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THE COURTS-TO-DAY., Evening Star, Issue 10418, 13 September 1897
SU3PRE&E COURT-IN BANCO.
(Before His Honor Mr Justice Williams.) JOHN CHUTE ELLIS (appellant) V. JOHN batgeh and william menzies (respondents,). . Appeal frcm the magistrate at Inveroargill.
Mr Sim for appellant j Mr Woodhouse for respondents. _ Judgment herein (reserved on the 3rd ia3t.) was given as follows; If what took place in July and October, 1593, amounted to a payment bv Mr Ellis to Messrs Kenyon and Hosking of the sums of £ls and £65, due to them for rent, then Mr Ellis has a complete defence to the present action in respect of those sums. If the sums were paid in CKtobi'r, ISP3, the subsequent reversal of the entries by the company without the consent of Mr Ellis could not alter the fact of payment. In February, 1894, the dobt alleged to be clue to Messrs Kenyon and Hosking was assigned to Mr Batger, Mr Batger could have no greater rights than Messrs Kenyon and Hosking had, and if the above sums had been then paid, so that Kenvon and Hosking could not recover, then the assignment to Mr Batger could not give him any right to recover them. If at a later date Mr Ellis obtained a general deed of release from the company on the understanding that he was to be liable for the rent, and the debt due by him to the company was calculated for the purpose of such release on the footing that the company had not charged him with these sums, that is a matter solely between the company and Mr Ellis. The company were not agents for Mr Batger, and the transaction betweeu the company and Mr Ellis could nut give Mr Batger any rights which he had not before. Were, then, these sums, or either of them, paid to Messrs Kenyon and Hosking ? As to the £ls, it was admitted that (with the exception of n small portion of it) it was not paid unless there bad been a novation—that is, unless Kenyon and Ho3king had accepted the company as their debtor for it, instead of Mr Ellis. There is no evidence that thev did so. It was said, however, that as to £2 5s 4d, part of the ±'ls, the accounts rendered by the company to Mr Ellis show that thi3 sum had been pud. The company were Messrs Kenyon and Hosking's agents to collect the rent, but they were also Mr Ellis's general business agents. The accounts the company rendered to Mr Ellis, as the accounts themselves show on their face, are accounts between the company and Mr Ellis, their client. They are not rendered by the company as agents for Kenyon and Hosking. The company in the accounts debit Mr Ellis with the £ls of rent as a sum due to them. It appears from the account rendered in July that if the £ls had not h-en debited the company would have owed Mr Ellis £2 5s 4d. The contention is that, as the company were Kenyon and Hosking's agents to collect the rent, as they rendered an account charging Ellis with the rent, and as they bad £2 5s 'ld in hand due to Ellis, the £2 Ds -id must be taken to have been paid to the company as agents for Kenyon and Hosking in part discharge of the £ls. Ellis, however, is now being sued for the rent. He has, in eii'-ict, pleaded payment, and it lies on him to prove payment. There is no evidence that Kenyon and Hosking have themselves received payment. The evidence adduced in pioof of payment simply shows that Mr Ellis's agent, who was also Kenyon and Hosking's agent to collect the rent, owed Mr Ellis money at the time the rent was due. _ Mr Ellis now seeks to set off the debt due to him from the agent against the claim of the principal. This he caunot do. With respect to the £(!5 the circumstances ate somewhat different. It is said that Mr Ellis placed sheep in the hands of the company for sale for the express purpose of paying tliis sum out of the proceeds, that the company received the proceeds of sale of the sheep, and that this is equivalent to payment to Kenyon and Hosking. 1 do not think this is so. In sellinK the sheep the company were acting as agents for Mr Ellis alone. When they received the proceeds from the purchasers they were accountable to Mr Ellis alone for them, and were his debtors in respect of them. The account shows that they treated themselves as his debtors. As in the former case, Mr Ellis now seeks to set off this debt due to him by the agent against the claim of the principal. I should infer from the evidence that the sheep were sold to meet the rent and the 15 per cent, due on the promissory note, that it was thought the proceeds of the sheep would be sufficient to meet both, and that in any case the amount of the proceeds was to be placed generally to the credit of Mr Ellis in his account with the company, as it wag in fact placed. The company, however, have not paid the amount to Kenyon and Hosking, and the receint of tho proceeds of the sale of the sheep in this way cannot bind Kenyon and Hoiking. The company, in the sale of the sheep and in the application of the proceeds, were Mr Ellis's agent, alone, and if the company did not apply the proceeds in paying Kenyon and Hosking Mr Ellis remains liable. Appeal dismissed, with costs. IN Ei: ROBERT PRICK. Argument of the rule nisi which was granted on the 2Slh May calling upon Mr Carcw, S.M., and Mr H. L. James to show cause why they should not bo prohibited from proceeding upon the conviction of Robert Price for unlawfully and wilfully trespassing upon the Forbury racecourse and neglecting and refusing to leave the same when warned lo do so.
Mr Sim appeared in support of the rule and Mr Haggitt to show cause.
This was argued on the 7th iust. His Robert Price was convicted at the Court on an information which set out that on the 27th day of February, I*l7, he did unlawfully and wilfully trespass in a certain place—to wit, the Forbury racecourse, and did neglect and refuse to leave such pkue after being warned to do so by Robert Bain, a person duly authorised on behalf of the owners. The information was laid under subsection 3 of section (J of the Police Offences Act, ISS4. That section and subsection render liable to a penalty not exceeding £lO or to imprisonment not exceeding a period of three months any person who wilfully trespasses in any place and neglects or refuses to leave suah place, after being warned to do so by the owner or* any person authorised by or on behalf of the owner. This enactment appears to havo bean adopted from the Victorian statute, Thera doea not appeal' to bo any English statute which makes this ft criminal offence. The into of construction of penal statutes is well known, As was aaid by Brett, J., in Dickenson v. Fletcher (L.R., 9, 0.P., 7), " those who contend that a penalty may be inllicted must show that the words of the Act -•istinctlj; enact that under the circumstances it has been incurred. They must fail if the words are merely equally capable of a construction that would and one that would not inflict the penalty." It appeals that the Dunedin Jockey Club held a race meeting at Forbury Park on Wednesday and Thursday, the 24th aud 25th, and Saturday, the 27th of February last. Price was a disqualified person, and knew it, but went on the course on the Thursday. H> was clearly a wilful trespasser on that day. Bain had been instructed by the secretary of tte Jockey Club to remove disqualified oerious. He spoke to Price on the Thursday, and said to him: " You will have to leave the course." Price said he wasn't doing anything, aud left the course immediately. Price did not return to the course on the Thursday. On Saturday, the 27th, Price appeared again upon the course, but was not warned to leave on that day. The information, however, upon which he was convicted was laid in respect of his trespass on the course on the Saturday. The question is whether Price's action in wilfully trespassing on the Saturday renders him liable to a penalty under the above enactment. The statute contemplates three ingredients as necessary to constitute the offence—first, a wilful trespass, secondly a warning to leave, and thirdly a neglect or refusal to leave after such warning. The trespasser, being on the premises, must bo warned off, and must neglect or refuse to go. Now, Price was not warned otf on the Saturday. He had been warned off on the Thursday, but had left the course immediately on such warning being given. Price, therefore, had committed no offence on the Thursday. It is contended, however, that his return to the course on the Saturday after the warning cf Thursday constitutes an offence under this section. The essence of the offence is the refusal or neglect to leave. In order to support that contention it, must be made out that Price had never really left the course at all—in other words, that the trespass was a continuing one. If a person has really left the premises in pursuance of a warning, there is nothing in the Act which makes penal a subsequent wilful tespass on the same premises. It may be, if a person was warned off and left the premises, but immediately returned, that his leaving might be considered to be merely colorable, and he might be held never to have left the premises at all. That, however, is not this case. There were two distiuct trespasses on two different days, with the interval of a day between them If Price had not really left the premises on the Thursday, then he would have been properly chargeable witlrthis offence if an information had been laid at any time on the Friday. In such circumstances it is impossible to hold that his return on Saturday can have relation back to the trespass on Thursday, or that it was anything else than an entirely new trespass. If the Legislature had wished to make penal not merely a refusal to leave after warning, but a repetition of the trespass at a date subsequently to leaving, it could easily have done so, as is in fact done by the English Game Acts. It has not, however, done so. The circumstance that the land is being used for the same purpose on each occasion does not render.the trespasses the less distinct. I think, therefore, that the conviction was wrong, and that the rule for a prohibition must be made absolute, with costs. SUPREME COURT-CIVIL SITTINGS. (Before Hi 3 Honor Mr Justice Williams.) ROBERTSON* AM) OTHERS V. ROBERTSON AND OTHERS. This was a suit brought for the purpose of testing the validity of a compromise effected by the Court of Appeal. When this matter was before the Court last Thursday, His Honor gave judgment at once in favor of three of the defendants Messrs Haggitt, Larnach, and Howden—and reserved judgment on that branch of the case by which the Peipetual Trustees Company were made defendants. The suspended decision was delivered to-day in the following terms : The plaintiffs abandoned their case against Messrs Haggitt, Howden, and Larnach, and I think they have also failed to make out a case against the defendant company. The judgment of the Court of Appeal of 1893 had really no effect prejudicial to the rights of those interested in the corpus of the estate. If the decree of 1893 had never been pronounced the Perpetual Trustees
and Mr Jelhcoe would have had the same right to costs out of the corpus as the decree of 1893 gave them. The Perpetual Trustees were made parties to the original action as defendants, and were properly made parties. They would have been entitled to their costs, charges, and expenses out of the trust property. Mr Jellicoe also, who was solicitor for the plaintiffs,' and through whose exertions the £4,000 was recovered for the trust, would have had a lien upon the fund recovered for the > payment of costs between solicitor and cljen* in excess of the party and party costs which he received from the then defendants. The plaintiffs do not now comnlain of the amount of the trustees' own costs. The only ground upon which the plaintiffs could protend to base any claim is that the trustees have negligently paid Mr Jellicoe too much. That, however, is quite a different cause of action from that which the statement of claim sets out. Even if it could have been considered to have been properly alleged I do not think it has been established. In order to establish negligence on the part of the trustees it is not enough to show that on a review of taxation the bill might have been considerably reduced. The trustees were bound to take the same degree of care in conducting the business of the trust as an ordinarily prudent man takes in the conduct of his own affairs. Where costs are to be taxed the ordinary course taken by a prudent person is to employ a respectable solicitor to manage the business. Tnis the trustees did. Even if it had been made to appear that the solicitor had neglected his duty, the trustees would not be liable unletfs at ally rate it were shown that the trustees knew or ought to have known he had.neglected it, and that some further steps ought to have been taken in consequence. The evidence does not show that the solicitor did neglect his duty. Furthermore, the tenant for life, and one of the beneficUries whose interest was identical with the interest of the present plaintiffs, was represented on the taxation, consented to everything that was done, and took no further steps in the matter. There is no suggestion of fraud or collusion, or that the eldest son who was represented on the taxation was not doing the best he could for himself, and if for himself, then for the present plaintiffs. Tho plaintiffs have entirely failed to establish the allegations coutained in the statement of claim, nor have they established what is not alleged in the statement of claim—namely, negligence in conducting the taxation of Mr Jellicoe's bill of costs. Judgment for defendant, with costs.
Mr Fraser : Party and parly costs against the infant plaintiff.*, I apprehend, your Honor, on the scale, and costs of the trustees out of the estate.
His Honor: lam not quite sure, in the judgment in the present aetioD, whether I can give any more than party and party costs againEt the pluintifTs. It may be that the trustees will have the right, independently cf the present judgment, to what you are asking for, but that is another matter. The Hon. W. D. Stewart a<=kel that in the party and party costs His Honor would certify for second counsel His Honor said he did not know about that. Mr Travers had appeared singlehanded on the other side, with astrong Bar against him. He (His Honor) would allow just party and party cost 9.
SUPREME COURT-IN BANKRUPTCY
(Before His Honor Mr Justice Williams.) Ik Eustace Henry Fulton, of Dunedin, commission agent. Motion for order of discharge. Mr Sim appeared in support. In answer to the Judge's question as to what view the two creditors took, the Official Assignee (Mr Graham) said he understood that Mr Solomon had an application to make on behalf of the principal creditor, the Land and Loan Company cf Napier, who had investigated the affairs of the bankruptcy.
Mr Solomon said that he did not know anything about the facts of the case, but he had received a telegram from the Land and Loan Company the company of which bankrupt's father was agent and one of the directors. One of the officers of the company had consulted him (Mr S. lornon) some 'time ago about opposing the discharge, and they discussed the matter, and the next thing was the arrival of the telegram, which asked him to apply for an adjournment until Mr Francis Fulton relumed from Sydney, also asking him lo peruse the papers in the Assignee's office. This perusal he had not yet au opportunity of making. Under the circumstances, he hid cilled upon Mr Sim this morniog, but Mr Sim said ho could not see his way to consent to an adjournment. That was all he could say. He had no instructions to oppose, but he knew that the company had considered the advisability of opposing.
Mr Sim said that Mr Ciapworthy, the company's accountant, had gone into the books here, and was apparently satisfied—(Mr Solomon : " Ho was certainly very dissatisfied from what he said to ms'")— and he suggested that the discharge should be conditional upon the bankrupt piviD" the company so nmen. lie uui lfoi Suggel!, man iiiu bankrupt had been guilty of misconduct which would justify the Court in supending the discharge. Then Mr Francis Fulton came down. He asked the Assignee to look into one or two matter!', and hence the reason why the application did not come up last time. He (Mr Sim) submitted that it would be mcßb improper to adjourn the application until Mr Fulton returned. Unfortunately the bankrupt had incurred his father's displeasure over a matter outside the bankruptcy, and thi3 application for adjournment was not bona flde for having the affairs investigated, but simply for the purpose of delaying the bankrupt in starting in business ogain. t Mr Solomon said that, on the other hand, it was suggested that from a purely commercial point of view the bankrupt merited punishment at the hands of the Court. Whether that was the case or not he (Mr Solomon) did not know, but the suggestion was made.
Mr Sim replied that nothing of the sort was found in the investigations. His Honor: Ido not think somehow that I can refuse the application for adjournment. If there was any estate it might be a different matter, but hero the assets are absolutely nil and tho liabilities are over £2,000. In such a case the bankrupt is certainly not entitled to have the proceedings rushed through if his largest creditor asks for an adjournment. Mr Sim : It is not a matter of rushing through. It is not as if Mr Fulton had not investigated the affairs.
His Honor : The company are the largest creditors ; their managing director is absent; they ask for an adjournment; and there are absolutely no assets in the estate. Mr Sim observed that the debt was not incurred by baukrupt in his present busiucss, but it was an old debt to Fulton, Stanley! and Co., incurred through the failure of another party. Hia Honor : I do rot think the bankrupt can complain of an adjournment for a few weeks, until the next Bankruptcy day. Of course if the company arc not then readv the bankrupt would have a right to ask that the matter be disposed of at once. Mr Solomon said that he would wire and advise the company to be prepared. Jtext sitting day. His Honor fixed the Bth November provisionally for the next sitting in Bankruptcy ;. an adjournment to bo made to the 22nd if he was not back by the Sth from the Court of Appeal.
Re Hugh M'Kendry, of Dunedin, carter. Motiou calling upon Mr A. R. Barclay, solicitor, to refund the sum of £2 overcharged in his bill of costs. The Assignee said that this was a small matter, and he could add Bothing to what appeared in the affidavits. One of theae was filled by the applicant and the other by Mr Barclay. He (Mr Graham) had asked the applicant to be present, but she had not turned tip. His Honor, after reading the affidavits asked the Assignee whether he pressed the matter.
The Official Assignee : I leave the matter in your Honor's hand 3. There is one affidavit contradicting the other. Tho woman says the reason why she hj so pertinacious in the matter is that the borrowed the £2 from a friend in order to pay it, and that friend now presses her for it. His Honor: You have not your party here ?
The Official Assignee : No ; she was told to be here, but there's no sign of her.. His Honor : Well, I cannot make an order on these affidavits. Mr Barclay's explanation seems to be reasonable and probable. I can quite conceive that there was a misunderstanding on her part. _ The Official Assignee: It is her own fault. I told her to be here.
His Honor : The motion will be dismissed. Mr Barclay made an application for costs, pointing out that the woman's action had compelled him to file an affidavit. His Honor: Yea; what do yon say to that, Mr Graham?
The Official Assignee: Only that she ought to be here. I cannot help myself. 1 .,. Mr Barclay: I only ask for the cost of tiling the affidavit.
Hiß Honor: You only as>k for that. Oh, yes. Motion dismissed with costs of affidavit.
THE COURTS-TO-DAY., Evening Star, Issue 10418, 13 September 1897
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