SUPREME COURT SITTINGS

Grey River Argus, Volume XV, Issue 1909, 18 September 1874, Page 2

SUPREME COURT SITTINGS

appeal cases. Wednesday, September 16. (Before his Honor Mr J uatice Richmond.) [west coast times.] The sittings of the Supreme Court were brought to a conclusion on Wednesday. His Honor delivered the following judgments in the subjoined cases : — GILPILLAN, APPELLANT, V. NANCARROW, RESPONDENT. This was an action against the master of the schooner Annie Brown, for damage done to part of a cargo of flour, during a voyage from Port Adelaide to Greymonth. The flour was shipped under a bill of lading in the usual form. The damaged portion of the cargo was at the bottom of the hold, and the damage was by salt water. None of the top cargo under the hatches was damaged. The plaintiff tendered no direct evidence of negligence on the part of the defendant, or the shipowners. On the other hand, it was proved that the cargo had been properly stowed, proper and sufficient dunnage being used ; that the schooner was, so far as tbe master knew, seaworthy — he having, however, only made (as I understand the statement) this one voyage in her ; and that she was well manned for the voyage. The case further states, that the vessel encountered, on the 2nd and 3rd of August, a hard gale of wind, raising a head sea, in which she pitched heavily, but causing no apparent damage beyond the splitting of the fore and lower topsail, and carrying away a jibguy. During this bad weather the pumps were attended to, on an average, every two hours, and were worked, whenever an opportunity occurred, until they sucked. Upon this state of facts it might seem a reasonable inference that the damage to the cargo was sufficiently accounted for, as having been probably caused by the dangers of the seas, within the usual exception in the bill of lading, the weather having been seemingly such as to try even a staunch and well-handled ship. The Magistrate, however, was not of this opinion. This is evident, as he found for the plaintiff. As there was no positive proof of negligence on the part of the ship this conclusion must have been based upon the opinion that the damage per se } was primn facie evidence of negligence ; just as when a coach breaks down, it is said to raise the presumption that the accident is due either to unskilfulne3s or carelessness of the driver, or to insufficiency of the coach ; or, a3 in the case of a common carrier by land, where damage to the goods raises a presumption of negligence. But I am of opinion that this principle does not apply to the case of goods carried by sea and receiving sea - damage. Such damage being a common incident of carriage by sea, the inference, so soon as it is ascertained that the damage is by salt water, is that the damage is due to the ordinary dangers of navigation excepted in the bill of lading. If therefore the consignee of goods seeks to charge the ship-owner, the burden of proof is upon him to make out a case of negligence — negligence creating, as it were, an exception out of the exception in the bill of lading. The Magistrate refused to draw a conclusion in favor of the defendant from the positive evidence given on his side. That may have been a mistake ; but the Court cannot set right j there being no appeal against the conclusion of a Resident Magistrate respectting a matter of fact. But in holding, as he must have done, that the plaintiff was not bound to give any proof of negligence on the part of the defendant beyond the mere fact of damage, he erred, I think, in law, and an appeal lies. It is strange there is not more authority to be found on a point that must be of constant occurrence. However, the judgments of the Court in the case of Czech v. Gen. Steam Navigation Company, 3T Law Journal, C.P. 3, appear sufficiently to recognise the doctrine that the onus prohandi in cases of this class is on the plaintiff, and that some positive proof of negligence beyond the mere occurrence of the loss must be offered. The same doctrine seems supported by the judgment of the Privy Council in the cases of P. and O. Steam Packet Company v. Shand, 3. Moore (N.S.) P.O. 272, and Ohrloff v. Briscall, 35 Law Journal, P.C.63. Judgment of the Resident Magistrate's Court reversed, with costs of appeal. DARGAN, APPELLANT, V. ALCORN, RESPONDENT. This was an appeal from the decisiou of Mr Whitefoord, R.M., Ahaura, in the case of Dargan v. Alcorn, whereby the plaintiff in the Court below sought to recover from the defendant, Alcorn, the sum of LSO, due by him as endorser of a bill of exchange drawn by the plaintiff, Dargan, upon and accepted by one Lewis. It appeared that no notice of dishonor of the bill had been given by the holder to Alcorn, the holder, but that certain promises to pay had been made by the ' endorser in respect of payment after the dishonor of the bill. And it was contended for the plaintiff that such promises amounted to a waiver of the notice of dishonor. The Resident Magistrate held that they did not, and that want of notice was fatal. Upon the argument in the appeal, in which Mr Purkiss, instructed by Mi Staite, appeared for the appellant, and Mr Guinness for the respondent, it was contended that the promises made by the respondent amounted to a waiver, and that therefore the endorser, Alcorn, was liable to pay. For the respondent it was contended that the promises were not absolute and unconditional ; that they must be so to constitute a waiver. His Honor ruled that unless the promise was absolute and unequivocal there was no waiver, and that if, from a series of promises, it was sought to be gathered that there was such a promise, yet that was a matter for the R.M. to decide, and constituted a question of fact, and not one of law. Appeal dismissed with costs. HAMILTON AND OTHERS V. PAROA ROAD BOARD. Mr Cutton appeared for appellants, and Mr Guinness for respondents. This was an appeal from the District Court in Greymouth. The plaintiffs sued, in the Court below, to recover Ll5O for tolls which they had paid, arid which had been received by the defendants, and which tolls, it was afterwards discovered, had not been legally imposed. The monies had been collested by one Green, who was appointed collector by the County Chairman, who had also fixed the tolls. By the " County of Westland Ac^ 1868," the tolls ought to have been fixed, and the colleotor appointed by the County Council.

The collector had been appointed on the recommendation of the Road Board, and the Tolls fixed by the County Chairman, under a resolution of the County Council, in the following words : — " Aug. 6th, 1870.— Mr Carreras, by leave, moved, and MrLahman seconded — 'That in the opinion of this Council, ie will be extremely desirable that the Oosk-a-Bulla, Clifton, and Nemona tracks be handed over to the Paroa Road Board, and that they may be authorised to collect such tolls as shall be necessary to keep the roads in repair.' " On the Chairman's suggestion, the following addition was made : — " Such tolls to receive the sanction of the County Chairman." Green had been paid for his services by the Board. The Board had accounted to the County Council for all moneys they had received from Green. The Judge of the District- Court had nonsuited the plaintiffs, on the ground that there was no privity between plaintifis and defendants. The question for the Supreme Court was, whether there was sufficient privity between defendants and plaintiffs to entitle plaintiffs to maintain action. Mr Button contended that as the only point in which the nonsuit was given was the question of privity, it must be taken for granted that all the rest of the plaintiff's case had been proved, aud inter alia that the toll was illegal. There was only one way in which the Court below could have come to the conclusion that there was no privity between the parties, and that was by supposing that the Road Board were only the agents of the County Council to receive these tolls, and that they had paid over the amount received. Mr Button contended that the Road Board were not agents but principals. The County Council could not be sned for this money as they had neither appointed the collector nor fixed the tolls. Again, if they were agents, there was one exception to the rule that an agent who had paid his principal was not liable to an action for money had and received, and that exception was where a person gets money into his hands illegally he cannot discharge himself by paying it over to another. Mr Guinness contended that the Road Boards were not principals but only agent 3 of the County Council. That inasmnch as they had accounted to the County Council, that was equivalent to payment of the monies collected, and that they were therefore not liable. Several authorities were quoted by each of the counsel. His Honor, in giving judgment, remarked that he could not consider the resolution of the County Council as fixing the toll, neither did they appoint the collector. All that could be said of them was, that the illegal toll was collected with their approval. He could not consider that accounting to the Council was equivalent to payment to them of the money. A distinction must be taken between accounts between merchants, and accounts between such bodies as these Road Boards and the County Council. The Paroa Road Board were the parties for whom fthese moneys were intended, and who actually got them. He could not regard this case in any other light than the simple case of the Road Board having received the plaintiffs' moneys, not being entitled to have them, and he thought there was sufficient privity between the parties to entitle the plaintiffs to sue. It was a very unfortunate thing that such mistakes should be made, and he hoped that now a more regulsr form of Government had been introduced, that we should have less of the3e irregularities. : j Appeal was allowed, with costs. ; The Court then adjourned.