66 66 66 66 he goes to bed and leaves a man in charge who takes no charge?" And in the judgment he says, "The duty imposed by the enactment is to take reasonable care that gaming is not suffered on the premises; and if the licensed · holder employs one who does not do his duty, it is the same "as if he himself did not do the duty. Here the boots' 'did not take reasonable care, and the licensed person must "be found guilty." But in that case the Magistrates had found that the boots" knew that gaming was going on, or had purposely shut his eyes and ears to what was passing in the room. This was, of course, actual connivance on the part of the servant, and the carelessness referred to by the Court lay in appointing an improper servant. It is Lord Coleridge who, later, in 1884, in Somerset v. Hart (1), says that there must be something from which connivance may be inferred. In Somerset v. Wade (2), Mathew, J., certainly says, 'It comes to this: that a licensed person cannot be convicted of "suffering gaming in the absence of knowledge, or connivance, or carelessness on his part." But this is an inference from his immediately preceding summary of Somerset v. Hart(1), which specifically stated that there must be either knowledge, or connivance, or wilful blindness on the part of the licensee or his servants. It is evident that the carelessness there referred to must be carelessness leading to connivance in others, or so great as to be itself evidence of connivance. As Lord Coleridge said in Somerset v. Hart(3), "slight evidence might be sufficient to satisfy the Magistrates that the land"lord might have known what was taking place if he had pleased." 66 66 66 66 If the Magistrate had in this case found that the want of reasonable precautions had amounted to wilful avoidance of precautions, with the intention of facilitating gaming in forbidden hours, such a finding would, in my opinion, have justified a conviction. He has simply found, as a conclusion from the facts stated, that the appellant had failed to take reasonable steps to prevent billiards being played. Failure to take reasonable steps amounts only to negligence or carelessness. If I were to hold that negligence or carelessness which is not in itself evidence of connivance, or has not been the means of giving a person in charge the opportunity to connive at a breach of the law, justifies a conviction for "allowing (1) 12 Q.B.D. 360. (3) 12 Q.B.D. 360, 364, S.C. 1902. BAILEY บ. PRATT. S.C. IN CHAMBERS. 1901. November 15. CONOLLY, J. gaming, I should, in my opinion, be extending the liability beyond the principle established by previous authority. I think, therefore, that the appeal should be allowed. Solicitors for the appellant: Beswick & Harris (Christchurch). Solicitors for the respondent: Stringer & Cresswell (Christchurch). FRASER & SONS V. THE GREENSTONE GOLD- Practice and Procedure-Writ of Summons-Residence and Calling of Defendant-Rule 12, Paragraph 4. A writ of summons was issued against a company in which the company was described as above, no further description being given in the writ of the nature of the company's business, its place of operations, or the situation of its registered office, though the latter was given in paragraph 2 of the statement of claim. Held, That these omissions were fatal, and that the writ must be set aside as invalid. THIS was a summons requiring the plaintiffs to show cause why the writ issued by them against the defendant company should not be set aside on the ground that it did not specify the residence and calling of the defendant company, as required by paragraph 4 of Rule 12 of the Code of Civil Procedure; and also to show further cause why, in the alternative, the alleged service of the writ should not be set aside on the ground that such service had not been duly effected. The writ had been served by being placed under the door of the registered office of the company in Dunedin. C. J. Parr, in support of the summons: The writ does not comply with Rule 12, section 4. It is directed to "The Greenstone Gold-dredging Company (Li"mited)," but no place of residence or calling is stated. The requirements of the rule are imperative. The English rule, Order 2 section 3, is not so specific as ours, yet it has been decided under it that the omission of a company's address and calling is material, and invalidates the writ: The "W. A. "Scholten "(1). In Hay v. Penetana Huka(2), Gillies, J., held, under Rule 12, that the incorrect intituling of the writ (1) 13 P.D. 8. (2) 7 N.Z. L.R. 575. "In the Auckland" instead of "In the Northern " District was an irregularity sufficient to warrant setting aside the writ. 66 M. McGregor, to show cause: S.C. 1901. FRASER & SONS v. GOLDDREDGING COMPANY. The company is described as "The Greenstone Gold-dredg- GREENSTONE ing Company (Limited)," which is the name under which it is incorporated, and is its full designation. Paragraph 4 of Rule 12 does not apply to incorporated companies, as a company cannot be said to have a residence or calling. The only object of the sub-rule is to identify the plaintiff or defendant, when he is an individual. In the case of a company it is fully identified by the name under which it is registered. Section 27 of "The Companies Act, 1882," provides that no company shall be registered under a name identical with, or in any way similar to, the name under which any other company is registered. This case is not similar to Hay v. Penetana Huka(1), as the writ in that case was intituled in a district. which did not exist, and was a nullity. In any event, this would be a proper subject for amendment by the Court if evidence of residence or calling is required, as the defendants have not been prejudiced in any way by the omission. The case of The W. A. Scholten "(2) is clearly distinguishable from this, as it was expressly found in that case that the address had been designedly omitted for the purpose of getting a writ issued, which conduct amounted to fraud. No such suggestion can be made in this case, as the situation of the registered office of the company, and the Act under which it is registered, are set out in paragraph 2 of the statement of claim, and the writ was properly issued out of this district of the Court. I think the objection raised, under Rule 12, as to the omission of the calling and place of residence of the defendant is fatal. There is, moreover, nothing to show that the cause of action did not arise outside this district. The writ must be set aside. As to the other objection, the writ was certainly served in a rather extraordinary manner, but it is unnecessary for me to decide whether the service was sufficient or not. writ is set aside on the first ground, with costs. The Solicitor for the plaintiffs: M. G. McGregor (Auckland). S.C. IN BANCO. INVERCARGILL. 1901. March 6. TURNER v. McCHESNEY. Nuisance-Dangerous Tree. A person who keeps on his land a native tree which is to his knowledge dangerous is liable for any damage done by the fall of the tree. WILLIAMS, J. APPEAL from the Magistrate's Court, Invercargill. The respondent had on his land native bush which included a partially decayed tree which was rendered dangerous by the respondent burning the bush on his land. The tree fell, and damaged a fence belonging to the appellant. The Magistrate gave judgment for the respondent on the ground that at common law no duty was cast on the owner of land with reference to native bush. Macalister for the appellant. WILLIAMS, J.:— The tree, to the knowledge of defendant, was dangerous to life and property. It had been rendered dangerous through the direct act and omission of the defendant, who burnt the bush on his land some years ago. The Magistrate found that the burning of the bush was a natural use of the soil, and I will accept that finding. The defendant had burnt the bush as a preliminary step to clearing the ground. The defendant took the preliminary step, but he did not take the subsequent step necessary to clear the ground, and necessary for the protection of his neighbours. The case is simply this: There was a nuisance on the defendant's land which was caused by the direct act of the defendant in burning the tree, and by the omission of the defendant to clear his land. The case would be somewhat similar to one in which the defendant had cut half through a tree and so rendered it dangerous, and it had blown down and done damage. The defendant had the common-law right to clear the land in the ordinary way. If he had cut down the tree there would have been no danger, but he commenced to clear the land and did not finish it. If he does that and knows the danger, and an accident happens, I am satisfied of his responsibility. Judgment will be entered for the appellant for £1, found by the Magistrate, and £4 4s. costs of this appeal. Solicitors for the appellant: Macalister Bros. (Invercargill). Solicitor for the respondent: W. Y. H. Hall (Invercargill). S.C. 1901. TURNER v. MCCHESNEY. STONE v. STONE AND ANOTHER. Practice--Divorce-Service on Co-respondent Copy Petition-Seal of Court S.C. 1902. The copy petition served on the co-respondent was under the seal of the Registrar, instead of being under the seal of the Court, as required February 25. by Rule 9 under “ The Divorce and Matrimonial Causes Act, 1867 "; and the writ of summons served on the co-respondent required him to appear and answer within fourteen days after service, instead of twenty-one, the time allowed by Rule 23. Held, That the service was bad, and must be set aside. The Court will not take judicial notice of the distance from one another of two points within a judicial district. THIS was a motion to set aside service of the writ of summons and copy petition effected on the co-respondent, Richard Thom, a labourer. Service of the writ and copy petition had been effected at Waihi, which is within the Northern Judicial District. The application to have service set aside was made on two grounds: (a) that the copy petition was under the seal of the Registrar, instead of being, as required, under the seal of the Court; and (b) that the writ of summons required the co-respondent to appear and answer within fourteen days after service, instead of allowing him twenty-one days, as required by the rules. The notice of motion also set out that Waihi was upwards of fifty miles from Auckland, the place from which the writ had been issued, but there was no affidavit verifying this statement. Tunks, in support of the motion: Service should be set aside. The copy petition served on the co-respondent is under the seal of the Registrar, instead of being under the seal of the Court, as required by Rule 9. The objection is, formal, but regularity should be preserved. Where the Registrar, acting in the absence of a Judge, issued VOL. XX.--49. CONOLLY, J. |