Law Intelligence.

New Zealand Mail, Issue 319, 23 March 1878, Page 8

Law Intelligence.

SUPREME COURT.—IN BANCO. Tuesday, March 19. (Before his Honor the Chief Justice.) EVANS V. HORSEALL. Judgment in this case was delivered by his Honor as follows: — This was an appeal against a decision under the Resident Magistrate’s Act, 1807, in a suit brought by tire consignee of goods against the master of the vessel for damage done 1o the goods whilst in course of carriage. The judgment was for the plaintiff, and against that decision the defendant appeals. The material matters stated in the case are that the goods were shipped at Wellington on board a steamer called the Rangatira, of which the defendant wasj master, by Messrs. Turnbull and Co., under a mate’s receipt or shipping note, which states that tire goods were received from Messrs. Turnbull, to be forwarded to Poveity Bay consigned to J. S. Horsfall. It does not appear that any bill of lading was taken, nor that in any way the defendant did not take upon himself, by the receipt of the goods, the ordinary liability of a common carrier, responsible for the goods, the act of God, of public enemies only excepted. It appears, however, that the voyage to Poverty Bay was by way of Napier, and that on the voyage off the bar at Napier a pilot was taken on board, and that on going in the ship grounded on the bar. The defendant admitted that the goods were damaged to the extent claimed ; the defendant in liis evidence admitted, and the case finds, that the damage was caused by the ship grounding on the bar : but it was contended on behalf of the defendant that lie was not responsible, as the lo.s was caused by perils of the seas. It does not appear that any other defence was raised on his behalf at the trial. At the hearing of this appeal, however, the only contention on behalf of the defendant was that he was exempt from liability to the plaintiff by reason of the vessel being, as found by the justices and stated in the case, “in the hands of the pilot” at the time of the accident to the vessel, whereby the damage to the cargo, the subject of the action was occasioned. On behalf of the plaintiff it was urged, in answer to this contention, that even if the employment of a pilot were conipulsary, it was necessary that the justices should have found and stated in the case that the damage was caused solely by the default of the pilot, and that in the absence of such a finding the defendant’s liability as a common carrier continued. I am inclined to think that this case ought to be disposed of without reference to the contention made at the hearing of the appeal and not made at the trial. It is manifestly unfair, and otherwise inexpedient, that a case should be argued on appeal without reference to the defence made at the trial, and on a point not raised at the trial. As might be expected, the case is not stated with a view to the question now

raised, but witu a view to the defence made at the trial : but this Court is a3ked to spell out and infer from the facts stated, other facts sufficient to raise the question upon which the defendant now relies. No doubt the appellant does not a*k that this Court should do more than make such inferences of fact as necessary follow from the facts found, for the appeal is on questions of iaw arising on facts found by the justices. If it were necessary, I should be prepared to decide that the defendant, not having protected himself by a special contract, is responsible even though the damages was by a peril of the seas, for he has all the liabilities of a common carrier. I proceed, however, to consider the defence now made, and the first question is whether it appears from the case that the pilot was taken on board by virtue of any law compelling a pilot to be taken. On behalf of the de endant. the 14th and 21st sections of the Marine Act, 1867, were relied upon as creating this compulsion. I do not think that the 14th section was intended to apply to a master piloting the vessel of which he is master, but to the case of a person acting as “ pilot,” in the ordinary sense, that is, pilot of a vessel of which he is not master ir one of the crew. But the 21st section certainly does create a compulsion on the master to employ a pilot in the cases to which it applies. In order to bring the defendant under that section, it is necessary that it should appear : —First, that lie vessel was not exempt from pilotage. Second, that it arrived from a place beyond the seas. ’I bird, that the port at or off which it arrived was a port for which a pilot was licensed. I think it lay upon the defendant to prove not only the last two conditions, but the first. For even in a proceeding to recover the penalty, the onus w nild be, not on the prosecution, but on the defendant, as the exception is one personal to himself ; but_, however that might be in such a proceedi :g, I thinlc .it certainly is so where the defendant seeks to rid himself of his common law liability as common carrier. Now, on referring to the case stated, no facts are stated which show that the first or the last .of these conditions existed. As to the second, I am inclined to think that within the meaning of the Marine Act, the expression “ places beyond the sea ” was intended to include, not only places beyond Ndw Zealand, but also places within New Zealand. I think that the provision was intended to apply to coasting vessels. I find that in the repealed Ac - of 1566, section 19, the analogous provision runs thus;- “If the master of any vessel not exempt from pilotage, or not employed in coasting only, arriving from any place beyond the sea, &c.” That provision expressly excepts coasting vessels, but such express exception would not have been necessary if “pi ce beyond the sea” excluded places on the coast of New Zealand, Therefore, even if no other consideration existed, I should have arrived at the conclusion that the defendant had not established his exemption from liis liability as common carrier. But even if. contrary to my opinion, it could be inferred from the ca<e that the port was a port for which there w s a licensed pilot, and that the pilot taken was a licensed pilot taken under compulsion of law, and even if, also contrary to my opinion, the proof of the exemptions from pilotage lay on the plaintiff, there remains the further question whether such compulsory ta dug of a pilo . does in law create the exemption from responsibility. At the argument it was suggested that the section of the English Merchant Shipping Act, 1854, exempting masters and owners from responsibility for damage occurring through default of pilots taken compulsorily applied to New Zealand, but I am unable to discover that that is so. That section by the Act itself does not apply to the colonies, and no New Zealand Act that I can discover lias made it applicable. However, irresjaective of legisl >tion, it seems to be the better opinion that at common law the master and owner would be exempt from liability for damage which is caused solely by the act of a pilot compulsorily taken. (See “The Protector” 1 Win. Robinson 56; “ The Maria,” lb. 107.) However this may be at common law—and it is on common law principles, and ir espective of any statute that the question has, as already pointed out, ta be considered in New Zealand —the same rule which is now well established as to the exemption by statute must, I think, apply to the exemption which exists by the common law, and that rule is that the onus lies on the defendant to establish the exemption from liis responsibility as a common carrier, and that mere proof of the fact that a pilot compulsorily taken is in charge is not sufficient to establish such exemption; but lm must affirmatively prove th't the damare was caused by the pilot, and not by the master. (See the case of “ The Protector,” 1 Wm. Rob , supra. “The lona,” Law Reports, 1 P.C., 432. “The Velasquez,” lb. p. 498.) Now the case does not state facts which show that the damage was through the fault of the pilot alone, but only that the vessel was in the charge of the pilot. The justices state that the captain chose to run the risk of injuring his vessel. If I felt myself at liberty t© speculate in the m tter, I might probably come to the conclusion that it may be inferred that the defendant interfered with the pilot in the exercise of liis proper functions, and so caused the damage ; and if so. the fact of the pilot being in would not exempt him. (See “ The Loclilibo,” 3 W. Rob., acm. Rep., 310, 331.) I prefer, however, to rest my judgment on this part of the case, on the ground that the onus lay on the defendant to establish, and that he has not established, that the damage was caused by the act of the pilot alone. I therefore dismiss the appeal, with costs, and give judgment for the plaintiff, who is the respondent here, with costs. THE QUEEN V. BURTON. This was an application made by Mr. Izard for the remission of a fine of £IDO imposed upon Mr. Burton, of Auckland, for failing to appear as a witness against H. S. Myers, a bankrupt, who was criminally prosecuted. The application was received in Chambers and granted. THE WHITAKER AND JONES LIBEL CASE. Dunedin, Monday. The trial by jury of the case Whitaker v. Jones came on this morning. After the Crown Prosecutor had opened the case, evidence was taken, hut only of a formal character, as no evidence of justification was admissable. The following is the evidence : Colin McKenzie Gordon deposed : I am Deputy-Registrar of the Supreme Court. I produce an affidavit sworn to by defendant on the occasion of the registration of the Evening Mail. Richard Dignen : I am clerk in the Customs at Oamaru, and know the defendant, who is proprietor of the Evening Mail newspaper. I purchased this paper at that office. The title of the paper is the Evening Mail. It purports to be printed by George Jones. John Edward Denniston, barrister and solicitor of the Supreme Court, practising in Dunedin, deposed : My attention has been directed to an article in the Oamaru Evening Mail. With reference to that passage in the article, “ That hideous thing of which the Attorney-General is the parent,” I should think it meant that Mr. Whitaker introduced and fathered the Bill in the House with regard to the alleged swindle. I would think it meant that Mr. Whitaker had introduced the Bill for the apparent purpose of legitimately selling native lands, but was really intended to enable some Auckland speculators afterwards mentioned as “ Whitaker and his friends ” to obtain lands in an unfair and objectionable manner. I think it would stand stronger phraseology—l should say “ dishonest manner.” With regard to other passages regard-

ing the enrichment of the Attorney-General and his colleagues, I would take it to mean that the Attorney-General and his colleagues had previously enriched themselves at the expense of the colony by unfairly dealing in native lands, and that the Bill was introduced with the intention of still further enabling them to do so. I take the paragraph, commencing “The person” to mean that the “Auckland land ring”—that is, “ Whitaker and friend?,” mentioned in the article—had some dirty work to do connected with land speculations, and that they selected an agent whom they knew was doing such work, as shown in the part commencing “ If the Act were allowed to pass and the swindle we have just exposed were perpetrated.” I see that the article alleges that Whitaker did (?) the dirty work to Mr. Rees. I think the whole description of what Brissenden is alleged in this article to have done in re Moon, says that he did dirty work. I think the expression, “ Further enrich ” means “ further enrich at the expense of the colony.” I think the expression as to how Whitaker enriched himself is to lie gathered from the rest of the aiticle : the “swindle” was to have been completed by the passing of the Act. Commencing with the part referring to Brissenden’s relations with Moon, it shows the initiation of the “swindle” by compelling a man to part with land. I take that part to mean that Whitaker, as one of the clique, would have prevented Moon from getting a title in the Native Lands Court. The whole article infers a swindle. I am merely giving my opinion, after reading the article, as a plain citizen. I know nothing of the operations of the Native Lands Court, with regard to lands being detained by lawful means and afterwards termed a swindle. I have not heard of that here; I should he surprised to hear it. In reply to Mr. Haggitt : I have not heard any legal transaction here termed “ swindle.” It might be so in Auckland with regard to the expressions that Mr. Whitaker would he enabled to obtain one estate 300 miles square, and his probability of being able, as AttorneyGeneral, to pass the Bill; I think that they allege the swindle. Frederick Whitaker deposed: I am a barrister and solicitor practising in Auckland. I held the office of Attorney-General from September, 1870, to I think October, 1877. I have read the article in the Oamaru Mail of the 13th August. It refers to me. I introduced into the Assembly a Bill to amend the law relating to native lands. It is entitled, “A Bill to amend and consolidate the law relating to native lands.” In reply to Mr. Rees, witness said: I assisted Mr. Haggitt in working up the demurrer points. I gave him my opinion. There were three occasions where pleas were put in. I heard on the last occasion Mr. Haggitt say he would not consent to allow other pleas. I know under the plea of not guilty that Mr. Jones cannot put in evidence as to the truth of the alleged libel. I am sorry for that, because I came down here for the express purpose of giving evidence, and to answer any questions you may put to me. I did not advise Mr. Haggitt on that point. He did not ask my advise when I came down here. I told Mr. Haggitt that he was acting on the part of the House of Representatives. When I saw the pleas I saw immediately that they were bad. I know Mr. Thomas Russell. He is, and has been, my partner for many years. Mr. Russell and I are partners only in law. We are not partners generally. We have entered into land transactions outside the partnership during the past few years. One of these transactions was in relation to the purchase of the Piako Swamp. After I became a member of the House I did not enter into a contract with the Government for the purchase of the Piako Swamp ; I paid the money afterwards. The original transaction was not varied; other land was not put in, and the area was not varied. I think the money was paid in July, when the House was sitting. I have not made any contract with the Government. Since I was elected a member of the House I asked to exchange some land which I purchased from a European under the Land Claims Settlement Act. I was uuder treaty with the Government to take other land in exchange, but it was not cai-ried out. That was before I became a member of the House. The whole transaction is in print. I remember a committee sitting on the Waitoa land transaction. I drafted the Native Lands Bill. I was in Wellington when Mr. Jones was committed for trial. I was at the Police Court, but I was not called as a witness. The Native Lands Bill was considered before I went to Auckland, and the principles were laid down. I went to Auckland and prepared the draft. Altogether the drafting and printing of the Bill extended over two months. I took it down to Wellington and went over it word by word, and some of it was altered to suit the views of the other members of the Government. In the purchase of the Piako Swamp I bad as partners Mr. Russell, Mr. Chas. Taylor, Mr. Murdoch, and Captain Steele. I was present and voted when the prosecution of Mr. Jones was determined on by the Assembly. At first I requested the House to allow me to arrange the matter with Mr. Jones. The House would not a free, and I voted. I asked the House to allow°the whole of the circumstances to be inquired into. I certainly repudiated making it a party question. It was made a Government question. I said more than once during the discussion that it should not be made°a party question. Captain Morris was the Government whip. I remember the case against the WaJca Maori. A Bill was introduced into the Upper House to complete an arrangement I made with the Government in reference to the Waitoa lands, and it was thrown out on the third reading. This was in 1875. I remember a Bill being brought in while I was in the Ministry to indemnify Ministers from any penalties they may have incurred under the Disqualification Act. It was brought in by the Ministers. I was previously acting for Captain Beadan in 1842 or 1843.

Mr. Haggitt: Do yon wish to offer auy explanation with regard to these laud transactions ? Witness: Yes. In reference to the transaction with regard to Captain Deaden, I have simply to say, that many years ago I was employed by the Governor, Mr. Shortlaud, to inquire into the claim of Captain Beadon, and to see if anything could be made of it. As far as Captain Beaden is concerned, I had nothing to do with his claim beyond specifying the land to be given in exchange. Mr. Haggitt: Will the Native Lands Act have the effect of influencing these transactions? Mr. Rees objected to the question, but his Honor overruled the objection. Witness: The Native Lands Act could not apply to any of the transactions. With regard to the Waitoa business, the whole subject was inquired into by a committee of the House of Representatives. They reported that the transaction was a fair one, and that I was entitled to compensation, because the Government did not carry it out. Mr. Haggitt put in the affidavit and the newspaper. This closed the case for the Crown. Mr. Rees: I do not propose to call evidence. Counsel then addressed the Court, Mr. Rees making a flowing address of three hours. The Judge summed up, and the jury returned a verdict of “ Not guilty.” Mr. Jones was then discharged. CIRCUMSTANTIAL EVIDENCE. An Australian contemporary relates the following story illustrative of the value of circumstantial evidence ?—Among the prisoners at the Pentridge Stockade who are undergoing a life sentence, the case of Niel deserves special consideration. The facts of the case are as follows : —About seventeen years ago a man named Brongtou was found dead outside his door, c rased by a gunshot wound ; and from the circumstances elicited at the trial it appears to have been as bloodthirsty a murder as stains the long catalogue of atrocious crimes in Victoria. Subsequently Niel was arrested on suspicion, as it was known he had written a threatening letter about money matters to Brongtou. Niel’s tent was searched, and a revolver found with one barrel discharged, and also a piece of a newspaper corresponding with a torn portion of paper found on the wall of Bro igton’s house, and which was supposed to have been used as wadding for the revolver which shot Brongton. This appears to have been all the evidence against Niel, who was tried at Sandhurst, and sentenced to death. Immediately after sentence of death was passed, a Mr. George Jackson made a statement to Mr. Helm, who defended Niel, that the evidence given by the sergeant of police, in reference to drawing the charges from the revolver which was found in Neil’s tent, was not true. The sergeant swore that lie drew the remaining charges, and that the paper over the bullets came out whole, whereas Mr. Jackson’s statement was to the effect that he drew the charges, and that the paper was ground to small pieces from the force of the screw. Counsellor Helm brought Jackson before Mr. Justice Poldman, who tried the case. The Judge attached so much importance to Mr. Jackson’s statement that it was decided he should go to Melbourne and attend at the meeting of the Executive Council, when Niel’s case was to be decided. Mr. Jackson repeated the statement in the presence of Sir Henry Barkley that he had made to Mr. Helm. The piece of paper, which was the principal link in the chain of evidence which convicted Niel, was carefully examined by Sir Henry, who remarked that it appeared strange, if the piece of paper was fired from firearms, that the fine edges of the paper were not burned off, and, from other appearances, that it was never fired from a gun or pistol. From this chain of circumstantial evidence at the trial, the conclusion was that Niel had loaded the revolver with the piece of paper which was found on the wall of Brongton’s house, and the corresponding piece was found under his bed in his tent. It was, therefore, on the discrepancies between the sergeant’s evidence and Mr. Jackson’s statement, together with the doubt as to the piece of paper as having been fired from a gun or pistol, and the possibility of Niel having any knowledge of it that the prerogative of mercy was extended, and the sentence of death commuted to prison for life. Since Niel’s condemnation there is strong presumptive evidence that a man committed the offence who was well known to have been intimate with Mrs. Brongtou for some time previous to the murder of her husband. Mrs. Brongton’s levity of manner in the witness box was severely commented on at the trial. What appears to be still more convincing proof that Mrs. Brongtou must have had some knowledge of the murder is that about three weeks after Niel was sent to Pentridge Mrs. Brongton and Smith disappeared from that part of the country, aud have not been heard of since, but are thought to be in New Zealand. Mr. Jackson is still in Sandhurst, and is piepared to verify the above statement as far as he is concerned in the affair.