OPERA HOUSE PROSECUTION.

New Zealand Mail, Issue 1666, 3 February 1904, Page 61

OPERA HOUSE PROSECUTION.

■■ ivamianm quashed. > £ 6m Friday the Chief Justice andjMr Justus Cooper heard an appeal hy Charles B. Westmacott, agent for Mr George. Mnsgrove, against a deotsion. of the Wellington Stipendiary Magistrate, ctn December 15th, convicting the appellant, . and imposing a fine of £3, and £2 13a costs, in a prosecution hro-ught by James Doyle, Inspector of Nuisances to the City Council, against the appellant, “that he’being the lessee for the time being of premises,"- do wit the Opera House, licensed under the Consolidated By-law, 1898, for the purpose of theatrical performances, did suffer persons, other than employee® of the licensee, to remain sitting in a passage in such premises while they were being used for the purpose for which , they were licensed,” , - ,J; iMt Herdman appeared in support, of the appeal, and Mr Martin represented the City -Council. . Mr Herdman based his main argument on the fact that there was no proof that Mr Westmaoott was the lessee for the time being of the Opera House, and that the Magistrate had no right to arbitrarily extend the meaning of the term “lessee for the time being” fo as to include a mere employee. Counsel pointed out that the appellant could not be held liable for rent, rates, or for a breach of the conditions of the lease.\ Then there was no proof that he know Chau's had been placed in'the passages and that people were occupying them.

The Chief Justice thought that the, appellant - must have seen the chairs gust as the Superintendent of the Fire Brigade saw them. Mr Herdman (resuming) contended that the term “lessee” was a person to whom aJease was granted, or property was devised : —a tenant holding undei lease. Westmaoott could not be held to be either a tenant or a lessee. He cited a passage in the Magistrate’s judgment in support of his argument, which passage stated, “According to seme which was referred xfco, but not produced in evidence, Mr Musgrove is doubtless the principal, and it. was admitted that the defendant was his manager. I think lam right in ruling that as the principal! is out of the colony and has left the defendant to represent him in the oity, the representative is responsible as for his principal in the performance of his duty for acts the defendant by him (his representative) or by these acting under him and within his knowledge” may have committed. That passage clearly meant that Mr Musgrove was the “lessee for the time being,” and defendant was* only his employee. Mr Martin held that Westmacott was lessee by reason of hie having been the only person who paid rent to' the Opera'' House Company. He put it- that under section 49 of the Justices of the Peace Act, 1882, the defendant, assuming Musgrove to he lessee, added in the commission of the offence. The Court gave judgment without calling on Mi” Herdman to reply. The Chief Justice said that in his opinion the conviction must be quashed. .The charge was against the appellant fear having committed an offence under by-law 299 of the Consolidated By-laws of the City of Wellington, which made it an offence for the license© of licensed premises, eu'Ch as the Opera House, to allow, permit, or suffer any person other than the licensee to remain standing or sitting in the passage. It applied to the licensee of the building and the lessee. No doubt it was a very proper by-law, and one that should be strictly enforced. It was very proper that escapes from theatres should be kept clear in case- off panic or fire. The appellant was proceeded against as lessee, and to prove that he was such, the secretary of the Opera House Company was caill•eid, and be said he received rent from him, blit he did not -rent from Him as qua tenant or qua lessee, hut as manager of a third person, and the secretary of the Opera Hons© Company said there was a lease in existence and that it, was in writing. The appellant could not be held liable because he paid rentr nob'as'a tenant, but as the ageni .off .person. In Ids opinion, v the Magistrate ought to have insisted on of the lease, because it Siting. This Court could not assuifee I##' the appellant was lessee ; he 'foi* the lessee. In '•hue opinion, ilhere was no evidence to show th ; at -Mr "Westmaoott was lessee of the thetatre. He considered that the Magistrate had erred, and the conviction ■ must be quashed. Seeing that the case / fros u gait of quasi police prosecution by to© <3ity ‘Council, that there was') overcrowding, and that it could have been •stopped by Westmaeott if he pleas-' ed, the Court -did not think it was ,a ; case in which costs Should be granted. : Mr Justice Compel* expressed his eon*ourrence for the same reasons. ,