JUDICIAL.

Clutha Leader, Volume V, Issue 215, 23 August 1878, Page 3

JUDICIAL.

Wednesday, August 14,

Munro v. Royse, Stead, and Co. — His Worship (Mr Carew) delivered judgment in this case as follows : — The plaintiff is a farmer residing at Kaihiku, the defendants are grain merchants residing at Dunedin, and the action ia brought to recover L6B 18s, claimed as a balance due for grain and bags sold and delivered. The evidence for plaintiff is very voluminous, and mainly given with a view to show that James Whyte, lately trading at Balclutha as an auctioneer and commission agent under the style of Whyte Brothers, was agent for defendants, and in that capacity purchased the grain from plaintiff, and it has been contended that if the evidence does not prove that position, still the defendants are stopped" by their conduct from denying it.. The evidence goes to show that on or about the Bth April plaintiff called upon Whyte and asked him what he could give for oats. A conversation ensued with regard to quality, and Whyte then said he thought he could manage to give 3s 2d for oats, but that he had got a telegram telling him not to buy wheat, as it was not saleable. The plaintiff, with some contradiction, states that Whyte said the telegram was from Royse, Stead,- and Co. , but Whyte denies the name of that firm was mentioned between them at that time. There, was no sale on that occasion, but by arrangement Whyte called at plaintiff's farm about the 12th April while threshing was going on, and after examining the grain, agreed to purchase both oats and wheat at a price named. Whyte directed plaintiff to deliver at Balclutha railway station, and asked Munro to commence delivering on the following day. Plaintiff wanted a week's delay, and ultimately it was agreed that delivery was to commence on the 16th, and if Munro then commenced carting Whyfce was to write to town and get money to meet an acceptance of plaintiff's upon a bill drawn by Whyte for Ll3O, falling due about that time. Plaintiff delivered part of the grain at the railway station, and Whyte placed LIOO to the credit of plaintiff's acceptance at the Bank. Plaintiff states that when he delivered the first load of grain he told the railway porter it was to go to Royse, Stead, and Co. He says he understood it was to go to them, and that he thinks Whyte told him he bought the grain for Royse, Stead, and Co. , but will not swear that he did. So he says further that it was rumoured in the district that Whyte was purchasing for Royse, Stead, and Co. , and that he understood at the time of sale that he sold his grain to Royse, Stead, and Co. through Whyte, and that he would not have trusted Whyte on his own account, as it was reported he could not meet his demands, and he (Munro) had full confidence in Royse, Stead, and Co. In cross-examination the plaintiff admits that at the time of the bargain Whyte held a lien over his crop of oats and wheat as security for Ll3O, and that he had given Whyte an acceptance for the same amount, and also an acceptance for L 34 for another advance. He also admits .that he did not deliver all of the grain at the station, and that under instructions from Whyte he delivered 14 bags oats at the store of Mackenzie, Thomson, and Co., Balclutha, and he '•ays he did not expect to get paid for that grain as he had then heard that Whyte was going bad. Mr Whyte (called for plaintiff) swears positively that all grain transactions between himself and Royse, Stead, and Co. were as seller and buyer , excepting one or two. transactions, in which he purchased for defendants ; that he purchased from Munro on his own account, and sold some of it to Mackenzie, Thomson, and Co. , but principally to defendants. He says further that .he has never received commission or other .remuneration from defendants in any grain transactions, but has always been .paid by the original seller 2| per cent- ,w'nich was

his profits, and that he has purchased and j sold large quantities of grain independent of the transactions with the defendants, and that when he purchased Munro's grain thore was nothing between him and defendants to prevent him from selling to any person ho chose. This witness has been examined at great length with regard to entries in his books with a view to discredit his evidence. One matter not satisfactorily explained is the fact that an account known as the purchase account, which should show all purchases made by Whyte on his own account, contains no entries of purchases in respect of Munro's grain or of other grain forwarded to defendants, although there have been many transactions. , From this it is contended that as Whyte in the usual course of his business debits himself in an account with goods he purchases on his own account, and as he has not debited himself with j grain he has purchased and sent to defendant, but has kept only a debit and credit accoimt of those transactions, it is strongly presumptive that he bought, not for himself, but for defendants, and as their agent. If that be fair inference it is weakened by the evidence that another account is incomplete and the book not regularly kept. I think, too, that Mr Whyte's books are not evidence against defendants to prove agency, although were agency proved they might be treated as admissions by the agent binding the principal. The evidence, however, (goes for what it is worth to discredit other portions of Whyte's evidence favourable to defendants. The evidence of Mr Gow and of Mr Fleming is also directed to discredi t Whyte's testimony. Great stress is laid upon some of the letters put in as evidence from defendants to Whyte, and taken by themselves would make it appear that Whyte was agent for defendants in purchasing grain, but they must be read as a whole, as one is the key in explaining others. The letter of the 19 th March last is the earliest in date which throws any light on the nature of the grain transactions, and is highly important in this case. The defendants, Avriting on that day, say : " We have nothing more to add to our last except to buy away at oats and forward as ready, but you need not push to get quick delivery if it is not convenient to the setter ; give him whatever time he requires for delivery. Re payment, immediately upon a parcel of oats being sent in to ns, we will advance to you lis per sack upon them, and as soon as the delivery of each farmer's lot is completed and weighed by us we will make up statement and send same and cheque for any balance, and if you will have each hnan's parcel differently marked and advise us everything will go on fine, and we shall be able to send quick returns. With receipt of advance of lis per sack from us, you could advance the farmer 10s per sack, balance to be paid on receipt of returns. We will i buy from you and pay net cash, same as | last year, you getting your commission from the seller. We think we can take all the grain from you that you will have for sale. Let us know per return post if these arrangements are satisf actoiy. " The bona fides of this letter is not disputed, and in my opinion it is a key by which all that follow must be interpreted. It is contended that there is a dictational or direction here pervading other letters which is inconsistent with the relation of vendors and yendee, and shows the position was really that of principal and agent or master and servant. Thero is certainly a freedom from compliments and a shortness of stylo in the correspondence, but taken as a whole they will bear an interpretation consistent with the letter of the I9th March. The only witness for defendants (Mr Royse) says Whyte was not their agent, but that they bought from him as they did also from several other persons in the district — farmers and farmers' agents — in large quantities ; that they never had any transaction with plaintiff, and that he made no claim upon this firm until some time in May, when Whyte was known to be in difficulties, and that before that time Whyte had. received from them advances on account of Munro's grain of LIOO and L7O, being in excess of its value, as ascertained when the grain was weighed and account made up. During the hearing of this action a judgment has been referred to which was lately delivered in the DunecHn District Court, in which the law of principal and agent as regards third persons was elaborately and ably reviewed and is I believe indisputable, but in the present case important questions of law scarcely arise, for I fail to see how Whyte can be held to have been defendants'- agent in the transaction with Munro. Royse and Whyte deny it, and defendants' letters' fail to prove it. The evidence to my mind, shows conclusively that whatever Whyte's position may have been with regard to other transactions that as between him and Munro no other intention existed than that the grain contract was to be between themselves as principals. Whyte held a lieu, over the crop for Ll3O, with interest and commission and another advance, which altogether would nearly if not quite amount to the value of the grain, and Munro could neither harvest the crop nor sell the grain without Whyte's consent. The sale was for cash, and Munro says : " When I made the bargain with Whyte the money was to be placed against the money I owed him; under the lieu. I sold to meet the bill." Munro delivered the whole of the grain before the end of April, but made no demands against defendants as he admits till the beginning of June, although he says he knew on the 20th or 22nd April that Whyte was going bad, and he had failed in the middle of May. Then, again, on the 20th or 22nd April he delivered on Whyte's order fourteen bags of oats to Mackenzie, Thomson, and Co., and it seems improbable that Munro (having, as he said he had, full confidence in Royse, Stead, and Co.) would have delivered oats elsewhere to Whyte's order, for which he says he at the time never expected to be paid, had he believed he had sold the same oats to defendants. To have done so would have wronged the defendants, at considerable loss to himself. I feel 'no -doubt plaintiff sold his grain to Whyte, looking upon him and upon him only aa his debitor, and intending that the price should go m payment of the sum due under the lien and acceptances. Judgment for defendant, withprofessional costs L 3 3s.

the Registrar-General,, and charges defendant that without reasonable cause he neglected to give to the Registrar the particulars required- for the registration of a birth. The defendant admits the facts alleged in the information that the child wes born on tho sth September last, and that the birth has not been registered, but his solicitor contends that if an offence has been committed the Court has no jurisdiction because it was committed more than six months before the information was laid. The questions then arise when was the offence committed, and within what time should a prosecution have commenced. The last question presents no difficulty. The Registration of Births and Deaths Act, 1875, under whicli the information was laid, fixes no time for laying an information, and it is therefore regulated by section 5 of the Justices of the Peace Act, which provides that every information shall be laid within six months from the time when the matter of such information arose. Then comes the question, when did the matter arise 1 or, in other words, when waa the offence committed ? Section 16 of the Registration of Births and Deaths Act provides that the father, &c, shall, within 62 days, give information to the Registrar of the particulars touching a birth requiring to be registered, and that a person so required who shall refuse or neglect, without reasonable excuse, to give such notice, shall for such offence forfeit not exceeding LlO. Sections 17 and 19 make provision for registering births after 62 days and within six months upon declaration being made and a fee paid, and further that no penalty shall be imposed under section 16— that is, for not registering within 62 days — if the birth is registered within six months. I read this to mean, not that it is made an offence not to register within six months ; it still leaves it to be an offence to neglect to register within 62 days, but allows a means by which a person maybe exempted from penalty. There is a provision in section 17 under which a Registrar may summons a person to make a solemn declaration, but that does not affect this case. I find no difficulty in interpreting the statute : it is an offence not to register within 62 days, but a person may excuse and exempt himself from punislunent by making a declaration and paying a fee, and the birth may then be registered. If this be not done within six months of birth there can be no registration, except after the conviction of the person whose duty it was to register, and there can be no conviction unless an information be laid within six months of the sixty-second day— the tune when the matter of the information arose. In the present case the information was laid nearly eleven months after the birth and nearly nine after the offence was committed, and there is therefore no jurisdiction. Case dismissed, but I will state a case to the Supreme Court if required to do so.

Macfarlane v. Potter & Another- — His Worship gave judgment in this case as follows : — This is a claim for 275. for tolls, and is defended for the purpose of testing the lawfulness of the toll-gate at the Balclutha bridge, and if it be lawful, the right to demand a toll in respect of the same animal or vehicle more than once on the same day. There is evidence that tho plaintiff holds under the Borough Council, and is authorised by that body to collect tolls, and for the purposes of this case it has been agreed that the bridge is within the Borough of Balclutha, and in a line connecting streets therein. Further, that the toll-gate was lawfully established under the Turnpike Ordinances, repealed by the Public Works Act, 1876, and that certain charges made are in respect of the same animals in the same day. It has been argued that the Borough Council has no power to collect folk except by special order as provided by section 213 Municipal Corporations Act, 1876, and that plaintiff should have shown his right, under the Council by proving that a special order had been made. My decision must not rest upon this point ; if it did, I am of opinion that as a toll has been collected for 3ome years, it is a case in which everything must be presumed to be rightly and duly performed until the contrary is shown. A man collecting a toll for a length of time on a public road is acting | in a public capacity, and it must be pre- ) sumed he vras properly appointed and I duly authorised so to do. Mr Dunne's evidence is not sufficient to rebut this presumption, and the best evidence would have been that of the officer who keeps an account of the proceedings of the Council and has the custody of the minute book. I think, however, that the provision regarding a special order applies only to the establishment of new toll-gates, and not to those already established at the time the Turnpike Ordinances were repealed. The streets within a borough, including bridges, are by section 185 Municipal Corporations Act, 1876, vested in the borough and placed under the control of the Council. The Public Works Act, 1876 (sec. 2) that repeals the Turnpikes Ordinances saves all " things done " under these Ordinances, and section 119 provides that all tolls which may be lawfully taken at the time of the passing of the Act shall be deemed to be tolls made and collected under the Act. These provisions appear to me to continue the legality of the tollgate then established as a " thing done," and to continue the right to take tolls then lawfully being taken, and to vest that right in the Borough Council, who have the control of the streets. I think, too, that section 213 of the Municipal Corporations Act can be followed so far as may be | necessary. If a new toll-gate is to be established then it must be. done by special order, but if already established on the passing of the Public Works Act it was not necessary that it should be re-estab-lished, as it was then a "thing done" and saved from being affected by the repeal of the Turnpikes Ordinances, and I am of opinion that in either case the provisions, of the Public Works Act respecting tolls are to be read with the Municipal Corporations Act. With regard to the other question of charging a second toll for the same animal, clause 9, section 104, Public Works Act, provides that every person, animal, or vehicle in respect of which, toll has been paid at the same toll-gate at any time since the midnight previous shall be exempt from tolls. The claim therefore, for a second toll is unlawful, and wili not , be allowed. . Judgment, for, plaintiff for *21s 6d, and costs of Court 9s. . M'Farlajne v. Donne. -^His Worship delivered the following judgment i-^rPlain-,

tiff claims 12s as tolls for horses of defendant's that have passed through the tollgate at Balclutha Bridge. It has been shown that the defendant resides within ono mile of tho toll-gate, and that with ehe exception of two horses, wliich on ono occasion, were use* I for driving the others, the horse 3 were being driven to or from pasture. Clause 7, sec. 104, Public Works Act, provides that every ai.imial the property of any person residing within one mile of a toll-gate going to or from water or feed shall be exempt from tolls. lam of opinion that horses being driven to and from pasture come within this exemption, and are entitled to pass free. There is a provision iv the same section for exempting from tolls all animals employed solely in carrying persons exempt from tolls, but nothing to meet the case of horses used for driving exempt horses, and they are therefore not free. Judgment for ls, and one-half the costs of Court, 4s 6d. Donne y. M'Fablane.— His Worship gave judgment in this case as follows : — This information charges defendant with obstructing the complainant's servant in passing the toll-gate after the lawful toll of one shilling had been tendered and paid. Defendant admits having been paid on the same day for the same horses going and returning, and says he claimed a second toll because the horses were going on a second journey, and he claims a right to do so, as he says, because the Borough Council let him the gate with a condition that he was to charge, as provided under the Turnpikes Ordinance. I have already decided that one toll clears the animals for one day, and defendant's agreement with the Borough Council cannot affect the law. Defendant is fined ls, and costs of Court 6s 6d. Dunne v. M'Farlane. — This was a charge of collecting two tolls on a horse and waggon in one day. His Worship said : This information does not disclose any offence, therefore it is dismissed.