SUPREME COURT.

Globe, Volume III, Issue 268, 21 April 1875, Page 3

SUPREME COURT.

SITTINGS IN CHAMBERS. Tuesday, April 20th. [Before His Honor Mr Justice Williams.] His Honor sat in the Court Chambers at 11 a.m. RE JOHN RISELEY. Mr Harper applied for an order of adjudication and fixing of first meeting of creditors. His Honor made the order in this case, fixing 27th inst for the first meeting of creditors. RE DUDLEY AND CRAIG. On the application of Mr Wynn Williams his Honor made an order for attendance of witnesses in this case. RE WILL OF JOHN CHARLES WATTS RUSSELL, DECEASED. Mr Gh Harper applied for probate to issue to Elizabeth Rose Rebecca Watts Russell, as widow of the deceased, the sole executrix in the will named. His Honor made the order. CREYKE V DBANSFIELD. This was a demurrer by the defendant to plaintiff's declaration. Mr Joynt appeared for the defendant and in support of the demurrer. Mr George Harper appeared contra and for the. plaintiff. This was a claim for £405 rent alleged to be due from defendant to plaintiff for use and occupation of premises at a rental of £9O per annum, paid quarterly. The declaration of the plaintiff set out that no payment of rent had been made by the defendant since 1870, and that the amount sued for was now due. To this declaration the defendant demurred, that as under the deed it was provided by covenant that if the said rent was not so paid as in the deed stated within twenty-eight days after decoming due, the interest of the lessee under it ceased and determined, therefore the declaration based upon the deed was bad. Mr Joynt, in support of the demurrer, quoted from Selwyn, 1., Smith's Judiciary Cases (Roberts v Davis, Amsby v Woodward), Doe v Birch, 1 M. and W. He would point out to his Honor that in this case there was no estate to determine, as the relations

of landlord and tenant had not subsisted, as it depended upon the continuance of the former lease made by the same parties. The cases he had referred to all had reference", to cases in which a term had actually commenced and was in existence, which his Honor would see was not the state of the facts here. He therefore thought that the cases to be cited by his learned friend would not apply. Mr Harper contra contended that no tenant hud a right to take advantage of his own wrong (34 L. J. C. P., p 274, Hughes v Blackett and others). He contended that the authorities were all of opinion that the contracts of lease made in similar terms or even stronger, could not be voided except at the instance and election of the party not in fault. (Reed v Farr, M. and S. Reports, p. 621; 12 M. and W., p. 623, Chitty on Contracts. Mr Joynt having replied, His Honor said he would give judgment on Friday. RE HARRIET HART. In this case, on the application of Mr Slater, His Honor postponed the further consideration of the point as to the vitiation of the proceedings in bankruptcy by the fact of the bankrupt being a married woman, until Monday next in Chambers. The Cab Cases. appeals prom justice op the peace act. and re conviction op harry munyard goodger. This was a case in which Mr Garrick as counsel for the defendant in the Court below, obtained a rule nrsi calling upon George Lilly MelliA and Frederick Hobbs to shew cause why they should not be prohibited from further proceeding upon or in respect of a conviction obtained against the said Harry Munyard Goodger in the Court below, before the said George Lilly Mellish, on the 10th February last, for that he the said Harry Munyard Goodger unlawfully and maliciously broke and threw down a certain fence contrary to the statute. The grounds upon which the application for the rule was granted, were as follows :—l. That the alleged fence was an unauthorised obstruction of a public cabstand forming part of the public street or highway, and as the said H. M. Goodger committed the said act complained of in the assertion of his right of free access to the cabstand and passage over the public highway, the summary jurisdiction of the said G. L. Mellish was ousted. 2.Thatthe alleged fence was not a fence within the meaning of the Act. 3. That no ownership or property in the fence was alleged or proved. 4. That the conviction erroneously finds the said alleged fence to be the property of the Christchurch City Council. 5. That there is no evidence given or tendered as to the amount or value of the injury done to the alleged fence. 6. That the conviction does not appropriate the penalty or direct in what way it is to be paid or applied, and it is impossible to determine the amount payable for the injury to the alleged fence. 7. That there was no information in writing charging the defendant with the said offence. Dr Foster now appeared for the City Council, and to show cause against the rule. Mr Garrick contra for the respondent and in support of the rule. Dr Foster said his learned friend had obtained a rule nisi to show cause why prohibition should not not issue in this case under the Appeals from Justices of the Peace Act, sections 26 and 28. [Read section 26: | He would in his argument first bring before the Court the reasons against the first two grounds, viz, that the fence was an unauthorised obstruction, and that it was not a fence within the meaning of the Act. He would take the second of these as the first, and would refer his Honor to section 25 of the Malicious Injury to Property Act. That section under which the defendant was convicted in the Court below stated distinctly any fence, of any description whatever. Now he would ask his Honor to pay attention to the evidence given in this matter. Goodger himself, in his affidavit, stated that he was unable to get on to the cabstand without pulling down the fence, so that it was proved that it was at least substantial. The evidence he (Dr Foster) relied upon was that of Cooper, the foreman of the City Council, who made the fedce. [The learned counsel here quoted at length from Cooper's evidence given in the Oourt below.] There was also the evidence of the men who assisted; and he thought that the fact that ten men were engaged for some hours erecting it, proved it to be a substantial fence. He submitted' that aa the Act said a fence of any description, this clearly came within its operation. The next point referred to the ownership of the City Council in this fence. Now this stand was called into existence by an order of the City Council, and closed by the same authority. This constituted sufficient ownership under the Act, and the Magistrate, sitting as a jury, was satisfied with the evidence of ownership. (Case cited, Queen v. Palmer, 237-43, Appeal Cases.) As to the sth and 6th points, that there was no evidence as to value, and that the conviction did not appropriate the penalty, if it v» as not necessary to give evidence of any specific amount of injury, as was the case under the Act which he had cited, or of damaging trees, it was not necessary to state specifically the amount of injury done ; it was sufficient for them under the Act to prove that the injury had been done. Under 15 Victoria, cap. iOO, sec 24. which had been incorporated into our New Zealand jurisdiction, it was not necessary to bring in value, as it was not a necessary ingredient of evidence. (Quoted QueenvMorris.Carringtonand Payne, 349). He would now go to the question of the conviction, but before going into it he would like to refer his Honor to Jervis' Act, 17th sec, and Paley, 455. Under these authorities he contended that the form of conviction was perfectly good, if a penalty was inflicted by way of compensation without sayingto whom it was to be paid. Further than this, he contended that there was nothing in the 64th section of the Act about the form of conviction ; and besides the Council did not require damages or compensation ; all they desired was to protect the public, and they had undertaken this in the defence of the public. As Regarded the appropriation of the penalty, he would cite a case, the King v Hyde, 7 B. and P., pp 78-9, in which a penalty was adjudged half to go to the informer and one half to be disposed of by the magistrates at their discretion. As regarded the ground of the information being in writing, he might call the attention of the Court to the fact that the criminal cases in the Magistrate's Court were simply entered on the charge sheet. The 61st section of the Malicious Injury to Property Act laid it down that the offender should be arrested and taken before a justice of the peace without warrant. In this case the defendant was arrested in the act of pulling

down the fence, and by order of a justice of the peace Mr Justice Johnston, in hie "New Zealand Justice of the Peace." said that it was more convenient to have a written information, hut that it was not necessary that there should be one. His Honor—l.>o you intend to contend, Dr Foster, that the conviction can be amended, and if so in what particular ? Dr Poster—l may contend 30, your Honor, in some points. I have hardly gone into that matter yet. Dr Foster continued his argument—He thought the main point of the whole case, as it seemed to him, was the position of the City Council as regarded the control of the streets as questioned in the first ground of objection, viz , that the fence was an unauthorised obstruction of the public street or highway. Two points were involved in this question, and he would take the first of these, viz., that the Council had no right to stop up or impede the in the streets unless for the purpose of repairs. He had looked up the English law on this subject very carefully, and he said there was no authority whatever for this dictum, that the Council cannot break up or obstruct streets except for purposes of repairs. In England, through force of circumstances, the powers of lighting, paving, telegraphs, &c, were not in the hands of the corporations, but in those of companies and boards of trustees. On this subject he would ask leave to quote to his Honor, from " Knight's Popular History," a report from the Commissioners on Municipal Corporations. He did not quote this as a matter of law, but simply as history [quoted]. Here, however, the state of things was different. What did they find 1 Why that statutory powers were given by the Legislature to break up streets for other purposes than repairs. They had the streets broken up for gas, water, and telegraph companies, all of which were under statutory powers, and certainly they could not be said to be for the purposes of repairs. In the case of the King v Cross, Lord Ellenborough, in giving judgment, laid it down that any obstruction of the public highway by a vehicle or other obstruction for a lengthened period, was a public nuisance. By section 266, the management and control of streets, &c, was vested in the City Council, and he contended that the powers of the Council were such as to enable them to use the streets of the city for any purpose they might think fit, not being restricted alone to repairs. He confessed he looked with great interest to his Honor's decision on this the most important point in the case, because he would desire to point out, if his Honor was against the Council on this point, what would become of the tanks which had been put down in various parts of the city for the preservation of the buildings in it from fire. There could be no doubt of this, that they were an obstruction to the traffic, that they were in the public highway, and the same might be said of the telegraph poles. He thought that it could hardly be contended that the powers of the Council only extended over the streets so far as when it was necessary to repair them, and that such works as he had referred to were not legally allowable to be constructed by them. (Sections quoted, 18, 19, 327, 329 Municipal Corporations Act.) But he went still further, and contended that in closing the cab stands the Council was only acting up to the power conferred upon it by the Act, and was perfectly justified by law in so doing. He would, in support of this contention, point out to his Honor that in part 2 of the Municipal Corporations Act, power was given to the Council to deal with cabs and to makestauds for them within the city. The Act also gives power to license these cabmen, and for them to occupy these public stands. Very well, then a time arrives when no licenses are taken out, then the Council have power to close the stands, and do so under resolution of the Council, because except as licensed cabmen, they have no right there beyond any one else. If a ratepayer, as such, had come to the Council and said that the blocking of that stand impeded or obstructed his free right of passage as a citizen over the public highway, then it would be a very different matter, but now th« question to be decided was whether the stand was to be open to unlicensed cabmen. The next point was as to the assertion of the ousting of the jurisdiction of the Resident Magistrate, and it was here tried to be shown that the defendant had a right to the cab stand, and that it was in exercise of such right that he had attempted to force his way. As regarded this, he would contend that, by the Magistrate convicting the defendant, he had shown that there was no right or color of a right. In support of this contention he would quote authorities (King v Palmer, King v Bourne). The stand was established for licensed cabmen, and at the time the defendant was not so licensed, and had therefore no right upon the public stand. Mr Garrick contra contended that the jurisdiction of the Court below was ousted by a right; or color of a right, existing in the defendant; and further than that, as a question of title was involved, .the Justices had no jurisdiction (137 Paley, Queen v Cudland, 27 Q. J., Magistrates'cases, p 28; Hudson v Macrae, 33 L. J. M. 0., 65, Crom well appellant v Saunders, res. 32 L. J., p 6; Thompson v Ingham, 19 L. J. K. 8,, 189; Queen v Stimpler and Queen v Peake, 32 L. J. M. C, 208). In these cases the question of title was raised, and it was held that jurisdiction of the justices ended and also in others (Queen at the prosecution of Turner v Pearson, 7 ; Best v Smith; Queen v Allen and others, page 902.) He quoted these cases to show that where title to lands was raised the jurisdiction of the justices was ousted. In this case it would bo for His Honor to determine whether there was any- bona fide title to the land raised. Now in this case the Council had by their act barred the defendant from the use of a certain part of the public highway to which he was entitled, and thus he contended a question of title arose, which ousted the jurisdiction of the justices. The defendant thought he had a color of a right to access to the cabstand, being part of the public highway, and for this reason had removed a part of the fence around it. He was given into custody by the Mayor, also a member of the Council, on a charge of wilfu 1 destruction of property. It was laid down in the authorities that any member of the public had a right to remove any public nuisance, provided he did not use more force than was necessary to remove the same (Percy v Fitzhowe, 8 Q.B. 774). In the case of a public nuisance any one might do tMs, and in the case of a private one, the party aggrieved (" Comyn's Digest," King v Telegraph Co, 312 L. J. Magistrates'Cases). This last case showed that the erection of telegraph poles in public thoroughfares was a nuisance ,and removeable by auy member of the public. This, he took it, was a very strong case indeed for his contention. The

justices in the case now before the Court, so soon as the question of title was raised, should have stayed their hands, and for this reason he held that the conviction was bad. As regarded the argument of his learned friend about the right of the Council to interfere with the traffic of the streets otherwise than for the purposes of repair, he (Mr Garrick) contended that nothing but the power to enclose streets for the purposes of repair was given to the Council by the legislation, and did not confer upon them the power of closing or obstructing the public highway, except for repairs, any more than any private individual. Thus far as regarded this point. Now he came to the question as to whether the fence was one within the mcnrnrg of the Act. Webster stated a fence to be for the better improvement and cultivation of the land, but this fence was found to be supported on tar barrels, and certainly was not such a fence as was contemplated under the Act. Then, as regarded the non-statement of value, evidence should have been led to show the value of the injury done, and the conviction should have apportioned that value. It was laid down in all the authorities that the trustees must assess the value of damage done, and apportion it to the party injured; but how was this to be done when there was no evidence as to the value of the fence alleged to be destroyed. ["King against Harper, D. and R., 122; Paley, 608; Oke's Magisterial Synopsis, 429.] He now came to the last ground, that the information not being in writing the conviction was bad, as it was laid down in the 06th section of the Malicious Injury to Property Act. It was not necessary under Jervis' Act, but our Colonial Act made it compulsory. What ought to have been done was that the defendant should have been taken before some justice of the peace, and there that the Mayor should have followed the proper course, and laid an i'tformation under section 4of the Act. For the reasons he had brought forward he contended that the conviction was bad, and that prohibition must issue. Dr Foster having replied, His Honor took time to consider. EE JAMES REID. In this case Mr Garrick had obtained a rule nisi, calling on George Lilly Mellish and Edward Hughes to show cause why they should not be prohibited from further proceeding in respect to the conviction of the said James Reid before the said George Lilly Mellish for wilfully encumbering and obstructing a public thoroughfare. The grounds upon which the rule was granted are as follows : —l. That it did not appear, and the evidence adduced upon the hearing of the said information did not show, that the defendant had been guilty of an obstruction of the said thoroughfare contrary to the said Ordinance. 2. That it was not proved that the defendant in any way whatever obstructed the said thoroughfare. 3. That the conviction does not show that the defendant unlawfully obstructed t v e said thoroughfare. 4. That the Canterbury Police Ordinance, 1858, is ultra vires in purporting to alter the criminal law of New Zealand as to offences not punishable summarily. 5. That the said 'offence amounted to an indictable offence, and was not determinable summarily.' Dr Foster appeared in support of the rule Mr Garrick appeared contra. Dr Foster said this was a case in which the defendant was charged under the 19th clause of the Canterbury Police Ordinance with having wilfully obstructed the public thoroughfare. He would first deal with the objection that the Ordinance was ultra vires, because it would be no good discussing whether the offence came within the Act until they had settled that the Act itself was not ultra vires. The learned counsel then quoted from the Constitution Act at some length the exceptions to the legislation of the Superintendent and Provincial Council, contend : ng that the Ordinance was fully within the power of the Provincial Council to enact. The question now was did the offence come within the scope of the Act. The evidence of constable Hughes was to the effect that the defendant remained drawn up to the kerb for forty minutes, and the authority of a case he would cite went to show that a vehicle remaining in a public thoroughfare like that for a considerable time was a public nuisance [case cited King v Cross], and thus brought it under the 19th section of the Act. The constable's evidence proved that the defendant had stayed in the one place, and that place a public thoroughfare, for forty minutes ; which, whether he was engaged to wait for a fare or not, was an unreasonable length of time and one which constituted an obstruction of the thoroughfare, as laid down in the case of the King v Cross cited by him. His Honor—Your contention then, Dr Foster, is that any man diiving his cab up to the kerb, and waiting there, is an obstruction to the thoroughfare. You do not fix any time as to how long he may remain. Dr Foster would point out that it was not said how long, but certainly a man remaining drawn up to the kerb for forty minutes must be an obstruction to the thoroughfare with his cab.

Mr Garrick contra would desire to draw his Honor's attention to the form of conviction which was for wilfully obstructing the public thoroughfare. In the case of the King v Cross, cited by his learned friend, there was no doubt that the loading and unloading of a vehicle on the public thoroughfare, whether it was passengers or goods, was an obstruction to the thoroughfare, but it did not require much argument to prove that a cab simply driving up to the kerb to fulfil an engagement, though he might have to wait some time, was not an obstruction. But the evidence in this case went even further than this. Hughes stated that the defendant did not cause an obstruction either in the road or on the footpath, although he remained there for forty minutes. ■ His Honor—There may not have been a positive obstruction, but still I think there was to some extent by the defendant remaining forly minutes.

Mr Garrick would point out that the cab being there did not prevent any one passing on the footpath or the road, hence there could be no obstruction. Beyond this he contended that the case should not have been dealt with in a summary way, but by means of an indictment, as the offence is an indictable offence, and therefore should not have been dealt with by the justices summarily, as the Provincial Council legislation could not change the nature of offences in this way. If it were so then the Courts below would be in the position of abrogating all the powers of the superior Courts by enlarging the summary jurisdiction beyond the limits allowed by the Act. For these reasons he contended the rule must be made absolute. His Honor took time to consider,