LAW REPORTS.

Dominion, Volume 5, Issue 1246, 30 September 1911, Page 12

LAW REPORTS.

SUPREME COURT. MANDAMUS TO COMPEL GENERAL MANAGER OF RAILWAYS. RAILWAY SERVANTS CASE. Several reserved judgments were delivered in tlie Supreme Court yesterday.- In the case of Finlay- ' son v.'Ronayne, Mr. Justico Edwards decided an important -point by refusing plaintiff's application for a mandamus to compel tho defendant to certify as to plain- , tilt's conduct, and. efficiency as to whether ho was entitled to an increase of pay. Plaintiff is a railway porter, who has been at 'times employed as acting shunter and relieving guard. The point decided by his Honour is that only continuous service in a higher position entitles the employee to receivo tho annual increase of pay attaching to the position. In the case of Nicholson v. the Wellington City Council, a claim for an injunction and damages for alleged nuisance, Mr. Justice Edwards held that plaintiff's case depended ou negligence being proved, and as this was not proved plaintiff was non-suited. The Chiof Justice delivered judgment in the case of Izard v. Scott, -a • claim for- £30 rent and -JMOO damages for alleged breach of agreement. His Honour awarded plaintiff <£30 rent and <£215 dam-. ' ages,' and decided' that 1 when a lessee consented to the assignment of a lease, it did not releaso the lessor from liability. . .

An interesting reserved judgment was delivered by Mr. Justice Edwards yesterday in referenco to a railway case. It . was. an "application for a mandamus to compel the General Manager of Railways to mako a'certain certification with -respect-, to ail employee. The parties were Donald Wemyss FinJujsqn, railway porter, of . Wellington, plaintiff, and . Thomas. Ktmayns, General Railways, defendant. Mr. W. ±1. D. Bell Appeared for the plaintiff Jfinlaysou, anil the Solicitor-General (Mr. J. W. Salmond) for the defendant. .. Evidence for - the plaintiff Finlayson was to the effect that, between April 1, ■1908," and July 4, 1909, he had. been employed as a porter- and acting-shunter at a' wage oi' Bs. per day. Since then he had acted as relieving ■ guard, but was still rated as a porter. Re.now asked that the General Manager of Railways be. requested, to.certify as. to whether his efficiency (during the period -between April'. 1908, and 1910) had been such as to entitle him to receive certain increases in pay attaching to his position. For the defence it was contended that defendant was not a member of the service to whose pay an increase wns attached. -Itwas Stated that other railway employees had had a claim to promotion prior to. Ifinlayson, who, whenever employed as shunter,, signalman," or guard, received Bs. fid. per day; also that the defendant (tho General' Manager) had not the power to give the certificate required. ,

After a reference to the facts of tho case, the Judge proceeded with-his judgement as follows:—Tho Act provides that ."with respect-to. every member,'the right to receive any increase of .pa.v.in any year shall in each. case.depend upon .the. efliciencv and good conduct of the 'member to whose pay such increaso is attached, and lio such increase shall be payable unless the-permanent head of the Department certities in Writing that such rneui:ber ,:is ".'entitled thereto." : ' It 1 is further ■Jirovidod that:'-"lUshall be:: tho' ■ditty of tho permanent head of the Department to annually certify with respect to' each member to whose pay an increase is attached, whether he is or is not entitled thereto; and he shall also furnish, without comment thereon, a copy of all entries.in the conduct book relating to such member."

Ihe object of the present proceeding is to enforce tho performance of this duty in order to enable tho plaintiff to claim, while acting as shunter or as guard, pay at tho increased rate provided. His Honour then referred to the provision in the - Act, which provides .that: "Tho Department shall 99 , classified into two, divisions, iw mil i. respective subdivisions, ihe GBlh section; Paragraph (e) empowers the .Governor by Order-in-Council to make regulations, not inconsistent with u- " < ' e * ern:l ' l ii n S. the fn-ounds upon which, and the mode in which, members may be'promoted in the sair.o' class, or be a higher class in • the samo division or subdivision.' - Jjy 1 the - regulations members 'of the service: are entitled to promotion in tho-order of their seniority in the service, provided they <"? suitable n . n -' qualified for promotion. . Tuo plaintiff entered the service as junior' porter," said hi? Honour. "In due course ho has become a porter; but suggested that ho has been promoved to be a shunter or a guard, in accordance with .the provisions of tho slatuto and tho regulations. The authority under which ho is nevertheless employed inthose capacities is to be found in the regulation providing for temporary emW™' Regulation 25, under the head I ol _.Duties and Discipline' provides that members' 'of ' tho traffic, and stores branches, who have served as juniors for tho. full probationary period, and havo been certified as suitable for retention in terms of Class-15 of these regulations, may be rated and employed as guards, signaliron, staremcn, .and shunters, and when si eiiip.oycd may bo paid a§ much.'" • His 'Honour said that in his opinion this referred to temporary or inlermittent employment, and did not take the perran employed under it out of tho class in which he was at the tirao of such employment. He could not be lawfully taken out-of that class except by promotion, f.i'fn temporary.employment did.not cutillo the person so employed to the ann'"}l increment of sixpence per day to which 'signalmen, storemeu, and shunters were entitled under the third sched-ule-to the Act. That annual increment was given by tho Act only to tho persons who come within one or other of these descriptions. Such persons could not lawfully bo ordered to do tho work of a porter./. . " • . Continuing, his Honour said: "Stress was-laid-b.v counsel for tho"plaintiff-upon t'ho regulation which provides that 'members rated at two rates of pay will rcceivo the annual increment, in tho higher grado only after having actually worked A fuu year in the higher grade.' At first sight this regujation certainly • seems to support the contention of counsel, bat in my opinion any inference which could,be drawn from it is insufficient' to displace tho conclusion at which 1 havo arrived upon the grounds .which .I have stated. I am inclined to think that tho meaning which should bo 'attached to it is that whore ■ a member of tho service has been promoted during tho year preceding the annual certificate required bv tho rcnilalion so that for part of that vear ho has been rated at the lower.grado from which lie has b;en promoted, and for part at tho higher grade to which ho has been promoted, he is not to be entitled to the M-nual increment until he has served the full year in the higher grade. Tho words used are very vague and uncertain. Ihe Solicitor-General himself declined to attribute any practical meaning to them, lhey do, however, certainly point to continuous service as of right in the higher grade as a necessary qualification for tho claim to tho annual increment. They caanot therefore apply to tho plaintiff's case, in which the service, though 'practically continuous, has not been as of right, and can only bo justified as a temporary service. "Thero must be judgment in the action for tho defendant. I do not think that this is a case for costs. Tho point is now; and a principle is decided which it. 15 in. the public interest to set at rest." "Tho case has been extremely well argued by Mr. W. H. D. Bell.'for tho plaintiff, commented his Honour.

FEBRUARY FLOOD.

CI,AIM ON THE CITT FAILS. Decision was also delivered by Mr. Justice Edwards in tho case in which Sarah Nicholson, wife of Peter Nicholson, laboiu'er, of Wellington, asked for an in-

junction to restrain the AVellington Cil; Corporation from continuing an allege! nuisaneo on hor property- in Mortiinei Terrace. She also claimed .£l5O damage: for alleged injury caused.to the property At the hearing Mr. T. K. Holmden ap pen ml for the plaintiff and . the Cilj Solicitor (Mr. J. O'Shea) for tlio defend ;uit. Evidence for plaintiff was to the cfl'ecl that, in February last there were lioavj rains in Wellington, and Karepa Street (above plaintiff's property) had been flood ed. This, it was alleged, was due It tho. indifferent formation of tlio waterchannels in tlio street, and to a sump pil becoming^blocked. Mr. O'Shea, for the corporation, askec for a nonsuit on the ground that the evidence for tho plaintiff had failed to disclose cause of action. The whole thing was clearly "an act of Providence." The rains at the time referred to were the heaviest that liad ever fallen in Wellington—at least, within tho knowledge of man. His Honour, after reviewing the evidence, stated that it was apparent that the sump pit had become blocked by a storm that had been unprecedented in in the last twenty-sis years. The caso for the plaintiff depended on her establishing, negligence oai tho part of the City Council in clearing out tho sump. ' The evidence, however, pointed the other way, although, to be sure, it was rather vague. In the circumstances, the plaintiff must be nonsuited. Mr. O'Shea: Does your Honour allow costs? His Honour: I do not think that it is a caso for costs. Mr. O'Shea: I will not press tho matter. His Honour: TJiey ought not to press costs against the lady. She has suffered a loss, and you are not going to charge the corporation anything extra for coming here. . Mr. O'Shea: No, your-Honour. His Honour added that, if the costs were pressed, ho would, of course, allow them. Mr. O'Shea intimated that tho corporation would not ask for costs in view of what his Honour had said. Tho Judge remarked that ho thought that the proper course had been takeji. £215 DAMAGES. THE LIABILITY OF A LESSOR. Decision was delivered by the Chief Justieo (Sir Robert Stout) in the wise in which _ Charles Hay ward Izard, barrister, Wellington, proceeded against 'Francis 'William Scott, farmer, of Tawa Flat, to recover' tho sum of .£3O alleged to be due for rent, and ,£IOO damages for alleged breach of contract. Geo. W. Dickinson and William E. Dickinson, to whom-tho lease had been assigned, were joined as third -parties, and the Horcwhenua Meat Co., to whom a further assignment had been made, were attached as fourth parties. Mr. E. P. Bunny appeared for plaintiff, Mr. K. B. Williams for. defendant, and Mr. 13. G. Jellicoe for the third parties. Plaintiff's statement of claim alleged that, by a deed of lease dated April ii, 1905, the defendant Scott had secured 100 acres of land for ten years at a rental of .£6O per annum. Scott had agreed to keep in repair all the buildings and fenecs. and to eradicate noxious weeds, but it was alleged that tho fences had become dilapidated, and fhut the land was covered with gorse. Furthermore. Scott had failed to pay rent for the half-year ending July 1, 1911. Hence the claim. The defence was a general denial, and it was contended that the lessee Scott w.is not liable, as the lessor had relieved him of liability by signing a consent, to an assignment of the lease. In giving judgment, his Honour held that a consent bv a landlord to an assignment of a lms. does not release the lessor from liability. Judgment was given for plaintiff for .E.lO for rent, and 4:215 <!aimgf£_iDn_hrear-Jv—of--the—eon-tract, with costs according to scale.

AH ON'S APPEAL. ' GAMING HOUSE OR LAUNDRY? . A polico rail] oil a Chinese residence at Napier on July - 9 hist was referred to in the Supremo Court yesterday, before Ihe Chief Justice (Sir ltolrert Stout), when Ah On appraled from the decision of Mr. S. IS. Jl'Carthv, S.JI., who, on July ■ 21, had convicted him of keeping a cpmmon gaming-house, and lmd fined, hiiri «£2O and costs .£3.55. 2d., in default oiie .month's imprisonment. Sir. E. J. Jcllicce appeared for the.appellant. (All On) and.Mr. H. 11.- Ostler, .of. the Crown Law Office, for the. respondent. It appeared that, when -convicting 1 All' On, the magistrate had held it to ho proved that All On had rented the house at the corner of Daltou ■ and Dickens Streets, Napier, .informing the owner; that it was intended ,to be used as , a laundry.. Tho house 1 had been--under observation-by the polico from July 2 to July 8, - when a warrant had been secured to search, it. At about' 7.30 p.m. on Sunday, July !), the house had 1 been entered by Detective Jla?on and'.Constables Burrell and .La Fevre, affecting to acr under the" search'warrant. Nineteen Chinese (including Ah Oil) had,been arrested for' playing what, was alleged to be a game of chance with dice, dominoes, and fan tan 'conrters. AVlicn Ah On appeared in Court, the charge read to him was: "That, being the occupier of premises in Dickens Street, lie had used them as a common gaming house." Tho magistrate had found no evidence in support of a suggestion that the house had been used as a lodginghoiise,' and he had drawn the inforenco that the only purpose for which the defendant bad used the buildin" was that of. gambling, and that with defendant's knowledge others, had habitually resorted there for that purpose. ■ On tho facts-found by the magistrate, counsel for defendant raised the. following contentions:—(l) That the information laid under Section 3 of tho Gaming" Act, 1908, was defective in form, in that tho proceedings should have been by way of complaint.. (2) That the information governed all subsequent proceedings, which were in consequence bad. (3) Tbat the entry and search made under the warrant issued pursuant to tho information were, illegal, and all evidence discovered, as tire result of. that entry . and search, ww inadmissible against "the defendant. (-1) That in anv event the entry was bad, having been effected on a Sunday. (5) That the evidence <lid not warrant a finding of using or keeping the house, so occupied by tho defendant, as a common gaming house. The magistrate had determined that this afforded no ground of answer to tho information, and Ah On had been convicted and fined. The other Chinese had been convicted of being found in a common gaming house. .Defendant then gave notice of appeal and lodged .£35 to abide the event of the appeal. The grounds of appeal wero tlult, there was no evidence of tho offence, aifl that the magistrate had made a false in? ference froin tho facts. After hearing legal argument yesterday, Ills Honour intimated that ho would take timo to consider his decision.

DIRECTION SOUGHT.

THE ■ ADMINISTRATION OF A WILL. Sitting in Banco yesterday, Mr. Justice Chapman heard llr. T. Young in support I "r? I W/?j!® atlt>u - ,J J' Herbert Lames and ifiT i I'i 5, oxcc, itors of tlio estate ot the lato Lllen lfeid, asking for direction as to the distribution of the estate. it appealed that certain property had been Erected by the will to bo soli, and , Proceeds to bo divided among four legatees named in the will. Certain other legacies woro given by tho will, anrl the balajiCD of estate was to bo distributed between the Children's Homo at Palmerston and tlio Palmorston. North Hospital. Before deceased died 6he had disposed of tlio property out of which tho legacies were directed to bo paid. The question v.-as whother tho legacies lapsed altogether, so that tho Hospital and Unldren s Homo would receive tho whole of tho readue, or whether the legacies woro still ahvo and had to bo paid out of tho residue. Decision was reserved.

HUSBAND'S WILL UPSET.

Tho Hill of tho late Charles Brown wharf labourer, of Wellington, was unset in tho \ Supremo Court yesterday by .Mr Justico Chapman, who decided' (hat a widow, if left unprovided for, had a cjaim to lier husband's estate, prior (o that of Hospital Tnis"tee.s mentioned in tho will. Tlio parties (n (lie action were Sarah Ann Brown, widow, plaintilV, and Andrew Wyllie, barrister and solicitor defendant. Mr. T. Young appeared for tho plaintiff, but there-was no appearance of defendant. It appeared that Charles Brown died some Little time ago, and left property to-

tailing «£'-'.lB, his will directing the executor (Andrew Wyllic) to pay debts and expenses, and hand tho balance to the Wellington Hospital. lLis widow appealed to the Court, mnler tho Family Maintenance Act to direct that, she, being 101 l unprovided for, had prior claim to the Hospital Trustees. All affidavit by the widow stated that the decc.'ised met with an accident some years a"o, and during the last four or live years hiio bad supported him by her own efforts in charing. The money wbicli be liad left had really been earned by tbe widow, but owing to a difference between husband aud wife some. time prior to the death of the former, ho had bequeathed his estato to tho hospital, leaving his widow unprovided for. The Hospital Trustees wrote saying that they did not propose to contest the- widow's claim, and the executor did not appear, but submitted to the order of the Court. His Honour, lmving heard what was to be said ou the subject, remarked that this was a proper case for the application o{ the Act, and ordered the executor to pay the whole of the money to the widow.