WESTPORT WARDEN'S COURT.
(Before J. Giles, Esq., Warden.) Tuesday, July 2. • Harold and Party v. Enricksen.— Mr Fisher, for defendant, applied for reopening of this case, upon the plea that certain facts in connection with the alleged abandonment of portion of the race in question, had not been disclosed before the District Court, and that the judge, in giving his decision, had expressed his opinion that if the defendant had done anything which might be construed into an intention to abandon so much of his right, tho complainants could not recover. He now claimed a re-hearing in the Warden's Court to provo that his client had done all that could be done to abandon the claim, and had made application to have his certificate altered to legalise such abandonment. W. Harold, one of the complainants, demurred, inasmuch as ho had been led to believe that an understanding had been arrived at between the counsel for either party, that the decision of the Judge of the District Court should be final. After discussion, consent was given by the Warden to hear evidence. Henry Enricksen, the defendant, produced his certificate of head water race in question, and stated that he remembered the fluuiing beiug blown down in the latter part of February during a heavy storm. Afterwards, about tho 30th of March, had a conversation with one of tho complainants, George Way, who t asked him, defendant, to help the party to re-erect the fluming again. He distinctly refused, telling him that he had abandoned that part of the race altogether. Had also on several occasions, told W. Harold that he refused to join in putting up fluming, and had abandoned that part of the race. Frederick Guinness, a miner, on the terrace, was present on one occasion when the conversation took place, lie, defendant, was sure that ho had. used the word " abandoned," and knew that all the complainant's party understood his meaning. To Complainant: Can't say exactly who else was present beside Way during the conversation. Think a miner named Rathsbothatn was there. Several acquaintances, miners, passed us in
Gladstone street while the conversation was going on, and might have joined in. Can't say that Peter Holme ever gave notice that fluming was blown down. "Will swear that he did not tell him, defendant, to come over to Giles Terrace about tho matter. Did not come to tho terrace to give formal notice of abandonment, because ho had given it to members of complainant's party individually. Considered there was no need of giving notice of abandonment before the fluming blow down. Frederick Guinness, miner at Rochfort Terrace, remembered hearing of the fluming being blown down, and afterwards meeting Enricksen and George Way, together, on tho 30th March, in Gladstone street. Enricksen then told Way distinctly that he would pay no part of the expense of re-erection of fluming, as ho had abandoned it altogether. He, Enricksen, said afterwards he should take his water on the south side of the creek, as he had no use for it on the north side.
By complainant Harold : The 30th March was on a Saturday. Several men were present during the conversation. Distinctly swear that Enricksen said he would abandon only a portion of the race, and did not say he would abandon the whole of it, rather that pay for any repairs. The complainant said he did not know the case would be reopened, or be would have been prepared to produce rebutting evidence. The Court granted an adjournment until Monday next at 11 a.m.
SUPREME COURT.—IN BANCO. [Before his Honor Justice Richmond.] Nelson- Fjhday, June 28. (' Examiner.') SHISTED AND ANOTHER APPELLANTS, AND MiEY CABAIIER RESPONDENT. This was a caso stated under the " Resident Magistrates Act, 1867," section, 100, upon appeal from the decision of the Resident Magistrate at Weatport. The caso stated as follows: Mary Caraher, the plaintiff in thf action, claimed £35 ss. for injuries sustained from a bullock belonging to Suisted Brothers. Judgment was given for plaintiff for £ls and costs, upon which defendants appealed. The defendants had purchased the bullock, which was an imported one, immediately before the "injuries complained of, and it was contended on their behalf that there was no knowledge on their part of any dangerous propensities in the bullock. The bullock in question, on leaving the sale yard after being purchased by defendants, had crossed the river apart from the other cattle, and was followed by Mr Seaton, the importer, who ceased to follow him before he was clear of the town, and immediately before the injury occurred. Mr Seaton said that " the bullock looked lively coming down, but he thought he was safe when ho was past Stitt's." He also said " that a single bullock was moro apt to be dangerous than one in company." It was held by the Resident Magistrate that this was evidence that the defendants had some knowledge, through their agent, Mr Seaton, that the bullock was' likely to be dangerous, and that proper care had not been exercised in driving it through the town. The question for the Supreme Court was, whether there was any evidence of such knowledge on the part of the defendants.
Mr Fell appeared for appellants, instructed by Messrs Pitt and Fisher. Mr Albert Pitt appeared for respondent. Mr Fell contended that no question of negligence arose in this case, which turned solely on the scienter of the appellants. Whoever keeps a mischievious animal (either domestic or ferae naturce). with knowledge of its mischievous propensities, is bound to keep it secure at his peril. The appellants were owners of a certain bullock, which may have had mischievous propensities," but, to make the appellants responsible for its actions, they must be shown to have had previous actual knowledge of these propensities, and to have still retained the animal. The only evidence of their knowledge lay in the statements made by Seaton, and they could not be construed to mean such a knowledge. And, if they could, then the Magistrate having stated that this knowledge of the appellants was derived through their agent, the agency being a link of that evidence, the Magistrate should have stated the grounds upon which he found the agency, whereas in fact there was nothing whatever in the whole case to show any connection between the appellants and Mr Seaton, nor that they had retained the animal after becoming aware of its dangerous propensities. Further, that there was no evidence to show the nature of the injuries complained of; and a propensity to gore people was not a necessary inference from the knowledge that the beast was " lively," and likely perhaps to rush into a shop front. Mr Fell admitted that the question of scienter was one for a jury, but that if there was no evidence whatever from which the Magistrate could have drawn his conclusion, the Court would review it, though upon a question of fact. Mr Fell also criticised the caso, complaining that it was so insufficiently stated that tho Court could not arrive at any decision upon it,
and asked, if the Court should be against him on the scienter, that it might bo sent back for amendment. He cited Picton Road Board v. Wither, lately argued at Nelson; Stiles v. Cardiff Steam, &c, 33 L. J., Q. 8., 310; May v. Burdott, 16 L.J., Q. 8., 89; Cox v. Burbridge, 32 L.J , C.T., 89 ; Jenkins v. Turner ; 1 Lord Raymond, 109. Mr Pitt, contra, was proparcd to admit tho law as cited by Mr Fell. He would, however, contend that the case was fairly stated by the Resident Magistrate, No questiou as to Seaton's agency appeared as having been raised in the Court below, and this Court therefore must presume agency. The question as to Seaton's knowledge was a question of fact. It appeared in the evidence that Seaton " thought he (the bullock) was safe when he was past Stitt's," and this implied that he was unsafe before. This was some evidence of knowledge of the vicious propensities of the animal. The question of scienter was always one for tho jury, and upon the authority of Hudson v. Roberts, 20 L. J., Ex. 299, if it appeared that there was some evidence of such knowledge, the finding of the jury would not bo disturbed by the Court. In the present case, the Resident Magistrate satisfied himself (he being in place of a jury) that there was some evidence on this point, and therefore it was not for this Court to say that such evidence was insufficient. If the Magistrate was satisfied with it, his ruling could not be disturbed.
Mr Poll having replied, His Honor delivered judgment as follows : —■ The case assumes that Seaton was the agent of the appellants; upon what evidence the Resident Magistrate arrived at the conclusion that this was so does not appear,- but I must conclude that he was the agent of the appellants for the purpose of driving the beast. The only question referred to this Court, is, whether there was any evidence of the knowledge of the appellants, through their agent, tthat the bullock was dangerous. The only evidence of this knowledge is contained in the brief statements of their agent Mr Seaton, reported in his own words, "The bullock looked lively coming down, but thought he was safe when he was past Stitt's," and " a single bullock is more apt to be dangerous than one in company. Looking at the context, the only meaning I can assign to the word "lively" is mischievous, and, that being so, I think there was some evidence of knowledge on the part of Seaton that the bullock was mischievous, and the amount of evidence is not in question. This is enough to make the appellants liable to answer in damages. Ido not rely at all on the second remark, agreeing with the comments made upon it, that it need not follow from the fact stated that a single bullock should be dangerous at all; nor do I rely on the fact that the bullock was imported. It is unfortunate that the Magistrate has given the very words of the evidence ; he should have stated the inferences he drew from the evidence, and not the evidence itself. When it appears that the Resident Magistrate has drawn an inference of fact, the inference binds this Court. To permit such inferences to be questioned here, would open the door to a class of appeals never contemplated by the statute. They would in the end be brought upon every single question of fact that the Magistrate may decide. The Magistrate should state broadly the inferences of fact, and not the evidence from which they were drawn. I also regret that the case should have been so curtly stated, since it has taken more time to determine the meaning of the statements which it contains than to decide the legal questions arising thereon. The appeal must be dismissed with costs.
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Westport Times, Volume VI, Issue 985, 5 July 1872, Page 2
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1,832WESTPORT WARDEN'S COURT. Westport Times, Volume VI, Issue 985, 5 July 1872, Page 2
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