COURT OF APPEAL.

New Zealand Times, Volume XXXIII, Issue 5515, 29 November 1878, Page 2

COURT OF APPEAL.

Wednesday, November 27. (Before their Honors Mr. Justice Johnston, Hr. Justice Gillies, and Mr. Justice Williams.) FISHER V. TRAVERS. This was a case stated by consent for the consideration of the Court. Mr. Stout appeared for Fisher, and defendant appeared in person. The case set forth :—l. The plaintiff, by deed of lease dated the 29th day of September, 1862, demised the parcel of land in Christchurch to the defendant for the terra of twentyone years from the first day of July, 1862, at yearly rents in the said deed mentioned, payable quarterly on the first days of October, January, April, and July in each year; and in the said deed is contained a covenant by the defendant that he would, within the first two years of tho term, erect buildings on the land demised of the value of two hundred pounds. 2. Tho defendant, by deed dated tho 12 th .■February, 1866, assigned the said term to one Joseph Baldwin. 3. The said Joseph Baldwin, by deed dated the 25th September, 1567, assigned the said term to ono lid ward Allen Hargreaves, by whom rent for tho said' premises was paid up to tho Ist day of January, IS7O. 4. On the 3rd day of January, 1871, the said Edward Allen Hargreaves was adjudicated a bankrupt under the Bankruptcy Act, 1857, and the Bankruptcy Act Amendment Act, 1868. 5. On the 20th January, 1871, one James Edwin Graham was appointed trustee of the estate of the said Edward Allen Hargreaves, and his appointment was confirmed by an order of this honor! able Court made on the 24th day of the same month. 6. Tho trustee did not elect to take tho leasehold premises comprised in tho lease to tho defendant. 7. The plaintiff claims from the defendant rent in respect of tho said premises from the Ist day of January, 1870, and damages for the non-performance of the covenant to build. 8. The defendant admits his liability to tho payment of rent up to the Ist day of April, 1871, being the first day after

the adjudication of bankruptcy of Edward Allen Hargreaves on which rent was payable in respect of the lease ; and also admits hi* liability to damages for non-performance of the covenant to build ; but contends, as regards rent since the Ist day of April, 1870, that the provisions of section 139 of the Bankruptcy Act, 1867, operate as a surrender in law of the term created by the lease of the 29th September, 1802, and that the plaintiff is not entitled to recover from the defendant any rent after that date. The question for the opinion of the Court is whether the plaintiff is entitled to the payment of rent after the said Ist day of April, I*B7l ? If tho Court should be of opinion in the affirmative, then judgment to be given for the plaintiff for the amount of rent from that date, to be ascertained by the Registrar of the Court, together with such damages as shall be fixed by the Registrar in respect of the breach of the covenant to build. If the Court should be of opinion in the negative, then judgment be given for the plaintiff for rent up to the Ist day of April, 1871, the amount to be ascertained by the Registrar, together with such damages as shall be fixed by the Registrar in respect of the breach of the covenant to build. In either case the cost of the action and of this special case, and all proceedings to be had thereon, are to be paid by the defendant to the plaintiff. Mr. Stout : The whole question turns on the construction of certain sections of the Bankruptcy Act of 1867. Defendant relies on the 139th section. If the defendant had been the original lessee, not the assignee, then the statute might be construed as defendant wishes, but this statute is only te be held to be a remedial statute if the lessee were a bankrupt, but not where the lessee is not a bankrupt. If the bankrupt be an assignee, not a lessee, tho statute does not rid the original assignee of his liability to pay the rent. In Gardner r. Sidey, Mae. 1051, the meaning of this section was considered. The law has not provided for such a case as this. Where there is ambiguity the Court will look at the aims and object of the statute, and the object of the statute was to relieve persons who were bankrupts from liability to covenants This case does not come within the general purview of the statute, and therefore except the Court be driven by the literal terms of the statute to give such an interpretation to it as will relieve from liability a lessee who is not a bankrupt, the Court will not favor such a construction. I admit at once if the words are to be construed literally the Court will be bound to construe the words of the Legislature as they appear in the Act. If there be ambiguity then the Court will look at the rights of other parties who are affected. Manning v. Plight, SB. and A. 211, on the construction of 6 Geo. 4 cap 16 sec. 75, where the wording is stronger than in our Act. Smith’s Leading Cases, 7 ed., vol. 1, p. 836 ; Copeland and Stevens, B. and Alderson on 49 Geo, cap 101. Who has tho right to the property till the trustee elects ! Mr. Justice Johnston : The trustees probably. Mr. Stout: Smith’s Leading Cases seems to negative it. 'Taking the two sections together Copeland v. Stevens must apply until the election. If the trustee docs nothing at all then he does not obtain the lease. Mr. Justice Johnston : He has obtained a lease of it, but cannot make any use of it. If be does not elect, then under the 189th clause the estate reverts to the previous owner—to tho lessor. Mr. Stout: I submit not. If so, the wording of the statute would be election to disclaim the same, as in the English Act of 1869, not an election to take. Mr. Justice Williams : Who is liable for the rent between the time of adjudication and the expiry of the period allowed when the trustee may elect to take. Mr. Stout: I am not called upon in this case to answer that, Mr. Justice Gillies : The clause says the bankrupt estate shall continue to be liable. That is until the trustee vests. Mr. Stout: I submit not. Under aub-sec-tien 2 the trustee must elect to take the lease by writing. If he does not elect to take he need do nothing by writing. If so, sub-section 2is meaningless. It only applies to a case where he elects to take, and the latter part of the section is unmeaning, because it is a provision as to what is to be done where he does not elect to take. The bankrupt’s estate is only liable when there is an election to take. There is no provision when there is no election to take. The section says if ho does something then something follows. Mr. Justice Gillies : No ; it follows in any case. Mr. Stout: No ; only in the event of election. I submit that the Court cannot say that the estate in a lease is vested, and also say for the purposes of the covenants that follow the estate is not vested. That is, supposing the statute does not specially provide for it. Mr. Justice Johnston : I think so. There is a bare legal estate simply for the purpose of keeping up the continuity of title. Mr. Stout : Then the statute must clearly provide for it. Sub-section 2 does not vest the estate ; it contemplates election, and in the event of election the estate will be made liable. If there is no election then this provision,' subsection 2, does not apply. As to the principle of construction to bo applied -to clause 139, Smyth v. North, 2 L.R., Ex. 242 ; Saint v. Pilley, 44 L.J. Bank. 33 ; re Wilson, L.R. 139 ; re Lywvi Coal and Iron Company, L.R., 7 Cb. p. 31. The construction of the Act on this principle would injure no one, but if it is construed the other way it will rob the lessor of his equities. Mi*. Travers : The only question in this case is whether the 139th section of the Debtors and Creditors Act, 1867, applies to the case of a bankrupt assignee of a lease, or is, as contended for by the plaintiff, confined to the case of a lessee pure and simple. It is admitted that there is language in the English cases cited on the other side which favors the latter contention ; but he submitted, if this contention were sustained, consequences not contemplated by the Act, and entirely opposed to its objects, must ensue. It is clear that under the 137th section the whole estate of the bankrupt vests in the trustee, including, of course, leasehold estates, but if the 139th section applies merely to the case of a lessee pur© and simple, then the only mode open to the trustee for getting rid of an onerous leasehold vested in the bankrupt as assignee, • and not merely as direct tenant, would be to assign, by deed, to a pauper. The difficulty suggested by the other side as likely to arise from the existtence of an under-lease, either by the original lessee or by the bankrupt assignee, if the 139th section applies in the present case, is easily disposed of. The divesting under the 139th section would operate as an ordinary surrender only; in which case mesne transactions of the character referred to would not be interfered with. See Doe and Beadon v. Pyke, 5 M. and His Honor Mr. Justice Gillies treated this as clear in Grattan v. Giles, 2 N.Z. Jurist, N.s., 213. Indeed, if the contention of the other side were correct, the 139th section would produce precisely the same results as regards the rights of an under-tenant as if it applied to the case of an assignee of a lease. He referred to Gardiner v. Sidey, Macassey N.Z. Rep., 1051. The other side relied strongly on the language of Miller and Lush, justices, in Copeland and Steven ; but be apprehended that the judgment of Bramwell, J., in that case was the sounder view, and he especially called attention to some of the language in the other two judgments as being in favor of his contention. He would also refer to Griffiths and Holmes on Bankruptcy, v01.1,p. 288, in which would be found some observations showing the inconvenience which would arise if tho plaintiff’s contention were correct. Mr. Stout; Section 188 has nothing to do with the matter, because there is no agreement to pay unliquidated damages. If the wording in the Act means surrender, then the Court will act on the English cases I have cited. Judgment reserved.

Thursday, November 28. (Before their Honors the Chief Justice, Mr. Justice Johnston, Mr, Justice Gillies, and Mr. Justice Williams.) REGINA V. BELL. Crown case reserved from Timaru Circuit sittings. Tho Attorney-General in support of the conviction. The case as stated by the learned Judgo waa as follows :—At the sitting of a Circuit Court of tho Supreme Court, held at Timaru on 13th June, 1878, Alexander Bell was tried before me upon an indictment which charged in the last count (which was the only one upon which the prosecution asked tor a verdict) that tho prisoner, on, &c., a certain revolver then loaded with gunpowder and divers leaden bullets, at and against the said J. E. Kingsley feloniously, unlawfully, and maliciously did shoot, with intent in so doing to the said J. E, Kingsley, to do some grevious bodily harm, &Q It was proved on the part of the prosecution that the prisoner and Kingsley, the prosecutor, mot in a hotel, and the latter refused to drink with the former. Afterwards the prisoner came into tho billiard-room attached to tbe hotel and spoke in a quarrelsome and threaten-

Ing manner to the prosecutor. He then went out of tho house, and shortly afterwards returned to the billiard-room, and when a person present who had been before standing between the prisoner and tho prosecutor moved away, the prisoner was seen to have something in his tight hand by his side, from which mi explosion was heard, and smoko seen to issue, and tho prosecutor felt a concussion of air near his ear as if a body was passing it swiftly. There was found behind where the prosecutor stood, in tho eloping roof of the hilliard-room, a small hole, and a small metal pellet was afterwards found on a ledge of the skirting hoard in a gap, bub not immediately in a line with the hole in the roof. When the prisoner was apprehended there was found in his bedroom a five-barrelled revolver, with threo barrels loaded, one empty, and one with part of a cartridge in it. It seemed to ha suggested by tho prosecution that the pellet found in the room had been fired oat of the barrel of this pistol, and had made tho hole in tho roof, and rebounded to the place where it was found ; but the pellet in question did not look as if it had been discharged, and a detective officer on examining tho weapon in Court found tho three barrels were loaded with conical bullets of eonsiderably larger diameter than the pellet. I told the jury that they were not bound by the theory for the prosecution, and might find the prisoner guilty even if they were not satisfied that the shot found was tho one fired, or that tho pistol produced was tho weapon which had been used. A discussion aroso on the question whether, upon the indictment as it stood, it was necessary to prove the instrument used as laid, and that it was loaded ; And I asked the jury if they found the prisoner guilty to say whether the instrument was proved as laid. The jury retired, and after being absaut some time they tendered the verdict—“ Guilty of discharging some sort of firearm in the direction of the prosecutor, bat that there was no evidence to shew that it was loaded with leaden bullets.” I asked the jury whether they were satisfied that the prisoner shot at the prosecutor ? They retired again, and after twenty minutes returned and gave as their verdict—“ Guilty of shooting at the prosecutor with some sort of firearm with intent to do him grievous bodily harm, but it was not proved to have been loaded with leaden bullets.” I reserved the question whether this amounted to a general verdict of guilty, and whether the conviction can be supported. The Attorney-General: The question arises whether in shooting with intent it is necessary to prove on indictment the instrument used in tho perpetration of the offence. I submit the verdict of the jury must be taken to mean this, that prisoner discharged a loaded firearm, but that they did not know what was the precise firearm, or tho material with ■which it was loaded ; and that finding is sufficient. The averment in the indictment describing the firearm as being a revolver is surplusage, and the fact of tho indictment having been more specific will not vitiate it if the prosecution do not happen to prove what after all is mere surplusage. King v. Kitchen, B and B. 95. Xu Queen v. Oxford, 9 C. and P. 25, the prisoner was charged with having shot at her Majesty with a pistol loaded with a certain bullet, and it was put to the jury that all they had to consider was whether there was more than powder and wad in the pistol. There is also King v. Martin, 5 C. and P. 128; King v, Coates, 6 C. and P. 394. Mr. Justice Johnston : The difficulty is that you limit the firearm to a revolver, which the jury did not find, and specifically allege that leaden ballets were used, which the jury did not find. The Attorney-General; There is another cose, Eegina v. Baker, but it is no stronger than those cited. If the jury had found the firearm was not loaded they would have acquitted the prisoner. I submit they found enough to support the indictment. Mr. Justice Johnston : Whatever the result of the case may be, I must say I think that the gentlemen who take charge of prosecutions are exceedingly careless in most districts. They constantly make allegations more specific than the law requires, and thereby endanger their cases. Judgment reserved. REGINA V. HUNTER. Crown case reserved from Christchurch. The Attorney-General in support of the conviction. Prisoner was tried on an indictment for embezzlement. The evidence went to prove there was not embezzlement but larceny. It was understood on the part of the prosecution, and the prisoner and the jury were informed, that the case, if proved, was one of larceny, and the jury were directed that on the indietment' before them they could find the prisoner guilty of larceny. The jury retired, and on their return found a verdict of guilty; and as the case was the last of the criminal cases they were discharged. The Court sentenced the prisoner to imprisonment, with hard labor, for two years. A day or two afterwards the Judge discovered that a general verdict of guilty had been entered on the indictment, and that the jury had not been asked to find specially that the prisoner was not guilty of embezzlement, but was guilty of larceny, according to the statute (Larceny Act, sec. 72). Subsequently, but before the conclusion of the adjourned sittings, the prisoner's counsel called attention to the mistake which had been made respecting the finding and entry of the verdict, and after hearing him the Judge expressed a doubt as to whether it was competent, under the Court of Appeal Act, for him to reserve, or the Court of Appeal to entertain, the question whether the conviction coaid stand, as it did not arise at tho trial, and whether the mistake rendered the conviction bad. On consideration both questions were reserved for the Court, and tho execution of the sentence respited till after the hearing of the case reserved by the Court of Appeal. The Attorney-General: 1 submit in this case that tho point was reserved too late according to tho provisions of the Court of Appeal Act. The trial had absolutely determined. Queen v. Clarke, Queen v. Webb, L.B. 1 Crown cases 378; Beg. v. Mellor and Tieroy, 468. The Chief Justice delivered the judgment of the Court; Ido not think this is a case we can take cognisance of. No doubt the trial had determined. It appears the sittings of the Court were not concluded; but tho trial of the particular case was at an end, as judgment had been delivered, and that is all that we have to do with. Conviction therefore affirmed.