SUPREME COURT.—IN BANCO.

Otago Daily Times, Issue 4172, 2 July 1875, Page 2

SUPREME COURT.—IN BANCO.

■TiiunsoAY, July Ist. (Before His Honour Mr Justice Johnston.)

LONGUET V. KINGSWORTH.

In this case, which had been heard at Invercargill, Mr Macasaey on Tuesday last moved for a rule m« calling on the plaintiff to showcausewhy there should not be a new trial, upon the grounds:; (1) That the Judge before whom the trial took place was not empowered by law to preside at such trial; (2) misdirection; (3) that the verdict was against evidence; (4) no measure of damages was furnished by. Judge to Jury; (5) that the verdict for a farthing showed a compromise, as if the party was entitled to more substantial damages. The case was one, heard at Invercargill, of river pollution by a fellmonger. Mr Maca§sey now argued at considerable length in support of the various, grounds submitted, dwelling especially on the first ground, that of non-jurisdictiou. The commission of the Governor to Mr Chapman was faulty—was not one under which Mr Chapman was empowered to preside at the trial. His Honour remarked that the points as to non-jurisdiction, .raisod by Mr Macassey, were of the gravest possible importance, as, if upheld, there would be a very great failure of justice. ■ How about all the people tried before Mr Justice Chapman at Invercargill? , This Court could not regard consequences, but he must remind himself of the great importance of the question. He had read the notes of the case, and the learned Judge {Mr Chapman) was satisfied with the verdict.' So far as :he (Judge Johnston) had read the case, there was evidence of considerable pollutiop, but it was not continuous; it was intermittent. The damages of one farthing were piven, probably, with a view to the fact that it was an injunc-. tion that was chiefly asked for. Judge Chapman wrote, "I thought, and do thiuk, that the verdict was correct." ~.

In delivering judgment,

His Honour said he was of opinion that no rule should be granted in this case for a new trial. In the first place, as regarded the verdict being against evidence, he had the assur ance of the Judge who tried the case that he was quite satisfied with the verdict. He (Judge Johnston) had also read the notes over, and it seemed to him that there was no doubt whatever that there was abun-' daiit evidence to support the verdict.- With regard to the question whether there was a misdirection or not—in respect to < the learned: Judge not having used words precisely similar to those suggested by Mr Macassey, namely, woxhls to indicate what he called a sensible injury—he was of opinion that a note of the learned Judge sufficiently showed that the Jury understood that, in order to find a verdict affirming a ri^ht to damages, it was necessary they should be satisfied that to some extent the water had been so impaired or injured by the, fouling mentioned in the declaration, that it became less fit for domestic purposes. He thought that was quite a sufficiently correct ruling, even within the principle of Mr MacasKey's own contention. They now come to, a very important point—that of the jurisdiction of, the Judge who tried the case. The question involved consequences of ,a , very serious character; but they should not deter the Court from granting a rule nisi, if the Court were satisfied that there was a good prlma fitaie ground for the contention of the learned counsel. The argument made by him deserved attention. It was an ingenious one, and one in which there was a. show, of reason* ' Ho thought it quite possible that the mode of proceedings suggested" by the learned counsel might have been more free from objection than the form of commission. His Honour having described the forth the commission might have taken, said: But when he looked at the form of this commission, he found that His Excellency had, under the powers given him by the Act of 1858, appointed the learned gentleman a Judge of the Supreme' Court during pleasure, for the temporary:' purpose of exercising the jurisdiction of a Judge, of such jurisdiction, powers, and authorities1, in, about, touching, or relating to, a certain indicated sitting of the Supreme Court which had been previously proclaimed, and he was of opinion, subject, however, to appeal being made, that the jurisdiction actually did exist. For these reasons he felt bound to refuse the rule nisi

Mr Macassey intimated his intention to appeal on the question of jurisdiction. •

BAIKI) V. M'AUTHUIt. In this case a rule nisi had been obtained. Mr Joyce, for defendant, mentioned that at no sitting since the commencement of Banco, had anyone appeared to show cause, and he therefore applied that the rule nisi be discharged, with costs. " .

His Honour ordered in accordance with Mr Joyce's application.

IN THE MATTER OF JAMES MACINTOSH AND THE

SOUTHLAND WAHTE LANDS 13OAUD. The argument in this case (an appeal from a decision of the Southland Waste Lands Board), was continued by Messrs Macassey and Haggitt, on behalf of the appellant Macintosh, and by Messrs G. E. Barton and Stout, on behalf of the Waste Lands Board. The argument was not concluded when the Court rose.

MARTIN (APPELLANT) AND ANNING (RESPON-

DENT). His Honour delivered judgment in this case, as follows:—

In this case, I thought it but respectful to

the Resident Magistrate, whose judgment;in' the Court below evinced » much care and attention with respect both to the facts and the law affecting them, to refrain from expressing my opinion at ohce, on the coiiclusion of the argument/ But, after deliberate consideration, I am obliged to retain the opinion which I entertained, that the judgment cannot be supported. Ido not differ from the Resident Magistrate with respect to the propositions of law which he enounced; I differfrom him only with regard to their applicability to the case as a whole. If I had been satisfied thatthe decision turned upon qneations of fact only, I should of course have supported the judgment even if I had differed from it as to the conclusions of fact to be drawn from the evidence. But, on the whole, I feel obliged to hold that there is in the case no evidence of a contract by Martin, the appellant, with Aiming, the respondent, to carry him from Lyttelton to Endeavour River, Queensland—which is the contract for the breach of which the respondent sued in the Court below. The case seems to me to show, almost conclusively, that the only contracts entered into by the respondent were made with M'llroy. The first contract was one by which M'llroy undertook to carry Arming by the Especulador from Lyttelton to Endeavour: River, and on the strength of which Arming paid M'llroy a deposit of L 5, subject to the condition that, if that vessel should not sail, the L 5 should be returned, and the contract cancelled. Various circumstances afterwards occurred, of which the respondent had: no knowledge, MTlroy sold the Comet to Messrs Findlay and Co., and they caused that ship to be advertised by the appellant, as a ship agent, for a voyage from Port Chalmers to Palmer River, Qoeensland. The Especulador having been prevented from sailing, M'lLroy offered the respondent either to retarri him the; £5 deposit, or else to take him to Port Chalmers and make arrangements for his passage by the Comet from Port Chalmers to Palmer River. The respondent and a number of other passengers who had agreed with M'llroy, and were booked by the Especulador at LlO, agreed that they would go by the Comet, and M'llroy informed Findlay and Co. thereof, and they (Findlay and Co.) agreed with M'llroy to take such passengers • for LS from Port Chalmers, leaving M'llroy- the difference between that sum and the LlO, in respect of the passage from Lyttelton to Port Chalmers, and they referred him to the appellant as their shipping agent in the matter. M'llroy. then telegraphed to Findlay and Co. that lie had telegraphed to Martin—' Fifty of my steerage passengers go on your terms, and four cabin each £15 less steamerjpassage.' Stopping here for a moment to look at the relation of the parties at this time, it appears that the respondent had elected not to take back the £5 deposit, and had agreed with M'llroy to go by. the Comet, and pay to M'llroy the balance of the £10, as originally agreed. The respondent looked to M'llroy to make arrangements,. and M'llroy did so, and agreed to pay Findlay and Co. £8 out of the £10 for the passage from Port Chalmers (not Lyttelton) and to Palmer River (not to Endeavour River, as in the summons alleged)/ The 1 respondent, who knew nothing of Findlay and Co, or of the interme diate negotiations, and had no direct communication with Martin, the appellant, agreed with M'llroy that the £5 already paid should remain in M'llroy's hands in part payment, and he afterwards paid £5 more to M'llroy and got a receipt for it. It was in this form : — ; No 22. ' - : ■•■ ' ' '' ' '< Lyttelton, October 17,1874. Received from Wm. Aiming the, sum of £5, as balance on passage from Lyttelton to Endeavour River, Queensland, per Comet, from Po-t Chalmers, as agents for R. JB. Martin and Co.—For W. J M'llroy and Co. . ' ! : -••■■< ": T. W. HAlbs. £5. . ' • ■•• : ■ '.. : The receipt did not constitute the agreement, but was given by M'llroy in part performance of his contract with the respondent. After this, when the respondent arrived at Port Chalmers, the captain of the Comet refused to take him on board, and referred him and others to Martin, who acted in respect of the passageticket in the manner mentioned in the case, which is relied on as ratification of acts done by M'llroy as agent for Martin, especially of the act of entering into the contract with the respondent for the voyage. Now, if it can be said there was any agency at all created by the telegrams, M'llroy became thereby the agent _of Findlay and Co., and not of Martin, having made his'contract with the former firm, and being referred by them to the latter as to their agent only. If the only evidence of theresponclent's cause of action had been the ticket, i. c. , receipt, given by a clerk or.agenWof M'llroy's, as agent for Martin the appellant, there might have been some ground for, "urging, priiw, facie, that the respondent was contracting with Martin. The view of the Resident Magistrate, that, upon the true construction of the: telegrams, Martin, in point of law, must he taken to have allowed and authorised M'llroy to act as agent in the matter, and that his subsequent conduct and language about the ticket or receipt were some evidence of M'llroy's prior authority to act as his: agent; might have been justified by. the principles of law, and the authorities relied pn his judgment, if that re : ceipt and the particular telegrams had been the sole. evidence of the transaction. But I think that the real contract was between the respondent aad M'llroy, who had received the first payment of £5, at. all events, on his own account, and to whom the respondent all along looked for getting him carried from Lyttelton to Queensland ; and that, at all.events, Martin (the appellant) never became, as regards'either the respondent or M'llroy, the principal in the contract; and that there is no good_ ground in the evidence for saying that Martin was responsible on the contract stated in. the summons—viz., to carry Arming from Lyttelton to Endeavour River, per Comet, from Port Chalmers. For these reasous; the judgment of the Resident Magistrate must be reversed. The case is one in which r if it were asked; :T be glad to give leave to appeal. , ... .- . Judgment reversed, with, costs. Appeal allowed. ' ■ - ■-.'■'■ ■' Mr Barton said he did not intend to ask for leave to appeal. The Court adjourned till L3O p.m. the next day (Friday). ■ . ..,;,...