SUPREME COURT.

Lyttelton Times, Volume XLIII, Issue 4426, 21 April 1875, Page 2

SUPREME COURT.

Tuesday, Apbid 20. (Before Mr Justice Williams.) His Honor sat in the Court Chambers at 11 a.m. &B JOHN HISELT. Mr George Harper applied for an order of adjudication and meeting of creditors. His Honor made the order, and fixed the meeting of creditors for the 27th inst. BE DUDLEY AND CBAIO. Mr Wynn Williams applied for an order for leave to issue summons to witnesses. His Honor made the order as prayed. BE JOHN OHABIiES WATTS-BUSSEIL, DECEASED. Mr George Harper applied for an order tor leave to issue probate to Elizabeth Rose Rebecca Watts-Russell, sole executrix of the will of the deceased. His Honor made the order as prayed. CRBYXfI V. DBAN3JIKLD. Argument on demurrer. For plaintiff—Mr George Harper.

For defendant, and in support of demurrer •—Mr Joynt, Thia is a claim for £405, rent alleged to be flue from the defendant to the plaintiff, for tiae and occupation of premises at a rental of --JBBO per annum, paid quarterly. Plaintiff's declaration set out that no'payment of rent had been made by the defendant since 1870, • ‘arid that the amount sued for was now due. Defendant demurred that as under a deed it iras provided by covenant tbit if the said rent was not so paid as in the deed stated fwithin 28 days after becoming due), the “interest of the lessee under it ceased and determined. ■ Therefore, the declaration based upon the deed Was bad. , Mr Joynt, in support of the demurrer, cited Prom Selwyn and Smith’s Leading Oases; Boberts v. Davis; Amsby v. Woodward; Doe v. Birch, 1 M. %W. The learned counsel d'esired to point out that in this case there was no estate, to determine, as the relations landlord and tenant had not subsisted, the name depending on the continuance of a former lease-made by the same parties. The authorities he referred to had reference to cases in which a term had actually commenced and was in existence, which his Honor would see was not the case here. The cases cited by his learned friend (Mr Harper) would not apply to the present action. He submitted, therefore, that the demurrer must be allowed, with costs. Mr Harper, contra, contended that no tenant had a right to take advantage of his own wrong. [Hughes v. Blackett, 34 L. J. c.p. 274 and other authorities.] The authorities were all,of opinion that the contracts of lease-made in similar terms, or even stronger

.Kenqs, could not be avoided, except at the - instance and election of the party not in fault. . ..pteed v. Farr, M. & 5.,621; 12M.&W., 623; Ohitty on Contracts.] Mr Joynt replied; and his Honor intimated that ho would give judgment on Friday next. SB HARRIET HART. His HonOr, on the application of Mr Slater, postponed the further consideration of the point touching the vitiation of the insolvency proceedings (bankrupt being a married woman), until Friday next. The Cab Cases. APPEALS FROM JUSTICE OF THE PEACE ACTS, AND RE THE CONVICTION OF HARRS' MUNIARD GOODYER. In this case, on March 12 last, Mr Garrick, as counsel for defendant, obtained a rule nisi directed to George Lilly Hellish and Frederick Hobbs, calling upon them to show cause why they should riot be prohibited from proceeding upon the conviction by the said George Lilly Mellish made on the 10th day of February •gainst one Harry Munyard Goodyer, for unlawfully and maliciously breaking and : throwing down a certain fence, contrary to the statute upon the following grounds 1. : That the alleged fence was an unauthorised - obstruction of a public cab-stand forming part of the public street or highway, and as the ■aid H. M. Goodyer committed the said act complained of in the assertion of his right of free access to the cab stand and passage over the public highway, the summary jurisdiction of the said G. L. Mellish was ousted. S. That the alleged fence was not a fence within the meaning of the Act. 3. That no ownership or property in the fence ’ ‘ was alleged or proved. 4, That the conviction erroneously finds the said alleged fence to be the property of the Christchurch ' City Council. 5. That there was no evidence given or tendered as to the amount or value of the injury done to the alleged fence. 6. That the conviction does not appropriate the penalty or direct in what way it is to be paid or applied, and it is impossible to determine the amount payable for the injury to the alleged fence. 7. That there was no informa- . lion in writing charging the defendant with the said offence. Dr. Foster appeared to shew cause, and Mr Garrick in support of the rule. Dr. Foster said that with regard to the first ground, that it was an unauthorised obstruction and so on, he would call his Honor’s attention to the 26th and 28th clauses of the ' Appeals from Justices Act, under which the rme had been obtained, and to the case of • The King v. Bolton, 1, King’s Bench, page - 66, which laid down the maimer in which justices were to deal with cases coming before them* and shewed clearly that the proper course had been adopted in this instance. "With regard to the second ground, that the ~ alleged fence was not a fence within the manning of the Act, he would call his Honor’s attention to the 25th section of the Malicious Injury to Property Act, and to the precise evidence on this particular point that had been given in the Court below. The learned counsel read the evidence referred to, and ■nbmitted that the fence was a fence within the meaning of the Act, which stipulated a ■fence of “any kind whatever.” The next point relied on by defendant was, that no - ownership or property in the fence was alleged or proved. Cooper’s evidence, he submitted, raised the ownership of the fence in the City Council, and was quite sufficient to go to a jury—in which position the Resident Magistrate stood—that the property was vested in the City Council. (The Queen v. Palmer,2 Appeal Cases,237-243). The fifth ground was, that there was no evidence given or tendered as to the value or amount of the injury done to the alleged fence. He would contend that there was no necessity whatever to give evidence of the specific amount of injury, and therefore no necessity to find a specific amount of damages. In cases where trees and shrubs were destroyed, it was not necessary to state the specific injury in the indictment, and so it was in a case like the present. In all cases, it must be proved that injury has been done, but it was not necessary to state the specific injury done. In this view, he was fortified by the 14th and 15th Victoria, chap. 100, section 24, which rendered any statement of value unnecessary where the value was not a necessary ingredient of the offence. [O. andP.,vol. 9, page 349—the Queen T. Morris, Jarvis’ Act and section 17 of Paley, page 455.] The City Council had proved an injury done, and this was sufficient. They might, if they had liked, gone further and proved that the erection of the fence cost so much, but value was not a necessary ingredient of the offence, and therefore they contented themselves by proving an injury done. [King v. Hyde, 7 E. & B.] The last ground relied on was, that •there was no information in writing charging the defendant with the said offence. In general, it was understood that . an information was the foundation for proceedings against a person for an offence against the law. Judge Johnston (N.Z. Justice of the Peace Act, page 181) laid down that this was a convenient mode of proceeding, but was not imperative in all cases. The evidence given in this case was perfectly clear .on this point—that the police arrested the defendant while in the very act of pulling 1 down this fence, and that he was thereupon •nested by the order of a Justice of the Peace. This was a case to which the ruling of Judge Johnston would apply, being one of those m in which it was not necessary to lay an inf or- - mation in writing. [Addison on Torts, 290-291.] • Hie Honor: In the event of the Court being •gainst you oh the minor points of the case, do you contend that the conviction can be - Foster: Certainly I do contend that upon the authority in the case King v. Palmer it is amendable under the Act. As to the contention that the fence was an authorised obstruction, he had looked up a good deal of English law on the subject, and he could undertake to say that there was no such dictum as that a Corporation, like the City Council, had no power to close U P . streets, except only for repairs. Their powers of management under the Act applied to all purposes for which the streets might be used. If the Court was against the City Council on this point, other important points would be affected by such a decision. On his Honor’s decision would depend the question of the legality or illegality of the water tanks for fire prevention or other purposes, the existence of Mr Anderson’s fountain at the comer of the Bank of New Zealand, or the plantations in the centre of the North and East town belts. He had no doubt whatever that upon the decision of the Court would depend that question. Section 18 of the Act gave the Council power to deal with streets in making sewers ; part of the 19th gave them

powers of lighting and so on, and the Court, he submitted, must give a largo and liberal construction to these clauses. Part of the 20th section referred to water supply: and the Council had power to buy property for public works. In section 869 there was a distinct imperative duty enforced oh the Council to fence streets for repairs. The Council had power to -license cabmen; and t<> make stands- for Cabmen so licensed. If it happened that there was a temporary period during which uh cabs were licensed, and there was no necessity for making stands, it was in the power of the Council temporarily to shut up those stands. It was in evidence that according to a resolution of the Council it was decided that until the cabmen came and took out their licenses, the stands should be closed up. He contended that the pulling down of the fence was not a bond fide assertion of a right to go on the stand in question, and that no unauthorised person had a right to obstruct the thoroughfare. Defendant was unauthorised, because unlicensed.

Mr Garrick said hia first ground of objection was, that the Justices had no jurisdiction to hear the case. In support of this, ho would refer his Honor to Paley, page 137, as illustrating the principle he relied upon under the first objection. That abstract principle was supported by the cases the Queen v. Cridlaud, 2? L.J., Magistrates’ Cases, 28; Hudson v. M'Crae, 33 L. J., Magistrates’Cases, 65; Comnell v. Saunders, 32 L.J.; Thompson v. Ingham, 19 L.J., King’s Bench, 189 j Queen v, Stimpton, 32 L.J., Magistrates’ Cases, 208; the Queen on the prosecution of Turner v. Pearson, 39 L. J., 76 j the Queen v. Allen and others, 78. & 8., 902. It was a principle impliedly embodied in all statutes of a penal nature that where a claim to title arose, Justices were restrained from proceeding to hear the complaint. All his Honor would have to determine was, whether or not the evidence disclosed such circumstances as warranted a belief in the bond fides of the defendant in this case in raising the question of title. The evidence showed that the City Council took upon themselves, by means of a species of fence, to barricade off a certain part of the public highway. Primd facie, every member of the public had a right to pass and re-pass over the public highway. The erection of this barricade was a derogation of the rights of the public, amounting to a nuisance, which any member of the public had a right to remove. The defendant considered that he had a right to obtain access to that particular cab-stand as part of the public highway. It was for this that he was given into custody, and was called upon to answer a charge of malicious injury to property, this alleged fence, the property of the City Council. This was a nuisance, he contended, which the defendant had a perfect right to remove. In the case of a private nuisance, the party injured might abate it; in the case of a public nuisance, everyone might abate it (Collins’ Digest.) Here he contended that the City Council had no right to erect this barricade, and so obstruct the public highway. The whole facts showed that it was a nuisance, and therefore e'very one of the public had a perfect right to remove it. The jurisdiction in the Court below to try the case was clearly ousted, the question of title being set up, and therefore the justices should have stayed their hands, instead of proceeding to adjudicate upon it, tor this and many other substantial reasons, he contended that the conviction was bad. The authority of the Council under the Act, so far as the closing up of the public streets was concerned, only extended to the closing of them for purposes of repairs; but it did not extend to them the power at mere pleasure to barricade or fence off any portion of the public highway. Even the Corporation in this case, he submitted, could be successfully indicted for erecting that barricade. It was not shown in evidence, but, on the contrary, denied, that they were repairing the street. In fact, it was shown that for some reason outside the extent of their powers, the City Council undertook to close this portion of the public highway, and prevented defendant having access to it, as he was clearly entitled to have. Under the 281st section of the Act, the Corporation was as much amenable as any member of the public would be for causing an obstruction of the public highway. He submitted that it was not a fence within the meaning of the Act, and that its removal in the manner indicated was not a throwing down and destruction within the meaning of the statute. He submitted that this was the fair and common-sense interpretation of the matter, and that the removal of the fence was not such a throwing down and destruction of it as would authorise the Justices in decreeing a penalty. With regard to the question Of amendment, he submitted that amendments could only be made in points of form. He submitted again that there was no owner and no property proved ; that there was no conclusive evidence to show in whom the fence vested. His Honor : There is sufficient evidence to go to a jury, and the Magistrate was in the position of a jury. Mr Garrick cited Judge Johnson’s Justice of the Peace Act, page 119 ; King v. Harper, ID. and R., 122; Oke’s Magisterial Synopsis, 429; Stones’ Petty Sessions Practice, 64 ; Paley, and Jarvis’ Act, and contended that in indictable offences it was rendered imperative that there should be a written information, except where power was given by statute to convict on view of the offence. Such a power as this was not given here, and consequently a written information should have been filed. The Justice ordering defendant’s arrest should have followed it up by laying an information. For this reason, also, the conviction was bad.

Hia Honor asked why this contention was not raised before ?

Mr Garrick replied that the same objection was raised at the hearing in the Court below. [The Queen v. Stephen Jones, 12 A. and 8., 164.] It was. absolutely necessary that ihe value of the fence should be found. He submitted that under all the circumstances, theprohibition should go, with costs. His Honor said he would take time to consider his decision.

EE APPEALS FROM JUSTICES OP THE PEACE ACT, AND RE CONVICTION OP JAMBS REID.

On the 12th March last, Mr Garrick obtained a rule nisi calling on G. L, Mellish and Edward Hughes to show cause why they should not be prohibited from further proceeding upon or in respect of the conviction by the said G. L. Mellish of the said James Reid made on the 19th February, 1875, for that he wilfully encumbered and obstructed the public thoroughfare by allowing a horse and vehicle to remain thereon contrary to the Canterbury Police Ordinance, 1858, clause 19th, section 4, upon the following grounds :—l. That it did not appear, and the evidence adduced upon the hearing of the said information did not shew, that the defendant had been guilty of an obstruction of the said thoroughfare contrary to the said Ordinance. 2. That it was not proved that the defendant in any way whatever obstructed the said thoroughfare, 3. That the conviction does not show that the defendant unlawfully obstructed the said thoroughfare, 4. That the Canterbury Police Ordinance, 1858, is ultra vires in purporting to alter the criminal law of Mew Zealand as to offences not punishable summarily. 5. That the said offence amounted to an indictable offence, and was not determinable summarily.

Dr Foster appeared to shew cause, and Mr Garrick in support of the rule. Dr Foster contended, with regard to the fourth ground, that the Canterbury Police Ordinance was within the vires of the Provincial Council. He submitted that on the evidence of Hughes, it was clearly shown that this was an indictable offence, as the evidence proved that defendant stood so as to cause him to create a nuisance to the public. This was undoubtedly a nuisance, because it was proved that persons were inconvenienced, and that the thoroughfare was encumbered. The dictum laid down in the case King v. Cross was that the King’s highway could not be made a stahleyard. He submitted that the rule must be discharged. _ , . Mr Garrick, contra, drew his Honor s attention to the form of the conviction. He was perfectly aware of the dictum m the King v. Cross, but he submitted that here the charge of wilful obstruction was not sustained by evidence. The evidence was, m fact, that it was no obstruction at all. His Honor; I certainly think there was no

obstruction, but I think there was an encumbrance of the thoroughfare. Mr Garrick drew attention to the wording of the Act, “ encumbering or obstructing the. public thoroughfare in .any way,” and sub* mitted that such a meaning could not applied to the act of a cabman pulling up at a kerbstone and waiting there, unless some one was obstructed or Mndefeed in passing, and that per te the mere fact - pf .his, standing there would not be an endumbrimoe oi obstruction of the thoroughfare. It would not be an encumbrance if it did not obstruct the passage, and such an obstruction had not taken place here. He submitted that the objection taken by him under the Constitution Act had not been answered,- namely, that this was not an offence punishable uoummi mary way, in .the absence of special legislation authorising it. If Justices had power to deal summarily with such a case as this, it would enable them to make the inferior record an authority which would supersede the jurisdiction of the superior Courts. He submitted that on both points, the prohibition should go, with costs. His Honor took time to consider. The Court then rose.