SUPREME COURT.

Otago Daily Times, Issue 7287, 25 June 1885, Page 4

SUPREME COURT.

SITTINGS IN BANKRUPTCY, Wednesday, June 24.

(Boforo bin Henor Mr Justico Williams.) MEHOHANT BANKING OOMPANI V. WILSON, - ' ' TAINE, AND COMPANY. This t ease had bean heard by bis Honor t\t Invercargill, -whan judgment was deferred; and it was arranged that written judgmont Bhould be delivered in Dunedio. His Honor now road through hid judgment, nonsuiting plaintiffs on the ground that they had failed in establishing such a right of property or of possession as was essential for them to maintain an action for conversion of tho goods previously referred to in the judgment. Towards the conclusion of tbo judgment his Honor aaya :— I think that rub 16 is to a great extent directory only, and-that filing a warrant to sue Is not a condition precedent to Issuing a writ of summons; at any rate the requirements of the rule may be waived by a defendant, and II seems to me they have been waived In the present case. lam not, however, Battened that the warrant to sue was not only signed by the agent ct the plaintiffs, although no doubt the more satisfactory course would have been for the solicitor to have filed the declaration required by the .rule in tint first instance, and afterwards to have procured another under teal. As to the question on tho Factors Acts, tbo s:cond section of the English Act of 1877 (40 and 41 Viet, c 89) has not been adopted by the Now Zealand I/Cgislatuto; and therefore, on the authority of Fucnteo v. Montis (L.R. 3, C.P. EOS, and 4, O.P. 93) a person who In good faith makes advances on gooda to a factor " whose authority has boon revoked, is not entitled to hold the goods as against the p:lnclpal, and Is lesponsible for converting them. 1 also tbink the evidonce shows that tho goods alleged to be converted were not worth more than tho prices the defendants sold Ihem for." Judjjmont of nonsul. with costa as per scale on amount claimed; disbursements and witnesses' expenses to bo fixed by tho registrar at Invorcarglll. I BRENNAN V..THE WAIMEA PLAINS RAILWAY COMPANY (LIMITED). Appeal from tha Resident Magistrate's Court, Dunedin. In this case his Honor delivered judgment as follows:—

)n thlß case two classes of objections were taken by the appellant, one relating only to tho right to maintain tho present action against the appellant, but the other raising tho quostlon of the validity of the entire rate levied by tho respondents. As to tho latter question, bldco tha proceedings are taken under tho provision cf the Rating Act 1882, the appellant by the .7th eection of that Act CRn only rely on the Invalidity of tho rato as a whole, on the ground that the rate is ag enter amount In j tho pound than tho respondents were empowered to lovy. Now, the power given to ihe respondents is to levy a rate for the purposa of raising a particular sum of money; that Is to cay, they are aul horieed to levy a rate cf bo much In the pound as may be nece?eary for racing this particular turn. If, therefore, they levy a rate in order to rales a larger sum than they are authorised to taisc, the rate so levied mutt necessarily te for a greater amount in the pound tban the respondents are authorised to levy, ihls is tho pl»ln and natural construction of eeciioa 27, when read In conjunction with the powers vested iv the respondents. It is tbe more important that this conmruction should to adopted, because here the persons rated have no voice in fix Dg the amount of the rato, nor any appeal from] it when fixed. That tho levyiog a greater rato than is authorised woull Invalidate thera'eis practically admitted by secilon 27, and the case of Richter v. Hughes, 2 B. and 0., 499, Bhows beyond doubt that whore a definite amount Is BUthorlgod to bo levied by late the levying a larger amount will render the wholo r. to bad. Havo then the company levied a rato for the purple of raising a larger sum (haii lh-y are authorised to ralte? Now, by "The District Railways Act 1877," the company propo-lug to construe, a railway had, by section 11 0: the Act, to dopesit with tho Council ol each county within which lands proposed to be rated wero Bltuate a statcmont ccntulnlrg divers particulars, and amongst others an estimate of the cost of the proposed railway ar.d of Its equipment. A vote at the ratepayers was then taken, and If a majority representing more than onu-balf of Ih9 rateable property consented to the construction of the proposed railway, the Governor might declare his approval. In that case the company were entitled to a guarantee of 7 per c.nt. 1 c.- annum on the cost, 6 per cent, to bo raised by rate, and 2 psr cent, to'be paid out of the consolidated fund. By the original Act of 1877 the cost of the railway, If 11 dispute, was do be determined by a commissioner appointed by the Governor. By the Amen.-.meiit Act of 11.78, section 22, it was, however, providtd fiat a certificate in the form In the schedule under tho hand of tho Minister of Public Works should conclusively fix the coot or valuo of the railway for the purposes of the guarantee of interest on cost. By tho 37th section of the samo Act It was ul>o provided that for the purpose of deciding the amount of guaranteed lntero>t to be pill on any dlatilct railway, the coat of euch railway sbouid in no casi exceed the estimate of the cost of the proposed railway, and of tbe equipment thertof, transmitted by tho company under the provisions of iho 11th section of "The District Railways Act 1877." Plainly ttieso two actions must bo read together. The certificate cf the Minister i. only conclusive so long pb It does not exceed tbo amount of the cslimntf. It would require very strong language, indeed, to cou.pel the Court to ho.d as conclusive a certificate given by tbo Minuter in contravention of tho Uw, aa olarly etfttod iv tho 37th eccMjc, a-d which, If upheld, would have the eff .ct of benrfiUng a private company at tho oxpenEO, not only of the local ratepayer, liut also of tho consolidated revenue It is, moreover, clearly j'lbt, as the ratopajcr consents to be taxsd on the basis of a given estimate, '.hat he should not bo liable to bo taxed on a different ani higher basis. Now, tho cane ou appeal was stated by the parties, and rets outwbatwas proved. It does not appear from tho caee that there was any dispute as to the matoiial facts. It was provod that the estimate of tho cost for tbe purposes of section It of the Act of 137? was £iOI,OOJ. The total amount, therefore, for which a rato could be levied In the extreme case of the receipts being insufficient to pay for tho cost of maintenance and working cxponeo 1 would be 5 per conS. on that amount, or £5050 An instrument ucder the hand of Mr Mitchelson, the then Minister for Public W^iks, was produced at (ho hoarlng before tho magistrate, auil is eet out in the case. It recites that the company had applied to the Minister for power to raise part of the guarantied ktoreßt.for thejyear ending the 31nt of March 1883, by meat,a of a tate amounting to £1740 lls 3d. It states also that the Minister had caused the bcoks o( the company to be examined, and waßßatUlfcd that tho company were entitled toraiee ■_uch rate; and then contains a direction by the Minister that such rate as la requieito to produce the sum of £4740 lls Sd Is to be levied and collrctcd by tho company. Tho company thereupon proceeded tn. levy a rato cf 3i 4d in tho pound, which, according to the ratebook, would produce almost exactly tho amount required. The secretary of the cornpar y admitted that the deficiency above mentioned had been ascertained by an. audit ol the company's books and accounts by a person appointed by the Minister, but that, according to tbe company's calculations, the deflcieacy was greater. The fceretaty also btitcil that the Income of tbo company for the year ending 3IsS March 18S3 was £5791 8s Bd, and that the cost of mainteua'jee and working expenses, including properly tax-wh;eh for this purixse ought not, 1 thluk, to have been included—and diroctorß' feea, w&9 £4935 43 sd, kavirg a balance of profit ol £353 lls 3d. Tbe statement cf the secretary iv confirmed by the report cf the directors of thi company, which, though it dcci not Bhow the balance for the 12 menths ending the 3!at March 1533, yet 1 hows that for tho 11 montbß ending that date tho exceSß ol income over expenditure was £784, and tint for tho yoar ending tho 80th of April 1882 the income had besn la excess cf tho expenditure. If this balance of profit ol £856 11a 3.1 bs deducted from the total guironteo cf 7 percent. on£lOl,CCO. 0r£7070, there iemalns £6213 81 9J. Two-aeveutus of thla Is to be paid out of the consolidated fund, and five-sovenths, equal to £4438 7s sd, has to be raised by rate lcstea-1 of £4741 119 3d, which the rato of-3j 4d in tho pound was calculated to cover Tbo directors in their report say tliat thoy expect tt receive ahout £"610 from the rato and from the cosolidatod fund. Now, if two-sevenths of tie proposed rate 0! £.746 bo added to it, the turn reachrn £?644. Jf to tint amount we add tho admitted profit, wo have a gross total ol £7,500, omitting ch'lllngs. Taking, therefore, the company's figure, with tho amount authorised by the Minister, it wouU appear that tho rate Is levied to meet a guarantee of interns! on a capital of £107,143, The company, however, Eay thit thero was a greater deficiency than the rate would cover; or, In other words, that the Government auditor, for the purposes of the guarantee, has dlsillowod some Itoma of expenditure which appear In the company's accounts a? charges against, revonuo. If that h to, the rate authoiisad by tho Minister wou'd bo really to make up the KUiranteed interest on an amount Eomewhat greater tban £107,142. Now, it appears from tbo case that Mr tlaciuulrcw, when Minister for Public Works, certified the coit of the rillway, for guarantee piirpoEOß, at £108,713, under section 22 cf the Act of 1877. ■ It ia therefore a probiLiiity, almost amounting to certainty, that the bum named in Mr Mitchelson's dlrccSloa was to cover a deficiency of guaranteed interest on that amount In any event, howovor, It is plain from the case that the cost of the lailw.iy must, for tho purpose of tho guarantee, and it ibe rato, have been estimated at £107,142 at least; whereas It could not lawfully bo estimated (or the to purposes at more than £101,000. It if eft d, however, that tho direction 1 f Mr llit:li-!8in, fixing tbe anioutt to 1)3 raised by rato U conclusive •vidence that Hi 9 amount so fixod was tbe prot>.r amount, and the 7th and following sections of th-j Amendment Act of 1882 were referred to In support) of that contention. I can boo nothing in tnojc sections which would prevent the direction of tin Minister being called in question where 1. appears that It 1b given In ordor to raise interest on a larger sum than tho law authorls- s. It may be that If there hid been a certificate by the Minister as prcscribod by the third section of tho Amendment Act of 1883 Ihe ceitifi'atc wcu'd have been conclusive ovldecco of the amount to b. raised. No such certlflcato was, however, given, and it was admitted tbat Mr Mitchelson's direction was o4_ certificate under this section. Tho fact of the Legislature having expressly made this particular certificate conclusive tvldopca ehowe, if anything, tbat nothing short cf the certificate would be conclusive evidonce. It the Legislature had intended the mere direction of the Minister as to tho amount of the rate to bo conclualvo evidence, li would have said co. Not having said co, the Court cannot, whoto the interests of tbo subject In his taxpaylng capacity arc in question, hod the direction to be conclusive. As, therefor;, It appears beyond doubt that tho rate of 3s 4d in thu £ will rsi;o an amount greater by several hundred pounds than tho company are authorised by law to make, it follows that the whole rato is invalid, and that the company cannot recover from the appellant.—Appeal allowed, with CKto, £10 103.

Mr Hnggitt, for the defendant company, asked for leave to appeal,

His Honor said he would grant leave, not because he had any doubt about the matter, but because there was a very large sum involved in the question. A similar case against the company was ordered to stand over until after the appeal in this case had been heard.

JOEI. V. BAIRD AND OTHEB», Motion for mandamus.

In this case his Honor gave judgment as follows: —

I resolved judgment In tho present case not because at the time of hearing I felt any substantial doubt In the matter, but became the case Beamed to mo to bo one of some hardship to tho plaintiff, and it was only fair to him that it should reccivo more full consideration 1 see, however, no reason to alter the opinion that I formed at the hearing—viz., that tha plaintiff is not entitled to the relief he seeks. There is nothing in the Licensing Act which prevents an applicant fur a licanso or far the rene a al of a licenso from withdrawing hlB application at any timo before it Is granted. Tbat Is what Htaly, the licensee, did in the present case. It is said, however, that the pliintlft, as owner of the premises had an interest in the ronewal of the license, and that therefore tho application could not be withdrawn without his consent. The Licensing Act, however, carefully defines the cases where tho owner is entitled to make applications in respect of licensed pretnieoi, and thin ia not one of them. if the llcsnsee neglects or refuses to apply for a renowal, the ownor cannot apply either in his owu namo or in lhat of the licensee, but must take J.la chance cf the licensee applying. A man cannot be made a publican against hie will, unless under some such peculiar clrcumhtanceH as appear In the case of Oarrett v. Justices of Middlesex (L.R. 12, Q B. Sly., 8:0). Th»t case, though cited for the plaintiff, te&ms to me to be a Bfctong authority against him. It is clear (rotn the Judgments that it wai only because the mortgagees had bjen constituted by .deed the irrevocable attorney* of tho licensee to apply for a renewal of his licen&e, that they were held to be entitled to continue the application tn hi i name, though he objected to the renewal. Had they not been such atton.e) s the licensee could evidently have withdrawn hia amlio.i.ion at any time, notwithstanding tbe withdrawal would neces.atUy affect the mortgagor^ who were largely intorestod in the license to the prunlse3 being continued. Judgment for defendants, wlih coite on lowest scale, and dlebunemenu. ' • ■'

UNION BTBAM SHIP COMPANY OW NBW ZEALAND (APPELLANTS) V, OHAHt.Ha Or.ARK (IIESPONDENT). Case on appeal from the -Resident Magistrate's Court of Dunedin.

Mr Donniston appeared for appellants. __Mr J. Macgregor for respondent. It appears-that Mr Clark had sued the company in .the Uoaidont Magiijtrata's Court of Dunedinon 13th March last for£2o for broach of contract to carry certain torsos for him to Sydney by the steamer Wakatipu last January. The Resident Magistrate had givon judgment in favour of Mr Clark for £15 and costs.

Mr Denniatou stated that there wero two questions: (1) Whether or not there had beon any contract and broach of such contract, if any; (2) whether the measure of damages adopted by the Resident Magistrate was right or not. Mr Denniston, in tbe course of his argument, quoted " Mayne on Damages," 3rd cd.,259. ■ :

Mr Macgregor, for respondent, cited M'Nab v. M'Mackan, " Macassey's Roports," 445. His Honor delivered judgment as follows: —

Looking at the correspondecc} which passed between the parties, and to the fact that Mr Clark afterwards Bhlpped tho horses by thaHauroto, lam satisfied that tho only condition to bo drawn Is that Mr Clark accepted tho contract to Bhip by tbe Hauroto in lieu of the original contract to bhip by Wakatipu. 1 confess I am at a 1 )S9 to see how, looking at the Utdioputed facts, any'other conclusion c]uld be arrived at. It Bccnu to me that tho appellants are entitled to succeed. Appeal allowed, with coats, £14 10s. ALEXANDER BROWN (APPELLANT) V, ADAM

BCSSELL (RESPONDENT).. Appeal from decision of the R M. Court of Dunedin on January 27 last. Mr Denniston for appellant, Mr Dick for respondent.

After argument, his Honor reserved judpr ment,