LAW REPORTS.

Dominion, Volume 3, Issue 805, 30 April 1910, Page 14

LAW REPORTS.

POSITION. >HApiSTBATE; OUT OF OFFICE." v':., TWO APPEALS. ' Sitting in Banco, yesterday, Mr.' Justice Cooper heard an.- appeal from ■the decision! of Mi;.: Turton; : S.M., the case being that of Thomas James Rathbone, sawmiller, of Carterton, .v. 'Edward G. Harris, fanner, of Martinborough. '';.',;,;:.-, '■',;, ! In the Magistrate's Court, Harris had appeared as defendant in an action brought by ( . Rathbone for the recovery of £26 195.. 1d.,, alleged to be the balance due upon certain timber 'sold sad delivered to one J. C. Whitehead, on'a written guarantee, :l . dated July 14, 1908, given by Harris, that he would be responsible- for payment. Having heard ©videnjc in the case, the magistrate gave judgment for the defendant with costs, on the ground that the turety had been discharged by Rathboho's having accepted a promissory . note for the amount payable, without 1 the oonsdnt of the surety.; The-magis-trate had held that the surety could not be said to have consented, because the promissory-note was taken before he was informed about ft. Rathbone appealed against the magistrates decision, seeking to have it 'set aside as being wrong in law. :Mr. P: L. Hollings ' (of Masterton) appeared for Rathbone, and Mr. H. F. trLeary for Harris. -'• l - . His Honour pointed out that file magistrate,; who was. now out of office, hadnot stated the facts found by him. Hie parties themselves had been to Hamo, because they ought not to have agreed to,a case stated as this one had been'.' B' waa' liardry' possible to refer tie case back to Mr. Turton for a rehearing, seeing that, the Court had no jurisdiction over hhn. His Honour suggested that a nonsuit should be entered in the,. Magistrate's Court, without costs to either-party, so that the case might be proceeded with again. ■ Mr.'.Hoflings reraaiked that Mr. Turton' was not now in Masterton, and some difficulty 'might be met with in placing the case before him again. , His Honour : said that he had no jurisdiction to hear the case', seeing that the facts had not been .stated by the magistrate, and were still in dispute. \ Even if the appeal were allowed, he would probably have to order a re-hearing,/because -there might be other defences,; '■' In orderi that Mr. OTJeary; might aosmramicate 'wifli his" ■principal (Mr. Pownafl, of Masterton), his Honour defected giving a decision on the matter. He. said-that either the parties would lawe' to agree urJon,the> facts, or; he would have to refer the matter back to the Masterton Magistrate's Court, with instructions to obtain from Me. Turton a statement of the facts.

TTTPi OTHER APPEAL SUCCEEDS. -.' Mr. Justice Cooper al3o heard' the v. cause of Granger v. Grengor, an appeal fsom &e decision of Mrlß. H. Turton," S.M., delivered at Carterton, on January 21 last! \ Ann.Grengor,"nurse,-'-of-Car-' terton (who now appeared as appellant) had been ; sued by her husband, John Gfengor,-labourer; of. Carterton, in the Magistrate's Court. The ")*im had been for £24 Is. 2d-, in respect. of rent of, premises/ rates, and insurance, which amount Grengor alleged .'was l doe -.under a. lease. . It appeared from the findings of the magistrate, who , gave judgment for Gxengor for the amount claimed, that the lease was for 10 years, from Maji \L£ 199SPthe rental being £78 per year. Hrsi-Grengorioccupied ihe .premises, anial a''fire ocWrred on Jury 20, 1909, end the action, arose out of circumstances resulting from .the firs. A custodian, W: Partridge, ,was t put into the' premises after the fire, in the interests of both owner and mortgagee, and the 'Bank of Now Zealand, as mortgagee, 'and the agent of the State Ph-e Department gave instructions .that th|s custodian was to remain in possession until the question of insurance had been aettfed, as both plaintiff and defendant ;had insurance on the furniture.'-When Mrs. Grengor was denied possession of , the premises, she notified her husband, by letter, on August 7, that she considered the lease to be null and void. Granger's claim for rent, rates, and insurance was based upon, the amount <roe' up to that date. The appeal, was Moagnt on the ground that the magistrate's decision was erroneous in law. Mr. D. M. Emdlay; and Mr. T. E. /Mamisefl (of, Carterton) appeared for Mia- Grengor, and Mr. S. J. Monan for "Mr. Grengor, the respondent. , In reply to his Honour, Mr. Fmdlay .explained that the parties were not '. ttow Bring together. His Honour heard argument, and decided that the appeal must be allowed, with seven guineas costs. : The decision of the -magistrate would bo reversed, and a. nonsuit would be entered in the Magistrates Court, with costs, on the ground that.-. Grengor had established no • cause of action against Mrs. Grengor.