SUPREME COURT.

Globe, Volume IV, Issue 375, 25 August 1875, Page 3

SUPREME COURT.

SITTINGS IN CHAMBERS. Tuesday, August 24. (Before His Honor Mr Justice Johnston.) His Honor sat in the Court House, at 11 a.m. RE JAMES R. MARTIN. In this case, his Honor fixed the date of the last examination for Thursday, 7th October. RE JOHN B. BARKER AND THOS. PAWSON. On the application of Mr Duncan, for Mr A. Thompson, His HoDor made an order, fixing the date of the last examination for August 27th. RE WALTER LLOYD. The last examination a this case was fixed for Thursday, October 1 ch. RE WM. OWEN. The last examination in this case was fixed for 7th October. RE HENRY PHILIPS. Mr Slater applied for an order of adjudication. His Honor made the order, fixing first meeting of creditors for Wednesday, Ist September, at noon. RE JAMES OLDHAM IRVING. Mr Joynt, for Mr Bamford, applied for an order of adjudication and meeting of creditors. His Honor made the order, and fixed the meeting of creditors for September Ist, at 11 am. RE PETER GELLATLY, DECEASED. Mr George Harper applied for letters of administration to Margery Gellatly, of Terapleton, as widow of deceased* Order made as prayed. SITTINGS IN BANCO. BAIN V WALKER. In this case, in which Mr Joynt had moved for a rule nisi for a new trial on the ground that the verdict was against the weight of evidence, his Honor had reserved his decision until he had communicated with his Honor Mr Justice Williams, who had tried the case. His Honor now said that, after consulting with his Honor Mr Justice Williams, he was of opinion that there was no ground for the rule. Rule nisi refused, BANK OF NEW ZEALAND V WILSON AND ANOTHER. By consent of counsel on both sides, and by leave of the Court, this case stood over until Thursday next in banco. PASSMORE V BANK OP N.SW. In this case, counsel on both sides consenting, his Honor adjourned it to next banco sittings on Thursday. BOVEY V PYNE. In this case Mr G. Harper appeared to show cause against a rule nisi obtained by defendant, calling upon plaintiff to show cause why a nonsuit should not be entered, on the ground that there was no valuation at all according to the language of the agreement, the evidence showing that the valuers did not fix the value of the freehold which was verbally settled by the parties in the suit; the agreement being one under the Statute of Frauds. Mr Joynt contra and in support of the rule. Mr Harper argued that the evidence in chief of Mr Murray was to the effect that the valuation was made by him as correct on the part of the defendant. If any variance was intended to be set up, it should have been pleaded, and some written document proved,

His Honor said it was a question whether t was open to show that the certificate upon which the case rested was not what it purported to be by parol evidence. Mr Harper submitted that there would be a great deal in the argument of his learned friend if the certificate were omitted from the valuation and a simple valuation handed in. He was prepared to show that arbitrators could take evidence of third parties so long as they did not delegate their authority. [Cases cited from " Russell on duties and powers of arbitrators," Hopcrof t v Hickman, 8. & S.] His Honor would desire to point out that Mr Joynt did not contend against that. What he argued, he took it, was that they did not accept the statement of value; this was what Mr Murray's evidence amounted to.

Mr Harper would call attention to the evidence of Mr Murray, who said that though he signed the valuation as a true valuation, yet it was not the value which he had arrived at, but while this was the case the parties themselves did not make the valuation. Beyond this there was not the slightest evidence led by the defence that the valuation was objected to, although it was handed in to the parties only a short time after it had been made. Both the parties and the arbitrators were satisfied at the time. He submitted that on the evidence the valuation was a good and sufficient one under the agreement. In sapport of his contention that no parol evidence could be got in by his learned friend, as to part of the agreement not being carried out, or that a variance existed, he Would cite cases in which it had been held that unless evidence in writing of such variance was given, it was open to the plaintiff to go on the original agreement which remained in full force. [Cases cited, Harvey v Grabham 5 A. and E., p 61; Goss v Lord Nugent; Earl Falmouth v Thomas; Noble v Ward, L. R., 2 Exch.; Moore v Campbell, 23 L. J., p 310 ] On these authorities he submitted the rule must be dismissed.

Mr Joynt contra, and in support of the rule submitted that in all its parts, a contract referring to land, being by law an agreement to be made in wiiting, should be governed strictly by all the terms of the instrument. As regarded the cases cited by his learned friend, he contended that there was no authority in law stating that evidence was inadmissible, to show that the terms of the contract was not carried out. No doubt parol evidence could not be given to vary the terms of the contract, but simply to show that there had not b?en a carrying out of the terms of the contract strictly in all its parts. [The learned counsel then proceeded to comment on the evidence.] From the evidence he contended that nothing had been done by the valuators at the time which could amount to a valuation. The parties had taken upon themselves the functions of the valuators who had abrogated their powers. The valuators had never agreed upon the value up to the present time. They were all at one that the valuators never were agreed as to the price of the freehold, which was given by the parties. Again, it was not competent for the parties to go outside the contract, and decline to call in the third man, which they had done. He desired to ask his Honor's attention to the case of Harvey v Grabham, already quoted by his learned friend, which was a very strong case in support of his (Mr Joynt's) argument, that the variance of contract was held a good defence.

His Honor could not see that there had been a variance by the valuators ; they eimply agreed upon a certain thing after consulting, as .they had a right to do, with the parties, who, making mutual concessions, rendered it unnecessary to call in a third man,

Mr Joynt submitted that this was the duty of the valuators ; they were bound by the contract if they could not agree to call in a third man, whose duty it would be to settle the valuation. The parties settled the price of the freehold themselves, and agreed amongst themselves to do away with the necessity of calling in the third man, which was against the provisions of the Statute of Frauds. The long list of cases, commencing with Goss v Lord Nugent and going right through a long array, all went to prove this. He would like to quote one equity case to his Honor in further support, viz, Mills v Geary, 14 Vesey, p 400, to show that it was held by the law of England that it was necessary for the completion of the valuation that it was made by the parties to whom it had been referred. Now there was no evidence that the valuation of the freehold had been made by the valuators at all, nor that the valuation contained their value of the freehold. On the contrary the evidence went to show that the valuators only took a note of the price agreed upon by the parties. If the document stood alone and unexplained, no doubt there would be prima facie evidence of a valuation. All the authorities went to show that the terms of the contract could not be varied. For these reasons he submitted the rule should be made absolute.

His Honor —1 am of opinion that this iule must be discharged. Looking to the evidence and facts on the record before me I am of opinion that there was sufficient to go to the jury on the case. The declaration is founded on an agreement to purchase certain property comprising not alone freehold, but crops, stock, buildings, implements of husbandry, and other chattels. The agreement comes under the Statute of Frauds, though it is provided that the price paid for the whole is to be upon the valuation of two parties—one, Mr Charles Newton, appointed by Bovey, and the other, Mr F. 0. Murray, appointed by Pyne. Bovey and Pyne further agree that if a referee should be required, Mr Joseph Haydon was to be employed for that purpose. The declaration further goes on to set out a document called a valuation—that is to say, the valuation as made and agreed upon. This document, which is set out, contains the valuation not alone of the leasehold but of the freehold, sheep, implements, &c, &c, and concludes with the following statement: —" We hereby certify the above to be a true that can be effected ia in the cost of Provincial Councils and provincial Executives, which amounts to somewhere, I think, about £30,000 a year. No doubt when the powers of making provincial appointments come to be exercised, those who have unlimited means at their disposal and are not so amenable to the Provincial Conncils and the people as provincial authorities are—l say when that time comes, when the necessary appointments are made —when municipalities and Boad Boards share with the colonial Government the functions now exercised by the provincial Legislatures, I

think you will find the saving will turn out to be very small indeed —more apparent than real. I should not wonder, indeed, if a larger amount than £30,000 is involved in the administration of the country. Even granting that this saving will be a real one, what is it compared with the advantages the people sacrifice by giving up the power of electing their own Provincial Council, of electing the administrators of their own local affairs. Therefore the saving, assuming it to be fact, is as nothing compared with depriving the colony of the advantages and benefits undoubtedly accruing from Provincial Councils. The member for Taieri has stated those advantages and benefits so fully, that I shall not attempt to repeat them. 1 don't know if all Provincial Councils are equally worthy of being extolled, but this I do know, as regards that with which I am most familiar, that the Provincial Council of Oiago is just as competent to deal with colonial, let alone provincial matters, as this House. I know members of that Council far more masters of the business which comes before them, as a rule, than the members are of the business which comes before - this House. I venture to say there is not a man of the Provincial Council of Otago who cannot and does not thoroughly understand the state of the finances of the province, while I doubt very much whether the same thing can be said of many members of this House, in relation to the finances of the colony, unless indeed they be experts. I confess I am ashamed to say I do not claim to be one of them. I unhesitatingly declare my belief, if you only define the powers and functions of the Provincial Councils, that the Government of this colony would be far more efficiently .and economically conducted by the Provincial Councils than it possibly can be by any central Legislature. It seems to me what is wanted is to define the powers of both and make each supreme in its own style. While such are my views, while I consider the people of the colony will all be making a grievous blunder—will, in fact, be doing a political crime,—if they agree to part with one iota of the self-go-vernment that they at present possess, nevertheless, if I find them so devoid of a sense of responsibility both to themselves and to the future, all I can say is the minority must just submit but I have yet to learn that the people are prepared to sacrifice the constitution under which the colony has so greatly progressed—that Canterbury and Otago for example, are practically willing to obandon the compact of 1856. Though I was a member of the Legislature in 1856, I was opposed to that compact, believing, as I did at the time, that it was inexpedient and unjust both towards the provinces and the colony; but I have yet to learn that Canterbury aud Otago are prepared to abandon that compact—to relinquish their territorial revenue in favor of the colony. ["No."] I say to all intents and purposes this is what is being done under this Bill — [Opposition cheers] —that Otago and Canterbury will have to relinquish their territorial revenue. [Cheers and Noes.] It will be removed from the appropriation of the Provincial Councils to be appropriated by the House—to be thrown into the vortex of colonial finance, at the bottom of which there is nothing, I fear, but financial embarrassment and disaster. In the province of Otago the whole territorial revenue is devoted towards the erection of roads, bridges, and public works throughout the length and breadth of the province. Under this Bill upwards of £90,000 a year of territorial revenue is to be applied to paying interest on the provincial debt—that is to say, the debt hitherto paid from ordinary sources is to be charged against the territorial revenues. [" Noes."] How anyone who reads the Bill can deny that I am at a loss to perceive. The money from other sources is of course to be set free, to be dealt with by this House—to be manipulated here, and I assure the people of Otago they need not be afraid. Little will find its way back to them. I am certain of that. How the representatives from that portion of the colony can reconcile themselves to this spoliation., I confess I am at a loss to conceive. The only satisfaction I have in the matter is that when the people of Otago awake out of this financial intoxication, to which the member for Hutt referred the other night—when they became alive to their real position of affairs—when the shoe begins to pinch, as undoubtedly it will, then the people of that part of the colony will be prepared to listen and approve of any proposal whereby we can take a leaf out of the book of Victoria, and go in for a separate colony. [Opposition cheers] Viewing it in that way, perhaps good may come out of evil. We are told that the people from one end of the colony to the other are demanding that the administration of local affairs should be handed over to the Central Government. I ask where is the evidence of this 1 Where the petitions ? Surely if the people are so eager to denude themselves of the powers of local self-government they now possess, the table of the House would groan with petitions in favor of the Bill, but, with the exception of resolutions from a few impecunious municipalities, which have been bribed by the prospects of substantial endowments, there is no indication of public opinion on the subject. I have no doubt the so called substantial endowments, will be found just as substantial as the five-eighths of the Customs revenue, then the three-eighths, and the 40s turned out to be. They all vanished before the exigencies of the colony. I have not the slightest doubt if, by this bait held out, the Bill does become law, all these substantial endowments will share the fate of their predecessors. People will probably find out when it is too late, that these substantial appropriations turn out to be a sham, a delusion, and a snare. As I said before, I am utterly at loss to account for the suicidal action of the representatives of the southern part of the colony in this matter. The immediate practical effect of this measure, so far as Otago is concerned, and so far as the colony is concerned, is that the laud revenue becomes colonial, and comes under appropriation by this House. It requires no prophetic vision to foresee that the authority which controls the appropriation will undoubtedly control the expenditure, Of course this would merely be question of time. To my mind that is the real secret of the suppoit the measure is receiving at the hands of the powerful class connected with the interest that monopolises the waste lands of the Crown. [Opposition cheers.] You may depend upon it that if the administration of the waste lands of the Crown remains in the hands of the Provincial Councils under the eyes of the people, the better it will be for the interests of settlement. I look upon

it that the amount which will be saved by abolishing Provincial Councils, assuming that it will be a saving, which I very much doubt, will be say £4OOO or £SOOO a year. What is that compared with the advancement of the public interests in relation to the administration of the waste lands which the absence of Provincial Councils imply. In Otago we have extensive educational reserves, which in the course of a few years will realise an annual value sufficient to obviate to a great extent altogether the necessity for special taxation for educational purposes. By this Bill those reserves become invested in the Governor. [Noes.] Certainly they do. I tell lion members that the next part of the play will be they will be put into the Colonial Treasury to be appropriated towards education throughout the colony. lam as certain of that, as that lam standing here, [Noes.J Then, again, we have the prospect of large revenues from railways constructed by the province. I believe in no part of the colony for some and correct valuation. C. Newton, C. P. Murray." The pleas deny all the material allegations, and upon the issues joined the jury found a verdict that a valuation pursuant to agreement was made. The question now to be decided is whether the evidence is sufficient in law to allow of the case going to the jury, and the learned counsel for the defendant, in support of the rule, has argued with much skill that that the agreement comes within certain principles of law, upon which I have to decide the question. If—as has been already admitted by the learned counsel for the defendant—the case stood alone on the document referred to, there would have been no doubt at all that there was sufficient evidence to go to the jury, and he could not have asked for a non-suit; but it was not so, as defendant's case rested in a great measure on the evidence of some of the witnedses, both in their examination in chief and cross-examination as to the way in which the value of the freehold land was arrived at. It was objected by the learned counsel for the plaintiff at the time that this evidence was inadmissible. It is unnecessary for me to decide whether that evidence was admissible. I have to decide as to whether it having been admitted there was or was not sufficient evidence of the valuation to go to the jury. It has been contended, and strongly too, by the learned counsel for the defendant in support of the rule that there is no evidence of a valuation such as that contemplated by the parties having ever been made. Waiving for the present the right of the parties to control the valuation of the freehold, this being only a component portion of the whole, let us look at the conduct of the parties as regarded the valuing of the freehold. Concessions on the one side of standing crops, and on the other of a certain amount in the price per acre had been made, and finding this, the] valuators agreed to their value for the purposes of the valuation, although the learned counsel is quite right in saying that the valuators never professed to be of one mind as regards the value of the freehold; but while saying so, there is little doubt of this, that if the parties had not consented to this course being taken, the valuators would have found themselves in the position of being unable to carry out the provisiors for valuing, under the terms. I have carefully considered the evidence adduced concerning the valuation, aud it seems to me that only proves that the valuators' finding that a diversity of opinion respecting the price of the freehold existed, exercised their undoubted right of taking evidence of value, even from the parties themselves, and Inding that conccssionsjhad.jbeen made on one side, by giving in crops, and by the other, in conceding as to price,, took this as a matter placed within their province by the parties, and thereupon took their value, and made what must be regarded as a good valuation. It must be considered that, as regards a good deal of the subject of the valuation, there has been no contention at all, and as regards that in which the contention has arisen, the valuers took the course of ascertaining the value, as far as they could, by applying to the parties themselves, and thus obtain partly material whereon to make their valuation ; and I have no hesitation in paying that with an honest and strict attention to all that was referred to them, they have arrived at a valuation which is good in law. For these reasons, I am of opinion that the rule must be discharged with costs.

Mr Joynt—With leave to appeal. His Honor—Certainly. Order—Rule nisi, discharged with costs, leave given to defendant to appeal. APPEAL FROM R M. COURT, AND RE HOBBS APPELLANT, V PENDKR, RESPONDENT. This was an appeal from the judgment of the B. M. Court, at Timaru, in which Frank Hobbs, of Timaru, hotelkeeper, and defendant in the Court below, was appellant, and Peter Pender, chief officer of police for the town of Timaru, and plaintiff in the Court below, respondent. The appellant was convicted, under an information laid by the respondent, for having on the 10th of April last, then being the holder of an hotel license under the Licensing Act, 1873, unlawfully neglected to keep his licensed house and premises, situate on the North road, at Timaru, and known by the name of the Clarendon Hotel, closed, contrary to the form of the Ordinance. Upon this information the then defendant, now appellant, was fined £5 ss, leave being given to appeal to the Supreme Court, Christchurch, on the following ground : viz, that clause 24 of the Public House Ordinance, 1866, of the Province of Canterbury is ultra vires, which ground was submitted for the opinion of the Supreme Court to decide whether clause 24 of the Public House Ordinance, 1866, of the Province of Canterbury is ultra vires and void or not. Mr G. Harper, instructed by Mr White of Timaru, for appellant. Mr Garrick for the respondent.

Mr Harper opened the case for the appellant by reading the conviction of the appelant by Mr Woolcombe, Resident Magistrate of Timaru. He would first refer his Honor to sec 31 of the General Assembly Act of 1873, which set out—" This Act shall be taken and read as part of any existing Provincial Act or Ordinance or any Act or Oidinance hereafter passed by any Provincial Council for the purpose of licensing or regulating the sale of alcoholic liquors: provided that no clause in any such Act or Ordinance shall be valid or capable of being enforced if in conflict with any of the provisions of this Act." The second clause of the said Act, which was the interpretation clause, stated that the expression " alcoholic liquors" should mean and include every description of distilled spirits, wine, ale, beer, cider, perry, or other fermented liquor

ofanintoxicatingnature;TheOrdinanceof the Provincial Council of Canterbury, Scss 21. No 17, intituled the Public Bouse Ordinance, 1866, was the Ordinance under which the conviction was made, Clause 24 said—" It shall not be lawful for any person holding a license under this Ordinance to sell or su[ ply any liquors or to suffer the same to be drunk in or upon his house or premises during any hour upon any Sunday Christmas Day or Good Friday or upon any other day between the hours of eleven at night and six in the morning and en and within such hours his house and premises shall be closed and any person offending against the provisions of this clause shall be liable to a penalty of not more than twenty pounds Provided always that in any licensed house which ehall be an hotel or house of accommodation for travellers it shall be lawful at any time to supply such liquors to any person who shall be bona fide lodgers in such house having a bed provided for them therein or who shall be bona fide travellers and shall have no residence within three miles of such house."

His Honor—How do you make the connection, Mr Harper, between the Provincial Ordinance of 1866 and the General Assembly Act of 1873 ? Mr Harper—By the Licensing Act of 1873 the Provincial Ordinances were incorporated into it, and holders of licenses so hold them under the Act of 1873. Mr Harper continued to say that it was contended that the clause he had read was ultra vires on the following grounds, viz : That it must be taken that the appellant Hobbs was a holder of a license under the Licensing Act of 1873, and that under such license he was entitled to sell alcoholic liquors, but there was no clause in the Act of 1873 laying down any rule or prescribed hours during which such might be sold, or when the house should be closed, but the Ordinance of the Provincial Council Bupplied that want so far as the sale of alcoholic liquors was concerned. There was no interpretation clause in the Ordinance ; there was a Provincial Interpretation Act, but it did not go the length of interpreting words, and the word "liquors" was used in the Ordinance as different terms. In clause 2of the Ordinance referring to the sale of not less than two gallons, liquors were spoken of as spirituous liquors, under which head was classed wine, ale, or beer, &c ; in the sth section of the Ordinance liquors were spoken of as spirituous or fermented liquors, and speaking of the licenses to be taken out under the Ordinance neither the hotel nor general said anything about what liquors were to be sold, but in the conditional licenses it did so by saying spirituous or fermented liquors. It was submitted that, as regarded clause 24 of the Ordinance, it being incorporated with the Licensing Act of 1873, there was no definition of the word " liquor." His Honor—But, Mr Harper, is it not feasible to construe the word "liquor" in clause 24 as liquor in respect to the sale of which a license is needed. Mr Harper—The contention taken in the Court below was that the word "liquor" might be taken to include tea, coffee, milk, cold water, and ginger beer. His Honor—Perhaps so etymologically, but scarcely so as regards the bill of fare of an hotel or public house. It may be said that cocoa, tea, &c, may be sold as liquors, and so they are to a certain extent, but I think, Mr Harper, the common acceptation of the word " liquor " does not include any of these.

Mr Harper—Very likely not, your Honor, but my contention is that the liberty of the subject has been interfered with in Mr Hobbs' case, in compelling him to shut his house, and not allowing him to sell coffee, tea, ginger beer, &c, as under the definition of the word " liquor" he could do. His Honor—Then you say, Mr Harper, that the Ordinance should have recited spirituous liquors, to wit whisky, brandy, rum, gin ? Mr Harper—Yes, your Honor, or it ought to be altered so as to assimilate it with the Act of 1873, under which licenses have to be taken out. His Honor—As it is a question of construction, it will perhaps be better to refer to Webster. There I find that in its general signification " liquor" is stated as including milk, water, sap, blood, &c, aud a popular, and I think well-known, acceptation of the word refers to spirituous distillations of an intoxicating character. Mr Harper—Of course, if your Honor takes the latter interpretation of the word, it is no use my prosecuting the appeal further. His Honor—l think it must be held to mean liquors for the sale of which a license) is required (which is not the case with the other articles quoted) and for the sale of which permission is given to any person or persons holding a license under the Act. Mr Harper—lf your Honor pleases I will not press the appeal further. I have simply followed my instructions. Order—Appeal dismissed, with costs. PHILLIPS V CRAIG AND OTHERS. Mr Joynt, for defendant, applied for an order dismissing the action on ground of non-procedure. Mr Garrick appeared for the plaintiff, and contra to the order. Mr Joynt stated that no steps had been taken by the plaintiff in the case since 31st August, 1874. Mr Garrick having replied contra, His Honor made the rule absolute, dismissing the action with costs. RICKMAN V THORNE. The argument on demurrer in this case was adjourned uutil Thursday next in banco. The Court then rose.