LAW REPORTS.

New Zealand Police Gazette, Volume XL, Issue 51, 22 December 1915, Page 846

LAW REPORTS.

{“ New Zealand Law Reports,” Vol. xxxiv, page 1046.) [S.C. In- Banco, Dunedin-— (Sim, J.) — 22nd and 28th October, 1915.] Crossan v. Sivyer.

Licensing —Offences —Sale of Liquor to be taken into Nolicense District—Order by Telegraph—“ Signed by the Purchaser ” —Signature of Agent—lnsufficiency Licensing Act, 1908, Sections 146 and 147 —Licensing Amendmend Act, 1914, Section 8, Subsection 5. An order under subsection 5 of section 8 of the Licensing Amendment Act, 1914, for liquor intended to be taken into a no license district must be signed by the purchaser of such liquor in person, the signature of an agent not being a sufficierit compliance with the subsection. The appellant received a money-order telegram for 15s. from a person residing in Owaka, within a no-license district. The transcript received by him was as follows : “ Send three bottles whisky J. Buchanan, Owaka. “ J. Buchanan, Trollymau, Owaka.” The original was signed by Buokanan, and was handed by him to the telegraph officer at Owaka for transmission in the ordinary course to the appellant. Held, 1. That the signing of the appellant’s name to the order by the telegraph clerk was not sufficient for the purposes of subsection 5 of section 8 of the Act of 1914. 2. That the original telegram deposited in the tele-graph-offioe at Owaka was not an order within subsection 5. Appeal from the decision of J. R. Bartholomew, Esq., S.M. at Dunedin. The facts are sufficiently stated in the judgment. W. G. Hay for the appellant:—

Personal signature of an order is not required under subsection 5 of section 8. Here the telegraph clerk was the purchaser’s agent to rewrite the order and deliver it: See Regulation 8 under the Post and Telegraph Act, 1908 (N.Z. Gazette, 1910, Vol. 1, p. 126); Halsbury’s Laws of England (Vol. xxvii, p. 394, par. 781) ; Mcßlain v. Gross (25 L.T. 804); Godwin v. Francis (L.R. 5 C.P. 295, at p. 303). The signature by an agent is sufficient unless it is specially provided by statute that the personal signature is required: Halsbury’s Laws of England (Vol. i, p. 148. par. 328) ; Reg. v. Justices of Kent (L.R. 8 Q.B. 305) ; In re Whitley Partners (Limited) (82 Gh.D. 337); Stroud’s Judicial Dictionary (2nd ed. Vol. iii, p. 1882). The statute here does not require personal signature. The Magistrate has held that the section provided for a personal signature in order to identify the purchaser. This would preclude a person who could not write, either by reason of illness or ignorance, from ordering liquor, If the Magistrate was right in holding that a personal signature is necessary the original telegram fulfils this requirement. The original was filed at the telegraph-office, and is available for three months from the date of filing. W. G. MacGregor, K.G., for the respondent:—

The words of subsection 5 must be construed in their literal sense. “ Signed by the purchaser ” oan have only one meaning—-viz., personal signature. As to the construction of words of a statute see Broom’s Legal Maxims (Bth ed. 439) and Hutton v. Hutton (13 Gaz. L.R. 201). The cases cited where an agent’s signature was accepted are all cases of contract. They are not authorities to justify the proposition that an agent can comply with a statutory provision : Stroud’s Judicial Dictionary (2nd ed. Vol. iii, p. 1882). Personal signature was required in Toms v. Cuming (7 M. & G. 88; 14 L.J. G.P. 67) ; Hyde v. Johnson (2 Bing, N.G. 776); Williams v. Mason (28 L.T. 231) ; Swift v. Jewsbury (L.R. 9 Q.B. 801), and Wilson v, Wallani (5 Ex.D. 155). The vendor receives only the transcript of the telegram, and this

is not signed by the purchaser. As to the operation of a transcript see Rex v. Lawrence (25 N.Z. L.R. 129; 7 Gaz. L.R 559, at p. 566); Stevenson v. Stevenson (8 Gaz. L.R. 692), and Curtice v. London City and Midland Bank (Limited ([l9oß] 1 K.B. 293). If a telegram is held to be sufficient any other form of agency would be sufficient, and thus the object of the statute would be defeated. Hay in reply. Cur adv. vult. Sim, J.: — The appellant is a hotelkeeper in Dunedin. On the 21st June, 1915, he received a money-order telegram from J. Buchanan, of Owaka, for 15s. The transcript received by him was in these terms : “ Send three bottles whisky J. Buchanan, Owaka. “ J. Buchanan, Trollyman, Owaka.”

The original of the telegram thus received was signed by J. Buchanan and handed by him to the telegraph officer at Owaka for transmission in the ordinary course to the appellant. In pursuance of this telegram the appellant sent three bottles of whisky to Buchanan at Owaka, whioh is situated in a no-license district. The Magistrate (Mr. Bartholomew) held that the telegram thus received by the appellant was not an order signed by the purchaser within the meaning of subsection 5 of section 8 of the Licensing Amendment Act, 1914, and that the appellant had been guilty, therefore, of a breach of that section. It was contended on behalf of the appellant that the order required by subsection 5 need not be signed by the purchaser in person, but might be signed by an agent, and that the order here had b6en signed on behalf of the purchaser by the telegraph clerk who wrote out the transcript received by the appellant. If signature by an agent is sufficient, then the cases of Goodwin v. Francis (L.R. 5 G.P. 295) and Mcßlain v. Cross (25 L.T. 804) appear to be authority for saying that the writing by the telegraph clerk of the purchaser’s name on the transcript would be a signature by the purchaser. The question in these cases was whether a telegram was a sufficient memorandum to satisfy the Statute of Frauds. In Goodwin v. Francis (L.R. 5 C.P. 295) all the Judges took the view that the transcript written and signed by the telegraph clerk, with the seller’s name thereon, was a sufficient signature on behalf of the seller to satisfy the statute. Brett, J,, expressed the opinion also that the signature to the instructions for the telegram amounted to a signature of the contract embodied in the telegram. That opinion was approved of by Willes, J., in Mcßlain v. Cross. (25 L.T. 804.) The question, then, is whether signature by an agent is sufficient for the purposes of subsection 5 of section 8 of the Act of 1914. The general rule is clear that, where a person authorizes another to sign for him, the signature of the person so signing is the signature of the person authorizing it: Reg. v. Justices of Kent (L.R. 8 Q.B. 305, at p. 307) ; In re Whitley Partners (Limited) (32 Ch.D. 337). But that rule does not apply to any case where a statute dealing with the signing of a document makes it clear that personal signature is required. Is the present, then, such a case ? In determining that question it is necessary to consider what the law was before the Act of 1914 was passed. The object of the legislation with regard to nolicense districts is to prevent anything in the way of trade in liquor in such districts, and to make the path of the illicit trader as difficult as possible. This object is sought to be carried out in sections 146 and 147 of the principal Act. Under section 147 every person giving an order for liquor intended for a no-license district had to notify the person to whom the order was given that the liquor was so intended, and to give him a statement in writing of his name and address, and if he was an agent the name and address of his principal (subsection 1 (a)). Now, it is reasonably clear, I think, that the object of the Amendment Act of 1914 was not to increase the facilities for getting liquor into no-license districts, but to impose further restrictions on the importation of liquor into such districts, and to make it easier for the police to trace each transaction in liquor intended for such a district from the time the order was given until the liquor was delivered by the carrier at the purchaser’s residence. But if the appellant’s argument be sound an order under the Act of 1914 may be signed by an agent in the name and on behalf of the purchaser without disclosing his own name, or without, indeed, disclosing the fact that the signature was not written by the purchaser himself. Such a construction, instead of facilitating, would make it more difficult to trace transactions in liquor, and would thus tend to defeat the obvious intention of the Legislature. The fact that nothing is said in the Act of 1914 about orders by agents makes it clear, I think, that the intention was to supercede the provision of subsection 1 (a) of section 147 with regard to orders by agents, and to make it necessary in every case for the purchaser to give a written order signed by himself for

liquor intended for a no-license district. In this way troublesome questions of agency and authority are eliminated, and the investigation of transactions in liquor for no-license districts is made easier. These considerations are sufficient to establish, I think, that the case is not one to which the general rule applies, and that it comes within the principles applied in such cases as Hyde v. Johnson (2 Bing. N.G. 776), Toms v. Cuming (7 M. & G. 88 ; 14 L.J. C P. 67), Swift v. Jewsbury (L.R. 9 Q.B. 301), and Fricker v. Van Grutten ([1896] 2 Ch. 649), in each of which personal signature was held to be required by the statute or rule under consideration.

It was contended, also, by counsel for the appellant that the original telegram deposited by the telegraph-office at Owaka was an order within the meaning of subsection 5. This argument finds some support from the decision in the case of Fountain v. McDonnell (23 N.Z. L.R. 913; 7 Gaz. L.R. 14, in which such a telegram was held to be an application under section 236 of the Justices of the Peace Act, 1882. The language of subsection 5 makes it impossible, however, to adopt any such construction in the present case. It is clear from the provisions with regard to the filing and production of the order that the seller must have the original order signed by the purchaser in his own personal possession before he acts on it in any way. The result is that the decision of the Magistrate is affirmed, and the appeal dismissed, with costs £5 ss.

Appeal dismissed. Solicitors for the appellant; Solomon, Gascoigne, & Hay (Dunedin). Solicitors for the respondent: MacGregor & Ramsay, Crown Solicitors (Dunedin).

* (“ New Zealand Law Reports,” Vol. xxxiv, page 1084.) [S.G. In Banco, Wellington—(Stoot, G.J.) —13tii and 17th November, 1915. J Klein v. Tutty. Statute —Construction —Res judicata— Liability of Putative Father to maintain Illegitimate Son —Order under former Act expired —Extended Liability under later Act —Matter not to be reopened—Destitute Persons Act, 1894, Section 9 Destitute Persons Act, 1910, Sections 4, 5, 8, 39, 67, 85. Under the Destitute Persons Act, 1894, section 9, the appellant was in 1903 declared to be the putative father of the son of the respondent, and was ordered to pay for his maintenance till he attained the age of fourteen. The order expired on the 22nd of July, 1915, and on the 7th of September, 1915, upon the application of the respondent, the Magistrate made a new order under sections 8 and 85, subsection 3, of the Destitute Persons Act, 1910, for the maintenance of the boy up to the age of sixteen. Held, That the original order was a final order on the merits, and that the matter, being res judicata, could not be reopened. Byre v. Wynn-Mackenzie ([1896] 1 Oh. 135) and Lemm v. Mitchell ([1912] A.C. 400) followed. There is, however, ample power under section 4 of the Act of 1910 to force the appellant to maintain the boy without the condition as to age in section 8. Appeal from an order under section 8 of the Destitute Persons Act, 1910, by D. G. A, Cooper, Esq., Stipendiary Magistrate at Wellington. The Magistrate dismissed the application under section 39 to vary the order. The or,her facts and the nature of the arguments are sufficiently stated in the headnote and judgment. Jellicoe, for the appellant, cited Eyre v. Wynn-Mackenzie ([1896] 1 Ch. 135), Lemm v. Mitchell ([1912] A.C. 400, at pp. 405-406), and Gardner v. Lucas (3 A.C. 582, at p. 603.) A. Dunn, for the respondent, cited Sutherland v. MoGimpsey and Another (17 N.Z. L.R. 431 ; 1 Gaz. L.R. 28.) Cur. adv. vult. Stout, G.J.: — This is an appeal on a question of law from the decision of the Stipendiary Magistrate sitting in Wellington. The facts are that in 1903 an application was made by the respondent to the Magistrate’s Court in Wellington for an order under the Destitute Persons Act, 1894, declaring that the appellant was the putative father of an illegitimate child borne by the respondent, and providing for the maintenance of the child. An order was made declaring the appellant to be the putative father, and ordering him to pay 7s. 6d. per week for its support. Under the law then in force the Magistrate could give maintenance only until the child attained the age of fourteen years. The Magistrate made an order for maintenance to be paid until the child attained that age. In

1908 the Destitute Persons Act was consolidated, and in 1910 the consolidated Act was repealed and a new law passed. By the 1910 Act ali existing orders were kept in lorce (see section 85). Power was given in the Act (see section 89) to cancei, vary, or suspend any order made, but not till the order of 1908 had expired was any application made to the Court to vary the order, and it seems to me doubtful, if there had been an application made to vary the order before its expiry, whether the Court would have had power to extend it. There is power under section 8 of the 1910 Act to make an affiliation order adjudging a man to be the father of an illegitimate child and making provision for the maintenance of the child subject to certain limitations. The order made is within the jurisdiction of the Magistrate, if he can make a new order—in fact, a second order. I am of opinion that he has no jurisdiction to do this. First, there is no power expressly given by the 1910 statute to do so. The order made was a final order on the merits, and it was an order warranted by the statute, and the Magistrate could not have provided for maintenance after the child attained the age of fourteen years. It is contrary to all principles

jurisprudence that a fresh order should be made now, as the matter is res judicata. The cases of Eyre v. WynnMackenzie ([1896] 1 Ch. 185), and Lemm v. Mitchell ([1912] AC. 400) are in point. The cases are dealt with in Craies on Statute Law (4th ed. 326-327). The Act cannot be deemed retrospective and as allowing a new order to be made. The very existence of seotion 89, giving permission to vary an existing order, negatives this, for if there was power to make a supplementary order the existence of the first order would never have destroyed that power. This is more than a mere question of procedure. The Act of 1910 granted a new right. Section 67, which was relied on, does not help the respondent. It is only applicable if no order had been made.

The Destitute Persons Act is a statute to make persons responsible for those related to them and not able to support themselves, and if this child cannot maintain himself —and apparently he cannot— there is ample power in the statute to force his father to maintain him. By section 4 of the Act of 1910 a putative father is a “ near relative ” of an illegitimate child ; and the mother or any reputable person, or the person in charge of the Burnham School, where the child is, could apply under section 5 of the Act to the Court to compel the father to maintain his child—that is, if he cannot maintain himself or is destitute. Under that section the age does not matter, nor is the liability of the father limited to the period mentioned in section 8. I must allow the appeal ; but, as I understand this is the first case of the kind under, the statute, and under the peouliar circumstances of the case where the mother is bound to maintain, I shall not allow costs. Appeal alloived. Solicitor for the appellant : E. G. Jellicoe (Wellington.). Solicitor for the respondent: A. Dunn (Wellington).

(“New Zealand Law Reports,” Vol. xxxiv, page 1051.) [S.C. In Banco, Dunedin-(Sim, J.) —20th and 27th October, 1915.] Purves v. Ingles. Criminal Law—Police Offences —Using Indecent Language “within the Hearing, of Persons in a Public Place” — Not necessary to prove Language actually heard—- “ Indecent,” Meaning of —The Police Offences Act, 1908, Section 42 — Practice—Appeal from Justices—Time within which Recognizance to be entered into—Proof of Noncompliance with Statute—The Justices of the Police Act, 1908, Sections 292 and 325. In order to constitute an offence under section 42 of the Police Offences Act, 1908, it is not necessary that the language complained of should have been actually heard by any person in a public plaoe. It is sufficient if the words were spoken in such a way that they were capable of being heard by some person in a public place if such person was attending to what was happening. Dicta of Pollock, 0.8., and Parke, 8., in Reg. v. Webb (2 C. & K. 983. at pp. 935, 939) applied. The words, “It’s no damn use talking to you ; any way, you put that bloody calf out of that damn section,” are “indecent” in the modern and popular acceptation of that term, and therefore within the meaning of section 42. If a respondent wishes to raise a preliminary objection to the hearing of an appeal on the ground that section 292 of the Justices of the Peace Act, 1908, has not been

complied with, proper evidence must be brought before the Court in proof of the facts on which his objection is based. Held, therefore, on an objeotion that a recognizance bad not been entered into within the time prescribed by section 292, That the mere production of the recog nizance as transmitted to the Registrar under section 325 is not proof of the circumstances in which it was given, and does not relieve the respondent of his obligation. Appeal from the decision of H. A. Young, Esq., S.M. at Balclutha. The facts are sufficiently stated in the judgment, Finch, for the respondent; The appellant has not fulfilled the requirements as to time prescribed by the Justices of the Peace Act, 1908. The recognizance v. as not entered into within the time prescribed under section 292. G. H. Thomson, for the appellant :

Tire objection cannot be sustained ; Stanhope v. Thorsby (14 L.T. 332), referred to in Foster Moulton on Appeals (p. 60). It must be assumed that everything in connection with the appeal is in order unless it is proved otherwise. Section 292 requires security to be given before the appeal is entered upon. The question as to when the security is given is not otherwise essential.

[Sim, J., refused to uphold the objeotion, the grounds of his decision being stated in his judgment.] It should be proved as a fact that the language was heard. The Magistrate has only found that it could have been heard. This is not sufficient. The accusation was that the language was used and beard, but there is no evidence that this was the case. The language used was not “indecent.” It arose out of a dispute about a calf. The language used might well have been used in reference to the calf itself in its then condition. So applied to an animal the language was not indecent.

Finch, for the respondent, referred to Reg. v. Webb (2 C. & K. 933, at pp. 935, 939). It is an offence if the language could be heard. The Act does not require proof that it was actually heard as long as it could have been heard if attention was paid. The language was indecent. The word “ indecent ” is used in its ordinary meaning, and covers anything that is unseemly: Armstrong v. Moon (13 N.Z. L.R. 517.) Thomson in reply. Our, adv. vult.

Sim, J.: — The appellant was convicted of using indecent language within the hearing of persons in a public place. The language was used by the appellant in a paddock near a public street in the Town of Balclutha, and, as the Magistrate (Mr. Young) has found, could have been heard by some children who were then in such street. It was not proved that any of these children actually heard the language, and it was contended, therefore, on behalf of the appellant, that the Magistrate was not justified in convicting the appellant. It was contended also that the language used was not indecent. Section 42 of the Police Offences Act, 1908, under which the appellant was convicted, provides that “every person who uses any profane, indecent, or obscene language in any public place, or within tbe hearing of any person in such public place,” is liable to imprisonment or fine. In order to constitute the offence of which the appellant has been convicted it is not necessary, I think, for the language to have been aotually heard by any person in a public place. It is sufficient if the words were spoken in such a way that they were capable of being heard by some person in a public place if such person was attending to what was taking place. They are spoken, then, within the hearing of such person, although in fact they may not have been heard by him. Of course, the best way of establishing that words were spoken withiu the hearing of a person is by proving that such person actually heard them. But that is not the only way, for a person’s attention may be absorbed by some other subject, and words spoken within his hearing may not reaoh his mind. His auditory nerve may have been stimulated without any accompanying psychical change taking place. Tbe opinions expressed by the Judges in Reg. v. Webb (2 G. & K. 933, at pp. 935, 939) support this view of the matter. It was there said by Pollock, G. 8., at page 939, that if an indictment charges that a thing was done within sight and within view of persons, that imports, not that they did see it, but that they could see it. To the same effect was the opinion expressed by Parke, B. As to the second ground of appeal, the Magistrate was justified, I think, in holding that the language used by the appellant was indecent. The word “indecent” has no definite legal meaning, and it must he taken, therefore, in its modern and popular acceptation, in the same way as the word “profane” in the same section was taken in Armstrong v. Moon (18 N.Z. L.R. 517). In the Standard Dic-

tionary “indecent” is defined to be anything that is unbecoming or offensive to common propriety. This definition is wide enough, certainly, to cover the language in question. I think, therefore, that the conviction must be affirmed, and the appeal dismissed, with costs £5 ss. A preliminary objection to the hearing of the appeal was raised by counsel for the respondent on the ground that section 292 of the Justices of the Peace Act had not been complied with. There was no evidence before me on the subject, and 1 declined, therefore, to entertain the objection. An objection on the ground of non-compliance with any of the statutory requirements may be taken as a preliminary objection at the hearing, and this is the course usually followed. It may also be taken by an independent application to strike the case out of the list, as was done in Great Northern, &c., Joint Committee v. Inett (2 Q.B.D. 284). But, whichever course is adopted, the respondent must bring proper evidence before the Court in proof of the faots on which his objection is founded. This he can do either by filing an affidavit on the subject or by getting the facts stated by the Justice in the case stated. The fact that under section 325 of the Justices of the Peace Act the recognizance has to be transmitted to the Registrar of the Supreme Court does not relieve the respondent of his obligation in the matter, for the mere production of the recognizance is not proof of the circumstances in which it was given. It appears from the case stated by the Magistrate that security in this case was given by the deposit with the Clerk of the Magistrate’s Court of a sum fixed by the Magistrate, but there is nothing to show when this was done. Solicitor for the appellant: G. H. Thomson (Milton). Solicitor for the respondent: A. A. Pinch (Dunedin).

(“New Zealand Law Reports,” Vol. xxxiv, page 1092.) [S.C. In Banco, Wellington.—(Stout, O.J.)—l7th and 22nd November, 1915.] Rudd v. Price. Statute—Construction —“ Postal Packet having thereon Words of a Grossly Offensive Character ” —Words in a Letter within a Closed Envelope , whether included Post and Telegraph Act, 1908, Section 83, Subsection (f). By section 83, subsection (/), of the Post and Telegraph Office Act, 1908, it is provided that “every person who posts any postal packet having “ thereon or on its cover any words ... of ... a grossly offensive character is liable,” &c. Held, That the word “ thereon ” means “ on the outside of the packet,” and that therefore a person cannot be convicted under this subsection for posting in a closed envelope a letter the wording of which is of a “ grossly offensive character.”

Appeal on point of law from a decision of D. G. A. Cooper, Esq., S.M., sitting at Wellington, whereby he convicted the appellant for that she, on the 18th day of August, 1915, at Wellington, did post a certain postal packet—to wit, a letter addressed to the Minister of Justice at Wellington—having thereon w’ords of a grossly offensive character. The grounds of the appeal were two—l, That there was no evidence that the appellant wrote or posted the letter complained of; and, 2, that there was no offence committed under subsection (f) of section 83 of the Post and Telegraph Act, 1908, under which section the appellant was prosecuted. It is only with regard to the second ground that the case is reported. Jellicoe, for the appellant: (a.) Section 83, subsection (/), cannot be held to include an enclosure at all, and certainly not one of the description included in section 30, otherwise there would be no need for section 30. [Counsel also referred to section 37.] Section 83, subsection ( e ), however, does deal with articles that are enclosed in a “ postal packet,” and would include the contents of a “ post-letter,” and confirms the view urged above that subsection (/) does not include the contents of a letter. The words in subsection (/), “ having thereon or on its cover,” mean the same thing as the words in 8 Edw. VII, c. 48, section 63, subsection 1 (c), “ has on the packet or on the cover thereof.” The offensive writing referred to in subsection (’/) might be on the packet and yet not on the cover, and that is what is intended to be hit by the phrasing of that subsection. The language or tone of a letter never comes within the knowledge of the Post Office officials save under secti ns 30 and 37. Here neither the Post Office nor the receiver of the letter made any complaint,

[Stout, O.J.—That does not help us. The question is, Does the section provide for the punishing of a person for sending a letter which no one saw but the receiver ?] (5.) Section 83 (f) was never intended to destroy legal privilege. This was a complaint against a police officer made to the head of the Department, and is therefore privileged: Hunt v. Great Northern Railway Company ([lß9l] 2 Q.B. 189, at p. 192). In an action for defamation the whole circumstances have to be looked at, and the same principle applies here. Gray, K.C., and D. R. Hoggard, for the respondent :—■ The words in section 83 (/) “ or its cover” plainly mean “ upon it.” The subsection includes a letter by virtue of the definition of “ postal packet.” [Stout, O.J. —Must not “ having thereon ” mean something distinct from the letter itself?] No. [Stout, C J. —It must mean something different from “ therein.”] Words on any page of a letter —that is to say, in a letter and being a part of it—are “words written on a postal packet.” In common parlance one would use the phrase “ the words appear on (e.g.) the first page ” in referring to words that were a part of the letter. The policy of the Act is to prevent the Post Office from being made the innocent vehicle of disseminating libels, or, as in subsection (/), anything indecent, &c. To show that this subsection is not confined to the effect on the Post Office officials it should be noted that in Russell on Crimes (7th ed. Vol. li, p. 1878) the corresponding seotion in the English Act —section 63 is included in the chapter on “ Obscene Libels.” [Stout, O.J.—Do you know of any case like this ?] No ; but the subsection has been used before in the Magistrate’s Court, though there was no appeal against the con-' viction. If the subsection be inapplicable there is no remedy except possibly a prosecution for criminal libel, and there may be many cases where grossly offensive letters could be written without being criminally libellous. The Court will adopt an interpretation which will afford the protection sought, and it may have to make the law : Halsbury’s Laws of England (Vol. xxvii, p. 177, par. 339), citing Reg, v. Vine (L.R. 10 Q.B. 195, at p. 199). See also In re Barber (75 Fed. Rep. 980), cited in American and English Encyclopaedia of Law (2nd ed. Vol. xxii, p. 1075), as to liberality of construction. [Counsel also cited Lomax v. Wilson (19 V. L.R. 404), upon the branch of the argument which is not reported.] If the words of our subsection ( f) are wide enough to cover “upon any part of a postal packet” the conviction should stand. If the power to detain and open were exercised under section 30 it would be impossible to say that seotion 83 could not be invoked, for the latter section is very general, and renders all persons liable, whatever the rights of the Postmaster. The case is bare of authority and must proceed upon general principles, having regard to the nature of the offence and the object of the Act. The words “ or on its cover ” put our construction beyond question, because if “ thereon ” was always to apply to the outside of the postal packet those words would not be necessary. Jellicoe, in reply :

In Lomax v. Wilson (19 V. L.R. 404) the section was something like our section 83 (c), but not like 83 (/), ancl it makes my case because it shows that if it is desired to strike at the contents of a letter the statute expressly says so. Reg. v. Vine (L.R. 10 Q.B. 195) dealt only with the retrospective effect of legislation, and is discussed in Maxwell on Statutes (sth ed. 362). Cur. adv. vult. Stout, C.J. : [After stating the grounds of appeal and disposing of the first one His Honour proceeded.] The second ground turns on the true meaning of subsection (/). The words of the subsection are, “ Every person who posts any postal packet having thereon or on its cover any words, marks, design, or representation of an indecent, obscene, or grossly offence character is liable, &c. This is not the only paragraph dealing with the posting of improper packets. Section 83, subsection (c), makes it an offence to post any packet containing any filthy or noxious substance, &c. Subsection (e) makes it an offence to post (i) any sharp instrument not properly covered, or (ii) any animal or thing which is noxious or likely to injure other postal packets, or (iii) any indecent or obscene print, painting, photograph, engraving, book, card, article, or representation of any kind. Subsection (/) follows this last aubsection (e), and must be meant to make provision for something different fcom that which is already provided for in subsection (e). Now, subsection ( e ), paragraph (iii), is dealing with the contents of a postal packet, and makes it an offence to post a postal paoket containing any indecent or obscene print, &c. Strange to say, the word “ writing ” does not appear in this paragraph (iii), but ic rpay be held that the word “ article ”

will include writing. If, then, this paragraph is dealing with the contents of a postal packet, can it be said that subsection (/) is also dealing with the contents of & postal packet ? Was it necessary to have repeated in subsection (/) the enactment which had already been made, or must subsection (/) be interpreted as dealing with another class of offence ? In my opinion the words “ having thereon ” cannot be read as “ having therein,” because, as I have said, the provisions of subsection ( e) all deal with that question, and therefore subsection (/') was meant to make it an offence to put on the outside of a postal packet or on its cover any words, marks, design, or representation of an indecent, obscene, or grossly offensive character. This view is strengthened by many considerations. First, section 30, subsections 1 and 2, deal with the contents of postal packets, and provides as follows : “ 1. Where the Postmaster-General or any Postmaster has reason to suspect that any postal packet (other than a letter or letter-card) addressed to any person (either by his own or any fictitious name or assumed name), or to any address without a name, posted in New Zealand or elsewhere, contains or is supposed to contain any printed or written matter of any kind, or any enclosure of any kind—- “ (a.) Which is of a libellous, blasphemous, indecent, or immoral nature, or likely to have an indecent or immoral effect; or “ (b.) In advertisement of any lottery or scheme of

chance—- “ he may cause such postal packet to be detained and opened, and if it is found to contain any such matter or enclosure he shall cause the postal packet and the contents thereof to be destroyed. “ 2. If any Postmaster has any doubt as to whether the provisions of this section should be enforced in any particular case he shall refer the matter to the Postmaster-General, whose decision shall be final.” It will be seen from this section that the contents of a letter cannot be inquired into by the Postmaster-General; he has no power to detain or open a letter —he can only open a postal packet other than a letter or letter-card. It looks, therefore, as if, so far as letters are concerned, his power is limited. It will be seen that section 30 deals entirely with the contents of a postal packet, and is different, therefore, from section 83, subsection (/), which deals with something that can be seen on the postal packet or its cover. In this case there is no allegation that what appeared in the letter was indecent or obscene. The only charge is that it was “ grossly offensive,” and the words said to be grossly offensive are part of a letter. They are not something put on the letter different from the letter itself. In my opinion, therefore, they do not come within the words of subsection (/). A reference to the English law on the subject may also be interesting. In the English Post Office Act, 1908, there is provision for dealing with this class of case. Section 63 of the Post Office Act, 1908 (Imperial statute, 8 Edw. VII, c. 48), is somewhat analogous to our section 83. It provides for, first, a person sending or attempting to send a postal packet which encloses an explosive substance, a dangerous substance, any filthy, noxious, or deleterious substance, any sharp instrument not properly protected, any living creature which is either noxious or likely to injure any other postal packets, or any article or thing whatsoever which is likely to injure any other postal packets in the course of conveyance or an officer of the Post Office. Then follows a provision similar to our subsection (e), paragraph (iii). It says, “ (b) Or encloses any indecent or obscene print, painting, photograph, lithograph, engraving, book, or card, or any indecent or obscene article whether similar to the above or not,” and then it proceeds, “ (c) or has on the packet or on the cover thereof any words, marks, or designs of an indecent, obscene, or grossly offensive character.” There can, I think, be no doubt that if the charge which is laid in this case had been laid under section 63 of the English Act it would have been invalid. The words are “ has on the packet.” Those words are clear, and I am of opinion that our words “ having thereon ” must mean the same thing—namely, “ having on the paoket” especially as, as I have said, there is provision made in our statute, just as there is in the English statute, for punishing those who send certain things through the Post Office enclosed in a packet which are indecent, &c. It was admitted by counsel who argued the case that they could find no case in England in which the offence charged in this case has been substantiated, and the American law seems to be the same as ours in only punishing for offensise marks on the outside of the packet: See American and English Encyclopedia of Law (2nd ed. Vol. xxii, p. 1075). The only authority which has been cited which I think does raise a question fur consideration is the case of Lomax v. Wilson (19 V. L.R. 404), but that was a case under a statutory provision similar to our paragraph (iii) of subsection (e). The Victorian statute provided—“lf any person knowingly puts into any post-office in Victoria any letter, packet, parcel, or newspaper bearing any indecent, obscene, profane, or libellous address, signature marks, words, or designs, or containing any indecent or obscene print, photograph, lithograph, writing, engraving, book, or card, or other indecent or obscene article, he shall be liable to a penalty of not less than five nor exceeding fifty pounds,”

It was a letter in that case which contained indecent writing, and it was held that it was within the section, just as it would, I suppose, have been under our law if the word “ article ” included “ writing.” It is strange that the word “ writing ” should have been omitted from our statute, but that case is not an authority for the contentions submitted by the respondent in this case. It may be that we ought to have had in our statute the word “ writing,” but, strange to say, it does not appear in the English Act from which apparently our Act has been copied ; but it may be that our statute is sufficient to punish those who post a postal packet containing indecent writing. However, that is not the point raised in this appeal. I may add that this is a statute creating an offence that the Court is called upon to interpret, and the principle which should be applied in interpreting provisions defining criminal acts is clear —namely, that if the words are ambiguous then they are not sufficient. They must be clear. If the words are clear then the Court must act: See Maxwell on Statures (4th ed. 395). In this case it cannot be said that the words are clear. In fact, I think they clearly show that subsection (/) was not intended to deal with the contents of a postal packet. I am therefore of opinion that the appeal must be allowed. It is not usual to grant costs against an informant if the informant is a police officer acting in pursuance of his duty. That, however, is not this case. This is practically a private prosecution by a police officer who had charges improperly made against him, and he has laid the information in his own defence, and therefore the usual rule as to costs must apply. One half the argument, however, was on a question in whioh the appellant fai ed, and I shall therefore allow only £4 4s. costs.

Appeal allowed. Solicitor for the appellant: E. G. Jellicoe (Wellington). Solicitors for the respondent : Gray & Jackson (Wei lington).