SUPREME COURT.

Globe, Volume XX, Issue 1592, 27 March 1879, Page 4

SUPREME COURT.

SITTINGS IN BANCO. Tuesday, March 25. '[Before hia Honor Mr Justice Johnatoo and hia Honor Mr Justice Williams.] STUDHOLME AND OTHERS V. RHODES AND OTHERS. Mr Garrick applied for an order for payment out of ourt of the sum of .£SOO. Mr Joynt appeared for Mr John Qebbie, the purchaser of part of the estate of Ahunri who, by reason of tho trustee not boing able to give a title to a portion of the sections, sought to recover tho sum of £SOO, part of purchase money which had been in Court since July, !875. The application now before the Court was to ascertain the proportional value of the land to which th > trustees i ould not give a title. A ter argument an order was made that the matter should be referred to some one appointed by both sides to determine the value of the land at the time of the purchase. Costs of the motion to be costs in the came. PARKER V BUXTON. Mr George Harper applied for a commission to take the evidence of Louisa Buxton under the provisions of 1 Wm. IV. The witness proposed to be examined was in danger of death before the trial of the cause took place, and was a material witness. In support of the application Mr Harper filed affidavits by Henry Cotterill and Dr Campbell. His Honor granted the application, and appointed Allan W. O’Neill as commissioner to take the evidence. GREEN, APPELLANT, V PENDER, RESPONDENT. This was an appeal from the decision of Mr Woolcombe, R.M., of Timaru, under the information of one Peter Pender, against one Charles Green, the holder of a publican’s license in Timaru, for having kept his house open after HP .m., in contravention of the licensing laws. It appeared from the case stated by tho Resident Magistrate, that the defendant in the Court below and the now appellant had a billiard room attached to his licensed house, kept open between the hours mentioned. The doors between the billiard room and the bar portion of tho hotel occupied by the appellant were closed, and no liquor waa offered there after 11 p.m. The billiard room was connected with the other portion of tho hotel by means of a lift used for supplying liquor to the billiard room. The Resident Magistrate held that breach of the law had been committed and fined the then defendant and now appellant ss, against which decision he appealed. The point of law for the decision of the Supremo Court was whether such a breach had been committed as held by the Resident Magistrate. The case'was remitted bask to the Resident Magistrate for restatement, and was now returned. Mr Harper for appellant. Mr Joynt for respondent. The case had been remitted to the Resident Magistrate to state what the inference of fact was that he drew from the opening of the billiard room by the publican. The Resident Magistrate now stated that tho inference he drew was that the billiard room had been kept open during prohibited hours, but that no spirituous or fermented liquors were sold in the billiard room. His Honor, Mr Justice Johnston, »aid that he did not find on tho amended case the words read by Mr Harper. Mr Harper said that he had received the alleged amendment through the Crown Prosecutor. His Honor, Mr Justice Johnston, said, that the whole ca*e aeerae l to him to be whether the billiard room was part of the hotel. Mr Joynt said bis cont ;ntion was that under the Public House Ordinance a breach had been committed, because there had been a lift by which intoxicating liquors could be supplied ; besides which a part of the premises had been kept open daring prohibited hours. Mr Harper called the attention of their Honors to Brigden v Heighs, 45 L.J., M. C. 58 and quoted the judgment of Mellor, J., thereon. His Honor Mr Justice Johnston pointed out that in this case there was a part of the premises which was not used for selling intoxicating liquors. Now this was not analagous to the case before them as the evidence was that there was a lift into the billiard room to supply intoxicating liqaors. , His Honor Mr Justice Williams pointed out that the case did not turn on the question of keeping open the premises, but for the sale of intoxicating liquors. Mr Harper then cited Castle v Ovenden, 46 L.J., M.C., 228. His Honor Mr Justice Williams said in this case now before them the Resident Magistrate had found on tho amended case that liquors were not supplied during prohibited hours, but that the premises had been kept open in violation of the provisions of the Publichouae Ordinance. Mr Harper submitted that the section of the Publichouae Ordinance said that the house and premises should be closed within certain hours for the sale of spirituous liquors. His Honor Mr Justice Williams said it would have been quite open for the Magistrate to have held on the evidence that the house was open for the sale of spirituous liquors, because there was no evidence that any one who had asked for ' liquor would not have been supplied. The Magistrate Laving stated that there was no evidence of the supply of liquor, then the question came to a construction of the statute.

Mr Harper submitted that there was no evidence to show that the house was kept open for the sale of intoxicating liquors. Indeed, the evidence was that the other parts of the house were closed except the billiard room. He should submit that the sale or supply of liquors was the offence for which the penalty was exacted and not the keeping open of the house. His Honor Mr Justice Johnston aaid that if there were no penalty for keeping the house open, unless a penalty were provided it would be an indictable misdemeanour. Hence the Magistrate had no jurisdiction, and the conviction was wrong. Mr Harper submitted that if the lift were shut down there would be no opening of the house under the Act. If it meant any door, then it would apply to the opening of a dining room or concert room door. His Honor Mr Justice Johnston said that the prohibition against keeping open the doors of the house was to prevent the surreptitious sale of liquors. Mr Harper submitted that the conviction of the Resident Magistrate was wrong, for the reasons adduced by him, viz., that there was no sale or exposure for sale within prohibited hours of liquors, nor was the opening of the billiard room a keeping open of the licensed house and premises within the meaning of the Act. Their Honors delivered judgment, affirming the conviction with costs. The case, it may be said, was brought aa a test one by the appellant. CUNNINGHAM, APPELLANT, V. DANN, RESPONDENT. This was a case stated on appeal from the Resident Magistrate’s Court, Christchurch. Ihe case was that the respondent sold his business as a butcher to the appellant under an agreement that he would not carry on the business of a butcher in or near Christchurch for the space of one year from the date of the agreement. The appellant alleged that the responden had broken the agreement and sued him in the Resident Magistrate's Court for J3IOO damages. In the Court below the judgment of the Resident Magistrate was given against the appellant, who was the plaintiff in the Court below, on the ground that, though the defendant in the Court below had slaughtered cattle and sold carcases to butchers in Christchurch, that was not a breach of the contract, as the word “ butcher,” in the construction of the Resident Magistrate, meant simply a retail butcher. Therefore he gave judgment against the plaintiff now appellant. An appeal was then made to the Supreme Court on a case stated. Mr Joynt for the appellant, Mr Harper for the respondent. Mr Joynt for the appellant submitted that the finding of the Resident Magistrate, as regarded the construction of the contract, was bad law, as on the defendant's evidence the contract had been broken. He submitted that tbe supply by the respondent of carcases to the retail butchers was being “ interested” in tbe butchering business. It was plain that if the respondent mode his money by supplying carcases to butchers in Christchurch for retail, he was certainly interested in the carrying on of the trade of a retail butcher in the words of the agreement, by which the respondent bound himself not to be interested in the business of a butcher in or near Christchurch for one year. [Cases cited in support of contentions, Clark v Howard, 2F. and F.. 125.] He should submit that the words in the contract, “ directly or indirectly interested in the carrying on or conduct of the business of a butcher” had been broken by tbe respondent supplying the retailers. The fact of his selling meat to the retailers in Christchurch during the year amounted to a breach of the contract entered into. That was his submission and he would quote cases in support of it. [Cases cited—Harms v Parsons, 32 L.J .Equity 247; Newling v Gobell, 38 L. J.. Equity HA; Leather Cloth Company (Limited) v 1-orsent, 39, L. J. Equity, 28, also 9, L.E. Equity.] His Honor Mr Justice Johnston said that tne Resident Magistrate as a jury had found that no breach had been committed in the contract. How then could the Court interfere ?

Mr Joynt submitted that as a point of law the Resident Magistrate was wrong, as he decided wrongly on the construction of the contract. He had, therefore, a right to come before the Court to cure this defect. His Honor Mr Justice Johnston oatd that the effect of the evidence given in the case on the Resident Magistrate was, that the construction of the words •* business of a butcher ” between the parties was, that it was the retail business of a butcher. Did Mr Joynt submit that the merchants who supplied grocers and publicans were interested in the retail businesses of those whom they supported ? > 1 Mr Joynt unquestionably did so. If he (Ml? Joynt) were to start the business of a distiller in Christchurch would ha not be interested in the businesses of the publicans in Christchurch ? Surely he thought that he would bo so. j Case cited, Fives y Crofts, 10 C. B. Eep., 121.] He submitted that the question was whether the facts disclosed a breach of the contract, which provided that the respondent would uot be interested directly or indirectly in the business of a buteter in or near Christchurch. He hould contend that respondent was both directly and indirectly interested in the carrying on, not by himself, bat by other people, of the business of a retail batcher, by supplying them with carcases for their business. For these reasons he should ask the Court to uphold the appeal. Mr Harper was not called upon to reply. His Honor Mr Justice Johnston said he felt the relevancy of the arguments of Mr Joynt, and probably if the case had come before them they might have decided differently. But the Legislature had given the Resident Magistrate power to find according to equity and good conscience, and the Resident Magistrate had shown that he had come to the conclusion on the facts set out that the parties were dealing with a retail business only, and that the contract was that the assignor should not carry on that business. That the assignor d d carry on some business was plain, but it must be held that the business was one which it was contemplated between the parties might be engaged in without breach of contract. Whenever they could do so without violation of the principles of law, he took it that it was the duty of the Court to support the Resident Magistrate. For these reasons he was of opinion that the appeal must be dismissed. His Honor Judge Williams said that he agreed with the Resident Magistrate that the respondent, dealing as he had done in the business of a slaughter-man, had not broken the contract. The Court had simply to decide whether the Magistrate had rightly interpreted the terms of the contract, and he was of opinion that he had. For this reason he concurred in the judgment of his brother Johnston, Appeal dismissed, with costs. The Court then adjourned until 11 a.m. this day. Wednesday, March 26. [ Before their Honors Mr Justice Williams and Mr Justice Johnston.] The banco sittings were resumed at 11 a.m. HENDERSON V NAPIER HARBOR BOARD. Mr Harper said that he had received a telegram from Mr Macassey after the rising of the Court, stating that counsel on either side on the argument of the rule nisi for a new trial had agreed upon hearing the argument before their Honors in Dunedin. His Honor Mr Justice Johnston was somewhat surprised that counsel should have settled such a question as the hearing of an important case without consulting the Court. Besides he would draw Mr Harper’s attention to the fact that the rule nisi was granted returnable in Wellington if the parties should so agree. It was therefore necessary that there should be some affidavit upon which the Court could direct the removal of the documents now in the Court at Christchurch. Mr Harper said that he would file the affidavit required on the telegram of Mr Macassey. THE QUEEN V HARMAN. This was a special case on appeal by the defendant from the decision of the Commissioner of Stamps as to the amount payable by the defendant as executor of the will of Baron Lord Lyttelton, as dnty on the property of the testator in New Zealand. The case arose out of an action brought by the Queen against the defendant to recover .2276 Us on a bond given by him as administrator of the estate of Baron Lord Lyttelton to pay to the Commissioner of Stamps the amount of duty payable on tho real and personal estate of the said Lord Lyttelton. The value of the estate in New Zealand was stated as being .£13,827, and upon this the Deputy-Commissioner of Stamps claimed duty at the rate of 2 per cent, per annum. The question of law before the Court was, whether any of the duties mentioned in the schedule of the Stamp Act are payable, both the testator and the residuary legatee not being domiciled in New Zealand. Mr Joynt for plaintiff. Mr Garrick for defendant. After argument, judgment was given for the Crown, the appeal being dismissed. CLEAVE V. KING. Mr Garrick, pursuant to leave reserved at the trial at nisi prius, applied for a rule nisi fo* a non suit or leave to enter judgment for defendant. He also moved for a new trial. Rule nisi granted, calling upon the plaintiff to shew cause why a non-suit should not be entered, judgment for defendant, or a new trial had. FULTOBD V. LOW. In this case Mr George Harper intimated that ke did not intend to proceed with the appeal. Appeal dismissed, with coats.