SUPREME COURT.—IN BANCO.

New Zealand Times, Volume XXX, Issue 4494, 14 August 1875, Page 1 (Supplement)

SUPREME COURT.—IN BANCO.

Tuesday, August 10. (Before his Honor the Chief Justice.) The Court sat at 11 a.ra.

lIASTWELL (APPELLANT) AND THOMPSON (RESPONDENT). This was an appeal from the decision of the Resident Magistrate in a tollgate fees information. Appellant, by his solicitor, Mr. Brandon, alleged that the Act under which tolls are now levied exempts from toll all vehicles with springs. Mr. Travers, for respondent, admitted that according to the second clause it did appear so, but if other clauses were read in conjunction with the second clause, it would be seen that these were absurd inconsistencies ; and he submitted that where different clauses of an Act of Parliament were inconsistent with each other, the Court should look to the intention of the Legislature. Although the Act was rather clumsily put together, yet the intention of the Legislature was clear beyond the shadow of a doubt, and he hoped the appeal would be disallowed. Mr. Brandon replied, and said it was a rule of law that any tax or burden must be imposed in the very clearest language, and mere implication and construction could not be resorted to. His Honor remarked that it was doubtful whether a toll was a “burdenit appeared to him rather to be a “ benefit.” A burden was usually taken to be an imposition from which the people received no direct benefit, but by the proceeds of a tollgate roads wore kept in repair.

Decision reserved. BILLING (APPELLANT) AND HALFORD (RESPONDENT).

Mr. Travers for appellant; Mr. Izard for respondent. This was an appeal, on a case stated, from the Eosidont Magistrate’s Court at New Plymouth. The case set forth that the steamer Paterton, of which appellant was owner at the time, stranded in the Waitara Eivcr on the 13th July, 1871, and became an obstruction to the navigation of the said river. On 27th July appellant sold the week, and upon 10th October, 1871, a notice was served upon him, directing the removal of the obstruction to the navigation of the river. He declined to obey, and upon 23rd December he was fined in the sum of £SO, and costs. An appeal against this judgment was made, but owing to some informality respecting the necessary recognizance, it was disallowed. On 18th May, 1875, another information was heard against him for failing to remove the obstruction, and ho was again fined £SO, with costs, and he now appealed.

Mr. Travers held that defendant had been wrongly fined; first, because he was not the owner of the vessel at the time the notice had been served upon him, and having parted with possession and control, he was, according to the doctrine laid down in Brown v. Mallett, 5 0. B. Rep. 599., relieved from all liabilities incidental to possession. He contended that there was no obligation on a man who through misfortune had lost his vessel to clear away obstruction in a river. It was true in this instance that the Government had made regulations, one of which—the 42nd—declared that the person losing a vessel should clear away the obstruction, but it became a question whether this regulation had any validity, being totally opposed . to the common law on this subject. But even supposing the regulation to have force, still the proper person to have served the notice upon was the purchaser, the person who at the time the notice was issued was owner. It was impossible for appellant to comply with the direction, becaused he had parted with possession; he had transferred his ownership to another, and therefore had no right to meddle with the wreck, even had he been so disposed. It might be argued for respondent that if this doctrine were adopted, evasion of the law would bo common, because an owner could transfer his interest to a pauper ; but that was not a strong point, because as a fact it could not be known that the wreck of a vessel had in itself pauperised the owner. If the notice had been served previous to the sale of the vessel, it might be fairly argued that such disposal would not affect the rights and responsibilities of the original owner, but if ho had disposed of the vessel before the notice had been served, ho had by that act rid himself of all responsibility. He believed it was never intended that a person who had by misfortune lost his vessel should be liable to the accumulated penalties provided for under the Act, for if such were the case, it would prove a very great hindrance to business. If a vessel wore insured, the owner would be afraid to abandon—an act which must necessarily precede the declaration of total loss—because ho would render himself, liable to these accumulated penalties. During the course of his argument the learned gentleman quoted White v. Crisp, 10 Ex. Rep, 312, Maude and Pollock on Merchant Shipping 3 ed. '472-3. Mr. Izard submitted that the Court had nothing to do with the hardship inflicted on individuals, but had merely to look at the objects intended to bo gained by the Legislature. In this case the object was apparent—it was to see that all obstructions were removed from harbors or rivers. Thu power of the Government which, after all, was practically the power of the Legislature, could not bo controverted, and the real substantial point at issue was whether or not the penalties sot forth in the 42nd section of the Act applied only to the person who was owner of the vessel at the time the information was laid. He submitted it was not so, because if that were the intention of the Legislature, nothing would be more easy than for the owner at the time of the wreck to transfer his interest to a man of straw, and so defeat the object of the regulations. The cases cited by his learned friend had reference only to respective rights and duties between individuals —that was to say, if a private individual lost his vessel by misfortune he was not responsible to another private party for the clearance of a river or harbor, and all the cases quoted were merely in support of the doctrine. That was widely different to the case of statutory duties imposed upon an individual by the Legislature. It was not possible for a person upon whom the Legislature had imposed statutory duties, to get rid of his liabilities by disposing of the object by means of which the

statutory obligation imposed had been made. By parting with the object he could not also part with the liability. If that were the case there would be no possibility of freeing harbors from wrecks, and the cases cited had no bearing on the question at issue. In England the system was altogether different to what it was here. There it was usual to remove the obstructions, sell the materials, and hand over the surplus to the owner, but here an accumulation of penalties was fixed to compel the owner to remove the obstruction.

His Honor pointed out that in England in some cases it had been held it was the duty of the river conservators, or whatever the authorities might be termed, to dispose of the property as they thought fit, without reference to the owner.

Mr. Izard proceeded with his argument, asserting that it was not possible for the owner to rid himself of responsibility. He who committed the original wrong was responsible for consequential damages. He could find no cases on all fours with the present, because of the difference in the practice in England and here, but could support his allegations by reasoning by analogy from cases concerning the erection and abatement of nuisances. He then quoted 2. Addison on Wrongs, 137 ; Roswell v. Prior, 6 Modern Reps., 630 ; Thompson v. Gibson, 10 L.J. Ex. 330 ; Rex v. Pedley, Adolphus and Ellis, 822. As to the legality of cumulative penalties, ho contended that for successive offences successive penalties could be imposed, as would be seen by Holmes v. Wilson, 10 Adolphus and Ellis, 503. He submitted that appellant clearly was liable. His Honor : When do you say he became liable ?

Mr. Izard : When the obstruction first commenced. Although the penalties would not accrue till after notice had been served upon him, still the offence was committed when the obstruction commenced, and continued so long as it remained in the river. His Honor ; I do not think so.

Mr. Izard, on the authority of the cases he had submitted, contended that appellant had become liable the moment the obstruction commenced.

His Honor: Would not the purchaser become liable ?

Mr. Izard : there is nothing to make him liable. There is nothing to prove his responsibility. The only rational interpretation to be put upon the words of the Act was that the owner at the time of the wreck was liable. Mr. Travers having replied, His Honor said he should reserve judgment. After partially hearing a case, Hughes •v. Ellis, the Court adjourned. Wednesday, August 11. (Before His Honor the Chief Justioe.) The Court sat at 11 a.m. HUGHES (APPELLANT) AND ELLIS (DESPONDENT). The arguments in this case, which had been partly heard the previous day, were proceeded with. The appeal was from a decision of the Wanganui Eesideut Magistrate’s Court in a ease Ellis v. Hughes. The facts briefly that respondent had placed in the charge of appellant a number of sheep, but on going to receive them back, a number were found to bo missing. Respondent thereupon sued appellant for the sum of £B7, an item in the bill of particulars being £lO 10s., expenses incurred in getting in some of the sheep which had been lost, for which sheep, having been regained, lie did not sue. The Bench found for respondent, and gave a general verdict for £37. Mr. Bell, on behalf of appellant, did not deny carelessness, or object to being called upon to pay for the sheep which had been lost; but argued that the item of £lO 10s. was inadmissible, and that as the Court had given general damages, the finding was bad, and must be quashed.

Considerable discussion ensued between his Honor and Mr. Bell, the learned Judge being unable to see the force of the argument against the judgment, as he thought the item legitimate. He put a supposititious ■ case: Suppose he had employed a man to carry a box of gold, and the man through carelessness dropped it into the water. If in such a case he employed a diver and regained the box, would not he have a claim upon the negligent man for the expenses incurred in the employment of the diver ? Mr. Bell thought not. Ho should lot the gold remain in the water, and sue for the full value. His Honor ; And risk whether the bailee was able to pay the money or not. He could not agree with Mr. Bell. Mr. Bell said he relied upon the doctrine laid down in the case Hadley v. Braxendale, 9 Exch., 341.

After some few remarks by Mr, Hutchison, his Honor dismissed the appeal. ESTATE or C. HATFIELD (PETITION OP THE PUBLIC TRUSTEE). Judgment was reserved in this case, it being a question whether or not the infant parties should be represented by some person other than their guardians. WHITELOCK V. PARSONS In this case application was made for a nonsuit or a new trial, on the part of the defendant in the case of Whitelock v. Parsons, which was tried at Wanganui, for wrongful diversion of water. Mr. Hutchison, for the plaintiff, showed cause against the granting of the motion. Mr, Travers appeared in support of it. To the contention by Mr. Hutchison that it did not appear whether or not leave had been reserved for the granting of a new trial, Mr. Travers rejoined that the Judge in the late case had granted leave for a new trial, though such permission did not appear in the Judge’s notes; aud that this would appear from the fact that the Judge had entered in his notes certain points raised, in view of a future application for a nonsuit, and that a document had been signed by the leading counsel in the case, agreeing to this course. With reference to the question as to whether the plaintiff was actually the owner of the land, Mr. Hutchison contended that mere occupation was prima facto evidence of seisin iu fee as against the wrongdoer, and cited 1 Chitty on Pleading, 891. Mr. Travers contended that when the plaintiff in an action averred the possession of land and ownership, he was bound to prove the actual title. If a man avers that a man is seised in fee, he is bound to prove it. Mr. Hutchison cited a case tried before Justice Grcssou iu Canterbury, when the learned Judge laid down the dictum that supposing possession to be evidence of seisin iu fee, so, c converse, seisin in fee must be considered to include possession.

The learned counsel here argued at some length on the various authorites affecting the legality of diversions of water. Mr. Hutchison contended that the authorities appeared to show that the law was, that a stream might be straightened, so to speak, by the cutting of an artificial channel, so long as the riparian proprietor of the land did not suffer any injury either by deprivation of the water or otherwise. The learned counsel produced a plan of the locality, showing the course of the natural stream forming an arc, while the artificial cut or channel formed the chord ; and cited the following cases to show that a stream of water might bo straightened by an artificial out, provided the riparian owner sustained no damage by deprivation of water or otherwise: — Arkwright and Gill, 5 Mcesom and Wclsby 231, cited and approved of in Wood v. Ward, 3 Exch., Hep. f>7G. Ho also cited the following cases as showing the distinction between temporary watercourses and those cut in substitution of a natural stream ;—Ctavid v. Martin, cited in Wood v. Ward, 19 Com. Bench, H.S., p. 750; and Lord Campbell’s judgment in Becstou v. Weit, 5 Ellison and Black, 989 ; and Bosley against Shaw, Scott’s Hep., 208, as to straightening a devious stream.

Mr. Travers pointed out the legal distinction between created and natural streams. A discussion here ensued as to the actual facts of the case with respect to the alleged wrongful diversion of tho water, when Mr. Travers said that Judge Johnston did not mark on tho plan the exact point at which the alleged diversion took place, and stated that he was content to let tho case stand over, with the Court's permission, for trial before Judge Johnston in the Court of Appeal,

Mr. Hutchison submitted that should plaintiff succeed in obtaining a verdict, the defendant would have to pay legal expenses. The opposing counsel being agreed, His Honor ordered the case to be sent up to the Court of Appeal. TRIBE -VXD WATT, It appeared that in this case the appellant brought two actions simultaneously against the respondent, one in the Supreme Court, the other in the Resident Magistrate's Court, to recover £SO for three mouths’ salary as newspaper editor and manager. The Resident Magistrate finding, as a fact, that the defendant sued iu the Supreme Court for the same cause of action sued for in his court, dismissed the suit, as he considered that there was evidence of estoppel. Mr. Hutchison appeared for the appellant, and Mr. Travers for the respondent. Mr. HutcCison pointed out that the Resident Magistrate ought not to have admitted the sealed order of the Court as evidence per se. Evidence ought to have been taken as to the identity of the parties, and to show that the cause of action before the Court was the same as that named in the order. He cited British Life Assurance Co. ap., Adam Ward resp., 17 Com. Bench 0.5., p. G 52. He contended that it was absurd to say that because there was a sealed order of the Supreme Court bearing the same names therefore the Resident Magistrate was justified in dismissing the case.

Mr. Travers contended that with certain reservations a Resident Magistrate was privileged to determine what evidence should be admissible in his court, and that the appeal in the present case constituted a question of law, and not a question of estoppel or no estoppel.

After some further discussion between the learned counsel, his Honor reserved judgment.

Thursday, August 12. (Before his Honor the Chief Justice.) The Court sat at 11 a.m. HASTWELL (APPELLANT) AND THOMPSON (RESPONDENT).

Mr. Brandon, for appellant; Mr. Travers, for respondent. His Honor gave judgment, and said : In this case the question is whether a four-horse four-wheeled vehicle with springs and narrow tires is liable to any toll under the Wellington Tollgate Act, 1872, or the Wellington Tollgate Act Amendment Act, 1873, and it turns upon the effect of, and the construction to be put upon those Acts. The Act of 1872 has a schedule with two parts—the first part imposes a toll on a variety of subjects, amongst others, and expressly, four-wheeled vehicles without springs drawn by one horse, and four-wheeled vehicles with springs drawn by one horse, with an increasiug toll in each case in respect of each additional horse drawing such vehicles ; and it is provided in the schedule that in respect of broad-wheeled vehicles only one-half the fixed tolls shall be demandable. The second part of the schedule provides only for the case of four-wheeled vehicles with narrow tires, drawn by four or more horses, and fixes the toll to be paid in respect of such vehicles. The third section of the Act provides that the tolls to be taken until the Ist of May, 1873, shall be there stated in the first part of the schedule, and that on and after that date the toll in the second part shall be charged for the vehicles mentioned in the second part, in lieu of any tolls chargeable therein under the first part. The first part of the section expressly provides that the tolls in the first part of the schedule are to be leviable until the Ist May, 1873, and the second part of the section is equally clear and precise that the tolls mentioned in the second part shall be chargeable on and after the said Ist May, on the vehicles and animals therein specified, and that the tolls which are so chargeable from the Ist May shall be in lieu of tolls chargeable in respect of the like subjects under the first part. Therefore on the Ist of May, 1873, the tolls chargeable under the second part of the schedule on four-horsed four-wheeled vehicles with narrow tires, and whether with or without springs, become chargeable in lieu of the tolls theretofore chargeable under the first part on four-horsed four-wheeled vehicles with narrow tires—that is to say, the tolls specified iu the first part as chargeable on such vehicles, ceased to be chargeable on the 30th April and from the Ist May, 1873, the only tolls chargeable on fourhorsed four-wheeled vehicles with narrow tires were the tolls specified in the second part. But on the 9th May, 1873, the Superintendent assented to the Ordinance called the Tollgates Amendment Act, 1873. The second section of that Act repeals the second part of the schedule to the Act of 1873, and provides that certain other matter shall be in-' sorted in the Act of 1872 and read as part of that Act. The matter to be inserted, so far as it applies to the present case, is headed “ third part.” And then follows a statement of tolls to be levied after the Ist November, 1873, on four-horsed four-wheeled vehicles without springs and with narrow tires, but imposes no new toll on similar vehicles with springs, nor does it reimpose the toll chargeable on such vehicles by the Act of 1872. It does not do so in express language, nor is there, in my opinion, anything in the Act of 1873 from which such reimpositiou can be implied. The result is, that the Act of 1873 repeals the provision in the Act of 1872 which imposed a toll on four-horsed four-wheeled vehicles with springs and narrow tires, and did not reimpose any duty on such vehicles. The 3rd section of the Act of 1872 provides that all the provincial Acts relating to tolls are to be read as if the rates fixed by that Act had been fixed thereby. The Kaiwarra Tollgate Act is the Act which applies to the road on which the toll iu the present case was demandable. That Act and the Tollgate Amendment Act, 1872 and 1873, being read together, I think that at the time when the tolls now in question were demanded there was no toll demandable at the Kaiwarra tollgate in respect of four-horsed four-wheeled vehicles with springs and narrow tires. Mr. Travers’s argument that as the Legislature, by the third section of the Act of 1873, recognised the existence in force of a certain provision iu the first part of the schedule to the Act of 1872, the whole of that first part must be deemed to be still in force, notwithstanding that the third section of the Act of 1872 expresses the time until which it was to be in force, namely, Ist May, 1873. Whether that argument has any force in respect of the tolls fixed by the first part on vehicles not expressly provided for by the second part, it is not necessary to decide. It is sufficient in this case to decide that the provision dealt with by the third section of the Act of 1873 does not affect the present question. The judgment of the Court is, therefore, that the appeal be allowed, with costs. His Honor added that when the matter was previously brought before the Court of Appeal this point had not then been raised, but it was stated what opinion the Court would hold if it were raised, and he had therefore hoped to see the parties interested get some further legislation on the subject. Mr. Travers said he had advised that course. TUIIIE rPELT.AXr) AND WATT (eESTOXCEXT) Mr. Hutchison for appellant ; Mr. Travers for respondent. In reference to this case, which had been argued the previous day, His Honor said : I have looked through the authorities cited by counsel on each side, and also other authorities, and it scorns to me that the question whether there was “any evidence” upon which the magistrate could give his decision, is a matter of law, and I consider if there is no evidence upon which a magistrate can act, that must be deemed to be a,proper ground of appeal. In this case it has been admitted, and I am inclined to think that had the case come before the Supreme Court the Court would have decided that there was no case to go to the jury on the issued raised, viz., whether there was estoppel. Therefore, the Court the appeal, with costs. The same decision has been given in cases in England. Whilst on the subject I may say that gentlemen assisting Resident Magistrates to state cases should call attention to the necessity of pimply stating the facts proved and the inferences tiie magistrates draw from those facts. This Court can then consider whether the judgment arris cd at by the court below is correct in law. An application for costs, in the court below, made by Mr. Hutchison, was refused by his Honor, on the ground that the case had not yet been decided upon its merits, and the result yet to be arrived at would decide the question of costs.

SOMERVILLE V. GROVES. An appeal in this case was partly heard, but was eventually made a remanet, in order that the case from the Resident Magistrate’s Court might be stated more completely. OAKES V. SIRACHAN. This was a motion asking the Court to grant defendant further time for pleading, if was alleged that, owing to judgment having been entered up prematurely, defendant had been debarred from pleading, although he was ready to file an affidavit that he had a real and substantial defence. It seemed there was no definite rule as to what time should be allowed for pleading after amendment of declaration, although the general practice of the Bar in Wellington was opposed to the course which had been followed in this instance. At the suggestion of his Honor, Messrs. Hutchison aud Travers, counsel for plaintiff and defendant respectively, agreed to consult and see if an arrangement could be come to on the matter. The Court then adjourned.