THE COURTS—TO-DAY.

Evening Star, Issue 7358, 2 November 1887, Page 3

THE COURTS—TO-DAY.

SUPREME COURT.-IN BANCO.

(Before Mr Justice Williams.) Dickison v. The Mobnington Tramway Company.—ln this case, in whioh plaintiff, aB the owner of two houses near to the defendant's stationary engine, complained of the injury he suffered from the noise and vibration caused by working the engine and from the smoke and steam escaping from it, and asked for damages and an injunction, His Honor now delivered judgment in favor of defendants ; costs on scale of L3OO. Daniel and others v. The Corporation of Lake County.—ln this case His Honor delivered judgment as follows: — In this case it is desirable, In the first instance, to ascertain what the liabilities of the, appeants are, apart from the s'atutory provisions as to audit. The SpeUants were members of a County Council, aud he moneysthey are chawed with illegally expending were a»wn horn the C unty fund. Seotion 101 of the Counties Act lfc76 specifies what moneys are to form the county fund. Section 102 provides that these moneys are to (■e carried to an acoount to be called the county fund account, and then proceeds as follows :-"3uoh funds shall be applUd by the Council towards the payment of all expenses incurred In carrying this Aot into execution, and in doing and performing all acts and things which the Council are or shall be by this or any other Act empowered or required to do or perform." Now, this section is analogous to, and was probably moro or 'e s remotely derived from the 92nd seotion of the EnglUh Municipal Corporations Aot 1835 (5 and 6 Will. IV., cap. S6), by Which the berough fund was created. This latter section provide* how the Borough fund is to be constituted, and then goes on to state tint it is to be applied towards the payment of certain expenses specifically mentioned, and then continues in these words: "And of all other expenses not herein otherwise provided for, which fhall be necessa ily incurred in carrying Into effect the provi-ions of tbii Aot; and in case the Borough fund shall be more than sufficient for the purposes aforesaid, the surplus thereof shall be applied under the direction of the Council for the public benefit of the inhabitants and improvement of the Borough." The two sections are therefore sufficiently alike to make the English decisions respecting the borough fund for the most part applicable to the county fond. Now, it was decided in the Attorney-Central v. A»pinall, 2 Mylne and Craig, 613, and afterwards in the House of Lords, in Parr v. the Attorney-General, BCI. and Fia 409, that the Act constituted the lorough fund a trust fund, and that although the Act provided other remedies for a misappropriation of tho fund, yet that the Court of Chancery had the raiiw jurisdiction over it as over other trust funds. The same principle has been recognised in other cases, and notably in the mire recent case of the AttorneyGeneral v. the Mayor, etc., of Batlcy (36 L T., p. 392). In this latter case Vice-Chancellor Sir W. Page wood decides that the borough fund Is a trust fund, held by the corporation upon a publio trust which is not a charitable one. It will be observed, however, that there is an important difference between the two sections in this—viz., that the English Act, if there is a surplus after the specific objects of the Act have been provide! for, gives the Council a wide discretion to apply that surplus for the publio benefl! of the inhabitants. In our Act the Couno Uhave no such disc e'.ion, but aie limited by section 102 to the purposes there mentioned. Tho Queen v. the Mayor of Sheffield (L.R., 6 Q 8., p. 652) shows that expenditure will not be allowed if thero is no surplus, whioh might have been allowed if there were one. That case decided that the expenses of opposing a Bill in Parliament by a waterworks company who wero seeking to obtain fresh powers, which the Council considered would be detrimental to the public would be disavowed if there wore no surplus. Chief Jusiic: Cockburn siys, at pige 657: " With regard to the expenses incurred in opposing tho Bill in Parliament, I think it is abundantly clear and open to no doubt or question that that was a purpose ta which, looking at the words of the section, it was altogether beyond the tcope c f the municipal Government or anj thing tote done under that Act of Parliament in a borough without a surplus fund to apply the borough funds" Now, in tho present caso the mouey admittedly drawn from the County fund was applied for t-avelling expenses of delegates to Wellington, as shown on pigc 14 of tho Parliamentary papsr B 10,1587, produced. Id there appears that the Council sat in committee of the whole to consider tho most advisable steps to bo token to secure a fair snare of revenuo under the proposed Local Government Bill; and thit it was .resolved that tho Council send two f f its members to w.it on the Miuistry at Wellington re locil revenue, and that a special meeting bo convened t • b s held on tho 20th of April, then inttint. No meeting is recorded as having been held on that date; l.ut Mr Bnye», the chairman at a meeting held on the Ist of June, (rave the report of the delegation, and the turn of LBO each was passed for payments to the delegates in payment of tho expenses incurred by them whilst on their delegation to Wellington and lock. Now, it is perfectly plain that this expenditure was not authorised by section 102, and is therefore entirely illegal. Thero is nothing in the Act which, directly or indirectly, gives tho Council any power to draw upon the County fund for the purpose cf influencing legislation in the direction of getting money. That being so, would this Court, if an information had beon filed, have compelled tho members of the Council who authorised this expenditure to refund it? New money was ordered to be refunded in the Attorney-General v.lEastlake (11 Hare, p.p. 205-229), whero money had been expended in taking proceedings in Parliament. The caso also of the Attorney-General v. tho Tottenham Local Boatd of Health (37 L.T., p. 410) well illustrates the principle on which repayment will lie ordered. Tho B>ard in that case had spent money in promoting a Bill in Parliament. An injunction was asked for to provent mare money being paid and to charge tho members of tho Board personally with L4OO which had been already paid. The defence was that tbo B:ard had acted bona fide f-ir the benefit of tho ratepayers, and Hut the defendants were protected by section 140 of the Board of Health Aot, 1848,11 and 12 Vi<s., cap. 63, which protects persons acting bona fido uuder tho Act. It appeared that the amount had been surcharged by the auditor against the defendants, and that there was tbc-reforo a complete remedy at law for that amount. Sir W. Page Wood, V.C., says that the case is one in wMcn, assuming the solvenoy of tho persons chargeable, ample justice can be done through the action of tho auditor, ami therefore no order was made as to the money surcharged. Tho Vice-Chancellor, however, decided that the defendants were not protected hv the 140 th section of the Act ot 1848. He says: "The auditor was right to decide as ho did ; and I held that it is clear that when persons who know, or ought to know, that they are acting irregularly, take out of the oorporate chest money devoted to other purposes, they are acMng irregularly, and must be made to refund." Tiiat seens to me to state tho true rulo in cases like the present. No doubt, as stated in Lcwin on Trusts (7th ed., page 799), where trustees of chantage funds, thrcu;h mistake, have divorted their funds from the proper channel, tho Court will not call back any disbursements made bofore the commencement ot tho proceedings, or before the trustees had notice that the propriety of such application would be cillcd into question. That doctrine, however, was very much based on the mischief that would arise if mombers of ancient corporations had been held personally liable fori imp y following the practice of their predecessors in applying funds when such practice had not been strictly in accorlanco with law. Hero, however, the mode of dealing with the fund is prescribed bystuute Tho way in which this particular amount was dealt with was cleuly outside the statute, as anyone who road the statute ought to have seen. To put the casein tho way most favorable to the appel ants, tho legality of tho payment was doubtful, and they took no steps to ascertain whether it was in fact justifiable. Not to havo taken such stops is in its?H negligence, and renders them liab'e if it should tu'n out that the payment was illegal. I think, moreover, that the maxim iijnorantia jurU neminem excusat would apply so as to make parsons liable for moneys expended in an improper way. As was pointed out by Sir W. Scott in the case ol the Chulotta (1 Dodson s • Adra. Rep.,' p. 392), tho bona Tide misconstruction of a statute can be no protection for acts done fn contravention of it, because the subjects of this country are bound to construe rightly tho statute law of the land. It is not competent to them to aver in » Court of Justice that they have mistaken the law. This is a plea whioh no Court of Justice is at liberty to n ceive I am satisfied therefore that, apart from the provisions as to audit, this Court would oompel the appellants to refund the tmount thus illegally paid. With respect to the 7tb section of the Publio Revenues Act, 1886,1 do not think the surcharge is conclusive. It has not been made conclusive in express words: and, if the Legislature had intended to make It conclusive, one would expect to find some provision for enabling the puty surcharged to be heard, and giving him a right of appeal. It is a pity that clauses are drawn so a« to appear concise and lucid to the careles* reader, while in faot they are obscure. The section oflors a strikinc contrast to the elaborate and carefully-drawn provisions on a similar subjcot contained in the 60th section of the English Local Government Act, 1858. I see no reason, however, why the seotion should not bo retroepeotive, as It is substantially one of procedure on'y. As I have already said, this Court wou'd, in my opinion, have compelled the refund of illegal payments, at any rate where the parties making them hid not taken reasonable steps to ascertain whether they were justified in making them. Tho section seems rather to limit than to extend the liability of members of a local body. I havo not overlooked seotion 64 of the Countieß Act Amendment Act, 1882, but I do not think it has any application In determining the construction of seotlnn 7 of the Act of 1885, because, however It be interpreted, it would not limit tho liability which this Court would imposo upon members of the Counoll as trustees. I see-, therefore, no reason why the appellants ought not. upon the evidence before the Magistrate, to have been compelled to pay the amount sued for if only it has been propsrlysucd for, as provided by seotion 7 of the Act of ISBS. The money, by that section, ts deemed to be a debt due to tho locil body. Tho 1 section does not say that the local body miysuo for: it, but, In tho absonco of express prohibition, to suo; and. looking at the faot that the power of the Audit Office to euo is permissive only, I see no reason why the local body should not havo a power to sue for their own debt concurrent with the express power given to the Audit Office. There is no particular incongruity In a power to suo being concurrent. Tho Sfature may well havo considered that thero wore ms'sin which the local body would not sue it*i own members, and so have given the Audit Office a discretionarypowertosuoin their stod. In the pre, the Audit Officeihia )B ujd notiin the name of tho Auditor-General, but Jti tho name of the local body, without any authority.from ♦iL wii hodv to use its. name. I ao< ™? tWnk this is 'a proceeding contemplated: hava said so if seotion 80, however, of the Resident MMate'/ Act, the 'Magistrate ta; ample Dowered amendment, and there imo' reason at »U why the' Audit Office-thai Is to W&Og&SS and Audltor-aeneral-should riot now be w™»™™s CtoObSSttai of the Lake County «, pWntut The prinolpto on which amendments of the kind are allowed ta Wed out by BraraweH, 8 in a»rv Oxford. luL 8, Ex., p. M. II the party sueingpos £22; though with a wisty in the SmTlDteMil M the party proposed to be subj

Btituted, the amendment ought to be rhadej There are several (Met where amendments of the kind have been made-Blake v. Dow, 7 H. and N., 465; LaßanoaNaZlonalev. Hamburger, 2 H. and G. 330; Galloway v. Bleaden, 1 «. and G., 247; Lord Bollngbroke v. Towiißond. L.R. 8, C.P., e45 ; Mills v. Scott, L.R., 8, QB., 496. I do not think that justice should be defeated because tho person who everyone knew was the real plaintiff, has made a mistake in the name in which he sues, "by any means whatever it is possible, to amend it. The decision of this Court is that the proceedings in the Court below, and in this Court, ought to be amended by substituting the Controller and Auditor-General as plaintiff for the present pontiffs, and that, subject to such amendment, the decision of tho Magistra.e bo affirmed. There will be no costs of ttin appeal. Mr Denniston asked whether there ought not to be a new trial, seeing, that His Honor had dealt with the case in that way. His Honor hardly thought so. It seemed to him to he a purely technical objection, which would without question be ground for an amendment. The Magistrate should have said that the defendants were clearly liable, but that there was a mistake in the name of the party sueing, which could of course be amended. Mr Denniston asked at Any rate that the matter should be held over pending the decision of the Court of Appeal in other similar cases.

Bis Honor replied thac he would probably have withheld judgment if he had known that the matter was to come before the Court of Appeal. But even if he had decided in plaintiffs' favor on the technical ground raised, it would only be a matter of amending the other cases. Corporation of South Dunedin v. Corporation of Caversham.—Motion for an injunction to restrain defendants from discharging water drainage or sewage from defendants' sewer and box drain into the plaintiffs' open drain emptying into the harbor. Mr B. C. Haggitt appeared in support of the motion; Mr F. R. Chapman for the Corporation of Caversham. In giving evidence in support of the motion, Mr R. Hay said that the water from the main Caversham sewer was discharged on to the clay covering of the South Dunedin drain, and the probability was that in the event of a severe flood the plaintiffs' stone culverts would be undermined, and portion of South Diinedin would be flooded through the damming back of the drainage. If the present junction of the two drains had been effected some 80ft or 100 ft lower down towards the harbor, this danger would have been avoided. The cost of doing this work would be about L6O. In cross-examination witness said that his calculations as to the amount of damage that was likely to ensue were based upon the assumption of a certain velocity in the outflow. He had not observed the rate of discharge at the mouth of the sewer, and when he spoke of the possible damage he merely gave his opinion. Reexamined: He had observed the velocity of the outflow at the point where the sewer crosses the Hillside road. With the velocity that he had seen at the point spoken of, and the sewer threefourths full, he considered that there was considerable risk to the culverts.

VV. Wardrop, Mayor of South Dunedin, also] gave evidence, and Mr Chapman then opened the oase for the defence, and in the course of his address said that up to 1876 South Dunedin were discharging their sewage by a route which was substituted for the original route. They themselves provided the outlet for Caversham drainage, and the point of discharge was within two or three yards of that granted to Caversham. As to the legislation that had been spoken of, Caversham did not want a local Act passed for the purpose of drainage, but because they required statutory authority for altering the scheme for which the special loan had been raised.

[The case had not concluded when we went to press.]

RESIDENT MAGISTRATE'S COURT.

(Before E. H. Carew, Esq., R.M.)

In the following cases judgment was given by default:—F. Meenan v. J. Rcid, L2 de, for goods sold ; W. P. Street v. Auld, L2 10s ; and same v. M. Pryor, LI ss, for calls on shares.

T. K. Harty v. W. Grant.—Claim, L 36 123, on a disputed account in connection with a partnership transaction. Mr C. C. Kettle appeared for plaintiff; Mr A. S. for defendant.—Judgment was reserved till Friday. CITY POLICE COURT. (Before Messrs J. B. Thomson and J. Elmer, J.P.s.) Drunkenness. Annie Tail, a first offender, was convicted and discharged. No Visible Means of Support. Thomas O'Ke'fe, remanded from yesterday to enable him to produce witnesses, was sentenced to twelve months' hard labor, to run concurrently with previous sentence.— Sergeant-major Bevin, Detective Henderson, Sergeant Gearin, and Constable Madden gave accused a very bad character, describing him as a constant associate of prostitutes and men of the worst criminal type. Theft.— Barbara Stackpole was charged with stealing yesterday a sponge cake and a loaf, and on August 2 having taken an umbrella from the Dunedin Club. The evidence was to the effect that the articles mentioned had been inissod, and shortly after accused was discovered within the Club grounds with the things in her possession.—Accused, who constantly interrupted the witnesses, and otherwise acted in a very strange manner, and was frequently called to order by the Bench, received a sentence of fourteen days for the first offence and two months on the second charge, both sentences to run concurrently. Obscene Language.— Belinda Throsby was charged with using obscene language at eleven o'clock on Saturday night.—Tho hußband of accused stated she was naturally exciteable, besides being under the influence of drink at the time. The Beinh expressed sorrow for him, but there being three previous convictions, accused was sentenced to seven days' hard labor.