SUPREME COURT.—IN BANCO.

Otago Daily Times, Issue 4167, 26 June 1875, Page 2

SUPREME COURT.—IN BANCO.

Friday, 25th June. (Before His Honour Mr Justice Johnston.) MACAssEi* v.'miti:'- ;• Ui.. Mr B. C. Hagyitt applied for a rule hisE staying proceedings in the ca.se Maeaiaiey " 15eLL In doing so, he read the following memo" which, he stated, had been agreed to & solicitors for plaintiff and defendant:— ' The defendant admits to be untrue and unfounded, and therefore withdraws : .every imputation contained vi the article complai/ed of Sl dayh proceedings, setting forth tlie details o£ tUe JOTeeineut entered into betweeathe parties, ills Honour then granted the aj^h^ation.. -, HYMAK (APPELLANT) AJTD OUTKED ■ (RE- „ SPOXDEXT). liiis was an ajipeal from the decision of the Resident Magistrate of Duuedm in the case Outred v. Hymau, in which the plaintiff:

sought to ""recover damages for au alleged conversion! by'defendant ?6f' his goods, consisting, among other. tilings, of a case containing a. sewing machine. . Outred was a passenger on board the wrecked ship Surat,' and among his personal property on board the ship was the sewing machine, winch, it was stated, liad'been used by his wife (who is a sempstress) in the ordinary carrying on of her calling. The machine had also been vised by Outred in the exercise of his ordinary calling as a shoemaker. The wreck was purchased by Messrs Gnthrie and Larnach on account of themselves, Hyman, and others; and after some correspondence with the Superintendent they agreed, on payment of L 350 by the latter, to give an absolute and unconditional release of the passengers' luggage recovered to date. They afterwards refused, however, to give up to Outred this sewing-machine, and he therefore brought an action against Hynian in the Resident Magistrate's Court to recover damages. The judgment of the Magistrate (which was published in full in this journal) was to the effect that the defendant was not justified in refusing delivery of the sewing-machine to the plaintiff, and was therefore liable in damages. J udgmeut was . given for plaintiff for L-0, with costs. Hyman now appealed against this judgment. .. Mr Mftcassey appeared on behalf of'the ap- ■ pellaut, and Mr Edward Cook for the respondent. Mr Macassey, in opening the argument, said he did not question the general statement of law made by the Magistrate on the authority -of the case of the Hamburg. He wa-s free to iiluiit that, inasmuch as appellant was on the spot and capable of giving orders as to the management of his own property, no implied agency cluld exist. The capta'n had no right whatever ■ to)'■■interfere with the luggage of his passengers. Further, he admitted the same rule held good, whether this sewing machine was treated as forming part of the cargo or of the luggage. He admitted that in neither case had the master any authority to attempt to bind the-passengers. His Honour: Has the point been raised whether the true test is if the defendant took it as luggage, under the terms of the contract 'i If they took it for luggage, it is luggage; If it , was paid for distinctly and separately, it might be treated as cargo. Mr Macassey said 'that of course it was to be borne in mind .that this was not a case arising between a passenger and agent of the ship. His Honour: My suggestion is that although it is not so, the definition of luggage and cargo might be determined by that. Mr Mac"assey, after some further remarks on ■ this point, went on to say that the propositions -he wished to submit were : 1. That the sewing . machine did not, in the true sense of the term, . form part of the passenger's luggage, and therefore was not affected by the arrangement made by His Honour the .Superintendent. 2. That the arrangement between His Honour the Superintendent and Messrs Gnthrie and Larnach, to which the respondent was not a party, cannot imiru in his favour; and as a corollary upon that: If Messrs Guthrie and Larnach Lave violated the engagement into which they entered with the Superintendent, they might be liable in damages to him. It would be observed that throughout the course of the Resident -Magistrate's judgment, he eudea- ' voured to draw a distinction between luggage in the sense in which the term was used in the Railway Acts, and the luggage of a passeuger on board a sailing ship. Hu (Mr Macassey), however, submitted that that view was not only entirely without authority, but was opposed to authority, and would cite the cases of the WUlium 111., L.R. 3, Ad. and Eccles, 487; Hartford v. Joucx, 1, Lord Raymond, 393. He now came to the next question —That, whatever arrangement might have been made between the Superintendent and Messrs " Gnthrie and Larnach, the respondent had no right to bring his action without a previous tender of salvage. On this point he would cite the cases, Simpxon v. Eijylnton, 10, Ex., 845; Jumcn v. Ixmtex, 22, ~L. J., C.P., 73. He siibmitted that, while there was a great deal of evidence to show that the Superintendent acted in the interests of the passengers as Siuierinteudent of the Province, there was nothing to show that he was acting in that capacity as agent for them. He was -acting merely as a benefactor, and not as an instrument in carrying out the wishes of another. On these grounds he submitted that the judgment of the Magistrate should be reversed. Mr Cook said that the learned counsel for the appellants had cited cases which, in a negative way, tended to favour his (Mr Cook's) contention to a certain extent. They did not go that length which would establish a case "against niin. On behalf of the appellant the questions were : What is passengers' luggage ': ami What was the effect of the agreement made by the Superintendent? Talcing the last question first, he would draw attention to the ■correspondence between the Superintendent and Guthrie and Lamach. A perusal of the letter of the 28th March, 1874, would lead to the conclusion that the immigrants had waited on the Superintendent, and asked him for ■ assistance, impliedly authorising' him to do what lie coidd. He would ask His Honour to decide that the Magistrate had actually decided as to the fact -of the agency being established. He would not dispute the proposition that, in case of salvage, there was a lieu over the cargo ; but he would •draw attention to this: That, if the Court should come to the conclusion that this was ' cargo and not luggage, and that, therefore, salvage attached as against the present respondent, there was not a tittle of evidence in the •case befoi-e tire Court that any salvage was demanded, or any lien asserted. Unless such .i •claim were set up, the owner of property would be placed in this disadvantageous position. Ht. ■would be unable to'get. his property by demand -or action unless he hit upon the exact sum tr tender to the. salvor, because, if he tendered too little, he would be- in a no better positioi than if he tendered nothing. His Honour suggested whether it would not be sufficient to show that the owner was ready t< pay a reasonable sum for salvage if demanded. Mr Cook went on to say, with reference t< the question of luggage, that, apart from tlu cases cited, he would submit this view : Wit] Tespect to railway cases, His Honour was wel aware that it was compulsory on railways t< allow passengers to carry free a certain quan -tity of what was termed luggage under the Act. 'The companies, however, allowed passengers t< take more luggage than they were com pelled to allow under the Act, and tin •question which arose in the cases cited had re fereuce only to the quantity that the coiujiniij should carry gratuitously above what wa: specified in the Act. Xo such question arose here, because there was no compulsion upoi .-sailing vessels to carry any quantity of lu^tragi "free, although as a matter of fact they did so There being no compulsion, the carriage of lug was a matter of contract in every sense There was one other point he would like b mention. He submitted that the Residen Magistrate had complete jurisdiction oyer thi ■cuse, and in fact that no case for appeal ha arisen. He woidd cite the case of the Eti> Indian Jtailiein/ C'ompa/ti/ v. Jji/l/it/uc, 2'J, L.J, p. 11., C. P., S4. His Honour was of opinion that the judt meut of the Resident Magistrate must be con .•firmed. He must take it that the Residen Magistrate had decided those matters of fon -to which he would presently allude. The firs question in which. any difficulty arose wa '■whether or not the action of the Superintenden ■could be held as having been done with the pr vity and consent of the now plaintiff, either b prior request or authority or by subsequent r; rtiiieation. He was of opinion that upon tli -finding of the Magistrate it was quite clear tlui ; the latter was satisfied that the action of tli ; Superintendent was either caused or adopte \ by the class of persons of whom the plainti ••was one, and that, taking it altogether, he w; : satisfied that the Superintendent was virtual] : agent for the plaintiff with respect to clam - for salvage. There was no doubt about tl ownership-of the property. The plaintiff wi entitled-to recover tbat property from the i\ 'fendant, subject to the payment of the lien fi salvage. The authority being established, tl :»;ceptanee of L 350 amounted to a payment . r jspect of this as in respect of other things, within theitercns of the expressed or implii contract between the Superintendent and t; .■salvors. "Was this luggage? He must take : lipmi reading the judgment of the Reside Magistrate, that he came to the conclusii -.that tliis was luggage, not only within a certa ■definition, which he himself gave, and whi ■was by no means at variance with the defii •rfion given by Chief Justice Cockburn Jtfueroie v. tfttt Great Wextern Raihrau C<> ■mum, but also within the contemplation of t the Superintendent and defendan The fact, which had been much relied upon 1 rthe purpose of definition —that it was foil rthat the passi-uger in this case bad used t ■ sewingmacliine in her work as a sempstress, :i rthat her husband also used it in his trade or_bi ness, did not, in his mind, necessarily in point ■law deprive the article of that character whii ruuder the definitions, would make it l\v;gage. .^distinguished from cargo. No doubt that fi: ing raised a question of distinction which some cases might be a substantial distiucti He came to the conclusion that the Jm below considered as ajnatter of fact that sewing machine came within a definition inconsistent with the definition laid down the higher Courts at home. There was no s gestion that the Resident Magistrate was wr iiu his law, and he had no'power or desire to ndew his decision on the facts, and so far as ■could see, the decision, both in law and f *was perfectly in accordance with the merit: -£he case. REGINA V. MURDOCH AND ANOTHEIt. Argument on a rule nixi to quash a con tion. Mr Mouat moved that the rule be n: absolute ;Mr E. Cook shewed cause. In case the appellant, Daniel Murdoch, had, the information of the Town Clerk of Hay l>ury, been fined five shillings, and orderec 7>ay a sum of £T>, for damaging property beli ing to the Snperintendeiit, namely, thn dan the Hawksbury Lagoon. The accused Leen convicts! under the provisions of the'Jj and Country' Police Ordinance ; and it was contended that the conviction was illegal the ground that the Malicious Injuries to j

perties Act,.1807, repealed the provision of the Town and Country Police Ordinance, under which the Hawksbury Bench (the respondents) had convicted Malloch. ! The conviction was quashed, and the rule made absolute, with costs. ■"■ -MALAWI AX V. SMALL. An appeal from the R. M. Court at Queens-, town. Mr G. B. Barton in support of the appeal, and Mr Smith for respondent. The appellant had sued the respondent at Queenstown on an order for £15. The defence then was, that the order had not been made out ,or given with the defendant's consent; and it was sought .to be established on the part of the plaintiff there, Malaghan, that a payment of a certain Ll was in part payment of the order, but the defendant contended that the L 5 was in payment of goods received. • Appeal dismissed, with costs. MARTIN V. ANXIXI.'. A case on appeal from the Resident Magistrate's Court, Dunedin. In the R. M. Court, the present respondent (Aiming) was plaintiff ; and the now appellant (Martin) was the defendart. Judgment had been obtained in the R. M. Court in favour of -the plaintiff, and the defendant, consequently, now appealed. This was a case arisirg out of the non-despatch of the Especulador and Comet for the Endeavour river, with passengers for the Palmer diggings, the circumstances of which have already been before the public, having been fully reported when the case was before the R. M. Court at the latter end of last year. The facts of the case were stated before His Honour at great length, and there was considerable argument. Mr Macassey, with whom was Mr Ha'-gitt, for Martin ; Mr Barton for Arming. The contention of Mr Macassey, brieily stated; was that if the whole of the evidence of the case was before a Judge of the Supreme Court, and he were asked to give a direction to the Jury, he would, upon the authorities, be under the necessity of saying there was no cvi, delict; that M'Hroy, of Lyttelton, was an agent for Martin ; that M'llroy might have acted, and did act, as agent for the passengers, but certainly not as agent for Martin : and that, if he had represented himself as an agent for Martin, lie had no power to pledge Martin. .Mr Macassey had not concluded his address for the appellant when the Court rose.