LAW REPORTS.

Dominion, Volume 3, Issue 770, 19 March 1910, Page 15

LAW REPORTS.

SUPREME COURT: IN BANCO. BALLOT PAPERS. A DECLARATORY JUDGMENT. The first case to come befoio his Honour Mr.' Justico Williams, sitting in Banco yesterday, was ono of considerable interest in connection tfith tile Napier Harbour Board loan poll to be taken next Monday, and it has also a: wider interest inasmuch ns the outcome *as a declaratory Judgment, applying to thoconduct of local elections and polls' throughout the Dominion. Tho Napier Harbour Board . (Mr. . M. Chapihan, K.C.) applied for an order under the Declaratory Judgments Act determining the construction of Section 28 of the-Local Elections, and Polls Act, 1908, in reference to the question of the disposal of voting papers by the deputy returning officers at a poll to bo taken by the board under the provisions of the Napier Harbour Board Loaii Act, 19(19. The plaintiff board was represented by Mr. Martin Chapman, K.C, while the , Solicitor-Gtiicrnl (Mt. J. \V. Salmond) appeared fdr tho Attorney-General as defendant. . , '

The point at issue related to the custody of the ballot papers after the closo of the poll and the possibility or otherwise of any. examination of the papers by ■ tho returning , officer with n view of preventing dual voting. His Honour's judgment was: "That in the true interpretation of Section 28 of the Local Elections and Polls Act,. 1908, it is the duty of. a deputy returning officer, immediately after the closing of the poll, and after he has counted the votes, to seal up all the voting papers used at his. polling booth, together with the marked copy of the roll, before taking or delivering them to' the returning bfficer, and it is the duty of the returning, officer to ascertain ■ the result of the poll from the reports' of the deputies as: to the number of votes Su counted by them, without personal inspection of the con-, tents of the paokets.

; A CONVICTION QUASHED, ; Tho case Nyhan v. Chapman and. others came before the Court on a motion for prohibition in the matter of the conviction of. the plaintiff—Daniel Nyhan, o a Lower Hutt-horse-trainer—by- three. 6 justices of the peace—G. A. Chapman, J. t Cudby, and J. • Wilkins—at. Lower. Hutt, I on ft charge of using obscene language 1 On tho Hutt.Park Bacecourse. Con- c stable Anderson,' who laid the inform a- c tion before the justices, was also a de- o fendant. The. motion called on defend- s ants to show- cause, why they should not be prohibited from proceeding further c in respect of the conviction. Mr; 'D. ,11. c Findlay appeared for plaintiff and Mr. j ll.'Myers for the defence. , t " Mr. Myers .stated that counsel had come t to ah understanding, and he would not oppose the issue of a writ of certiorari r t ctuashihg the convictiou on the gtouiid i that the accused had not been.given the j option, of trial by jury, tho offoiico with t which he was charged being punishable \ by imprisonment for a term- exceeding j .three months, There wore other t points \ which need, not be gone into. ■ •'• ~■•■ •;•' ; . HisHoiioUr ordered the issue of a'Writ i of Certiorari. >■•■' ■ ' ''■'■■■ ' ' • ; ' ;■;".', A'- COAL-MINE: CASE;.. .-.:■. "r_ ... ( • : The-ease-of the Seaford'Coal Company , , and E. G. Piicher 'v." Shaw aud i was a mdtioh'for spedifio performance'of. : agreement, llr. M. Myers , , appeared ■ for : plaintiffs and Mr. D. M. Findlay for the defendant JohriShaw, and Mr. Maginnity for the defendant G. B:.Watson;. The - base had been transferred from Nelson for argument. , '■• . ' : > /According"to the statement of claim the iplaintiff; Richer,;-manager of , - - t ,16 - Vras, prior to the formation of the company', the.owner of the Paka-' wau Colliery, near Seaford, in the Nelson,'district. The colliery, was separated from the seashore by ccrtciiii laids of the defendant Shaw,. over which it was . necessary to lay tram-lines to convey the coal to , the slibro for eiport. The company acquired the colliery property from Pilchor. In September, 1905, Piloher and Shaw entered liitb, an agreement under which Shaw was-to permit Piloher to lay. failways or tramways over, the land and to lease him two acres for/purposes connected with shipment of coal on certain Conditions: which were varied by. & 6'lb-j fcquont , ngreßment of : May, ,1907; The. plaintiffs'had.acquired land on the,shore," : arid erected■'» *harf, .but owing to "Shaw not'performing his part of-the, agreement, they wuro unable to Construct .the' teomway across his land. The. plaintiffs' claimed that defendant bo ordered -to perform, his part of'-the. agreement! and they also claimed damages. •..'■' ... •..'■.-.

■'■ The defendant Shaw admitted having, signed the jksftement of September, 1905,' and he admitted signing a memo. in. May,.' 190", .to the effect .alleged,, but stnted it was not an. agreement, and its terms were never accepted by. Pilcher, who had already refused to Carry out tho' agreement of September, 1905, which had been rescinded by. mutual consent.. The memo, of May, 1907, was a memo, of a proposal for a new contract, and was. subject to certain conditions with which plaintiffs had'not complied, .and one of which was that the route of the pro*, posed railway, should be approved by defendant. No route had been approved, and no proper route had been ■ surveyed or submitted for approval. . The defendant, alleged, in. addition, by, way of alternative defenoo, that Pilcher had repuj diated . the agreement ,■ of September,, 1905; and had intimated that he would proceed.to have the land for the railway taken under the Public Works Act; also that Pilcher, had repudiated the terms of the memo, of. May, 1907, and taken steps to acquire the land under tho Coal Mines Apt,. As a further and , alternative defence, the defendant repeated the fore-, going allegations and said that the Statute of Frauds had not been complied with. ' . ./'• ... -■ ,■'•' . The defendant Watson had been joined in the case in consequence of having bought land frdm Shaw. Argument had not concluded when the Court rose at 5-' p.m. The case will be continued this .morning.

His Honour, the Chief Justice, will sit in Banco this. morning to hear the oase of liitchfield V. Walker,' relating to the interpretation of a will.