THE COURTS.—TO-DAY.

Evening Star, Issue 5967, 27 April 1882, Page 2

THE COURTS.—TO-DAY.

SUTREME COURT.-IN BANCO,

(Before His Honor Mr Justice Williams.)

FINDLAY AND OTHERS V. THE A LWON SHlPtino Company and another.—His Honor delivered judgment, saying that looking at the whole facts of the case, he thought there was at any rato some evidence from which a jury might infer that tho plaintiffs acquiesced in the lighter Thames being the vessel into which the cement was to be discharged, and accepted the delivery into her. If there was any evidence to go to the jury, it would not be a case for interfering with the verdict on the ground that it was against the weight of evidence, because there was really no substantial conflict of evidence. The question was whether the evidence was strong enough to support tho finding, and that was simply anofher way of putting the question as to whether there was evidence to go to the jury in support of the finding.' For these reasons the rule would be discharged, with costs.

Mr Fitchott: Your Honor will grant leavo to appeal? His Honor: Yes. At this sitting of the Court of Appeal ? MrFitchett: Yes.

His Honor: I think it is a very proper case for appeal. It Is one about which I have felt very considerable difficulty. Wills v. Marshall.—His Honor delivered judgmont in this case, in which the jury returned a verdict for plaintiff, damages L2Bl 8s; and a nonsuit, or failing that a new trial, was applied for the grounds of excessive damages and misdirection.—Plaintiff had agreed to purchase a copper boiler, dome, and pan, with all connections, composed of copper only, for 9d per lb cash in tho defendant's yard at the Water of Leith, conditional on receiving an "iron sluice belonging to fame." Subsequently the defendants, through Mr Jobberns, their agent, accepted these terms, his letter containing this proviso "Please meet Mr John Marshall at our Leith Brewery, Friday morning at ten o'clock, to arrange for delivery of copper pan." His Honor, however, held that this communication from Jobberns could not be regarded as an acceptance of the modification of the contract proposed by the plaintiff, namely, that the iron sluico should be given in addition to the copper. It was quite consistent with its acceptance that there was something further to be arranged. An acceptance must be absolute and unqualified. When the parties met on the Friday the question of the iron sluice was considered by them to be an open one. Plaintiff wanted it for nothing; John Marshall wanted a price for it; and when the valvo was produced plaintiff said he did not want it at all. Plaintiff had failed to establish his contention that immediately he received the last letter from the defendants the contract was complete. Tho rule for a nonsuit would therefore be mado absolute. He (the learned judge) much regretted the conclusion to which he had been compelled to arrive, because he thought that if there had been a count added to the declaration that the defendants agreed to sell and the plaintiff to purchase the boiler on the terms mentioned in the defendants' letter of May 18, the plaintiff would have been entitled to recover. Had there been such a count the questions as to tho effect of the letter written by Jobberns and as to the agency of Jobberns, on both of which there was so much discussion at the trial, would have been really of no importance. As to the leave reserved to move to amend the declaration His Honor did not see how it was possible now to make any amendment. If the jury had been so asked and had found a contract on the terms set out in the letter of May 18 a count might perhaps have been added to meet such a finding, but the case went to the jury on the question of tho existence or non-existence of a particular written contract for the salo not only of the boiler but also of the sluice valve. If the jury had found on such a count plaintiff would have been entitled to more than nominal damages. The jury gave the price plaintiff was to pay. If, as in some American cases, the cost of a similar article delivered at the place of delivery could be treated as the substitute for the market price there was evidence that the price of a similar boiler would be Is 9d per lb ; and the jury took It at Is Gd only. In any case the boiler was immediately afterwards sold by one defendant to the other for LSOO, and admittedly at a bargain. It therefore would not lie in the mouth of the defendants to say that the market price was lebs than LSOO. He thought a jury would bo justified in giving plaintiff at least the difference between L2Bl Bs, the price to be paid, and LSOO if not the whole amount they did give. Rule for a notsuit made absolute, with cos, to.

Rkoina (on the relation of M'Ginnis) v. Cololouqh.—His Honor delivered judgment herein as follows: —"ln this case the relator, Mr M'Ginnis, seeks for a quo warranto information against the respondent, calling upon him to show by what authority he claims to exercise the office of chairman of the County of Vincent. It appears that Mr Vincent Pyke, the late chairman, had resigned his office by writing under his hand delivered to the clerk, as provided by section 50 of the Counties Act. It is dear that in such a case the provision in the 55th section, that a chairman shall hold office till the appointment of his successor, does not apply. The 56th section places resignation on the same footing as the death, incapacity, or ouster from office of the chairman, and rendors the office vacant. On a vacancy occurring the clerk under this section is forthwith to call a meeting of the Council, who are to elect a chairman. This the clerk here did, and what ought to have been done when the councillors met in pursuance of the notice would have been in the first instance to have formally constituted the meeting by electing, under section 70 of the Act, some member present to be chairman of the meeting. This course, however, was not adopted. It appears that there is a bye-law of the Council that the usages of Parliament should be followed, bo far as they are applicable to the proceedings of the Council; and some of the members, at any rate, considered that under this bye-law the election of the chairman of the County Bhould be conducted in the same manner as the election of a Speaker of the House of Representatives. I do not think the bye-law at all applies to tho election of a chairman, but the proceedings that were then taken were taken with the concurrence of all the members, including the relator; and if the only objection he can establish to the respondent's election is that he was elected on motion put by the clerk, and that the meeting was improperly constituted because no person had been elected chairman of it, the relator cannot now take advantage of such an objection. A motion that the relator himself be elected chairman was put by the clerk, and the rolator himself voted for it. After several fruitless sittings on the Thursday, the clerk putting motions for the election of various members as chairman, and the division on every motion resulting in a tie, there was an adjournment, or, more properly, a rising of the Council until the evening. At that time all the councillors met, and as it appears by the affidavits that all the members concurred in the various adjournments, the members were then properly met for the purpose of electing a chairman. At this sitting, however, Mr Pyke insisted on taking the chair, and he was supported in his action by three other councillors, including the relator, the rest protesting. Tne evening meeting appear*) to have been a stormy one, but there was an adjournment until the next day, both by the clerk of the Council and by Mr Pyke, in which all the members appear to have concurred, as they »11 re-assembled the next morning at the time appointed. At this meeting the relator was proposed as county chairman and Mr Pyke put the motion. Four members, Including the relator and Mr Pyke, voted for the relator ; one member (Mr M'Phail) voted against him, while the remaining three declined to vote, and Mr Pyke declared the relator elected. Mr M'Phail, hoy/ever, and the other three members aU protested against jlr Pyke's action. Mi- Stout argued that as Mr M'Phail voted and Mr M'Kellar handpd {n a motion to Mr Pyke they had acknowledged his authority as chairman, and that therefore he was acknowledged by a majority of the meeting to be properly in the chair. Looking at what took place, and at the continuous and vigorous protests of the other four members, I cannot think that this circumstance can be held to have ratified Mr Pyko's unlawful action, and I am threfore satisfied that the relator was not properly elected. On the Friday morning, therefore, tho councillors were properly assembled for the purpose of electing a county chairman, as the various prior adjournments had bean made with their common consent. When the councillors were so assembled, one of them (Mr Pyke) assumed the chair without any right to do so. In this he was supported by the relator, and by means of this usurpation the relator was declared to be elected chairman, and purported to close the meeting and adjourn the Council to the next ordinary meeting. Now, the meeting could not be closed nor adjourned withoujt the consent, express or implied, of the majority present, and half of those prestnt had refused to recognise the're'ator as chairman, and prior to the motion fojt a Jjournment being put. had pressed the clerk to proceed y/ith the business. The meeting also was conyened for a special purpose, and as the election of the relator as chairman was void that purpose had not been properly effected. I think on the whole therefore that there was no proper adjournment, and that the meeting continued to exist. If so, tho circumstance of some of the members leavirg would be immaterial, and the four remaining members could proceed to earn-

pleto the business for which the meeting was originally called. "What these four members did was to proceed In exactly the same manner as all the members had at first proceeded, and the motion on which Mr Colclough was elected county chairman was put by the clerk without any chairman of the meeting having boen first appointed. If there is any vice in this mode of proceeding the relator cannot take advantage of it, as ho himself was a party to the earlier proceedings, and was himself proposed as chairman on a motion put in a similar way, and voted for hinwolf on tho motion. This brings tho present case within the principle of R. v. Lofthouse, L.R., 1, Q. 8., 433. Rule discharged with costs." Mr Stout: Your Honor will give leave to appeal ? His Honor: Certainly, Mr Stout. At the noxt sitting of the Court, I suppose. Mr Stout: Yes, your Honor. Turnbull v. Pboudi'OOT. —With respect to this motion His Honor said: In the case of Turnbull v. Proudfoot I have not completed my judgment. I have completed one part of it, that is to say I have come to the conclusion that so far as to the defence set up by David Proudfoot, it is untenable. I have prepared it bo far, but I have not yet finally decided upon the questions raised by the other defendant, George Proudfoot. Ido not know if it is a matter of urgency, but I will deliver it complete if I can arrange it before I leave. Mr Denniston: It is a matter of urgency in this sense—that if we want to go to the Court of Appeal we can go to the next sitting. Mr Stout: You would bo too late ; it is within fourteen days. His Honor: It cannot be holped. The case was taken in the middlo of the civil business. I should very much like to complote it, but the questions raised on behalf of George Proudfoot were not very fully argued, and therefore I am—

Mr Denniston: We leave it in your Honor's hands, but we should be glad to have the decision as early as possible, so that if neoessary we can go to this Court of Appeal; but we do not wish to hurry your Honor in any way, His Honor: It is not a question of hurrying mo, but I do not want to como to a conclusion I might regrot afterwards. Otherwise I will make all the haste I can. It was only hoard a few days ago. Mr Denniston: Only nine days. If it was not for the sitting of the Court of Appeal it would be hardly right to expect a judgment yet. His Honor: With the civil business on hand I have not been able to give my connected attention to it, otherwise I Bhould have finished. Mr Denniston : Will your Honor sit in banco again before the Court of Appeal ? His Honor: I don't think so. I am going away on Monday to Chriatchurch; I have business there.

Mr Denniston : We don't ask your Honor to inconvenience yourself at all. His Honor: It is not a question of inconvenience. If I could get it ready I would before I go, but if I can't I can't.

Turnbull v. Proudfoot.—Rule nisi for a new trial.

Mr Stout, pursuant to leave reserved, moved for a new trial on the grounds that an amendment was improperly made at trial by striking out the name of one of the plaintiffs (Mr J. Bathgate), and because evidence had been erroneously received. He contended that the amendment should have been made on terms, but it was granted without terms, and he now asked the Court to review whether the amendment was properly made or not. As to the second ground, his chief contention was that the return was nev*r filed in pursuance of the order of the Commission; that, as h»d been pointed oat at the trial, the return was not sealed. Then the Court had no authority to issue a commission for taking evidence outside this Colony. On these grounds he would ask the Court to grant a rule nisi for a new trial. His Honor: You can take the rule, Mr Stout. Eamsden v. Sibvwbight and Another.— Motion for decree.

Mr G. Cook moved the rule absolute; there was no appearance on behalf of the plaintiff. The object of the motion was to prevent the trustee paying over to Ramsden certain moneys held by him.

After argument. His Honor said that he had considerable difficulty in making the order asked for independent altogether of the question whether or not the property was settled on the plaintiff's wife for her separate use and her not being a party to the suit, and also the property being without the Colony. Mr Cook: Would your Honor allow me to take the order for what it is worth ?

His Honor : No, I would not do that. You have a very simple remedy. You oan get your decree for the money and costs, to which, of course, you are entitled ; and if it was not paid at once you could make the plaintiff a bankrupt. Mr Cook: We Bhould not think of doing that. We want to avoid that expense. The costs in this ca«e come to five times the amount due to my client. It is one of the most Bcandalous cases that was ever brought into (Sourt. His Honor: That may be, After further argument, His Honor said that his difficulty was this: Whether the equity, not appearing on the face of the record he could go behind the record. He would reserve his decision.

CITY POLICE COURT.

(Before B. H. Oarew, Esq., R.M.)

Drunkenness.— Jams White was convicted of this offence and liberated; and Albert 3f l Lcan was fined ss, with the usual alternative Vagrancy.- Matilda Hancock pleaded guilty to a charge of having insufficient lawful means of support, and was sentenced to three months' imprisonment with hard labor. Stone-throwing.— Daniel Palmer and Qcorge Arnold were charged with having, on the 23rd Inst., thrown atones to the danger of persons passing along the Woodhaugh road—Defendants pleaded not guilty. Detective Bain stated that at about half-past three last Saturday afternoon he observed the two aocused throwing stones from tho cliffs abutting the road leading to Woodhaugh. Persons were passing to and fro along the road, and they were in constant danger of being Btruck by the missiles. He shouted to the lads, and they then made off, but he subsequently captured one of them.—His Worship said that if he thought the accused had thrown the stones with the intention of inflicting injury to the persons passing along the road he would inflict a heavy penalty; but as he did not hold that opinion, and as Mr Weldon asked for a merely nominal penalty, he would only inflict a fine of Is on eaoh of them. Ob80)WE Language.— Jane. Martin, charged with making use of obscene language In Athol place on the 22nd inst., was fined 40s, a month being allowed within which to pay the penalty. Breach of the Licensing Act, 1881.— Cliarlcs Wilkins and Andrew Neilson, trading as "Wilkins and C 0.," were charged with having in their possession, on or about the 10th March, 300 labels appropriate and intended for labelling bottles containing liquor, such labels not having imprinted thereon in plain and legible characters the words "Bottled in New Zealand" and the name of the bottler using said labels. Mr Haggitt appeared to conduct the prosecution, and Mr Denniston for the defendants.—Mr Haggitt, in opening the case, explained that the charge was brought under the 174 th section of the Licensing Act, 1881. He then stated the nature of the evidence he proposed to call, and read the following letter : Collector of H.M. Customs.

Dear sir,— Referring to the seizure of forty-eight eases of Hennessy's brandy on Saturday last, wo havo now tho honor of enclosing you copy of invoices showing that the bulk brandy, delivered to us by ono of the leading Dunedin Anns, passed through and duly paid duty to lI.M. Customs. Under these circumstances we respectfully submit that wc are entitled to have the brandy restored. We aro willing to re-label every bottle under tho immediate supervision of one of your officers, and to affix the name of our firm as directed by law. Trusting you will jjive our case your favorable and early consideration—Wo are, etc., WILKIKS AND CO. Charles W. Chamberlain, landing surveyor in H.M. Customs, stated that he visited the defendant's establishment in Cumberland stroet on the afternoon of the 10th of March in pompany with the Collector of Customs (Mr Hackworth) and Sergeant Beyin. When he entered the premises'he noticed' Neilson on his knees packing away hi a case what appeared to be bottles of Hennessy's brandy, and several employes at various kinds of work. He asked Mr Neilson if he could see Mr Wilkins, and was told that he was away. Witness told Mr Neilson that ho was a Customs officer, and that he wished to inspect the store. No objection being offered he made an examination of tho whole place. Upstairs he found a number of capsules and two presses on a table. Part of the capsules were stamped with Hennessy's mark, and part were evidently ready to be stamped. He also found a press used for the purpose of stamping Hennessy's name on cases. A locked cupboard was discovered, and the key of it was handed over by Mr Neilson. On opening it he faw that it contained labels purporting to be Hennessy's. He produced samples of both the capsules and the labels. The case produced was one that he found on the premises, and the label and capsule on the bottle produced were similar to the samples. Witness remained in charge of the premises until the arrival of a police officer, whom he instructed not to allow anything in the store to he interfered with until the following morning. 'Thf? nejtt morning witness saw Mr XAlkins, and asked hhn' to, produce proof that duty paid op the brandy. Mr Wilkins told hirn that the dijty wag paid, but satisfactory proof not be}ng forthcoming that such sras tbfe case, witness seized thp brandy. Subsequent to the defendants' letter to tho Collector of Customs he discovered that Wilkins had certain brandy out of bond.-—Mr Denniston objected that anything the witness discovered which

happened to be hearsay was not evidence against Wilkins and Co.—Witness continuing, said that he took steps to ascertain what sort of brandy it was, and he found that none of It was Honnessy's. When he entered defendant's store on March 10 there were a number of cases marked James Hennessy and Co.'s cognac, but on returning next day they were further marked with Wilkins and Co.'s brandy. To Mr Denniston : He seized the brandy because satisfactory proof was not produced that the duty had been paid on it.—Joseph M'Cormack, formerly in the employ of Wilkins and Co., stated that he left the firm about the 26th February last. The letter produced was in the hand-writing of Mr Wilkins. Witness used to place paper round bottleß of liquor and pack the bottles in cases. Ho had put paper round brandy bottles something the same a« the bottle produced. He had also put labels on the bottles, but he did not notice them particularly. After the bottles had been wrapped he put them in straw coverings and then packed them into cases similar to the one produced. The cases were made out of bundles of wood supplied, he fancied, by Meill Bros., and were branded in the establishment. —Mr Denniston: In justice to Neill Bros. I may state that they were simply stored there. —Chamberlain, re-called, said : I saw at tho time of my visit somo bundles of wood much like the timber of which Hennessy's cases are made. Some boys were employed making cases out of this wood, which was unbranded.—Edward i. Spence, a member of the firm of Dalgetty and Co., produced a bottle of Hennessy's brandy imported from Home. Comparing it with the bottle from the defendants' store he found that there were several differences between them. On the capsule of the imported article were the letters " i t x," which were absent in the other. The name of ihe maker of the capsule was on the imported article, but there was only a blur on defendant's capsule. The handle of the axe was also different in each instance. He could not detect any difference between the two labels.—Chamberlain, re-called, stated that he took about a dozen labels, leaving the rest in tho cupboard, but on the following morning they were gone from there.—This was tho case for the prosecution.—Mr Denniston submitted that there was Ino evidence against Mr Wilkins. It was quite clear that the Act was a comparatively new one, and tho question was not what was illegal before it came into operation but what was illegal now. Certain labels were found locked away in a cupboard, and there was no evidence to show that they were not the remains of a stock that had been bought before this Act came into operation. The defence were in a difficult position, for instead of being fairly attacked they were attacked in two lines. He contended that there was not sufficient proof to show that the labels were kept in tho cupboard for the purpose alleged. He admitted that it might have been wise to have destroyed them. They were not charged with having anything to do with the names on the bottles. There was no secrecy about the defendant's actions. The articles were lying about, and no attempt was made to conceal them. As to the labels being found in a locked cupboard, that was easily explained; they were there for the simple reason that they were not now in use. It was not the mere possession, but the possession with intent to us 3 them for a wrong purpose, that should be shown.—Mr Haggitt, referring to Mr Denniston's statement that there was nothing to connect Wilkins with the Übels, contended that there was sufficient connection shown by the fact of the labels being fouad on the premises of the firm, and also by the letter—Wilkins's letter—in which everything necessary to the case was admitted, and in whioh it was offered to dowhat should havebeen done before ♦he labels came Into his possession. As to the Act only recently coming into force, he thought that five months was sufficient time within which to hive got rid of the kbels. It did not lie with the prosecution to show that the defendants were in possession five months ago —all they had to do was to prove that the labels were in the defendant's possession at the time mentioned in the information. He submitted that there never was a clearer case. It was sufficient that the labels were found on the premises to show joint possession. Besides, there was the evidence about the possession of the key of the cupboard.—Mr Denniston argued that nothing had been shown as to joint possession ; the fact of one person having the key was rather in his favor. The letter was written to obviate an error that had been made.—No evidence being called for the defence, His Worship, after the adjournment, said that one question was—whether the evidence was sufficient to show that the labels which were found in defendants' premises were kept for the purpose of being used for labelling bottles. In a case of this sort the intention was not capable of any positive proof, but the surrounding circumstances could be looked at for showing intention. The evidence showed that the labels were found in the cupboard of a room in a warehouse in which tho business of a wine and spirit merchant was carried on. The cases for the bottles were in course of manufacture, and there was a die or stamp for the purpose of marking capsules with fraudulent labels. Some of the capsules were stamped, and others were ready to be stamped. Then there was the letter, proved to be in the handwriting of Wilkins, in which it was admitted that the brandy which was found in the cases had been bottled by him; and the evidence showed that that brandy was labelled with labels of an exactly similar description to those found in the cupboard. All these facts went to prove that the labels were kept to be used in the course of business. As to whether Wilkins, who was not present, was liable, there was sufficient evidence to show that he was one of the principals in the business, and no evidence was called to contradict that. His Worship then asked Mr Haggitt if he desired a conviction and a penalty against each of the defendants. —Mr Denniston objected. The defendants had been jointly charged, and the evidence had been joint. He would draw His Worship's attention to the fact that the Act was a comparatively recent one, and this was the firit offence brought under it. -His Worship said that he would take that into consideration. In the letter it was offered to re-label every bottle, so he had a right to assume that all the other bottles in the case were branded in the same way. He thought that tho inflicting of a penalty of L2O on each of the defendants would meet the case.—Mr Denniston asked His Worship to draw up a conviction, which was agreed to. Defendants were then further charged with having, on or about the 10th of March, applied a certain forged trade mark, purporting to be the trade mark of James Hennessy and Co., to certain bottles in which brandy not being the manufacture, production, or merchandise of the said company was intended to be sold with intent thereby to defraud.—E. J. Spence stated that the firm of Dalgetty and Co. were the agents for James Hennessy and Co., brandy manufacturers and exporters. Witness produced a copy of the ' New Zealand Gazette' of 1867, containing a notice of an application for the registration of the trade marks of Hennessy and Co.—Objection was taken by Mr Denniston to the ' Gazette' going in as evidence.—Mr Haggitt submitted that it was competent to put in the ' Gazette.' It was necessary, according to law, to give notice of such application.—Witness continued that the certificate was issued to Dalgetty and Co., but it had since been lost. He had examined the letter-book, but he could find no trace of the document being sent to J. Hennessy and Co. He had been furnished with a copy of the certificate by Mr Cooper. He produced a bottle of brandy imported from Hennessy and Co. 's house. The label on it was similar to that described in the 'Gazette.' Witness then gave evidence as to the differences between the labels and capsules of Hennessy's and t>oie of defendants. —O. W. Chamberlain gave evidence similar to that he gave in the previous case. Joseph M'Cormack repeated his previous evidence. It was admitted that there was no evidence to show that there was a certificate in existence, and after argument His Worship said that he wa» of opinion that there was a case to answer.—Mr Denniston not proposing to call any evidence, the accused were then committed to take their trial—bail being allowed in their own recognisances of Ll5O each.