LAW REPORTS.

Dominion, Volume 2, Issue 342, 31 October 1908, Page 10

LAW REPORTS.

SUPREME COURT. IN BANCO. SALE OF WAITOTARA . HOTEL. RIVAL CLAIMS FOR COMMISSION. Two claims for commission arising out of tho sale of the Waitotara Hotel were involved in the cases of Macdonald; Wilson and Co. . (appellants). v. George Donald M'Kenzie (respondent) and George Donald M'Kenzie', (appellant) v. Ross and Greenfield, of Masterton (respondents). Mr. Bolton appeared on behalf of Macdonald, Wilson and Co., Mr. Gray for Ross and Greenfield, and Mr. Myers for M'Kenzie. The facts in this case were as follow: —The Waitotara Hotel was purchased from M'Kenzie by Solomon Cohen. Both Macdonald, Wilson and Co. and Ross and Greenfield brought actions for £50 commission against M'Kenzie. Dr. M'Arthur, S.M., nonsuited Macdonald, Wilson and Co., and gave judgment in favour of Ross and Greenfield. Macdonald, Wilson and Co. now appealed on the ground that there was no evidence to support the finding of the magistrate, and M'Kenzie appealed with the object of contending that he was liable to pay only one commission.

Mr. Bolton,, for Macdonald, Wilson and Co., submitted that the magistrate- ! was wrong in law in deciding that his clients were the agents of Cohen, and that they did not introduce him as a purchaser. The magistrate) was', he contended, also wrong m law in holding that Ross and Greenfield were entitled to commission.

His Honour: I would suggest that it might be possible for this action to be amicably settled. ■ Would the firms agreo to divide tho commission ? •• •

Mr. Bolton: Of course I hold that my clients should receive tho whole amount, but I 'would advise them to adopt the course suggested.' I feel sure they would not be unwilling.

His Honour: Both firms have no doubt done' something in the matter. I should think myself that there is only one commission payable. Of course, I don't say that definitely, because I have not gone fully into tho question. If tho parties accept iny. suggestion it would, I think,, be an equitable settlement.

Mr. Gray: My clients, were successful in the Lower Court; I should like an opportunity to take instructions on the point. ' Subsequently it was decided to adjourn the matter for a week,- with a view to a possible settlement.

MASTERTON 'ASSAULT CASE.

QUESTION OF COSTS

Argument was then heard of Mr. Justice Cooper in the case of Nathaniel Miller, sergeant of police, Masterton (appellant) v. James .Joseph Kennedy/farmer, near Masterton (respondent). Mr.' llerdman appeared on behalf of the appellant, and Mr. Gray for the respondent. It'will bo that some-weeks ago Kennedy brought an action in the District Court, Masterton, against Sergeant Miller for £200 damages for assault in removing him from a resorved- seat in the grandstand on the Show Ground, Masterton, on • the occasion of the football match, Britain v. Wairarapa aud Bush Districts. The jury returned a verdict in favour of Kennedy for £5. Judge Haselden gave judgment for Kennedy for £5 and costs. It was now contended on behalf of Sergeant Miller that that portion of the judgment whicli allowed'costs to Kennedy was bad,' inasmuch as a certificate of approbation had not been givpn by the Judge as was required by Section 16 of the Police Force' Act, 1886,.'.; •. His Honour asked if.there was not another appeal:..pending. In reply, Mr.. Hordman 6fa;ted.that,au appeal 'had been''brought"'against; the .'judgment on the ground that ; th6'verdict "was"'against the weight of evidence,. but' it had been dismissed. An intention to appeal against the last-mentioned decision had now been abandoned. Continuing,; Mr., Herdnian sub-' mitted that as no. certificate of approbation . was obtained IConiiedy was not • entitled 'to costs. ' His Honour: Application did not.need to be made at the trial. It is not too. late for ■application to 'be" mado : now. - Mr. Herdman: My submission is that it is 'too. late. "•

Mr. Gray, for Kennedy, contended that the District Judgo had approved of the action by refusing-an application for a .new trial.

His Honour: A judge may be satisfied with a verdict and yet not- approve of the bringing of the action. >■

Mr. Gray nest submitted that a-certificate was not necessary at.- all._ Sergeant Miller was, lie said, not at the time acting in pursuance of-his duty.. . ■

His Honour said that the point raiped by Mr. Gray was one of considerable importance, but lie thought there was authority upon it. As he was asked to lay down a" principle under Section 16 of the Police Forco Act lie would require time to consider the' matter. Assuming that he earner to the conclusion that Section 16 applied—i.e., .that the sergeant was acting in the course of his dutythen he had.no doubt what he ought to do. Ho would ,in that event vary the judgment by discharging the order as to costs, and remit the case to the District Judge, so that the parties might be .heard with respect' to am application for a certificate. The judgment at present was not perfected. In any event, costs in. the Supreme Court ought to bo allowed to appellant.