SUPREME COURT—IN BANCO.

New Zealand Times, Volume XXXIV, Issue 5578, 13 February 1879, Page 2

SUPREME COURT—IN BANCO.

Wednesday, February 12. (Before His Honor the Chief Justice and Mr. Justice Richmond.) SINCLAIR V. DANIELS. The Chief Justice delivered the following judgment;—l think the injunction must be dissolved for two reasons—that the plaintiff did not, in applying, so fully state his case as he should have done, and that in moving for an injunction against a mortgagee to restrain him in exercising his power of sale on the ground that he bos already overpaid himself by prior sales, this must be clearly estabtablished, for where there is a doubt the Courtwill not interfere with the mortgagee’s rights. The costs of this motion to await the result of the action.

Mr. Justice Richmond ; I agree with the Chief Justice. On the facts now before the Court it is a moot question whether the mortgagee has been satisfied. I think if the plaintiff had established his case he would, under the circumstances, have been entitled to an injunction, notwithstanding the principle established by the English authorities that a Court of Equity will not interfere with the legal rights of a mortgagee, and that the bill must be for redemption. SELLARS (APPELLANT) V. BLAKE (RESPONDENT.) The Chief Justice delivered judgment as follows :

This was an appeal against the judgment of a Resident Magistrate’s Court, awarding damages against the master of a vessel, from which, when lying at the wharf in Wellington harbor, a rocket (a part of the stores of the vessel) was let off by the mate, and hit and injured a person on the wharf. It appears from the case that on the morning of New Year’s Day rockets and other fireworks were being let off from the vessel (it may be assumed as a token of rejoicing, and not for any purpose connected with the working of the vessel, such as signalling.) That the chief officer let off amongst other fireworks from this vessel a rocket which hit the plaintiff when on the wharf. That the rocket was part of the stores of the vessel. That the defendant was the master of the vessel, which was from England. That he was not on board at the time. That he had not given any express permission or authority for the firing ; but that he was cognisant that rockets had been discharged from his ship on previous New Yew Year’s morning at Wellington, and had not disapproved of the practice, and that on the evening in question he was at a house in Wellington looking at the fireworks. Mr. Allen, for the respondent (Blake), admitted that the letting off fireworks under such circumstances could not be considered within the scope of the employment of the chief officer as such, so as to render the owners or the master liable for his act; but he contended that the facts stated in the case were sufficient to justify an inference that the defendant had in this case authorised the chief officer to let off the rocket on the occasion in question, and that if the facts were such as to justify such an inference, the appeal must be dismissed. I have arrived at the conclusion that the appeal must be dismissed for the reasons urged by Mr. Allen. It is true that in order to establish the liability of the defendant the Court below must have been satisfied that though the defendant gave no express order or authority to let off the fireworks, nevertheless his acts were such that such an order was to be implied. The vessel was in the custody and under the control of the defendant. The fireworks being part of the stores of the vessel, were also his property, and in his custody and under his control Though not present on board at the time, he was an onlooker, It was not a single firework, but one, it may be assumed, in a continual course, occupying some time. The same practice had been followed on this vessel in previous years without objection by the defendant, The person who fired off the rocket was in his general employment; and a similar display was made by other ships._ From these facts I think the Magistrate might infer that act was being done under the defendant’s authority. It was an act which he had power to forbid and prevent, and his order or concurrence may be presumed upon the principle contained in the maxims —Qui non prohibit quod prohibere potest, assentire videiur, 2 Inst., 208; and Qui non obstat quod obstarc potest, faccre videtur, 2 Inst. 146, cited by Parke 8., in Morgan v. Thomas, 8 Exch., 30 ; and Qui potest et debet tetare jubel, Gilbert 35. The appeal is dismissed with costs. Mr. Bell appeared for the appellant and Mr. Gordon Allan for the respondent.