SUPREME COURT.—IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5430, 22 August 1878, Page 2

SUPREME COURT.—IN BANCO.

Wednesday, August 21. (Before Ins Honor Mr. Justice Richmond.) IN RE GTLLON EX PARTE JI'ICIRDV. Mr. Barton applied for a rule nisi to set aside an order of adjudication of bankruptcy made in this matter. ' After considerable argument as to whether or not Sir. Saunders was a partner, the Court ruled that Mr. Barton’s application must be brought on as a distinct motion upon notice. , DILLON V. MACDONALD. Judgment was delivered in this case, granting a decree in this suit, the decree to declare the partnership dissolved as from the commencement of the suit, and to direct an account. KAWATINI V. KINROSS. The demurrers in this case were overul-nl, with costs. TAYLOR V. PALMER. Mr. Gordon Allan moved for a decree in this suit. —The motion was granted by consent of Mr. Izard for the defendant TAUIKI V. KINROSS This was plaintiff's demurrer to defendant's plea in one nf the numerous actions relating to native lands in Hawke’s Bay. Mr. Kees and Mr. Bell appeared in support of the demurrer, Mr. Conollyand Mr. Chapman in support of the plea. Judgment was reserved. LEACH V. JOHNSTON. In this case Mr. Barton had asked for a rule nisi to discontinue the action without costs.—Tho rule was refused. KAWATINI V. Sl/ITON. On the application of Mr. Bell for plaintiff, the demurrer to the replication was overruled, there being no appearance for defendant. RINGANOHU V. SUTTON. This was a demurrer to replication. Mr. Bdl submitted to the demurrer to the replication, but took objection to the pleas. Mr. Conolly and Mr. Chapman appeared in support of tho pie »s. Judgment was reserved. DOHERTY V. THE EDUCATION BOARD TOR THE DISTRICT OP WELLINGTON. The Court gave judgment in this case, discharging tho rule, with costs, as follows In this case the defence was that the plaintiff, who was a teacher, appointed under the Education Act, 1877, had been guilty of gross misconduct within tiio meaning of the 17th section of the Act. justifying his peremptory dismissal by the Board. The alleged misconduct mainly consisted in writing certain letters to the Board and its secretary, Mr. Leo, who is also Inspector of Schools for the WclUngtona educational district. The 47th section Impliedly authorizes the Board to dismiss peremptorily any school teacher for immoral conduct or gross misbehavior. I told the jury that in my opinion the plaintiff’s letter of 4th March, 1878, addressed to tho secretary, was incompatible both iu tone and substance with the plaintiffs position—that it was a plain act of insubordination, and that it was for them to say whether it amounted to what tho statute calls gross. I further told them that the term “gross misbehavior” as used in the 47th section meant sometlrng different from immoral conduct. The jury found for tho plaintiff. It has now to be decided whether I was right in leaving tho question to them in tho manner above stated. In Mr. Manley Smith’s book on Master and Servant there is a remark cited with approbation by Mr. Baron Bramwell in the case of Horton v. McMurtry, 29 L.J. . Ex 200. The author writes, at page 70 (2nd edition), ; “It is difficult to lay down any general rule ns to what will justify the discharge of a servant, which shall comprise and be applicable to all cases, since whether or not a servant iu any particular case was rightfully discharged, must, of course, depend upon the nature of the services lie was engaged to perform and the nature of his engagement/’ Horton v. McMurtry was a case iu which tho question of a servant’s misconduct had been left to tho jury, and Baron Bramwell quotes tho passage I have just read ns a reason for approving of the course which had been adopted. Few actions are brought for wrongful dismissal which do not illustrate Mr. Smith’s remark. No law could possibly furnish exact definitions of tho duty of tho employed to tho employer in all tho varying cases of daily occurrence. In a simpler condition of society, when tho relations of men to , one another were determined by the law of status, this was possible. Not so at present, when tho terms of Jemploi'iuent are .a matter of contract. In general it has first to bo determined as a matter of fact what was tho contract of the parties, express or implied, and then as a matter of fact “has there been a breach of it on tho part of the servant'/’ The old law defining tho rights and duties iucidont to a particular status affords little assistance. It is easy to say that such and such arc tho reciprocal duties of master and servant; but a prior question is continually occurring, whether tho relation of master and servant in fact exists. To comoto the facts of the present case, I cannot find that either in tho Act or in the regula ti ons made under tho Wellington Ordinance there is any precise definition of tho duty of tho school-teacher towards the Board or tho Inspector. It is left to bo determined by custom, common sense, and experience. A jury must, if need be, decide what are tlu precise duties undertaken; and it is therefore impossible to withdraw from them the question whether, on the facts of tho case nis proved or admitted, there has been a breach of those duties. It is said that as the alleged misconduct was evidenced by letters admitted to have boon written and sent by the plaintiff, I ought to have treated tho question as one of pure law The argument, In fact, was identical with that of the opponents of Mr. Fox’s Libel Act. Publication being proved, the question “libel or no libel” was, it was argued in that celebrated case, for tho Court, and not for tho jury. Perhaps on the more technical ground the opponents of the Bill had tho best of tho argument. But that case and this are not similar, because in the case of a libel the Judges had a legal definition which they could apply to tho wrltion document set forth on tho record, and applying this criterion, could say whether tho particular writing foil within tho definition. Here the law affords, as I have said, no definition of the duty of tho plaintiff towards tho defendants in tho particular relation in which they stood. There is another ground on which I think it was proper to leave the question to tho jury. The terms of tho 47th section raise a question of degree. To justify peremptory dismissal there must bo gross mlsbohuvior. 1 The term “gross,” as 1 have several times remarked, is hero quantitative, not qualitative. It only moans “very groat,” and not carry tho sense of Impurity. I know not what legal test can bo applied to resolve such a question of degree. Of terms like these Mr. Pitt Taylor observes (Taylor on Evidence, § 24). “Their meaning is subject to indefinite fluctuation according to the varying circumstances of each particular case,” and lie goes on to say, “-Consequently they defy all attempts to compress them within exact a■ }>riori definitions." This marks such expressions us fit for tho interpretation of a jury, raising asjthoy do “ questions rather addressed to tho practical oxprienceo of practical men than to tho legal knowledge of the mere lawyer.” It would bo impossible, and quite useless, to attempt to discuss oven a small proportion of the decisions which bear on the point in question. There is, however, one notable class of cases in which it might have boon’ thought that the Judges woutt have taken to themselves the ultimate decision bq soon as tho facts had been ascertained by tho jury, yet in which they have loft tho matter to tho jury. I refer to actions acalnst attorneys for professional negligence. In tho case of Hunter v. Caldwell, 10 Q. 8., 09, 5.0., 10 L.J., (i 8.. 274. tho Court of Queen’s Bench laid down tho law in these terms;—“lt was the province of tho judge to Inform the jury for what species or degree of negligence on attorney was properly answerable, and what duty iu the case before (horn was c;\3t npcm

him. either by tha statutes or the practice of the Court; bub having done this it was right to leave to them to say. considering al 1 the circumstances and the evidence of the practitioners, whether in the first place the attorney had performed his duti', and in the second, in case of non-performance, whether the neglect w -s of that sorb or degree which was venial or culpable in the sense of not sustaining or sustaining an action.” The current of modern authority appears to set strongly in the direction of leaving to a jury ev’rtry question which can be regarded as a m tter of opinion, determinable by ordinary experience of life and the habits of society. I would refer particularly to the late cases in the House of Lords of Bridges v. Northwestern Railway Company, L.ll. 7, H.L. 218, and Lister v. Perryman, L.R. 4, H. u 521. In the case of Jackson v. Metropolitan Railway Company. 3 Ap., Cas. 125, the House of Lords explains, but does not depart from, the decision in the cas>» of Bridges. Of the cases cited in argument I feel it necessary only to notice one, Mo gm v. Savin, IQ. La w Times Hep. (k.s.), 383. That was an action for wrongful dismissal brought by a contractor’s engineer against his employer. The misconduct alleged as the giound of dismissal was the plaintiff's refusal, conveyed by letter, to come up from South Wales to London when requested so to do by his employer. Mr. Justice, WiUes is reported to have said : “As the terms of the engagement between thopl dntiff and defendant wore in writing, ami also the documents by which his alleged misconduct w»s proved, the case became one of law, to b * decided by the Court alone.” Again the learned Judge is reported as saying; “ Everything is proved by the written documents. My opinion is that a master has a right to d smiss his servant (though I don’t know whether the tenm master .am! servant are applicable to such a case as the present) if that servant vyilfully disobey 1m master's order. . . On the written documents I 'hvuk the question is one of law, and that there is no evidence of wrongful dismissal to go to the jury. I think there was a lawful commmarid, wilful disobedience, and no condonation.” It is difficult to understand how the learned Judge saw h : s way to apply the law of master and servant, as he seems to have done, whilst confessedly uncertain whether that was the relation in "bich the parties actually stood to each other. I venture to think that the exact-duty of a contractor’s engineer to his employer was tit matter for the consideration of the jury. Possibly the written documents made it clear that there had been a breach on the part of the plaintiff of a defini'e engagement. If so, that case cannot rule the present one. This case is at all events only a ruling at nisi priiis. It went before the Court in iianro, 10. haw Times (t'. s.), 457, but as the Court was empowered to draw inferences of fact no question arose as to whether the learned Judge had acted properly in withdrawing the case from the jury. Were I disposed to accept the decision as an authority (which I cannot) it would yet leave untouched the second reason I have above assigned for my conclusion that the question in the present case was for the jury—namely, that it was not a positive question, but one of degree. The rule must be discharged, with cents.