LAW REPORTS.

Dominion, Volume 1, Issue 186, 1 May 1908, Page 4

LAW REPORTS.

COURT OF APPEAL.

\PURCHASE OF AN HOTEL. CLAIM FOR SPECIFIC PERFORMAXCE. JUDGMENT, RESERVED. , Tho sittings of the Court of Appeal were resumed yesterday morning, when further argument was heard in' respect of the case between Margaret Quill (plaintiff) and Archibald Hall (defendant), which : bad been re-moved-from the Supremo Court by Mr. Justica Cooper. ; \ - "Mr.- Skerrett, K.C. (with him Mr. Ostler) appeared on behalf of the plaintiff, and Mr; Chapman, K.C. (with him Mr. Atkinson) for tho defendant; 1 ' ! Tho case/ as stated by agreement .of. tho parties was,' briefly,.' as ,follows Plaintiff, upon tho death of hcr v husband' Benin Quill; became licensee in her own nanio, of' the Railway. Hotel, Otaki. . On January 30. 1903, through an agent, plaintiff entered into an agreement with defendant for. the salo of the premises, as a. going concern for •£ i 0.000... The terms of the salo were Deposit, £500; payment on March 2, 1908, £4800; ■ balanco on mortgage for threo'yeai-s: ; On February 29, ; 1908,. defendant, through his '.solicitor,' raised the ' point thdt the contract of sale was'not authorised by tile, will, the plaintiff, it being alleged, !not having power 10• take, such a mortgage as that,provided for. Upon the same date, defendant also asked plaintiff to rescind tho. contract, .urging that tho Magistrate r had attached. conditions to tho grant of the' license which, defendant was unablo or unwilling to perform, -and wrote requesting that. plaintiff _would extend "tho agreement , v so. that', the .completion would, be postponed until, . the. licensing meeting in June. .Plaintiff agreed to postpone completion until March 6. ~ ' . ; '-■■■{.. . : Argument as to. whether-plaintiff ! was. entitlcd to enter! into, an agreement' which/provided for a mortgage in respect of -pa.rt of the purchase moneys was concluded. , , _ The .'Court intimated, tbat it would take' time, to ."consider, its ; judgment..; ,■ .... ■;, ■. ,AN EXHIBITION CASE. , CLAIM AGAINST ; THE >. CROWN ; ' The case between George Scott, ■ of. Christchurch, confectioner (claimant), • arid His Majesty, tho King .(respondent) was; then' taken. ,v.\. ■ ... . 1 Mr. Skerrett,- K.C.: (with him Mr.. T. G. Russell, of' Chnstchureta, and Mr. P. Leri), appeared- •. for tho claimant, and Jlr.-., Harper,.'of Christchurch (with him Mr. J.'A. Cassidy, of Christchurch),' for,, the King.,'' -. - ! V STATEMEiNT OF CLAIM. /.V,!' • !;The. action,--was,.(it- will. remembered,. commenced in the. Supreme'.Court -at- .Welling- 1 toil, before Mr. Justice Button arid a jury on li'riday, December 18, 1907, and continued oir tho following .'Saturday-.'audi Monday.!-It was. set forth in the statement-of. claim thatclaimant was■ a'fruiterer andconfectioner, carrying on business at' Christehufch under the. stj'lo of;'..",The-Atlas Biscuit! and Confectionery, Company," and also ■ under! tho stylo of " Tho- Exhibition' Fruit', and; Confectionery Company." On Juno'; 14, .1906, tho •Exhibition' Commissioners (acting for and on behalf', of. the. King), !in consideration of; tho sum, of; £52 .'lOs., 'grauted. to' .him certain space ;in the .Exhibition' buildings for.'.tho purpose of -exhibiting' therein' ; biscuits'! and confectionery- during the whole period of 'the Exhibition. -'On- DDcember 25 ; tho! Commissioners and Genoral, Manager wrongfully entered unto possession of;tho space, excluded ,tho claimant\therefromi and also wrongfully! .took; possession'of.'the biscuits "and!.confedf' ,tionory-contained thovcxliibitivand have' sinco' retairikl; tlio? , sitm?S s ''Wor -a j " second ?actton olbiiHantf»§aid'oih3^' |: fW'. tho consideratiori mentioned " it v ;was; agreed- ; that ho should have tho sole arid; exclusive' fights and; privileges of; selling!' bonfectioiiery l and fruit;; at;;and ~ durirfg ' tho.'' Exliibition."' 1 In violation of the, agreement the-Commissioners-wrongfully granted ■ similar rights; and- privi- 1 loges tjo others; -And for a third cause of aotion,-;,claimant , said , that ■ ho was . wrorigT,! fully ejccted from tho premises, v excluded from -.the." privileges, granted;, to; him,'. and his goods seized.'! Claimant!- therefore claimed' as. followsOn tho. first xause-of,'action,,-£IOOO, ..'damages,-', arid i a,:further"sum of"'£soo, being the value of tho goods taken • possession of and 'retained; on- tho second' cause, of action, £1000 damages; on-tho third caiiso of action, £1000 damages, .'and a further sum of £1000, being : th'o, value of . the goods taken" possessionof." ' '~' ' '. . DEFENCE TO THE ACTION. As a defence, to the action it was set forth* that if the Ooirimissioriers; granted to the claimant /the. space in. question,V'such grant was hot a' contract entered 1 into 'by or under tlie' lawful' authority- (expressed or implied) of-the Governorvwithin Sub-section 1 ot Section 37 of the! Crown! Suits Act, 1881,'. and no claim or'.demand in respect of the grievances alleged could: be made upon'or against His ' Majesty 'under the said, Act. ' If tho grant, was 1 a''contract within'' the 1 provisions' of tho Act referred to, tho"acts-'of-tho 'Cbmmissionei's; in - granting ■ similar . rights' arid privileges 'to others, : in taking . possession: of aud retaining claimant's 'goods woro wrong-ful-acts ' done and- committed in respect of which thero was; no' cause of'' action. ! Tho agreement 1 was not made in conformity, with the rules'and regulations, and therefore was of no '.binding "force or'effect. ■ Also, -the wrongs' alleged woro not wrongs 'or damages independent of-contract done, or suffered by : or -under;'any 'authority 'mentioned; in Subsection 1 of• Section 37 -of;,tho Crowji Suits Act, in connection-' with any public. work as definwl-in Sub-section 3-theroof. -Under and by. virtue :of. the. New. Zealand -Exhibition Empowering Act; 1 1905, arid ortho rules and regulations niado' thereunder, arid liarticularly of ' Regulation' No." 13, the right of action, (if any) of the petitioner in! respectof thei matters 'mentioned ■ in '.the .petition ■ was against' the Comriiissioners'iand not' properly tho'' subject of a'; ; pet!ition under tho. Crown Suits Act, 1881. • ; NON-SUIT POINTS. At the'close-of tho claimant's caso it;was agreed that the facts, should go to the 'jury for; the purpose of' assessing/ damages contingent upon questions of law' being, argueel and ; determined upon' the motiori ' for' judgment.- The , followuig Viiori-suit 1 . points''.vrero; 'submitted on behalf of : ,tlio Crown. ■ '•,' . (1) That there was no grant or license disclosed; oil the face ;.of; the 'documents or! letters).."' I .' >-; !!',;. " . ! I '. ■ 1 .1 , 1 (2) If there was . any such'grant or license: it had 1 riot been-proved to have,been"entered' into by! tho Commissioiiers aud tho general manager as alleged. : ; " " '. ■ ' ',! , (3) If it were so, proved, was it'a contract! entered into ' under tho! Crown ' Suits Act, 1831, for and on behalf of tho King ? ,' -\ (4) Was there a concluded' contract ; a8 disolosed from the letters and evidence in any; case?- '■ ''V-■' '' - -i ■ (o') The possession by ' claimant under tlio lettors was'an entry only subject to a coneluded contract being arrived: at,- and. the. arrangemonts'mado by bim were preparatory only to' such contract.' / ; . , . ! ' • (6)'lf that were plaintiff's position,' was it not -terminable by reasonable -notice being given to that effect? ' ' ; ' ' . : (7) Tho Commissioners had no. right' to grant exclusive rights to anyono to sell the articles mentioned under the by-laws authorised; " " " ' :VERDICT OF THE JURY. . The jury awarded plaintiff £500 damages' in respect of tlio alleged wrongful revocation of a .license to hold a display stall, ami £1000 in rospect of tho alleged wrongful-re-Vocation of a license to hold a sales.stall.- . DELAY IN PRINTING THE CASE. , Mr! Justico- Williams, on behalf of tho Court, pointed out that, although tin)/case was romovotl into tlio Court- oil March 26,; printed copies, of tho ease had. not bw;n received by members' of the Court until that morning. Continuing, His Honour said: "Wo. ought to have been furnished with oopios of tho'caso some time ago; It seems to nio that there has been some slackness which is quito inexcusable'..' Hero wo have a case not tho size of a family Bible, it is true, but the size of a fairly large Prayer-Book. The

I members of tHb Court "had not had an opportunity to look into the ca6o beforehand, • which . .was -a,great - disadvantage. They .;-i ought always to be furnished with, copies of - f a case a suflicient.time'prior to tho hearing :{ to enable them to obtain somo notion of tho matters which were to bo brought before ; then).". ' . | Mr. Skerrett' expressed regret that Their \ Honours had had occasion to niake -'com-: -1 plaint. He explained that the Crown had • undertaken to, .print, tlio ■ ease, and that it had sent tho work to the Goveruirierit Print-'.; •liigf Office. Tho urgency of tho matter liad been impressed oiltho' authorities ; at 'that'"V : ! office!by- his.'firm;.... As;a'matter of fact, ouo < of his clerks had lived on the .door-. step of the printing office, during the past ' :,.. ! , week..' He- (tho clerk) /-.was thero again at.'-. 5 o'clock that morning. The circumstances'' were; he submitted',_ quito exceptional.-\) : x .< * Mr. Justice/Williams said that counsel's ■ explanation! 110 doubt accounted for the cir-' ; cumstance, but, at.' any. rate, it ought ..not'.'; ', to have happened. ■ •• 1 COUNSEL'S ADDRESSES. , ' • Mr. Skerrett,' in moving ■ that • judgment*, bo V- . entered. -'up-/for ■ the, claimant,- discussed the" ■ ; points that-had'.been;raised. • Thero was,,'.ho' " said, no motion, for.'a neiv trial or-allegation. . of . . mjsdirectibii or ' iiou-direction'; . tho' solo question was whether• plaintiff - was - entitled ' ' to' judgment.' 'The ; facts were extremely simple, and v lay; within. • a • small compass. Damages -wero.i awarded ,by .tho jury. on. the ' assumption thqt,! tlio contract; was.. a .valid one, which they found to liave' been -broken. Counsol referred to,'tho statutory and other steps taken"in connection with the promo-' tion and control of tho .Exhibition. '■ Ho submitted that the Commissioners were person- . ■ally-and individually:--appointed on behalf of tho Crown to conduct and'carry on- the Exhibition}:' but wero not' incorporated under the Statute,; also that' tho* regulations made ■ wero directory, mandates •to tho Commis- • sioners as to'the'methods in which tho several departments of the ,Exhibition wore' • to.; be managed. ." Mr.! Skerrett, in l the;course of his remarks, detailed the ipowers invested' ' in Mr. G.' S. Muriro. ■- '• Mr. Justice !Edwards: " Who was'-Mr. Mnnro? v >'• •; ',: 1 "!:'; ; - i; '- :i ' Tho question'occasioned considerable'merri-' ment, in which ' the other members of the Court also joined. ; ' Mr. Skerfjett replied .. that at • first' -Mr. ■ Munro' was chairman oftlio Commissioners, and subsequently - general manager of the; Exhibition. '' ■>'■. : Mr. Justico-Edwards: Oh, • I didn't know, >. Mr. Skerrett-: 'It was difficult -to know ! ! what ho wasl • • .-; ;; - '•■";;!■ ;Mr. Harper : During'"tho hearing"-'in-''tho I '' Supremo Court Mr.V-'Skefrett-referred to ; .tim; : ■ *, as "the King of 'tho Exhibition;''" ' Mr. Justice Deiniiston (amidst laughter): ' I remember heaHng hinVcalled---vTh'e'Cza'r of -' : '!;", All;tho Russias." jvi':i.;i !< ■ .' Continuing, Mr. Skerrott.l again, l remarked that"originally- Mr. Munro'.was a Commis- ' • sioner—— ''■■■- v"•'I! ! i; '': - i Mr;' Justice Chapman :■ You mean a' West Coaster I v (Further laughter.) : • / Mr. Harper, in reply, held that tho con- '; tract,-was tnado by the Commissioners and hot by the-Crown.- If tho Crown could be ' • sued, then what was done was done by Mr.- .' -Munrb, not as a. servant of tho Crown, but OH -his - own account, ' aud in such a way as not . toV-make;'the , ;.Crown!tresponsible!.uridcri T any,V?~'; - .circumstances. ; If.:the.!Crown could.be'-mad'a'-P! responsible.for! hii.wrongful-.act,< theu-it;wasi; .' : ' not- a''wrong', done .in connection with ! R* "''"v.' public work, and, further,- was independent;! of contract. . -/j-. n!'-'"'" ■ stage, the - Court, adjourned '.until"' > - .10.30 ; . this morning. •. . ~j;'■•' ■. i-

MAGISTRATE'S COURT.

POLICE GASES. (Before . Dr. M'Arthur, 5.M.,. onThursday.)'- '•' ':• \ ( : f ....i ;• . Two firsfcioffendersvwore convicfeduand' diß*w> ■oharcedj and -tu o .'iWoro 7 esch 'fined 5?; . in"' ? ' : default■ ■ 24: hours' l .: imprisonment. • ■ On'; a•' • :■'. similar, charge,-. John iPaxton- was': fined- 205.;- - ~ illr default//-seven' days' imprisonment.' -o. -» qusod ? explained .that;:he., had V be'on -;'takiiifrmorphia, . and he did > not know vif ' that liad anything to do with it. ... :■:. ■.»..•■ . •- _ v. • *.• miscellaneous. ;: John-Smith was fined 205.,~m default seven ' days':imprisonment) for being guilty of disorderly conduct while drunk. , j -Edward. Phillips, a 1 steward on 1 the warship • Pegasus/ for - using,. 'obscene . ' language , in Ghuznee - Street ;on Wednesday night,- and Henry Brachor, a sailor, also on the Pegasus, ■ for..striking apolicemani. to the naval -authorities;* to ;bo dealt with. • ' A claim for. £153 6s.y brought- by, P.vF. • Brosnahan aaamst: H. §avage;';wasi sot. down'. for-lioanng, but*on .the. renuost-of plaintiff's ; . ■ solicitor the case was.: adjourned-, until: the ' following mormns:i -Mr.* • Kirkcaldie. -ap- . . t . pearcd for plaintiff and '31r. von Haast ior defendant.'-vX-.i;v\.

CIVIL BUSINESS,

UNDEFENDED CASES. Judgment '.was-entered-for the plaintiff by default, in. oacli of the following undefended casos:—H. Prico and Co.,- Ltd.;' v.- Edward „ A.'Moon,'£3 17s. Bd., costs 10s.; 'Ryan Bros. " I v: Emily.Tolley, £2 155., -ori return of goods, costs lis. ; the same v. Georgo Herbert Mor-gan,--£6 155., costs; £1 ss. 6d.; Commercial • and Marlborough : -Brewery and 1 Aerated-Water Co., Ltd.j.'vi William Fletcher, " £4, costs 155.; Andrew-'Avison'; and Harry -■ Walter Willaus r; Captain A. E. Morrison, £23'Os. £2; Richard Brown and • Son v.-'.James Wattj ;£7 45., costs £1 55.: Gd.; - Jamos Smith and Sons r. Charles Atkinson, £3, costs' 55.; tho saino v: Edward. Sigglekow, • : .£5 10s;, costs .-B's.; the same v. William Henry ' Ledbrook,: £2- os.':- 4d.,' costs : os. ; -Kirkcaldio" •• and Stains,v Ltd.i' v.: James; Simeon; £1: Is., ' . - ■' costs ' is; Commercial) Agency and Bmg, Harris anmCo.Y Ltd.,'v.' Walter It. Ardorn, £11 195.;.10d.i costs'£l'los. 6d.;Wellington Gas.'Co., Ltd., v, James Gleeson, 1 - £2' Bs., - costs- 10s. ; Veitcli " and Allan v.' .Edward - - Cloakc, £2 35.. Bd.; costs 10si; Johnston and Co., Ltd., v. John Jones, £11 4s.;lid.-,'costs £1 10s.: 6d. ; Commercial Agoney and Castle ■■■ Tea Co., Ltd., v. - William . H. Moore, £171 -. ICs. Bd., costs £7;155. 6d:; Dominioni-Mer-"cantilo A policy, Thomas - Wardell, and ; Fred R.i Raj Tier v. James'W. .Procter, £4 18s., ■> . ; costs'los.; the same v. Charles Qmnn,' £3.55.y :• costs 10s.; the same- v. ; George Poacock,' £4 12s.,.costs: 10s.; thei.same v. William.Mollison;: £3 Gs. 6d.; costs 17s. ;• the same v. John * • Morgan, £3 3s.- 8d.,. costs 10s.; tho same p. - Thomas Hillj £3 75.,-costs £1 Is.; .the same ';J : v. Edward Gascoigne, £4 25., costs 10s. ;• the "-v 1 samo v. Charles T. Easton, £4 155.\6d.-, costs • ;- 10s; J. lucr and; Co. v. Frederick "Green; •• > £-i rlla., costs'-10s.;. Charlos -Colesi v.- Wil-" -s ham- Jaimeson,- £7- 17s. 6d.; - costs £13si .6d.. '' ■ . JUDGMENT SUMMONSES, i- In the judgment summons ease- of-Herbert-•• a.. Fmch'.v. J. W.'Garner, a debt of £20 6s. 6d., the debtor was ordered to nay the amount - on v or:before May -14, in default ono month's imprisonment. - '• . . .• ■' ..! John . James -O'Brien : was ordered to- pay £4 12s. to Richardson ■ Bros.j. on- or boforo ' ' May 14, m default seven days' imprisonment.: CLAIM AND COUNTER-CLAIM. (Before Sir. W. G. Riddoll, S.M.)' W. Harcomb and ■ Sods proceeded against ■ Joseph Ingle to recover. £21 19s. _ lOd. for. - iish supplied. Tliore was also acoujitcr-claim of £38.05. 7d. for expenses in eoniiection with the freezing of.rabbits./•' Mr. Hindmarsh appeared* for plaintiff, and 'Mr. Fitzgibhon for defendant. His Worship, after hearing the ovidonco,said tliat tliero wag a partnership Jn regard 1.0 the counter-claim; _batw<?Qn plaintiff, do-, fqndailt, and J. Milesi, : rilid it' could hot . bo sustained, and .'.plaintiff-.''would' po iibn-siiited, .ij Costs; amounting' to £2 145.,' wero allowed. Oil'the claini, the dispute was whether thoagreementwas! to pay 4d. : .0r 4}d. por. pound"., for flat fish'. .Plaintiff fai!dd;'-to';'showv.that ! n 1 4Jd- was tho price agreed upoiij but howduld ' bo entitled to judgment lor . tho reduced • 1 amount, £20 7s. sJd,i with costs'£3l2s. '