SUPREME COURT SESSIONS CIVIL SITTINGS. Yesterday. (Before His Honour the Chief Justice and a Jury.)

Evening Post, Volume XLII, Issue 127, 25 November 1891, Page 3

SUPREME COURT SESSIONS CIVIL SITTINGS. Yesterday. (Before His Honour the Chief Justice and a Jury.)

WACKROW V. TAIT AND PKIEBT. This caso, in which a claim of .£2OO was mado for false imprisonment, tlio dofondanta having canaod plaintiff's arrest on a charge of stealing threo planks in tho Upper Hutt district, was oonoludorl just beforo wo wont to pross yesterday, and wo woro only ablo to jfivo in onr last issuo tho baro rosult, viz., that plaintiff had accepted £30 without cost-). Amongst tho witnessos examined was Philip Davis, .T.P., who deposed that ho irtHiiod the warrant upon which plaintiff was urroatod, Priost having sworn tho information. Ho ondoavoured to dissuade Priest from taking this step, pointing out that tho Wackrowg boro tho character of honost, woll-conduoted follows, but ho could not pcrsuado him to abandon tho proceedings. Mr. Gully, counsel for tho dofonco, intimated at this point that a settlement which lio had proposed to his learned friend, had been uccoptad. Ho might say at once that it woa ono of 'thoHO unfortunate cases wbioh aroso in groat part through defect in tho administration of tho criminal law. Tlioro was a notablo want of propor supervision in the institution of oriminal proceeding!). So far as this particular oafao was concerned, tli or o was no doubt tho information was laid Under a misapprehension of Wackrow's action, which was caused by the manner in whiob. ho romovod tho timber. Under tho oiraumatnneos he had proposed to settle tho wm by consenting to judgment being given for plaintiff for £30 without costs. To this proposal his learned friend had assented. Tho jury, by direction of his Honour, returned a verdict for JSBO, withont costs. His Honour said— l think tho plaintiff has nhown considorublo moderation. In Haying this I am not at all expressing any opinion that ho should havo oxaotcd moro. It may bo, of courso, simply through ignoranco or stupidity on tho part of tho defendants that thoy took tho action they did, or it may no worso ; but it is undoubtedly ono of those things which illustrate tho misapplication of a stuto of things which may bo ciuito satisfactory in England, bat which » cortainly not satisfactory in a placo liko Now Zealand. In England thoro aro a largo numbor of oduoatod goiitlemon who aro convorsant with tho administration of tho oriminal law so far m it iius to bo administered by_ inforior tribunals — persons who from thoir childhood really aro indoctrinated with tho principles which ought to bo acted npon and wliich ought to guido thorn. Thoy arc, too, in most cohoh advised and served by cmnpotont clerks of tho Bench, and a system of that kind can tliorcforo work well in England. But to apply it to New Zealand is ontiroly absurd. In tho first place tho Justices of tho Peace horo are a difforont class of people, not having the knowledge and oxponenco of tho Justices in England ; and then instead of having competent olorks of the Bench to advise and guide theni, in tho country diatriota thoro aro policemen, who not only havo not tho requisite knowlodgo, but thoir very oflloo unfits thorn for tho position. Thoro is no doubt about it that tho system is vicious in tho extreme This Da.t. kdwabdß v. ibeland and co. Tho plaintiff in this caso is Robert Prico Edwards, n buildor, and ho aooks to reeovor from tho defendants coftain monoya under a contract at Palmorston North. Mr. Jolliooc, oounsol for tho plaintiff, in opening tho case, said it was admitted that a contract Was ontorod into. Tho plaintiff liroceodod with tho work and delivored materials upon tho sito of tho proposed building. Work Was commenced immotllatoly on tho contract being entored into. On tho 18th September last tho works woro destroyed by a fire, which was not caused through tho carrying out of tho oontraot or tho default of tho defendants. At tho date of tho fire the architect had not granted to the plaintiff any oortiflcato for progress pay monts. Tho derondants now alleged that by reason of tho firo they aro oxensed from carryinir out thoir part of tho contract. The plaintiff Bought to proceed with his part of too oontractv but tho defendants said thoy woro oxonscd in consoquenco of tho dostrnction of tho building. His Honour was asked to deOlde two quostions— Firstly, whother, nndor tho circumstances, tho plaintiff is in law cntitlod to reeovor any moneys in respect of tho work performed; ana secondly, whothor the defendants aro in law excused from carrying out their part of the contract. Mr. Brown appears for tho defenco. Tho statement of claim alleges that in July of this yoar a contract was entered into for certain additions to the defendants' store in tho Sqnaro, Palmcrston North, at a cost of .£762 Bs. Amongst othor things it was agreed— (l) That all materials to be nsod in tho work, after bein? placed on tho sito of tho buildings, should be considered tho properly of the defendants ; (2) that the plaintiff should bo paid for his work and matorials monthly on the architect's certificate, and at the rato of 77 per cent, on tho valuo of the work; (3) that any damage which might arisp to nliy of tho work by firo, tho same boing caused by the Carrying out of the work, should bo made good by and at tho expense of tho plaintiff. In accordance with the contract tho plaintiff oxpondod .£sl 4^ 6d in labour and .£250 in materials, and thon tho Works and materials woro destroyed by a fire, which he was hot responsible for. At the time of tbo firo two monthly payments, totalling XS32, wore due, bnt the plaintiff had not received them. On tho 29th September the defendant wi-on?-fiilly repudiated, renounced, and determined tho agreement, and refused to allow plaintiff to continuo to carry out tho wort. The architect has wholly neglected and refused' to estimate the value of tho work and materials, and to givo any certificate for payment, and has so neglected in fraudulent collusion with and by tho procurement of tho dofondants. As a socond cause of action, the plaintiff claims .£IOB 12s 6d for work done and materials supplied. Tho plaintiff o'airas .£232 (or in the alternative .£BOO dvmagesfand .£lO6 12s Bd, with interest at the rato of 8 per cent. Tho defendants filo a statement alleging "that ( tho plaintiff never produced the architect's certificate of tho value of the work performed up to tho date of the firo ; that they aro not awaro of tho value of the work and materials at the time of the fire ; that no breach of tho contract had boon committed by thorn up to the date of the fire, but the performnnoe is now impossiblo on their part, and they aro at law excused from performance on their part; that the architect has not acted in fraudulent oollnsion with them or by their proenremont in neglecting or refusing to give any oortificate for payment. Tho defendants, however, admit that by a separate contract made after the firo thoy are indebted to tho plaintiff in tho sum of .£lO6 12s 8d for erection of temporary promises, but on a connter claim ho is indebted to them in oxcess of the said sum of JSIOG 12s Bd. Tho_ connter claim amounts to .£2lO 14s 9d, being for building materials, groceries, Ac, alleged to havo boon supplied -by Ireland & Co. to Edwards. In roply to his Honour, Mr. Brown said that there waa no insurance on the work. Tho dofendants had intended to insure as soon as tho first progress paymonthad boon raado. Aftor somo argnmont as to whother a ccrtificato could bo given by tho architect aftor tho work had boon destroyed, tho case was adjourned sine dio for tho purpose of enabling oounsol to confer on tho point.