LAW REPORTS.

Dominion, Volume 1, Issue 256, 22 July 1908, Page 9

LAW REPORTS.

FULL COURT. CLAIM FOR COMPENSATION. HAWERA ELECTRIC CO. v. CORPORATION OF ELTHAM. , CONSIDERATION OF LEGAL QUESTIONS. At a sitting of tho Full Court.yesterday, when His Honour the Chief Justice (Sir Robert Stout) and Their Honours Justices Williams, Cooper, and Chapman wero present, argument was heard relative to tho special caso of tho Hawera County Electric Company, Ltd. (claimants) v. the Borough of Eltham (respondents). > Sir. C. P. Skorrctt, K.C.,. with him Mr. H. H. Ostler (instructed by Mr, R. G. Sellar as representing Mr. H. Halliwell, of Hawera) appeared- for tho Hawera County Electric Company, Ltd., and Dr. J. G. Findlay, K.C. (Attorney-General), with him Mr. 'T. F: Martin, appeared for tho Eltham Borough Council. This was a special case stated by consent of the parties for the opinion of the Court. Briefly, tho facts were as follow: —The claimant Company was incorporated in July, 1902, for tho purposo of engendering and supplying electric energy for use in tlio borough of Hawera and surrounding districts, and in tho saino year obtained from Parliament tho Hawera County Electric Light Act giving it power to supply electrical energy within a specified area, and to construct the necessary works on tho Waingongoro stream. The Act gave tho Company, power to construct dams and to divert tho water of tho stream in order to obtain water power, provided that tho water was returned to its course after being used. The powers given to the Company were, by Section 8 of their Act, expressed to bo without prejudice to tho Municipal Corporations Act, 1900, or a'uy amendments thereof. Tho Company, acting undor the powers conferred .oil it, acquired a pieco of land bounded on two sides by tho stream, and intersected by tho main road from Ha-/ wera to Normanby. Oil this land they constructed a dani in September, 1904, and led water from -it by a tunnel underneath tho Normanby Road. Tliey "obtained tho consent of tho Hawera County Council, in whom tho road was vested, to construct and use tho tunnel. In the same year tlio Eltham Borough Council (tlio respondents)/ under the powers contained in the Municipal Corporations Act, 1900, erected a reservoir and waterworks for the borough higher up tho Waingongoro .stream, drawing water to supply its works from the stream. Tho Company claimcd that tho erection of these waterworks would so diminish tlio flow'of water as to leavo insufficient water in ■ the stream • for • their purposo, and they made a claim for compensation against ,tho borough for tho loss of water .under the Public Works Act,. 1894. A Compensation Court was constituted undor that Act to, hear _ tho claim fr. Justice Edwards, president of the Court, fixed July 26, 1906, as tho date, and Now Plymouth as tho t place of tlio hearing. Three days before that clato His Honour telegraphed to tho Clerk of tho Court at New Plymouth to adjourn tlio caso until September 25, and to notify tho assessors, and that was done. Neither His Honour nor either of the assessors appeared at New Plymouth on July 26. Mr. Justico Edwards was not present at Now Plymouth on September 25, but Mi - . Justico Cooper presided in his placo at tho Circuit Sittings of tho Supremo Court. When tho caso was called on Mr. Justico Cooper adjourned it until September 29, and when that day arrived ho and ;ono of the assessors sat and further adjourned tho caso until September 26. Counsel for tho Eltliam Borough raised tlio question that tho claim had lapscd-'owing to the fact that Mr. Justico Edwards had no jurisdiction to adjourn tho hearing without tho assessors, and that Mr. Justico Cooper had no jurisdiction to sit as president of tho Court, as ho was not tho judgo of that judicial district. On November 19, Mr. Justico Cooper was appointed by tho Governor's warrant as President of tiio Court. The case was'adjourned .from timo to time, and was ultimately hoard on February 12. 1907. The Courts was iraablo by. a majority to como to any decision, and tho assessors were discharged. Another Court was constituted to hear the claim, but before tho second hearing the parties agreed to stato a ease on questions of law arising out of the. claim-for thoi opinion , of the Full Court,, and also agreed that the determination of tho questions as stated should bind tho parties. The questions for the opinion of tho Court were:— (1) On the assumption-that tho construction of tho borough water works had injuriously affected tho Company's * rights, wero tlio Company precluded from claiming compensation by reason of tho provision in their Act, that their rights were to be without prejudice to the Municipal Corporations Act, 1900? (2) Had tho Company a legal right to ; construct the tunnel under tho Nor- ■ manbv Road? (3 If not, could tho Borough establish , tho illegality in reduction on tho company's'claim for compensation?. : (4) Had the claim lapsed by reason of . . the adjournment by _ Mr. Justice Ed- . wards—and, ■ that being so, had ■ tho Court jurisdiction to hear tho claim ? By consent of tho parties,, Dr. Findlay opened tho caso. Ho intimated, at tlio commencement of his address, that ho proposed to abandon tho contention that the claim had lapsed, and would rely oil tho grounds which related the question as to whether the claimants had any legal lights upon which to sustain a claim for compensation. Argument had not been concluded when the Court adjourned until 10.30 this moriii«R- . , MAGISTRATE'S COURT. POLICE CASES. (Before Mr. W. G. Riddcll, 3.M.) A CHAEIGE OF THEFT. Two middle-aged men, Eugene Ross and John Harris, wero charged that on or about July 1, at Napier, tliey, did steal from the Tyser Line steamor Tombana', two dozen pendants, six dozen studs, two cases razors, one gilt chain, ono dozen ladies' umbrellas, ton men's umbrellas, two dozen ladies' wrist bags, orio dozen pens, ono fountain pen, threo sots military. brushes, quarter of a gross of barbers' combs, six whalebone hair-brushes, six dozen pocket-knives, one dozen brooches, one gross hat pins, ono dozen "clothes' brushes, one dozon 'hair-brushes, two dozen back-combs, four dozen wrist bags, and six purses of a total value of £25. On tlio application of 'Chief Dotectivo M'Grath defendants were remanded to appear at Napier on Friday. THEFT* OF FURS. ; ' Ada, Lester, alias Lister, alias M'lntosli, ipleaded not guilty to a charge of theft of a jfur necklet value .£2 12s. ,6d., and a fur linuff valuo Bs. lid.,, tlio. property, of George 'and Korslcy. Evidenco 'was given that do;fondant wont into informants' shop on slonday afternoon in company with a Maori, and walked out with the muff and necklet without paying for thorn. When first approached by Detcctivo Bailey sho would givo liim no satisfaction, > but eventually stated that tho Maori had bought tho goods for her. ' Defendant, on oath, deposed that sho was hot going away with tho goods—sho only went out on to the street after tho Maori to let him seo tlio goods. - ! His Worship sentenced accused to six months' imprisonment witli hard labour. WILFUL DAMAGE. ,-iWm. Crocker appeared on remand oil , a charge of wilfully breaking ono pane of glass vahied at 45.. tho property of Kwyong Yconon, fruiterer, Courteiiay Place. Evidence was given for tho prosecution that accused deliberately put bis list through tho window. Crocker admitted having broken tho window, and stated that ho was willing tb mako good the damage ho had done. His Worship entered a conviction, and fino of 10s., in default seven days' imprisonment. Defendant was ordered to pay 4s, for tha lyindow, and costs 16s. 6d.

MARINE DEPARTMENT PROSECUTION. A WARNING TO MASTER MARINERS. Edward Harvey, master of tho steamer Qucon of the South, a homo trade ship, was charged by the 'Marine Department with haying failed to cause his crow to be properly exercised in boat drill once at least during tlio month of May. The same defendant . was further charged with failing to comply with the provisions of Section 202 of tlio Shipping and Seamen Act, 1903, by failing to enter in tlio official log tlio date of any boat drill held during tho uiinth of April. Defondant pleaded guilty to both charges. 'Mr. Myers, who appeared for the prosecution, stated that the information was laid under Scction 202 of the Shipping and Seamen Act, which section was passed for tho protection of those who go. down to the sea in ships, and made it compulsory for boat drill to bo held on homo trado vessels onco in each month. Section -202 was an important one, and was designed for the protection of passengers and crows. In the event of a serious accident happening, one of tho first questions asked at tli3 inquiry- would bo whether the crow had been exercised in boat drill. A short timo ago a shipmaster had been brought before tho Court on n charge similar to the present one. That oft'enco, however, was committed about ths samo timo as tho present one, and consequently defendant could uot bo said to have had a warning from that case. Under tho circumstances,, the Department was not asking for a serious penalty in this case, but they wished it to be known that they! intend to insist upon ,the provisions ,of this and other sections for the protection of the public being carried out to the letter. In future the Department would ask the Court to imposo heavy penalties in cases of the kind under notice. His Worship hold that the section of the Act was clear, and that it was absolutely nccessary for masters of homo trado and other vessels to make themselves acquainted with the provisions of the 'Act and tho penalties which follow a breach of. its pro--visions.. It was necessary, as counsel/had pointed out, that crows should bo exercised in boat drill, but under the circumstance's ■of the present ease, as outlined by Mr. Myers, the samo penalty would bo imposed in this case as in tho case of the shipmaster who was before the Court on a similar charge a few weeks ago. ' Other shipmasters should take note of' tho present proceedings,- and act accordingly. On tho first charge defendant would be convicted and fined 20s. and costs £1 18s. Gd., and on the second information he would bo convicted and ordered to pay costs, £1 18s. 6d. CIVIL BUSINESS. (Before Mr. W. G. Riddell, S.M.) UNDEFENDED CASES. Judgment for plaintiff by default of defendant was entered in the 'following cases:— Gear Meat Preserving Co. of New Zealand jr. M. M'Govern, £3 7s.- 4d., costs 10s.; Edward Collie v. Loftus Grey, £1 lis. 3d., costs 10s.; William Ernest Hughes v. Frederick John Jones, £5 55., costs £1 3s. 6d.; "New Zealand Times" Co., Ltd., v. William Chamberlain,, £9, costs £1 3s. 6d.; Cocks and Co., Ltd., v. Leonard L. Lilburnc, £15 10s., costs £1 10s. Gd.; Peter I-lutson and Co., Ltd., v. John Smith, £7 10s. 4d., costs £1 3s. Cd.j A. T.'Almond v. J. C. M'Donald, £1 10s., costs 65.; Hunt and Co.-v. Charles Benzie, £40 18s. 9d., costs £2 165.; Scott and Co. v. R. E. Howell and Co., .Ltd., £28 16s. 6d.,- costs £2 145.; Eot-hia Tutty v. Frederick Edward, 13s. lid., costs 7s. JUDGMENT SUMMONSES, . .In the judgment summons case Rosie Elphiston Warren v. Henry C. Low, a debt of £1 is., debtor was ordered to pay beforo July 31, in default forty-eight hours'. imprisonment. ■ A CLAIM FOE STORAGE. . The- Colonial Carrying Company (NewZealand (Mr.. Myers), sued the Empire..Loan. Company (Mr. Blair) for £39 45.,. storage al-' leged to be duo on furniture placed in plaintitfs' store on Juno 1, 1906, and allowed, to remain until April 14, .1908,.. the.' weekly chargo being Bs. The, defendant Company held a bill of salo over the furniture in question, but denied any liability for storage expenses. After hearing evidenco at length his Worship reserved his decision, j '. HIRE OF A VEHICLE. ... Lionel Caselberg, merchant (Mr. Meredith); sued Charles Smillio Bailey, carrier. (Mr. Hindmarsh), for delivery of a four-wheolod van. and harness, or in tho alternative its ■value £45. Plaintiff further claimed £26 for hire of tho vehiclo. After a partial hearing, tho caso was adjourned until August 6, the parties in tho meantime to make up full accounts of tho transactions which passed between them. ' AN IMPORTANT PATENT CASE. NEW ZEALAND IRON SAND. ' A decision was given yesterday by tho' Registrar of Patents in a caso of considerable importance to-a number, of New iZealand speculators interested in the treatment of iron sand. At tho original hearing of tlio caso application for a patent was made on behalf of Mr. H. F. Brown, an American authority on the manufacture of iron. Tho application was opposed by Messrs. Moore arid Heskett K of Melbourne, inventors of a process for"smelting Taranaki iron sand for the production of steel, the patent for which they alleged anticipated Brown's intention. After a lengthy hearing on July 1 judgment was reserved.. The . Registrar_ in his judgment said this was an application by Edwin Phillips, of Melbourne, as, nominee of Horaco Fowler Brown, of Chicago, for letters patent for "Method of Treating Ores," and was opposed by M. Moore and T. J. Heskett, of Melbourne. The application was lodged on January 17, 1906, and notico. of opposition was first given by the present opponents oil April 25, 1906. The applicant then sought' leavo to amend his specification, and the amendments wero allowed. Tho opponents applied for permission to amend' their notico of opposition or to lodge a fresh notico. This courso was objected to by the applicant, but was allowed, and a fresh notice duly filed. Tho grounds of tho objection in this notice were:—(l) That tlio alleged invention had been patented in New Zealand under letters patent dated December 15, 1904, and patent dated December 30, 1903, granted to Montaguo Moore and Thos. -Jas. Heskett for an invention entitled respectively "An Improved Process of and Apparatus for troating ferruginous ore for tlio manufacture of iron and steel therefrom," and "Improvements in apparatus for treating ferruginous oro for the manufacture of iron and steel therefrom;" (2) that tho invention is not novel; (3) that the said invention has no utility; and (4) that tho invention lias been described in a book or other printed publication published in Now Zealand beforo tlio date of application, or is otherwise in possession of- tlio . public. Tho applicants raised a preliminary objection that tlier'o was no New Zealand patent numbered as claimed dated December 15, 1904, as stated in the notico, and. that tho ' particulars of objection wero also insufficient in other respects, but it was ruled-, that as.tho number and , title were correctly given, and tho date was tho actual dato of sealing, tho Letters . Patent wero sufficiently identified, and that, having regard to the practico of tho office; tho grounds wero otherwiso sufficiently stated. On the opponents referring, to a. decision of tho Commonwealth High Court of Appeal in respect of an_ application by Phillips for Letters Patent in Australia, the applicant objected to notico being taken of tlioso proceedings, and submitted- that the documents produced, purporting to bo copies of tho Australian decision and specifications, wero not properly verified. Tho Registrar considered that this appeared to be the case, ho was of opinion that tho alleged decision in the matter could not bo regarded as governing tho decision of tlio office. Aftor dealjng at length with tho two claims and comparing tho processes minutely the Registrar remarked that while there appeared to bo distinctions in tlio inventions described, ho was of opinion that the method set out in the claims was wanting in novelty and utility. Ho considered that tlio objections had been sustained, and that tho application must accordingly be refused.