SUPREME COURT.

Globe, Volume VII, Issue 728, 19 October 1876, Page 2

SUPREME COURT.

SITTINGS AT NISI PRIUS. Thursday, October 19 (Before his Honor Mr Justice Johnston, and a Special Jury.) The civil sittings of the Supreme Court were resumed at 10 a.m. KEILEY V ROLLESTON. Mr Joynt for plaintiff; Mr Garrick for the defendant. Mr Shand was chosen foreman of the special jury. This was a case in which the plaintiff, a plumber, claimed damages for an alleged assault committed upon him by the servants of the defendant, acting as guards of the Great Southern Railway. On the 14th February the plaintiff travelled from Christchurch to Racecourse Junction, where he worked during the day, taking out a return ticket. The plaintiff’s ticket was clipped in the usual way by the guard of the train. He returned to Christchurch by the last train, and on reaching Addington the tickets were collected as usual by the guard. The plaintiff handed his return ticket to the guard, who, after he had collected the tickets in the carriage, came to the plaintiff and asked him whether he had given a ticket he produced. To this the plaintiff replied that he could not say ; all he knew was that he had given a return ticket. The guard then said that it would not do, and demanded a further sum of Is from the plaintiff in payment of the fare. The latter refused, saying that he had already paid his fare, and did not intend to pay any more, as he had given the guard his return ticket. The guard then called Mr Cronin, the stationmaster, who, after some altercation, had the plaintiff hauled out of the carnage and placed in the guard’s van at the back of the train. On the way from Addington to Christchurch it was endeavored to extract the shilling from the plaintiff', who resolutely declined to pay it, saying that he had paid his return fare, and would pay no more. When the train arrived at Christchurch, the plaintiff was brought before the stationmaster, and he dismissed the plaintiff. Hereupon the plaintiff brought his action. The issues sent to the jury for their consideration were as follows : 1, Did the defendant on or about the 14th day of February 1876 assault and beat the, plaintiff and take him into custody for a long time as in the declaration alleged ? 2, Has the plaintiff thereby suffered great pain of body and mind ? ,H. Was it enacted by the Superintendent of the Province of Canterbury by and with the advice and consent of the Provincial Council thereof by an Ordinance of the Su erintendent intituled The Railway Tolls and Management Ordinance 1875 that the Superintendent of Canterbury from time to time make by-laws among other purposes generally for regulating the travelling and traffic upon or using the said railways and for the maintenance of good order thereon as in the defendant’s second plea alleged ? 4. Did the said Superintendent on the Bth day of October 1875 by and with the advice and consent of the Executive Council of the said province and pursuant to the powers conferred on him by the said Ordinance make a certain bye-law for regulating traffic upon and using and working the said railway and is the material part of such bye law in the words and figures set out in the defendant’s second plea ? 5. Was such bye-law published in the Government Gazette of the said province on the 9th day of October 1875. 6. Was the plaintiff at the time of the committing by the defer daut of the grievances alleged 'in the declaration travelling in a carriage upon the Great S< utbern Railway without having paid his fare, and with intent to avoid the payment theieof I 7. Was the plaintiff discovered committing mch offence contrary to the said lye-law? 8. Did the defendant by his fervant apprehend and detain the plaintiff till he could be conveniently taken before a justice, or otherwise discharged by due oouiea of law in accordance with the bye*law ?

9. Was the plaintiff discovered committing such offence contrary to the Canterbury Great Southern Railway Act 1864 section 7 and sections 103 and 104 of an Act of the Imperial Parliament Railway Clauses Consolidation Act 1845 ? 10. Did the defendant by his sword apprehend and detain the plaintiff until he could be conveniently taken before a justice or otherwise discharged in the due course of law in accordance with the said sections of the said Acts or any of them ? 11. What sura of money (if anj) is the plaintiff entitled to recover from the defendant in respect of the cause of action in the declaration stated ? Mr Joynt briefly opened the pleadings, and read the declaration in the case. Mr Joynt proposed to tender as evidence the General Government Gazette of 9th April, 1874, containing a notification of the election of the Superintendent of the Province of Canterbury. Mr Garrick objected to this class of evidence being put in at all. He was prepared to argue that the action was not brought against the Superintendent. His Honor pointed out that this was hardly necessary, as it would be quite competent to show that Mr Rolleston had acted, and was acting, as Superintendent. Mr Garrick said his objection was that there was no appearance on the declaration that action was brought against Mr Holieston as Superintendent of Canterbury. Mr Joynt, after some argument, applied for leave to amend. Mr Garrick contended that even if the words “ William Rolleston, as Superintendent,” were inserted, it would not cure the defect. Under their rules of pleading it was necessary to sue a defendant in a public position, as such, and even if Mr Joynt had leave to amend, by putting in the words referred to, it would not be enough. Even supposing that there was an amendment he should demur, on the authority of Dodson v Macandrew (Court of Appeal Cases), in which the Judges laid it down, as a broad principle, that an action for tort would not lie against the Superintendent. He was merely a creature of the statute, set up to ascertain whether the province owed monies or not; and therefore the Superintendent could not he sued as such. (Oases cited—Jones v Macandrew, Court of Appeal; Lathan v Macandrew in error, 1, Court of Appeal; Dodson v Macandrew, 2, Court of Appeal.) After some further argument, His Honor suggested that the best way would be for the Court to grant Mr Joynt leave to amend the declaration, because the subject was of too important nature to go off on a point like this. Mr Garrick said the position was this, that if the declaration had been purposely framed he would have been prepared to pay nominal damages into Court; but now it was asked that the plaintiff should he allowed to reform the whole of his declaration. A lengthy argument ensued, several propositions from the Court being rejected. Ultimately, Mr Joynt obtained leave to amend the declaration, by putting in the the words “as superintendent,” leave being reserved to the defendant, if necessary, to move for setting aside the verdict on the ground that such amendment should not have been made. Declaration amended by inserting a clause to the effect that the defendant, as Superintendent of the Province of Canterbury, by his servants, assaulted the plaintiff. Mr Joynt then proceeded to call evidence in the case. After which Mr Garrick called three witnesses for the defence, and admitted that the verdict must be for the plaintiff, afterwards subject to the ruling of the Court on the point raised. The Jury then retired, and shortly afterwards returned into Court and gave the following answer to the issues raised:—Nos 1 and 2, yes; No 3, Ordinance admitted; No 4, no evidence; Nos 6 and 7, no; No 8, he was arrested; No 9, no evidence; No 10, yes, but no evidence of the bye-law; No 11, £l5O.