LAW REPORTS.

Dominion, Volume 1, Issue 199, 16 May 1908, Page 13

LAW REPORTS.

SUPREME COURT. IN BANCO, . FAILURE TO VACCINATE. '*■ i' ' ! ■ , . CONVICTION: QUASHED. ■ Mr.i, Justice Cooper yesterday heard argument' lfi,respect of the caso between '.Walter James Culver, of Napior (appollaht) and Vacsination Inspector. Hod gkms ;(respondent)a motion foi : prohibition to bo directed to Mr. W. G. Riddell, S.M. ■' ,::'.X- : , Mr. ; H. F.i Von Haast (instructed by Mr. Wostall,i.of, Napior) appeared 4or tho appellant,-; and-Mr. ,H. D. Bell, E.G., appeared for tho.Crown.' ■'-.; '

•Tho facts of'the caso shortly stated were that Inspector Hodglcins sent several' notices to . Mr. Culver requiring' him te have his ' six-year-old child, Richard John Seddon Cul-ver;.-vaccinated as'provided■•for.by the Public HealthvAct,' 1900. >. Mr. Culver had oonseientiousr.pbjections to vaccination, but he failed to-.cstablish his v owing" to 'the fact that, ho declined |te put a. 2s. 6d. stamp on . ■ tho,-dOTlaration ' was ; 'required " : by the ■ ;-Bpj3&tira?.';v9lie>y Inspector, lodged .an : infdrmatten ! against' ,; him. for/ failing to ' comply'^with'.the;'noticed,'■'■and..Mr.- W. G, itiddell, S.M.,- issued a', ijummoris mider Section 159. Subsection. 1" of■ tho Public Health .Mr.:'; Culver' to appear, before .'the .cliild' on Monday, March 2, . 1908/'-. iMr. Culver- only recoived this summons ;at;''l p.in. 'dn Friday, February 27. Ho thereupon wrote to tjib Magistrate pointing out.;,that: ho had only .one clear day's notice to .attend the Court, and; that hp could not affonj' |to come ■ down /to .Wellington from Najjar/antl/he- no fares, or, exponses:for'the for hiihsolf; and that under; ,these circumstances 1 ho. admitted ;tho ofFonce.':Ho said^e-had'a conscientious ob- , jection-to concluded his letter , by :savihg that.'ho/''would rather go to gaol . .ton, times'over than allow any one of:his five children; to' risk* his, or her health- by such ' ■ en iniquitous proceeding.",Tho Magistrate npon.receipt of-'this.letter,convicted Mr. Cul-! per in:his absence, and fined hiin £1 and £1 18s; 6d. costs. The conviction- followed the words of'the information.,..

•, ; By;'Subsection 2 of Section 159 of the Public,; Health • Apt, if. tho parent, without reMdnablo' cwsei' failed to appear with the child,y.the ■ Magistrate .might - fine the parent in..,'a;;penaltyy,n'ot exceeding .;40s. by Subsection ; 3,, jf/;tho parent appeared with the child, '.tlm.iMagistrate, if: satisfied that tho child 'had jiot beon successfully vaccinated, and cause had/been shown why it;,should not'be vaccinated, might order the;par&t;'to'ha,ve the child vaccinated,. and if. the .parent failed' t-o comply: with such "order ■he •was'itlicj'liable : to a penalty not exceeding 40s;riVy,;'-tT' . /:■' .: ;1 . V-: /;Mri,'y''0 i n.;Haast. | submitted thatthe Magisconvict i Culver, of having failed to ; app'i!pr without ' reasonable cause, but ho lmdlti'eated Culver's letter as showing an unreasonable cause for his.noii-appoarance, ajid as < of* the offenco of failing to the'vaccination . notice. ';. The had 'thereupon fined Culver under 6iibsectisii; '4, ;whereas tho ' only' jurisdiction first' to order tho'parent io cause the child to be vaccinsted, : and; therefore, the conviction was bad.

Mr. 801 l did not disputo this contention. ' • His Honour said-that the conviction on the . faco of 'it was bad. The' Magistrate tad authority to order tho defendant to ,pay a ponalty for non-appearance if lie was satisfied that such noil-appearance was; without reasonable cause. But even if His Houour had' power to' amend tho conviction, v-hich ho had'not, he could not, in the faco of tho circtimstances,; and : of '.tho 'fact that tho defendant had only 24 hours' notice in Napier to . appear in Wellington, ; assume that tho' , Jlagistrdto.liad foimd that the defendant had not reasonable cause for non-attendanco. 'J.lie form ; of, tho ' applicatioh v was, therefore, altered, to a motion to quash tho conviction by oortioran without costs, as no costs could bo given against .tho Crown. :

* : CLAIM FOR ADVERTISING. LEGALITY OF THE: PUBLICATION. , • : -QUESTION OF IMPRINT. Argument was then heard relativo to the case; M'Guinncso and Langdon (appellants) v. E. W. Mills and Co.,(respondents), an appeal from ,tho;dccision of Dr.-M-Arthur, S.M. (j Neaye ' appeared on behalf of - the appellants, iand Mr. Blair for the respondents. ..■'The: facts, of >the case were that Messrs. : M'Guinness and Langdon, who carry on business.as'advortismg agents, arranged-with tho I . .Wellington Ferries, Ltd., to issue a i ",Guide to Wellington Harbour. Resorts," and., ttat. they . should receive ; £25 for 5000 . c6{)ies!.of .tHis pamphlet, and Messrs.' M'Guinnossiand Langdon wero to make what profit /theyf'could. out of-the. advertisements. They canvassed for and. obtained a number of advertisements, and the guide book was printed at the office of the " Evening Post." Amongst .theV advertisements which they obtained was «no'from! Messrs. :E.,W. Mills and Co;, and tho' order obtained from them was as foV lowa''Please print our advertisement in. tho Wellirigton Steam Ferries Company's book to occupy back insido corner page, for which we'agree to pay the sum-of £7 75.; payable on production "of the proofs of the advertisemenfi";:This agreement' was .signed, by, E. W. iMiUs.and .Co:, and there was a guaranteed ' circulation of 5000 copies'-of .the Guide. Subsequently,; E. W- .Mills and Co. refused to , paythei 'account, and M'Guinriess and Larig- . don; sued them in the Magistrate's Court. At'the.'hearing two objections were raised - by the defence:.first, that the plaintiffs were bound to prove that the 5000 copies bad been circulated; and, : secondly, which was the more important point,', that the, publication was . !-inasmuch as it did not comply with fch? provisions' of tho Printers' and Newspapers' Registration-Act; 1868, because the name of the printer, was not'insorted in the publication as: required by that statute. In answer I to :"theso;.objections it was. Urged that tho guarantee of a circulation of 5000 copies was only; a collateral stipulation, and the right to domdnd..-payment, did not depend upon ; the porfor&an'co of that stipulation. If it should bo/found''that the, 5000 copies had not beon circulated, that would give rise to an action' for but could not affect the right of iho plamtjffs to recover the price agreed upon.-. I .'As.,to. the."illegality of the publica- • tion,, it iwas . .urged .that; under the contract betwepn Guinness. 'and,. Langdon and ' Messrs. E. W. 'Mills" and Co., the omission of;.aYstat'utory duty by a .third party—viz., the printerr-oould not affect the rights of. tho parties, to the contract. :, Judgment went for the ■ .

T His v Honour said .it appeared to him that tho] publication must bo a lawful one, otherwise there-was no publication at all. If ,tbe advertisement was.inserted in a paper which"| was, not lawfully circulated, then it could not be ail advertisement. His Honour thought printers should study this Act carefully, for it was/full of pitfalls for them, It was by no ' means uhusual_ to see . publications that •were riot.in pompliarico with the, statute because they did not have the namo and address of, the printer on the first and last pages of the publication as required by' the Act. \ : ; Mr.ißlair pointed out ,that thero had been an amendment of tho Act of 1868, which en-abled-the publisher- to shorten the imprint, Bb,' that ; he might, for instance, say " Evening r-Post print." His Honour said that the abbreviated name might'.bo. used, but the place of abode had to be stated on the first aiid last leave® of the publication/. The object of the, statute was that a' person who took iip_a book might bo enabled to seo at,once who its publishor was, and if it contained libellous matter.he would know against whom proceedings should bo taken. Ilis Honour said ho intended to reservo judgment. As to the first question in the appeal.in-regard to proof being required that there was a circulation of 5000, that had been very proporly abandoned. If the circulation had,not reached 5000, then there was a- breach of tho guarantee. .As to the second, question, if this publication wero a publication within Sections 5 and 20 of tho Printers' and Newspapers' Registration Act, tlien the absence of tho imprint had mado ifc 8U illegal publication. The amending Act of

1892 did not affect tho question, because the imprint must still be on tho first and last leaves of tho book, and that was not tho caso in this matter. And tho words "Evening Post, printcould not bo taken to bp an imprint within tho meaning of tho statute, because it* J was required that tho address of the printer had to bo stated on tho first and last loaves. Tho question of imprint was one of importance, especially to printing offices; for they quite innocently printed many publications without tho imprint that was required by tho statute. In 'such cases, tlioy wore breaches of tho statute, and it was 'very necessary that printers should be made awaro of 'tho fact, and also that tlmro should bo some authoritative decision upon the subject. He would' Carefully read tho present pamphlet, aind find out whether it canib within tho osomptions of i Section 9 of tho Act. That was the, only' point 'upon which ho reserved judgment. If it did como within those exemptions tho application must bo allowed. At present he waa inclined to think it was within the section's exemptions, and, if so, an imprint' was unnecessary. DAMAGES FOR AN ACCIDENT. MOTION FOR NEW TRIAL. • ■■Mr. Justico Chapman heard further argument with reference to the application on behalf of'the defendants for a new triahof the ease' between Heber ?rown, labourer, Willis Street,; and Heenan and Froude, Ltd. Mr. Menteath appeared on behalf of Heenan and Froude, ■ Ltd.,- and Mr. Skerrett, K.C. (with him Mr. Ostler), for Brown. The . facts in this case are well known. Brown was employed at the new destructor by Heenan arid Froude, who were the contractors for- the supply and installation of the plant:' Owing to having sustained severe injuries as' a result of a' fall occasioned through a strut giving way, Brown brought, an action for damages against Heenan and Froude, and was, awarded £500. Tho main grounds of appeal were that there was no evidence - in support of an action at common law, that the amount awarded was excessive, and that tho verdict was against the weight of evidence. His Honour rosorvod his decision.

IN CHAMBERS. ,• ' Mr. Justico Chapman held ■ a. sitting in Chambers yesterday morning. .: By consent,'' Alfred George Friers was ordered ■ to pay permanent' maintenance to Ellon Friers at the rate of £1 per, week. Mr. Scantlebury appeared for petitioner, and Mr. Kirkcaldie for. respondent.' Probate of the wills of the following deceased persons was granted:—Thoipas Wilkinson, hotolkeeper, Wellington (Young and Tripe); Eliza Taft, widow, Wadestown (Atkinson and Bennett); 'Anders l Andersen, sheepfarmer, Featherston (Public Trustee); Ilonry Drumnibncl, painter, Wellington (Public Trustee); Eliza Symes Epps,- widow, Nelson (Public Trusteo);" Wm. H. H. Hawthorne, labourer,. Okain's Bay, Canterbury (Public Trustee); William AUenworth Lewis, labourer,. Christchurch (Public Trusteo); and Mary Ann Robjohn, Waikouaiti (Public Trustee). '

Letters of administration were on tho application of tlie' Public Trustee granted in' respect of tho estates .'of tho following deceased persons :VJohn Anderson, groom, Riverton; Sydney Raymond ' Morrett,. butcher, Christchurch; George Christmas, storekeeper, • Transvaal ;• William Wratt, , farmer, Nelson; ' James, Thomas .. Doolan, farmer, Aha'ura. Letters; of •: administration were also granted in the estate of Wm. Henry Gibbs, of ; Auckland, on tho motion of Young and Trine.

. V A MUTILATED■;WILLI';' An interesting will case. was then dealt with. This ,iyas. an application for probato .of.'the"will of James Andrew Hoins (deceased),, of Picton, settlor.; i,. Mr. M. Chapman,; K.C., appeared in support, and' ; Mr. ' tf:'' I ";W , .'V , for.- tho Public; Trustee;"' '■' , 7 '''.■ * 1 1'

: The matterhad previously' come before tho Court, but' owing to tho fact that tho will had been found in a condition, . tho attestations of the witnesses being missing, and that the deceased had no known relatives, it .-had been adjourned -for the Public Trustee to come' 111.

: The facts of' the case were that the deceased was a'singtaS" man 'residing at Blenheim. He -made a :will making his executor Universal devisee of his ;• estate, consisting of a;: section, worth' £300. ~ The will was given into the custody of tho executor by deceased when ho'-'wont on a trip to Australia, but on his return it was returned to him. Affidavits were filed showing that deceased had said that upon his death his will would be found in a box in his-room, and that it -would, then be ascertained as to whom he, had left his proporty. Mr. 'Macdonald submitted that ; the obliterating or toaring off of. the names -of the attesting witnesses was sufficient to revoke the will. -- ( ■. ... .His Honour said that had there boon relatives- the matter would have been simplified by allowing them to oppose the grant of probate. In the circumstances ho would defer the • granting of probate, and order that probate should be applied for in Blenheim with leave to the Public Trustee to apply for admission, and to have the right of crossTexaraination of witnessos brought forward to establish the validity of .the will.

CIVIL SITTINGS. LIST OF CASES. .Following is the list of cases set down for hearing at the forthcoming civil sittings of the Supreme Court. William Hamilton Turnbull v. E. B. Hare and ¥. Davidson, £162 commission. ■ Richard Bowden Martin and Robert Isbister, v. Honry Hooper Holmden, £200 or £140, alleged breach of agreement. v • Emily Millicent'Styles v. Michael Cheevors and Violet Cheevers, £500, damages for alleged slander, before a common jury of four. Cyril Wm. Tanner v. Harold Edward Ivoy, specific performance of contract, or £200 damages. Jacob M'Eldowney v. John White Thompson, £100 and £124 16s. alleged breach of contract, an'd' £35 special damages. Konneth Douglas v. Edward John Falkenor, specific performance and £268 15s. lOd. interest. , Herbert James/Bake? v. Mary Elizabeth Henry, £275 155., commission, beforo a common jury.iof four. - ' ; Wm., Alfred Waters v. Arthur Allen, £543 ss. damages, beforo a common jury, of twelve. Wm. Turnbull v. Wellington Gas Company, £575, for servif.es rondered, before a common, jury of twelve. ; John James Ames v. Elizabeth Milsom, £370 and interest on account of money alleged to have been wrongfully retained. Hamilton Gilmer and Allen Maguiro v. Joseph Dwyer, -declaration of partnership, etc.

Allen 'Maguiro and Hamilton Gilmer v. Edward Wilson, £378 125., damages for alleged breaches of covenant. Hamilton Gilmer and Allen Maguiro v. Robert Dwyor, declaration as, to partnership. Charles W. Earle v. "N.Z. Times" Co., Ltd., £501, damages for alleged libel, before a'common jury of twelve. Arthur Emerson Mabin and others v. Peter Hays and Wm. .Jupp, declaration of rescission of agreement, accounts, etc.' Johii Motley Leigh v. Wm. Thos. Strand, £2204, moneys alleged to have been obtained by fraud, boforo a common jury of twelvo. Donald Kennoth Morison v. Kolburno and Karriri Tramway Company, Ltd., £750 damages for injuries, before a common jury of twelvo. _ ' W. H. P. Barber, A. W. Barber and L. 11. Barber v. tho Corporation of Potono, injunction and £500 or £1.000 damages. Wm. Rattray Pope v. Westland Timber Company, Ltd., £1000, alleged malicious prosecution, before a common jury of twelve. Arthur John Usher v.-Tho Federal Steam' Navigation Company, Ltd., £1500 damages for bodily injuries, before a common jury of ; twelve. • : . Dalgety and Company, Ltd. v. Frederick Pearce, £653 13s. lid., money alleged to havo been lent, etc., before a common jury of twelve. Camilla Loslio v. Ellon Stovens, £501, damages for alleged wrongful distress, boforo a common pury of twelvo

Edward P. Lovion and Robert Wm. Shallcrass v. the Palaco Company, Ltd.,' specific performance. •' Ernest A. Barton v. F. Jensen and others, accounts! Michael M'Auley v. tho N.Z. Twentieth Century Gas Company, £656 18s. 4d., alleged to bo due oil a contract, etc., before a common jury of twelve. Herbert Charles Faulko v. Wellington City Corporation, £501 damages for bodily injuries, beforo a'common jury of twelve.IN DIVORCE. Stephen Johns v. Florence Johns and Wm. Wilson,- dissolution, beforo a common jury of twelve.

Mary Jano Parsons v. William James Parsons, dissolution. '

Thos. 11. F. Hatchard v. Mabel Arrnio Hatchard and Alfred Lacy, dissolution. Ada ' Rosenberg v. Herbert Montaguo Rosenberg, judicial separation, before a common jury of twclvo. ' Alziqre Potts v. Thos. Potts, restitution of conjugal rights. Louis;i Brien v. Timothy Edwin Brien, restitution of conjugal rights. Hannah Cassidy v. Harold Cassidy, dissolution.

Wm. George Lintern v. Emily Essa Lintern, restitution of. conjugal rights. Edward M'Callum Blake v. Mabel Charlotte Blake and Norman Jagger, dissolution. Frederick Edgar Martin y. Matilda Ami Martin and Fred Weiss, dissolution.' Caroline Baker v. Charles Henry Baker, restitution of conjugal rights. Wm. Alexander Douglas v. Aimee Eunice Douglas, dissolution. Carolino Neame v. Percy Neame, dissolution. James Jamieson Tate y. Mary Elizabeth Tate and Boswoll L. Bancroft, dissolution.