RESIDENT MAGISTRATE'S COURT.

Southland Times, Issue 1553, 19 March 1872, Page 2

RESIDENT MAGISTRATE'S COURT.

.«. (Before Messrs H. WCvltjOOß, R.M., and Ps*« CHELL and Daniei, J.P.'a) ♦ RIYEBTOW, WEDIfE3DA.Y, MABOH 13th. THE BIVERTOS FEBBY DISPBTB. Simpson v. M'Gillivray. — This case arose out of the dispute which has been going on for some time past between the Municipal Corporation of Riverton and certain parties claiming right to ply for hire on the river to and from South Riverton. The plaint note was as follows :— " Riverton, March Ist, IS72.— Lachlan M'Gillivray, Esq., to C. H. Simpson. — Damages incurred by malicious advertisement of Aparima Ferry on February sth, 1872, £12." Mr James Harvey for plaintiff, and Mr F. W. Wade for defendant. Mr Wade took exception to the Bench as constituted. He stated that while he had no personal objection to either of the gentlemen to whom he was about to allude, certain facts had come to hia knowledge which led him to believe that their Worships, Messrs Petchell and Daniel, had to some considerable extant identified themselves with these proceedings. It was very desirable, as the Court would no doubt admit, that not only should justice be impartially administered, but that the constitution of a judicial tribunal should be such that no room should be left in the minds of the public for wen a shadow of doubt that the decision of the Bench was arrived at before the case was heard. He again disclaimed any personal feeling against either of the justices, but suggested that if they would consent to leave the Bench, the ultimate decision of the Court would be more satisfactory to himself, his client, and the public. Mr Petchell — I have done nothing whatever to prevent me retaining my seat, and doing impartial justice in the case. . ■'*. Mr M'Culloch — The application is one entirely for consideration by the gentlemen themselves. Mr Daniel also asserted that he knew of no grounds for the application, an-i eventually both justices stated that they had decided upon retaining their seats. On the caae being proceeded with, Mr Wade objected to the jurisdiction of the Court, on the ground that the action appeared on the face of it to be one for libel, and could not be adjudicated in the Resident Magistrate's Court. ; Referring to the plaint note, he - said that its | averments were that certain damage had been sustained by plaintiff in consequence of a malicious advertisement published by defendant relative to the Aparima Ferry. Section 19 of the " Resident Magistrate's Act, 1867," after enumerating the cases in which the Court had jurisdiction, went on to say — " Provided also that no Re.-Uent Magistrate's Court shall take cognizance of any claim or demand in which the validity of any devise, bequest, or limitation under any will or settlement, or except as thereinafter provided in which the title to land or other hereditaments is in dispute, or of any action for falsa imprisonment, or malicious prosecution, or libel, or slander, or criminal conversation, or seduction, or breach ef promise of marriage.'* He proceeded to show that by the reading of the plaint note the action was in reality brought to recover damages in respect of, ah alleged libel. " ! Mr Harvey explained that the plaint note had not been framed by either himself or any other professional man, which accounted for 'any apparent defect that might appear on the face of it. He applied to have the word " malicious* struck out, and contended that the action "otherwiae could not be construed as being one for libeL Mr M'Culloch remarked, that jthe,'.apitioii did ** not appear to him to be one;for~iibeL : ; Mr Wade— lf then the plaintiff claims damages for defendant's interference by force- or. fraud with the free exercise of plaintiffs-t rade; or oc- ' cupation, or means of livelihood,' I plead that defendant, as Mayor of RiTerton, has a^title. to ... the lease of the Aparima Ferry, which ;he;^ha» leased, or agreadto i 1ea83,.t0 one J^ r Jft. cWatson, and that the plain tiff bad nb : tit!e/to' ttiej"fei : ry,'or any right to ply thereon. I contend that the Court has no ' on" the ground that a ferry is a hereditament within the meaning of the section of the Act before quoted. Counsel drew the special attention of the Court t j the wording of the Act, " land or other hereditaments," and argued that if he could show that a ferry was a hereditament r the question of title being involved, the case wan clearly one beyond their Worships' jurisdiction. In supp'orttofchis argument, he referre I to Stephens'* Commentaries, rol. 1, p. 171, in which the author, quoting Sir Edward _ Coke, defines a hereditament as follows :— " It includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal, or mixed," and further, " hereditaments then are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses, euoh as may be Been and handled by the body. Incorporeal are not the objects of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation. If we apply the word hereditaments to the reality only (which is its most ordinary use) corporeal hereditaments are in fact the same aa land ; incorporeal are the rights and profits annexed to or issuing out of land." Counsel went on to say- — The expression, then, land or other hereditaments, as employed by the Act, palpably means corporeal or incorporeal hereditaments. In further application of the argument, he (Mr Wade) cited from p. 647 which states: — "In the account given of incorporeal hereditaments by Blackstpne, he takes specific notice of advowsons, tithes, commons, ways, offices, dignities, franchises, <fee., and at p. 663, alter enumerating four otker species of franchise, says:— "lt is a franchise, to have a fair or market, ferry, or the like with the right of exacting tolls therefrom." Upon these rulings counsel submitted that having shown that a ferry was a franchise, and a franchise a species of incorporeal hereditament, if he succeeded in showing that defendant or his lessee had a title to the ferry in question, this Court could not try the action as brought as to which of the contending parties' titles prevailed. An application made by defendant in his capacity of Mayor for a lease of the ferry, together with a telegram from the Provincial Government agree* ing to grant the same, was. produced and read. A question arose as to the admission of the copy of the application. Eventually it was admitted upon a representation being, made that counsel had only been instructed by letter the previous evening, and that he had not had an opportunity of seeing the summons until that morning, and consequently had had no opportunity for producing the original. Mr Wade urged in conclusion that these - documents constituted an agreement for the lease, and formed a good equitable, if hot a legal, title. That however was not a point which this Court had jurisdiction to try. . . ■ * ~ Mr Harvey replied. He admitted the arguments adduced were ingenious, but contendod that they were inapplicable to the case uipbint^ , One requisite to constitute a hereditament had «

been omitted. It had not been asserted that the lessee's title, to the ferry could be inherited, and that consequently his interest was not a hereditament within the meaning of the Resident Magistrate's Act. Mr Wade— lf the ferry itself be a hereditament, which it clearly is, the nature of the estate of the lessee therein is of no consequence. My friend's arguments would apply equally well to a dispute between any two persons, each claiming to have an estate for years, and not of freehold in land. The Court reserved its decision on the point until the question of title should be raised in tho course of the hearing. Mr Harvey then called tho plaintiff, Charles Simpson, who deposed— l am a licensed waterman conformably to license produced. My license ia for the port of Riverton, though on the face of it it bears to have been granted for the port of Dunedin. Tho Court — The license, then, is granted for the port of Dunedin ? Witness — All the licenses are made out for the port of Dunedin. The form is printed for tho port of Dunedin, and the Government has not taken the trouble of striking it out. Examination continued — My boat 3 were inspected by the Harbor Master of Riverton, aud found sufficient. I have been plying since the year 1868. I claim damages on account of the advertisement now produced. It was not inserted in the newspapers, but posted on a conepicnous part of the town. It reads as follows : — " Public Notice. — Io all whom it may concern. — I hereby intimate that information has been received by me, officially, that the Aparima Ferry was duly proclaimed on the 24th June, 1862, and all persons are hereby warned that none but the lessee can legally f;ly thereon.— L. M'Gii.litbay. Mayor, by authority from the Town Council." I saw that notice on the date labelled. I hay« suffered loss in consequence. Until the notice was posted, no other boat was plying for hire. Watson then put on two boats for hire. I claim the exclusive right of plying at the date labelled. My average earnings were 12b to 14s per day, but when "Watson commenced to ply they did not exceed 3s to 4s. The Court — Then your loss has been 9a per day? Witness — I consider my actual loss has been 12s to 14s. Cross-examined— l have no other license but the one produced. Mr Wade — Then you are a licensed waterman .-for Dunedin, not for Riverton ? The Court — It is palpably a clerical error on the part of the licensing officer. Mr Wade — If it is a clerical error then it ought to be amended. Plaintiff may just as well claim to be a licensed waterman for the port of Oamaru as well as Riverton. Cross-examination continued — Watson commenced to ply his boats for hire immediately on . the notice being published. lam certain that it •was in consequence of the notice complained of that he did co. Well, that is only an inference on my part. I do not know that Wateon ib the person referred to as lessee in the notice. No other person commenced plying to my knowledge in consequence of that notice. I have a lease of the ferry. I cannot produce it, as I lent it to a member of the Municipal Council. I •ent it to them at their request, but I do not remember to whom it was given. I have made inquiries about it since, but I have not received it back. Ido not know that defendant has or ever had itMr M'Gillivray — T have not got it, nor do I remember of ever having seen it. Mr Wade— Do you still claim right to the ferry under that lease ? Witness — No. The lease has expired. The lease expired on 31st August, 1871. I occupied the ferry for three years under that lease. Mr Wade — Do you claim an exclusive right to the ferry, or do you claim the right of plying there in virtue of your waterman's license ? Witness — I now claim only by virtue of the license. But I claim the exclusive right to 17th February, as being the only licensed boatman. My loss was 12s to 14s per day. These were my earnings before the notice was posted. I had not been plying for some time previous to the sth of February. I did ply on the 3rd and 4th. The first day was a Saturday. I commenced at 11 or 1% o'clock. The next day — Sunday — was wet. That day I made 12s. On the Saturday I might make 5s 6d or 6s. These two days do not give a fair average. Mr Wade: — Did you not commence plying on those two days under advice, for the express purpose of enabling you to claim damages from the corporation, knowing they had agreed to • lease the ferry to a higher tenderer than yourself? Witness — No, I did not. Mr Wade — Had you no conversation with Tall on the subject ? Witness — I have no recollection. Mr Wade — Did no one now in Court give you advice other than your solicitor ? Witness — Nobody that I know of. I may have spoken to Captain Tall on the subject, but to no other person now in Court. From sth to 26th February I continued to ply, my average earnings being 3s per day. The Court — Did you keep accounts ? Witness — Rough accounts, retaining them in my memory. To Mr Wade — During the three weeks in question, I made from £3 to £3 10s. John Tall, examined by Mr Harvey. — I am Harbor Master at Rivertoii. Plaintiff is a licensed waterman at the port of Riverton. The port extends 3 miles beyond the flag-staff. The Aparima Ferry is situated within the limits of the port. I cannot produce the proclamation of the port. Watson is now a licensed waterman. His license is dated on the 16th or 17th February. I gave the license to him under instructions from the head of my department. Watson was plying with other boats besides his licensed boat. He was plying 4 or 5 months before February. By Mr Wade — Watson was not licensed until the 16th February. lam sure he was not licensed on the sth February. The document now produced is his license. I can explain how it hears date 18th January. It was signed by the Licensing Officer, and sent to me in blank, but with the date filled up. I did not hand it to Watson on its receipt as it was not granted on my recommendation. I retained it whilst I communicated with the head of my department. I did not retain it improperly until pressure was brought to bear on me. Mr Wade— Did not Mr Instone warn you that if you retained it, it would be at your peril ? Witness — No, he did not. Mr Wade — Did Mr Simpson apply for the lease of the ferry through yoa ? Witness— Plaintiff did not, but his brother did. Simpson made the application, and I recommended it. Mr Wade — Who forwarded it ? Witness — Simpson made it, and I recommended it. Mr Wade — Now you must answer the question. Who was it that forwarded it ? Witness— Well, MrPetchell did. Mr Wade— Just so. I see ; a nice little family party ! / Mr Petchell — No, Mr Wade ; there was no family party. The family party was on the other side. Mr Wade — Just so ; then your Worship knows all about it after all ? M* Harvey at this stage eaid that he had been retained in the case after the summons had been served, and in fact after proceedings had been instituted. From the nature of the evidence adduced he did not think that the case for the plaintiff could be sustained. He had consulted with his client on the subject, and they had decided upon withdrawing it. The case was withdrawn accordingly, defendant being allowed 21s costs. • ' ' A number of other actions and cross actions '"arising out of the ferry rights, were also with- . ,

By the same operation a man may con- . tract a debt, and stretch his credit.