Law Intelligence.

New Zealand Mail, Issue 220, 27 November 1875, Page 20

Law Intelligence.

SUPREME COURT.—MATRIMONIAL JURISDICTION. Monday, November 22. (Before their Honors the Chief-Justice, Mr. Justice Johnston, Mr. Justice Gillies, and Mr. Justice Williams.) The Court sat at 11 a.m. knowt.es (petitioner), and knowi.es (respondent), STOWERS (CO-RESPONDENT.) Petitioner asked for a decree dissolving the marriage on the ground of his wife’s adultery. Mi*. Izard applied that evidence by affb davit might be substituted for oral evidence in this case. Ho cited Palmer and Palmer and Rendle and Rendle, both of which eases had come before the Court at previous sessions as precedents for the course he desired their Honors to take. The affidavits related to adultery committed in Melbourne and Wellington. A long discussion took place, and on Mr. Izard submitting the first affidavit, tlieir Honors delivered judgment. The Chief-Justice said . Although it is not necessary for us to go further than to say that inasmuch as that in this case you have not followed the' ordinary rules of Court by not tiling the affidavits within eight days after the making of the order, they are inadmissible, yet it seems to be better for us to give an opinion ■upon the main question you have raised. In this case there has been no defence set up, and the question asked is: Whether in a case where there has been no defence raised, evidence on affidavit can be admitted. Affidavits can not be admitted except the affidavits of the parties—the petitioner, respondent, or co-respondent. Our Act differs from the English Act in having had introduced into this 46tli section “ his or her own.” The English Act does not contain these words, and therefore it is competent for the courts in England, although they do not exercise the power extensively, to allow tho whole or any part of petitioner’s case to be proved by affidavits of any person not restricting affidavits to the petitioner or the other parties to the suit. In New Zealand it must be otherwise. The 46tli section says, “ The witnesses in all proceedings before the court where tlieir attendance can be had, shall be sworn and examined orally in open court, and such attendance and the production of documents by them shall be compelled in tlie same manner as in an action at law, but the parties shall be at liberty to verify tlieir respective eases in whole or in part by his or her own affidavit, hut so that the deponent in every such affidavit shall on the application of the opposite party or by direction of the court be subject to be cross-examined by or on behalf of the opposite party orally in open court, and after such cross-examination may bo examined orally in open court as aforesaid on his or her own behalf.” The rules provide how this is to be done. Affidavits are to lie filed a certain number of days, and these persons can be called upon to be cross-examined orally. Now, it may have been considered that where eases were undefended, where no appearance lias Ivon entered, the case may he said to go by confession or default; but it seems to me that the 25th section shows that the court must hear the case, and decide the case quite irrespective of the admissions of the parties by a want of appearance or otherwise. The 25th section says, “ In case the court is satisfied on the evidence that the case of petitioner has been proved, and docs not find that the petitioner lias been in any manner accessory to, or conniving at, the adultery of of the other party to tho marriage, or lias condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with the respondents, or either of them, or with any person liable to be made a re-

spondout under the provisions herein contained, the court shall pronounce a decree declaring such marriage to bo dissolved.” That section seems to show that the Court is to be satisfied upon tlio evidence that the case has been proved. It seems to me that the Court hearing the petition, although the parties do not appear to defend is to he satisfied upon the legal evidence ; that is, evidence taken orally, and in open court. I think it is necessary, although the parties do not appear, that only oral evidence shall be taken, except that it may be taken by commission where tho parties live more than two hundred miles from the place of trial. I think the order made by myself was one which I had no jurisdiction to make, but I may say it was made owing to similar orders having been made before, and with an intimation that I thought our Act did not authorise it. I yielded to a former practice. Mr. Justice Johnston : I quite agree with what has fallen from tho Chief Justice. It seems that the onus is thrown upon this Court, where the parties do not appear to defend to see that good grounds exist for granting a divorce. This is to be done by examination and cross-examination of the petitioner to see if there is any collusion or condonation, and it is also necessary to see that the facts alleged by the petitioner are established by legal evidence. The fact of tho non-appearance of a party does not allow us to deal with the case as we should in an ordinary case between parties and allow tlie allegations of tho petitioner to be acted upon as established by confession, for possible collusion between the parties is one of the principal matters that requires searching inquiry and investigation by the Court itself as a court of conscience. Where the parties appear—the respondent and co-respondent appear—and plead, the issue may be of a different character. Questions such as cruelty or desertion might arise for the determination of the jury. It is clear that there is no intention of alleging anything of the kind in this case. We are asked for a dissolution of the marriage upon tlie ground of adultery and we cannot grant that unless upon evidence of a legal character which must satisfy the court as a court of conscience as to the propriety of granting the decree. As far as the question of affidavits goes, I entirely agree with the learned Chief Justice as to the fact of there being a distinction between the language of our Act and the language used in the English Act, and I think we must come to the conclusion that the words “ his or her own affidavit ” were introduced by the Legislature of New Zealand for the express purpose of avoiding the occurrence which sometimes takes place in England—that the facts necessary to establish the petitioner’s right to a decree are allowed to be proved by affidavits, either wholly or in part. On what occasions it would be proper for the Court to go upon affidavit of the parties it is not necessary here to speculate. It may be that for the purpose of establishing some facts of the petitioner’s case such affidavits might be allowed, but it is clear that the petitioner must be present in order to be crossexamined on tlie question of collusion or condonation. It is not sufficient for this Court to receive an affidavit. Oral evidence is necessary to make the petitioner entitled to the dissolution of the marriage. Mr. Justice Gillies : I am quite satisfied that evidence must be given orally, except in the case of the parties living at a distance from the place of trial. A commission might then issue, but otherwise the evidence is not admissible in this court.

Mr. Justice Williams : I quite concur with tlie remarks that have fallen from my learned brothers. Tlie terms of the 46th section seem clear. “ The witnesses in all proceedings before tlie Court where attendance can be had shall lie swoi*n and examined orally in open court,” and there is an exception engrafted that the parties shall be at liberty to verify their respective cases by tlieir own affidavit. Tlie next section says that the court or judge may order the examination of witnesses by commission under tho ordinary jurisdiction of the Supreme Court. The mode of taking evidence is prescribed precisely by the 46th section of the Act, and there is no power to take evidence generally by affidavits. It is unfortunate that the rules may lead to a difference of opinion ; but it would appear they were framed under the English Acts, and have been framed in error.

Evidence was then given proving that the maiden name of respondent was Louisa Emily Lomax. She was sixteen years of age, petitioner was twenty-four years of age ; and tlie marriage took place at St. Paul’s Church, Wellington, on 23rd August, 1865. Respondent’s mother was present when the ceremony was performed. The parties lived together till last February, most of the time at Marton, when the respondent left the colony for Melbourne, in company with the co-respon-dent .Nowell Stowers, adultery having been first committed in Wellington. One child, son of petitioner, was taken away by the respondent.

After tlieir Honors had consulted, The Chief Justice, said : The court has arrived at the conclusion that the petitioner has sufficiently proved his ease to entitle him to have the rule nisi for divorce granted. The court sees no reason for coming to any conclusion that there has been connivance or collusion. Tho court is satisfied on that head ; but 1 may say, for myself, I think in cases of this nature we ought to expect the parties to prove tlieir cases in the best way they can, and in this ease better evidence to prove identity might have been called. In this case the only evidence tendered in identification is that of the identification of tho portrait. Mr. Justice Johnston concurred, and said these cases ought not to be “starved,” the best evidence should lie brought forward. Much more evidence might have been brought forward. THOMAS (PETITIONER) THOMAS (RESPONDENT). AND HAYES (CO-RESPONDENT). This case was adjourned on the application of Mr. Irani, who appeared for petitioner. It

Is a Dunedin ease, and this course was taken by the learned counsel owing to some error in the evidence taken under commission. This being all the business, the Court adjourned till the second Monday in May. APPEAL COURT. Friday, November 19. (Before their Honors the Chief Justice, Dir. Justice Johnston, Mr. Justice Gillies, and Mr. Justice Williams.) THOMAS AND OTHERS (APPELLANTS) SMITH (RESPONDENT.) This was an appeal from the judgment of the Supreme Court in the northern judicial district, on a demurrer by the respondent, plaintiff in the action in the Supreme Court to a plea of the appellants, defendants in tlie action. The action was brought by the plaintiff to recover £16,000 from the defendant, for wrongfully preventing him from completing certain work in a mine known as the Queen of Beauty mine, situate at the Thames goldfields, of which the defendants and another were owners, which work, by an agreement in writing and alleged to have been made between plaintiffs and defendants, was to have been paid for by the plaintiff’s being allowed to take for his own benefit certain quartz in the mine. The agreement was set out in the declaration, and purported to be made between the plaintiff by name of the one part, and the shareholders of the mine of tho other part, without mentioning their names, but was signed by the plaintiff and the defendants in their own name. The plea set out that, at tlie time of making the agreement, there was another person besides the defendants who was an owner of the mine, and that this person never signed the agreement, or was in any manner a party to it, and that the plaintiff, at the time of making the agreement, knew all the owners of the mine had not signed tlie agreement.

Appellants were represented bv Mr. Macassey (with whom was Mr. Beil) ; and Mi*. McCormick appeared for respondents. Mr. Macassey first desired to take objection to the declaration, contending that rule 214 pointed to the count considering objections to a declaration, although a demurrer had been argued in the Court below, and in support of his contention cited Clapliam v. Atkinson, 4 B. and S., 731 ; Coe v. Wise, L. R. 1 Q. B. 717. The Court having decided to hear the point, the learned counsel objected that the declaration did not comply with sections 4 and 17 of the Statute of Frauds. In that it did not give the names of the parties. He said the matter turned upon the construction of section 182 of the Gold Mining Districts Act, 1873, and then went on to cite Hodgson v. Johnston, 28, L. J., Q. B. 88, and 5 Jiu*. N. S. 290, Cousins and Scott (judgment of the Master of the Rolls) 32 L. Times 420, Galloway v. Jackson, 12 L. J. Ex. 502, Coquet v. Moore, 7 Ex. 870, and L. J. Ex. 35, Patter and Duffield, L. R. 18 Eq. 4, Smith v. Ball, 15 L. J., Q. B. 413, Reg. v. West, 1 Q. B. 826. The declaration did not allege the contract was signed as it ought to have done. It was a contract relating to interest in land (Smart v. Jones, 33 L. J., C. P., 154 ; it was a joint contract with all the shareholders in tlie mine, Dowdall v. Hallett, 14 Jur. 309. It was a fluctuating liability. The contract had never been binding upon Walsh, the seventh shareholder, because he had known nothing about it, and had not signed it, and if it was not binding upon him, therefore it was invalid against the other six. They could not enter into a contract to deal with the property of another. Latch and Wedlake, 11 A. and E., 959. Until all signed there could be no mutuality, which is the very essence of a contract. He submitted that the judment of the Court below must be reversed.

Mr. McCormick contended that any objection which might have been taken by demurrer to the declaration was got over by plaintiffs’ plea, and the Court must consider the case upon the whole record, and could only say whether the judgment of the Court below was bad in law, and according to the very rights of the parties. He cited Stephen on pleading, Wilkinson and Sharp 10, Ex. 724. He submitted that the contract must be taken to be the contract of all the shareholders ; it was not alleged that Walsli objected to the contract, or that he had repudiated the benefit he had received from the contract ; nor was it shown that he was at the time able to perform the contract—that lie was not non compos mentis, or absent from the colony. Even if plaintiff had been aware of tlie existence of Walsh, that would not affect his (plaintiffs) case—-McNeill and Reid, 9 Bingham, 6S. Having continued his argument at some length and cited several cases, The Court intimated they did not desire to hear any more from the learned counsel for respondents, but would call upon Mr. Macassey to reply. Dir. Macassey said he could urge nothing new in reply. The Chief Justice said the Court had decided against appellants, and should sustain the judgment in the Court below. A written judgment would be delivered in a few days. IN RE HERBERT V. THOMSON AND OTHERS, EX PARTE THOMSON AND OTHERS. Mr. G. E. Barton moved for a rule nisi, calling upon plaintiffs to show cause why an appeal, notice of which had been given, should not he set down by the Court. Some time since Dir. Justice Johnston granted an interim injunction restraining the defendants, who compose the Waste Lands Board of Otago, from offering for sale on deferred payments certain land forming part of plaintiffs’ run, but on hearing argument for making tho injunction absolute, Mr. Justice Williams dissolved the injunction. Plaintiff obtained leave to appeal. The case had been printed and distributed among counsel, but up to the moment of making application, the appeal had not been set down for argument. A long discussion took place on the motion and eventually the Court granted the rule nisi returnable in four days, but intimated that if it

were made absolute the ease must be set down at the bottom of the list, in fairness to other suitors who had given notice weeks since, and at the same time tlieir Honors expressed the opinion that they would not be able to get to tho bottom of the list before the session must be closed. Monday, Nov. 22. (Before their Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Gillies, and Mr. Justice Williams.) The Court sat at 2.30. WILLIAMSON V. PEAIICE. An appeal in this case from a decision of the Court in the northern judicial district was being heard when the Court adjourned. Mr. McCormick appeared for the appellant, and Mr. Travers for respondent. Tuesday, Novemben 23. (Before their Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Gillies, and Mr. .J ustice Williams.) The Court sat at 11 a.m. BUOGDEN AND SONS V. MILLER. The Chief Justice delivered the judgment of tlie Court in this case as follows : This was an action for the rectification of the terms of a policy of insurance issued by the defendant in favor of tlie plaintiffs on the ground that tlie policy as issued is not in accordance with the terms of the insurance slip. Apart from the stamp laws, there can _bo no doubt of tlie power of the Court so to rectify a policy of insurance. The cases of Ilenkle v. Royal Exchange Ass. Co., 1 Ves. 317, and Motteux v. Loudon Ass., 1 Atkyn 545, are conclusive on this point. But in these and all similar cases tlie slip has been held to constitute a valid, binding contract between the parties. And in every case of rectification of deeds, such as conveyances and leases, by courts of equity, there lias been a prior or concurrent binding contract in accordance with which or with the intention of the parties in making which the deed has been rectified.

But by the provisions of our Stamp Act, ISO 9 (meaning thereby any instrument where by a contract for any marine assurance is entered into), a duly stamped policy is tlie only mode by which a valid contract of such assurance can be effected. The previous slip, although it may, as in this case, contain all terms necessary for a policy, is rendered absolutely invalid as a contract, and not enforceable at law or in equity, unless stamped as a policy. What we are asked to do, therefore, is to rectify a contract (the policy) by that which is by law no contract at all,—-the slip,—in effect, to decree specific performance of a contract (tlie slip) which the law says shall not be valid as a contract and not enforceable at law or in equity. If the plaintiffs had been seeking to enforce the contract (tho policy), and the defendant had set up fraud, misrepresentation, or mistake as a ground for resisting performance, no doubt the slip might be looked at to evidence the intention of the parties in making the policy; and this is liow the case of lonides v. Pacific Insurance Company, 7 L.K., 2 Q.B. 518, and Corrv v. Patton, 7 L.R., 2 Q.B. 304, are readily distinguishable from the present case. In equity it frequently happens that evidence is admissible to resist enforcement of a contract which would not be admissible to establish a contract. In the present case, if the plaintiffs had refused to accept or recognise the policy issued they clearly could not have compelled the defendant to have issued any other. They cannot, therefore, now take advantage of the policy issued so far as it suits them, and repudiate the portion that does not suit them, saying, in one breath, we rely on this contract (policy), but we say it is not tire contract we entered into. In this view of the case it is unnecessary to go into tlie question raised by tlie one, three, and four grounds of demurrer, but judgment must be given for defendant on the second ground of demurrer, with costs.

Mr. Travers obtained leave to appeal to the Privy Council conditionally on his paying costs of the present appeal, and giving security for costs of an appeal to the Privy Council should such be prosecuted ; Mr. Izard, for respondent, also guaranteeing that should the appeal to the Privy Council be successful for appellants, all costs would be borne by respondent.

THOMAS AND OTHERS (APPELLANTS) AND SMITH (respondent).

The Chief Justice delivered the judgment of the Court in this case, and said: —-

This was an appeal from a judgment of tlie Supreme Court (Northern District), allowing a demurrer to a plea.

Tlie action was brought by the present respondent against six defendants, viz., the present appellants and one William Thomas. The declaration stated that an agreement, in writing was made by and between tho plaintiff and the defendants, “in the words and figures following. ” The agreement was then set out, and it purported to be made between George Smith (the respondent), of the one part, and the shareholders of the Queen of Beauty goldmine of the other part. It stated that Smith, for a certain consideration therein mentioned, agreed to perform certain described work in tlie mine to the satisfaction of the mine manager: and that the shareholders in consideration thereof agreed to allow him to take certain portions of the lode left in certain workings and to crush and convert it to his own use ; and to let him take timber for certain purposes and have a limited use of certain machinery. The declaration did not set out the sig natures to the contract : it went on to aver that the plaintiff entered upon the performance of the agreement, and commenced, and in part performed, the work, and was always ready and willing to complete the same ; but the defendants would not permit the plaintiff to complete the same, but wrongfully prevented him from doing so, and refused to perform their part of tlie agreement, wherefore the plaintiff claimed damages. Tlie defendant Thomas did not plead : but the other five defendants pleaded as a second plea that at the time of the agreement the defendants in the action, and one Patrick Walsh, now in tlie colony, were, as the plaintiff well knew, tlie whole of tlie shareholders in the mine, and sole owners thereof, and that the portion of the lode which by the agreement the plaintiff was entitled to crush and convert, was embedded in the lode in its natural bed and position in the earth. That the agreement was signed and executed by tlie defendants in the action only, and there was no note or memorandum thereof signed or executed by tlie said Patrick Walsh or by any person by him thereunto lawfully authorised. On tho argument before this Court the appellants took objections to the declaration not raised in the Court below, which were heard by consent. It was objected tlmt tho agreement set out in the declaration did not show that the defendants were the shareholders who entered into it: that the agreement which affected an interest in land under the statute of fiauds, was insufficient because it did not name or sufficiently describe on the face of it the parties with whom the plaintiff contracted, and it was not averred that the parties to bo charged had signed it. We are of opinion, as we intimated at the hearing, that it is a necessary inference from the statements in the declarations that tlie six ■ defendants were the shareholders with whom the plaintiff entered into the written agreement, and that, if it was necessary to allege in the declaration that the agreement was signed by the defendants, that defect is cured by the statement in the plea to the effect that it was signed by the defendants only. With regard to the defence raised by the plea we are of opinion that although tho six defendants were dealing in this contract with property in which another co-owner, who did not join in, was interested, the plaintiff', who partly performed his part of tlie contract, wa3 entitled to recover damages for the loss lie sustained by the defendants preventing him from completing Ins work and refusing to perform their part of the contract. The plaintiff does not seek to make Walsh responsible, as lie did not join in the contract, and was not bound by the acts of the others, a partnership not being

alleged; but that is no reason, in our opinion, why the defendants should not make themselves responsible on a contract with the plaintiff which he has partly performed. As to the argument of Mr. Maeassey, in support of which he cited Latch v. Wedlake, 11 Ad and HI , Oil, to the effect that as plaintiff contracted with the shareholders in the mine, and it appears on the record that there were seven shareholders, it must be taken that those shareholders who signed the contract entered into it on the understanding that all the shareholders would become parties to it,—it is enough to say that there are no circumstances stated in the pleadings from which it can be inferred, so as to bring this case within the principle laid down in the case in question, that it was tiro intention of tire defendants that none of them should be bound unless all the shareholders signed the agreement. For these reasons we arc of opinion that the appeal should be dismissed. Appeal dismissed with costs. WO HO AN V. CURL. Ills Honor tlio Chief Justice delivered judgment of himself, Mr. Jiistice Johnston, and Mr. Justice Williams, and said : The question raised in this case turns upon the meaning of the proviso to the second section of the Act. 1871. By that section it is enacted that . rhe verdict of not less than five-sixths of any jury impanelled to try any issues or to inquire of or assess damages in any civil cause shall be taken and accepted as and shall have all the consequences of a verdict of any such j ury under the existing laws relating to juries ; provided that no verdict not arrived at unanimously shall be taken till the jury have reined for a period of at least six hours, and have intimated to the Judge presiding at the trial that they have considered their verdict, and that there is no probability of their being unanimous.” The conditions to be fuliilled before the unanimity of the jury may be dispensed with and the verdict of five-sixths of the jury accepted as tire verdict of the jury are -Ist. That the jury shall have retired for a period of six hours. 2nd. That the jury shall have intimated to the judge that they have considered their verdict, and that there is noprobability of their being • unanimous.

Before the verdict of the majority was accepted in the present case the first condition was fulfilled but the intimation to the judge required by the Act was by the foreman of the jury on behalf of eleven only of the jury, the twelfth refusing to concur in or consent to such intimation.

. There seems no doubt that the foreman of the 'nay- in giving the required intimation, speak on behalf of the jury, in like manner as in giving the verdict of the jury ; and that it is not necessary that each juror should speak for himself. But the question is, whether the second condition required by the Act can be fulfilled so long as any one. juror refuses to make or concur in the making the intimation required by the Act. D) e " or< ? “ inry” is twice used in the enacting part of the section, and as meaning the body composed of twelve, or of such other number of jurors as the case may require. By the grammatical construction of tile proviso, the intimation is to be by the same persons who have retired. If, then, the ordinary and grammatical meaning _ of the language is to be adopted, then the required intimation must be made by or on behalf of the whole jury, and not by or on behalf of a part only, though that part may be such a majority as would be sufficient to return a verdict if the preliminary conditions had been fulfilled.

The rule of construction of statutes of the language applicable to the present case is, was lately expressed in the judgment of the Court in Muller v. Baldwin, 43 L. J., Q. 8., p. 167, where the question was the meaning of the word “exported.” The learned Judge, in giving the judgment of the Court, says There is nothing in the language of the Act to show that the word exported was used in any other than its ordinary sense. ” “We cannot speculate upon the intentions of the Legislature, which are neither expressed’ in_ terms, nor conveyed by implication. Our duty is to interpret the words of a statute aceord- ! n S to their plain and grammatical meaning, when, as in this case, they are not controlled by anything to be found in the context.”

The Court here laid down no new rule, but announced and followed what has been well established as the cardinal rule of construction of the language of Acts.

In the Sussex peerage case, 11 Cl. and Fin. 86, it was laid down that statutes should be construed according to the intention of the Legislature that passed them, but if the words of a statute are of themselves precise and unambiguous, no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do, in such case, best declare the intention of the Legislature. In Fordyee v. Bridges, 1 H. of L., p. i, it was said that “the intention of the Legislature must be ascertained from the words of the statute, and not from any general inference to be drawn from the nature of the objects dealt with by the statute.” Indeed, if we had been at liberty to speculate on the subject, there would seem to be as much room for speculating that, tlie Legislature intended to require that the intimation should be on behalf of all as on behalf of the majority merely. The Legislature may have been pressed with the objection often alleged against the requiring unanimity in trial by jury that where a minority of the jury has an honest conviction against the opinion held by the majority, either that minority must give up its opinion or there be no verdict—unless the majority give up their opinion ; the Legislature may have considered that in such a case where the minority is small, and opportunity lias been given for the‘full consideration of the opposing views, a satisfactory verdict may be obtained without forcing the minority to concur in a _ verdict against their honest and unalterable'Conviction. In such a case the minority would not, if actuated by proper motives, offer opposition to the verdict of the majority being taken unless indeed they felt convinced that further deliberation might alter tlicir opinions, or tile opinions of the majority, and in that case there seems no reason to say that the minority ought not to be empowered to enforce further time for such deliberation.

On the other hand, no doubt it may bo said that the Act as the Court now construes it, enables a single dishonest or unreasonable juror to defeat the Act.

All these considerations are, however, mere speculations, having no foundation in the language of the Act itself, and are not therefore to be entertained in ascertaining and determining the meaning of the Act.

AVe think therefore that the verdict, might not to have been received, and that, in accordance with the agreement made at the trial, the cause must stand as if the jury had remained in deliberation for twche hours and had been discharged without a verdict is provided by section 53 of the Jury Act, 18<iS

Mr. Justice Gillies dissented from the foregoing, and said I regret that lam obliged to differ in this case from the majority of the court.

The question to be decided is “ V, hat is the true interpretation of the proviso in se< lien 2 of the Juries Act, 1871. It will not be disputed that the object of interpretation is to ascertain by the best possible means the real intention of the legislature. AVu must bo careful on the one hand not to assume the legislative intention and then bend the expressions used to support that ussunied intention, and on the other hand, wo must not by a merely literal and grammatical construction of the words used violate the real intention of the legislature if that intention is otherwise made manifest, in the present case, I am free to admit that a strictly literal and grammatical construction of the words of this proviso supports the appellants contention, that the whole jury, not five-sixths of them, must intimate to the judge that they have considered their verdict, and that there is no probability of their becoming unanimous. But we must look further than the mere words is ascertain the intention of the legislature, for the literal is nut always the rational interpretation. I ftdop ‘ lie principles laid down by the Barons of th« Exchequer in Ileydon’s case (3 Rep., 7) “For the sure and true interpretation of all statutes in general, be they penal or beneficial, restrictive or enlarging of the common law, four things are to be discerned and considered;—

1- was the common law beforo the making of

2. AVhat wast he mischief and defect against which the common law did not provide ? 3. What remedy the parliament hath resolved and appointed to cure the disease of the commonwealth ? And

4. The true reason of the remedy. It was then held to bo the duty of the judges at all times, to make such construction as should suppress the mischief and advance the remedy putting down all subtle inventions and evasions for continuance of tlio mischief, et pro privnto commoclo, and adding force and life to the cure and remedy according to the true intent of the makers of the Act. pro hono publico.” And this was followed by Baron J’arke in Hyde v._ Bernard (1 M. and AV., 113), where he says “ I admit that words may be construed in a sense different from their ordinary one when the context requires it, or when the act is intended to remedy some existing mischief, and such a construction is required to render the remedy effectual. For wo must always construe an act so as to suppress the mischief and advance the remedy.” I would inquire, therefore, what mischief was this statute intended to remedy ? Manifestly to remedy in civil cases, the failures of justice which have so frequently taken place through the over scrupulous conscientiousness, or perverse obstinacy of one or two jurors. AVhat then is the remedy proposed to be applied? That a verdict of live-sixths of a jury shall be taken as the verdict of the whole, so that a small minority shall not have the power of preventing a valid verdict. But in order to prevent another wild, rash, and inconsistent verdict upon the first impressions of a live-sixths majority, the proviso is added, that the whole jury must take time to consider for six hours, and that there is then no probability of their agreeing, which has to bo intimated to the judge. If the construction contended for by the plaintiff prevail, then the mischief sought to be remedied is net remedied, for one obstinate juror has only to decline, not only to agree to a verdict but to say that there is no probability of his agreeing, and the object of the act is frustrated. It may be said that we must not assume an obstinate juror, but only a conscientious juror, who, after six hours’ deliberation, still thinks that by obtaining a little further time unanimity will prevail. My experience of juries and of human nature lead me to the conclusion that such a state of things rarely, if ever, occurs, and could not have boon in' the contemplation of the Legislature in making this provision. Besides, I ask is it reasonable to suppose that the Legislature intended to put the power of finding a verdict on the main subject in dispute in the hands of five-sixthsof the jury, and yet intended to necessitate the finding of a minor question, the probability of agreeing, by the unanimous agreement of the jury. It appears to me, therefore, that notwithstanding the strict literal and grammatical construction of the proviso the rational construction which does no violence to the language sed is, and that the intention of the Legislature was, that after the lapse of six hours five-sixths of the jury should be the jury to all intents and purposes, whether for the finding o’f the verdict, or for the intimation to the Judge of the improbability of their agreeing. But even assuming the literal interpretation that the whole jury must intimate to the Judge the improbability of their agreeing, there seems no necessity for that intimation being given in any specific mode. Each individual juryman may intimate the improbability of agreement in his own way, and the presiding judge is_ the person to decide on the sufficiency of the intimation given. AVere I presiding, I should consider that a juryman who intimated to me that after six hours’ consultation with his brother jurors, they being unanimous, he declined to say that there was no probability of agreement, intimated to me in the strongest possible manner that there was no such probability, and that the very mischiefs had arisen which were intended to be removed by the Act. In the present case the judge accepted the intimation and the verdict, and I think rightly so. XVILLIAMSON V. PEARCE. This was an appeal from a decision of the Supreme Court in the Northern Judicial District, the cause of appeal being alleged misdirection of the jury by the Judge presiding at the trial. The suit itself is an action for specific relief under an agreement, on the ground of mutual mistake, the question in dispute being the right to roads through certain property at Coromandel, leased to the defendant by plaintiff, which right was alleged to have been given by the lease. Mr. McCormick appeared for appellant, and Mr. Travers (and with him Mr. Chapman) for respondent. The arguments lasted all day, and the Court reserved its decision. Wednesday, November 24. (Before His Honor the Chief Justice, Mr. Justice Johnston, Mr. Justice Gillies, and Mr. Justice Williams.) AVHITLOCIC V. .PARSONS AND ANOTHER. This xvas a rule nisi obtained by the defendants, and removed from the Supreme Court, calling upon the plaintiff to show cause why a nonsuit should not be entered on certain grounds ; or, in the alternative, why a general verdict should not be entered for the defendants on the same grounds ; or, why a new trial should not be granted by reason of alb d misdirection by the judge, who had yuosid iat the trial which had taken place, at the Circuit Sittings of the Supreme < Curl at Wanganui in the month of April las*. The case xvas one .involving the law as to xvater-rights.

Mr. Hutchison, for the plaintiff, appeared to show cause against tlio ml ; and Mr. Travers, for defendant-.-, .appealed to support the rule. Mr. Hutchison, on tho first ground, which was that the plaintiff, at the trial failed to prove any right of possession to the land in the declaration mentioned, submitted to the Court that thi rn was no such onus cast upon the plaintiff by reason of the pleadings or the cause of action. The ruling of the learned judge on the occasion was perfectly coi-rect, in laying down the law that occupation uuimpeached is prinid facie evidence of scisen in. fee. Tho cause of action was one based from the right of tho plaintiff to the flow of a certain watercourse to and through the land occupied by him, and in the absence of any better title, pleaded by tlio defendants occupation was quite sufficient. For the plaintiff to have proved anything more would have been unnecessary according to all the rules of pleading and evidence. There were many English authorities on the point, all deciding that possession as against a wrongdoer xvas sufficient to maintain such an action. The case of Hickman v. Thorne (2 N.Z. Jurist 72, per Gresson, J.) was an authority for tho adoption of the same l’ule in the colony. Tlio other and more important points in the rule—all resolving themselves into the right of the defendants, to take tho water of a stream flowing not in its ancient bed, but in a substituted, a straightened course—was new in many of its aspects. No English case could bo found directly in point. The ruling of tho Judge who had presided at the trial was that whether tho diversion by the defendants xvas caused by tapping an artificial adit or the natural bed, yot if it prevented the water which would otherwise have flowed in its natural current and regained the old course before it reached the plaintiff, it was enough to give him, as a

riparian owner on the banks of that stream, a right of action against the defendants. This, Mr. Hutchison contended, xvas tho whole teaching of the laxv as well as the principle of the case. It mattered not to the plaintiff xvhat changes took place in the course of the stream before it reached him, so long as the water reached his land without perceptible diminution. Other riparian owners further up might straighten the natural course of the stream on their lands, or might conduct it through artificial channels for purposes of irrigation and make any other use of it they choose, so long as they returned the water to the natural channel before it left their land. The right of the. plaintiff xvas that of a riparian owner against all tho world. His xvas a right in rein, not dependent on user or prescription, but an incident of property. In this case the sinuous course of a stream had been straightened by means of a double ditch find bank, xvliich also served as a dividing fence between the land occupied by the defendants and that on the other side, over xvliich they had no rights. The effect of this double ditch and bank xvas to tap the natural stream at one point and to draw the xvater doxvn either side, till it reached the old course against, describing the chord of an arc. On the defendants’ side of this double ditch and bank the water fioxved till it reached the angle of their land, where, instead of the bank being continued, post and rails used for open fencing had been substituted, so that'the xvater xvhich came down their side fioxved through the gap and rejoined the xvater xvhich fioxved doxvn the other ditch and so on to the old course to the plaintiff’s land. The diversion had been effected by the defendants cutting at the cornel - of their land (xvhere the fencing xvas) a nexv ditch at right angles xvith the other, and then, by damming up the opening, turned the current aside, and sent it by another xvay to the sea. The defendants had, besides—not content xvifcli taking xvhat had come down their oxvn ditch—made holes through the bank, and extracted xvater from the other ditch, and so added to the current on their side, xvhich xvas diverted as described. A number of American cases xvere quoted in proof that a substituted course as betxveen the parties making the change, might create reciprocal rights and liabilities, but xvithout interfering in any degree xxdth the riparian rights of those further doxvn. The same viexv xvas taken also, but only incidentally, in an English case (Nuttall v. Bracexvell, L. 8., 2 Ex. 1). For anything the plaintiff knexv, or cared, the defendants might have a grant or license to take the water on such part of it as fioxved on their side of the ditch ; but in any case, so long as the plaintiff xvas not affected by the use or misuse of the xvater he had no right to interfere. Another aspect of the case xvas, that this artificial channel having been made by the same original land-oxvner as the plaintiff the defendants respectively claimed under, the laxv xvas clear that, independently of the period of prescription the mutual or reciprocal easements created by such original grantor prevented those claiming through or under him from objecting to such arrangements. Mr. Travers, in support of the rule, contended, as to the first point, that possession, to sustain such a right of action as this, must be a proprietary right and not a bare occupancy. He admitted that the whole xveight of the English.cases was against him; but he relied, in making this point, upon the difference betxveen the practice in England and that under the Supreme Court rules, xvhich required more than a bare assertion of right. The Court intimated a contrary opinion, and Mr. Travers passed to consider the next point, which he said amounted to the absolute right of the defendants to divert any xvater which they found on their land in an artificial channel, not made by them. The defendants, by making good the bank of the post and rails, and preventing the confluence of the waters at that point, xvere doing that xxdiich any proprietors of property could do, against xvhom no easement had been proved. The xvater so diverted xvas not subject to any right in the plaintiff, and plaintiff’s case had proceeded upon no diversion but that from the angle, where the post, and rails had been. Nothing else had been relied on at the trial. Mr. Justice Johnston said his recollection xvas different. The abstraction by the defendants, of xvater from the other ditch had been given in evidence, along xvith tho other facts, and had been left to the jury. Mr. Travels contended that the abstraction of the water, by the holes made by the defendants in the bank, betxveen their ditch and that on the other side, xvas upon a different footing from the “nexv cut” made at right angles to their ditch, at tho corner xvhere the post and rails had been, but xvhere the bank had been recently throxvn up. Mr. Justice Johnston : Not at all. But for the new cut and the damming up at the post and rails, the holes xvould not have affected the plaintiff at all ; the xvater would all have passed again through the post and rails, and regained the old channel before it reached him.

The Chief Justice suggested tho case of there being no water in the ditch on the defendants’ side, hut that the xvhole came down the ditch on the other side of the bank, and that the defendants made openings in the bank so as to draxv water to their side, and having got it there that they diverted it by the same means as actually employed. How would that affect the plaintiff ? Mr. Travel’s contended that it xvould constitute a different cause of action.

It xvas contended on the other hand, that it would do nothing of tho sort, as tho ditch from xvhenco the xvater would have boon taken xvould have been only such a straightening of the course of the natural stream, as the riparian oxvner on that side had an undoubted right to do, and thus the diversion, by involving injury to the plaintiff, xvould give a right of action against tho party abstracting the xvater, against xvhom also the other riparian owner, from whose land tho xvater xvould have been taken, could proceed for damages. Mr. Travers proceeded to point out another aspect of the case, xvhich he said consisted in

there being no evidence to show that the point of divergence of the xvater from the natural bed above into the two ditches, was on the defendants’ land. He contended that it, consequently being beyond their control, they xvould not be responsible for the results. The Court then adjourned. Thursday, November 25. (Beforo tho Chief Justice, Mr. Justice Johnston, Mr. Justice Gillies, and Mr. Justice Williams. XVIIITfiOCK V. PARSONS AND ANOTHER. Tho argument in this case xvas resumed by Mr. Travers who proceeded at considerable length to read the evidence taken at tho trial, and to comment upon tho plans. He undertook to show from the evidence that tho double ditch and bank xvliich brought doxvn the water in two streams to tho opening originally spanned by the rails extended beyond tho land and control of the defendants. Mr. Justice Gillies pointed out that all the plans put in by Mr. Travers proved that the double ditch and bank did not extend beyond the defendant’s land, and that there xvas no evidence to support such a x-icxv as lie had enunciated. A discussion of tho evidence occupied the Court till 1 p.m., xvhen counsel having concluded, the Court intimated that the decision xvould be considered and given on another day. VENN ELL V. BRANDON. In this case, the plaintiff Yenncll originally moved for a decree in his favor on the findings on certain issues of fact, tried before Mr. Justice Johnston xvithout a jury in the month of June of 1874. On the 27th July last year an order xvas made by Mr. Justice jolinston calling upon defendant to show cause xvhy a decree in favor of plaintiff should not be made ; subsequently proceedings xvere moved into the Court of Appeal. The case had been heal’d on a previous occasion before two Judges, but it was decided that the questions should be re-argued before a third Judge. The declaration xvas filed on the 12th December, 1871, and set out that plaintiffs xvere trustees acting under, and by virtue of, a deed of settlement purporting to be a settlement of certain property by Henry Boxvler upon a lady xvith xvhom he xvas about to marry, the settlement being subject to a mortgage held by William Bernard Rhodes. The mortgage to Rhodes xvas dated July, 1865, the marriage settlement being dated November, 1865. In January, 1867, a judgment against Boxvler was obtained by a creditor, in February, Bowler xvas declared bankrupt, and in March, Spearing, another creditor, obtained a judgment. In May both these judgments xvere registered, and subsequently the deed of settlement was registered. In August, Rhodes sold under the mortgage, and in November handed over tho balance to a Mr. Broxvn, Inspector in Bankruptcy, under the then existing bankruptcy law, to be given to the parties xvho xvere most entitled to it, and Broxvn passed the money over to Brandon, solicitor to those creditors xvho had obtained judgments. Thus the plaintiffs had been appointed trustees under a deed of settlement subject to a mortgage. Tho mortgagee selling under the deed of mortgage sold freeholds which xvere included in the deed of settlement, and also leaseholds, xvhich xvere not included in the settlement. Out of the proceeds he paid himself principal, interest, and costs, and then handed over tho balance £199 to Broxvne, to be paid by him to the persons most entitled to it. Broxvnereceived noticeof tho claimsof the judgment creditors from their solicitor, defendant ; and paid the money over to him, being at tho same time aware of the existence of the deed, and Brandon also having notice of the claims of the plaintiff’s trustees under the deed of settlement. Brandon received the money and subsequently paid axvay nearly the xvhole of the money to his clients, but there xvas still a small sum of £l6 or £l7 in hand, though it xvas alleged that costs to more than this amount had been incurred before the action commenced.

The Chief Justice having in the early stage of the case given professional advice to one of the parties declined to sit, and the case xvas heard before Mr. Justice Johnston,Mr. Justice Gillies, and Mr. Justice Williams. For plaintiff Mr. Izard, for defendant Mr. Gordon Allan.

Mr. Izard contended that on the foregoing facts plaintiffs xvere entitled to a decree in accordance xvith the prayer of tho declaration. Notice of the existence of a deed xvas in law equivalent to a notice of its contents and therefore defendant could not plead ignorance of tho contents of tlio deed —2, White and Tudor 56 ; Taylor and Stiebbel, 2 Yes., jun., 4-37 ; Jones and Smith. 1 Haro. The money could bo followed into the hands of Brandon, and consequently tho trustees could recover from defendant, xvho could not be treated differently because he happened to be a solicitor. He received it as an ordinary factor or agent, and having had notice of the existence of the deed must be treated as any other agent. Taylor v. Plummer, Maulo and Sclwyn, 574 ; Storie’s Equity Jurisprudence, S. 1258. In regard to the question xvhether a special smn could bn folloxved if blended xvith monies in a general account, the learned counsel cited Ex parte Sayers, 5 Vesey, jun., 168 ; 5 Esp. Hardaker v. Stewart, 103. Mr. Justice Johnston said it seemed to him that Mr. Brandon had received the money as a solicitor, and there it seemed that the contention of folloxving failed.

Mr. Izard submitted that Mr. Brandon know tho money xvas trust money.

Mr. Justice Johnston : Knexv that Vennell had a claim upon it. It xvas a different case xvith Broxvn. Brown received it for whom it might concern and as agent for Rhodes, but Brandon received it for bis clients. Clearly Vennell had a right of action against Rhodes, and might have an action against Broxvn. After further discussion tho Court adjourned, intimating that it xvould take time to consider whether they would call upon Mr. Allan to reply next morning.