LAW AND POLICE.

New Zealand Herald, Volume XXV, Issue 9116, 26 July 1888, Page 6

LAW AND POLICE.

SUPREME COURT.—Banco. Wednesday. (Before His Honor Mr. Justice Gillies.J

Lio Medo v. J. S. Clendon and George Lorme.— Reed appeared in support of a motion for a writ of prohibition, and Mr. Theo. Cooper for the defendants. The case arose out of an action for debb heard iu the Resident Magistrate's Court, Whangarei, on the 16th of March, in which George Lorme, hotelkeeper, was plaintiff, and Lio Medo, defendant, the action being to recover £19 3s. The statement of claim set out that the summons was blank, not being signed by the Resident Magistrate or the clerk of the Court; also, the hour at which the Court sat was not stated in the summons. It further stated that * Mr. Clendon presided at the Court. The defendant did not attend, and waa not represented at the sitting of the Court, and in his absence the Magistrate proceeded to hear the case, and gave judgment for the amount claimed, and plaintiff now claimed a writ of prohibition to restrain the defendants from enforcing the said judgment. The defence filed by Mr. Clendon admitted a portion of the statement of claim, but pleaded that on the day on which the case was heard, he received a telegram from Lio Medo, stating that owing to distance he could not attend, and asked for an adjournment, but as no grounds were shown for such adjournment, and being satisfied that ! the defendant had been duly served, he | proceeded to hear the case, and gave judg- ! ment. Subsequently, a warrant of distress was issued, and was returned nulla bona. The plaintiff applied for a re-hearing of the case, which was granted, and the date fixed for the 26th March provisionally on the amount of the claim and costs being paid into Court, but defendant having failed to comply with the condition, the re-hearing did not take place. The Resident Magistrate admitted the blanks in the summons, but pleaded that defendant had waived his objection to these irregularities by applying for and obtaining a re-hearing. There was also a statement of defence filed by Mr. Lorme. For the plaintiff Mr. Reed contended that the subsequent action of the plaintiff did not waive his objection to the informality of the summons, and further, that the summons itself was a nullity. He quoted authorities to show that a writ of prohibition should issue, as, if the summons was a nullity, then no acquiescence by the plaintiff in the proceedings of the Court below could make it good, and if it was an ' irregularity only he contended that there was not sufficient acquiescence by the plaintiff to waive his right. Mr. Theo. Cooper replied that a summons was not necessary to give a magistrate jurisdiction. It was the plaint, and he therefore had jurisdiction to try the case, and he contended that the irregularity in the summons did not make it a nullity. He cited various cases in support of his contention, and said the Resident Magistrate's Court was the tribunal to rule whether a summons had been properly served, and [that the defendant knew the time of the hearing by his asking the Resident Magistrate to allow the case to stand over until the afternoon. His Honor ruled that it was quite clear that the summons was irregular, but it was not a nullity, and the step he took for re-hearing the case was the right step to take. Mr. : Reed asked that costs should not be allowed on the ground .that there Was an admitted irregularity. His Honor allowed defendant? costs.

Hay v. Barlow and Jackson (motion for writ of prohibition). Mr. Tfaeo. Cooper appeared in support of the motion, and Mr. E. Hesketh to oppose. The facts were simple, but raised a very important question of procedure of Resident Magistrates Courts. The plaintiff claimed that, , the R.M. of Waikato exceeded his jurisdiction in awarding certain witnesses expenses against him in an action recently tried there. Mr. Cooper stated that he moved for the writ (1) as regards Mr. Dufaur's expenses, he not having received the subpoena served upon him until after the date fixed in it for his attendance ; (2) as regards Mr. Nothcroft's expenses, on the ground that Mr. Northcroft was only subpoenad for one day, and was allowed costs for subsequent days on which he attended ; and (3) 'as regards Barlow's expenses, on the ground that the R.M. Act, 1867, gives no power to award a plaintiff' or defendant his .costs of his own attendance unless he is 1 summoned as a witness. He argued at length in support of his contentions. Mr. Hesketh argued in ■ opposition to each point, and quoted various sections of the Act bearing on the question. His Honor said that it was important that some definite rule should be laid down to guide Resident Magistrates in these questions, and after considering the various sections of the Resident Magistrates Act, 1867, he ruled that Mr. Dufaur's expenses were improperly allowed, as the exigency of the subpoena had ceased before it was served on him, the Court having risen before service. As regarded Mr. Northcroft's expenses, he ruled that a subpoena issued commanding a witness to attend on a day certain, entitled that witness to costs of attendance during subsequent days whereon the trial continued. Mr. orthcrof t's expenses were rightly allowed. Barlow's expenses as a party to the suit were, he ruled, wrongly allowed by the Magistrate, he having no power under the Act to award costs to any person other than a witness subpoenaed to attend. It was a hardship, no doubt, but Legislative interference would be required to correct it. The writ of prohibition must therefore issue as to the sums of £2 16s lOd and £6 Is Bd, the costs awarded to Dufaur and Barlow, but as the points raised were new, and the practice had hitherto been conflicting in Resident Magistrates' Courts, he would not order defendant to pay costs. Lawry v. Champion : Writ of Attachment.Mr. Theo. Cooper appeared for the plaintiff, and Mr. Mahony for the defendant. The plaintiff was a dairyman, and the defendant had been in his employ under engagement not to serve milk within three miles of the post-office, Auckland, within two years after leaving plaintiff's employ, but he continued to serve milk after the writ of injunction was issued on Friday last, and they now asked for a writ of attachment. The application was made under rule 386 of the Code. Mr. Mahony, who appeared for the defence, could not deny that there had been a disobedience, but he was prepared to promise that there would be no further breach of the injunction, and he asked that no further steps be taken. The object was to prevent Mr. Champion selling milk. Unfortunately, he had not been instructed when the application was before the Court in Chambers, although there was a grievance. Mr. Cooper said he could not consent to the application. It was a flagrant case, and it amounted to contempt of Court. He moved for the writ of attachment, and when he was brought before the Court, he would have an opportunity of explanation. His Honor said the injunction had been granted, and set at defiance. He ordered that the writ of attachment should issue., v Native Land Dispute— of Prohibition.—Mr. E. Hesketh appeared in support of a motion by Taonui Hikaka, for a writ to prohibit J. E. Macdonald, Esq., and Major David Scannell, Judges of the Native Lands Court, from issuing certificates for a certain block of land in the Taupo district. Mr. Button and Mr. Theo. Cooper appeared for the defence, and by consent this and another similar case, in which Mr. Brookfield appeared for Natiri Te Paerata, were adjourned for a month. POLICE COURT—Wednesday. [Before Messrs. John Gordon and S. Y. Collins J.P.'b] Drunkenness.—Three persons were fined for this offence. Stray Cows.—Mary McConnick was charged with allowing two of her cows to stray in Pompallier Terrace in violation of the by-laws of the city. Constable McConnell proved the case, and a fine of Is and costs (lis 6d) were imposed. ' . Sleeping Out,—A named John Bird, aged six years, was charged with being found sleeping out in Alexandra - street. He was committed to the Kohimarama Industrial School ill he was fifteen years old, the falser to pay 5s per week towards his support. Stealing Timber.—Sydney Dyer was charged with the larceny of two pieces of timber on the 21st inst., the property of Daniel Curtin, of Rokeby-street. The accused pleaded guilty, and was ordered to be placed under the Probation Act, and to give sureties for his good conduct for six months. Girls' Work Hours.—William Dalton, tailo-, of Queen-street, was charged with a breach of the Employment of Females Act by neglecting to have pouted up on hia i

premises the requisite notice specifying the hours of employment. The case was adjourned until Monday, August sth. Light Bread Loaves.—-James Martin, of Parnell, baker, was charged with selling light weight bread, on the 16th inst., to one Worrall, of Swansonstreet, in violation of the provisions of the Prevention of Adulteration Act. The defendant pleaded guilty, but said he had a second business to attend to, and his orders to his : employees were to give the full weight. Other bread sold the same day had been overweight. He alleged the light weight was accidental and not wilful. The Bench took a similar view of the matter, and inflicted a fine of Is and costs.— John Gracie, of Parnell, baker, and James Corley were charged with like offences. Each pleaded guilty, and each averred that "the light weight was an accident. Similar fines of Is ana costs were inflicted. James Corley was also charged with having unstamped bread. He pleaded guilty, but alleged that the carelessness of his employees had rendered him liable. A fine of 5s was inflicted.