DISTRICT COURT.

Lake Wakatip Mail, Issue 753, 16 April 1873, Page 3

DISTRICT COURT.

'QrjEEXSTnwx— 2nd Apbil, 1873. (Before His Honor Judge Gray.) M'Arthur (appellant) v. M'Ardell (respondent.) Mr Barton for appellant; Mr Turton for respondent. This was an appeal against a decision of Mr Warden Beet Ii am, made at Queens town on the 18th of January last. The respondent (M'Ardell) had laid an information against the defendant, before the Warden, for depi.3 uring sheep in the Wakatip Depasturing District, upon land in that district set apart for great cattle. The Warden had convicted the defendant of the offence, and fined him Is and £b" 7s costs. The information was laid under the 101st Section of the Goldtields Act, as for breach of one of the depasturing regulations made under the authority of that Act. The defendant now appealed against the decision on the ground in the words of the appeal, " That the alleged offeuce, of which I was convicted—to wit, the depasturing of small cattle on land set apart for great cattle —is not a punishable offence." The particular regulation which defendant was charged with having broken was Kegulation 7 of the Depasturing Regulations of the Otago Goldtields, made under the 14th Section of the Goldtields Act, 1866, by his Honor the Superintendent, as delegate of the Governor. The Superintendent's proclamation is dated June 23, and is gazetted in the Provincial Gazette of June 24, 1868. The 14th Section reads as follows : "The Board of Wardens shall have power to regulate their own proceedings, to frame Rules for subsequent elections, to compute the quantity of stock capable of being depastured within the district, awl to divide the dint rid, if required, into separate district* for sheep and cattle, subject always to the conditions and regulations hereinafter contained : Provided that no such Rules shall be of any elfecfc until assented to by the Superintendent, and unless the same are published in some paper circulating in the district." Mr Barton, for the appellant, admitted everything necessary to sustain the conviction, except the sufficiency of this Regulation to make the depasturing of small cattle in a great cattle district a breach of the Regulations, and, therefore, a pnnishable offence. The case was argued by counsel at considerable length. His Honor having reserved his judgment for a day, afterwards gave his opinion to the effect that this Regulation, though it gave power to the Board of Wardens to divide the district, if required, into separate districts for sheep and cattle, should have gone further before a conviction could be sustained upon it—it left too much to be implied. It did not, in terms sufficiently explicit, cr, indeed, in terms at all, forbid that, after a district had been so divided, no holder of a liuense should depasture small cattle in a great cattle district, nor great cattle in a small cattle district. Whenever it was alleged that the Legislature had created an offence punishable upon summary conviction, thus depriving the person accused of his right to be tried after tiie manner of the common law, the Courts had always required that it should appear by the express words of the Act that the Legislature had done so, and that the offence h.n'.ll riot bo l"f Mi be merely gathered by implication, or constructed by inference, or made out on the ground that the Legislature had intended to say what they had not actually said. The test that, though the Legislature may have meant it, yet, "quod vol ait non dixit" (" what it meant it has not said"), was one constantly applied in interpreting Acts of Parliament, and it certainly wis not less needed in interpreting Regulations and Bye-Laws. He thought that this Regulation would not susxain a oonviction for a breach of it as a regulation against a person who had depastured small cattle in great cattle country, or vice versa. He arrived at this conclusion with regret, as he felt that, if correct, the intention of the Legislature was frustrated, aud great injury inflicted upon theagricultural settlers on the goldfields. He would say, au the same tune, that he did not feel wholly without doubt concerning it, and he would gladly have the matter tested by reserving an opinion for the Supreme Court, if the prosecutor wished him to do so. There were other difficulties in the matter which would have assumed more importance had his opinion been the other way. These difficulties were as to the Section of the Act under which tbe appeal should have been taken, and in vol veil generally the nature of the jurisdiction, and the proper procedure in these convictions under the Goldtields Act. If he reserved any case for the Supreme Court, he would ask its opinion on this point also. Mr Turton, for the said that his client dreaded the expense of a proceeding in the Supreme Court, and tnat he, and those on whose behalf he acted, would rather accept the present decision, and trust to the chance of getting the Regulations—and, if necessary, the Act—amended, in order to make good the rights which it was intended to confer on them.

Appeal allowed. Warden's decision reversed, without costs in either Court.

ItESIDENT MAGISTRATE'S COURT. Qceenstown,— April 3bd, 1873. (Before R Beetham. Esq.. R.M.) Atterly v. Vincent.—£l4, for trespass of defendant's cattle on plamtiifs land, aud damage done to crops. Messrs Barton and Turton for defendant; plaintiff in person. Both parties are neighboring farmers, and have a dividing fence between their lands. The plaintiff (Atterly) says that it is useless to fence against the defendant's cattle, as they will tear down any fence ; and further, that the defendant has only fenced his part of the division fence with wire, and no top rail, so that it affords no protection to plaintiff as against such cunning cattle. The defendant replies that he herds his cattle ; that he ties them up ; that plaintiffs fences are bad ; and that no damage was done. The plaintiff, in reply to the Court, had stated that he could only get one wituess, in lieu of the two required to assess damage by the Act. Mr lieethain held that trespass had taken place, but that tiie evidence as to damage was not proved. —Verdict for Is, the costs, 18s, to be divided. Mourison v. Elliott.— £'2>), damage done by defendant's sheep by destroying plaintiff's fence and crops. Mr Barton for pluinlilf; Mr Turton for defendant. It was clear enough that the defendant's sheep had not only trespassed upon cattle country, but upon plaintiff's cultivated land, at Arthur's Point. The evidence as to the injury sustained by such trespass to the crops was supported by one witness. -Verdict for ,€7. and costs £5 13s. Eichardt v. Arn.^l.— £4u 19s, board, bricks su] plied, &c. Mr Turton for plaintiff; Mr Barton for defendant. This was an adjourned case from the Ist inst. In this case the defendant had undertaken a contract to build a stone kitclien for plaintiff. The amount really due plaintiff, according to his account, was larger than that claimed. Mr Barton cited the following case 3 in support of his contention that, while a builder's contract remained open, it wa3 not competent f.ir the employer to sue for money paid on account of the contract: — Towers v. Barnctt, 1 T.lt. I'.ili ; Dowis v. Street, 1 C. aud P., 18 ; Weston v. Downes, 1 Dongl. 23. The Court was with defendant's counsel.—Nonsuit granted, with costs. WiicnKN v. Howakth —.€'2 19s, balance of an account of £0 19s, for engaging two boys from the Industrial School, Duuedin.— Verdict for £2 13s, and 9s costs. Turton v. M 'Dour;all.—£3 3s, legal charges. —Verdict by default, with costs 9s. Sulevan v. Langham.— £2, cartage.—Verdict for amount* and costs 9s. Marsh v. Mas debs.— £3 7s 6d. The defendant said he bad rendered himself responsible for the debt of a third party, and offered to pay 2s 6d per week. Order accordingly. Thursday, 10th A*»ril. Mary Hiodev (by her attorney, J. Bridge) v. Pri ;e.—£24, renti Plaintiff in person jMr 1 urton lor defendant!

The plaintiff produced a pouir of signed in Victoria, and stamped in this colony. The defence was that the letting of the house and land was not entered in document; and that plaintiff's right of title was not perfect. J. Bridge and wife deposed to the letting at 10s per week, and promise to pay. H. Mandera said that the Crown Grant was lifted for plaintiff upon a declaration that she was to all intents and purposes a widow. Produced receipts for money paid, and had seen the Crown Grant. C. 12."Price ricvpr agreed for terms of rental at 10s. Had received notice from Mr W. Turton, as agent for Mr Bathgate, that portion of builduug was on his section, and therefore claimed rent. Plaintiff said only a few inches of a lean-to was on Bathgate's ground. Mr Tu-ton produced Crown Grant to Bathgate, for adjoining section, and notice that part of building was on ground. Was willing to pay, wfth Bridge, half costs of survey. Plaintiff declined to have anything* to do with last witness. A question was raised as to whether Bridge Was not the real owner of the premises This he denied. lie had to sell to others; or purchase for himself upon a valuation. The Court reserved judgment to the 17th inst. Tprton v. Kapatzo.—£l4 6s Bd, legal charges. —Verdict for plaintiff, with costs £1 7s. Haines v. Kapatzo.—£4 14s 6cL— Verdict for plaintiff, with costs 9s. WARD E N'S (To U S T, Queenstowx,— Apbil 4th, 1873. (Before R. Beet ham, Esq., Warden.) Application J. W. Robertson for 5 acres mining lease at One-MUe. Application objected to by Corporation. Mr Barton f r objectors; Mr Turton for applicant. Mr Robertson said the ground had been used for mining for eight or nine years. Johnson mined on it and others. (This application has lwen adjourned several timed, till appeal was settled.) Mr W. Turton said thegrouud applied for was outside town. Mr Barton said the ground was required for public purposes. Mr Turton would agree to adjournment, on understanding that Corporation pay Robertson's expenses. Mr Barton said be would not agree to costs. The Corporation could take the land and water whenever they liked. Mr Turton applied for two days' costs. Costa allowed, in all, £4 4s. Application for lease granted.