RESIDENT MAGISTRATE’S COURT.

Evening Star, Issue 3451, 14 March 1874, Page 2

RESIDENT MAGISTRATE’S COURT.

Saturday, March 14. (Before J. Bathgate, Esq., R.M.) Drunkenness.—William Fraser was fined 10s, with the option of forty-eight hours’ imprisonment; Catherine Greenfield, who pleaded, amid repeated sobs, that “ she was tipsy, she was indeed,” was discharged with a caution, his Worship remarking that she was a respectable woman, and had evidently forgotten herself ; Duncan Stuart Graham, ss, or forty-eight hours. CIVIL CASES. Dick v. Fish.—His Worship proceeded to give judgment; in this case, heard on Tuesday last, as follows : The information in this case is laid by the Secretary of the Dunedin Waterworks 'Company against Henry Smith Fish, the younger, the defendant, for that he “unlawfully and knowingly affixed a certain pipe or syphon to, and made the same communicate with the pipes of the Dunedin Waterworks Company, in and upon the premises of the ‘ Otago Daily Times’and ‘Witness’ Company (Limited), at Dunedin aforesaid, against the will and consent of the said Dunedin Waterworks Company, and without giving the notice required by law, and without the superintendence of any officer of the said Dunedin Waterworks Company, in

breach of the 31st section of the Dunedin Waterworks Company’s Act, 1804.” A preliminary objection was taken that the proceedings should have heen instituted by way of complaint, and not by ..information. The defendant having been charged with the commis sion of an offence for which he is liable upon summary conviction for the same, to be punished, and not complained against with the view of an order for the payment of money being obtained, I am of opinion that proceedings by way of information was the proper course to be adopted. (The Interpretation Act, 1868, section 16. The Justices of the Peace Act, 1866, secs. 4 and 45.) It is true that the defendant is, thereby subjected to inconvenience, as in the one case'be cannot be a witness, whereas in proceedings by wa‘y iff ppmplaint bis own evidence may be taken. Although there is a hardship in this, yet the law must be interpreted as it is, and the prosecution in this instance by consenting to Mr Fish making a statement, has not taken any advantage of the defendant. It was further objected that the information should be for one offence only; and that it was too general, in not specifying the fact, negativing circumstances under which the Act might have been lawfully performed. The 31st septwii Qf the Dunedin Waterworks

Act, 1804, enumerates si* ‘distingt pffences.— 1. Opening any ground so as to uncover a pipe of the company, without giving 14 days notice. 2. Laying any leader or ocher pipe to communicate with a pipe of the company without giving notice as aforesaid. 3. Making any pipes to communicate with the pipes of the company, without giving them two days notice of the day and hour when such is intended to be made so tp communicate. 4. Making such communication' without the superintendence of the company’s officer. 5. Making siiph communication contrary to the direction of the company’s officer, ' And 6, Laying'any‘leader'' or'other pipe to communicate with the pipes' of the company, of a strength and ‘material' hot -approved by the company. The information is plainly intended to he laid for the third offence, and the words used are not capable of any other construction. The act is stated to have been done “against the will and consent of the said Dunedin Waterworks Company;” but these words do not create another offence, and appear to be mere surplusage. According to the maxim “ Utile per inutile yon vitiutur,” the addition of these word's does' hot vitiate tl}<* information. Besides, tlie. satire precision is not required jn an information which maybe necessary in a conviction. The will and consent of the company is not a statutory requirement, and is of no moment in this case. The company’s monopoly does not extend so far as to entitle the company ex suo arbitrw, to say who shall or who shall not be supplied with water. Any person may demand and obtain a supply, and lay or connect pipes for that purpose on fulfilling the statutory requirements, whether the company give their consent.or not. Jt was urged in defence that these words 4gajn§t the will and consent of the company implied that undgr their bye-laws 8, 9, and 10, the company claimed a right tp create a guild of plumbers, and that no person could do any work for the public in connecting pipes with their mains, unless duly authorized by them, Such a bye-law seems entirely ultra vires, being unauthorized by the company’s Act and in manifest restraint of to consider this point, although introduced by the woids referred to, as these words are not required to ensure a conviction under the 31st Section of the Act, and may be struck out. The

insertion pt tl f Q y/ords m the information “and without the superintendence of guy officer of the said Dunedin Waterworks ' Company,” does constitute a second charge, and is an additional charge to the one previously made for contravention of the third offence under the 31st section of the Act. But by the 6th section of the Justices of the Peace Act, 1866, the Justices hearing the case may amend theinformation, and the objection that the information is for two offences may be met by the words before quoted being struck out. The objections of a preliminary nature being disposed of, the question remains whether the facts proved in evidence warrant a conviction under the 81st section of the Act. I have come to the conclusion that they do not. In the first place, X am of opinion that the 31sfc section was intended only to meet cases where any person sought to connect' a pipe with the company’s mains, or service pipes, without attending to the requirements of the Act,' and that i$ does not apply to the facts in the present case, where a small pipe for a special purpose was connected with a private pipe within the premises of the Otago 'Dady limes’ and ‘Witness’ Company limited. Every penal enactment must be strictly interpreted, and I cannot stretch the words make any pipe to connect with the pipes of the company, so as to include a connection mth a private pipe; nor is it necessary that I should do so, m order to find a remedy for a wrong committed. By the 21st section of the Act, the company may make a bye-law for causing persons using water supplied by the to keep their pipes siud ether apparatus m proper repair, and for preventing any tampering witn or altering such pipes without notice to the company.” Such a byelaw has accordingly been enacted by the comP a uy tor their protection. Bye law 4 provides: jNo pipes must be attached to the works of the company, or to any pipe oV apparatus tfojmegted

therewith,” without due notice to the company. Any breach of this bye-law infers a forfeiture not exceeding LlO. The case of an unauthorised connection with a private pipe being thus provided for, I am unable to stretch the 31st section inferring a penalty of L2O, so as to include such a case. The very fact of the company having made such a bye-law shows that they must have been satisfied the 31st section of the Act did not apply to any person making a connection with a private pipe. In the second place, although the 31st section might be held to have included such an Act as that proved in evidence, yet no proof has been adduced to establish that the defendant was guilty. In applying to the company, he appears to have acted “ on behalf of the ‘ Daily Times’ and ‘ Witness ’ Company,” as proved by his written application of February 26 ; and it further appears that the work was actually done, not by one of his servants or workmen, but by a plumber named Mitchell and his workmen. Under the 22nd section of the Act, the_ company might have proceeded either i against Mitchell or the ‘ Daily Times ’ Company for recovery of a penalty for breach of the statute or bye-law. For reasons best known to themselves, they did not elect to do so, but have proceeded against the defendant, who was only a middleman between the * Daily Times ’ Company and the sub-contractor actually employed. The case Eapson v. Cuhitt, L.J., 1842, Exch., p. 271, clearly defines the law on this point, and the defendant cannot be responsible in the circumstances for any alleged illegality on the part of Mitchell or his men. Mitchell, who called himself an authorised plumber, contracted to do the work for a lump sum, and the defendant does not appear to have had any control in the execution of the work. The proof in support of the information failed to connect the defendant with the execution of the work. It was urged that all that was necessary to obtain a conviction was that a prima facie case should be established. lam of opinion this is not law. A prosecutor must prove all acts of a positive nature on which ho founds as constituting an offence, clearly and indubitably. The burden of proof that the defendant did the work by himself or his servants, lies here on the prosecutor, and in this he has failed. Another point was stated in defence, namely, that the company have by their practice virtually waived their light to demand notice under the Act. Although in several thousand cases the company have not required the prescribed notice, and the present case is the first,, in which they have sought to vindicate their right, J do not think that would be a sufficient answer tp a charge under the Act legally proved. The Court might take such a circumstance into account in mitigating the penalty, butf it cannot be conceded that an enactment of so much importance to the interests of the company can be abrogated or virtually repealed, because the company have hitherto, for reasons satisfactory to themselves, not required the prescribed notice. For the reasons before stated the information will be dismissed with costs.

Mr Barton; That includes professional costs, I presume.—Mr Chapman ; 1 submit that it is hardly a case in which professional costs should be given, as it is the first of the hind heard.—His Worship thought it was peculiarly a case for professional costs. The company had determined to proceed against iefendant, a middle man, although they had wo other parties, the workm n, to proceed. gainst.—Mr Barton had another reason why professional costs should be allowed : the large amount which the law books iad cost, while the case had taken his twenty years’ experience to get up. H« knew that Fi s h, although so clever, could uot l ave argued the case in the way in which it had been.—His Worship admitted that th* case had been very well argued on both sides, and that private parties could not hav.' argued it so well. The case was one of interest to not only the parties concerned but to the general public. He must therefor grant professional costs. The matter then dropped.

Haynes v. Goodison- claim, L 52 9s, for goads supplied. Defendant admitted that che amount was quite correct. Yesterday he filed a dedarition of insolvency.—His A orship said that that did not prevent judgment being given against him. The facta would be elicited in full in the other Court. Plaintiff, it appeared, believed that the debt was contracted while defendant was in an insolvent state j still they could not imprison him or take his goods, as he had filed. It was desirable that the most searching in quiries should be made into the case.