LAW AND POLICE.

New Zealand Herald, Volume XXIX, Issue 8960, 18 August 1892, Page 3

LAW AND POLICE.

SUPREME COURT.—IN BANCO. Wednesday. [Before His Honor Mr. Justice Conolly.] Knox v. Patdtahißoad District—Appeal. —This was a case on appeal from the Resident Magistrates Court, Gisborne. Mr. Button appeared for the. appellant (the plaintiff in the Court below), and Mr. Theo. Cooper for the respondent. Mr. Cooper raised a preliminary objection . that no security in compliance with section 100 of the Resident Magistrates Act had been given by the appellant, and what purported to be a security was no security at all, or that it was if any security at all it was insufficient. A bond had been signed by the appellant in the presence of Mr. James Booth, Resident; Magistrate, who endorsed his approval on it. Section 100 of the Resident Magistrates Act provides that a party may appeal to the Supreme Court on giving security for respondent's costs within three days, such .security to be approved by the Resident Magistrate. He (Mr. Cooper) submitted that a personal bond was no security, and that compliance with section 100 was a condition precedent to an appeal. Schedule 24 provided for securities, and that schedule, he submitted, should be read with section 100; for a bond without securities was so much waste paper. He quoted the case Mais v. McNamara (5, Exchequer Reports), and other cases, in support of his argument, and he submitted that the respondents having already a judgment of the Resident Magistrate's Court, had all that the bond purported to give them ; and that, in fact, the bond would, if admitted, place them in a worse position than they were before. Mr.. Button replied, and said that the magistrate having i approved the bond, the appellant had done all that the law required of him, and should nob lose the right of appeal even if the magistrate made a mistake in approving it. This was a bond given to the satisfaction of the magistrate, and the question was whether this Court would go behind the decision of the Court below. He proceeded to reply to the cases quoted by Mr. Cooper, which he said were nob analogous to the present case, and quoted several cases to show that, two sureties were not necessary to a bond. He also submitted that schedule 24 was only for guidance, and they were not bound by it. He also contended that Mr. Lysart's affidavit, showed that there had been a waiver on the part of the respondent. His Honor said the objection must be overruled. The words of the Act were precise, that appellant - must give security to the satisfaction of the magistrate within three days, and that had been done. The magistrate had exercised his discretion, 'and was satisfied with' the appellant's own security, arid he should net interfere with the discretion of the Resident Magistrate. Mr. Button then opened the appeal. The case stated by. the Resident Magistrate gave the particulars of demand. The plaintifF was a contractor, and the defendants the district Road Board, an incorporated body. The appellant took a contract for certain road work for £469. It was a condition of the specification that all the work was to be done to the satisfaction of the engineer. The Board's engineer passed the work, and left a certificate with the secretary of the Hoard. The appellant was paid £336, the Board retaining the final payment of £133. They employed another engineer, who reported that the work had not been done in accordance with the plans and specifications, and recommended them to hold over £30 as security for the completion of the work. (They accordingly paid the appellant tthe plaintiff in the Court below) £103, retaining £30. The plaintiff sued them for this amount. The magistrate found that there was a parole contract by which the plaintiff undertook to do tho work according to the plans and specifications. It was admitted by the engineer that he had not done so, although he (the engineer) considered the work good enough to pass. Judgment was given for the defendant. The question for this Court was, was the magistrate right in law ? Mr. Button said the real question was whether the engineer's certificate was final ? and ho contended that it was, and quoted numerous authorities, including the ruling of Mr. Justice Gillies in the case Burns v. Furby, a case in which it was sought to change the architect, but the contractor objected, and his Honor then sustained the objection, and held that there was no power to change the architect agreed upon, and his certificate was final. He also quoted several cases from the Architect's Legal Guide. He submitted that it would be unreasonable to suppose that the contractor undertook to do two things, namely, to do the work according to specifications and also to the satisfaction of the engineer. He submitted that the first was governed by the latter. That was a reasonable construction of the contract, and what the parties intended. Mr. Cooper replied. He submitted that Mr. Grant, the Board's engineer, had nob given a certificate that the work had been done according to plans and ■specifications, or that it was done to his satisfaction; but he merely stated that he had passed Knox's contract, and, although he had not completed the work in the specified time, he had done it in good weather, and lie presumed the Board would not deduct any time penalty. His Honor saic! that surely was an intimation from the engineer that the contractor might now be paid. Mr. Cooper submitted that the certificate was not in terms of the contract, and that consequently it was not such as sbiould entitle the plaintiff to recover, and that the decision of the magistrate was Jiound in law. Mr. Button replied to Mr. Cooper's arguments. His Honor said he would! look into the cases cited, and take time to consider his judgment. Pukkatua Block.—ln the matter erf the Native Land Court Act, 1886, and the Native Equitable Owners Act, 1886, and of the case stated in relation to the ti'.tle of the Pukentua block, Mr. Earl appeared for Paora Kawbaru and others interested in the block, and claiming to be beneficiaries under a trust. This was an argument on questions of law remitted from the Native Lands Court held recently at Helensv ille. Mr. Earl said he had arranged with Mr. Hesketh, who appeared on the other aide, that this matter should stand over fa a week. The adjournment was granted. Paparoa Block.—This was an argument of a special case. Mr. Earl appeared for the heirs of Paora Tuhaere and other tnumbers of the tribe. This was a case sinavlar to the former. Mr. Dufeur was to appear on tho other side, and, on Mr. Skirl's application, the case was adjourned for a week.

POLICE COURT.—Wednesday. [Before Dr. Giles, U.M.]

Drunkenness.—One first) offender was fined 5s and costs, or in default 24 hours' imprisonment. Alleged Insulting Language.— Hooker was charged with nstng insulting language towards Frederick Wright on August 12. Mr. O'Meagher appeared for the defendant, who pleaded nob guilty to the charge. After hearing the evidence Dr. Giles said that he did not consider the case a serious one, and dismissed the defendant on her giving a promise not to repeat hejr conduct. Harbour Board By-laws. — Edward Good was charged that on July 30 he drov-e a vehicle on the Queen-street Wharf, and refused to pay to tho Auckland Hai'boar Board the sum of 6d. Mr. McVeagh appeared for the prosecution, and there was no appearance of defendant. After hearAng the evidence, Dr. Giles said it was a grass case of refusing to pay a legal demand, and fined the defendant 20s ana costs, or in default seven days' imprisonment. Father and Son.—Lawrence Coleman was charged with being of sufficient ability to contribute towards the support of his father, Peter Coleman, who is a destitute person. Mr. Madden , appeared for the plaintiff. Defendant stated that he had a. wife and five children to support, and coukl nob contribute more than •4s per week, towards the support of his father. Aftefr hearing the evidence of the defendant, Dr. Giles made an order that he contribute the sum of 4s per week towards the support of his father.

TO THE EDITOR.

TO THE EDITOR.