SUPREME COURT.

Otago Witness, Issue 2565, 13 May 1903, Page 29

SUPREME COURT.

IN BANCO. Wednesday, May 6. (Before his Honor Mr Justice Williams.) PERRY V. RASMUSSEN. An appeal from the decision of the magistrate at Invercargil!. Mr \V. A. Sim and Mr W. Macalister (Invercargill) appeared for the appellant, Thomas William Perry, of Winton, hotelkeeper; Mr T. M. Macdonald (Invercargill) for the respondent, Constable Rasrau3sen, of Winton. This was a general appeal by way of rehearing from the decision of Mr M'Carthy, S.M., Invercarg'ill, who convicted the appellant of selling liquor to one John Row'.ey on a Sunday. The defence was that the sale was to a traveller. Tho grounds of thn appeal were: (1) That the decision was ngsinst'the evidence and the weight of evidence; (2) that the magistrate was wrong in holding that the defendant had failed to take all reasonable precaution lo ascertain whether Rowley was a bona fide traveller; and (3) that the decision was contrary to lav.-. Mr Macdonald was proceeding to read the facts agreed on, when Uis Honor said: I know the facts, and, whether you are right or wrong, lit seems to me rather a hard case — hard en the innkeeper. Mr Sim : Harder than it seems, because reduction is canied in the district, and if the endorsement remains that license has to go. It is far and away the beat hotel in the district — it is newly built. His Honor: One cannot tnke the results into consideration, but there is the fact that having been convicted at all that makes it a hard case. Mr Macdonald admitted that, but, of course, the law had to be administered as it stood. The statement agreed upon by the parties and put before the court was as follows: — For some months before Sunday, the 30th November, 1902, John Rowley, Giarles Isaacs, Jarnea Stewart, and William Banwell were employed at a flaxniill, known as Clark's mill, situated about six miles south of the town of AVinton. Their places of residence were at Clark's mil), wh;re they were camped. There was another flaxmill, called Thompson's mill, in the vicinity of Clark's mill, at which a number of hands were employed. It was a common practice for these flaxmill hands to walk to Winton on Sunday morning, returning in the afternoon. They came to have a properly-cooked breakfast and dinner and take home their week's supplies, which, by arrangement, would be left at some of the hotels for them on Saturday evening. It was also a common thing for them to go to Winton on Saturday night, stay there overnight, and icturn to 'the mills the following afternoon. The appellant was aware of these circumstances. The appellant knew Rowley and Isaacs, and knew they were employed at one of the flaxmills to the south of Winton. These flaxmills Bye all situated more than three miles from Winton aud from the appellant's hotel. These nicu had been in Invercargill on Saturday, the 29th November. They returned to Winton by the evening train, and remained at Winton that night, putting up at other hotels in ihe town (not Perry's), but all within three miles of the appellant's hotel. By arrangement they left Winton before 8 o'clock on Sunday morning, intending to walk to Clark's mill. They had liquor at tho other hotels before they left. They left Winton and walked in the direction of the mill for about two miles, when it began to rain. Being satisfied that they would not be r.ble to work, they decided to return to Winton. They returned to Winton, arriving at the appellant's hotel between 9.30 and 50 o'clock. The appellant was unaware that these- men had come to Winton or stayed there on Saturday night. Kone of them had been in his hotel on Saturday night or Sunday morning before they came there from the direction of the mil! between 9.30 and 10 o'clock. Between 9.30 and 10 o'clock the appellant was standing at the hotel door, which faces the cast, and had a good view of the road leading south of the hotel towards the mill. He saw the mcr. on the road a considerable distance away from the hotel, walking from the direction of the mill and coming towards the hotel. There is no other hotel on the road between the mill and the appellant's hotel. Just before the men reached the hotel the appellant went inside, and was standing in the passage when the men entered. It was a warm, muggy niorni;;g. The me 1 looked as if they had hr.d a lone walk, and looked pretty warm. When they entered one or more of them asked if they could get a drink. The appellant replied: " Ye«. you can get ft drink if you are travellers." Isaacs, assuming to sp'ak for himself and the others, sakl : "" TTe are travellers all .right; we've walked from Clark's mill." Rowley heard what was said, but remained silent. No question was asked as to where they had slept the previous night. The appellant then instructed the barmaid to supply the men with refreshments. Th?y went into the commercial room. The drinks were supplied through a slide, the slide being immediately closed. Having finished their drinks they knocked at the slide, which was raised by Mr 3 Perry (wife of the licensee). Bar. .veil asked if they could get another drink. Mrs Perry replied: "No, you have had a drink, and travellers are only entitled to one drink." One of the men said: " We can take carp of ourselves." to which Mrs Perry replied: " Yes, perhapa you can, but we have to take care of ourselves." The men then left the hotel, having- on'y ha--l one drink each, foi which llowley had paid. The defendant hns been a hotelkeeper in the- district for 16 years. Dining that time his licensed premises have been conducted excellently, and to the entire satisfaction of the police. The police have never had any orcafcion (apart from the allegations in this case) to find fault with the conduct of the defendant' « hotel. Apart from tho allegations in this case the deier.dant has been careful in the cb~ervar.ee of the licensing la\v«. TII3 defendant is not tho owner of the hotel, which was recently built at a cost cf £4000, and furnished by the defendant at a coat of .£I7OO. At the hearing of the- case it was fcdmitUd that liquor had been supplied to the above-mentioned persons, the defence being that the defendant truly 'believed that they were bona fide travellers, and that h? had taken a!i vea.-or.ab'.e precautions to satisfy himself that, they were such. Ho swore he had no doubt, at the time tho refreshments were supplied to them that tho men had really travelled that morning from Clark' 6 mill, and were bona fide travellers. The magistrate found that th« defendant may have had an honest belief that tho men to whom linuor was sold were bona fide travellers: but assuming he had such a belief, ho had arrived at his belief on insufficient grounds. The magistrate also said that

Ihe only question asked by tho licensee of the persons served was whether they were travllera "T?hat was not sufficient. Persons asking foi liquor during prohibited hours should ba closely questioned, and, in particular, should be asked where they had slept the night before. That had not beer, done in the present case. H was therefore not satisfied that the defendant had taken all reasonable precaution to ascertain whether or not the" men supplied with, i liquor were born, fide travellers. This appeal is, and is to be deemed to bs, an a papal under title II of part 111 of " The Justices of the Peace Act, ISS2," and not under title I of the said part of the said act. At the hearing of the appeal the foregoing facts are to be taken as proved to the satisfaction of this court, and are to b3 deemed to have been proved by the te3timoney of witnesses called to give evidence , at the hearing of the appeal in the usual way. And the evidence of the' appellant "that he had no doubt at the timo the refreshments were supplied to them that the men had really travelled from Clark's mill that morning, and were boua iide travellers," is to be taken as given on oath at the heaving of this appeal. Mr Macdonald (proceeding) said it was admitted that Rowley lodged on the previous night at an hotel in Winton, within three miles of Perry's publichouse, and therefore the admission wa3 that he was not a traveller. The first question for his Honor to decide on the facts admitted and the law was whether the' appellant truly believed that he was a traveller. His Honor : I think there is no doubt on'the facts that ho did truly believe it. Mr Macdonald did not propose to disrjuto that matter. The magistrate seemed to "find I that. The appellant was a Tespectable hotel- | keeper and a man of good character, and them j was no reason to doubt the statement that he did truly believe the statement. His Honor : The question is whether he took all reasonable care. Mr Macdonald said that was so, and it was contended that the appellant arrived at tha ! conclusion that the man was a traveller on insufficient grounds, and did not take reasonable care to ascertain the iact. The magistrate before whom the case was heard was satisfied that the appellant did not take reasonable care, and he (Mr Macdonald) contended that the decision of the magistrate on that point was final. There was no provision made that when an appeal took place on tho question the superior court was also to be satisfied. That point was raised in the Wellington case ol Kankivell v. Donovan. Mr Sim : That was a case stated. Mr Macdonald said he was aware of that. He admitted it was not a case by way of general appeal; but that did not affect the question. The head-note of the case, which was decided by Sir James Prendergast, the late Chief Justice, stated that the question of what precautions were in any case reasonable for the purpose of ascertaining whether a person demanding to purchase liquor was or was not a bona fide traveller was a question of fact for the magistrate, and his finding upon it 'wag conclusive. His Honor observed that that was an appeal on a question of law, whereas the present was a general appeal. Mr Macdonald admitted that such was the. case. He also relfed .upon O'Connell v. O'Malley, an appeal under the same aection as the present appeal. In that ca9e the present Chief Justice expressed the opinion that the questions as to the belief of the defendant and as to precautions were solely for the justices, and that there was no appeal. His Honor asked -whether it was not the case that our section came freni the English law, which recognised an appeal from petty, session justices to quarter session justices. In every conviction the magistrate must, of course, be satisfied. Surely an appeal would not b« blocked on this 0112 point. Mr Macdonald replied that our act required the magistrate to bs satisfied of a certain fact. In considering whether the hotelkeeper took all reasonable precautions nil the circumstances must be viewed. Perry knew that the men were flaxniill hands working beyond the statutory limit. He was also aware that the mill hands made it a practice to come into "Wintoa on Sunday mornings and return on Sunday, afternoons, and also knew that they sometimes cams in on Saturday uighta. He (learned counsel) submitted that the defendant did not take reasonable precautions. The fact that the men came from ths south, that the morning was warm, and that they seemed to have walked a long distance was by no means conclusive, and ought r.ct to have been conclusive to any man. It was said that the hotelkeeper saw them when they were about two miles from the house, but for all he knew they may have been lodging at a friend's house within the two miles, and therefore tho fact that he saw thorn coming from the direction of the mill was a neutral circumstance, and one that would not lead him to the conclusion thai they were traveller?. The next point he (learned counsel) wished to Tcly on, as showing that the hotelkeeper did not take reasonabli precautions, was this: It was he who suggested to the men that they were travellers. In answer to their request ior drinks, .ho za^cl "You can have, drinks if you are travellers'";

and Isaacs . jumped at the chance, and said "We have walked from Clark's mill." He die not say they had walked that morning, bu that was the impression conveyed to the hotel keeper's mind. The answer was cqu.iocal and ought not to have satisfied the hotelkecper It was such as to make any person inquir< further, " When did you come from Clark's mill?" or "Where did yon stay last night?' a-nd the absence of those two questions, witb the fact that he suggested that they weTe travellers, was abundant proof that the hotelkeepei did not take all reasonable precaixtion. He (Mr liacdonald) therefore submitted that the decision of the magistrate should be upheld. Mr Sim said ho took it that there were twe questions which arose out of the appeal : the question stated by the Chief Justice in O'€onnell v. O'Malley .13 to whether an appeal lay on the decision of the magistrate under section 157, and, secondly, if the appeal did lie, whether the defendant in the present case took all the reasonable precautions referred ■to in the section. The dictum of the Cliiei JTustice in O'Conrrsll • O'Molley was certainlj an authority for saying that no appeal lay in th© present case, but the Chief Justice merely indicated an opinion and did not give any flictum, so that the matter was entirely foi iiis Honor to determina: there was no determination on the subject. Learned counsel euLrnitted that the opinion ej-pressed by the Chief Justice in that case was not justified toy the authorities nor by the provisions of the Btatmtes which dealt with the subject of general appeals from justices. All the cases referred tc in his judgmeat were cne3 stated, and •where there was no evidsnee on which justices could properly proceed. Further, he ventured 4'- think that nobody would be more surprised thin Sir Jame3 • Prendergast to find what ■was said in Nankirell v. Donovan should be regarded as an authority on the question of ■what the position of the court was on a generol appeal. He was dealing simply with the position of the Snpreme Court when dealing with 6 x:ase stated: that wes clear from the context ; f tha .judgment. Th« other cases referred to were all case 3of the same kind, where the Easter came before the court simply as a question of lai7. Then the Justices of the Peace Act made it abundantly clear that the Legislature intended to put the Appellate Court in the position of tie justices, and in ascertaining -the. function of the Appellate Court fin such a. proceeding it was not to scrutinise ■narrowly the exact words which constitute an under the statute, but to consider the (intention of the act -which gave the appeal. After citing authorities, learned counsel submitted on tire first question that it was clenr ■that the authorities did not support his friend's contention apart from the dictum of the Chief Justice that the court could not deal ■with this matter. The provision of the statute made it clear that the court cou"d do so. To adopt the view Lie friend asked the court to adopt would lead to this absurd result: that in the case of every other offence under the Licensing Act the Supreme Court con.d review the decision of the magistrato on the facts, while in the particular case of an offenre nadeT section 157 that could not b=? 'done. When the act spoke of the justices "being satisfied" it infant satisfied by proof in the ordinary wsy. The justices before convicting had to be satisfied of the guilt of the accused. Then, in regard to the question whether the defendant in this case took all reasonable precautions there was mo hard and fast rule laid down on the subject. In the present case the magistrate seemed to have considered himself bound as a matter of •law to hold that because the licensee did not specifically ask these men where they slept the night befoTe ho had not taken reasonable precautions. On that question he really misdirected himself on a question of law. The magistrate apparently treated it as an inflexible rule to apply in every case, instead of allowing >thD.t each case must depend on its cwn circumstances. There might eaiily be a ca3e where the hotelkeeper would be justified in supplying a man with liquor without asking him a question at all. The proper rule under the circumstances, he submitted, was laid down itj Stone's "Justices' Manud " (1902 cd., p. 491): '"No distinct rule can b? laid down, and justices anust judge from all the circumstances whetheT v.he innkeeper took a!l reasonable cautions to siscertain whether the purchaser was a bona fide traveller and truly believed him to be such a traveller. It will clearly be the duty of landlords to prove that they have had probable grounds for believing a person to be a traveller and that they adopted such means as wera reasonably necessary for satisfying themselves on this point; and in some cases it could scarcely be maintained that merely asking the question was sufficient, whereas in other case 3 the inquiry might be unnecessary." Now in the present case, if the conduct of the landlord was to be criticised in the way his friend had criticised it, it would rot bo safe for a hoto!?teeper to supply liquor on Sunday unless ho had a Chancery b: rrister at his elbow for tbe purpose of delivering the interrogatories. He submitted that the court, in approaching the : question, should endeavour to put itself in the ', ■position of the hotelkeeper, and, if the hotel- j ieepet acted in the way any reasonable man would act, the court would say that he had '•lischarged the onus resting upon him. The conclusion the hotelkeeper drew — that the men {had slept at Clark's mill the night before — was a parfectly reasonable one. His friend admitted a bona fide belief on the part of the Oiotelkeeper that the men were traveller's, and i ,ihat being er he must have believed that they ' slept at Clark's the night before. The fact that jthe men stated at half-past 9 in the morning that they hud come from Clark's implied that they had slept there the night before. The magistrate seemed to regard the question, .*' Where did you sleep last night? " a sine qua ;non'; but he (counsel) submitted that under ! y he circumstances the question was not one ' *hat the hotelkeeper was bound to ask, for he !iad in effect got the information which such a question would have obtained. Learned counsel accordingly submitted that on the grounds stated the appeal should be allowed, i

Mr Macalister also addressed the court or the questions at issue, alter ■which Mr Mac donald replied, and His Honor intimated that he would take time to consider his decision. j CIVIL SITTINGS. ; TarasDAY, May 7. j (Before his Honor Mr Justice "Williams.) foley's extended dsedgikg company v. ' CCTTEN BROS. AKD FAITHFUL. An action for =£1000 damages. Argument in this case was heard by his Honor. Mr S. Solomon and Mr J. F. Woodhouso appeared for the plaintiff company ; Mr J. H. Hosking for Cutten Bros. ; and Mi F. E. Chapman and Mr W. C. MacGregor for the defendant "William Faithiul. Mr Hosking moved for a nonsuit upon the ground that there was no evidence to go tc the jury in support of any cause of action lodged against Cutten Bros. ; or in the alternative, that judgment be entered in favour o! Cutten Bros., upon the ground that upon the evidence adduced at the trial and on the finding of the jury on the points submitted to them such judgment ought to be entered. Atter referring at length to the issues, the findings, and the facts generally, learnsd counsel submitted, firstly, that there -was no evidence of any obligation on Cuttens' part to the plaintiff company, and he said he could assume for that purpose that the first issue was found in the plaintiff's favour. There might have been a contract between Cuttens and the promoters, but there was none between -Cuttens and the company. If there was any obligation on Cuttens' part it was simply to get a particular person in their employnamely, Faithful — to report. A cause of action might arise either by contract or independently of contract; but he submitted that there could be no cause of action independently of contract unless fraud was found — in other words, a man was not responsible for a negligent statement unless there^ was some duty on hia part to take care; whiisi as to tire oth?r questioa, as to whether there was any .contract, this was admittedly a contract made before the formation of the comoany, and the authorities showed thp.t there could ba no such thing as ratification by a company of a contract made before formation with someone else. Learned counsel further submitted that Cutten Bros, were entitled to judgment on the findings of the jury, and did not conclude his address to the "court till 2.30 p.m. Mr Chapman submitted, with respect to the defendant Faithful, he was entitled to succeed en two grounds. Learned counsel proposed to move for judgment cither on the ground that there was no evidence to support any cause of action as against Faithful, or that the verdict was sufficient and conclusive. He would endeavour to compress his arguments, because his friend Mr Hosking had covered a great deal of the ground which he had intended to cover with reference to the supposed existence of a contract. According to* the pleadings, both Faithful and the Cuttens were charged with making a misrepresentation knowing that it was false. Even before the trial, on one occasion, learned counsel remembered Mr Solomon saying that that was the cause of action against Faithful, but that could not be alleged against the Cuttens. They had it that the only way of holding the Cuttens liable in tort was by treating Faitnful as their servant. It was really a case of two actions being brought in one statement of claim. There were two very distinct actions, and the causes of actions arose at different times, at different places, and under different circumstances. So far as the case against the CuU?ns was concerned, the contract made with this company was wholly made, and, if broken, was wholly broken, in Dunedin. It was v.ho!?y made in Dunedin because, though different parties did the work of obtaining the report, the report was in Dunedin when tiie contract was made. If any duty va3 undertaken by the Cutteus ou this deed, it was undertaken in Dunedin, and was to be performed in Dunedin, and the West Coast had nothing more to <3o with it. All that was ever to bs gat , from the West Coast was got by the Cuttens ; or got by Keill before the formation of the company. Thus the cause of action was one which aTOse wholly in Dunedin. The cause of actioTi which arose from Faithful was a totally different thing. Faithful's acts v:ere wholly performed on the West Coast, and the question between the company and Cutten Bros, and Faithful should be separated from the question b?t\veen the company and Faithful. One of these actions had been wholly disposed of by the verdict ; whether the other had been so disposed of had been dealt wilh by Mr Hosking in his argument. Ii the verdict in this case had been for the plaintiff on the whole of the issues a very different question would have arisen as to how to arrive at a finding which would rot involve Faithful in damages for the Cultens' breach of contract. Learned counsel submitted that, that being the case, the next question was: What course j had matters really taken so far as Faithful | was concerned? Faithful had had all the material issues affecting him found in his favour. The only issue that had been fount! adversely to him was the last cne. The verdict, as expressed in the several issues affecting Faithful, was r.s complete as it couJd be mads. He wa3 not concerned as to which version was correct concerning a matter which took place between the Cuttens and Keill. What "Faithful had been blamed for was for usicg expressions which would lead ordinary persons to suppose that he had made his own inspection of the property and obtained the results then*. But he had not done so. Learned counsel submitted there was a joint action against Faithful and the Cuttens for a misrepresentation, which turned out to be a misrepresentation blunderingly but innocently made. He submitted that the vital issue so far as Faithful was concerned was: "Did Faithful honestly believe in the truth of the matters communicated him by the Cuttens?" And the answer was " Yes." Faithful never undertook

a duty in any sens? to this company, and a man was only liable for misrepresentation when he had in some way undertaken a duty and bad broken that duty. Counsel cited authorities, and concluded his address at 3.20 p.m. At this stage the court adjourned till 10.30 next morniug. Fhiday, May 8. Mr Ho3king was permitted to cite tv.-o cases i in addition to those cited by him yesterday. Ona of these was Dickson v. Reuter's Telegrams Company wherein it, w?.b held that where v message wns wrongly delivered, and the person t.i whom it wss wrongly delivered acc?pted it as intended fo» him, and acted upon it, and made a loss, that person had no remedy against the telegraph company, for the duty to deliver the message arose out of a contract with the sender and not with the receiver. Mr MacGregor said ho did not intend to address the court. Mr So'.oinon in opposing the application for a nonsuit, said that his argument would largely rest on the differ ■race between this case and Dickson v. Reuter's Telegrams Company. Assuming that Faithful made a wilfully false representation to Cutten 8r03., then ths fact that Cutten Bros choße to transmit that "to somebody else could not make Faithful answerable for deceit to that third party. But in the case of the Telegrams Company it was never intended that ths communication shou'd be carried forward. It was purely Ly a mistake that the communication was sent, and the message was in itself inoffensive. The distinction between that case and the present one was that Faithful evidently intended his report to be sent on. Faithful was Cuttens' servant. The whole complaint of the Cuttens was that it was never intended that they should report except as to the quality of the ground as a guide to the sort, of dredge required. But they admitted that they had to get a report as to tho character of a ground for the purposes of a dredge, and the evidence showed that the Cuttens transmitted to Faithful whatever instructions they received from the promoters. Neill said that he asked whether he shonlcl communicate with Faithful ar.d hurry him un, and, on Cuttens agreeing, he did so. If Faithful was not employed by Cuttens, why did he report to the Cuttens? Ie was evidently intended that Faithful should report to Cutten Bros., and it was evidently intended that they, as the engineers, shou'd hand ihat report to the company as advice on the question of what was a suitable dradge. Learned counsel admitted that there was no eviclfr.ee that Faithful had a wicked intention to deceive tho company, but there was evidence that he mad« a false statement which he knew to bo false, pnd the findings of the jury did not discharge Faithful. As to the motion for judgment for defendants, that couM rot be granted, because learned counsel on tha other side asked tho court to give judgment on the issues, and there wore no isEU"R legally found. He contprided that the defendflnts could not mp.ke u=e of the issu-es found by the jury, since the jury had not returned answers to all the questions put to them, and that therefore the case could orly be r.rgued upon the assumption that Ihe evidence given by the plaintiff company ; was correct. If that wns so. he held that this evidence showed that Faithful know the company was waiting; to proceed until he reported as fo tb? gold-bearing qunlrtiis of the claim. , and that ho pent a report which was untrue, ; which he kn°w to be untrue, (ir/d which he trust, be lield to have intended them to net upon. This p-ave rise to a cause of action against ths defendants. Mr Woodhon%? followed on the same side, arguing that the effect of the action by Cutten Bros, was to create a contract between them j and the plaintiff company. The compair-, he held, hnd eood cause of action on two grounds — (1) That thee was a new contract between Cutten Bro=;. and the company to furnish n report, and (2) that if there was not an actual contract the relations between Cutlen Bros, find the company, and Cutten Bros.' position with re?ard to tliß comnany, imnosect on them a duly to be careful not to mislead. Mr Hoiking nr.cl Mr Chapman lep'ied. and His Honor psid he wou'd take time to consider his decision. IX BAXCO. Moxdat May 11. (Before his Hor.or Mr Justice Williams.) I'EIIRY V. UASMUS3EX. An appeal from )he decision cf Mr S. E. M'Carthy, S.M., convicting r.npc'lar.t, William Porry, licensee of the Winton Hotel, of selling liquor on Sunday to persons other tiian bona fide travellers. j Mr Sim appeared for the appeilr.nt, and the respondent, when the c-ase was argued (on May , 7). was represented by Mr T. M. Macdonald. j His Honor cow gave judgment as follows:— I The appellant, an innkeeper, was charged before tbe magistrate under section 155 of ''The Licensing A.ct, 1831," with having sold liquor on Sunday, a time at which licensed premises are directed to be closed, and was convicted. The appeal is a general appeal under section 248 of " The Justices of the Peace ' Act, 1852," and ia therefore a rehearing on the , facts. It was agreed, however, between the parties that evidence should not be called, ' but that a statement cf the facts in which they [ both concurred should be laid before the court. It was proved that the appellant had sold ' liquor on a Sunday to two men who were not ' bona fide travellers, as they had lodged on the ! preceding night within three miles of the ap- \ pellant's house. Of this fact the appellant was j ignorant. The appellant raised the defence I ] allowed by section 157 of the act of 1881 that ; he truly believed that the purchasers were bona . ' ficle travellers, and that he had taken all reasonable precautions to ascertain whether the purchasers were such travellers. The magistrate ' found that he had not taken all reasonable pre- i cautions, as he had not asked them where they '. had lodged the night l>efore. It was contended i on behalf of the respondent that by the lan- " guage of section 157 the decision of the rnajris- <

x trate on the point is conclusive, and that this 1 defence is not open to the appellant on a^re- ,- hearing in this court. Keliance was placed 1 on some observations of his Honor the Chief ) Justice in the case of O'Connell v. O'Malley (17 K.Z., p. 577), where his Honor expresses ) some doubt on this point, but says that lye does riot express a confident opinion. I confess I do not share this doubt. The cases of Nankivell v. O'Donovan (13, N.Z., 60) and Keg. v. Peaicy , (13, Jur., 133), referred to by his Honor, were neither of them genera* appeals, but were appeals from the decision of the magistrate in . point of law. In such case 3 the court above, t of course, treats the finding of the magistrate ; on questions of fact as conclusive. What [ Naakivell v. O'Donovan decided was that the . question of whether the licensee had taken . reasonable precautions was a question of fact, , and not a question of law, and was therefore conclusive upon the court above in considering t an appeal on a question of law. Heg. v. Pearcy was decided on the same principle. Where. . however, there is a general appeal on questions of fact and law, and the case is entirely reheard by the Appellate Court, the Appellate Court must be placed in exactly the same position as to deciding the questions oi fact as the court below was, or otherwise the appeal would be nugatory. In my opinion, if a general appeal is given on questions cf fact, and if it is suggested that a particular question of fact is not the subjec* of appeal, it would be necessary to show in the clearest way the intention of the Legislature to exclude it. The English acts have a section corresponding to section 157, and it is admitted that on the general appeal to Quarter Sessions, which corresponds to our general appeal to the Supreme Court, the justices in Quarter Sessions could entertain this defence. It is euggestc-d that they could do so because the words used in section 157 — " the justices are satisfied" — are apt to describe the justices in Quarter Sessions as well as the justices appealed from. I do not think it conies to a matter of words, but if it ' doe 3, the words " the justices" ar9 apt io describe the justice or justices of the court seized of the matter. I believe lam# justice of this court. The question then is whether tlie appellant, the defendant below, has established this defence The defendant knew the men whom he supplied with drink, and knew that they resided at a place six miles away. He was standing at his hotel dcor between halfpast 9 and 10 on Sunday morning, aoid hnd from there a good view of the road leading to where the roon resided. He saw them when a -considerable distance 'away approaching the hotel from that direction". He knew thst it was n common practice for them to come iirlo Winton on Sunday morning. When they arrived at the hotel they looked as if they had had a long walk. They asksd for a drink. The defendant said : " Yea, you enn get a drin'c if you are travellers." Isaacs they said in Rowley's hearing: " We are travellers ail right; we have walked from Clark's miil." There was no reason why the defendant should have disbelieved this statement, or why he should have treated it as unsatisfactory or equivocal. What the defendant knew and what he saw would have led him as a reasonable man to believe it to be tine, and that it meant they had walked from Clark's that morning. : It is true that the defendant knew aiso that it was a common practice for flax-mill hands to come iti on Satarday night and spend the night in Wir.ton. but there was r.othir.g to lead him to suppose that these two men had done • so on this Saturday. Everything pointed the ; ether way. Seeirg them that hour of the morning coining from the direction of the place where they lived, the reasonable inference would be that they had lodged thoro the night b?fore, and thpy were coming into Winton- for the Sundry in accordar.ee with their common j pi-acU'cs. If Isaacs' 3 stateni9nt waa true, 'he i two men would have left Clark's about eight j o'clock. If a maa leaves his place of residence | as early as eight o'clock on a Sunday morning, j a day when people as a rule lie abed, the natural conclusion which a reasonable person would coma to would be that he passed the night there The defendant was justified in believing that the men lodged that night at • the place whera they usually lodge at night — that is, at their place of residence — unless there was something to suggest to him that on that particular night they did not lodge there. What the defendant was told and what the defendant saw suggested nothing of the kind, but on the contrary would lead him to conclude that the men certainly had lodged there No doubt ;! is a prudent thing in every case for an innkeeper to ask a man who asks for a drink on Sunday where he lodged the ni^ht before; but in the present case I think the question wca unnecessary. The defendant is a hotr?lkceper of n>.any years' experience. During the whole of his career the police have never had any occasion to complain of him nor of the ; way in which he has conducted his house. There was no circumstances of suspicion in the case nor any attempt at concealment. There was no desire to go bpyond whet the defendant considered lawful in the way of selling, as he refused the men a second drink. We may therefore credit him with being honest, law . abiding, and reasonable, and we may assume that he did not shirk asking any questions for fear he should get an unsatisfactory answer. " All reasonable precautions " are alt the precautions which an honest and reasonable man would take in the circumstances of the particular case. I think Perry look such precautions, and that he has established his defence. Had there been any question of conflicting evidence or of doubtful or euspcious circumstances, I should have Lesitated long before interfering with the decision of the magistrate, but there is nothing of the kind. The appeal will be allowed and the conviction ouashed. DALGETY V. SIMMOITDS A.STD OTHERS. An appeal by way of rehearing from the derision of Mr James M'Ennis, S.M. and Warden, in refusing the application of the appellant, Frederick John Dalgety, for exchange of title of water race Ko. 221 granted by " The Otago Waste Lands Act, 1872." Mr Sim appeared for the appellant, and Mr

Chapman for the respondents, who lodged objections in the Warden's Court to the granting ci the application. The appeal, which was on both a matter of fact and a matter of law, was lodged on the following grounds : — (1) That the water raca since it was granted had been continuously used for its lawful and proper purposes; (2) that Li any case, if the water ra<;e was liable to forfeiture for non-payment of rent, it was competent for the Land Board to waive the forfeiture and accept the rent' end Tenew the license; (3) that further, if under the act of 18S7 the race was liable lo forfeiture, the Land' Board had power to impose a fine in lieu of forfeiture and grant a renewal of the license; (4> that it was competent for the Land Board to record he transfer of the right of the water race on application supported by evidence ta the board's satisfaction; (5) that the liceusa for th-e water race was a valid and a subsisting license, and liad teen annually renewed, and that tne applicant was by law entitled to tho issue of a new license for tie same. Mr Sim., in opening, quoted the sections o! the act of 1879, trmSer which fho application was granted at a rent of lOs per . nnum.. The act of !§72 was repealed by the Land Act of 1877. The license was not brought to the Land . Board for renewal, nor was any payment of rent raado from 1878 till 1695, when there was some correspondence with the Land Board on the subject. The question arose as to the position of the license wit-h regard to the provisions contained in the act of IKT2. It was possible for the court to take two views of the matter: — 1. The first view was that the conditions imposed by the act of 1572 remained in. force fo long only as that act remained in, force, and that when the act of 1872 "was repealed by the act of 1877, it was no longer necessary that the licsaaee should bring the license for renewal as required' by subsection, 7 of section 65 of the statute of 1872. 2. The other view was that for the purpose of this license subsection 7 must be treated as being still in operation. What he submitted .on behalf of the appellant was that the first view was the right view. When the act of 1572 wns repealed the result in effect was to grant in perpetuity this water race subject to the licensee paying his yearly rent, because the yearly rent was reserved by the instrument which created the title. His Honor expressed disagreement -with; learned counsel's proposition. Mr Sim said that assuming the court waa against him in th« first view of the license, and assuming thai subsection 7 was to continue in operat : on for tho purpose of this license, he submitted in the first place there could be no forfeiture under the subsection until it hadbeen declared forfeited by the Land Board ov some other competent tribunal, and that it waa only the Crown that could take advantage of the forfeiture. Further, that it wa3 compstent for tho Crown to waive that forfeiture, and thnt it had done so in the present case. The authority for thi3 proposition was the well-known case of Robinson v. Blundell (MacasHey's Reports p. '683). The Crown, he submitted had waived its right in this case by accepting the rent. Mr Chapman: Have any statutory officers power to do so ? Mr Sim replied that there might have been, a question whether the Land Board had power in the first instance, but the Land Board took on itself to waive it, and the Crown., having accepted the money, had certainly waived it. If the court hell that section C 5 of the acb of 1872 remained in force for the purpose of this license, then section 7 of the act of 1902 seemed quite unnecessary. That proceeded on. the assumption that the acl of 1872 having been repealed it was competent to renew the license. In effect the license in the pre- . | sent case had been annually renewed. He | submitted that appellants were entitled to j succeed, and that Ilio warden should not haver refused the application. Mr Chapman submitted that the true reading" of the license was that it was granted under section 7 of the act of JS72, and if the con- ■ ditions were not fulfilled the license became forfeited. The conditions were peculiarly strict, and if there was power to waive by tho Land Board, as his friend suggested, he Bhould! be able to point to some statute giving that power. Under section 115 of the Goldfielda Act there must be forfeiture, and the words of" that section acted automatically. The members of the Land Board and the receiver r>f land revenue were statutory officers, and had no power to waive the rights of tha Crown. If they hn-cl this power, the warden and receiver or gold" revenue would have such a power outside section 115 of the Gold-fields Act. Learned counsel, citine a Victorian case, said it had always been held that where forfeiture had accrued: starting work again would not cure it. Ifo was neveT intended that " shepherding" should! be allowed in this country, and that after 20 years had elapsed that the forfeiture which had; ensued should be waived. Officers of the Crown were not appointed to waive the requirements of the net. but to enforce them. Before any person could waive the rights of the Crown they must derive some power to do so, and he submitted there was no power under which they could do so in the present case. The Land! Board had no function whatever in this matter. It granted the license, and it automatically renewed it when it was annually- brought for renewal. It had no power to refuse to renew it. and no power to renew it exrept annually, •when it was brought before it. The court waa now asked to say thflt the Land Board had some such nower as the warden. If there waa any -waiver here, it was a waiver by the receives of land revenue, because he was the person who received ihe revenue; on officer who waa merely appointed to receive dues for th« Crown! was suggested now to have seme power to waive forfeiture which could only accrue to tb« Crown. Mr Sim having replieS, his Honor reserved! judgment. Rabbiting is very brisk around QueeoS* town, and good prices are ruling.