SUPREME COURT.

Lyttelton Times, Volume XCIV, Issue 10708, 18 July 1895, Page 3

SUPREME COURT.

IN BANCO. Wednesday, July. 17. - (Before his Honor Mr Justice Denniston.) His Honor sat in banco at 11 a.m. JOYCE V. BULB. His Honor gave judgment in this case, an action for damages for malicious prosecution heard before a jury at Timaru. The jury bad assessed the damages at £IOO, and legal points had been argued at Christchurch; The plaintiff’s brother-in-law, one Batts, had removed a traction engine on to plaintiff’s section, and the defendant, who had a claim on the machine,.obtained a search warrant in order to look for the motion gear, which had been taken from the engine.- The plaintiff gave the gear up under threat of a prosecution. Tho. defendant afterwards; under the advice of! a solicitor, swore an Information for theft against Betts and the plaintiff, but it was dismissed. His Honor desjt at length with the law in the case, and said that he thought that there had been evidence before the jury to show that the defendant, acting under the advice, had honestly believed the plaintiff guilty of theft. The motion would be refused, with £lO 10a coats. Mr Wilding appeared for plaintiff, and Mr Beswick for defendant. On the application of Mr Wilding, his Honor granted a stay of execution for seven days. ATTORNEY-GENERAL EX BED FISHER AND OTHERS V. DICKENSON. In this case Mr Wisher, for the plaintiffs, said that he had received an intimation from his learned friend on the other side that he did not intend to offer any defence, and would remove the obstruction; in fact it had been removed. He (Mr Fisher) had agreed with his learned friend that his Honor should be asked to make an order that the land in question should be a public road, and that costs should be fixed at £5 Ss and money out of pocket expenses. Mr Stringer, for defendant, suggested that, as the fence had been removed, the plaintiff should take an order simply restraining the defendant from interfering with the road and drain. His Honor made an order to that effect, with costs £5 6s and disbursements. NUTT V. BISHOP AND OTHERS. Mr Fisher (instructed by Messrs Deacon and Bishop) appeared in support of an application on behalf of Samuel Nutt, hotelkeeper, of Little River, for an order prohibiting H. W. Bishop, S.M., and Constable Patrick Regan, from proceeding further in the matter of a conviction of Nutt on a charge of having supplied intoxicating liquor to a drunken man, and having permitted drunkenness on his licensed premises. Mr Stringer appeared for the defendants.

There were two motions, but it was agreed that they would be taken together. Mr Fisher said that on March 20, 1895, at a sitting of the Magistrate’s Court, at Little River, before Mr Bishop, S.M.. and Mr Coop, three informations were heard against the plaintiff, Nutt, licensee of the Forsyth Arms Hotel. One alleged that plaintiff, on Feb.‘23, had supplied liquor to one William Cochrane, who was intoxicated, another alleged that plaintiff had permitted Cochrane and one Edward Turley to be drunk on his licensed premises. The third alleged that he had supplied drink to Edward Turley while in a state of intoxication. The three informations weraheard together. After hearing the evidence, Mr Bishop stated that the judgment he was about to give was his own, and was dissented from by Mr Coop. He then convicted Nutt on the charge of selling liquor to Cochrane, and ordered the conviction 'to be endorsed on his license. He also convicted Nutt of haying permitted drunkenness on his premises, and fined him £lO, and ordered the conviction to be endorsed oh his license. The charge relating to supplying Turleywas dismissed. The plaintiff now submitted that the defendant, H. W. Bishop, .had acted in excess of his jurisdiction in convicting the plaintiff; when his colleagne sitting on the Bench judicially held that the informations should be dismissed, as tho evidence was insufficient to convict; and that if he had not acted in excess of his jurisdiction in that respect he was not justified in fining Nntt for permitting Cochrane to be drunk on his pr emises, as he had already been punished for having supplied the man with liquor when in a state of intoxication. Nutt had been fined £lO, and had paid it and coats to Ryan as Clerk of the Court, As, however, Ryan had, by turning the money into stamps, practically handed it over to the Government, the plaintiff could not now recover it from him. Mr Fisher submitted that if a magistrate sitting with a justice could 3 arrogate to himself the jurisdiction, and act in sole opposition to the opinion of, his colleagne, he could also do so when sitting with two, three or more justices, which would fee absurd and a scandal. Section 17 of the Magistrates Act, 1893, which gave a Resident Magistrate the power when sitting alone of two Justices of the Peace, provided that a Resident Magistrate should be a Justice of the Peace, not that he should be two Justices of the Peace. The powers formerly given to a Resident Magistrate could not now be held to apply, as there were now no Resident Magistrates. The Act under which they had been appointed had been repealed, and though the repealing statute had pro-, vided that all Resident Magistrates then in office should become Stipendiary Magistrates, it had not stipulated that they should have the same powers. Whatever power Stipendiary Magistrates had of acting as two Justices, they got under Section 17 of the Resident Magistrates’ Act. This power could only fee exercised when sitting alone. He cited authorities to show that magistrates were, in the words of Mr Justice Williams, justices of a particular kind; that when sitting alone they had the powers of two justices, but when sitting with others, had only the power of one justice. A magistrate never was two justices j he only had the right to do, under certain circumstances, what two justices might do. His Honor asked if Mr Fisher said that any local justice had ;the right of insisting on sitting with a magistrate in any case. Mr Fisher: In cases under the Justices of the Peace Act.

Hia Honor: Bat in cases under the Licensing ActP Mr Fisher thought that a justice had the tight in cases under the Licensing Act, to which the jurisdiction of a justice of the peace extended. Mr Stringer pointed out that Section 4 of the Magistrates Court Act, 1893, provided that the powers exercised by Resident Magistrates might be exercised by Stipendiary Magistrates. _ Mr Fisher submitted that it was not competent for Mr Bishop when sitting with a justice of the peace, and as a justice himself, when he found that hia colleague's decision was against him, to oust hip jurisdiction. The Act provided two kinda_ of courts, courts of summary jurisdiction consisting of two justices, and magistrate’s courts, in which the magistrate sat alone, or with others. When a magistrate sat in a court of summary jurisdiction, he had only the powers of one justice of the peace. With regard to the second conviction of Nutt foe having permitted drunkenness on his premises, that fact was part of the same transaction for which be had already been fined—having supplied Cochrane with liquor when the latter was drunk. Mr Stringer said that tho contention of the respondent in regard to the first point was, that under section 195 of the Licensing Act, 1881, the magistrate was given a special jurisdiction. Hia Honor said that he was entirely with Mr Stringer, and would be very , sorry if it were otherwise. Mr Stringer said thatthe Act constituted two forums, as it were, one consisting of two justices, and oneof a magistrate sitting, he would 'submit, whether alone or with others. That, magistrate, whether sitting alone or with others, had power to decide the matters coming before his Court. There might be circumstances under which

it might be desirable for a magistrate to sit on a case without the intervention of the local justices. Such cases might well have been in the contemplation of the Legislature, and therefore it was intended, that the magistrate, though he could not exclude the justices, could overrule them. It that wore not so, it was difficult to see the meaning of the latter part of the clause ■—thatproviding for the alternative court. The sitting at which Nutt had been convicted was a regular sitting of tho Magistrate’s Court, and therefore Mr Bishop had at the sitting all tho powers of a magistrate. The mere fact of Mr Coop’s presence did not disqualify Mr Bishop from exercising his jurisdiction as magistrate. With regard to the point that the second conviction was practically a conviction for the same-offence as the first, the plaintiff had not taken ■ the proper course. It was more a'matter for" appeal. Thera, must be a motion,’ and the conviction must be brought before the : court; which at present was not properly seized of it. The evidence showed that there had been two distinct offences.: one of supplying Cochrane when drunk, and the other of permitting drunkenness on plaintiff’s licensed premises by permitting Cochrane and Turley to be drunk thereon. As the record of the Magistrate’s Court showed that there had been two offences, the onus of proving the plea that there had not lay on the person charged. In this case the charge had bean permitting drunkenness on his premises. It was true that the information went oh to say, by way of explanation, that it was by permitting Cochrane and Turley to be drunk on the premises, yet if the facta had shown that there had been drunkenness therein, Nutt could have been convicted, even though it had not been shown that Cochrane and Turley bad been drunk. Mr Stringer submitted that prohibition was not the remedy to be applied in this case, because there was nothing to prohibit; the license had been endorsed and the fine paid. The plaintiff’s proper remedy was to endeavour to quash the conviction. Mr Fisher quoted authorities to show that where a party had no opportunity of applying for prohibition before the Court below had delivered judgment, prohibition might issue. In regard to the question of jurisdiction, he asked his Honor to hold that the words " with others ”in the section constituting a court in which the Resident Magistrate sat with others meant other justices, and that when a Magistrate sat in such a court he had merely the powers of a justice and no

more. His Honor took time to consider his decision. [Pee Press Association.] NELSON. July 17. The Supreme Court sittings were opened to-day by Mr Justice Richmond. There was only one criminal case, and the accused, Richard Parry, of Collingwood, pleaded guilty of stealing a cheque for £6. He was placed on.a year’s probation and ordered to refund the amount of the cheque and pay £6, the costa incurred. In the divorce case, Theak v. Theak and another, the husband's petition, a decree absolute was granted. DUNEDIN, July 17. In the Supreme Court to-day Mr Justice Williams gave judgment in the case of the Corporation of Dunedin v. Bowler, an appeal from a decision of the Stipendiary Magistrate. Mr Bowler is an auctioneer for Messrs Wright, Stephenson and Co., and holds sales throughout the country. He lives in Eoslyn, and took oat an auctioneer’s license there, the fee for which the Dunedin Corporation sought to recover. His Honor decided that it was for the Magistrate to draw the inference of fact which was to decide the case, namely, whether Bowler had or had not a usual place of business. If the Magistrate drew an inference with which he (the Judge) might not agree, the decision was still one of fact, and there was no appeal. The case was dismissed with costs.

( Mr Justice Williams also gave his decision in an appeal mad&ifrom the decision of the Stipendiary Magistrate in convicting Armstrong, dentist, for a breach of the Factories Act. The sole question was whether an occupation in which assistants were employed came within the meaning of " handicraft.” His Honor decided that the case came within the meaning of the Act. The employment of those persons at manual labour at a weekly wage in a room set apart came within its meaning. Tho conviction was affirmed, and the appeal dismissed with costs, £6 6s.