COURT OF APPEAL.

Dominion, Volume 1, Issue 170, 11 April 1908, Page 7

COURT OF APPEAL.

i ■ AN EAST COAST CASE, / CLAIM FOR DISCOVERY AND ■ ACCOUNTS. J JUDGMENT FOR DEFENDANT. The sittings of tlio Court of Appeal were ■esuined yesterday morning. ' i Argument in the case between Wetini Riki- - 'mi and others and the East Const Comnissioner, a claim for discovery and accounts, vas concluded. Ifi'. G. Hutchison - appeared on behalf ol ,he plaintiffs and Mr. Bell, IC.C. (with him Mr. Nolan) for the defendantPlaintiffs claimed discovery in rcspcct of :opies of the minutes of tho East Coast Na;ivo Trust Lands Hoard relating to tho sale if a block of land known, as Mavaetaha No. >a, Sections 2 and 3, for £4066-.25., that ; iccounts be taken under tho direction of the Jourt as to all moneys received for,'; or on iceount of, tho land by the Board or its suc:essors; and that an order that the balance ,vhich might be found to be payable in respect of the land, or incidental thereto, bo laid into Court, to be distributed as the Court

might aircct. The defence was that it was not correct that the plaintiffs had been determined to bo the owners of the land; that it was impossible for tho'defendant to ascertain to whom and in what proportions the proceeds of the black belonged; . that ttio whol? of tho moneys wero subject- to and had been applied to the general costs of , tho general. trust "estato of James Carroll and Yv'i Pore, and to tho liabilities of those trustees, aud' to the right of indemnity to those trustees out of ■their - trust estate, except only to that part of tho. liability which was incurred to the Bank of Now Zealand, and secured by the general and specific securities; that the Validation Court had exclusive jurisdiction to determine all matters of account in respect of the trust block vested in tho Board; and that, as'tho Validation Court was now proceeding to formulato ft| scheme for equalising in equity,tho liabilities of tho blobks, it would be contrary to tho statutes to proceed in this Court with tho determination of matters of .account. .. . Mr/ Justice Williams, in tho course of his judgment, stated that tho lands in question came under the-jurisdiction' of tho Validation Court so long ago as 1896, and prima facietho trusts of such lands would be dealt with by that Court, 'and by that Court alone.. A deed purporting'to have been made in pursuance of tho Act of 1902 was in 1903 made authorising the Board' to sell the land, and directing it as to how. the proceeds should bo applied. In 1904 the Validation Court mado a decree confirming the deed. If the plaintiff wished to succeed, ho would practically have to ignore tho deereo. The matter was from' its. inception ill the hands of the Validation Court, and if relief were desired against that deereo it. was*.to tho Validation; Court that, the applicant should go. Euiv thor, tho Act of 1906 mado it incumbent upon tho Validation Court to prepare a' scheme showing the adjustment'of tho equities of tho beneficiaries of the'several'-lands'.which wore tho subject of trusts under it,. arid ill making such adjustment it had:to take, into consideration all claims which had been paidj apart from tho "debt duo to the Bank of New Zealand, and the . ' Court was directed to determine what proportion of theso other claims and expenses .of management should be borne by each of tho blocks in question. Whatever might , havo been the caso before tho Act of 1906, it was quite clear, that aftor tho passing of that Act tho Validation Court was invested with special: and exclusive jurisdiction in thp. matters mentioned; in tho statuto. It would I>e impos'siblo fqr,tiio Court of Appeal to givo tho relief claimed without 'interfering with tho ; duties'- which Parliament had imposed fipon tho.Validation' Court. That would bo the case whether, apart from tho Act of 1906, .tho Talidationi.Coiirt had or had not exclusive jurisdiction. -"With referenco to this claim for discovery,,.the,,ejaijii; was; in aid of the relief "sought. ' If "the ' proper Court ,in which tho relief claimed ought to bo soughtwas tho Validation Court, tho applica;tion for discovery ought to bo made to that Court. • It would be. jut-ilo' to-givo' discovery even, if this wero the'-proper .Court to-givo it.' In his; opinion, judgment , should bo for 'tho defendant.' The other members of the Court concurred. Judgment -Was entered ; for "tho defendautj with costs, iu tho Supremo (Dourt as on an action for £1000, andnrthe Court' of Appeal on the highest scalo, as : from , a distance. HASTINGS ARSON CASE. WAS THE BUILDING! FIXED TO THE : '' soil? •;iCONVICTION AFFIRMED. . Tho noxt case -takon was that of tho King r. Martin Johnson, which wap stated by Mr. .Justice Cooper,for tho opinion of the Court of Appeal, under Section 412 of the Criminal Code Act, 1893. Mr. Justice Cooper, in his statement iof tho , case, said that tho prisoner was tried before him on March 9,1908, at tho Criminal Sessions of the Supremo Court- held, at Napier; upoii an indictment-that on January 13, 1908, at. Hastings, "ho did wilfully sfct fire to a certain building fixed to the soilto wit, the building knowh as the 'Silver Grid.' " At the conclusion .of, tho case for tho,- Crowiii, counsel for tho "prisoner ' submitted that it was of tho esseiico of tho charge against the prisoner that proof should bo 'given : that the building in question was 1 lixed to tho frophpld, and he contdnded that 'no such evidence had been given.'- • • '. . Tho evidenoc relating to.tho building was^(1) A nroposal for insurance in'ado in writ- , ing by tho prisoner;, through'his.'authorised I agent,' addressed to the Alliance Insurance Company, and dated May 13, 1907. In that . proposal, tho building was described in the . following' terms: " A building of one floor, coi'itiuTiing three rooms, in all four; sit'u'at-od I Oiaj:„.T hv ll'

Christiansen as .restaurant; .No. 4,. Block 111 walls are constructed of -wood; partitions ar< constructed <of wood; roofs aro constructec of iron; ■ chimneys' aro constructed of brick linings aro'constructed of wood;"ceilings an constructed of wood. Leasehold: Fivo years Building'erected about eight years ago. Tin proposal was for the 'insurance of the chattel! in the building and not for tho, building itself. The building was known as tho ' Sil ver Grid.'". (2) Tho N evidence of witnesses, who statei that the building was erected upon a Govern mont lease, tho lesseo boiiig a Mr. Beceroft On tho ono side of the building was a build ing used for offices, and next to this build ing. was a bicyele-shop. Between the Silve: Grid and the offices there was a, brick wall callod by : ono of tho witnesses-a "dividing wall." On the other side of the Silver Grit thero was a narrow right-of-way, .and then i building occupied as a jeweller's shop. Then was no fireplace in the Silver Grid,, tho'cook ing being dono on a gas-stove and gas-rings Tho room facing tho street; ivas tho publii dining-room; and it was stated that in r about thirty persons could bo aceommodatec at one timo. At the back of tho dining-roon thero was anotlior room, known as the staff'] dining-room. A few feet from a door open

ing into a yard there was a separate sim building used as tho.kitchen, built of woo A few Ifiot further down tho'yard {here w, another Wooden building containing t-hr rooms—two bedrooms and a. small sittin room. No plan was produced of the lmil ing, nor was any. further evidence nddua relating t-o its construction. The bujldjn; mentioned and a number of other buildiiij in Station Street were destroyed by life i Jnnuary 13) t' ic fi'' c originating in tlio Silv Grid. . His Honour held that there was evidon to go to the jury that the building was fix* ,to the soil, and directed the jury that thi would be : justified in finding ujion the e\ donee that the building was in fact fixed the soil; and ho reserved- for the opinion the Court of Appeal tho question whether li dc-cision that there was such evidence, ai his direction to the jury, wero right in lw Tho jury convicted thu' prisoner, and tl Court thereupon, under Sub-section o j Section 412 of the Criminal Codo, sentence liim to live years'. imprisonment with liai labour, the prisoner through his counsel d siring that sonteneo should be passed atone and should, not bo respited till the quostic reserved had boon docidcd.

The questions for the opinion of the Court Appeal wore— 1. Was tlioro evidence to go to the jury at the building was fixed to tlie freehold? 2. Was the. Court's--direct!6n"to | tlio jury {lit in law? . - 'Mr. Westall, of Napier, who appeared on half of the prisoner, contended--that - thelilding in question was a mere shell, arid is not fixed to tho soil. Mr. Myers, who "represented tl(o. Crown, is not called 011 to address tho Court. Mr. Justice Williams said a jury, in a ease that kind, had a right" to exerciso their >•11 knowledge, and iii:Sbf<toing'to'iusb~tMr minon-scnse. Anyonp reading the evidence the easo would come "to tile conclusion in 10 absence of evidence to the contrary that le building was fixed to-the soil. That beg so, there was evidence .in support of- the dictment. If tho prispner .could, show thatic building was not fixed to the soil, it'was r him t-o bring forward evidence to that feet. , Both questions should; he - thought, be lswered in tho affirmative.'.- . " _ . Tho other members. of-',;tlio Court being of 10 same opinion, judgment was, entered up. > followsßoth question. 1 } answered 'in the' Firmative, and the conviction::'affirmed-. \ COMMITTEE ■ V. BOARD. QUESTION OF PAR^MOUNTCYv REGULATION OF, SCHOOL BIBLE INSTRUCTION IN 'SCHOOLS.' ; The Court also hcar.d argument, rela-' vo to tho action, the;' Waiigauui', School ommittec (appellants) -V. 'the • Wanganui ducat-ion Board and Henry"M." Payh'e;3eadlaster of the. Queen's..Parle Schodl: (respond cuts) —an appeal from a-jijdginent delivered I February 24 by Mr. " Justice' Cooper. 011 10 ground that the decision was'erroneous 1-point of law.: ' '' ' . Mr. Myers appeared on behalf of the ap-ellant-s, and Mr. KC., ..()vith,. l hira Ir. Hntton, of. tho.yrespoiients. . jy. THE COaiMITTEE'S'' CLAIM-f. "-. The School Committee, by their statement f claim, set forth, in the Supreme. Coiirt, lat the school hours observed! in. the; Queen's 'ark School, at'. Waiiganui, ",had hceUj'-iind ere : at present, fivo hours 011 ..each..school ay, viz., from nine 1 "a.'m! 'till''noon,'; and •om 1.15 p.m. till' S.lfr'iftftOh' '.NiiTifefebfef I. 1907,- it passed a'Vresolution :(to"Coiiie lto effect as from January 27, 1908), .as allows: —' ' That on • Wodnesdays - the hoiifs d be observed at the.. school';shall be.-from .30 to t 13 in . tho forenoon, .and .fr0m.,',1.15 0 3.10' in ,tho, aftcrnobn." - ThA..Education loard, on December'' : ll, '-1907, .•instructed lie. headmaster, (Mr. Payne)>ri6t to olfey. the lommitt eo's j. v.'Wherofofe > thi lommittce claimed ;r.Cstrain 110 Board, from over-ruling its decision, _. and n order enjoining the , h'eaamasterVto' "obey .s. instructions. .--Vvf. : : u " ■■■ ; STATEMFNT Or DEITNCE The ; Education ' B6ard, [by. 'itsv-statement f' defence, submitted that; 011 - February 16903, it. passed a resolution, to .the effect, thai lie teaching' in all schools, whether -Board': ummer holidays. ' TJpbii - the .•'-''hcadiu'afit-oi fours dailv during fivoVdays in. the-week, ir ,11 the : Standard Classes;, but' that to th< 'reparat-ory Glasses need not excccd' foul lours daily. Tho object'' of; tlio ■ Committer II passing its . resolution - was, >:the ' Boarc illeged, - to allow of: religious instruction Luring . the five' hours fixed by ,it for secplai dueation'. In >its opinion' the Cominittei vsis not, entitled' -to the - relief claimed. 1 ADDITIONAL' FACTS. ..' : The' parties, in- a memorandum; doia'ilinj idtlition.il' facts agreed' unori, further 1 ,hat, on September .17, 1 1907; the Comniittei vrote to the Board' stating-that;.'it ; . .lia( lassed the following resolution y;;''••• ; - "This Committee informs._,the ...Board.-j that a-veiT largo majority .; of...pai:pnts_, . sending childreiv to Schools"'iinuer-H's nu- - isdiction , have -requesteditliat tlioir children receive . Bible instruction' • for half ■ an hour during each i week*, .v i mittee,. therefore, respectfully.;requests., the Board', to,'receive -a", deputation;.for, tlie purpose of discussing' the best time;, when 'such in'structioni-'coiild ' be; girdii : : so- as '.not'' rthe'; ' syllabus." On and : John .raited.,on , tlio;Board, .which,,..however.,, di lot .pass a. resolution question a ts' meeting on that date. 'Tlio Committee j'n November 20, v; informed'' tlio * Board t-ha t had decided'to curtail th6,hour's,'-for'.'isee liar education' pn -i AVednpsdays; . whereopo ;ho Board resolved to inform the. Cloniniitte ;hat a, reduction of.; school lioiirS would b 1 breach of the' regulations'.' ' jOil" DeCembc 5 the Coriimitteo-wroteutq -the Jieadmasrf :hat, as it- had granted the use of, the selioo room to the Ministers'-'AssopiatioriVfor one 1 week, the" 'school.'- 'tli«cfbH»7"'would".ope an Ayednesdiiys at 9.30-a.m., and.that-tl: resolution would conio--into.fdrco. pii!tho n taking up ..of,- the sclippl. sunmier; holidays'. Upon the . h'ead-inastc asking for instructions'-the ember 14, resolved as lollows:—: : f .'".That tlio lieadmast'ers'in tlio Wangaiiui schools bo in,fornied that theymust not altor the : -'-present school lifj)irs ' for .secular, 'instruction; without; injtructions from the Board,'*a'lid tliat no roligidus' teaching will _b'6' allowed, duniig thoso. hours.". . ;'V-" /" '' ' THE CONTESTED JUDGMENT Mr. Justice Cooper,Twlio'lie'ard : thq"cas; stated, iii the course. p-f"hiS' iVidgiiroiit/-tlit it was clear, tlie Conimitl.ee--claiiiiod to -l the paramount authority;,in .regulating, tl school hours. ' Subsection 2 of Section 15 of ; the Education Act,'' i 'l?0'l;'- enact.cd-v thi a school Committee should have the manu" mont of educational matter'^"''within y "tl school district-subject:toithe,,geirtralr-supc

vision- -anti control of dhc--Board,,ctc.: .-Tc give effect to the Committee's / contention froukl be to render tlioVßoattls" prncticallj nonentities; 'and would r.enioyo: tho genera! supervision nnd control sl ot tho r schools'' trow the Boards. to the Committees. His Honour held that the Board' had : acted tVitlm: its legal powers, and gnvo- agamsl the Comniitteo with £10,10s. .costs and Com I fees.. ' . ARGUMENT EOR APPELLANTS Mr. Myers, who appeared on 1 behalf of-tlic Committee, said tho neat point involved was whether an Education Board in whoso,districl a 'school was situated or. the. Comniitteo ol that school had tho riglit""to"-prescribb 1 th< school hours arid the time:tablo' of' instruction. Counsel, iii answerto the" Court; saicj ho did not propose to argue , whether, ; auj portion of tho school, hours or the' schoo could be used for the pui-poso- of Biblical -instruction. It had been held ;by Mr. Justice Cooper in tho Supremo; Court ; th at. a-.School Comniitteo had no, power! to'..r.eguhvtq,,,t}if hours or tho t-ime-tablo offing to tho, provision in' Subsection 2"of''Section'l24"of i-hc Act, which read- as follows::'—" Siibjects-tc tho general supervision an4'control- of-, tht Board and to inspection by the-Inspcctp ( r as herein provided, a Committee .shall iia'vo"th( management mattoXrintlflii tho school district." ' On- : the true construe tion of tho Act, a Conimitteq - wasj ■ coiuis?i submitted, .tho.-proper, body tx> "regulate the hours and arrange .the syllabus', so loiig'.a's it kopt within,Scction 135jr which' enacted that schools should ■ be - conducted under' certain regulations. In England -the .School'.Bmixls, which corresponded tq tho. School.Committees in Now Zealand,-had tho power to!rc&ulatc school hours with the approval of tho Department. His submission' was that the words "as herein provided "in-, Section 124 governed all tho preceding words, and that so long as tho School, Committed kept within Section 135 it had the pOwei- to fix the school hours, which was one of the educational matters in connection with a school which it .was the duty of a Comniitteo under-the statute to administer, >' At this stage the Court' adjourned until 10.30 on -Monday morning.