SUPREME COURT.

Auckland Star, Volume XX, Issue 7, 9 January 1889, Page 5

SUPREME COURT.

IN BANCO,

(Before His Honor Mr Justice Gillies.) Edward Timms Cartwright (appellant) and A. H. Grainger and Others (respondents).—Motion for argument of special case.--Mr E. W. Burton appeared for tho appellant and Mr Theo. Cooper for the respondents.—This case was an appeal from a judgment by Mr Seth Smith, R. M., in a case in which theapcellant claimed to recover-the sum ot £9 17s, including £1 3.5s paid by the appellant tv the respondents, and which the respondents refused to return. The facts of the case aro pretty well known. The apolianb, Ceirtwri_hfc, exhibited ab the show ol the respondents held ab the Drill - shed, and was awarded certain prizes and certificates. These were nob handed over on application, and were still withheld, on the ground that the birds exhibited by Cartwright were not hisbonafde property. The £1 1 03 was fees paid by Cartwright for an extension of bime allowed by some members of the Committee bo enable him fco enter his birds. Mr

Smith, R.M., had upheld the action of the Committee in withholding the prises, and the decision was norw appealed a. ainst. Mr Burton argued that there was no evidence of any competitor having appealed from the decision of the judges of tho show 0:1 the ground of fraudulent practices, and that without such an appeal the judgment of the R.M. was premature. He maintained that ib was only in such a case that tho prizes and entrance feces should be forfeited. Ho a:so pointed oufc that the Committee in their resolution to withhold the prizes, did not state that Mr Cartwright "had 'been guilty of fraudulent practices, or that the birds were nob his bona fide property. Mr Burton proceeded to argue thafc the bird obtained by Mr Cartwright- from Christchurch was practically his property by purchase, bub was interrupted by His Honor, who said Mr Burton could nofc get over the fact that the bird never was Cart-

wright's property. Ifc was equally a fraud, whether the bird won a prize or not, to enter a bird which was not his property. His Honor said he did not sec anything in the case. The only question on his mind was whether the Resident Magistrate

should not. have given judgment for the defendant instead of a nonsuit.—Mr Cooper pointed out thafc fche defence was not calied ou to give evidence, and argued thafc the magistrate was technically right in nonsuiting the plaintiff. He quoted authorities in support of this contention.—His Honor said that the case otherwise seemed perfectly clear. The plaintiff exhibited one bird which was nothisownp.operfcv_.and the Committee were entitled to exorcise their powers to pay over any prizes the plaintiff might have won by other exhibits. The decision of the magistrate was therefore perfectly righb.—Mr Cooper applied for costs, and they were fixed ab £10. Isaac James Burgess v. Ripley William Moody and Othhrs. —Motion for issue of mandamus, etc.—Mr J. P. Campbell appeared for the plain tdi' in support of the motion, and Mr Theo. Coo; or for the Devonport Steam Ferry Company, ono of the defendants. —Tho statement of claim .set out; tliat Isaac James Burgess was Chief Harbour Master for tho port cf Auckland and authorised co prosecute for breaches of their by-laws : that an action for breach of fche bylaws wa- brought against the Devonport Steam Ferry Company before It. W. Moody and John Hawson, Justices of the Peace ; that tho Devonport Ferry Company were represented by counsel, who contended that the Justices had no jurisdiction to deal with the case ; that tlie matter was argued, and thafc fche Justices refused to hear the matter of tho said information

and to adjudic_te thereon. The plaintiff therefore claimed to have a writ of

mandamus issued on the said justices to hear and determine upon the said informations. —Mr Campbell stated that an affidavit had also been filed by Isaac James Burgess, and it followed the statement of claim in most particulars. The defence set up stated

thafc the said informations were read oeiore the said Justices, thab counsel for the defendant company objected thafc the information disclosed no offeuce punishable by the said justices, and thab tho magistrates uoheld the objection, and dismissed the information. Mr Campbell stated that the justices had tiled no defence--Mr Cooper stated that tho justices had made an affidavit which he would now put in with permission of His Honor, the document having been late owing to the absence from town of one of the justices—Mr Campbell offered no objection and the affidavits wore admitted. —His Honor said that the justices set oub thafc they had heard and determined the case. If the Justices haa heard and had erroneously determined, the plaintiff could net got a mandamus, bub ii they had declined to hear the esse altogether that was another thing.—Mr Campbell said he would submit that the justices had declined to hear and determine. This point wa.s now argued by counsel afc length. — His Honor held thab the justices had determined a point of law, and the remedy was therefore by way of appeal and not by mandamus. He therefore refused the writ of mandamus and ordered the plaintiii to pay the defendant 7 guineas costs and costs oufc of pocket. Mount Wellington Road Board v. John Vark, motion for argument cf special case.—-Mr Theo. Cooper appeared for the application and asked that ifc be adjourned until fche next banco sittings by commit. Colonial Bank v. Richardson.— This was a motion on leave reserved to set aside a certain decision. By consent ifc was adjourned until the next banco day. Gamble v. Mcßrid_.— This was a case of appeal from the R.M. Court in a case brought against Mcßride under the "Employment of Females and Others Act" 1881. By consent this was adjourned until the next Banco day.