A WRIT OF MANDAMUS.

Auckland Star, Volume XLI, Issue 4, 5 January 1910, Page 5

A WRIT OF MANDAMUS.

AND A MAGISTRATE'S RISK.

Judgment has been given by his Honor, Mr. Justice Edwards, in the case William Franz Boese v. Mr. R. S. Florance, S.M., and Duncan Owens, in a motion for a writ of mandamus to the defendant, R S. Florance, to hear and determine an action brought before him in his ordinary jurisdiction under the Magistrate's Court Act, 1908, by the plaintiff against the defendant Duncan Owens to recover £7 17/6 for the cost of the erection of a fence. The Magistrate dismissed the action on the objection that the proceedings should have been brought by complainant under "The Justices of the Peace Act, 1908," and not as a civil action, and that he had no jurisdiction under the Magistrate's Court Act to deal with the matter. Commenting on the fact that the Magistrate refused to hear the case on the ground of non-jurisdiction, his Honor quoted authority to show that the <*ase ought to have been heard. If, upon such hearing, it had been established that there was some preliminary matter which ought to have been decided under the 36th section of the Fencing Act, 1908, the plaintiff would fail upon that ground, but it was the duty of the Magistrate to hear the case and decide the question. The judgment of the Court of Appeal in the case Finlay v. Bishop, 17, N.Z.L.R. (C.A.), 184, is an express decision that in such circumstances the Magistrate should do so. The Magistrate, who disregarded the judgment of the Court of Appeal, or of the Supreme Court, ran a serious risk of having to pay personally the costs of the proceeding necessary to put him right. The writ of mandamus would have to go, as prayed, and the defendant Owens must pay the plaintiff's costs of the proceedings, £10 10/-, and disbursements. Messrs. Reed and Miller appeared for the plaintiff, and Messrs. Owens, Killen, and Wilson for the defendant.