Untitled

Lyttelton Times, Volume V, Issue 302, 22 September 1855, Page 3

' We have been requested to publish the following judgment of Mr. Judge Stephen on the '"Seal Case :"— Wellington, July 28, 1855. BarrxAN v. Simkon'.—This action came on for trial at the Sittings of the Supreme Court, held at Lyttelton, on the 30th day of November, 1854, when a verdict was taken for the sum of 40s. and costs; subject to the opinion of the Court upon a special case then agreed upon between the parties. The action was brought to recover damages against the defendant the resident magistrate at Lyttelton, for an illegal warrant of distress, which had issued under the . following circumstances :— 1~ The Canterbury Association bad obtained a Charter of Incorporation, by Letters Patent, dated 13th November, 1849, by which they were to have a common seal, with full powers and authority to alter, vary,break and renew the same, at their discretion, and by which they were enabled to take, purchase, possess, hold, and enjoy. any messuages, lands, tenements, or hereditaments in New Zealand, or its dependencies , and also to sell, alienate, mortgage, charge, or otherwise dispose of the property, as well real as personal, of the said body politic and corporate, for the purposes and object in tlie charter mentioned, as fully and effectually to all intents and purposes whatsoever, as any other of her Majesty's subjects might or could do in their respective concerns. An Act of the Imperial Parliament afterwards passed, dated 4th August, 1«50. (13 and 14 Vict., c. 70,) entitled "An Act empowering the Canterbury Association to dispose of certain lands in New Zealand.'' This act,after reciting the charter by its second section, enacted that the Association should have power by instrument under their common seal to dispose of and convey all or any part of the lands described in a schedule to the said act. And, by the 3rd section, it was enacted " That for the more convenient carrying on of their business in the said settlement, it should-be lawful for the said Association by any deed or instrument in writing, under their common seal, from time to time to constitute and appoint any ptr6ons to be, while actually within the settlement, and for such period, if any, as the Association might think fit, the attornies of the said Association, to make and execute in the name and the behalf of the said Association, any such conveyances, deeds, or instruments, as the said Association were empowered to make and execute of any of the lands of the said settlement, and over and in respect of which the said Association might at any time have any disposing or other power or authority whatsoever : and further to revoke any such deed or instrument, if the said Association should think expedient, and to make any other deed or instrument, in lieu thereof, all which conveyances, deeds, and instruments whatsoever, to be made and executed by such attornies, should be under the signature of such attornies, and under such duplicate seal as in the said act is thereafter mentioned." The 4th section then enacts " That the said Association should and might have their common seal executed in duplicate, with power to alter, vary, break, and renew such duplicate; and that it should be lawful for the said Association to commit the same to the custody of the attornies for the time being constituted and appointed as aforesaid." The 6th section then provides "That no less than two persons shall be constituted and appointed such attornies as aforesaid, by any deed or instrument in writing as aforesaid." The case then states that on the 7th September, 1854, J. R. Godley, Jas. Edwd. Fitz Gerald, Wm. Guise Brittan (the plaintiff,) and Edwd. Robt. Ward, Esqrs., were appointed the attornies of the Association under the seal of the Association (agreeably to the 4th and 6th sections of the act above in part recited,) and that the duplicate seal as mentioned in those sections was committed to them. That the said duplicate seal was contained in a box, having four separate locks and keys ; one intended for each attorney, so thal.it might not be used "by any without the consurrence of the others. At the time of the complaint madeto the defendant as resident magistrate, there was but two of the said attornies within the settlement, Mr. Godley having gone to England, and Mr. Ward being deceased, and their keys were then in the possession of the defendant, having been

given to him by Mr. Godley, together with other official keys on a bunch. Since Mr. Godley's return to England, the duplicate seal had been used by Mr. Fitz Gerald and the plaintiff in executing deeds for the Association. On the 16lh September, 1852, Henry Sewell, Esqr., was appointed under the seal of the Association, " their attorney, to negotiate with the Provincial Government,' and to wind up the affairs of the Association in the Colony." The case states that " in December," 1852, the disposing powers of the Association, on the part of the Crown, were determined by Sir J. Pakingtou's despatch, which is admitted, although a question is raised whether it determined their powers of making conveyance of the lands previously sold." No argument was addressed to the Court on this point, nor was the despatch produced nor adverted to. It is stated in the case " that Mr. Sewell, in January, 1854, called upon plaintiff to deliver up the seal, which the plaintiff declined to do." In his evidence, however, he stated that he had not made application for the keys. This, I assume, relates to the other three keys, so as to make it consistent with the case and with that part of Mr. Sewell's evidence, in- which he states "soon after my arrival in the Colony, on application to the plaintiff, I found that such duplicate seal was in his possession, I requested him to deliver it to me, which he has declined to do." It appears that Mr. Sewell, on the 7th February, 1854, appeared before the defendant as resident magistrate, and one of the magistrates of the Province of Canterbury, describing himself the agent of the Canterbury Association, and gave him " to understand and be informed that J. E. Eitz Gerald and the present plaintiff did unlawfully take and detain a certain chattel of the said Association ; that is to say, the seal of the said Association, of the value of £20 ;" which "seal had been demanded from the said J. E. Fitz Gerald and the plaintiff, on behalf of the said Association, and bad not been delivered, to the damage of the said Association of £20." This information is signed by Mr. Sewell without mention of its being either made or signed by him as agent of the Association. On the hearing the information, Mr. Dampier appeared for Mr. Brittan (the now plaintiff;) Mr. Edward Dale Puckle, private secretary to His Honor J. E. Fitz Gerald, appeared on behalf of His Honor, and stated that His Honor desired him to say that he never had had possession of the seal, and that so far as he was concerned- the seal might be given up. Mr. Dampier then, on behalf of the now plaintiff, objected to the jurisdiction of the court on the following grounds, viz.—That the case involved an important civil right, besides the mere value of the chattel, and that it was not a case within the meaning of the ordinance (the Resident Magistrate's Ordinance.) That the value of the subject matter in question exceeded the amount intended to be the limit defined by that ordinance for the jurisdiction of the Resident Magistrate's Court. That the court had no power over the property or possession of the chattel referred to. That the resident magistrate (the now defendant) was a party interested, inasmuch as be was a member of the Association, and their agent in the Colony. That Mr. Sewell bad stated in his evidence that the actual value of the seal was, in his opinion, about £10 ; but that no evidence was given of any special damage by reason of the detention. Mr. Sewell was examined in support of his information, and he stated that-he was the agent of the Canterbury Association, acting under a power of attorney, which he then held in his baud, dated 16th September, 1552, and which he put in as evidence. That the Association had a duplicate of their seal made, which they transmitted to their principal agent, Mr. Godley, to be used for the purposes expressed in the act of 1850. and to be kept in Mr. Godley's custody. That there were to be four keys to the box containing the seal, one of which'keys was to be in the custody of each of the attoini'es appointed to execute conveyances. That the powers of those attorneys have wholly ceased; that on application Mr. Brittan (the now plaintiff) admitted that he had the seal, but witness did not know where it was. Mr. Sewell stated that all the sales effected by the Canterbury Association had not been duly" carried out. He further stated that the seal" could not be used for any other purpose than the conveyance of lauds. Upon this evidence and alter overruling Mr. /

Dampier's objections made to the jurisdiction the Resident Magistrate (the now defendant), gave judgment for the.* plaintiff for the sum of £20 as damages, for the detention of the seal and 13«. 6d. costs, and on the 20th February, 1854, he issued a distress warrant against the goods.and chattels of the now plaintiff to levy thesa d sum of 13s. 6.1. costs, together with the reasonable charges of taking and keeping such distress. The distress warrant recites that the now plaintiff "was duly adjudged to pay the sum of 20/. claimed by one Henry Sewell of Lyttelton, in the said province, for damages, together with the sum of 13s. 6d. costs, in the said case,'' (not setting forth that they were so awarded to Mr. Sewell as agent of the said association). The entire stun so directed to be levied was £\ 3s. for which a distress was made by the policeman to whom the warrant was directed, and which was (after such distress made) paid by the now plaintiff. Notice of action was given by the now plaintiff's solicitor to the now defendant on the 10th March, 1854, and the present action was commenced on the 10th day of May following. These are the circumstances of the case on which the parties consented, " That a verdict should be taken by the plaintiff for 40s. and costs, subject to the opinion of the court, the court being at liberty to direct any issue of facts not admitted in the special case; the parties also consenting to reserve all legal points for argument arsing under the circumstances above mentioned." On the 17th inst., Mr. King appeared for the plaintiff, and Mr. Hart for the defendant. Mr. King took several objections to the proceedings on the ground of informality, but these I overruled on the authority of the Summary Proceedings' Ordinance, 5 Vict., sess. 2, No. 5, by the 17th section of which it is enacted, That no information, conviction, or other proceedings before any Justice of the peace, shall be quashed or set aside, or adjudged void or insufficient for want of form. Another objection taken by Mr. King, was that Mr. Sewell had no right to sue in his own name, but in the name of the Canterbury Association. This objection appeared on the face of the information in which Mr. Sewell merely describes himself agent of the Canterbury Assocition, but does not state that he is making the complaint in that capacity. So in the adjudication where judgment is given " for the plaintiff" no notice being taken therein of his then acting on behalf of the Association and likewise in the distress warrant, reciting the adjudication, that the now plaintiff had been duly adjudged to pay the sum of £20 claimed by one Henry Sewell, where no mention is made of that claim'having been made by him in his character of agent. The statement in the information that the seal had been demanded on behalf of the Association that it was the seal of the Association and a chattel of the Association, and that itwas detained to the damage of the Association, are insufficient for the purpose of aiding this omission, whilst it was at variance with his claim if made by Mr. Sewell in his own behalf, as it appears from the other points #f the information as well as the judgment and the warrant to have been. As the whole case now submitted admits that Mr. Sewell had no interest in the seal, and that he only claims the right to it as such agent, the objection must prevail. Another objection taken by Mr. King was that the defendant had no jurisdiction, tl c subject matter being in the nature of an incorporeal hereditament, and the claim of Mr. Sewell not coining within the meaning of the Resident Magistrate's Ordinance, 10 Yict., Sess. 7, No. 16, Sect. 25, which prescribes the cases in which that court was to have jurisdiction. That section enacts "That in every case of any claim or demand whatsoever of a civil nature in which neither of the parties sh-.!l be of the native race &c, and where the debt or damage claimed shall not exceed £20. _ . , , This latter objection too must be sustained by the court, for this was n<> debt nor was there any damage sustained, and if there were it cannot be said that the damage did not exceed £•>_) The claim too was one not of property, but of aright, that right involved the interests of others, who would require that seal to be applied to tho completion of their tales, and the plaintiff was as one of the attornies of the Association bound to retain the seal so long as lie continued to be one of their attornies. He aud

Mr. Fitz Gerald were appointed such attornies under the 13th and 14th Vict., c. 70, sect. 3, 4, & 6, (above set forth) by a power of attorney, under the common seal of the Association dated 17th September, 1554, and there is nothing in the ca*e to shew that that power has been revoked. It is true that Mr. Sewell states in his evidence that the "powersof those attornies have wholly ceased." But as they would cease only by some appointment under'the common seal of two other persons, at the least as attornies for the time being, his oral testimony to that effect cannot be received without the production of such power. It may be Mr. Sewell's impression that there was such a power, or he inav have been swearing according to bis impression as to the law, when he stated that the powers of the plaintiff and bis co-attornies had wholly ceased. There is nothing however produced to warrant either of those impressions. Mr. Sewell it seems is appointed the agent of the Association by their power of attorney under their common seal on 16th September, 1852, as the special case states it, he was thereby appointed to negotiate with the Provincial Government, and to wind up the affairs of the Association in the colony. Mr. Sewell signed the special case as solicitor for the defendaut, and therefore knew what it contained, and as he does not shew any other power given to him by which he might "demand the seal from the plaintiff, it would seem probable that he was aware that that power of attorney gave him no such right to demand it. The seaf in question was not required to be in bis possession to enable him to wind up the affairs of the association nor to negociate with the Provincial Government. By the act referred to Mr. Sewell could not execute any deeds or conveyances of the, Canterbury-lands. That power" was thereby conferred on such persons, not less than 2, as should be appointed their attornies by the Association, and if that power were revoked, it could not be again granted to fewer than two persons. Till that shall appear to have been done, the plaintiff and Mr. Fitz Gerald are the attornies of the association for the *purpose of executing deeds, &c, of the lands sold, their signature is requisite, and they alone are authorised to affix the duplicate seal. Mr. Sewell's power contains no revocation of the power given to the plaintiff and his co-attornies. It was given to him for the purpose of transferring to the Provincial Council of Canterbury, all powers and authorities vested in them, as its preamble recites. The New Zealand Constitution act, by 76th sect, gave the association the power to transfer to the said Council all the functions powers and authorities then vested in the said association, and this power of attorney was therefore given to Mr, Sewell. The power of attorney gives him their authority to do all acts in any way material or necessary for winding up, settling and arranging all their affairs in New Zealand, and for transferring their powers to the said Provincial Council, and for that purpose to collect debts, take possession of goods and of lands, and to sell the same, and to make and enter into any agreement relating thereto, and to execute all deeds asm instruments, whatsoever necessary, for effecting any of the purposes aforesaid, and to affix the duplicate seal of the said Association to any such deeus or instruments, which duplicate seal shall for ih* purposes aforesaid be deemed to be the original seal of the said Association. It may have been supposed by Mr. Sewell that by reason of the powers thus expressed to have been given to him, all the powers of the plaintiff and his co-attornies " had wholly ceased," but it is clear that the power given by the Constitution Act was not to interfere with the past engagements of the Association, nor did that act repeal any part of the 13th and 14th Vict, c. 70. The mode of executing deeds by a duplicate seal, and under the signatures of two attornies, remained unaltered; and the appointing not less than two other attornies who were to have the duplicate seal was to be made only on the revocation of the former power (viz., that to plaintiff and bis co-attornies). There has been no revocation of that power, nor has the pownr been granted to two persons. Again, the duplicate seal was given by 13th and 14th Vict, only for the execution of certain deeds, whereas the power to x\lr. Sewell purports to give to him alone (that to plaintiff and Iris coattiiniic< not having been revoked, the powers which by the act could not be granted to not less than two, aud the duplicate seal which was to be given to not less than two, and the signature which was to be by iiot fewer than 'two,

Mr. Sewell would now claim under this power of attorney. The power of attorney is given under the Constitution Act, and it cannot take away powers conferred by a former act without first repealing that act. I feel no difficulty in saying that the power given to Mr. Sewell by this power of attorney does not authorize him to put the duplicate seal nor his signature to any conveyances of lands sold by the Association prior to the date of his appointment, and that the duplicate seal was rightly retained by plaintiff, who, with his co-attorney, Mr. Fitz Gerald, could execute such deeds, and place their signature to them so as to give them effect. This is a matter which as deeply affects the Land purchasers as the Association, and the plaintiff and his co-attorney may be deemed as holding the duplicate seal for their benefit till their conveyances are executed. In deciding against the defendant on all these points, I regret that I am compelled by the consent of the parties to direct that the verdict shall stand for the plaintiff for 40s. and costs. I regret it, because there was no malice on the part of defendant (it is not even alleged that there was), and the real damage sustained was but 235. By the Supreme Court Ordinance, where a verdict is given for 405., costs follow as of course. But why should the verdict have been entered for more than 235. ? It is much to be regretted that the defendant was not advised to avail himself of the protection afforded by law to magistrates in such cases of tendering sufficient amends. The month's notice required tobe given is for the purpose of enabling them to do so, and bad the defendant tendered 235., the plaintiff would have proceeded at his peril : rendering himself liable to pay to the defendant double costs if he did not recover more than the sum tendered. Sidney Stephen, Judge.