SUPREME COURT.

Evening Star, Issue 3849, 25 June 1875, Page 3

SUPREME COURT.

IN BANCO. (Before Mr Justice Johnston.) Thursday, June 24. Regina v. Walter Hossack.— Argument of rule nisi for writ of prohibition. Mr B. C. Haggitt, counsel for Hossack ; and the other side was not represented either in nerson or by This was an application for a writ of prohibition to issue against James Hassell and ► airauol Edward Shvimski, J.P ’g, to prohibit the said Justices from proceeding in the matter , an nna tion and conviction against vi alter Hossack. _Mr Haggitt moved the rule absolute for a writ of prohibition. Hossack had been convicted under tbe Vagrant Act of 1866, of being “a rogue and vagabond,” for being at night without lawful excuse on the premises of Clara Eliza Ann Alport, at Oaraaru. It appeared that Hossack, who was a respectable man in business at Camara, had been in the habit of visiting at the house of the person who laid the information against him. There was a young lady in the house, to whom he paid his addresses, and to whom, it seemed, he was not agreeable. He was ordered to go away, but stayed about the place. The justices found him to be a “rogue and a vagabond.” His Honor remarked that the Legislature of New Zealand might be such stringent moralists as to say, “If you come about my house, con trary to my wish, though your object is not to steal my fowls but to steal the affections of my daughter, you are a rogue and a vagabond.” Nlr Haggitt submitted that Hossack was not a vagrant, and that he did not come ivithin the meanmgof the Vagrant Ac t. Mr Haggitt having stated the evidence, said that on that thr Justices convicted the man. They did not sentence him, and that was one of the grounds why he applied for a prohibition. The case was treated in a most extraordinary way. He was brought before the Resident Magistrate at Oamaru, the case was adjourned, and when he was next brought up, Messrs Shrimski and Hassell were on the Bench, as well as the R.M. Kie Justices had heard only part of the evidence, and Mr Parker, R.M., who beard the whole of the evidence, was not present when the two Justices convicted Hassock. They convicted him, but did not sentence him, but bound him over to come up for sentence when called upon. Not having taken part in tinwhole of tbe proceedings, tbe Justices had no jurisdiction to convict. His Honor was not prepared to say that two: Justices of the Peace who had not heard the case wore not justified in taking the recogni sances He should rather be sorry that they had not the power, because he thought it made their jurisdiction elastic in a safe direction. On the ground that the conviction was made by Justices who had not heard the whole of the evidence, his Honor made the rule absolute. After some remarks from his Honor, Mr Haggitt did not press the application for costs. Rule absolute, without coats.

Friday, June 25. Macassey v. Bell.-Mr B. C. Haggitt asked for a rule to, stay proceedings in this case, and read the following memorandum, which had been agreed to by the plaintiff’s and defendant s solicitors The defendant admits to be untrue’and unfounded and therefore withdraws every imputation contained in the article complained of in the declaration which m any way reflects upon the conduct of the plaintiff m connection with the origin, progress, and presentation to the Provincial Council of Otago-of the Chinese petition referred to in the article complained of. The Evening Stae newspaper to give special publicity to the withdrawal of the imputations conveyed in the article complained of. Mr Turton remarked that his learned friend had omitted to mention one item of the agreement, which was that costs on either side were to be waived. His Honor pointed out that there was a little difficulty about the matter. There was nothing upon the record to show the particular terras upon which the settlement had taken place.

Upon his Honor’s suggestion it was agreed to file later in the day an affidavit setting forth the terms of the agreement. Hyman v. Outhsd was an aopeal from the Resident Magistrate’s Court, Dunedin. The appellant was one of the purchasers of the wreck of the Surat, by which the respondent was a passenger to this Colony. Among the articles recovered from the wreck was a box containing a sewing machine and other things the delivery of which had been refused to Outred, who brought an action for damage-., for its retention, and recovered L2o— Bathgate, R.M. , .by whom the case was heard, holding that the payment of L 350 by the Superintendent to the purchasers of the wreck, covered all claims for salvage in respect of immigrants luggage, and that the sewingmachine was to be classed with luggage The decision' was now appealed against. Mr Macassey supported the appeal, and Mr E, Cook was heard contra. - V L r in stating his case, admitted that the rule of law, as laid down in the Hamburg case, and relied upon by the R,M... held good whether the sewing-machine formed’eargo 0r in either case, the owner bein'' on trm spot, the master of the ship had no authority to bind his passenger. His Honor remarked that the true test might be whether the slip treated the machine as cargo or as luggage. . Mr Macassey observed that it must be borne in mind that there was no question between th“ passengers and the ship’s agents. His Honor : Yet the distinction between luggage and cargo may be determined by that re ferenco. ' _ Mr Macassey’a contenfc ons would be, first, that a sewing-machine did not in the true sense of the term form part of a passenger’s luggage and, therefore, was not affected by the arrangement made with the Superintendent; second, that the arrangement between Guthrie and Larnach and the Superintendent, to which the respondent was no party, could not inure in his mvor, _ and as a corollary upon that that if Guthrie and Larnach had violated any engagem6nt entered into by them with the Superintend Height be liable in damages to him Mr Macassey cited among other cases that of Hartford v. Jones, 1 Lord Raymond, 393. In the lower Court the Resident Magistrate drew a distinction between carriers by land and camera by water.—His Honor remarked, with regard to the question of the sewing-machine ec J $° raD k as personal luggage, that it depended good deal on the length of the voyage : for instance, if a person waa going ™!L„ LGnd °?l 7 ,er ?l y , t0 Brighton a sewingmachine could hardly be considered personal luggage; but if the voyage was very lem-thy thea such machine might be looked on in that hght.—Counse! then quoted Sir R. Phillimore who laid down that articles carried for their daily use by passengers must be looked upon a* Sersonal luggage and given up to them. In lacrowv. Great Western Railway Co., L.R. 0, Q. 8., 612, tne plaintiff claimed the value of a trank lost m transit, containing six pairs each of sheete, bknkets, and quilts ; but it was decided that as plaintiff was taking the articles to his home m Canada they were to be considered as for the use of his family when seuled down and not as personal luggage. In Phelps v. London and North Western Railway, a question as to whether an attorney was entitled to carry with him certain deeds and documents required in a trial he was travelling to attend, it was laid down that the deeds were not personal luggage, and that the Railway Co was not responsible for their loss—Chief-Justice frle remarking that it,was impossible to define what was and what was not passengers* luggage, ISow, in the present case it could not be said that the sewing-machine was carried as anything but an instrument of trade. His Honor said that if the learned counsel summoned a jury of matrons he would find, in the Present state of British society, that they would decide that a sewing-machine belonged to no special trade or profession. Was the poor woman who eked out her husband’s subsistence py . work at ihe machine to be distinS I m “KJwoaI 17 ocoaßio ” ai; r * h '“ re " m “‘ bulk 8 Tbf Why ? ot ’ excc P t 38 regarded bulk. The sowing-machine appeared to him ID $ 1 ™ aBS “ almoßfc a necessary Se Mr Macassey submitted it was not necessary except as an implement of trade. Y ’ His Honor said it seemed to him that there was a principle underlying the surface of this

case, and that tiie Resident Magistrate had acted upon it—it was that, taking" the class of the immigrant and the object of the voyage, it would be hard to say that becausejthe machine might have been used for gain by plaintiff’s wife, she being a seamstress, such use deprived it of its clement of personality. It struck him that a fair argument was that what was treated as passengers’ luggage in the stowage of the ship came within the terms of the Superintendent’s release from the claims of the salvors. Mr Macassey next submitted that whatever tho arrangement entered into was respondent had no right to bring an action without a previous tender of salvage.-—His Honor said that, supposing it was indicated by the finding in the case and the language of the Superintendent th'it the immigrants had been clamorous they had gone to the Superintendent and 8;. id, “ We must have our luggage”—would it not be regarded that there was n prior authority ? It appeared to him that the case wanted re-stating—that the cause of the Superintendent’s intervention could have been shown more clearly.—Mr Macassey submitted that on the grounds urged the judgment of the Resident Magistrate’s Court should be reversed. Air Cook thought the cases cited by counsel on the other side would be found favorable to respondent’s contention. If it was decided that tho machine was cargo and not luggage, there was not a tittle of evidence brought before the lower Court to show that salvage was demanded, or that a lien was claimed over it. Respondent must be unable to recover hie property, for if he tendered too little as salvage he weuld be in no better position than if he had not tendered anything at all—he could not tell what value the salvors put u{xm the machine so as to tender the exact amount. It was deducible from the case itself, from the passengers’ importunity, from tbe statement of the Resident Magistrate, that if the machine were treated as luggage .or cargo appellants were precluded from appeal, as it had been claimed as cargo. Counsel would also submit that the Resident Magistrate’s Court had complete jurisdiction over the case, and that_ there fore no case of appeal had arisen. His Honor was of opinion that the judgment of the Resident Magistrate must be confirmed, It was apparent that the action of the Superintendent was taken with the priority and consent of plaintiff, either by prior request or authority, or by subsequent ratification. It was clear that the Resident Magistrate was satisfied that the action of the Superintendent wss caused or adopted by the class of persons of whom plaintiff was one, and that the Superintendent was virtually agent of the plaintiff with regard to claims for salvage. There was no doubt of the ownership of the machine,. and that plaintiff was entitled to recover it on payment of salvage. The Superintenclent’s authority to act was established, and the payment of L3OO to the salvors amounted to payment of this salvage. -In terms of the agreement between the Superintendent and the salvors this machine was luggage. His Honor assumed the Resident Magistrate had concluded that the machine was luggage within the contemplations of tho Superintendent and defendants, and that the fact that plain tin’s wife had used it, as a seamstress, and that plaintiff himself had also used it in his tirade, did not deprive it of the characteristics making it luggage, and not cargo. His Honor came to the conclusion that, as a matter of fact, the machine came within definitions not inconsistent with those laid down.by the highest legal authorities at Home. He was therefore of opinion that as far as he could see the case had been decided perfectly on its merits. The appeal was therefore dismissed. Regina ,v, ; Murdoch and Another.— Argument of rule nisi to quash conviction. Mr Mouat appeared in support of the rule; Mr E. Cook to show cause,. The rule as applied for was granted. Malaghan v. Small. Case on appeal from Resident Magistrate’s Court at Queenstown. Mr G.B. Barton appeared for appellant; Mr Smith for respondent Counsel for appellant moved that a certain nonsuit in a case between the parties was not right in point of law; and also objected to the objections of plaintiff’s solicitor in that case as untenable.— Mr Smith responded, and the appeal was dismissed, with costs. [Left sitting.]