SUPREME COURT.

Otago Daily Times, Issue 10902, 8 September 1897, Page 4

SUPREME COURT.

IN CHAMBERS. Tuesday, September 7. (Before hi* Honor Mr Justice Williams.) JUCUOKALD V. WRIGHT AND ANOTHER. Summon* for a special jury of 12 (SfrHaggilt).Accordiugly. SAME V. SAME AND OTHERS. . Summons for special jury of U liar a. (_, Hassitt).— Accordingly. PROBATES. Probate was granted in the following _ cases :- Re Anne Mary Carter (Mr Thornton, aoucitor) '' H«lca Alexander Sannderson (Mr Whito), and r, Thomas Brown (Mr White). .IN BANCO. IN RE JtOBEP.T PKICE. /vumant of rule nisi, granted on the fih n: Maviast, calling upon Mr E. H. Carew S.M.. anc Mr II L .Tarnfis, to show c-use why they sUoulc not be prohibited.from proceeding upon the con virt'on of Rohert Price for unlawfully anc wilfuW trespassing upon the Eorbury raeecoip< an" neglecting or refining to leave the tame wher. WMr HaggUt appeared to show c.uae and Mr Sit, in support of the rule absolute. ■ ,■„„+, Mr flaggitt raised a. preliminary ohjesiion tc tlie mode of,appeal that had been adopted. there were three courses of procedure by way or objec tiou to proceedings, before justices, lner« was pKoi made for appeals against the decuiow of iustices ou matter of law only-that was, bj way of case stated-and aa was apparent frnm sec^on 238 the appellant had to give security foi coats ■ The next mocie of apoeal was uuaer title S where the penalty exceeded £5, or one rn^i h^ imprisonment, there should bo an appeal on matter of fact, and in that case also ««IM« to be given for the costs of appeal Ineii came ti-e proceedings which his learned friend had adopted, which provided that "when any person fpels achieved by summary conviction or order oi an-jS he m»y wi bin U day,, upon showing by affidavit a primdjaoic case of error or mistake ou the part of such justices, apply to the supreme Court to show cause why the court should not be prohibited from proceeding.or further proceeding on such conviction or order." So far as he was awa-e do rules had been made under this section. Therefore' the position.-was this: It_tae_pwty interested was dissatisfied with the daemon or determination of the justices, as being erroneous in point of law, he could appeal under utle 1; -it he >vas dissatisfied with it as being erroneous re--arding the facts, he couiahava areneanngin wis SupceraeCourfc; but the learned counsel submitted that the third Title only applied where there was a mistake or error of law apparent upon the face of the conviction or order. It.ws n*ver intended -it was absurd to suppose it could have been m-tended-tbat after carefully providing for appeal on matter, of law, with security for costs and a general appeal, tioth on law and fact, or on fset flone. under parfc2, with security for costs that the "Legislature should havo given, or haveintended to giv" the same remedy, or a. better remedy, under title 3, than it. had given under the other two parts, and have.given it without any 6eCM?lm\ a a Mfthafthe whole subject had been ve-v carefully considered by air Justice Dsnrustou! who had decidfedthat We course now fcueii was proper; and hisiHonor Mr Justice Williams h:ii followed that-Jpractice in the case of «ir« KUis That settled the procedure. He (All him) had quoted in re Selig.iind Bird as showing Mr Tustice -Oenbistoh's decision, and his Honor had followed that decision in Ellis. -Learnea counsel lisp directed attention to the 1873,decis»u of Mr Justice GressoD in Reßina v. Bowen. His Honor: I'thiuk if the proceoure is to be altered it must be by the Court of Appeal. , Mr Haggitt: It amounts to this: that this practice will always be followed now. It sets nd of-the statement of the case: it gets rid of the magistrate altogether; and it gets rid of the security. Nobody will ever, think of following the other courses if this is open to thorn. His Honor, after looking at the decisions above referred to, said he thought he must follow the interpretations that had *tood since IS7o. Mr liaggitt thea proceerfed to state the grounds °f Mr fifm lUsaUi'that so far as three of the objections which- he had raised in his affidavit were conr-crned.-inview of wliat tUe Chief Justice had i:aid in Ryan v. Stanford, it would bo useless.for him to argue those objections now. What he did intend to argue was these points : That Kobert Biin the detective, was not authorised by tne club, and that Vrice was never warned as required bi Mr CHag2itt! 'then siibmittid that the requirementn of section 268 of the Justices of the Peace Act had. not been complied with. What was proved before the magis.ir.ite had to he gathered ! from affidavits, which-lie contended did not contain all theevidence within the meamngof tbesection, and did-not show s.prima facie error or mistake on the part of the magistrate, both of wmch weie material to be shown under title.-?, in a proceeding under that section the proceeding,, should be b«fora th« court as they would be ma csrtiomri. His Honor had not oven before him the conviction r.nd the order. Presumably it.was filed, but it had not beeu drawn up and. identified lnffis yHo auor said it was admitted there was a conviction under, this subsection, and the form of conviction wa3 not objected' to, he understood, it there was evidence to support it. \ Mr H-sgitf submitted that the magistrates notes of the evidence were the proper resord of the evidence. : ,' , -, n -.f. The objection being over-ruled, Mr Usgg'W submitte.i tbat the magistrate's decision was in icc'o.dance with the meaning of subsection ot 4 a section 6 of tbe Police, Uifeuces Act.lt « absurd to say that the section mean* that it a parson on" being told to leave the course, went ori and reuuned-vvent off with the intention of returninp, and did return—thathe was not liable to penalty. There must be a reasonaoie coustvuetiou put upon the section, and he submitted, as he did in tbe court'below, that the reasonablo construction was thiit where such an advertueinent as was published in this case was published, a. warniu" to ail tote-bettors and disqualifisd persons that'they would not be admitted to the course under any circumstances, where a person admitted that he saw that advertisement and knew tha, he was a disqualified person within the meaning of the notice and knew that he was not allowed^on provider of the action and w.« wibjeot to the penalty, provided ,hy it, lbe point was- How'long was a warmug- to avail? And be (M- Ha*<ntt) thought that the answer to hat queSiou was : For-so. long as the• circumsSTneS «wtefl in respect to'- which the vrarning was giveu If the meeting extended to •. tinea day«, Sand disqiHlified perwns -and|^ ware advertised that they would not be aUowcfl onthe course during that meeting it warned off at any time during that meeting they. wers_not at liberty to' return during that meeting. That was the only reasonable construction to put upon thHisH lonor : The point of the offence is that he nß^&tt fT B d°K-that.byleavLn f with tlieiutention of returning ho isrefusins to, leave-ti-atths tact of his .leaving"and reuirnmg is that he dees not leav; at all,'but he is a tresosssei^ His Honor: Wilful trespass by itself is notaui o£wS CHagriit :'Eut leaving with the intention of "Hi^Honor: You cay that the trespass' is really a continuing trespass-that trespass on tfle 25th was tha.. : faf£S^f & S :ng this was -private I lixnd and a man is ordered off-told he bad no ■ busies-there-and he goes and returns a month 'Stewards, things being exactly-the same., Gould " he be convicted under this secUou-the state oi of things being the

His' Honor: The land being there. Supposing he was trespassincr'for some-definite purpose-say,, for the .purpose of picking up sticks as people do someHnies-whea he was ordered oft, and then be "oi" aud returned a moath afterward. Would ho be liable if he returned? Mr HaVitt submitted that that was.not an analo-cus rase. In.the-present instance IU-as a racpcourse that he was: trespassing on and while va-es were going on. What he was told he must notdcwas to won the course while a particular race mating was in progress, That.race meeting "SfeS^tS^t-c. I have siven the manl-new he was a wilful trespasser. You cannot Tour case . there was nOHii DHonor S-°But the. state of things was the ~„ Supposing this man went on to the course ou the F*, the off day, would he not have he would not. His Kouor : Why? '■'■• , Mr Haggitt: Because the races were not going

° His Honor: But he would have no right to be *b Mr Hareitt said h« would take his Honor's case. Suppostag; lie (Mr Haggitt) had a, ljwn tennis around and gave a party there on a Saturday, and /.■uri p he liable to an action- for trespass, but the quest'c^ vras whether he brought himself within tbSStlaid^is argument w M that while the circumstances continued tbe same the |^K=^r«r;^ «&«&£? Soi!^ - another Sit S^ Uued that .in thrt caM*"he would have to be warned again. | only reasonable conatnjction ju t upon t*£ S! His Honor: How many penalties can you have "jtolfoiKitt: According to that view of the r,nlVli.in i'Sn ran have any number nf penalties - tsmm

entitled to seat himself m ™e (J f r e^r a Litt) masm seS what other good purpose 1-Tic TTnnor" Youv ordinal illusttarion i,uuei shuck me I don't know about the family M?Ha^Ut • And supposing somebody comes on each niorniup and hive a fre-h v&iniLg eacn daj . 1 l^cucr • Oi^hf wollld have no such rieM and £<•' would be subject to a civil action You cannot stretch the act to make it a criminal ■W-Sitt *"«"&«»« th.«t ti s Z to exclude Mm whilst races are going ott. Learned •Mes-TS Jame3 were the executive omcers 01 tne stewSas- that there was a. resolution instructing the secretary; and t^at the magistrate had found that Sir James appointed Mr ISain. ineie could be no doubt that Mr Bain was not acting ontloJn behalf- *>»* «* behalf oi: the commit^ of the club, and it was plitm that tne secieuaij and his RHistant were authorised by virtue.of their office to give Bam hw autnonty. and the mere terms of the resolution had nothing wnatrule absolute subrniSeS that murder to constitute an offence uodev subsection 3o! suction I) of Ihe foLic. Offences Act, 1354," three things were necessary First, there must be a wilful trespass on the place • secondly, there mmt be a watmnz to Feavekuchaplace; and thirdly, he must neglect or refuse to do so after being so warned. lh« learnid^ounsel submitted it was clear that «xe,e three things were necessary to constitute an offence; and not only were they necessary but they must occur in the order named-Uiat is to say, there must first be a trespass, then the warning then the neglect or refuel to leave {and that thevcouMnot be put in auy<jthev order Thej could noi have the warning first and the tiespass af tor ■ but the three things must-concur, and they must concur in order, x^y, it was clear thai they did not concur in the present case at all, because there was no warinng addressed to Price on the .d»te in question and as theie wa^ no warning addressed to him he could not be said to hay« neglected or refused to have leit the Place within the meaning of the section. What was relied on at the hearing and whit the magistrate relied on in bis judgment was the warning which wus supposed to havo ba,n .addre^edjto Price on the Tanrsday, and that warning supposed to ha contained m what was said bj B "n to him on -fhn»dav.. Noy. it was clear from the affidavits that. Bain did not pioress to warn Price about anything but the day.h n m question, the trespass then being committed. \Vhat tbe evidence showed.was this: On the Thursday Bain said, "I «ud! to Price you wil have to* leave the couwe. He (Price) « wa-< not doing auythiog, He left the course. Nothing further toolcplace. Id.duotsee hmuSM that day on the course." So that even if it wevt poSibleforthe warning to be given in anticipation, which he submitted was not the case, the warning liaiii »aye on Thursday clearly could not go advertisement which was s-t oat in . Mi affidavit had come to the notice ot Mr i. nee, ana that that must be treated v a warning But what Pries had been charged with, and what he had been convicted of doing, was neg echngand refusing to leave the course after otiug «"n^ Dy Boblrtßwn. There was no »»f «tlo»»J*^ Wlfe:^ o e^^w^wa S doin g WMr!sim said thut for the purposes of the arguand he'submitted that ** ™^ nl. n f^ co"3 ( n-l t e^ whtchThe magistrate had done was not simply^o be" ins but ia this case he submitted the.magistrTtehidpobefar beyond that line, and instead of con«triuug the views of the Lesislature had fnduked in a piece oflaw-mikiug on_hiß own m-ouS Every time Price went on the course a separate trespass, » .■espec: of which a separate action coula be brought ;• these arts^couid not be treated in any way as a. contfnucus trespass, and "each time a separate warnX Sred. -Jladthe Legislature intended to'forbidTmffl from continuing .on the race oourae or returning to it, appropriate l»n ? aage would have been used such as appeared in the Tib Wish Game Act. . . „ Xi« Honor: Yes, " continues or returns. . MrWm said those were the words used m the si'd so Why shonlil the court be asked to so beroM the recognised canons of construction and the authority of the resolution, set out in purp^o^^^^^--^; oV™grouuds Uhe submitted that the rule Th.V hf su mitted, would be similar to th« preV' «i» This air took placs at one meeting of rhe Tockev Otab, w whether an adjournment o the J?o6e?dta?s was for half an hour or tor several to consider the argument. Judgment reserved. The court then adjourned.