THE COURTS.

New Zealand Mail, Issue 753, 6 August 1886, Page 29

THE COURTS.

SUPREME COURT.

McGill v Garbutt and Others. /Judgment of Richmond J., delivered 29th * 6 July, 1886. ‘ This is an appeal from the decision of the Resident Magistrate at Napier, dismissing an information laid under a bye-law of the Borough Council. The respondents are members of the religious body styling itself ‘ The Salvation Army.’ The respondents, unfortunately, did not appear on the hearing of the appeal. The arguments need by their counsel before the Resident Magistrate are, however, pretty fully set out in the case. The bye-law prohibits processions through the streets (with certain exceptions) unless the permission of the Borough Council shall have been previously obtained. The magistrate held the bye-law to be void on the ground that the Council only sitting at intervals of a fortnight—so I understand him to assume—bodies of persons desiriog to form a procession might be required to wait an unreasonable length of time for the opportunity of applying for permission ; or, upon a sudden occasion, might have no opportunity at all. Tins reason appears to me to be insufficient, lhe Borough Council is an executive body, and it may and ought to meet as often as is requisite for the performance of its duties. The times of ordinary meetings, and the mode of convening extraordinary meetings, are matters necessarily provided for by its own bye-laws, which may be made and annulled at its own discretion. It cannot deprive itself of the power of doing what is reasonable. Had the .Council passed a bye-law purporting to preclude itself from meeting oftener than once a fortnight, without any provision for extraordinary occasions—a most unlikely thing in itself, and one of which there is no proof, and barely a suggestion —such a bye-law would I think, be void. Nor can the formation of a procession by private individuals ever be a matter of necessity—at all events, of urgent necessity ——9&VO in the cbso of funGrals, which are amongst the exceptions provided for by the bye-law. . Dismissing, therefore, the reason assigned by the magistrate for his decision as ineuffi cient, it is tn be considered whether on any other ground the decision can be supported. The bye-law is defended as an exercise of the general power, under the Municipal Corporation* Act, 1876, sec. 349, sub sec. 4, (s.). ‘ To prevent all nuisances, obstruction, and damage in public or private streets, and in public places in the Borough; and all practices calculated to endanger the lives, or to frighten or annoy the public ; and to make all such provisions as in the opinion of the Council are needful to preserve public order, decency, health, comfort, and convenience, in relation to all such streets and places in the borough.’ On this provision the first observation to be made is, that it aims primarily at the prevention of mischief. Anything, therefore, which plainly tends to the specified evils may be 'estroined or prohibited, as the case may -"-e. It is not to the purpose to say that iidTSischief has been hitherto occasioned by a particular practice if it be one from which mischief may be reasonably approhendedThia disposes of the argument that the processions of the Salvation Army have not hitherto proved to bo a nuisance ; because, granting what, is asserted, if the practice of such processions may in reason be expected in lhe future to cause public annoyance, it may be restrained. There are many practices in themselves quite innocent, by which no damage may have hitherto occurred, which yet might plainly be prohibited under the sub-section cited—such, for instance, as childien’s games of many kinds. The supposed right in any body of persons to pass in procession through the streets of a town is something entirely different from the separate and individual right of passage of the same persons as private citizens, without preconcerted arrangement and mutual understanding. A procession implies more or less Drevious organisation, and a more or less

regular array. It is the passage of an organbed body of persons, who make in passing a display of i.beir organisation. Now, it is plain that, in many respects, the practice of marching in procession through the streets may be reasonably expected to occasion Beveral of the mischiefs which Borough Councils are authorised to prevent. A compact body of men moving along a thoroughfare, more especially if attended by the rabble which is frequently attracted, has an obvious tendency to obstruct traffic. I suppose the most zealous body of Salvationists would scarcely think of attempting to parade Cheapside on a week-day between ten in the morning and five in the afternoon ; or to cross London Bridge within the same hours. If the procession displays flags or banners, or carries torches, there is the risk of frightening horses, and of consequent danger to life or limb. If, in addition to all this, the procession is noisy, whether ia a harmonious way or not, a still further cause of disturbance ia introduced ; and any one will be very bold who ventures to deny that such an assemblage constitutes in a crowded thoroughfare, not merely a possible, but a probable nuisance.

I have not yet mentioned the strongest ground for asserting the right of the municipal authority to control the practice of streetprocessions. It is that such parades tend to occasion breaches of the peace. Where the peace is endangered thereby a procession, whatever it may be, may, I apprehend, at common law be stopped by the constabulary force. The common law is the vigilant guar dian of individual liberty ; but for this very reason shows itself jealous of assemblages not under the control of some authority recognieed by the State. Any such organised gathering of men may be usad for the purpose of intimidation ; and then, the assembly being as it is expressed, in terrorem populi, persons taking part in it are indictable as misdemeanants. Though no such purpose may exist—and I am, of course, aware that no such purpose is imputable to the members of the Salvation A. r my—yet it is undeniable that large and organised assemblages in the streets of a city for any particular purpose tend to excite to a violent opposition persons to whom the object of the assemblage is obnoxious or distasteful. The display of numbers provokes counter-demonstrations. This result is inevitable, as human nature is constituted.-. _ln point of fact, the displays of the Salvationists have more than cnee in this colony led, as I believe, to actual breaches of the peace. On the whole, therefore, it appears to me almost too plain for argument that a bye-law restricting such processions is perfectly valid. It would be intolerable that any body of persons, who might choose to associate themselves for the purpose, should have the absolute right to parade the streets of a town in such numbers as to themselves might appear suitable, by day or by night, with flags flying or torches flaring, drums beating and every kind of noisy accompaniment : and it is perfectly certain any. such right is wholly unknown to the common law.. The Salvationists claim quite properly the same measure of liberty as iB enjoyed by their fellow citizens. But in demanding,, as .it would seem they do, the unrestricted right, of parading the streets in their peculiar fashion whenever they think fit, they are asking for much more than that measure of liberty ; and for what of necessity encroaches upon the rights of the rest of the community. The inhabitants of towns and cities have, as every body knows, to submit to many restrictions not imposed, because not required, in rural districts. For the unrestricted liberty of one man in a community often means the annoyance, danger, and, so to speak, servitude, of all his neighbors. If it be pleaded that the Salvationists are a religious body,, and that these parades are a point of conscience with them, it must be answered that other religious bodies amongst us are compelled to confine their pomps and ceremonies to their own places of worship. No Roman Catholic, for instance, would dream of attempting to carry the Host in procession through our streets as is the practice on the Continent of Europe on Corpus Christi Day. The Salvationists must submit to the same restrictions as others. In saying this, I do not mean to intimate that, having regard to the general sentiments of the people of this colony, the entire suppression of the parades of tbe Salvation Army i 3 necessary or desirable ; but only tbau the members of the Beet must submit, as others do, to such regulations as the public welfare may be found to require. Everyone must desire the minimum of restriction ; but every one must remember that other people have tastes, feelings, and a conscience as well as themselves. ! The citation of Elwocd v. Bullock, 6 Q. 8., 402; S.C. 33, L.J. Q.B. 330, relied upon before the magistrate on the part of the respondents is not to the purpose. In that case the bye-law was in restraint of trade, and was held to be unreasonable on the ground that it was framed so as to leave its application to the cap rice of private individuals. I have also looked at the case of Player v Jenkins, 1 Sid. 284.; S.C., 2, Keb. 27 ; and the other cases cited by Mr Lumley (Lumley on Bye-laws, 139), to which I was referred by Mr Chapman! The validity of the bye-law there in question was finally established on the ground of the ancient custom of the City of London. The cases are, therefore, not exactly in point. But in the course of the discussion it appears to have been recognised by the Court that any Municipal Corporation might at common law make bye-laws, even in restraint of trade, to prevent the obstruction of the streets. - There have been several recent cases before the English Courts, arising out of the displays of tte Salvation Army. In Beatty v Gillbanks. L.R., 9. Q.8.D., 308. it was held by two Judges of the Queen’s Bench Division that members of the Army could not be convicted of an illegal assembly, on the ground that they were aware that their procession would be opposed ; and had good reason to believe that a breach of tbe peace would be committed by their opponents. .Tins decision is perhaps scarcely consistent with the definition of an unlawful Assembly as given in tbe proposed new criminal code. Section 84 of the English Bill of 18S0 includes, as unlawful, any assembly which causes reasonable fear in the neighborhood * that the persons so assembled will disturb the peace tumultuously or will, by such assembly, needlessly, and without any reasonable occasion provoke other persona to disturb the peace tumultuously. This

definition is considered by the Royal Commissioners to enunciate the principles of the common law ; but they admit that in the latter part of the clause they are declaring that which has not as yet been specifically decided in any particular case. Tbe definition has also been criticized by the late Lord Chief Justice Cockburn ; and it may be doubtful whether it does not carry the law somewhat further than it goes at present. lam not called upon to venture ao opinion upon the subject ; tbe question here being simply whether the byelaw of the Borough Council of Napier ia not good as a general measure of precaution ; and not at all whether a parade of the Salvation Army can in any case be treated as an unlawful assembly. . I have also referred to the case Reg. v. Powell, 51 Haw Times, Q.8.D., 92; in whch a bye-law prohibiting tbe playing oa any musical instrument in the streets of a borough was held good uader section 90 of the Municipal Corporation Act 1835, and was enforced against a member of the Salvation Army ; also to the case of Be Morgan v. Metropolitan Board of Works L.R. 5, Q.B.D 155 ; where under a power to make bye laws for the prevention of nuisances, and the preservation of order on Clapham Common, (being a place dedicated to and for the use and. recreation of the public) a bye-law prohibiting amongst other things, field-preaching, without the permission of the board, was held valid. I mention these cases, although they do not. relate to processions, as showing that musical and other out-door services such a 3 are practised by the Salvationist! have beon held to be subject to regulation by Municipal authority. . , , ~ This case must be remitted to magistrate for the imposition by him of such penalty, not exceeding the maximum amount, as lie may judge proper. Probably, as this appears to be a test case, the prosecutors will be satisfied with the imposition of a nominal fine. Appeal allowed £5 5s costs.

IN BANCO. (Before His Honor the Chief Jusiice.) MAKAUBI CASE. This was a motion on behalf of Riperata Kahutia and other defendants to . adopt the Registrar’s report herein, and dismiss the action, with costs, against tbe plaintiff. Mr Edwards, with Mr Brassey, for plaintiff, Mr Rees for Riperata Kahutia and other defendants, Mr Finn for Hirini Haereone (an original grantee), Mr Ward for the other defendants. Mi Edwards objected to the motion being proceeded with unless all the parties to the action were served with notice of the present motion, which had not been done. The Chief Justice : There are express rules on the subject In England, but I tbinfc not here.- Mr Rees submitted that, so far as the defendants present were concerned, the action against them should be dismissed with costs, allowing those not served to move afterwards. The Chief Justice : I do not see how I can do that. 6an you show me any authorities ? It appears to me that this is a procedure not contemplated by the ruels. It is a final decree in the suit. Mr Bess then asked for the opinion of the Court under rule 408. The Chief Justice : The same objection, it appears to me, applies. All parties who appeared to the action, and even those who appeared before the Registrar, shonld be served with notice St the proposed motion. At this stage, I-think, I would be justified in making an order, that those defendants who appeared by solicitors before the Registrar should be served with notice of this motion, and that those defendants who did not so appear should be served personally. Order accordingly. Motion.adjourned to the 12th day of August, 1888. (Before hia Honor Mr Justice Richmond). TaYLOR V. OFFICIAL ASSIGNEE.. Judgment was delivered dismissing the appeal with costs, £7 7a. SINCLAIR V. STUART. Judgment was given disposing of the several items referred to the Court. M GILL V. GABBRUTT. Judgment was . given allowing the appeal and affirming the validity of the by-laws regulating processions on the streets of N»oier. . _ These judgments will appear in due course in the New Zealand Mail. (Before their Honors the Chief Justice and Mr Justice Richmond.) Tvr.T. v HARPER. The Chief Justice : In tbis case we think it unnecessary to call upon the learned counsel for the defendant to show cause, against the motion made on behalf of the plaintiff. As to the matter stated in the affidavit, there seems to be some mb conception—as to the evidence which Mr Harper gave. He certainly, in the earlier part of his cross-examination, refers to this item in tbe bill of c.isfcs for the transfer from the Whites to EU. He speaks of that, according to the notes of the evidence, as being a different transaction, but this is explained by what he says in a later part of his cross-examination, where he details what he meant by a different transaction, viz , that in an earlier part of the transactions it was intended that there should be a trans er from the Whites to Ell, which was not carried out. This removes all ground for suggesting that Mr Harper gave false evidence as to this item, and removes any pretence which Mr Ell has for au application for a new trial, on the ground that he. was taken by surprise in this evidence. It is manifest that Mr Harper was speaking of this intended transfer, which was not carried out, and which be expressed in the latter part of his evidence. T. thought it better to mention that, though it is really not a substantial matter. As to the principal ground, viz.-: that there was misdirection in telling tbe jury that if they believed the evidence of Matthias, that the transaction then waß in the nature of a security, and was not a purchase by the Harpers in their own name, and on their own. account. The meaning of that was clearly that if they believed those facts to which Mr Matthias speaks, and to which he proposes to a wear, then these facts showa very different transaction from that which the plaintiff sets up. rbis claim is based on the fact that the Messrs Harper were his agents in selling a particular property ; that they professed to him that they had sold this property for £3 au acre to particular persons, Messrs Matthias and Randall ; that that money only had been accounted for to the plaintiff, but, as he had. since recently ascertained, that tbe transaction instead of being that, that they themselves, without the plaintiff’s knowledge, were them-

selves tbe purchasers and had resold to La wee, | and upon that transaction had made a profit. • The jury were told that if they believed Matthias that was not tbe transaction at all, but that tbe defendants were the. purchasers on account of Randall aDcl Matthias, and tbe arrangement made between the Harpers and Randall and Matthias wa3 a mode of taking a security, and was not a purchase for themselves, iu respect of wbich they were bound to account to their principals the vendor. I think that that direction was. a perfectly proper one. It drew the attention of tbe jury to what they had to consider, viz : I? tbis a secret purchase by the Harper’s on their own account, or really a purchase by Matthias and Randall, with an arrangement made between the Harper’s and Randall aod Matthias for the purpose of enabling them to purchase the property and give the Harper’s security for the assistance they gave them in making advances for the purchase. I see no reason at all why it should not have been put to the jury iu that way. It does Dot exclude evidence of any contrary facta against the evidence of Matthias. The jury were directed to say whether, from the facts sworn to by Matthias, if made out, there should not be a verdict for the defendants. As to the admission of evidence of custom, it seems to me there is an entire misconception as to the object for wbich it was called. It was not intended to introduce a term to the contract, but to show that such a . transaction was not unusual. The claim impliedly asserts that the defendants have been guilty of a breach of faith towards their principal. The answer was that the purchase was not to them, that, although the transfer was taken in their own names instead of to Matthias and Randall, it was really taken to them direct as a security. There is nothing extraordinary in this, and we say there is nothing unusual m such a custom, and the evidence was pcoperly laid before the jury ia this way. At all events it can have done no harm. There can be no question that the evidence was put m and received without objection in one or two instances, but when objected to later it was not proceeded with. Further, it appeals that another question was put to the. jury, at the instance of council for the plaintiff, the answer to which affirms that this transaction was known to the plaintiff. It. is quite clear it was so, we have tbe document iu writing signed by the plaintiff, in which be authorises the conveyance direct from the Whites to Ivlessis Harper. The plaintiff says he was. not aware of it, but the jury did not believe it, and we see no reason for disagreeing with the jury. Tbe jury must be taken to have found that tbis transaction was not a purchase by the defendants, but a transfer to them as a security from Randall and Matthias. was really no sale to Lawes. It was the fame transaction with him, viz., that he took a security for advances made to his nephew, and there has been a misconception on the part of the plaintiff as to what the transaction was. The case was misconceived, and the transaction was known to the plaiut.ff. I see no reason for sayiDg that the direction waß improper, or that there is any pretence for saying that there should be a new trial in this matter.Mr Justice Richmond concurred. Motion for new trial refused, with costs £ls 15s. SINCLAIR V HORNBY. The argument in this case was then proceeded with, and Mr McNab went through the evidence, aud contended that the verdict was against tbe weight of the evidence. Friday, July 30. (Before their Honors the Chief Justice and Mr Justice Richmond.) SINCLAIR V HORNBY. Mr Conolly, for the plaintiff, was. not called on. Mr Justice Richmond delivered the judgment of the Court : Since the adjournment I have gone through the whole of. the evidence. With regard to the alleged misdirection by the Chief Justice, or non-direc-tion to the jury that there must be evidence of exnress malice. A confcßion bas been made*between privilege in its right sense and fair comment. lhe judgments of Crompton, J., and Blackburn, J., in Campbell v Spottiswoode, 3, B. and S„ 778, are clear as to the distinction to be drawn ; and although several Judges have unfortunately in other cases to some degree caused confusion by the use of the word “privilege,” no case has been decided which in any way alters the decision in that case. Davis v Shepstone is in point. Henwood v Harrison, L.R., 7, C.P., 606, was relied on bv the counsel for the defendant, but is quite distinguishable. In that case the document was on the face of it no more than fair comment, and it was admitted that it was published bona fide and without malice. As to the second ground for a new trial, namely, shat the verdict was against the evidence, there was evidence on both sides. Metropolitan Railway Company v. Wright, L.R. 11, Appeal cases, pointed out by Air Conolly, is in point. [ln tbe present case there are two charges of fraudulent concealment of facts. J First, that the plaintiff was a party to the exchange of land. Tbe writer was probably ignorant of tbe fact, because he bad only recently joined tbe committee. Therefore he acted boea fide in making the charge, although it was false in fact. Mr Dodson said that the committee were aware from the beginning that the plaintiff was the principal party interested ; aud bothe the Messrs Redwood adroit the same. Mr Dodson, the secretary, also admitted that from an early date he was aware that the plaintiff bad some interest in the matter. This therefore would alone be sufficient to support the verdict. On the other and more important charge the matter is not so c.ear. The fact 3 were capable of two interpretations, and the jurv thought fit to take tne better. interpretations. It was eminently a question for them. The Chief Justice was therefore clearly right in leaving it to the jurv, and tbe jury were quite justified in coming to the conclusion that they did. Motion for newtrial dismissed, with £lO 10s costs.

CLIFFORD V. PARKER AND ANOTHER. The defendant had a brick kiln on the plaintiff’s run. On the 21th December a fire on the plaintiff’s run destroyed 6600 aere3 of grass. The evidence for the defendant went to show that the fire must have originated elsewhere than at the kiln, but it was also proved that a fire originated at the kiln which caused a small amount of damage. The jury found that there was no negligence in the use of the kiln, and gave a verdict for the defendant. The’ Jndge at the trial ruled that if the fire originated at the kiln the defendant was liable. Mr Brown, for the plaintiff, now moved to set aside the_verdic„

and for a new trial, on the ground that the jury ought to have given damages for the email fire. He sued tor damages dons by a fire originating at the kiln ; if that fire caused the big burn we were entitled €« damages for that, but if, as the evidence showed, the only damage done was small, we were still entitled to a verdict for something. (Richmond, J.: It seems to me it was your fault for not patting it to the Court at the trial > Mr Sinclair, of Blenheim, for the defendant, was not called on. His Honor tbe Chief .Justice : Tbe plaintiff was not suing for tire damage done by the small fire, but for the damages done by the large fire. He said in his evidence he did not sue for tbe small fire, he chose to treat the case as a claim in respect of the large fire. The Judge in his direction followed the same lead, and that is now complained of. That la not a misdirection. I £ the plaintiff desired to have damages assessed for the small fire he should have asked the Judge to direct the jury on that subject. The parties are bound by the view taken by them at the trial. His Honor Mr Justice Richmond : I am of the same opinion. I was not asked to give any direction as to the small fire. Rule refused with costs, £lO 10s. HOLLYMAN V. NELSON COF.PORATION AND LYON.

This was the argument of a question of law, arising on a statement of claim before trial under rule 154. The statement of claim alleged that the Corporation called for tenders for the construction of a bridge ; that the plans were so defective in design that it was impossible to carry on the construction of the work with safety to the persons engaged ou the work, and the specifications were also in a like manner defective, so that the work could not be executed without danger. That the work was negligently aod unskilfully conducted by the defendant LyoD. During the-execution of the work a mass of cem9ot fell on the plaintiff and injured him. Mr Gully, for the defendant Corporation : If the accident happened from matters outside the control of the Corporation it is not liable, unless the plaintiff shows the accident was a probability. If the contributing cause might reasonably be expected to follow, the Corporation would be liable. There is no allegation of want of care in appointing the surveyor who prepared the plans, or the contractor. Mersey Dock Trustees v. Gibbes, L.R. 1,. H.L. 93. Where the servant of the Corporation has a duty to perform, his defective performance does not make the Corporation liable. Steel v. S. E. Railway Company, 16 C.B. 550 ; Ball, L.C. on Torts, 261 ; Brown v. Accrington Cotton Company, 3 H. and C., 511. The surveyor was a servant of the Corporation, the plaintiff was also a servant, though he was directly employed by the contractor ; if so, he was injured by the act of his fellow-servant. (Mr Justice Richmond : That would bs for you to show. Mcßride v Brogden, 3 N.Z., O.A. 71* The damage was too remote for the plaintiff to recover against the Corporation.) Air Travers, for the plaintiff, cited Pickard v Smith, 10 C. 8., N.S. 470 ; in Steel v S.E. Railway Company, 16 C. 8., 550. The Lord Chief Justice points out by inference the law in this very case. Campbell on NesLgence, 64, Ed. of 1871. His Honor the Chief Justice. In my opinion the fact that the Corporation employed pre. sumably a competent person to prepare plana and specifications does not exonerate them under the ordinary rule, the Corporation is liable for tbe damage consequent on the defective plans and specifications, but here it is alleged ahothat the plans were such that the works could not be carried out without danger, why should the person who has the injury sustain the loss, and not the person for whose benefit the work was doue. If the woik itself is dangerous, as in this case, the fact that a contractor ia employed does not absolve the Corporation unless the injury is caused by the improper acts of a fellowworkman ; that is not the case here. Mr Justice Richmond concurred. Answer : That on tbe statement of facta in the claim the defendant Corporation is liable. Coats, £ls 15s. ___