SUPREME COURT.

Gisborne Times, Volume XXII, Issue 1750, 16 May 1906, Page 3

SUPREME COURT.

CIVIL SITTINGS,

(Before His Honor Mr Justico Chapman.)

KENNEDY AND EVANS Y. JAMES McKEE.

Yeatorday morning hia Honor, Mr Justice Chapman, delivered judgment in tho oaao of Kennedy an 1 Evans y. James MoKee, an appeal against tho magistrate’s deoision. In giving judgment hia Honor sa d : —“ The defendants, now appellants, woio sue! es common candors for failing (o deliver to plaintiff, now ruspoudont, a parcel of tobacco cjnsigned to him by a Wslliugton merchant, an i car ried for respondent from a steamer in the roadstead at Gisboruo to tho wharf. Tho / steamer's bill of !a ling undertook to deliver tho goods to a lighter in the roadstead, and this was done. They were then rooeivod by tho appollanta’ sttam lighter and brought ashore. By thus taking goods over from tho steamer Tarawora the appellants undsrtjok to deliver ail sueh goods so taken over to tho tospeotive oonsignoes. including in this caso the respondent. The Tarawora arrived at Gisborne ou the merniug of May 81st, and of this respondent knew, at 10 a m., and his goods were landed on tho wharf at 11 a.m. Tho prao'ioe at Gisborne is to place all goods so arriving in tho Harbor Beard’s sheds, save snoh goads ns kerosene and other dangerous goods, which are loft on tho wharf. The k rys of these sbods are in the custody of appellants, and tho goods remain thereuntil the appellants are satisfied that wharfage dues have boon paid to tho Harbor Beard. In order to ascertain how this stands consignees must attend at tho offioe of the Uoion S.S. Company, the owners of tho Tarawora, and pay freight, including appellants’ froighs, and obta'n on order upon the Harbor Beard for delivery of tho go;ds. The oonsigeee then attends at tho Harbor Board office and pays wharfage, and receives an order to deliver the goods. Upon Bight of this order the appellants deliver the goods at tho wharf or from tbe sheds. There is no charge for storage. The respondent had paid tho freight and dues and bad obtained the Harbor Board’s order for delivery of the tobnooo and all other goods coming to him by tho Tarawora before noon on the 81st, and at 4 pm. removed some kerosene from the wharf oonsigoed by some other merohant by the Tarawera. The Ist of June was a partial local holiday, and retail shops likr the respondent's were not open, but tho sheds were open all day for the delivery of goods, and the respondent oould, if ho had so wished, have sent for and obtained the tobsooo. Oa June 2jd the sheds were opeD, and though the day was wet other goods were delivered. The respondent was on that day asked by appellants by telephone to take away his goods, but did net do sc. Tne tobacco was still in the shed at 4.30 p.m. that day, but on the 3rd June it was found to have been stoleD. Tho Magistrate found that it was not reasonable to expeot the respondent to take away the goods on a holiday, and that the respondent had a reasonable excuse f or not sending for the goods on a wet day. It was admitted that appellants wero not liab’e as warehousemen, and the question is whether they are liable as oornmon carriers.” His Honor proceeded to quote a □umber of authorities bearing on tbe ease. In the case of Chapman v. Tho Great Western Bailway, it was argued that the question of the knowledge, or means of knowledge of the consignees of tbe fact that bis goods have arrived, giving rise to the further question as to the reasonableness of his action in failing at once to take them away, was treated by Cockbum, C.J , as a question of fact, which tho Mag'straSe alone oould determine. Tbe Court is now iu a position to accept all the facts as found by the Magistrate, and does so as a matter of course. Ido Dot think that the Magistrate bad, so to speak, correctly directed himself in point of law. There was no question of fact properly in issue as to the reasonableness of tho action cf the respondent, because, in my opinion, it was within his power to select tbe time for terminating the duties of the appellants as carriers, and be did so. I am satisfied that from the moment when the appellants had at the respondent’s instance done all that they could do the appellants’ office as carriers ended. If this point was not reached when the respondent obtained the order for delivery from the ph« J , it i' because an appreciable time ought accordingly to the authorities still be allowed to enable him to ssnd a ' oart down for the goods. Ia a place like where the wharf and sheds are within the town, this ought to be a matter of minutes, or at most hours, rather thau days. The Magistrate has found reasons for the respondent’s delay which be considers should excuse h'm. That finding, however, appears to treat the ease as one in which some question as to respondent’s duty arose. No such question arises in my opinion. The whole delay was a matter of convenience or inconvenience to respondent. The same question arose, but with a stronger case for delay, in Chapman v. the Great Western Railway Company, where the plaintiff was a hawker and could not oonvoniently attend to take his goods and had to put up with tho lots as resulting from his own delay. There ore several points of time after the receipt of the delivery order from which respondent was in more. I need only mention the occurrence of his sending a catt to the wharf for other goods aod the occasion on which he was asked by telephone to take thaso goods away. The appeal is allowed, with £5 5s OGsts and disbursements, and costs in tbe Court below to be fixed by the Magistral s ”

IN CHAMBERS.

DUNLOP V. LYSNAR,

J. 0. Dunlop and Emma Dunlop v. W D. Lyanar, applioation to review the deoi Bion oi tho Registrar fixiDg the amount of the aoourity to be given by the defendant on his appeal to the Court of Appeal in this action, upon the ground that the - eeourity aa fixed by the Registrar was inadequate. Mr Reea said it waa not ascertained when the matter waa before the Registrar that the property at Whataupcko waa not available f r arcurity, as it had been given With other securities for a mortgage. His Honor: Is it proved or admitted what tho mortgage is worth after the defendant has been paid hia debt ? Mr Reea: No, it ia only a matter of auppoaition. There waa a mortgage of £I3OO to £I4OO over the Whataupcko property when in tho pcssesßion of Mr Danlop, and a aeoond mortgage of £7OO from Mr Dunlop to bis wife, On those figures it would be a valuable and available mortgage, but now it would net be available when it waa included with othor properties as security for a mortgage over a largo estate. His Honor : It may be said to have been parted with. Mr Rees pointed out thatby the Supreme Court judgment Mr Dunlop had recovered his right to the equity of redemption in the property, subject to tbo payment to tbe defendant of the moneys that he had paid on the property in settling the first mortgage and other payments. The property was cow stated to be worth between £3OOO and £4OOO. Of that Mrs Dunlop’s mortgage would absorb £IOOO or £7OO, with six years’ interns'', and then thero was tbe other mortgage paid by Me Lyenar, amountiog to £I3OO or £I4OO, His Honor : Then there would be less than £7OO coming to the other plaintiff, Mr Dunlop ? Defendant might refuso to give plaintiff security boyond the costa in the Court of Appeal. Could not Mr Rees enforce the judgment V Mr Reea: Not while it ia under appoal. Hia Honor : It depends on whether tbe oase has been stated for appeal. Mr Nolan : It has been stated, and by defendant. Mr Alston Coleman, who appeared for Mr Lyanar, stated that Mr R. D. B. Robinson, boroogh valuer, in evidence gave tbe value of the property at L 1950, and there would bo an additional 10 per cent, to be added for inoremont since that date. It appeared that when accounts had boen taken the DUnlopa would be indebted to Mr Lyanar for L2OOO, and that, in addition to tbe LIOOO for whioh j'aoourity had been already given by a bond /as approved by the Registrar, would give jj/* £ security of LBQQO. 0*

His Honor : Is thud admitted ? Mr Colemau : Well, it is not admitted by the other side. Ho pointed out that LUCO was owing on tbo mortgage which Mr Lysnar had to bo repaid by tbo Dunlope, and that with costs. LO4‘J, would bring tho amount over L2OOO, His He nor : I can’t go into an investgallon to ascertain tho state of iudobtnoss. Had tho Registrar those matters beforo him Mr Colemau said tho Registrar had tho facts fully boforo him, but somo of tho mattor did not appear cn tho affidavit. His Honor pointed out that if tho Whataupcko property was mortgaged again, there could r.o,v bo no equity of redemption. Mr Coleman : Tho mortgage was given as far baok as 1901. His Honor : But that was not part o the evidonoe at tho trial. Mr Roes : It was not mentioned, Mr Colo : But it is now on sffidav

I Tho moitgago of L4OOO which the DunI lops would bo required to redeem, and tbo oosts L 649, w.th the security of LIOOO, I was sutlieiont seourity. Tho matter was gone into very fully by tho Registrar, and I tbe facts plaoed before his Honor should convince him that tho Registrar’s position should not be disturbed. Mr Boos said it was not common knowledge botwoon tho parties when before tho Registrar that tho property had been mortgaged in 1901. Mr Coleman : It may have been known. His Honor : Of oourso they could have known by searching or inquiry. Mr Coleman said the plaint'ils must have known, as the title had been the subject of their fullost investigation.

His Honor sa ; d if tho matter was not brought boforo tbo Registrar, and if thoy did not know it as a matter of fact, they could not bring it before tbe Registrar.

His Honor said what ho intonded to do was not a roviow of what the Registrar had douo, but merely a suggestion as to wbat tho Registrar would havo done had he tho same information as placed before the Court that day. He would fix tho security at £IBOO, £I2OO for Mrs Dunlop’s interests, and £6OO for Mr Dunlop’s, tbo

Registrar to fix the nature of the seourity. Tho aosls should be costs iu the aotion, as it was ouo of redemption.

COMPANIES ACT. In the matter of ths Companies Act, and tbo matter of Messrs Commie, Shel- | ton and Co., Ltd,—Motion on petition for an order confirming the resolution passed at a special meeting of the said Company, that tbo capital of tbe Company bo reduced. Mr J. W. Nolan appeared in support, and asked that an order bs made subject to tbe Registrar being satisfied that nonconsenting creditors were cither paid or seourity given, His Honor ordered that the petition be enforced as made. OTHER BUSINESS.

In the matter of Frederick Tietjen, deceased, application for the approval of tho Court to the sale by consent of certain lands. Mr Stock appeared in support. Order made.

In the divorco matter of Smith v. 3mitb, in which Mr Lysoar, for applicant, asked that tho seourity in acoordanoe with the order be settled, His Honor advised that tbo draft of the order should first be drawn up and submitted to the other side.