THE COURTS.

New Zealand Mail, Issue 752, 30 July 1886, Page 29

THE COURTS.

SUPREME COURT.

Hamilton v. Fraser and Others.

(Judgment of Richmond J., delivered 14th July, 1886.1 (Concluded.) (g) That the conduct of the defendant Fraser at the meeting held on the 7th day of June, in stating that the application was refused without conferring with the other members of the committee showed that the decision was a foregone conclusion. The first of these charges relates to the former decision of this Court, setting aside a pretended cancellation of the license of this house. The fact referred to affords no probable ground for the inference that the committee, in its subsequent proceedings, were not impartial. It only comes to this, that a lay tribunal misinterpreting the confused provisions of a badly arranged and puzzling statute acted hastily, and were set right by this Court. As to the second, third, and fourth charges, though affirmed by the oath of the plaintiff, they are denied on oath by all the defendants ; and in this denial the defendants are supported by the testimony of their clerk, Mr Ames. 1 therefore dismiss these charges as not made out, if not absolutely disproved. Next come the sth and 6th charges relating to the draft notice prepared by Mr Ames, at the instance of the chairman. The notice was to be served before the annual meeting, and as a determination already arrived at, the intention of the committee to refuse a certificate for the Army and Navy Hotel. I give the plaintiff t(ie benefit of Mr Ames’ testimony, that the draft was prepared in accordance with the chairman’s instructions ; although this is denied by Mr Fraser. But in .any case, the draft was altered; and for it there was substituted a proper notice; that it was the intention of the committee to consider the matter, and requiring the personal attendance of the license at the annual <meeting.

The 7th and last charge relates to the conduct of the chairman at the meeting in prematurely announcing the decision of the committee to refuse a renewal. It is certainly to be regretted that the chairman gave this occasion of complaint. Yet, I think I should be going altogether too far were I to hold that this slip in conduct vitiated the subsequent decision arrived at after full opportunity had %een given to the parlies interested to support their application by evidence and argument. Many a strong-willed and quick-witted Judge in the Superior Courts has given vent during argument to a hasty opinion ; but it would never do to hold, for it would be emtrary to experience, that such outbursts, which are -always to be regretted, disqualify for the subsequent candid consideration of the matter in hand. In my opinion, the fault was repaired by the grant of an adjournment and rebearing. It is not to be wondered at that those who are suffering by the decisions should labor under a feeling that justice has not been done to them. It is the vice of a measure like the Incensing Act that it tends to create such a sentiment. The chairman let drop the obserratun * that it was an open secret at the last election that some of the houses would be closed.’ To this extent the plaintiffs in these claims are not improbably right in alleging that there was a foregone conclusion —a conclusion, not that their houses should be closed, but that the number of licensed houses should he reduced. But the purpose of these elections can only be that the majority of ratepayers shall place upon the committee persons who hold opinions similar to their own in relation to the liquor traffic. On these occasions we all know it is a contest between tho publicans and the temperance societies.

The inevitable result is that partisans of the pne side or the other are placed on the committee, and are prepared to execute the popular mandate which has pnt them there. This is, of necessity; inconsistent to a great extent with the existence on these committees of the true judicial temper. There is, therefore, great danger that the proceedings will be a travesty of judicial inquiry. This in itself is a grave evil ; bat it must be supposed that the Legislature, in its wisdom, has voluntarily incurred the risk of it on a choice of difficulties.

I do not think that the predetermination in the minds of the committee of the general question, whether or not it would be desirable to reduce the number of licensed houses in the war d if in fact that question were predetermined in their minds —should ba dis> qualify them : because such predetermination is an almost inevitable result of the provisions of the statute. The elections - must turn on this and kindred questions ; and it would be mere hypocrisy to conceal • the fact. If. to have their minds made up upon this question is to have a bias, then the Legislature has advisedly provided for the appointment of judges with a probable bias ; and np one can complain that they are exactly what the eta tute means they should be. Of course,. I am speaking only of a general determination to reduce the number of houses, and not of a specific resolution formed to refuse a particular license without hearing the parties affected. _ ' . I perceive from what was said by the cnairman on the adjourned hearing that the committee appear not yet even fully to realize and accept their judicial position. The chairman says ‘ we have been urged to preserve our judicial capacity, as if we were judges or magistrates in criminal courts, but we are nothing of the kind, and the sooner this fallacy is exploded the better.’ It is no doubt true that the Licensing Committee is not a criminal court; but it is a court- of justice, bound to hear both sides, to proceed, upon sworn testimony, and to give opportunity for answering charges which, in some cases, are charges of offerees against the law, and, in others, accusations ' deeply affecting private character. It is also a Court which, though not empowered to infl'ct penalties in technical sense, can yet declare virtual forfeitures which may involve the loss of large sums of money, and even the absolute ruin of licensees and owners. It is, therefore, a tribunal which ought to proceed with the utmost caution and discretion. It is to be hoped that those who have the execution of this law will realise the difficulty and delicacy of their position, and give as little occasion as possible for just complaint. It is certain that the.... cause of temperance, holy though it be, cannot be advanced by disregard of the still more sacred claims ol justice. There are some other objections which I have to consider. It is argued that the committee ought to have stated the preciee rea sons for supposing that these particular licenses were unnecessary, in order that the licensees might have the opportunity of rebutting those reasons. In my opinion, nothing more was necessary in the way of notification to the parties, than the statement contained in the notice served on the licensees. The Court was not called upon to argue with the applicants.' And, as regards their final determination, the committee were not bound to give reasons any more than a jury is bound to give reasons for its verdict. '< It is further argued that the committee proceeded without evidence. Had the committee taken for granted some disputable, yet asceitainable, fact, in respect to which sworn testimony could have been procured, I thould have thought this objection fatal. But looking to the nature of the question for decision, it has not been shown or suggested, and I cannot see what evidence the committee could be expected to call for in order to enable them to do their duty. What criterion ought they to have applied? I asked this question and got do answer. The satatedoes not give a criterion ; nor does it seem possible to invent any which would suit all cases and meet nil opinions. Mr Gully resorted to the population basis as showing that no reduction in the number, of licenses in Cook Ward was called for. B«t this is evidently fallacious. Amongst other considerations, there ' is the obvious difference, pointed out by the Attorney General, betweea a residentiary quarter of the city, and its business centre. In Lambton Ward, which contains the larger hotels for the entertainment of travellers, the proportion of licenses to population is reasonably far in excess of the ratio in the other wards. The records of the committee show the licenses in force within the district, and the local position of each house. In addition to this information, which must form the. basis of derision, these committees are justified, in my opinion, in acting upon such personal knowledge of their own locality, as every inhabitant must necessarily possess. The licensees and owners were invited to adduce more specific testimony, and declined to do so. The patent facts necessarily within the official, and personal knowledge of the committee were, in my opinion, sufficient to proceed upon in the absence of specific testimony adduced by the plaintiffs. Section 44, subsection 8, is only an enabling provision. The concluding provision of section 84 applies to cases where evidence is required of disputable and 'ascertainable facts, and not to cases like the present, which are determinable upon what I have called patent facts—by which I mean the number, local position, and external and visible character and surroundings of the licensed houses. Were every inhabitant of the ward called as a witness the right answer to a question, whether this or that particular house should be refused a license rather than another, must remain incapable of demonstration. It 3eems to me to be left to the committee to decide according to their own knowledge and judgment, after hearing what the parties interested and their witnesses have to say. A sheaf of affidavits has now been filed, chiefly on the part of the defendants; but, as may he expected, one set of people say the houses wanted, and another set swear the contrary ; and there is no attempt to assign a reason on either side. One 'more observation in reference to the last two heads of objection - it was a pervading fallacy of the plaintiff’s argument that the committee, when making an objection of this character, are in the position of a litigant party, on whom rests the onus of proof. It wa4 argued that the committee were bound to

begin and make out their cast* But the committee are judges, not parties. Who-but themselves ore to say whether a prima facie case for the objection exists ? In my opinion the committeee, in a case like the present, may begin by informing the licensee that there is, in their opinion, a prima facie case against his house, and may call upon him for an answer. I, by no means, say that the mere allegation of an objection by the committee will in all cases suffice ; but for the reasons already given, I think it was enough, in the present case. • " c — J

Lastly, there is the objection that the terms of the final clause of section 63 have not been complied with. The clause requires full notice in writing of any matter of objection raised by the committee itself to be givta to the person or persons affected" thereby, or if. he or they cannot ba found, to be left at his or their last known place of abode. This was not done. There was no written notice except that served on. the licensees, who are not the only parties interested. But it appears, from the shorthand writers’ reports, which are verified on oath, and have been put in" by the plaintiffs, that .the licensees and owners of all three hotels were represented by counsel on the adjourned hearing. This is sufficient prima facie evidence that all persons Interested were present. There is no evidence whatever to the contrary. This being so, the omission to serve a written notice in terms of section 63 is unimportant. ; , - , On the whole, I come to the conclusion that there must be judgment for the defendant committee, with costs, seven guineas in each case. '

IN BANCO.

Thubsday, July 22.

(Before their Honors the Chief Justice and Mr Justice Richmond.)

HOLLISTER V. ACCIDENT INSURANCE COMPANY. This was a motion to enter a nonsuit on judgment' for the defendant in an action brought by the widow of one S. A. Hollister at Nelson, and tried there at the last civil -sittings, when a verdict was found for the plaintiff. The deceased, more than a week before his death, had fallen downstairs. He subsequently informed the agent of this, but said he was not hurt. No other notice was given to the Company within seven days of the accident, but one Hurley gave notice eight days after, on behalf of deceased, of the d ath of the insured, and within fourteen days of the accident the plaintiff’s solicitors informed the Company of his death, and enclosed a certificate of death, which certificate did not ascribe the accident as the cause of death.. The conditions of the Company required that notice of any accident should be sent within seven days, and that a written report from a medical attendant should be forwarded to the head office within fourteen days. A t the trial a verdict was found for the plaintiff, and the defendant now moved that a nonsuit or verdict for the defendant b 9 entered on the grounds—l. That no notice of the occurrence of the accident was sent within seven days ; 2. That no written medical report was sent within fourteen days. The Attorney-General for the defendant, cited the following case*; — Gamble v. Accident Insurance Co , 4 Jr. Rep., C.L. : 204 ; Caulev v. National Employers’ Insurance Co., 1 Cab. & Ell.; Moyle v. Jenkins, "51 L.J., Q B. 112 ; Keen v. Milwall Dock Co., 51 L.J., Q.B. 277 ; Mason v Harvey, 8 ex-819 ; llaper v Leudon 1 Ell, and EU 825 ; Phillips v Piituam Fire Insurance Co. 9 Am, Rep 506 ; Jones v Mecflpnics Fire Insurance Co, 13 Am, Rep. 405. Mr Pitt for the plaintiff, contended that the conditions w. re not conditions precedent, and that they had been performed or waived. Werks v Farmers Mutual Insurance Co., 5 Benn. Ins, Cas. 288 ; Walker v Metropolitan Ins. Co., Ib. 207 ; Planters Insurance Co. v Comfort, Ib. 611 ; Littleton v Butchley, Sapp. 42; Muichie v Victoria Insurance Co., N.Z L.R., 4 S.C.-, 114. The Chief Justice : I don’t think there can be any doubt this is a condition precedent, that this stipulation made is a requirement which is a condition precedent. It is in the nature of a contract, the breach of which could be remedied by a cross action for damages, the intention of the parties being that it is a condition to ba performed, otherwise there can be no claim. That is the clear meaning, and although,'no doubt, as Mr Pitt has pointed out iu all theße case* with regard to these accident policies, there seam 3 to be an express stipulation.’that they should be condition precedent. Notwithstanding, it would equally be so without this express stipulation. In the body of the contract it is stated that it is entered into on the terms of the conditions which are incorporated in it. Which means that is the basis of contract, and the condition on which the insurance money to be paid if an accident occurs. With regard to the contention that there had been a virtual compliance with it, and a waiver, 1 think there is no evidence of that. All that is relied upon is a conversation that took place with Mr Hollister in »n apparently casual conversation with Mr Palmer, the agent. I should say that Mr Hollister did not give that as a notice, and it was not accepted as such, and therefore it cannot be said there is any waiver of the formal notice rrquired by the policy. With regard to the notice ef the Monday, that is too late, even if it be a notice in compliance wi .h the condition; it is not necessary, however, to decide whether “representative” can mean any person whether it is made by aa agent on behalf of some pearon who would be interested—but that was not a written notice, and apparently Hurley did not give the notice. He went for the purpose, but found the agent was out. One cannot say that an agent is always bound to b« there, some person should be there aud therefore it may be held that if an agent is constantly absent, some day or other that may be looked upon upon as a compliance with the condition, but here some g ntleman, apparently authorised, had gone for the purpose of giving notice, but he did not give it. It was quite clear there was no notice given and there was no waiver. Mr Justice Richmond : Inm of the same opinion, although the condition is not expressed to be a condition precedent, yet I think it is clear on the construction of the policy it is a condition precedent. The case decided yesterday (Kempton v. National Insurance Company) is in point. Being a condition precedent, it is quite plain it was never complied with or waived, and I concur with his Honor that the judgment cannot stand. There must be judgment for the defendant.

Before their Honors the Chief Justice, and Mr Justice Richmond, ELL V. HARPER AND ANOTHER.

This was a motion for a new trial on the grounds of misdirection, improper reception of evidence, discovery of fresh evidence since the ttial, and surprise. The action, which was. from Christchurch, was tried before .Mr Justice Richmond and a special jary, when all the issues were found in favor of the defendants. Mr Jellicoe for the plaintiff, Mr Bell and Mr Fitz Gerald for the defendants Mr Jellicoe reviewed the evidence at considerable leogth, and was proceeding to cite cases when the Court rose. Friday, July 23 (Before their Honors the Chief Justice and Mr Justice Richmond ) ELL V. HARPER. Mr Jellicoe continued his argument, aud contended that it was a misdirection when the Judge told the jury that if they believed Matthias’ evidence the transactions with tho defendants was an advance and not a purchase. The deeds showed that it was a purchase. The onus was on the defendants to show that it was not so, and that on os was not discharged. The evidence should be dealt with as a whole, and it clearly appeared that Matthias and Randall were only tenants of Haipel’s, and could not dispute his title. If the transaction was an advance, there must have been a mortgage debt. Williams v. Owen, 5 My. and Cr., 303. As there was no mutuality there could be no mortgage debt subsisting. There was no equity in Matthias to pay off principal and interest without paving another large sum by way of bonus. Barrett v Hartley, L.B. 2 Eq. ; Jennings v Ward, 2 Vern. The jury were influenced in the whole of their findings by the direction that the transaction was a mortgage. It was a circumstance to' be considered as to who paid the expenses, and there is no evidence that Matthias did »>. Pickup v Thames Insurance Company, 3 Q.B, Div. 549. If the defendants were not purchasers, then as agents for the plaintiff the profits they made belong to him. The Judge relied on the Custom in Canterbury, and misdirected the jury when be said the bonns was only interest in another shape. Clatk could give no evidence of instances, and nsage must be proved fay instances. Cunningham v Grant, 6 C. and P. 44. The defendants should have made a full disclosure to the plaintiff. Dunn v English, L.R., 18 Eq. 524. Since the trial itjhas been discovered that the transfer to the defendants was made origin, ally to the plaintiff and altered. This is material evidence, and, if the jury had known it, it weuld have been some evidence to show that Ell was unaware of the transaction. Their Honors said they would consider the matter, and let counsel for the defendants (Messrs Bell and Fitz Gerald) know if they wished to hear them.

THE GREAT REPUBLIC GOLD MINING 00. T. HUSSEY AND M’KNIGHT.

Mr Jellicoe moved ex parte under rules 452 and 456 for an injunction to restrain the execution of a distress warrant against the plaintiff company in the Warden’s Court at Westport. The defendants recovered judgment against the present plaintiff, then defendant, who gave notice of appeal. McKnigbt, one of the plaintiffs, then in March last filed in the Court a release of the cause of action. The plaintiff, in May, relying upon this relief, abandoned the appeal, whereupon the defendant (then plaintiff), Hussey, issued execution on the judgment, Mr Jellicoe contended that the release by one plaintiff bound both, Hawk, shaw v. Parkins, 2 Swanst., 533 ; Furnivall v. Weston, 7 Moore, 356 ; and -that the Company was entitled to have the proceedings restrained. Mr Bell as amicus curiae called attention to the Mines Act, which shows that the Warden has power to issue injunctions. The Chief J ustice : We do not think we ought to grant bb ex parte motion of this kind, without there being so full a statement as to ex plain to us how it is that the necessity has arisen. All that appears is that two parties get a judgment against the Company, the defendants in that action appeal, and the Company obtain from one of tbe judgment creditors a release with an abandonment of the appeal. • Nevertheless it appears that the appeal went ion, and after pending three or four mouths, apparently by agreement of the solicitors, ia abandoned, and then the judgment creditors issue execution. It does not appear how they came to do so, whether they set up any right or why it is so. The party applying must state wbat be believes to be the grounds on which the defendants have acted. It does not appear why the release is taken from one of two joint creditors, nor is it explained where the grievance is. After filing in that Court the deed of release tbe Warden issues execution for some reasons which are do not know. It is not explained whether the parties were before the Court, and how it is that the Warden’s Court -is not competent, and has not adequate power to deal with this question. It would be exceedingly inconvenient for us to draw into this Coart without inquiry such applications as these. Mr J ustice Richmond : I ain of the same opinion. We are asked to interfere in this case by a party who does not choose to state to ns the whole circumstances of the case. It ia undubitable that tbe release by one of two joint creditors is a bar at law, and pleadable in bar, and if fraud exists it would be a legal defence, but it is equally clear that both at law and in equity such a release is void if it is given in collusion with-tbe debtor. Now, in the pre-sent-application the Company comes ex parte without explaining the circumstances under which they have taken this release from McKnight alone. I think they were hound to give a full statement of the circumstances, and to negative collusion with the Company. No doubt we are not to presume fraud, but when we are asked to infer in this way it is absolutely incumbent on the applicant to state all the circumstances, and, as the circumstance* are very straDge, and give rise to the inference that Hussey does not feel bound by the arrangement, he ought to negative collusion. Furthermore, I agree that the Court below has jurisdiction, and I think it onght to have been shown why the Warden’s Court has not been applied to. Such Courts have jurisdiction to prevent the abase of their own process, aud I do not see why the Warden’s Court should not deal with the matter. Mr Jellicoe then applied for leave to give short not|ce r of the application to the other, side. The Court doubted its power to do this, but gave Mr Jellicoe leave to mention the matter again npon future materials.

Saturday, July 24. " ("Before his Honor the Chief Justice.) : ARIHI TE NAHU V. TANNER AND OTHERS. This was an action, tried at the last eession at Napier, and :adjonrned to Wellington to .take tho evidence of the Hon J. N.'.Wilson,' Mr Rees and Mr Ward appeared for thn j plaintiffs, Mr Fitz Gerald, Mr Chapman, and; Mr A. S. Baker for the several-“ defendanta. After taking Mr Wilson’s evidence, the case was adjourned till Tuesday for argument of the questions of law. Monday, July 25. (Before their Honors the Chief Justice and Mr J ustice Richmond.) KAIWHATA V BUSSELL. Ia this action, the judgment having been given for the defendants, tbe plaintiff appealed. An order was made staying proceedings in terms of giving security, as provided by rale 18, of the Court of Appeal rules. Ihe Registrar required £450 as security, and this sum was lodged. The Registrar assigned as a reason that the security should be for the costs iu the Court below, and ia the Court of Appeal. Tbe plaintiff’s appeal was • dismissed with costs, aud an order made giving leave to appeal to the Privy Council on the usual terms. No terms were ever settled, and an order was drawn up and sealed giving leave to appeal to the Privy Connell fin the usual terms.” Mr Rochfort now, on behalf of the plaintiffs, moved that part of the . money in Court should be paid , cut to the plaintiff on the gronnd that the security should only be for costs in the-Court of Appeal. Mr Bell, on behalf of two of the defendants, applied to set aside or vary the order, giving leave to appeal to the Privy Council on the ground that usual terms” should have been specified, the plaintiff electing whether to have a stay of execution or not. Mr BeU also objected to disturb the security settled, on the ground that the Registrar’s decision had been acquiesced in. Mr Chapman appeared for the Australian Mutual Provident Society. After some discussion the Court refused to interfere with the. Registrar’s decision as to what costs were to be secured, and set aside the order for leave to appeal, offering to Mr Rochfort the right to take Buchan order as is warranted by-the Order-in-Council allowing appeals to the Privy Council, Mr Rochfort alleged that his clients were unable to find any .security and elected to take no order, saying he proposed to go to the Privy Council by way of petition. The Court adjourned to Wednesday, when the Gisborne murder case will be argued. Tuesday, July 27. (Before His Honor the Chief Justice.) ARIHI AND OTHERS V. TANNER AND OTHERS. This was a suit by Arihi te Naha for a share in a block of land in Hawkea Bay, called Karamu, part of Heretaunga. The land is vested in Me3srß Locke and Potvia Bupell, as trustee*, and the question is, Wbat are the trusts ? The deed of trust declares that the persons entitled are to be declared by the Native Land Court under section 17 of the Native Lands Act, 1867, but that section was considered inapplicable. A large mass of evl* dence was taken. Henare Tomoana, a defendant, claims that the land was to be held on trust for a. single hapu, or tribe, or fox the persons living oh the land. The other claimants claim that the land was to be held for Reven of the original guarantors. Mr Rees and Mr Ward and Mr Baker, for Noa Hake, a guarantor, supported this contention. Mr Fenu appeared for Karaihana’s trustees, supporting the same claim. Mr Chapman and Mr Carlile appeared ou behalf of Henare Tomoana. Mr Fitz Gerald appeared for the and submitted to the decree of tbe Court. After argument, his Honor reserved judgment.

Wednesday, July 28. SINCLAIR V HORNBY.

This was an action for libel coming from Blenheim, which wa3 tried at Wellington in January last, when the plaintiff secured one farthing damages. The defendant now moved for a nonsuit or for a new trial. Mr McNab for the defendant ; Thiß is a question of a newspaper publishing a comment on a matter of public interest, in which case it is privileged. (Mr Justice Richmond ; It is not privilege ; it ia merely the right of discussing matters of public interest.) The case should have been withdrawn from the jury. The plaintiff had to establish direct malice, and did not do so ; malice could not be implied from the article itself. It shonld not have gone to the jury to find whether, it was fair comment. Henwood v Harrison, L R., 7 C.P., 106 ; Gunn v Armstrong, 12, S.A., Rep. ; Spill v Maule, 4 S.K. ; .Davis ,v Duncan, L.R , 9 C.P., 396 ; Flood oh Libel. Further argument was adjourned tip. this afternoon. Mr Couolly appears for the plaintiff.