SUPREME COURT.—IN BANCO.

Otago Daily Times, Issue 3933, 24 September 1874, Page 3

SUPREME COURT.—IN BANCO.

Wednesday, 23rd September. (Before His Honour Mr Justice Chapman.)

MAUDE V. VKASKR,

In this action the plaintiff seeks to recover his 'Share of certain profits arising out of a joint speculation in the purchase and sale of 143 acres of growing crops whijh the defendant is stated to have harvested arid sold, and for the profits of ■which transaction he has never accounted to the plaintiff.

This declaration is demurred to on the ground that in the transaction the plaintiff and defendant were partners ; that this relatiou between ths parties involves the taking of an account; and that \uvtil such account has been taken, ami the balance or share of profits dire to the plaintiff has been ascertained, this action cannot bo -maintained. In support of this view the cases of Can- v. Smith, 5, Q. 8., 128; Green, v. Beesbu, 2, BN.C, 108; and Bovill v. Hammond, 0, 15. -and C, 149, were cited.

There can by no doubt as to the general rule upon which the cited cases were decided—that, so long as a partnership remains open, and the respective liabilities of the partners are unascertained —whether t'io partiiership be general or confined to a particular speculation—an action to recover an unascertained balance cannot bo maintained. If the parties have themselves stated accounts, and agreed to a balance, then in•deed the party iv whose favour tho balance has teen found rnav sue for the same.

But there is another class of cases relied upon on behalf of the plaintiff, iv answer to the demurrer, which it is contended enalle him to sue the defendant as his bailiff, and recover his proportion of the profits. All these cases arise out of the Statute 4 Ann, c. Hi, but they are all, •with the exception of Thomas v. Thomas and Jacob v. Seivard, to which I shall recur, actions of account.

The earliest of the cases cited and, with the exceptiou of a case in Comyn's Keports, the earliest to be found, is Whedcr v. Home, Wilk's, 208. In that case the plaintiff and defeudaut were tenants in common ; and it was held that, although no action of account could be maintained at common law by one tenant in common against his co-tenant, yet the 4 Ann, c. 10, sec. 27, gave that remedy; but in such case the plaintiff must state that he and the defendant are tenants in common, and that the defendant had received, in the words of the 27th section, " more than comes to his just share or his portion."

Jacobs v. Semird, Law Reports, 4, C.P., 325, does not belong to this class of cases. It merely decides that one tenant in common cannot maintain trespass against his co-tetiant for entering and taking away the whole of a growing crop, and the reason given is important. "We (the Court) cannot tell what would be due from one to the other without taking the accounts.'— Eauouv. Henderson. 12, Q. 8., 984; Henderson v.Eason, 17, Q. 8., 701; Baxter v. Hosier, 5, 8.H.G., ISS; and Goreli/\. Gordy, 1, H. and N., 414—-were all actions of account under the Statute of Ann.

Thomas v. Thomas, 5, Exch., 28, was an action for money had and received. The plaintiff and defendant were tenants in common, and the defendant had received rents of the common property for several years without accounting or paying to the plaintiff his half share. The Court held that the action did not li&. and that the only remedy at law was an action of account.

Now, in order to take this case out of the first class of cases, and bring it within the second, it was of course necessary to contend that this is an action of account, and the question is whe- • ther it can be so treated. Under our rules all actions at law, and all suits in Equity, are designated by the name of actions; and all actions are divided into three classes—l. Actions for money, which include all actions at law, except ejectment, detenue, and account; 2. Actions for the specific recovery of things real and personal, including land, chattels in specie, and title deeds; 3. Actions for specific relief, comprising the ordinary suits in Equity, and the action of account. This division of actions seems to me to be logical and exhaustive.

By the 41st of the General Rules of 1856, it is : required that "the declaration shall in all cases conclude with a statement of the relief which, the plaintiff claims," and that statement determines -to which of the three classes the action belongs. It seems to me essential to preserve the distinctions between the three classes of action — ■especially between the first and third—by the only criterion, namely, that which is prescribed by the 41st rule;. because in many instances upon one and the same statement of facts the plaintiff may bo entitled to claim either tlie specific performance of an agreement or damages ..for the breach thereof.

Now, in this declaration the; plaintiff complies with the requirements of the 41st Rule, by stilting the relief which he claims," namely, "to recovei- from the defendant the sum of £210." This clearly makes it an action of the first class, that is, an action for money; and not an action of the third class, for an account. Moreover, the claim is for an unascertained share "of profits, which is less easy to arrive at than the much more simple claim in Thomas v. Thomas, which was for a half share of certain fixed rents. I cannot discover any distinction under our rules, so far as procedure is concerned, between an action at law for an account and a suit in .Equity.for an account, though the one .may be.founded on some lpgal right or relation between the parties, and the other on some equitable right or relation. Both come within our third class of actions, and hoth require compliance with the 41st Rule. We need no appointment of auditors, as in the common law action, to take the account, when we have the proper officer of the Court for that purpose. In conclusion, for the reasons assigned, Ithink this action rfor money cannot be maintained; that the proper •remedy is an action of account, and that the demurrer must be allowed. If this action had gone to trial, Thomas v. Thomas is authority for say~ing that there must have been a nonsuit.

Judgment for the defendant. H'GRATHj APPELLANT, AND HENDERSON AND

ANOTHER, KESPONDENTS,

_ This is an appeal against a decision of the Re sident Magistrate at Oamaru. An actioU' was -brought by Henderson and Calder for the loss of a horse by the alleged negligence of M'Grathin making certain repairs to a road, and the only question which lets in the jurisdiction. of this '■Court is whether there was any reasonable evidence of such negligence in the contractor's mode of carrying on the work. If there was evidence pro and con, it was for the Magistrate to weigh the same, and this Court ought not to distrust iis decision.

After a careful examination of the facts as ■stated in the,case, I am of opinion that there was evidence to support the Magistrate's decision, and that the appeal must be dismissed. It appears that in making a new line of road along the centre of the old line of road a culvert was constructed across and under the central embankment. This was for the purpose ..of carrying the water from the north-east side -of the new road into a drain which was designed to carry the water to the south-west side of the /road, where it escaped into the adjacent property. In carrying on the work the defendant below was oblisred to make use of this part of the road, and. for his own convenience, as the case states, "he caused the di-ain already described, to be filled up with rough stone, so as to make what is vcalled a rubble drain. .

'xhis rubble drain, then, was entirely the work of the defendant below.

The case then states that in consequence of "the filling up of the .drain, au^ °f the heavy rains which fell, water ran from the culvert along the part of the road available for traffic for two -chains, and that its only escape was through a gorse hedge-along the south-west side of the road, against which (that is against which escape) a plough-furrow had been thrown up (I pre--sume, in M'Grath's favour, that this furrow was thrown up, not by him, but by the adjacent •owner), and in consequence of this and the heavy traffic the road— -i.e., tlie south-west portion— •became very bad, the top being; covered with thin mud.

On behalf of the defendant below, this plough furrow is invoked as the immediate cause of the found ous state of the road. This furrow the adjacent^ owner would have a right to make to protect his own property from the overflow caused by the defendant's rubble drain. The furrow •was not, as contended, the sole cause, or even the principal cause, of the foundrous condition of the road, which was traceable to the filling up of the drain as described, by the defendant h'elow, for his own convenience, by which it became less efficient for the purpose of carrying off the water. I think it is no answer to say that tho furrow was in part the cause of the accumulation of water. The filling up of the drain and its consequence was evidence of want of caution—that is, of negligence. The heavy rains—perhaps unusually heavy for the season—were no doubt in part the cause; but that was a contingency which should have been anticipated by the defendant as at least possible in the month of July, when he filled up the dyain in the manner described. The plaintiffs below appear to have been somewhat incautious in venturing over the road in the state described with so heavy a loa.J ; but I-do not think that in so doing they were guilty of such negligence as to exonerate the defendant; and indeed that inference it was also competent to the Magistrate to draw.

Appeal dismissed, with costs.

MACASSET V. BELL,

In the matter of the directors of the Guardian Newspaper Company. This is a rule obtained on behalf of the plaintiff in the action calling on the directors of the Guardian Newspaper Company to show cause why they should not answer the affidavits upon which the rule was granted ; and why, in default of a good and sufficient answer, such further order should not be made as to the Court shall seem meet. "Without waiting for the argument of the rule, an affidavit has been sworn to by Mr R. J. Creighton, who describes himself as manager of the Guardian newspaper. It is urged on behalf of the plaintiff—the party grieved-that this is insufficient, and tliiit. in all cases of this nature, it is necessary that the disclaimer of any evil intention should eir.auatn ftom t:ie writer of the article com plained of, an he iiloi-e c;m rebut the intention which is presumed to flow fnmi the tt ndeacy of an article. 1 am, however, uot pre-

\ a-cd to say that a full and unqualified disclaimer —such as is usually offered to and accepted by fie Courts— must necessarily be made by the writer of the objectionable article. ]tfo doubt that course has, in many cases, been adopted; but there may be many cases iv which it would be equally satisfactory from the editor. It is the publicity of an article of the kind which renders it hurtful, and that is the work of the editor. He it is who is responsible for the contents of the paper. He is especially cognisant of tho leading articles. He is clothed with authority to insert or to reject what is written by others, and if at any time he should sanction the insertion of an article which has a tendency to prejudice or,e of the parties to an action still pending, I think he should be permitted to say that when lie sanctioned tho insertion of the article he did not perceive the tendency since imputed to it; that lie had no intention to prejudice the party complaining, and that, if the Court should be of opinion that it had such tendency, ho regretted its insertion. Such a disclaimer would, I feel convinced, be deemed sufficient by any Court. But the peculiarity of this affidavit is that it is made by a gentleman who designates himself as " Manager." I am not aware what the functions of a manager are— that is, whether they are limited to business financial arrangements, or whether they embrace any editorial control over tho literary department of the paper. The affidavit does not inform the Court whether Mr Creighton had any such control; and although he himself swears that ho had no intention to comment on the action, or to east any reflection on the parties connected therewith, he does not show that be is entitled by the nature of his functions to vouch for the writer or the editor, except iv the way in which he refers to the directors, as an expression of bis opinion or belief. The learned counsel for the directors characterises this affidavit as an explanation; but it really explains very little. Besides this disclaimer which I have just noticed, the affidavit expresses an opinion that the article does not bear the character imputed to it—that it has been " misunderstood," that its object was to discuss the expediency of preserving the inviolability of the Telegraph Department, and had no tendency to prejudice the parties to the action, j If f had not been of opinion that the article had such a tendency, and that, too, after a careful scrutiny thereof. I should not have granted the rule. Passing over that portion of the ninth paragraph of Mr Creighton's affidavit, which relates to himself, and on which I have already commented, he proceeds to s\ve;u- that he verily believes that the directors | had no such intention as that which had beeu imputed to the article. This I can very readily believe. Whatever may have been the animus of the writer or the editor, or of both, the directors possibly may have known nothing of it until they saw it in print. But this must be j often the case with the person or persons legally responsible. The proprietor or the publisher of a newspaper may often find himself the defendant in an action for libel contained in a paragraph which he may not have previously seen. This responsibility is the price paid, and I believe willingly paid, for the advantage of the anonymous. If this affidavit has been made by the writer or editor, it must be obvious that its force would have been greater than that -which can now be attributed to it. In truth, there is nothing in the affidavit to show that Mr Creighton knew more about the article before it uns published than the directors knew; and even the last paragraph goes no further than the expression of an opinion on reading the article. He regrets-not that the article was published, but that it should have been "misunderstood." The primary object of the article was no doubt to advocate the expediency of preserving the iuviolability of the Telegraph Department. If the article had stopped there, no occasion for this rule would have arisen, nor would the plaintiff in the action have had any ground of complaint. But the article clearly goes beyond this. The counsel, or rather two of them, are named; if they retain their briefs, they are held up to public obloquy, or at least disapprobation, as having advised, or at least sanctioned, a proceeding which the article condemns. I do not suppose. that any counsel would be weak enough to throw up his brief on the suggestion of any newspaper; but the words " if they retain their biiefs " point at such an alternative The general tone of the article is studiously subdued, but that tone is condemnatory of the plaintiff's proceedings., and therefore has, in my opinion, the tendeuey imputed to it. I think, however, that like one of the recent cases cited, the tendency is not very strong so as to evince a depraved intention. It has not the flagrant character which some of the cases, such as Tichborne v. Meslyn, and Daw v. Eley, exhibit. In dealing with a joint-stock company, with a numerous body of directors, attachment is not a very appropriate remedy even for a very flagitious contempt, and if I had thought that this case had come within the more gross and reprehensible class,.l should probably have considered a fine as the proper mode of dealing with it. But1 as I do not consider this as a case of the grievous nature of some of the cases cited, though it is not excusable, [and is certainly not excused or explained away by the so-called explanation. I have come to.the conclusion that the usual consequences, as to costs, will be a sufficient vindication of the law, and, above all, a sufficient warning that the Court will not sanction any writing put forward, pending an action, which reflects? howsoever cautiously and covertly, upon the proceedings of the parties to such 'an action, or of their solicitor or counsel. The rule will therefore be made absolute, with, costs, as to the first branch thereof — that is, for answering the affidavits, which has already, been done, though imperfectly, by anticipation; and no furtlier proceedings will be taken under the second branch of the rule. This was the course adopted in a former case before this Court, after a careful examination of a large number of cases in which a similar course had been adopted. : Rule accordingly.

MACASSEY V. BELIi,

Argument of rule nisi calling upon defendant to show cause why judgment, non ■ obstante reredicto. on the second and third pleas, should not be entered up for the plaintiff, and why the findings of the jury should not be set aside and a new trial had between the parties. Mr Haggitfc, with him Mr Stewart, appeared to move the rule absolute. Mr Jas. Sraiih, with him Mr Stout, appeared to show cause. Mr Smith, referring to the first ground mentioned in the .mle—" That the second plea is bad in law and affords no answer to the defamatory matter in the declaration complained of, because being pleaded to the whole declaration, it does not answer all the libellous statements in the declaration" set forth." He submitted, that the drift of the second plea was misapprehended. It did not profess to answer the whole declaration. The wording of the plea was peculiar in this respect, that it commenced by saying, "For a further plea in this behalf, the defendant saitli." He admitted that by these words the defendant had limited this plea to the specific matters that were answered by the plea. There was also a plea of Not Guilty in the record which answered all the other allegations in the declaration, which this plea did not cover. Therefore, between the two, the whole declaration was answered. The second ground on which Judgment, non obstcmte, was cited was, "That the third plea is bad in law. and affords no answer to the action, because being pleaded to the whole declaration it does net answer all the allegations of pretended fact in the publication set forth in the said declaration, lmfris only an answer, so far as regards the comments on such pretended facts." He submitted that the doctrine "aided by verdict" came in to aid defendant in the construction the Court should now he asked to put on this third plea, according to which it was not to be held only as a plea of fair comment, but is a plea entirely if not expressly justifying all the allegations of fact contaiaed-iu the article. Although no doubt the language was vague and might be open to objection upon special demurrer, and might have afforded ground for an application in Chambers calling upon the defendant to render this plea more specific, yet, as the plaintiff did not think proper to take that course, but went to trial upon the plea, and if now by any fair interpretation it could he held to mean more than justification of the newspaper article as fair comment, then he submitted the doctrine "aided by verdict," enabled the defendant to ask the Court to put that construction on the plea, and the words were quite sufficient to bear that construction. He submitted the Court would not favour the course the plaintiff was now taking, for manifestly the plea was a warning to plaintiff that something more was meant that a justification of the mere comment in the article. He now came to the second branch of the rule: " Why the findings of the Jury should not be set aside, and a new trial had between the parties, on the grounds following :—l. That the findings of the Jury were against the weight of evidence." The first question put to the Jury was " Did the defendant falsely and maliciously print and publish concerning the plaintiff the article in the declaration set forth '!" The answer to that was No. In other words, the Jury found that the article in question was not a libel upon the plaintiff. The question now was whether that verdict was against the weight of evidence. Be submitted that this w«s a question peculiarly within the province of the Jury, and one, therefore, their decision upon which the Court would not seek to disturb, except the w eight of evidence should be most clearly and unmistakeably the other way. Mr Smith then proceeded to analyse the evidence given at the trial, in order to show that the Jury were quite justified in coming; to the conclusion they did. With regard to the second issue, " Ar.* the statements of fact conlained in the said article true in substance ?" the Jury found in the affirmative. He submitted the evidence at the trial fully j ustified that finding, as well as the finding upon the third issue. Coming to the next ground:--" That the learned Judge who presided at the trial erroneously rejected evidence tending to connect A3 r C. D. R. Ward with the writing and publication of the article and the defence to the action, and to show that the publication of the said article was malicious to th<; defendant's knowledge, and m-.iri! especially erroneously i-ojected thu answers to bevecal <m> stion put to Gibson Kirke Tin-ton, a wiuiess call, d for the plaintiif." He *Mr Smith) submitted that the learned Jud^e veiy

properly rejected all such evidence as was then tendered, on the simple ground that every one of those qnestious tended to disclose what had taken place between defendant's solicitor, himself, or third parties, relating to the action. He submitted that not one of the eases cited in moving for the rule supported the contention on the other_ side that the Judge was wrong in excluding the evidence. In nearly all the cases cited by the other side,' the question was whether communications that had passed between the parties should be considered admissible. He submitted that the evidence rejected at the triiil was inadmissible on two grounds. First, if Turton, as defendant's solicitor, had any communication with Judge Ward, the defendant was entitled to have that evidence excluded, as he had a right to treat any such communications as privileged. Secondly, it was objectionable, on the ground that it was a communication between plaintiff's own witness and a third party, the defendant himself not being present. If such evidence were admissible, there was no reason why cenversations between defendant's solicitor and any other person with reference to tho subject-matter of the action should not be equally admissible. There would be nothing in -principle to distinguish such conversations from any communications supposed by plaintiff to have taken place between Mr Turton and Judge Ward. At the trial, 'when refusing to allow those questions to be put to Mr Turton, His Honour said that the very questions about which he had any doubt were the two last —whether or not Judge Ward had indemnified the defendant, or whether he was looked to to indemnify the defendant. He (Mr Smith) submitted that those questions directly trenched upon the privilege of the defendant- namely, that any communication made to his solicitor, or any knowledge possessed by his solicitor having reference to the action, was sacred. It appeared at the trial that Judge Ward was one of the plaintiff's witnesses. He was called, but did not appear. The object of the questions put to Mr Turton was to elicit what communications, if any, had taken place between the client's witness and defendant's solicitor, whom plaintiff had chosen to make his own witness. He submitted that it would be a most unheard of proceeding if any such evidence were admissible against the defendant. Ono distinct ground of objection to such evidence would be that it would be admitting hearsay evidence. As to the ground that the learned Judge, misdirected the Jury, he had only to repeat the observations he had made in regard to the evidence. But there was another ground upon which this branch of the rule might be met, and that was that the Judge was not asked at the trial to give any such direction as that specified in the rule, and therefore it was not competent for the plaintiff now to urge that the Judge should have so directed the Jury. His Honour was doubtless acquainted with the cases in this point, which were collected in Archbold, p. 513, under the head " V." The last ground was unfair practice on the part of the defendant, and his counsel at the trial, to the prejudice of the plaintiff, in that the observations of the learned counsel for the defendant (Mr James Smith) on the subject of costs, were calculated unfairly to bias and prejudice the minds of the Jury.

His Honour : I mention that observations as to costs should not be made by counsel, as it was decided that the Judges themselves could not instruct Juries as to costs. • .

Mr Smith : I was going to show that the practice of the Court was not uniform.

His Honour: I always adhere to the practice in England and Victoria.

Mr Smith : The practice at home is not uniform.

His Honour: There has latelybeen asolemndecision on thepointat home. The Judgeshad consulted and had come to the conclusion that they should not direct a Jury as to what costs would he entailed. That has been my practice, and I intend to adhere to it. That being the case, counsel should not do what the Judge refrains from doing. The Judges in England always did it in a hesitating sort of way, but now they have decided not to do it at all.

Mr Smith cited a case reported in 3, Foster and Finlaifson, and went on to say that the practice of this Court could not be said to be authoritatively settled. . The Judge had adopted a certain course, and another Judge adopted an exactly contrary course. His Honour : If the course I have followed is decided to be the correct course at home I shall adhere to it.

Mr Smith : Yes ; one authoritative decision at home; but I submit, your Honour, that one nisi jirius Judge consulting two or three others cannot be held to establish the point authoritatively. 1 submit there is np decision yet binding upon the Court which prohibits the practice. I would cite the case of M'KcUar v. Brown,, Macassey's Reports, p. 90G, in which your Honour decided that a new trial should not be granted upon such a ground as this. I submit that the observations made in this case, although not in accordance with what your Honour now understands to be the established practice of the Court in England, affords no grounds for a new trial. Mr Stout followed on the same side, and had not concluded his aigument when the Court rose.

Strangers paying a visit to Dunedm are often at a loss to know which is the best establishment to visit for the purchase of drapery and clothing. Herbert, Haynes, and Co. offer special advantages to the public that can be met with nowhere else in the city. They keep at all times the largest and best assorted stock of every class of goods, imported direct from the leading manufacturers and warehousemen at home, which being bought entirely upon cash terms, they are enabled to offer goods of such sterling value as cannot be equalled by any other house in the trade. Every article in stock is marked at a fixed price for ready money, from which no abatement is ever made, so that the most inexperienced buy their goods at the same price as the best judges. Their terms are—net cash,.without discount or reduction of any kind. A fuller description o their stock will be found in an advertisement in the first page of this naner. |Advt. Wb have received a sample of Wolfe's Aromatic Schiedam Schnapps, and handed it over for report to a gentleman of matured experience on the subject of alcoholic drinks. He assures us that he can fully eu-dor.-e the opinion expressed by the Physicians of the Sydney Hospital, that this Schnapps is " a most excellent stimulant and diuretic." There are imitations on sale, but the genuine article can be recognised by its mild and pjeasant flavour, and its creating none of those disagreeable resu ts that are apt' to follow even the moderate imbibition of ordinary gin—evidently owing to the absence of fusel oil, or noxious ingredients introduced by the eompounder. Wolfe's Schnapps is much in favour, because it can be depended upon to be pure, whilst other spirits procurable are generally adulterated. It may not possess all the virtues claimed for it, but certainly it is an alcoholic stimulant better suited to this climate than any other in use.—Brisbane Courier.—Messrs Dalgety, Nichols, and Co. Dr. Dk Joxgh's 'Light-Brown Cod Liver Oil.—lnvariably pure and uniformly excellent.—Dr Letheby Medical ■ Officer of Health to the City of London, writes : "In all eases, I have found Dr de Jongh's Cod Liver Oil possessing the same set of properties, among which the presence of cholaic compounds, and of iodine in a state of organic combination, are the most remarkable. It is, I believe, universally acknowledged that this description of Oil has great therapeutic power ; and from my investigations, I have no doubt of its being a pure and unadulterated article." Sold only in capsuled Imperial Half-pints, Pints, and Quarts, by all chemists, druggists, and storekeepers. Sole Consignees, Ansar, Harford, and Co., 77. Strand, London. —[Advt. ]

Holloway's Ointment and Pills.—For the cure of burns, scalds, wounds, and ulcers, this justly celebrated Ointment stands unrivalled. Its balsamic virtues immediately on application lull the pain and smarting, protect the exposed nerves from the air, (live to the vessels the vigour necessary to heal the sore, and confer on the blood a purity which permits it only to lay down healthy flesh in the place of th.-.t destroyed Holloway's fills, simultaneously taken, much assist the Ointment's purifying and soothh.g power. Together these medicaments act like a charm. Travellers embarking for unwholesome climates, where pestilential airs are constantly producing fever, should provide themselves with these remedies, which will assuredly save them nights of weary watching and days of pain.—[A dvt.] The following is an Extract from at, letter, dated ltth May, 1872, from an old inhabitant of Horningham, near AVarminster, Wilts :-"I must, also beg to say that your Pills are an excellent Medicine for me, and I certainly do eiijoy good health; sound sl-ep, and'a, good appetite; this is owing to taking your Pills. I am 7S years ok'.-—Kcmaininj.', Gentlemen, yours very resprjctiully, L. S.—To the Proprietors of Norton's Camomile Pitis.London."