LAW REPORTS.

Dominion, Volume 1, Issue 173, 15 April 1908, Page 4

LAW REPORTS.

COURT OF APPEAL.

THE WAIMARAMA CASE. '■

LEGALITY OF AN INJUNCTION

The Court of Appc.il yesterday hcaicl further- argument in the eaao between' Arini Donnelly and others (appellants) -.aid Gertrude lillen Mcinertzhsgen (rfspondcit), an appeal from a decision of Mr.- Justce Edwards, who granted ail injunction jbstraining appellants from allowing stock 5o stray from certain unfenced Waimarama l<nd3, and in which they have nil interest, o> to unfenced land in the occupation of respondent in which they have no interest, subject to such conditions as would enable tppellant3 to recovor from respondent damajes if her stock trespassed upon their land.' Mr. 1-1. D. Ball, K.C., and jr. C. P. Skorrctt, K.C. (with tlicm' Mr.; Lewis, of Hastings) appeared oil behalf of appellants, and Mr. M. Chapman, IC.C. (wiir him Mr. C.-B. Morison) for respondent. i* : : ; Mr. Bell, on behalf "of. the appllants, addressed additional argument to (jie Court in support of the following subniissons: — . (1) That 110 question referring to,'-or decided by,' Mr. Justico Edwards relating to. Native- law was iicccssary' for-:the decision of tljo present -case. ' (2) That there was no autlurit-y for-the interference by. a- Court of Eqjity. \vith. the logal right of a freeholder'-tj enter upon his oivn. land. at his own will, ind a .fortiori, if that .were so against a freholdor. entering upon land demised by liinf after tlio determination of his lease. , ; • . (3) That it is without precedent for tlio Court- to interfere, to proverb' an - alleged wrong where tho person suiig was'committing the alleged wrong. (4) That the motive alleged to exist by Mr. Justice Ediyards was ,'a). not proved, and (b) ontiroly immaterial.; ' t (5) That the condition iiiposed upon the respondents . .was. illusory, inasmuch.,as it would take effect only if tie appellants abstained from exercising -tjeir legal right; and . ; (6) That tho decree was' tf the same effect as tho interim injunction ijat it discharged. Mr. Skerrett,'who ifollovcd-on behalf of tho appellants,, submitted) that .the/ respondent's ease was that tlio appellants could not uso their lands in the ordinary and natural way without necessarilyi'- committing trespasses on the respondentia nd by their cattle straying. It followed tlat the. respondent could not use, her land 'vithout committing similar trespasses on tin : appellants'.'land,. by her' stock straying'. ! Which was to 'bo preferred of the two jt'rong-doors ?' Tho quality.of tho right to,o'cfupy.thoir respective ■lands was identical'. T.ie 1 disability arising from'the exercise bfthairight was. identical in each case. Thero ys,s no principle • on which tho onp was., to/bo preferred to the other,; or. to bo granted a remedy which in effect, though not ii fonn, amounted; to the exclusion. ,of-;--the.- the - from the .'natural and ordinaryusoof.(lis own laijds. He further submitted that the-only evidence of tho partition ; pf . 1906:'iould bo "found - in the scaled orders of the' Native Land Court. These orders had never ..been sealed, and ttyere could be .no jartition severing- the tenancy in common uncas under a sealed and completed order defiling the allotments.- If this were, soy there jvas an end to, tho respondent's esse, for it would be conccded that in that case tho .patties were' holding as 'tenants ~jn common—and. an injunction would .not be,; granted to restrain tho exercise of tho rghts ; of a. co-tenant. Mr. Chapman, 'oil of the respondent,'argned that-hiS'client had an exclusive right to tho lease of 5000 acres in the block in question'," frhiclr nfea had not yet'been defined. Tho Royal Commission, after due inquiry, "liad 'reco'mtieiide'd that she should bo granted that arja.. At tho time of the granting of tho rerowal lease thero was no obstacle; .oxcopting .[he -absence of a. formal declaration... Tbe' nra'nt was not forbiddcii, but certain conditions were: imposed! • A; tenant at will jes-In -lawful I possession; until tho "owner turned! him out. ''Tlie. Court always loaned toivaifls, a.tpnaiit by sufferance, and had to consid<t not only the benefit of tho;.tejiant,.-but also;-that 'of the.landlord. It was incorrect tq say that",respondent' was in possession without a colour, of-title. Ho maintained' that; she 1 had .-.fa ■ title against everyone,- and could treat the appellants as strangers to. th«j' titlo.; ■ Tho respondent should, lie contended, bqj treated v by the Court' as a'.pcrson, in lawful possession'," and as such was'a. ppr'son whose business and trade should bo-protected, , for she-was; in possession with'tje consent-'of . tho owners, and' ( 'that'|ras a notorious faftwhich the Court always treated as jbeing a'title in itself. Tho exact locality of |the land; could ' be determined by. a "skilled .survoyor from tho judgment., of tho Native- Land Court on the, matter. ■' ' ' 1.' v ■' I- ''' >' ,- . At this stage .tho.'Coiirt; adjourned until 10.30 this morning. ; \ 1 MAGISTRATE'S! 'COURT. :V; j/ « i ... POLICE CASES. , (Bcforo Mr. .W. G. Rfldell, S.M.) . ASSAULTING A B..RMAID. George Scholfield was cha ged (1) with unlawfully assaulting Annie lliza Pilmor, and (2; with wilfully damaging a water bottle and <1 bottles of: liquor Valued t 2-55., the property,of Edward .Wilson. ;. ... Annie Eliza Pilmer, ban aid at t tho Club ■Hotel, stated that she was n tho public bar of the''hotel on Monday I oveiing,' \yhon defendant camo in and asked for a drink. Whenwitness would not serve him'; ho picked up a water bottle from the bar (oiinter and threw it at witness. She ducked ter head, and the bottle flew over her shoulder and landed amongst somo bottles of lijuor on the other aide, of tho bar, breaking four bottles. CorroWrative evidence Was gifen .by a tramway employee who waa in the hptcl. / . ' (Defendant said ho was (lot very obstreperous/ He - 'simply.' pushed) the water Jbottlo With his flSt. . : ' ■ : His. Worship said the (result of-, tho act niight havo' been considerably more-serious than it was. On tho"chai£:e~of' assault a conviction and' fino of £3 aid costs Gs., in. default 14 days' imprisonment, would be' imposed..- On tho sec'onc|, 'charge defendant v/ould be convicted, aiid filed iJOs. and ordered to pay for. the-damage, dine, 255., in default LI : days' imprisonment, j ■ ; . .. ; THEFT .OF "COPPER. - A young. man ; namedlWm. Wood pleaded guilty to a. charge'of thp theft of a quantity of copper valued at £2fos., tho property of D. Kobertson and.Co. ff. tho Phoenix Foundrv. : "J: .. Sub-Inspeptor. O'Dotovan . informed tlio Coui^t-that accused wis not known to tho police. He, had beer travelling from one country town to another of late. A remand was granted until Saturday morning for sentence to enable inquirjes to be made. MISCELLANEOUS. . ; 1 \ Mary Wilson pleaded not guilty to a charge of importuning. On the application of tho police a remand was granted until .this morning. ; , . J One first offender for drunkenness was convicted and fined 5sJ in default 24 hours' imprisonment, and aipthcr was .convicted and ordered to pay 17s. fid. mcdical exiwiues. ; CIVILtBTJSINESS. ' I■ (Before Dr. |\.. 31' Arthur, S.M.) ' UNDEFENDED CASES, i 1 Judgiuont foi' pl ( aintilT by default of defendant was as follows:—James Smitli ;and Sons. y. Mrs. Elimbeth Vine, £8 ISs., costs Bs.; Voliington CJity Corporation r. Annie'Clark, f2 ISs. lOd., coats 9s. ; samo. v, Agnes M'Letn,_£'2.'los, 3d., costs ss.;' Scott and C«. v! William (1. Walker, £3 7s. Cd., costs 55., Robert Hall v. (I. Merrotr. and Sons, |2!) 18s., costs £2 lis.; Wellington City' Corporation- Compton, £37 19a. 10d., casts £1 6a.; sarno v. Auguste 1). do St. lloirain. £4 Os. 10d., costs Bs,; Moot, Cotti&ll.'aad Ltd. v. Mrs. Amy

Green, £4 03., costs os.; Charles W. Brown v. Fredrick Wolff, 14c., costs 75.; Bonithon Freehold Petroleum Co., Ltd. v. Miss, J. A. Harper, £10 Bs., costs £1 10s. Cd.; Arthur Richmond Atkinson v. Willianl Bishop Black Hutchings, £63 18s. Id., costj £4 4s. Gd. DEFENDED CASES. SALE OF A SEWING MACHINE. '■ H. Oscar Hewot-t and Co.; Ltd. sued Edward Orosland, bricklayer, for £5 5g., balanco allegsd to lie due on, a sev/iiig machine pitrchased from plaintiffs oil tho niro system by defendant's wife, llis Worship gavo judgmcnt for the amount claimed and costs £l 'IGs. iilr. O'Leiry appeared for plaintiff. CLAIM FOR. POSSESSION. (Before Mr. W. G. RidJcll, S.M.) Annie Elizabeth Clark, married woman, of 3 Bingham Street, sued Oliver W. Clayton, settler, for £20, possession of chattels, and damages for distraint on goods for rent. Plaintiff claimed that a portion of certain goods distrained 011, viz., tae piano, was hold by her as bailee or trustee for one of her children, and that she was not a tenant at' any time during which the rent : accrued, and was therefore not liable for it. His Worship reserved his decision. Mr. Hindmarsh appeared for plaintiff, and Mr. Ward for defendant. STORAGE OF FURNITURE..'M. Eller and Son sued Walter King for £10 19s. Gd., a claim for storage said to bo due on furniture left with plaintiff from February 1 to June 30, 1906. Plaintiff cnllcd cvidcnco to prove that defendant entered into a contract with the firm to renovate a quantity of furniture and to store it until further orders. Defendant refused to meet tho charge for storage. ' It was urged for the defeneo that the contract was simply ono for the renovation of tho furniture, ltothing belng about storage. It was also argued that plaintiff had assigned his book debts to another person. His Worship nonsuited the plaintiff without costs. Mr. M'Grath appeared for plaintiff, and Mr. Neavo for defendant. ' ' A LICENSING CASE. . ALLEGED UNLAWFUL SALE OF LIQUOR! INFORMATION DISMISSED. ; Dr. A..M'Arthur, S,M., delivered his reserved decision in the Lower Hutt case of Police- v. Cornelius''. M'Manus (Mr. J. Ji M'Grath). Two ' informations vrero laid against-defendant: (1.) That being tho licenseo of .tho. Railway Hotel, Lower Hutt, lie did on .Sunday, March 15, unlawfully open such premises ; for the sale of liquor. (2) That'.on tho'ssme (late,defendant unlawfully-sold'beer, the- purchaser of which not heing really a lodger!.living or staging in tho'said-hotel.: Briefly put, the first information was for unlawfully'openmg' the premiscs and tho second for selling liquor during closing hours. 'IVo constables while outside defendant's hotel saw favo men:, enter and followed them in. .The fflon were found in a parlour adjoining the bar, one of them having a glass of beor in his hnnd',.jvhilst the other w - as receiving a-glass of stchit, from the landlord-, who hande'd it' out bar. Orio of the constables said ho ss>'\a shilling in the hand of : one of. the two_iijeii.; The other constable, who was close bc'hiri'd, said ho saw no, money, • and both agreed that nothing was said. about pay-menft-at'tho time or about a sale. -The constables), stated that tho men. and" defendant aaid ' they were boarders and - were going to stay. over, the night. For tho defence it was stated by'.the two men- and defendant.-that they had met in Weljington tho previous day and defendant'had invited them td .como out and visit; him on Sunday afternoon. . Tho men' dil this and had tea with the. landlord as his guests, and also had. one drink during the coiirse'-'of : the ;afternoon. It appeared .that tho threo moirh&d, been..friends ances in' Reeftbn,' Wiero'.'dcfphdant had been a publican, aiidythis. was .-virtually substantiated by one of the-constables who knew : the. men. in Recfton. Defendant explained thr.t after tea. he went into, the bar to his safe, aiid whilst ho was thers the two men, who had meanwhile gone away, returned and 110 still served them as guests. His Worship remarked that lie quite discredited the story of-the men having become hoarders oa their retnmjvajifl''; th'eifr fo>.;bpirig.. unlawfully 011 the premisca/; As to tho .defendant His Worship was in'-very considorable doubt. While disbelieving the story as ..to. the: men ■ becoming '. boarders ('it. was quite reasonable, that: after they, left after tea, defendant should go to his safe in itlio bar, and that 011 their re-entry ho" should give them another drink still as his guosts.. There was no direct evidence as to any sale of liquor, the whole circumstance might be -suspicious', yet .as there was a doubt-in-His AVorship's , mind lie was of opinion that defendant was entitled to tho benefit of the doubt... His Worship was quite aware of the. decision-' in .Schulthers v. i Wil;spn, in which' it w,as decided-i'that' the fact that . liquor was supplied over tho bar during prohibited-hours by a person in chargo of the jbav was, notwithstanding that, both 0 persons swore it was a' gift, -evidence lipon which the presiding magistrate, might presume &i sale,' if ho disbelieved that part of the evidence as to its being a gift. This-was. a.'very stron" case, and, as His Worship thought, 0110 in 'which there could bo no doubt as to tho facts. After quoting further authorities' His" Worship stated that,, taking into consideration all the circumstances of the case, there was a doubt in' his mind, and-tho'defendant was entitled to the' benefit of that doubt therefore, although with considerable hesitation, both informations would bo dismissed '