The Courts.

New Zealand Mail, Issue 976, 14 November 1890, Page 24

The Courts.

SUPREME COURT. o cleland and others y. the south British INSURANCE CO. (Judgment of Edwards, J., delivered Ist October, 1890.) The only question for decision in this case is whether Section 83 of 14, Geo. 111., c 78, is in force in this colony. The statute in which this section is contained is an enactment for the purpose of regulating buildings, prevention of fire, &e., within the metropolitan district of London. It is contended for the defendants that the section in question is not in force in the colony. Firstly, upon the ground that, upon the true construction of the statute, the provisions of this section are limited in their application to the metropolitan district, and that the direct decision of Lord Westbury in exp. Gouly, 4 DeG. J. & S., 477, has been so shaken by doubts expressed iu the House of Lords iu the Westminster Fire Office v. the Glasgow Provident Investment Society, 13 App. Cases, 699, that it is no longer binding upon this court. And, secondly, upon the further ground that, even if the section in question is of general application in Great Britain, it is not in force in the colony. The section under consideration runs thus :—‘ And in order to deter or hinder illminded persons from wilfully setting their bouse or houses or other buildings on fire, with a view of gaining to themselves tho insurance money, whereby the lives and fortunes of many families may be lost or endangered, be it further enacted by the authority aforesaid—That it shall and may be lawful to and for the respective governors and directors of the several insurance offices for insuring houses or other buildings against loss by fire, and they are hereby authorised and required upon the request of any person or persons interested in or entitled unto any bouse or houses or other buildings which may hereafter be burned down, demolished, or damaged by fire, or upon any grounds of suspicion that the owner or owners, occupier or occupiers, or other person or persons who shall have insured such house or houses or other buildings, have been guilty of fraud or of wilfully setting their own house or houses or other buildings on fire to cause the insurance money to be laid out and expended as far as the same will go towards rebuilding, reinstating, or repairing such house or houses or other buildings so burned down, demolished, or damaged by fire, unless the party or parties claiming such insurance money shall within sixty days next after his her or their claim is adjusted, give a sufficient security to the governors or directors of the insurance office where such house or houses or other buildings are insured that the same insurance money shall be laid out and expended as aforesaid, or unless the said i nsurance money shall be in that time settled and disposed of to and amongst all the contending parties to the satisfaction and approbation of such governors or directors of such insurance office respectively.’ Now, apart from the fact that this provision is contained in a statute which is principally of local application, there is nothing, either in tho subject-matter or in the wording of the enactment, to justify the contention that it was intended to be of local application only. It is heralded by a special preamble which recites a general purpose, and the enacting part is quite general in its terms, and in this respect is in striking contrast with the most of the provisions of the statute, in which the words ‘ within the limit aforesaid ’ are over and over again repeated. Moreover, if the legislation, both prior and subsequently to this statute, is considered, I think that this section was at the time of its enactment intended, by the Legislature to be and that it has since been recognised as being of general application. The section in question is a re-enactment of the 34th section of 12, Geo. 111., c 73, eliminating only the words which rendered the latter section clearly of local application. That section after the same preamble as in the later statute, runs:— ‘ Be it further enacted by the authority aforesaid, that it shall and may be lawful to and for the

respective governors and directors of the several insurance offices within the limits aforesaid, for insuring houses or other buildings against loss by fire, and they are hereby authorised and required upon the application and request of any person or persons interested in or entitled unto any house or houses or other buildings within the limits of this Act prescribed, which shall or may be burned down,’ See., &c. Now, it appears to me to be plain that the Legislature in re-enacting the earlier statute, omitting the restrictive words, has clearly declared its intention that the enactment should be of general application. This principle of construction was adopted in Lawrence v. King, L.R., 3, Q. 8., 345. Looking to the subsequent legislation it will be found that, with the exception of sections 83 and 86, the whole of 14, Geo. 111., c 78, has been repealed by the statutes 7 and 8 Yic., o 84, 18 and 19 Vic., c 122, and 28 and 29 Vic., c 90. The last statute was passed in 1865, after the decision of Lord Westbury in ex parte Gouly, which was in 1864. Now, if the section under consideration had been transcribed into, or by reference made part of, the statute of 28 and 29 Viet., c 90, it is plain that this would be held to have been done by the' Legislature, with the object and intent of Adopting any legal interpretation which had been put upon that section by courts of law; the same words being used in order that everything that had been settled before as to their construction should remain settled without further litigation. See Dale’s case, 6, Q.B. Div., p 453, per James, L. J., Mansell v. the Queen, 8, E. and B. 54, at p 73 : so if the same words had been used iu a subsequent statute in pari materid, Mersey Docks v. Cameron, 11, H.L., 4SO, per Blackbourn, J. It may be said that there is a difference between re-enacting the words upon which a judicial interpretation has been placed, and preserving the samo words by exception in a repealing clause. It is not, however, easy to see what logical distinction there can be. There can be no doubt that the Legislature in 1865 intended to preserve the section with the meaning which had been put upon it in exp. Gouly ; and it can scarcely be doubted that, if the 1 decisions in that case should come to be reviewed by the House of Lords, the fact that exp. Gouly has remained so long unquestioned, and that the section has been carefully preserved by the Legislature with the plain intent that it should bear the meaning put upon it by the Lord Chancellor, would not be without weight, if there should be any doubt about the original meaning. The latter statutes do not, of course, affect thiß colony, but it is impossible to suppose that with regard to a statute of general application both in Great Britain and in the colonies, the same considerations which would weigh with the House of Lords would not weigh also with the Privy Council. Looking now to the decided cases, it is admitted on the part of the defendants that expavte Gouly is upon the first point raised by the defendants, precisely in point; and that the authority of the case was not questioned in Rayner v. Reston, 14, Ch. Div. 297, and on appeal 18th Ch. Div. 1, butis suggested that the authority of exp. Gouly lias been so shaken by a subsequent case that the point may be considered as still open. I do not, however agree with this contention. The case relied upon by the defendants is the Westminster Eire Office v. the Glasgow Provident Investment Society, 13 App. Cases, 699, in which Lord Watson expressed doubts as to the correctness of the decision in exp. Gouly. It is plain, however, that this would not be a sufficient ground for disregarding the express decision of the Lord Chancellor. Moreover, the cases of Richards v. Easters, 15, M.S.W. 244, and Fillilu v. Phippard, 11, QB., 347, which decide that the 84th and 86th sections of the same statute, 14 Geo. 111., c 78, are general in their application, and appear to me to be directly in point. The second point raised by the defendants was that, even if Section 83 of 14, Geo. 111., c 78, is in general operation in Great Britain, it is,not in force in this colony ; and it was argued that, while the common law and. any statutory modification thereof in force in Great Britain on 14th January, 1840, are in force in this colony, so far as they remain unaffected by the local legislation. Statutes passed to provide against particular mischiefs in a peculiar way are not. And upon this ground it was sought to distinguish Hunter v. Walker, N.Z.L.R., 690, in which it was held that the 86th section of 14, Geo. 111., e 78, is in force in this colony! The express provisions of ‘ The English Laws Act, 1858 * appear to me, however, to render this contention untenable. The preamble to that Act recites that the laws of England, as existing on 14th January, 1840, had until recently been applied in the administration of justice in this colony, so far as such laws were applicable to the circumstances thereof. It further recites that doubts had been raised as to what Acts of the Imperial Parliament passed before the 14th of January, 1840, were iu force in the Colony, and that it was expedient that all such doubts should be removed without delay ; and then proceeds to enact that the laws of England, as existing on 14th of January, 1840, shall, so far as applicable to the circumstances of the Colony, bo deemed and taken to have been in force therein on and after that day, and shall continue to be therein applied in the administration of justice. It seems to me to be impossible to contend that this enactment refers only to the common law, and to any statutory* modifications thereof. If authority to the contrary is wanted it may be found in Highett v. Macdonald, 3, N.Z. Jur, N.S. 102, in which Mr Justice Johnston said, ‘ I think iu dealing with this question we must suppose that we have lying open before us the Whole common law and statute law of England in force on the terminal day; and of that great body of law every provision which was then applicable to the circumstances of thes. Colony is to bo deernod to have been solemnly adopted and legislatively declared to be the law of the Colony by the legislation of the Colony at a time when it had been fully empowered by

the Imperial Parliament to make its own laws. And it seems to me that with respect to the Btatute law of England, the question is not whether the whole of a particular statute, or chapter of a statute, can be applied in the Colony, but whether tho particular enactment, duly interpreted and construed by the contents and the preamble of the Act, is capable of being applied or not ’; and also in Wardell v. Buckeridge, 4, N.Z. Jur, N.S. 22, in which after remarking that the particular statute under consideration in that case was in affirmance of the common law, and that this was au argument in favour of its general applicability, Mr Justice Richmond said that, even supposing the principle to be a mere statutory rule, bo should still hold that, unless it was repealed, it was in force in this Colony ; and in the New Zealand Loan and Mercantile Agency Company, Limited, v. the Mayor, &c., of the city of Wellington, which was decided at the last sitting of the Court of Appeal. Apart from the general question raised no particular reason has been suggested for saying that the section under consideration is not in force in the Colony, and it appears to me to be impossible that there can be any Buch reason. The object of the section is the discouragement of arson and fraud, and the same reasons which prevailed for holding that it applied to the whole of Great Britain must prevail also for holding that it applies to this Colony. I am of opinion, therefore, that the plaintiffs are entitled to the judgment of the Court upon both the points which have been raised, and that the 83rd Section of 14 Geo. 111., o 78, is in force in this Colony. The plaintiffs will have their costs according to the scale, £ls 15s.