SUPREME COURT.—Sittings in Banco.

New Zealand Herald, Volume III, Issue 682, 20 January 1866, Page 5

SUPREME COURT.—Sittings in Banco.

(Before His Honor Sir G. Arney, Chief Justice.) His Honor took his seat on the Bench at 11 o'clock. The following cases wero brought on for agreement :— MUIB v. AUCKLAND OAS COMPANY. Mr. Weston appeared for the plaintiff, and Mr. Gillies for the defendants. In this case on the applications of the counsel for the defendants, a rulo nixi had been obtained. Mr. Wescon now appeared to show cause. Mr. Weston said that tho grounds upon which the rule tiiri had been obtained, was the discovery of fresh evidence, but his Honor in granting the rule accepted the other two grounds, namely mis-direc-tion or rather non-direction—in not having explained tlie effect of a particular portion of the evidence — and that the verdict was against the weight of evidence. The learned counsel contended that tho affidavits were defective. As to the chief ground upon which the rulo nisi had been obtained, it was clear that the defendants had not taken any means of finding out the whereabouts of Finlay, and had not afforded the Court or the jury any information upon the subject His Honor: Does it not appear that there is an absolute necessity to have Finlay's evidonce, in order to ascertain the measurements. Mr. Weßton read tho affidavits of llr. Stewart, tho engineer, and contended that the defendants must have known of the evidence of Finlay, and that, as they had taken no trouble to obtain tho fault was entirely their own, and the circumstance that the evidence being forthcoming casually after the verdict was not asufficient ground for setting the verdict aside by a new trial. It was incumbent upon the defendants to show that they could not havo obtained the evidence, or that they were ignorant of it. They might have applied for a commission. His Honor: Might it not be sufficient for the Court if it considered the fresh evidenco material without inquiring as to whethor or not it would " force " the verdict of a now jury p Mr. Weston: In the case of Sponge v. Hall, it was laid down that inasmuch a3 in every cause evidence was kept hack for some reason or other, the defendants had now no right to nsk the Court to Bet aside tho verdict when they knew, to use the language of the report (2. Blackstone's Reports), " Where the ca ji; presses-" His Honor : One may inquire what the defendants could possibly have done to procure the evidence of Finlay, unless they knew that Finlay was on his voyage out. They could not have obtained postponement of tho trial upon any other evidence. Mr. Weston contended that tho plaintiffs could not now take advantage when they had not shown the slightest desire to obtain the evidence at tho trial. He therefore contended that tho rulo ought to be discharged. Mr. Gillies, in support of the rule, said the manner in which tho jury had given their verdict intimated that tho justice of the case had not been attained. His Honor: " It did not meet the equity and justice of the case" wero, I think, the words used, and they further intimated that this arose from defective evidenco. Mr. Gillies: The real ground for a new trial was, that justice had not been done. As to the knowledge of Finlay's evidence said to have existed in the mind of the defendants, tho manager of the company did not know of it. Scewart's arfidavit showed that ha did not know of it; but he had stated that from the plans which he had made he could have eliminated the quantity. Plans had been furnished to the company, but it was not shown that these plans werefto the same effect. But if Stewart could have eliminated the quantities from his plans, it was the plaintiff and not the defendants who had suppressed evidence material to the issne. Therefore, the answer to tho argument of the learned counsel on the other side was the best answer that could possibly be given, namely, that the plaintiff had in his possession the best means of knowing the quantities. The learned counsel had stated that ifc was through the defendants' carelessnesi that the evidence had not been produced. Ho had also Btated that it wai their duty to have discovered and brought it forward ; that tho defendants had access to all books and papers; that they could have sont for the engineer who had prepared tho plans. But this was simply an argument upon the assumption, that upon tho defendant and not upon the plaintiff lay the onus of proof. It was the duty in every case, no doubt, of the defendant to rebut as far as possible the evidonce brought on the other side, but the defendant swears that he did not know of this evidence. There was a caso in " Price's Reports," and which was further montioned in " Chitty's Practice," where a new trial was granted, of which case tho main feature was that the parties had the evidence in their possession, but did not know of it on the first trial. His Honor: The plans themselves would hardly Bhow the relative quantities, namely, tho amount of excavation that had been performed, and that which remained to be porformed. Mr. Gillies : It was argued on the other side that the defendant might have obtained a commission to have examined Finlay, or they might have applied to the Court for a postponement of the trial. But the defendant did not know where Finlay was. They merely knew that he was absent from the Colony, and even if they had known whore he was, then they merely know from the evidence that he could give some evidence, but the value of his evidence or its importance in the cause they could not have known. If the quantities could have been ascertained from the plans, Finlay's ovidence would not have been su material. The plans were now shown to have bnon all the while in the possession of the plaintiff. It was only on the trial that it appearod that Finlay could have given the information required. His Honor : Finlay had been tho manager, and he was referred to by the witness Bray as the only person who could give the measurement accurately from personal knowledge. Mr. Gillies : I. he Court would see that it was not necessiry to show what amount of evidence was required to obtain a new ''.rial: that it was sufficient to show that the veidict had not boen prima facta a

i- just verdict It wai enough if it were made out to e tho satisfaction o the Court that justice had not i. been done. Then tho Court, by granting a newit trial, did not Bay that the verdict of the jury was , wrong, but that there had been snch a miscarriage of »f justice without any fault of theirs as made it nocese sary to institute the inquiry anew His Honor said: I don't think there 'is any diffio culty in disposing of this application. The argument 0 of the learned counsel for the defendants has been .. founded upon two ground*, namely, the discovery of 1 fresh evidence, and that the verdict of the jury was r against the weight of evidence. The main argument s alleges that justice requires that this cause should be t sent for trial to another jury. It is necessary that I 9 should dispose of the first and third grounds, namely, i misdirection, and, as to tho verdict being against the t weight of evidence. If the discretion of the Court > was unproperly exercised, the defendants would have a right to go to the Court of Appeal, and have the ■ discretion ot the Court reviewed. I think that on ' this ground tho defendants are not entitled to a new . fcriah It was said that tho Judge ought to have told 1 tho jury that they should not consider the estimates 1 of Bra}', as to quantities, as evidence in tho cause— I that it was left to the jury in an extremely loose and unsatislactory manner. Out the jury were cautioned against taking them as conclusive. The Court wa3 of opinion tliat evidence of this description did not range itself under the heading of " expert" or scientific evidence, but rather as evidence of fact, foundod upon experience and observation. Then, on the third ground, that no judgment could be entered upon tho verdict. If there were a special motion made to enter and amend th« verdict, according to the finding of the jury, this would distinctly raise the question whether tho remarks appended by the jury ought to be taken. Supposing they had been so taken, the way to test the matter appears to me would be this. Could they have found a verdict diminishing the amount of damages that was due to the plaintiff, and if they should think that tho defendant would be entitled to a new trial becauso there was not evidence of furthor payments. The jury were asked whether there was evidence of further payments being made, and they said there was. I think the verdict was sufficiently well entered. It is very material to tho interests of justice that this question should go to a new trial, fhe only ('question with the Court was, as to the terms on which it should be sent. I cannot entirely acquit the defendant of something like neglect in not producing Stewart's plans, sections, and measurements. Xt is true there are strong affidavits from thorn, which said that they did not know of the existence! of this information, but there was no affidavit from the gentleman who would be likely to know most about them. It is true however that even tho Ohnirman did uot know that Mr. Stewart had these plans and sections in his possession, but looking at advanced position of this community, I cannot help thinking that by a more scrutinizing care they might have "been been obtained. Stewart was the engineer employed by the Gas Company. I think also that though it is not quite clear tiiero was neglect, I cannot say that tho plaintiff had used the utmost diligence. I think tho case ought to be sent to a new trial, but it must be dono on terms, namely, the payment by the defendants of tho costs of the previous trial. If the measurement can be ascertained the case need not go to trial, but the Court has thought it right to give a specific decision upon tho application made to it. THE CITY HOARD AND TUB AI.BHBT-STEEET CUTTINO. Wrioht V. Ekilly. This wag an appeal from tho decision of tho Resident Magistrate. The argument arose ont of a special case sent up by Mr. Beckham. Tho plaintiff had been charged before his Worship upon information I made by the Inspector of Nuisances to the City Board with wilfully obstructing a public thoroughfare by 1 leaving a quantity of earth upon tho footpath in the month of November, 1865. The case came before tho Resident Magistrate for hearing upon the Ist of Decomber, and the defendant was fined in the nominal penalty of one shilling and tho costs. The facts of tho case were very few. The City Board having resolved to make tho pormanen t roadway of Albert-street, found it necessary to make a deep porpendicular cutting. In order to indemnify themselves against any action of damages on account of injury to property on either side of tho street, that might be brought by owners and leaseholders, they obtained the following authorisation in writing " We, the undersigned owners and leaseholders of property in Albert-street, Auckland, authorise and empower tho City Board of Commissioners in Auckland, to carry out and complete tho cutting of the said street, opposite to our respective properties, perpendicularly from the palings downwards And we hereby relieve the said City Board of Commissioners of all claims for damages that might in any wise arise to us or to the occupiers of our respective properties in consequence of the said City Buard so carrying out such cutting. Dated at Auckland this Ist day of March, 1861." Tho following was the decision of his Worship tho Resident Magistrate:—" That tho authority given by Wright and others to make the alterations in the street, not only indemnified the Board against any damage which might arise to their property, but it made the acts of the City Board their acts, that this cutting wa9 made by their agency, and they (the owners) became responsible to the pubh; for any obstruction, that the necessary precautions not having been taken to prop up the the embankment, and it having fallen in, there was an obstruction of the thoroughfare which could only bo regarded as a wilful obstruction." Mr. Gillies was counsel for the appellant; Mr. Wynn appeared for the respondents. . Aftor some interlocutory discussion, Mr. Gillies said that the offence charged against the appellant in the Ciurt below, was created by the ' 21st subsection of the second clause of the " Auckland Municipal Police Act, 1862." There was no 1 doubt the thoroughfare had been obstructed by a part of appellant's property slippling into the road from natural causes, but still consequent upon the cutting having been made. Tho subject ranged itsef under two heads, as follows: was the obstruction the act of the appellant, for which he could be , held responsible " criminally." If it be held to bo his act, can it be interpreted as a wilful act of obstruction. His Honor : The leaving'of tho earth becomes the main iDgrodient. The moment the earth fell the offence of " leaving " was presumed to have begun. These words constitute the basis of the decision of the Court. Unless the appellant was not bound to support his land the conviction must stand. He . might have received notice, and that fact being proved, he would have been lawfully convicted. The Court must of course assum6 the fact that the thoroughfare was obstructed. Supposing the proprietor bound to support his land against the public as well as against a private individual, then the falling in of the land is the obstruction, and the non-removal constitutes the offence. Mr. Gillies : The argument would certainly turn upon the quostion whether the proprietor was bound to support his land . With regard to the first heading whether tho obstruction was tho act of the defendant, for which he was responsible, it was clear that it was not his own immediate act in anyway He did not throw the earth on the road. Ic came there through natural causes, but in consequence of tho previous cutting made by the residents. The immediate causo of this obstruction was the action of the weather, for which it could not per se be said that the appellant was responsible. Supposing the property to have been in its original and natural state withont any cutting having been made, and supposing a landslip to have occurred through flood or othor natural cause, it would not under such circumstances be considered that the appellant was resposible. His Honor: I apprehend that natural causes must be taken to moan in Buch a case as this, causes beyond a person's control. Mr. Gill ies : But then there was what, perhaps, should be called tho proximate cause, namely, the cutting by the Town Board. The appellant, his assent having been withheld, could not have been made responsible in any way. That position could not be denied. Therefore he was not criminally responsible for tho cutting made by the Town Board, merely because he assented to their act, if it were an illegal act. Neither could he have been made responsible on account of tho two causes of the obstruo • tion combined. The consent or authority given by the appellant then came in as the main element in the nueation. On that hinged the whole question of responsibility. On the quostion of tho ageacy, the Magistrate had formed his decision in the Court below. If that judgment were correct, tho appellant was responsible, mainly by virtue of the docuinenls net forth iu the case for the acts of the Town Board, and tho consequences of those acts. Clearly a man is not responsible for the consequences accruing by the action of a I natural law.

His Honor: You must give me authority for tha 4 f w : t , A * the present moment Ido not quite assent to it that an owner of property is not to protect his property from falling so as to injure private pronertv or cause a public destruction. I cannot quite aWt to the doctrine that a man is not responsible for consequences arising from the operation of ordinary natural causes, Mr. Gillies: No one can be held liable for causes beyond liis control. His Honoi-: Shutout the word " Liable," Sir. GLU lies, and use tho word " Duty." Is it not a man's duty in the enjoyment of his land to preserve ic from injuring his neigbour. If a man comes and buys a piece of land in town liexc to a thoroughfare, is he or is he not bound to suppress his land from falling into the road. Mr. G-illies: In absence of any statutory enaactment by which certain duties would be cast upon the proprietor, I am not aware of any principle of common law binding a man to protect his land from falling into his neighbour's land, of course, natural causes, and no specific act shown by which a man may have contributed to that result. His Honor: I remember a case tried at West Cowes wherein a landslip had occurred, and a tree fell not only across the road but into the field beyond, lhe tree was claimed, and by the original owner, and a wonderful deal of litigation grew out of it. Mr. Gillies : Next, as to the authorization given by the appellant to the City Board. It would be contended oa the other Bide- thit this authorization created an ageney in the City Board for the purpose of making the cutting, and that, the appellant is responsible lor the consequences of theaotof the City Board as agent. The document carried with it no such meaning. The City Board hal the management of the streets. The owners had the right to the support of the adjacent land, and there was nothing iu the authorization that deprived them of right to sup; ort to bo given by the City Board in the event of their making the cutting, which they did. Besides the appellant had no right to make ttie cutting himself, and he could not confer a right npon others which he had not himself. There was no such presum I ion of any such right. Therefore, the authorization could not have created an agency in the Cit} lljard. Tho document simply amounted to an indemnification against an action, and nothing further could be imported into it. The owners said we will not bring an action against you for injury dono to our properties, but it did not imply that the ownors accepted the responsibility of all consequences that might result from tho falling in of the land such as the obstruction that was charged against them. The permission was Pimply a dedication of a portion of their property to a public purpose. (The learned gentleman referred to several leading cases. Fisher v. Prowse, reported in 2, Best and Smith; Robins v. Jones, 151, Common Bench. .Reports in whieli it wa3 laid down that no action could be maintained against a persou for a dangerous nuisance, on aceouut of an accident consequent upon such dedication of private p roper to publio uses His Honor : That is upon tho ordinary principle that persons using have the obligation of keeping in repair. The existence of a private right of way does not throw upon the owner of the soil the duty of keeping it in repair. Mr. Gillies : There was no greater liability here thun existed between private persons. Evan if the City Board were to be considered as agents under the docu-nont, the appellant would be responsible only so far as tho consequences were the natural and probable consequences arising out of the act. He could not be held liablo for any .consequence arising from the Hoard going beyond the scope of the authority given to them. It was not a natural consequence that the land, adjacent land, should Blip. The extent of the responsibility depended upon a variety of circumstances as the nature of the ground, the manner of the cutting, and if as had been shown there could no right bi given to an as;ent which the party had not in himself, this could not be considered the act of the appellant, and it lay with the City Board to take what precautions were necessary against the consequences of what they had done. As to there being a wilful obstruction whero ever there was power given to make cuttings, clauses were generally inserted making it compulsory upon trustees and others to support the land. Tne argument of hardship was not in a case like the present a good argument. But it would bo a great hardship if when a man surrendered a portion of his land or property for the public bonetit, ho should be made liable lor all the' results arising out of the neglect of those who were trustees for the public, and that ho should be obliged at the same time that ho received no recompense to spend largo sums of money to protect himself against the consequences of the acts of other persons. Then there must be some difference between an " obstruction" and a " wilful obstruction." To constitute the latter offence there should be shown an actual intontion of obstructing. There must be an act done or an omission persisted in deliberately. There should bo a constructive exercise cf evil in all criminal acts, not {a negative exercise or simply an allowance on the part of a person. He considered that the judgment of the Court below was erroneous, and that the conviction could not be supported. Mr. WyVin submitted confidently t the Court there could be no doubt in the mind of the Cour' upon the question of agency. Tho powers of the City Board were not so as might be supposed. They simply had power over the Use of the streets. They had no power over the reserved lands of the Crown. The street 3 for this purpose might be considered as a portion of the reserved lands of the Crown. Both parties contemplated tho result; which afterwards happened, namely, the falling in of the land. Neither made any express stipulation by which such an event should be guarded against. The case stood thus:—There were two people making an agreement to effect a particular change. Who was responsible for the alteration ? • His Honor: Prima facie the person who did the act was responsible, and the question here was whether tho person who did tho act should be passed over and the responsibility be laid upon another. Mr. Wynn: Supposing a person to have 1 alien down this bank and been severely injured, against whom would an action lie ? His Honor: That wouldl raise the whole question which we are considering. Mr. Wynn: And |then, suppose the City Board to have ceased to exist, supposing it to have been dissolved, was there any remedy ? The appellant had given his assent to the state of things which the injury had caused. Could he.divest himself of the responsibility of his act? His Honor: But to sustain an action such as you refer to, you would have to show something more than the act itself. You would have to show that there was a carelessness that amounted to criminality. Although if it were accident tho party doing the act would still be liable in a civil action. Mr. Wynn: In this case the appellant gave his consent, already contemplating that the land would fall in. The City Board in this matter could only be looked upon as an ordinary individual. The arrangements, so far as they were concerned, was simply to guard themselves against claims that might arise from injury to the appellant's property, and the property of others similarly situated. No doubt the offence charged was quasi-criminal, and if the appellant had committed a wilful obstruction that was not provided for by this subsection. The information should have been amended below. It was clear that if the appellant gave his authorization, Knowing that the land must have fallen in, and it subsequently did fall in and injury resulted, he wub responsible, and if responsible, his allowing the nuisance was a wilful act. There was indeed a question whether in such an both parties might not be liable, but that question in no way diminished tho responsibility of the appellant. He therefore submitted that the judgment of the liesident Magistrate was correet. And that the conviction ought to be sustained. Mr. Gillies in reply said that if he was right in the position he had taken up as to a man not being liable for the consequences brought about by natural causes, the rest of his argument was unassailable. If the cutting was an illegal act on tho part of the City Board, then the appellant could not have given them authority ti do an il.egal act, and that authority would not therefore maio them agents. In this respect, the argument of the counsel for the respondent cut the ground from under him. There wa3 nothing to show that the falling of the earth was at all contemplated by the appellant. To him it must have appealed more probable thit the City Board would have made the publio street, taking alt necessary precautions to obviate injury either to private property or to the public. He was of opinion that the conviction could not be sustained. His Honor said he would'look into the authorities, j He would therefore defer pronouncing judgment I until he had looked through the whole owe. I The Court roi# at twenty minutes past 4 o'clook. I