and on the express Understanding that he was not to be prejudiced in any way by foregoing the leave, he did forego-'his leave. In April, 1917. the stationraaster at Hastings in-, stvueted Cunningham to take up the duties of booking clerk.. Cunningham informed the stationmaster that he was unwilling to take up such duties because of the state of his health. On the following, day he was suspended for'refusing.duty. On~May 1 Cunningham was advised bv. the direction of the General to apologise to the stationmaster. and takb up the. duties in-the booking oilice at once, failing which he would, be dismissed. 'Failing to gel a Departmental inquiry, Cunningham,, on May 17, sent in his resignation, and on Juno -4 lie was notified that his resignation had been accepted, in the following terms: "The resignation of Mr. T. Cunningham is. accepted, it being noted that resignation was accepted, in order to avoid the necessity-for dismissing.him for insubordination." Cunningham claimed that as he nad a continuous period of service of over twenty years, lie was entitled to six weeks' leave on full pay, or a total of ■m 125.. and was further entitled to receive the. leave and free pass which he .had foregone without prejudice or compensation .ton. the loss thereof a sum of ,£29. Tha. Magistrate held, that Cunningham, having . voluntarily retired from-the service for* his own purposes, was entitled to. be paid the six weeks' retiring allowance „CSO 12s. With regard to the value of, tho pass for the twenty-seven days',, overdup leave, the Magistrato held that this could' not -be recovered; and gave judgment accordingly. The'appeal was-against, this decision. The;- majority of the Court held that the appeal-should be dismissed with costs, and judgment was . given accordingly. The' question of whether the regulations wero ultra vires, a subsidiary, matter, was reserved.,/

At tho hearing Sir John Salmond, K.C'., appeared for tho Crown and Mr. E. J. W. Hallett, of Hastings,. for the respondent. ' AUCKLAND HARBOUR BOARD V. ; ' ' THE ICING. The facts in thi3 case were that on December 24, 1897; the Auckland Harbour Board leased' to John Burns and Co., Ltd., a • parcel of land being the freehold property of ■ that, board. That 'on December 13, 1909, during the currency of the said lease the land so leased was subsequently taken. or resumed by the Crown for railway purposes. That John Burns and Co., LtcL, thereupon made a claim agaiusi the Cifown under the Public Works Act, 1908, for the sum of <£21,894 10s. for compensation iu respect of.the company's leasehold interest in tho said land.- On November 7, 1912, a local Act entitled the Auckland Harbour Board Empowering Act, 1912, was passed, and section 7 empowered the board to grant John Burns and Co., Lt(fi, on approval by the Minister of Railways, the lease of certain land then in process of reclamation by the board, such lease to be accepted by John Bums and Co., Ltd,, in part satisfaction for compensation against the Crown. . That it was agreed that the Minister should pay the board a 'sum of ,£7590 when the board granted and the'company accepted a leaso of certain lands therein specified, and part of the land then in process of reclamation. Thiit oil .December 4, 1914, before the lease was granted or accepted, the said suiu. was paid from the public revenue. That on August 20, 1915; tho j Crown resumed certain land belonging to the llaibour Board, including tho land so agreed to' bo leased by tho board to John Burns and Co., Ltd.,' nnd it thereupon became 'impossible for the board to grant or the company to accept the lease oHhe land pursuant to agreement. The said lease had never' been granted, and by not fulfilling that and other conditions precedent had never become en-, titled to the .£7500 or any part thereof. This was a motion for a declaratory judgment on tho admissions contained in the pleadings. It was contended for the appellant that the board was awarded compensation amounting to w£25,091 for land taken by tho Crown, and this award was equivalent to a Supreme Court judgment. The Crown paid ,£17,591 of tho amount, deducting ,£7500 from tho total on the grounds alleged by tho Crown' that the payment of the .£7500 was illegal because tho conditions entitling tho board to that sum were not complied with, IJ tho board had been allowed to pursue its way- undisturbed tho lease would have been granted to John Burns and Co., Ltd. At the time the agreement was made there was no idea that the Crown would resume tho land that was to bo leased to_ tho company. Burns and Co. were anxious to build, and it was to the interests of the Crown, in view of tho desire to resume the land, that tho company should not build, as that would increase tho amount of the compensation payable. The board was in a position on October 1, 191-1, to grant Burns and Co., Ltd., a lease as arranged. Tho sum of .£7500 was paid nino months before this. The Railway Department desired that.the lease should not bo executed and paid .£7500. Burns and Co. received tho full consideration for their lease.

For. the Crown it was urged that tho sole question in the caso was whether tho Auckland Harbour Board was bound to rebate'tho sum of -£7500 on the grounrt that the monev was paid to it through error or illegally. It was not materia l , to the Court to consider by what process tho refund was made, whether it wa» deducted from a compensation claim or was secured in cash. What was required was a declaration whether the money had to be refunded by the board. In 1897 Burns and Co. wore tho lessees of a picco of land. That land waff taken by tho Crown in 1909, and claim for compensation was mado in lflll by Burns and Co. for .£21,000. In order to enable a settlement of that claim to bo mado by the panting of a subsequent loose, special legislation was passed in 1912—the Auckland Harbour Board Empowering ActThat Act enabled tho board to grant a

new lease of certain other lands in process cf reclamation, and enabled tlio Minister to pay a lump sum for granting that lease. A tripartite agreement was made between Burns and Co., the Minister of Railways, and the Harbour Board. By thai', agreement the Harbour Board agreed to grant a lease to Bums and Co. and the Crown agreed to pay to the Harbour Board, in consideration of this lease, aud upon that lease being granted, the sum 0f'.{;7500. The board was to bo paid this money as a premium for granting this leaso of land to be reclaimed. Tlio reclamation was completed, and by that time the.. Railway Department had decided on the resumption of the land, which included .the. site of Burns and Co.'s new lease, and therefore it was undesirable that the lease should bo granted to Burns and Co. In December, lull, notwithstanding that the lease was not granted, tho sum of ,£7500 was paid therefor. The board was in the position of granting, the lease in October, 1914, and the money was paid in December of that year. The next step was that in August, 1915, the whole area, including tho site of Burns and? Co.'s proposed lease, was resumed by the Crown. The Crown contended that the money (.£7500) was paid in error to the board, and could bo recovered. The majority judgment of the Court was that the Crown was entitled to recover tho amount of ,£7500. such amount having been paid unlawfully. The Chief Justice (Sir Robert Stout) dissented from this view. ' \ Mr. C. P. Skerrett, K.C., who appeared for the Harbour Board, asked for and obtained leave lo appeal to .the Privy Council. Sir John Sahnond, K.C., appeared for the Crown. COUNCIL V. GAS COMPANY. This was an appeal by,the Auckland City Council against a judgment of His Honour Mr. Justice Cooper, and tho appellants moved that su much of tho 'judgment of. His Honour delivered cn December 19, 1918, in the action in which the Auckland City Council was .plaintiff and the Auckland Gas Company was defendant, as holds that v the defendant's, main pipes and gasometers are machinery and so excepted from the definition of rateable property in tlio Hating Act, 1908, and exempt.from rates be reversed and judgment entered for the plaintiff in respect of ,thc rates levied thereon, on the ground that so much of the judgment was wronz in law. In the action 'in the Supreme Court tho city authorities claimed from tho Gas Com. pany ,£I6BO 13s. Bd. for rates on gasometers and mains and pipes laid in the public streets of the city. His Honour Mr. Justice Cooper in his judgment cided that tho defendant company had established its contention that the mains, pipes, and gasometers and governors, etc., were excepted from the definition of rateable property, and were immune from taxation.

The Court. held that the appeal in respect to the main pipes should be allowed, and that the appeal in respect to the other items' dismissed, and judgment was entered accordingly. ' At the hearing .Mr. C.'P. Skerrett. K-C-, with him Mr. J. Stanton, of. Auckland, appeared for the Auckland City Council, and Mr. H. P. Richmond for the Auckland Gas Company. COLLISION ON A BBID'GE. ...This whs an appeal by Lawrence Gordon Grace and Alexander. Douglas Shepherd. trading as Grace and Shepherd, motor engineers, Waipukurau, against a decision of His Honoui'(llr. Justice Chapman. The respondent was Robert Hannah, boot importer, Wellington. The appellants commenced an action in the Magistrate's Court at Paliuefston North alleging negligence on the,, part of respondent's servant in tho driving of a four-horse wagon 011 tho Ashhurst Bridge, which was only twelve feet wido except at crossing places, whereby a collision occurred between the respondent's wagon •and. appellants' motor-car, and appellants claimed .£127 10s. as damages, 'i'ho Magistrate found that the wagon had entered oil the bridge first. 'i'ho appellants' motor-car was driven on to the bridge and waited at 0110 of the crossing places or bays, and when the wagon was passing the car tlie horses became restive,, .with, the result that tho wagon was dragged against the car, causing the. damage. The appellants were awarded ,£2O damages, -£25 for depreciation of tho car, and costs, 011 the ground that the driver of the ipgon Should have requested the driver of the motor-car, to go/ back. Against this decision the appellants appealed to tho Supremo Court, on the ground, that the damages were too low, and there was a cross appeal by Hannah against the judgment. The appeals werp heard by His Honour Mr. Justice Chapman, who decided in favour of Hannah's appeal, and directed a verdict to be entered for Hannah.

The appeal was dismissed, on the ground that there was no fault on the part of tho, respondent. ' At the hearing Mr. M. 'Myers appeared for the appellants, and Mr. A. "W. Blair for the respondent. HEAVY TRAFFIC ON 110 ADS. > In-this case the validity of a by-law was at issue, tho parties in the caso being Charles E. Bremner,/engineer of the Waimate:County Council, and Henry Rttddcnklau, farmer, respondent. Bremner appealed from the decision of Mr. V. G. Day, S.M., who had dismissed an information against Ruddenklau, who was alleged to have used a traction engine and two heavy traffic vehicles oil a certain road'on which their use was prohibited. The original information alleged that the offence occurred on July' 13, 1918, on 1 the Main South Read near Willowbridge, in eontraven: tion of a resolution of the council, the power to make which,' it was claimed bj\ tho, appellant, had been delegated to tho council by resolution, the effect being to absolutely prohibit heavy traffic .on the road mentioned between July 4 and September 4," 1918. The Magistrate. in his judgment,['■adopted the decision of Mr. Justice Sim in the case of Meredith v. Whitehead, and dismissedthe infnimation on the ground that the by-law was invalid by reason of the fact that the .council was not authorised to delegate lo itself by-resolution the power of prohibition. The council claimed liint it was so entitled, and quoted the power of city councillors, by resolution; to prohibit heavy traffic in a city, and (he Court was asked .to uphold this cohtention and reverse the decision of the Magistrate. The judgment of the Court was that the appeal should be allowed, and that the by-law was valid. The case was argued by .Mr. S. G. Raymond, K.C., with him Mr. 11. I', von Haast, on, behalf of the appellant, tind by Mr. W. E. Kiniierne.v and Mr. L. E. Pinch for the respondent. < TIMBER-CUTTING RIGHTS. This was a case in which Mr. Georgo Hutchison, solicitor, "Wellington, appealed against a decision of tho Chief Justice (Sir Robert Stout), ■tho respondents being Ripeka te Peehi and Rawiri I'orangi.

Tho facts of the case were that the respondents were the registered owners of 12U acres known as Raetihi 2B and 38, and by memorandum of grant sold to Philip M'Rae I he milling rights of the land for the sum of ,£125 10s., to bo paid in twenty equal quarterly payments subject to the conditions: (1) That twothirds wero to be paid to Ripeka and one-third tc. Rawiri; (2) that the trees were to lie properly cut and removed within a period of seven years; (I!) that no fires were to be lighted on the property, and no injury done thereto; (-4) ihat the grantee was to be allowed to utilise ten acres as a mill silo; (5) that the grantee was lo be allowed to lay down tramways; (B) that the grantee was to have the right to distrain on chattel properly; (7) that in default of payment the grant or alienation was to be determined.. On March 13, 1911, the. two Native owners signed a leaso of tho land lo To Pechi to Opotiui, subject to the cuttin;; rights granted to Philip M'Rae. The leaso was for forty-two vears from .April 1, 11)11, at a rental of 2s. Gd.' per acre for the first twenty-one years, and Is. lid. per aero for the remainder of the term. Tho two documents were confirmed on March 27, 10U. Tho lessee i'l'e Peehi) became bankrupt, and the .Official Assignee sold the leaso lo .Mr. George tlulchison on December 21. 1917, for .£375. Mr. Hutchison claim-, ed the purchase money of tho timber, (lie contention beiu? that as ho was tho lessee the grant of the timber was an alienation in tho nature of a lense, and' that his lease deprived tho freeholders of anv benefit under tho grant or first lease. His Honour the Chief Justico (Sir Robert Stout), in his judgment, hold that I the invalidity of tUo construction sought 1

rested on the fact that the lease gave no timber or limber-cutting rights to the lessee. Those were by law, and also, he thought, by express words reserved, mid consequently Mr. Hutchison, the assignee of the lease, could not claim from the assignees of the timber rights any part of the purchase money. The appeal was against this decision on the ground that the wholo of the judgment was erroneous in point of law. The Court dismissed the appeal with costs on the middle scale. At the bearing Jfr. T. Young appeared for the appellant, and Jlr. C. B. Collins, of Wanganui, with him Mr. R. A.' Howie, for tho respondents. CITY ABATTOIR FINANCE. This was an appeal from tho decision 9f the Chief Justice (Sir Robert Stout)' involving a question of abattoir finance. The appellants wore J. Hod and. Co., and tho respondent the Wellington City Council. In the Lower Court Rod and Co. claimed that prior t.o 1912 they had a slaugh-ter-house of their own, but were compelled .by law to cease slaughtering and to bring their stock to the Wellington City Abattoirs, and to have them slaughtered there under the terms of the law and of (lie Wellington City by-law. That they had had stock slaughtered and bad, under compulsion, paid to the City Council sums for such services, and- that tho city had in each year charged them sums iu excess of the amounts jKiyn'ble by them. Rod and Co. cl«im;d refunds totalling ,£277 is. I<l. J''or the corporation it was contended that. Hod and Co. were not compelled to have their stock slaughtered at. the city abattoir, but as long as the abattoir existed Rod and Co. couTd not sell in the city r.f Wellington any me,it from animals that had not been i slaughtered at a registered abattoir or a meat' export slaughter-house. As Rod and Co./desired to have animals slaughtered at' tho city abattoir they had them slaughtered by ihe corporation's contractors, and had to pay the prescribed For a seconder affirmative defence the corporation contended that Rod and Co: were prevented and barred by the provisions of tho Limitations Act, 1623, section 3, from making ony claim of any refund to which they had been entitled in respect of any matters arising on or before' June G, 1912. It. was further contended that the corporation had in each year from 19U published annual accounts which clearly showed tlie finances of the abattoir, and the claims that it made to charge the abattoir accounts with were depreciation, sinking fund, extensions and additions, and portions of preliminary expenses and other matters. Tn the year 1913 a refund was made to the payers of meat export slaughterhouse fees, and to Rod and Co. with other butchers nsiing the abattoirs, in accordance with tho bahmco, of tho profits shown in the accounts for each of two years, and the sums.were accepted without protest by Rod and Co*, and the other interested parties. In tho years 1914, 1915, and 1916 no refunds were made, and no protest was made 'by any interested party until November' 4, J9lfi. During tho three years 1913-15 the corporation expended, at the request of the Wellington Butchers' Association, a sum of .£1559 18s. 6d. for improvements and additions fa the abattoir. While denying liability, tho corporation paid into the Supreme Court 2s. Sd; and M is. costs in full satisfaction of all claims. Rod and Co. subsequently amended, their claim and asked for .£3Ol Is. 7d., and tho corporation denied any liability beyond tho amount paid into Court.

The Chief Justice (Sir Robert Stout), in his judgment, stated that it was worthy of noto that in whatever. way tho accounts had been made out there was standing to the credit, of tho abattoir account on March 31, 1917, a balance of (£1743 17s. sd. It was true that the assets and liabilities account showed that tho total cash account was only ,£364' Os. lid., and sinking fund investments and "cash ,£1356 9s. Id.. There were, however, sundry debts amounting to Ji-tW 16s. Sd., but the plaintiffs (Rod and Co.) had' nothing to do with tho framing of the accounts, nor did they ever agree to them. A sum of money had been paid into Court, but that was less than tho amount due to the plaintiffs. There was no acquiescence proved, unless the Teceipt of' a smaller amount than that due was ail . acquiescence, and, the fact (hat tho Butchers' Association had i<sked for an expenditure on improvements, additions, and extensions, and' that such expenditure was paid out of rovenue. did not stop the' plaintiffs from claiming the amount they wero entitled to. The Butchers' Association had nothing to do with financing the work of the corporation. The by-law fixed their liability at 5 per cent, on the amount of tho expenditure, but ■ the corporation claimed that the payers of the fees should surrender their funds, fa reimburse the corporation for the imnrovemonts, etc., to the abattoir. His Honour held that the corporation's defence was invalid. There were two other questions raised': (1) As to whether the corporation could claim" liny commission for the sale of offal;.and (2) as tx> whether the corporation might make tho same' charge for tho cleaning of tripe. His Honour held that the corporation could riot claim commission, but had a right to claim for the' time of officers of the corporation token np_ in disposing of offal, and in Tespect to trips there, was no authority to charge a profit. Roil and Co. were accordingly allowed to amend their claim so that if there was any amount due to them on these heads the claim conld be made. Ilis. Honour awarded Rod and Co. i'3o4 Is. 7d. and JG37 18s. for costs, and the appeal was against this judement. Tho Court held that the City Council was not entitled to charge sinking fund, depreciation, or the share of preliminary expenses, but was justified in charging for cleaning tripe, and profit on o!fnl._ The butchers having acquiesced in certain' charges tliero were referred lwek to the Lower Coiift for final settlement.

At the hearing ,'Mr. T. Young apneawl for -J. Rod and' Co., and Mr. J. O'Shra for tlie corporation: