SUPREME COURT.

Press, Volume XXXI, Issue 4262, 27 March 1879, Page 2

SUPREME COURT.

ST-lISaS VT I L\(o

[Ej'Viohi- Uo'u- Jtf T h< T L .-=t iisUii Ho->cr M- Jα tu'-> V\ , i n<] STLbiioL r r. iM) miii vs -■~ i iionrs asiv O r fli-"US. Mr (TftTno't npplrd ior nn <■' t -1 1 [uya-eni out ot C'oa.c >,f tUi ui'f \u i Mr Joynt i\ penro I for .j'r I" 'i r L i» {>,■■ pitJi i a- cf i t>t o , ■'ho o e t\ti> f Alin-ii wLo, byiei" nol tli-.-tr, t'^i '. 'I _ Ltijjji'.oa title to a p',rt't>«t cf <!* = 'onjht to lecovcr the su , . <f Jj'lP, iv> L o! pn\li&se mensy vrhifli linrt Veen it C -v , ei.>m JJy 1875. Thenp,Lc tiou now be'ero t'i Oonrfc ■β-us ♦« ascTtam the proportional \a , "e ot tho laaS to ■Rh'di thj trustees onkt n< I jiiyc i tit i>. Atter argument an crder w.is made that tße« matter should bo refe ,- •i\ to s vpouicd' by both bides to detcriniuo fie val n> of tbo Und at the time of tbo pnrcMso Costs of the notion to be in the cwo TARKrrt v r.uxr in. Mr Georg" Harper npphd for a commission to take tjio evidpner of L Buxtnn tmacr the provisi-n- of 1 Wm IV. The v,i upsi proposed to be exainia d wai in d m«;or of death before the trial of tho cause toi~ pi ice, an-Jvras a material witnese. In siippori; of the application Mr Harper filed affidavits by Henry Cottanll and Dr Cim,.bcll. Hi 3 Ho'tor granted tlie rippli"aiion, and appointed Allan W. O'Nei'l as commis lo&er to take the evidence. L GREEN, APPELLATE, V PENDBK, RESPOff- * DJBKT. t This was an appeal from Iho decision of Mr Wool ombet R.M , of 'inurn, n'i(3er tlwinfo mation,ef one Poter Ponder, ajrainst oao Green, the holder of o, pulilican'e license in Titawu, for having kept m≤ hoase opca afier "11 p.m., in conlrravo! tiorv of /the licensing Isjpt. It appeared from tho case stated by theßeeidcat . Magistrate, that the defendant in tlio Getfir-t below and the now nppe) ant liad a billiard Mmii ;attached to-lus;licensed house, kept open jp> the honra mentipned. The dooraWjKen the billiard room ftaiuiel pcenpiedby.tbe' anpelianfe were c]o!e&,*id -.- jnpliqiior w»a offered there after 11 p.m. Ite billiard room was connected with the other pOh tion of the hotel by meam of a lift used for supplying liquor to the billiard room. The BesJiv dent Magistrate held, that a breach of the law had been committed and iiaed the then defendant and now appellant ss, against whioh decision heappeejed. The point of LvwforWie . decision of the anpreme Court was whether such , a breach had been committed as held by the Besidont Magistrate. The caao was remitted ' fcade to the Resident for re-state-ment, and was nowjretnrned. . Mr Harper.for appallant. Mr Joynt for respondent. The case had been remitted to the Eo'ident Magistrate to etate what the inforenee of fact was that he drew from the opening of the billiard room by tho pnblican. Tho Eeiident Magistrate now stated that the inference! Lβ drew was that the billiard room had bec-n kopt opeu during' prohibited hours, but that no spirituous or fermented liquors were Bold ia the b,iUiardroom. ■"■"<■'.. ' His' Honor, Mr Jnstice Johnston, mid tliac hedidinot find on. : the amended ciso tho word? read by Mi Hamper. ' Mr Harper sadd that ho had receired tie alleged amendmoat throngh tho CroiiTU Froae , cutor. ..,'.■■,-; ■■:; ■ His Honor, Mr Jnstice Johneton, Baittjtb»t the whole case eeemei to him to bo whether thd billitird room was part of tho-hotol. Mr Joynt said .his cont mtion was thai nmltf' the PublioHouae.Ordinance a brmeh lmd beei because there had been a lift «/ which intoxicating liqaors'oould be pupplieaj besides which n part of theprovnisea hsrtbwß kept open during prohibited hours. f- Mr Harper called the-, attention of tear Honors to Brisrden v Eoigbs. 05 L J., 5t.C.5S and quoted tka judgmentof Mellor, J-it ll^*o^Hie \ Honor Mr Justice Johnston pomtea w» in this c-ue thera was a part of the pres&e*' •wHci ■ waa -aot used, for selling intoxicjufig _ Hqnora. Now this was not analagous to tho cSBe " before .them as tbo evidence waa tliat there was a lift into the billiard r jom to supply intoxicatingliqnora. .= . .• • ■ . , ■ „ -His Honor Mr Jnattce Williams pointed oaf tbat the cascdid not turn on theqaeßtionM keeping open .the premi 3e8 i bnt for the eaie» intoxicatiug liquors. 4 ,» . Mr Harper th;n cited Castlo v Ovcnden, 45 ■L:3l M.C.,228. .■■■-■■.. ~ , rth |. HisHonot.Mr Justice Williams b\i& !n «* case now before them the Magistral had founaon the .emended casq that liquora w»e [ not snppliea during prohibited houw.bntWM the premisea had been kept open iii violatioa w. the proviaftma of the Tublichouxn O-dinaaee. '-Mr Harper submitted that the joobon of tM PnbHchouse Ordinance saidthatthehouseindpwinises shonld be closed within certain tours wr the sale of spirituonaiiquors. , - v His Honor Mr Justice Williams f.ai.l haV.l been quite open for the Magistrate to tw held on the evidence that tho house "ffttS ope» for the sale of spiritoona liquora, bwauso tUffo . was no eridericc that any one who had ' liquor would not bftve been suppbea. a"° t Magistrate Lariop stated that there was no en. dence of the eupply of liquor, then tho (jaeatio-t came to a construction of the statute. . flMr Harper submitted that there was no enf fence to show that the h-raee was kopt opso f« itheVeale of intoxicating liquors. .Inf" , .evidence was that the other parts ot tho honse were closed oxcopt the billiard room. R°**?s±. t "enbmifi that the sale or supply of liqaore was offencdi for which, the penalty w.w exoetw anu not the bpea.of the houso. .. . f I His Honor Mr Justice Johnston aaid tUt« there *ere no penalty, for keeping the honeeopwj unless a penaliy it wonW m inulctnble misdemeouoit!'; Hence t h °L trale had no jurisdiction, and the coaviction wa» submitted that if thfi.lift ««• shot down there wonld bo bo « c louse wider tho Act. If '•» m . cant then it wptOd apply to. tho opening of a &nw or concert room door. 'ifvoffhe Hia Honor Mr Jttitice Johnston tso& thattfie prohibition egivioet keeping open th| the house was to P?oyeDt the surrepUtion-saw -Mf H«per submiitea that the cenfictonj* the BesiaenVMagbtroto was 'JL n9 reasons addncejl by him, vifc that sale or exposure for sate., within P ro ™j™*LnLta of liquors, nor was the opening room M keeping open of the heensod house en premises wftbin the moanuiSJ of offirmiDfT Their Honora deUrered judgment, aairnu^ the codvlctibn irith casts. u-nn<M 1 The ;cft9e; it may be sawt, was bion e n* teat oa c by the appellant., ',-■■■••■ ' ; ! saSPONBKNT. /^oiJhe .; I^sjwaa- . Besidentf: Maitistrate's ba»ITMcase was that fo'>m«£Z&$ A £a* » ness ai » butcher to the|»W*f™. "ho bow,,, . agreement that he wo^ djao^^!?,w B hforib#' - t»m given egaiast Wβ sppwi»"»

SSUaffknghtered cattle ahS ebiacareaWH ewtrtct, as tie word "batcher, of theßesideat Magateat* retail batraer. ' Therefore be £Srjsff£bt the ****»,;«>* appeal wu then Wide tothe >- Mr Jonit for the appellant, „ -■~,- c Wγ Tovni for th» cpp?!Unt srftniftted that the -ILZ o'Mfce Eesideat Magistrate, as regarded of the contact, wal tnd l&w. eviJ2iice-*ho contract had ££*o*«- He ratEiilea <h it t X ra»Jy by ftT««TV-.n-ent c£ carcases to the retail butchera « fcP?" interested , ' in -ft» ifcnt Aeriajr , Snßf X*« r\i" «** if tie >x Sr o=a S nV ZTa- -aorpy %r «pp!jing .carcase? .to {ss>er«i3 for retriil; he Vu= cer-, ?v!i_ i 6 t=rc*te f l in tlic casing on of Ice trade «.{ fcrWHsh the re'W)isf?er."t bcund, himself" tt\ tc H tL* bis!ne=3 of a butcher., {for 4r.C«'i.«-hurch for on? y«r... I<W oar-tentiorj. Clart vToward, Sf an* P . !2O " He AouH rataut-ftattte.,.{ " directly.t>r,ibi|rejtlj : in fte «iT.M«ff on "c* cJndnci oT;fte, W-«B*f atrrfc-Ver" ta<l br&tenby.ti.e H:c retailors. TUfjf. ot &Hng thj year io'r.-b¥s-.6h of-the V->-rci That eras lii» sabmii-. so-*, 6»1 i■« »o-Jd q3oi--> t-*a?» ia enppwt rf it;: <(1«m» er-t'J —"Tsrii" v Parson', 83 h.S;,Tqaiij «47- Vcwiirs v OoVU, 5S b. J-. l»»tVor C'-i'-t' :-.y '! v_ §3, L. J. rquity, -3, a'so 0; It S 2 qaity.l -; His Hosor Mr Jnsiiee Jotn«i<sn lb*t the gesi>ect sfs-istrate as a joi-y bad focmd that bo ln&ch irtd conmitKrf in'the CjntrJct^ , gow then oooii the Court interfere 2 ~\ 3fr Jr.Tst that a? apijnt of la-sr tie Iscsi' : «t was ryo3g,"f? Jt? de. ciiei th? coc3 l ri'.Hi.>fi , 'of th*> coiitnct. He had, tiirefo-e r. rig'-l tj oqmobefore tbe Court t* cr.ro tH=> d..i\«ct. " ' His HonOT Mr Jt'tlce Joimston said that tie effect ef ••.i'enre in the case en the BesHe-t J'isriitmto -sras. that the censtrnction eftfce iroriir '•bnine s a babeaer'' between ihe parties wi?, thai it Tia t}st rstul btisiaesg of 8 bnteh;r. Did Mr J->yct enb-.nit that the Berdsinis wka rnr»x>]iad jrrocara aiii pnb!icaa3 frere iafeßrestsd in ti:. r:tai! besicesacs of those efco3 r . . -_ Mr Jojr.t csqaejt:VrlE,My dad so. !f ia (Mr Jeynt) kk io stwt lie bririnis.i'iJEadisfcilfe ia Oijist' - bnro!. rro- 1 ' ;: • T;ui X; in the ot the pnbjicam in Christchtirch ? fcrrfr he tkcuait tL." h= ~ vM be so. TCaso Cr.ft-;,. 10-: 8.-Roj)., 121.] He fsbsitled that tho \ra3 "-whelher the {«is di?-jlo«»fl a broae 1 ! of the e-ititracK which , puri'edtait the rcspotideut ■sroald not be inieor ir.d'rf"t!r in the broicese 6$ c irfrtcr ia err.cor Chri-tcVnrch. ITe «houM estesd that ratpoEd;-t ->«-ae both directly jsd in'iire'-tl.r jatenest_e J in tlm carryitjg -cm, not fcr hiiiisa',*, bat by other pec 71'f. cf th«! basinets a retail basoher, hj Fnpplvj??? tbeto' wit*i for th , -:' lin'irc?-. For tL-r?e rr"a--(sas h-3 a=l: tho Court t-o bjejoU ths ippeal. -■ ■. •- ; . . ri'.r. Mr Ha'P"r nrt oil'fvl upon to-reply , ;. : His Hor.or 2ir Jnftico Jouj.=ton sad he fjfc Jke rekv-icfy of thd argaments of Sir.. Jpynt, jsd pr-'b ib.'y if the ea»e Lad c->ice befora them ibey might hare deciied diff«"r?t.tjy. But the Ilgiiktura had given the Esslslerii; Magistrate prsrer to find ic-ording to eqtuty ani3soolcon- rjdEise, and the Eesident Mttgiftrate bad shown tfcit he had cone to the cosclasion on the facts set oat thai the pai-tie3 were dealing, with. » TzkiH basines« only, and that the contrttct \taa fiat the aasiiiiixir suoald not carry od that - ss;s. Thit the a'signir d d can , / on some hafiioesa was plain, but it mast be held that the business wu one -which it was contemplated between the parties might be engaged in vritheai breach of contract. Whenever they could &go without violation of the principles of law, ie took it that it was the duty of the Court to sapport the Ee4dent For these ra:on3 be-was of opinion that the appeal m-ast |c disadssed. Hii Sosor Jcdge Williams said 'that he egwed with the Bsddeat Magistrate that the resjondeiit. dealing as he had done in th« fennwwa of a elanKhter-man, bad not brokera fie contract. Tha Conrt had simply to decide rather ta» Magistrate- had rightly interpreted fcatma»of theoontract, and he was of opinion tkt be had. For this reason he concurred in fis judgment of his brother Johnston, Appeal dismissed, with costs. ! Tie Court then adjourned a&t3ll a.m. this WXDKIBDAT, ifAECfH Sβ. ' [Bebnikeir Honorj Mr Justice WiSiuu ud Mr Jostioe JohnitoTL] ; Hie Ja»fe sittings were resumed at 11 a.m. miSSXSSOS V SAPi«B HARBOSBO&XD. Hr Heper «ud that ho had receired a tele* pntnaMt Macaesey after the -rbing of the Ooort, stating that cosnse 1 on either tide on the »rga««&t&t the role nisi for a new trial had agnei wpon hetnng the argument before their ' TJWfITt IS 1/BBitu3l. His Heser Jfr Jnstke Johnston trat someconn?el should have settled sack • eoetion as the hearing of an important cist mtxnA eonsnlting; the Oonrt. Besides he Harpers attention*to the fact Hat the rok em -was granttd returnable in WeQugtoo if the parties should so agree. It m> tterfore necessary that there ehonld be mess iffidarit np?n irhtch the Conrt could Oreci the rein oral of the documents now in the Gnrtfti Osristchnrch. ¥rHarpr said that he would file the affiirit teqsired on the telegram of Mr Macarsej. THK QTJESK V HABHAK. This mc a special case on appeal by thodefen4at frfta the decision of the Commisnoner of Snap* as to the amount payable by the defen&at ta executor of the will of Baron Lord LyHdton, as duty 01 the property of the testitor is New Zeahnd. The case arose out of sa action brought by the Queen against the (fefendaEt to reccrer 1 'c on a bond given by hia ai administrator of the estate of Baron liffd lyttelton to pay to the Commissiocer of Stunpe tie amonnt of duty ramble on the real ■ad , personal estate of the said Lord Lyttelton. The yalae of the e*tato in New Zealand iras ttakd as being JE13,827, and epon this the DijHilj -Comicissiooer cf Stamne claimed duty at the rate of 2 per β-nt per annum. The question of 2«w before the Conrt was, whether any ef the duties mentioned in the schedule of the Skap Act isre payable, both the testator and J& residuary legatee not being domiciled in New ZeskoL Mr Jnynt lor plaintiff. Xγ Garrkk for defendant. After argument, judgment was gma forth© uowa, the appeal being dismissed. CLEAVE T. KINO. Mr Garrick, pursuant to leave reserved at the Gill at si si jrritts, applied for a rule nisi tor a wendt or kave to enter judgment, for defen--BBU Hβ also moved for a new trial. Ea* nisi granted, calling upon the plaintiff to fer erase why a ncn-f ait should not be entered, for defendant, or a new trial had. rrruosx* v. i^>w. i this case Si r G«orge Harper intimated that *« ad not intend b> proceed with the appeal. ijpeal dismissed, with costs.