COURT OF APPEAL.

Wellington Independent, Volume XXII, Issue 2588, 24 October 1867, Page 4

COURT OF APPEAL.

Tuesday*, OoTOßfitt'22T "

[Before Mr Justice Johnston, Mr Justice G-rnssoii, Mr Justice Chapman, Mr Justice Richmond, and Acting Justice Mooro.] Tho Court opened nt 11 o'clock. CHAPMAN AND TOOTH.

The further heaving of tho case of Chapman v Tooth was continued.

Mv Macassey, in addressing the Court on behalf of the respondent, referred to the principle which had influenced the Court below in making tho order staying the two cross actions as arising from a desire to provenfc complicated and expensive litigation, and submitted that it should be sustained. He had gatherod three objections on the other side, two of which he might characterise as merely formal. The first point was that the declaration wa9 bad in itself, and could not be pleaded successfully in defence in the cross actions below; but although the objection rested on a principle, which was recognised several years ago in the Court of Chancery, to which the Supreme Court might be compared in the nature of its jurisdiction, it had since been overruled. Another objection taken was, that the relief which the respondents had obtained by the order of the Court below had been misconceived, and that they should have Rought a remedy in another shape by pleading in the suits and obtaining a consolidation order. Tho third objection was, that no sufficient identification of tho two causes ofacti n had been established. The counsel then proceeded to argue against the objections wbi^h had been raised and concluded, by ui'ging that with regard to the costs that the order tlmt they should bo plaintiff's costs in the cause, should remain undisturbed.

Mr Travers urged, on behalf of the appellant, thai there was no identity between the two actions 5 it was merely iirged that tho matter of the two actions was tho same, but there was not a tittle of evidence to that effect.

Mr Justice Johnston : In this case the question for tha consideration of tho Court of Appeal is, whether the order made by tho learned Judge, Mr Justice Gresson, ought to have been made, and further, the Court is to give such a judgment on the Appeal as ought to have been given in the Supreme Courb. With regard to the first question which presents itself, viz., whether tho learned Judge ought to have restrained Chapman, the plaintiff, in tho misrepresentation action. I am of opinion that the injunction ought not to have issued. I do not think that the questions, which, as it is alleged were identical, really were so. I do not think that it. was at all liecrssary that tho question whether the deed with the covenants contained in it, which was actually entered into between Tooth and Chapman, was or was not fraudulently constructed as against Tootli is essential, as a matter precedent to tho determination of the action by Chapman against Tooth for the misrepresentation ; but understanding from tho arguments of tho learned counsel with respect to matters in which they do agree, that they admit that the injunction might properly go in respect of the covenant action. I am of opinion that the order of the Supreme Court ought to have been to restrain that action, and, therefore, that according to the terms of the caso put before us, that action ought to be restrained by the judgment of this court. With regard to the costs of the injunction, it appears to me that, as we are loft at large, we are not bound by the decision of the learned judge, as it is competent for us to make any order in respect to these costs, which we may think right. I am of opinion that, inasmuch as the proceedings in the injunction depend on facts and conclusions — upon facts which cannot be satisfactorily ascertained until trial — that the cost 9of the injunction should be costs of tho cause. With regard to the question of the costs of this appeal, the Court will invite the learned counsel to make some observations after judgment is pronounced. Mr Justice Richmond said that lie agreed in the judgment of ihe acting Chief Justice ; it certainly had appeared to him throughout the arguments that the declaration Tooth v Chapman furnished no ground for the order actually made. The grounds on which Tooth sought relief were succintly stated in the 11th and 12th paragraphs of his declaration ; and so far as the allegation in tho 11th paragraph was concerned, it was obvious on the face of tho record that it was no answer, and was in no wise relevant to tho first action Chapman v Tooth for misrepresentation as stated by tho acting Chief Justice. The allegation of fraud in drawing up the deed was one in no way relovant to tho fraud Tooth was alleged to have committed prior to the contract. The second ground alleged by tho respondent was, that tho damages were substantially for the same matters. That did not appear to him to bo sufficient ground for an injunction order. The respondent alleged that he had an answer to one action, which did not applj r to tho other. The identity of demago wos not enough, where tho proof of plaintiff and the answer of defendant were entirely different; it was unnecessary to go into tho question whether tho action on tho covenants ought to be considered by the Court ; for that was shut out by the admission of the appellants.

Mr Justice Chapman said that he was of the same opinion as Mr Justice Johnston and Mr Justice Richmond, namely, that the fraud alleged in the first of the two actions was entirely distinct from that fraud alleged in the plaintiff Tooth's bill for relief. The very object of the declaration, Tooth v Chapman, was to get rid of the covenants in the deed on the ground of fraud, upon which plaintiff Chapman sued, and they were the self-same covenants to get rid of which the plaintiff in Tooth v Chapman instituted his 'equitable action ; it therefore seemed perfectly reasonable to restrain in some way or other the action upon the covenants, because the covenant might turn out to bo no covenant at all. Tho only question remaining was, whether that ought to bo done by injunction ; but it wns got rid of by the appellants submitting to one, so far as that action was concerned, otherwise ho would havo hosituted ; but the submission of the appellants put another aspect on the matter and would facilitate justice.

Mr Justice Moore said that he agreed in tho opinion expressed by the other members of tho Court; and tho more readily, as he was at first of a different opinion, viz., that both actions should be restrained in default of the appellant electing one action.

Mr Justice Gresson said that he agroed with the opinion of the othor members oi the Court. He had a modified opinion to this extent, that ho thought ttftt if an injunction went to either action it should be the covenant action, and it was quito unnecessary for him to say anything as to his opinion as to the right of the Court to restrain both actions. The effect of restraining tho covenant action was, lie took it, necessarily to modify the ruling he made as to the costs of tho injunction, because that ruling was made upon the assumption that tho order below would not be modified or altered ; ho thorefore concurred that tho costs of the injunction should be costs in the cause.

On tho question of tho costs, after a few words from counsel,

Mr Justice Johnston said that, prima facie and in the main the appellants had succeeded and they ought therefore to got costs.

KING V BUCKLEY,

This case was about being opened, when The Court adjourned.

Wednesday, October 23. ameed king and george buckley and james

RATTRAY.

This was a special case rosorved for the consideration of the Court.

From the facts as sofc forth in the plaintiff's declaration, it appcai'od that the plaintiff was appointed in December,' 1862, by William Bufua Powell, of London, to bo master of the ship Roman Emporor, which was then going to Lyfctolton, and that the defendants did, on or about the Bth August, 1864, as agents of Mr Powell,

the owner, wrongfully and maliciously) and without any just and reasonable cause, dismiss the plaintiff from the command of the vessel, and appoint Henry Francis Williams in his stead, for which the plaintiff claimed £4000. To the declaration the defendants demurred Unit it was bad iv substance, as inasmuch as the cause of action arose on a. breach of contract between the owner and the captain, thoro was no right of action against the defendants. The demurrer came on for argument on the 20Lh of Becember last in Canterbury, before Mr Justice Gh'esson, and he by consent stated a case for the Court of Ajjpeal. The question for the consideration of the Court was, whether the demurrer should be allowed or over-ruled.

Mr Gamck appeared in support of tho demurrer ; Mr Travers, with him Dr Foster, ngaiust it. Mr Q-arrick contended, in anticipation of arguments which might be adduced on the other side, that tho word " maliciously ," in the declaration, could not create any fresh cause of action, and could not make that actionable which wn3 not so without it (Stevenson vNewnham, 22 L. J., C, p. 110) ; in fact " maliciously " here did not mean more than wrongfully ; and there was nothing more than an, allegation of a breach of contract ; nor was it alleged that there was an excess of authority on the part of defendants, nor any tort arising out of a breach of contract. Tho learned counsel then proceeded to contend that the plaintiff had no right of action against defendants as agents ; for they -wore not privy to the contract. (Addi.ion on Torts, p. 706 ; Winterhottom and Wright, p. 10; Leesman and Welsby, p. 109; Blackmore v Bristol and Exeter Railway Company, 27 L. J., Q. 8., p. 16 7; Storey on Principal and Agent % § 261 ; Howard and Shepherd, 19 L. J., C. P., p. 249; Gerhard v Bates, 22 L. J., Q. £„ p. 364)

Mr Travers submitted that the demurrer must bo overruled ; lie would accept tho suggestion of Mr Justice Chapman and Mr Justice Richmond, that this must bo supported as an action ex delicto, and must show that tho defendants hud been guilty of an independent wrong. He would refer to McGlashan's treatise on the law of merchant shipping, p. 18G, and contend that whether tho dismissal of tho captain was right or wrong in itself, it was beyonci the scope of the agent ; for there was nothing in the declaration to show that the agent had the requisite authority from, the owner, and he apprehended that if in consequence of the change of command tho vessel had come to any harm, the owner would hare had a claim against the agent. He recognised the doctrine that if there was just and reasonable cause for dismissal, the malice was immaterial ; but ho avorred that there was no jusbaud reasonable cause and that the dismissal was malicious, and ho would contend that the agent had committed an active and positive wrong towards the captain, for which the owner could not be held responsible (Groom's Legal Maxims, p. 379, cd. 3, Lumley v G-ye, Erie's Judgment, 2 Ellison and Blackburn, p. 224).

Dr Foster said that Mr Garrick had cited cases to sliow that no party could be sued on a contract, unless he was a party or privy to it ; but they went to show that no one could sue on a contract unless he was so situated : and the converse had been assumed. If a person's right under a contract was invaded, he could sue in many cases the parties so invading it. {Manly Smith's Master and Servant, p. 87).

Mr Justice Richmond said that, that could be done when there was a right of property. The caao of Master and Serranb was a peculiar one, for the servant was looked on as a kind of chattel.

Dr Foster also referred to Smith's Leading Cases, vol. 1, Ashby t White.

The Court took time to consider its judgment.

TOMES AND GBIGG,

This was an action brought in Canterbury for the recovery of the possession of land.

Declaration that the plaintiff was seized in fee under a Crown grant, and that the defendant was in possession without any title against plaintiff. The defendant pleaded that plaintiff leased the land in 1854, to James Henry Martin for twentyone years ; that in the following yeav, J. H. Martin demised it for the remainder of the term to John Sayor, and that in 1866 the interest in the property was sold by William Thompson, ■who had bought it of Sayer, to the dofendanfc, in default of payment on a mortgage

In tho replication, tho plaintiff denied all knowledgo of tho dealings with the property after he leased it ; and stated that there was a covenant with Martin to enclose the premises within the first five years of tho term, with a substantial fence, satisfying any law in force in the province relative to the trespass of cattle, which he had not done — and that under the deed there was a right of re-entry.

To this the defendant demurred, and on the demurrer being laid before Mr Justice Grosson, it was contended that the plaintiff should have set forth fully in his declaration tho grounds on which he rested his case, and that the replication set up a new cause of action and amounted to a doparture in pleading.

Tho Judge was of opinion that tho demurrer should bo overruled with costs, but by consent of tho parties a case was stated for the Court of Appeal.

Mr Garrick appeared in support of the demurrer ; Mr Travers against it.

iMv Justice Johnston said that ho was of opinion that tlio demurrer must be overruled. It might bo that upon the whole of the facts, as they appeared on the record, the original declaration was not what it ought to hiwe boen according to their rules of pleading. What the Court had to deal with was whether the replication aa it stood camo within the doctrine of departure, and he did not think it was a departure, but rather an amplication. It seemed therefore to him that the replication showed a good cause of action, and that the broach of covenant was well assigned in it.

The other members of the Court coincided in Mr Justice Johnston's view.

Tho Court adjourned at five o'clock,