THE COURTS.

New Zealand Mail, Issue 745, 11 June 1886, Page 12

THE COURTS.

COURT OF APPEAL. Plummer v. Loughrey. (Judgment of the Court—Prendergast C. J., Johnston J., and Williams J,, delivered J une, ISB6. This is an appeal from a judgment of the Supreme Court, upon an appeal, from a decision of a Resident Magistrate and Justices of the Peace, dismissing an information under the Ist sub section of section 189 of the Municipal Corporations Aot, 1876. By that section it is enacted that if any person not being authorised by the Council or by any act or ordinance encroaches on a street by making any building, fence, ditch, or other obstacle or work of any kind upon, over, or under the same, he shall, for every such offence, be liable to a penalty of not more than L2O, and to a further sum, equal to the Coßt incurred by the Council iu removing such encroachment or obstruction. The information stated that the defendant, in the month of Ausuet, 1885, not being authorised by the Council of the city of Wellington, or by any Act or Ordinance eo to do, aid encroach npon a street in the said city, known as Plimmer’s steps, by making a work to wit, a balcony over such street, the said balcony being a projection from a building in course of erection by the defendant on a parcel of land, being part of section No. 513 on the official map of the said city. It was admitted upon the hearing that the defendant, without being authorised, had erected a balcony which projected over the said street ; but it was not shown on the cart of the informant that the said balcony was an obstacle to pussengers or traffic, or an injury to the said street. The Justices dismissed the information against this decision, the informant appealed to the Supreme Court on a case stated, and the Court allowed the appeal with costs, and ordered that tha matter be remitted to the Resident Magistrate and Justices, ui;h a direction that it was nut necessary for the appellant to show that the balcony was an obstacle to traffic on or an injury to the street, and that even if it were shown that the balcony was not an obstacle or injury, that would be no answer on the part of the then respondent. Against this order the defendant in the information appeals to this Court. The only question is, whether the balcony constructed by the appellant is an encroachment under the above recited provision of the Municipal Corporations Act, 1876. Before adverting further to the question* -a ; "ed..on the argument it may be well to

call attention to certain other provisions of the Municipal Corporations Acts. By the Amendment Act, 1878, sec. 23, the word * street ’ means the whole of any public highway now existing or hereafter to be laid out in a borough by or with the sanction of the Council. By the 185lh section of the Act of 1876, it is provided that all streets within the borough with the soil and materials thereof shall be vested in the corporation of the borough and shall be under the control of the Council. 'By the 187th section, it is provided that where in altering or diminishing any street any part thereof is no longer required for public u?e, the Council may sell such part to the owner of aay adjoining land for a fixed price, and if no such owner is willing to purchase, the Council may sell the same by public auction ; and a conveyance under the seal of the corporation shall constitute a good and valid title to such land. The 349th section of the Act by sub-section 4 provides that the Council may make bylaws in respect of streets : (a) to regulate the construction as to dimensions, position, materials, and every other particular of porticoes, verandahs, and all other things projecting into or over any part of the street; and (b) to prevent the erection or cause the removal of projections over or obstructing streets. The following cases were cited for the purpose of showing that where Acts of Parliament vest streets in a local body, the whole freehold is not vested, in them, but only the surface and such area above and below the surface as is necessary for the purposes of using and maintaining the street, and it wbb contended that those cases were distinguishable from the present on the ground that the soil being vested in the Corporation by the New Zealand statute, and power being given them to sell and convey the land portions of the Btreets, the Corporation must be held to have all the rights of an ordinary owner of the fee simple, except as limited by the provisions of the Act. The cases cited were Ccrerdale v. Charlton, 4 Q. 8., Div. 104 ; Bolls, v. The Vestry of St. George the Martyr, Southwark, 58 W.R. 867 ; Wandsworth Board of Works v. The United Telephone Coy. 12 Q. 8., Div., 904. In the last case, where a telephone wire had been erected at such a height and in such a manner as not to cause appreciable daDger to the public or to the traffic in a street, it was not doubted that if the whole freehold had passed to the local authority the erection of the wire would have been an invasion of their rights for which an injunction might be granted. The question we have to determine is whether a balcony projecting over a street is an encroachment on the street, although it is found as a matter of fact that it does not obstruct the street, or the traffic in it. Now it would seem from the words in the end of section 189 as to removing any such encroachment or obstruction that encroachments are contemplated which are not obstruction or injuries, and in the portion of the 349th section, to which 1 have called attention, power being given to make by-laws to regulate the construction of all things projecting into oi- over the streets, and to prevent the erection or cause the removal of projections over or obstructing the streets, it is contemplated that projections other than such as obstruct the streets are to be dealt with by the Council. The breach of such by-laws io punishable by penalty not exceeding L 5, and it does nob appear whether such by-laws have been made ; but the 189th section makes the aet of encroachment independently of any by-law, an offence subject to a penalty not exceeding L2O.

The question then comes to be whether theie can be an encroachment on the street by making any work of any kind over it, although such work does not obstruct the street. If the balcony iB above the part which comes within the definition of street above alluded to, can it be said to encroach on the street ? The answer is in the words of the clause, that that is an encroachment on the street, which is a work made over it. In support of the appeal the case of Goldstraw, appellant, v Duckworth, respondent, 52, Q. 8., Div. 275, was cited, in which it was held that under a local Act, which made provision that no projections should be made in front of any building, or over, or upon the pavement, that the enactment did not apply to projections which were too high up to interfere with free passage along the footpath. In that case it does not appear that the freehold was in the corporation, and it was said in the judgment that the object of the string of sections of which the one relied upon was one, was to keep the pavement clear for foot passengers, and to prevent obstruction to the passage of the street. We think that the construction of projecting balconies might, under many circumstances, be highly objectionable, even if they should not obstruct passage along the street, and we think it was intended by the Legislature that the Council should exercise a discretion with regard to such constructions, and that it was quite reasonable to make it penal to erect them without leave of the Council. For these reasons we are of opiniou that this appeal must be dismissed, and the case sent back to the Magistrate and Justices to v-t on the terms of the order of Mr Justice Wthmond. "Appeal allowed with costs, lowest scale. Thursday, 3rd June. (Before their Honors the Chief Justice, Mr Justice Johnston, and Mr Justice Williams.) ELL V. HARrER. Mr Jellicoe mentioned this matter in reference to costs, and argued that as no notice was given of the intention to take the preliminary objection, the defendant could not have costs ; ; re Speight (13, Q.8.D., 42), and re Bland (14, Q.8.D., 123). Mr Chapman cited ex parte Shead (15, Q.8.D., 338). The Court adhered to its ruling, and allowed the respondent his costs. RE JELL. Mr Jellicoe applied for leave to appeal to the Privy Council. Mr Austin objected that there was no power to give leave to appeal from a decision in bankruptcy to the Privy Council. The Court held that there was no power, as the Court of Bankruptcy is not the Supreme Court, The respondent’s only way of going to the Privy Council was by a prerogative petition to the Privy Council.

PLIMMER V. HARBOR BOARD. This was a case stated by the Compensation Court for the opinion of the Supreme Court, and removed by consent into the Court of Appeal. The Compensation Court made an alternative assessment of damage in the following terms : award, £1390 ; assessors’ fees, £26 ss, to be paid by the. parties in equal shares. By consent of the parties no award tube drawn up until the determination of question reserved for the opinion of the Supreme Court, “ Whether, there exists in the Crown or the Harbor Board, or both, an absolute discretion to regulate the places for the landing and shipment of goods at the jetty of the claimants.” In the event of the determination of question in favor of the Board, the award to be reduced to £IOO. Mr Chapman and Mr Brown for the claimants. The Acts which apply are the Customs Act, 1858, Section 10, and the Harbors Act, 1878, section 215, subsections 3 and 5. In the Cnitoms Act, 1858, the power of the Governor is to annul, &c., legal wharves. Legal wharves are wharves at which goods are landed from ships coming from ports beyond the seas, or shipped for export beyond the seas. Sections 37 and 99 : There is no power to prohibit loading or unloading coasters. Section 126 : These goods need not be landed at or shipped from a “ legal wharf,’’ it may be done from a place authorised pro hac vice by the Collector of Customs. Section 15 of the Harbors Act only authorises regulations to regulate, not to prohibit. The presumption is that our rights are not interfered with. Attorney-General v. Horner (16 Q.B.D. 245), |(Mr Travers and Mr Gully, contra : The Customs Act gives the Crown absolute power to control all trade, coastal trade included. If the Collector can prohibit, that is eqnivalent to the Crown prohibiting.) Mr Chapman replied, and the Court reserved judgment. The Court adjourned till 10.30 on Friday,

Friday. June 4.

DAVIES AND STUART V. HICKSON AND OTHERS,

This was an appeal from a decision of Mr Justice Richmond, which was given ou the 13th January, and was reported in these columns at the time. The question involved was the construction of the Half-caste Disability Removal Act, 1860, with reference to a Crown grant of land to T. W. Cook, in trust for the children now born, or hereafter to be born of the marriage of Cook with his Maori wife, the marriage not having taken place till after the birth of the three eldest children, Mr Gully, for the appellants : Who had purchased the shares of the children, whose title was now in question ? Although the Act does not use the expression contained in the grant“ born of the marriage,’’ it was the strongest possible language to effect legitimacy. It was the terms “legitimate,” “lawful issue,” “in wedlock,” “ capable of inheriting,” and “ legally intermarried.” The Act is intended to legitimatise, not merely to render the children capable of inheriting. The grant shows no intention of excluding children born before the marriage who had then already been legitimatiaed. The grant must be read by iha right of the statute, as it was issued subsequently. Mr Travers, for the respondent, Hickson : The use of the words “ now and hereafter to be born of the marriage ” cannot be applied to children born before the marriage, although legitimatised by statute. If it had mentioned the children generally it might have been sufficient. The fact that they have been made lawful issue does not make them children born of the marriage. If a person has a child in Scotland, then marries and goes to England, the child is legitimate for the purposes of distribution of personalty, but not of realty. The property in this case is realty, which goes under the statute of distributions. Goodman’s Trusts (17 Ch. D. 266.) The interpretation would have been the> same if the words “ born in wedlock ” had been used. The proper remedy of the children would have been to have impeached the grant. The language of the grant refers to the ceremony of marraige as to the date from which the grant is to operate, and not the mere question whether, under ordinary circumstances, the children would be considered legitimate. Mr Quick for Arthur, Alfred, and W. T. R. Cook. The act was not intended to limit or affect the right of third persons to settle property by devise or grant. The words of the grant are those of third persons, who must be assumed to know the law, and to have expressed their intentions. (The Chief Justice : If a marriage is void through the chapel not having been licensed, or something of that sort, and a validating Act were passed, would not the children borne before the Act come within the terms of a settlement where words similar to those used in the grant are used ?) The distinctive line is that the marriage was subsequent ; there was no prior form of marriage to validate. The legitimatising of children in Scotland by subsequent marriage does not give them a priority over children who had been born in wedlock by another wife, although they may be older. These are children to whom the words of the grant do apply, and they are entitled to have the Act construed strictly. Mr A. Brandon, jun., for the remaining defendants : This Act does net purport to validate a prior marriage, but to legitimatise the children. Mr Gully in reply. The Chief Justice, in giving judgment said : If I had thought that any authorities on this subject had to be considered, I should have considered my judgment, but no authorities have been cited bearing at all on the case. What we have to decide, is whether the language of the Crown grant was intended to exclude the legitimate children of Mr Cook and his wife. The marriage had taken place long before the Crown grant, and the Act was in force at this time. The Act was a public Act, and therefore the effect of it must be assumed to have been- known. This Act in effect, in my opinion, provides this, that the marriage of such persons as are mentioned in this Act, surh persons as Mr and Mrs Cook, shall be deemed to have taken place before tbe birth of each of their three children for the purposes of their rights. No particular time has been fixed for the date of marriage, general language has been used, and the occasion of each birth is taken as tbe time. The marriage is presumed to have taken place before the birth of each child. General language validating a prior marriage would have been dangerous to have been used. To have said that f >r all purposes, the marriage shall be deemed to have been valid, would have led to results not contemplated by the Legislature. So far as the rights and statas of the children is concerned

the marriage is simply assumed to have taken pi ace before their birth. For that reason, I think, the children are brought within the words of this grant ; they are the children of the marriage -by virtue of the statute. Mr Justice -Johnston : I have come to the same conclusion, although bot without some doubt and difficulty, on account of the opinion of Mr Justice Richmond ; but it seems to me that the proper way to look at the case is this : At the time that the grant was made in 1863, Thoraaß Cook and his wife had a number of children, of whom three, specially mentioned, were born, de facto, before the marriage took place between Cook and his wife. Bat at the time of the Crown grant they were in this position—that they were legitimate children, and capable of inheriting property from their parents ; that they had, to all intents and purpo?es, all such rights as if their parents had legally intermarried before their -birth. Now it is quite true that there is nothing whatever to prevent Cook himself, or anyone else, from settling the property upon the children of Cook and his wife, excluding those children who had de facto been born before the marriage. I agree with Mr Justice Richmond in that respect, but considering that by law those children had all the rights that the other children had, that they were in all respects on the same footing with the children born after the marriage, the question is whether the language of the statute shows an intention to exclude these three children from the general body of children of Cook and his wife. lam of the opinion that if that had been the intention, more appropriate language would have been used, and that looking at the whole thing by the light of this statute I should have expected that if these persons were to be excluded from the benefit of the grant, tbe language would have been such as to make it quite clear that tbe intention of the parents was at variance with the intention of the Legislature. I cannot admit that the words children of the marriage necessarily mean children horn after the marriage, although those three chile-ren are entitled to all their rights as if the marriage had taken place before their birth. For that reason, I have come to the conclusion that it would be giving to the words “of tbe marriage ” an undue meaning under the circumstances, if we were to hold that “of the marriage ” all the same as " after the marriage.’’ Mr Justice Williams : I agree. The Act provides that children born before the marriage are to have the same legal status, and the same rights as if the parents had legally intermarried before their birth. Now, the deed was made subsequently to the passing of this statute. The deed grants land to Cook in trust for tbe children now born or hereafter to be born of the marriage of Cook and his wife. I take it that the meaning of those words is to make the grant upon trust for the legitimate children of Cook and his wife. Had it not been for the statute, it is certain that such a description would have been an apt description of legitimate children. I, for my part, cauDot see that the fact of the statute being in existence should alter the meaning of this grant. I agree with the learned Judge of the Court below that the statute “ does not alter the effect of the language of legal instruments so as to extend to children in general words properly descriptive of a limited class,” but I do not think that the words in the grant are the description of a limited class, but of all legitimate children. If the grantor had intended to discriminate between one class of legitimate children and another class of legitimate children, he would, in my opinion, have used language of a very different kind. Any conveyancer, if he had intended so to discriminate, would have made his language plainer. My only hesitation from the first has been owing to my respect for the opinion of the learned Judge in the Court below ; but T am compelled on this occasion to differ from him. Appeal allowed, with costs, to all parties out of the estate. Mr Travers applied for and obtained leave to appeal to the Privy Council.

BUDGE V. DODSON. In this case judgment was delivered, varying the judgment of the Court below, and declaring that advances made to Mrs Carey, one of the daughters of the deceased, or to her husband with her consent, should be allowed up to one moiety cf her expectant share ; costs to be paid out of the estate. LOUGHREY V. PLIMMER. In this case Mr Justice Johnston delivered the judgment of the Court, dismissing the appeal, with costs on the lowest scale, and confirming the action of the Corporation. WALKER V. WELLINGTON AND JIANAWATU RAILWAY COMPANY. Mr Richmond proceeded with his argument, dealing chiefly with the meaning of the term “ buildiDg ” and the validity of the proclamation. Mr Travers in reply. The Court then delivered judgment, affirming the right of the claimant to the full compensation awarded to him by the Compensation Court. This was the last case for argument, and the Court adjourned till Monday, Monday, May 31. ELL V. HARPER. When this case was called on it was admitted by the defendants that the notice of appeal had been served, but it was sworn in affidavit that it had been abandoned, and no security for costs given. Mr Jellicoe then proceeded with his argument, and referred to rule 14 of the Court of Appeal rules. Sugden v. St Leonards, 1 Prob., Div. 209. (The Chief Justice : Can you find any authority for this Court to set aside a judgment on the ground that the Registrar proceeded improperly, or arrived at a wroDg conclusion h This Court, in an appeal from a judgment, can go into the whole merits. (Mr Justice Richmond : lb renders entirely futile the rule as to appealing against interlocutory orders.) If the Court can see that the Registrar made a mistake in opening accounts that he Bhould not, the Court will go into it on the motion for judgment. (Mr Justice Richmond : An error of judgment made by aa officer in pro ceeding on insufficient evidence is not mistake. It does not mean mere misjudgment.) The intention cannot be imputed to the Registrar to allow what he should havs disallowed ; so it must be mistake. The Registrar should set out bis evidence and notes, and, to discover any error in the certificate, the decree and the Registrar’s notes must be looked at. Mr Jellicoe was then stopped by the Court. Mr Chapman for the defendants : It the certificate ia not sufficient, all that can be done is to refer it back to tbe Registrar for amendment. If the judgment is set aside, that is attacking the certificate

(which . has been confirmed. The certificate in form is according to Rule 431, which only requires the result to be stated j but no report to be made unless by direction, aud the report was never objected to. Mr FitzGerald : If the case goes back it should be on terms, that the plaintiff finds security. The defendants have had to pay costs in the other action, and the plaintiff should find security for their costs in this action, in which they have - been successful. The parties must be restored as far as possible to their original position; Cannaa v Reynolds (SE, and B). If the plaintiff succeeds it will be upon no point raised by him, and he should not get the , costs of the appeal, as be is obtaining an indulgence. Tbe Chief Justice: In this case we think that the judgment should he set aside, and the certificate reviewed by the Registrar and accountant. The certificate, when looted at, shows us that the proceedings in Chambers were not taken as intended by the rules, and therefore not in a way which enables the Court to deal with it when it comes before it on a motion for a decree. It is quite clear that when accounts have to be taken the party accounting brings in his account, and the Registrar takes evidence oa the account. That was not done io this case, but an account was prepaid by the Registrar and accountant, and appended to the certificate. There is nothing to show that a conclusion was arrived at, or what conclusion was arrived at.> This is an account with interest added to it, but there iB no indication as to what the items represent. There is nothing in the certificate as to the evidence the Registrar has acted on. This being so, no Judge could make a decree on such materials. That was the position, the matter was in before Mr Justice Johnston,and we think if this had been represented to him he certa'nly would not have made the decree. It is the fault of the appellant that he has consistently made wrong applications. In this case he was making an application to review the certificate on the ground of mistake, and the Judge decided rightly that there was no mistake, and he was right in refusing to review on the ground of mistake in tbe sense of that term in the rule. But as we find ourselves unable to make a decree upon this certificate, so he Bhould have proved hitnself unable to do so. Before concluding I think I ought to say that the blame falls more on th 9 representatives of the litigants than on tbe Registrar in making his certificate and in proceeding as he ha 3 done. The Registrars in the Supreme Court have not had the experience they have elsewhere, and it is incumbent on litigants to see that the proceedings are taken in the manner contemplated by tbe rules. The costs ought to fall on those who represent the litigants, bub there is no cornplaint against the officer. I therefore think the judgment ought to be set aside, and the certificate rescinded. We have considered whether or not we can limit the items on which the review should take place, but on the whole we thfnk iu the interests of both parties it should be set at large. Most of the items will, no doubt, be agreed to, and only a few of the matters gone into again, and the evidence already taken can be admitted to be sufficient, I think each party must pay the co3ts of this appeal as the appeal was limited to the certificate bemg void on the ground of mistake, but the case goes back on entirely different grounds, namely, that this Court itself Eeeing the certificate, finds it so insufficient that no conclusion can be come to on it. On the other two appeals, inasmuch as the appellant has not come within the right lime, the orders appealed from being interlocutory orders, must be dismissed with costs ia each case on the lowest scale.

(Before Mr Justice Johnston, Mr Justice Richmond, and Mr Justice Williania). W. BAYLIS, JOHN BOBEBTSON, AND W. P. BICHABDS (APPELLANTS) AND THE COBPOBATION OP WELLINGTON (BESPONDENTS). This was an appeal from a decision of the Chief Justice. The facts of the case were as follows : Baylis entered into a contract with the Corporation to do certain works ia the formation of Russell-terrace, in the City of Wellington, the other appellants being his sureties, for the sum of £849 103, the whole work to be completed in four months from the sth August, 1884, and he lodged £25 as a deposit. The 11th condition of the contract provided that, if the contractor failed to complete his contract in the time specified, he should pay £1 per day penalty until the whole work was completed, and that that money might be deducted from any moneys due to the contractors on account of the contract. Clause 18 provided that if the contractors should, in the opinion of the Engineer, commit any wilful breach of the contract, it should be lawful for the Corporation to take the works out of his hands and re-let them ; and if the balance of the contract price, together with the deficit in any percentages, a retention moneys was not sufficient to meet the sum agree! to be paid to the second contractor, then the contractor should pay such sum as might De required to make it up to the Council. It was also provided that if the works could not completed by the second contractor within the time originally fix?d under the contract, the Council should give an extension of time, or the contractor should pay the Council a sum of money equal to the damages which would have been incurred, calculated a 3 provided in clause 11 for a delay fqual to such extension. Baylis proceeded with the contract on tha 26th May, 1885, when he wrote to the City < Engineer, saying that ia consequence of the continued bad weather he had decided to proceed no further with the work, but to leave ; the Engineer to do a 3 he thought fit. On the . 4th June the Engineer certified that Baylis had committed a wilful breach of the contract, and that it was necessary to allow eight weeks for the completion of the works from their re-commencement. The works were subsequently re-let at £399. The Corporation then made up an account against the appellants as follows :

poration 148 3 0 Before this claim a spscial case wa3 stated, and the Chief Justice gave judgment for the Corporation for £IOO 3«, bat refused to give the £4B for penalties in the extended contract. The defendants appealed, and the Corporation gave notice they would claim the whole sum, Mr Travers, for the appellants : The case depends on the language of the conditions. The penalties under clause 11 are only available if the contractor is permitted to complete the work. But the Corporation took the contract over under section 18, so they have waived the penalties under seetion 11. Under section 18 they are bound to give credit for the entire amount in their hand?, and no provision is made for deducting penalties. Section 18 supposes the time for the contract had not expired. The case cannot be suppSrfced without reading into section 18. the words " including ■ penalties." (Mr Justice Richmond : The final part of section 18 provides for penalties under section 11.) Yes, but only equal to the extension of time granted. The.f conditions must be strictly construed in favor -' of the if they are susceptible of two constructions, the sureties can avail themselves of that which is most in their favor. The extension by the surveyor was not sufficient, as not fixing a date from which it commenced. Under section 11, there must be money due before the penalties could be deducted, here the money was not due. Tuesday, June 1. T. F. Martin, City Solicitor, for the Corporation : There is no difficulty in dovetailing sections 11 and 18 together. There is nothing to prevent such an extension after the termination of the time within which the contract ought to have been completed. (Mr Martin was stopped by the Court). Mr Travers ic reply. The Court then delivered judgment, dismissing the appeal and giving judgment for the Corporatiou for the whole amount claimed. The judgments will appearin full in the Legal in the Sew Zealand Mail. mddgway v. davy and others. (Before the Chief Justice, Mr Justice Johnston, and Mr Justice Williams.) This case, which was an appeal from the decision of Mr Justice Richmond, was then proceeded with. A full report of the case and arguments will appear in a future issue. .' ~, v Wednesday, June 2. porcey v. tahau. "'^ Mr S. T. 3?itzherbert mentioned this case, which, he Baid, had been settled. It was agreed that the Court should make a decree, varying slightly the decree made by Mr Justice Gillies. The question of costs was left to the Court by agreement. The Chief Justice: Substantially the Natives have succeeded. We see no reason for the respondents not having their costs in this Court. No doubt the result is an agreement, but on the whole the appellant has substantially failed, and in the end the respondents would have succeeded. We think the respondents are entitled to their ! costs in this Court and the Court below. MUDGWAY V. DAVEY. The arguments in this case were then proceeded with and concluded, aud the Court reserved judgment. PLIMHER V. WELLINGTON HARBOR BOARD. This case was then commenoed, Mr Chapman and Mr Brown appearing for the plaintiff, and Mr Travers and Mr Gully for the defendant*. When Mr Chapman had concluded his argument the Court ro3e for the day. Wednesday, June 9, 1886. (Before his Honor Mr Justice Richmond.) TAYLOR V. OJJFICIAL ASSIGNEE. This was an appeal from a decision of Mr G, B. Davy, sitting as District Judge at ' Master ton. The short facta were that one Bowles made a settlement of stock, &c, in 1879 in favor of his wife and children, Taylor being the trustee. Shortly after he sold the stock. In 1883 Taylor pressed him for securitv for the amount realised by the stock, and in March, 1885, Bowles gave him a second mortgage over soma property. In July, 18S5, Bowles became bankrupt, and the Official Assignee, sought to set aside the mortgage as having been given without consideration. The District Judge gave judgment for the Assignee, on the ground that the original settlement was void, a 3 being fraudulent under the Btatute 23, Sliz. Mr Fitz Gerald, for the applicant, cited the cases, Hoiloway v. Mallard (1, Mad. 414), MacXay v. Douglas (L.R., 14, Eq. 120). Tu re Butterworth (19, Ch. Div. 588 ) Mr Travers for the defenanfc. The Court reserved judgment.

OIYIL SITTINGS. Tuesday, June 8. (Before His Honor Mr Justice Richmond and a jury of four.) SYME V ROCKSTROW. This was an action brought by Catherine Svme to recover £SOO damages from John Frederick Rockstrow, for alleged unskilful treatment of a broken arm, and for loss of services arising from the same cause. Mr Devine appeared for the plaintiff ; Mr Baker, of Foxton, for defendant. Catherine Syme, wife of Mungo Syme, of Nelson, deposed that she had left her husband for some years, and had supported herself. She acted as housemaid and housekeeper for about 18 months to Mr Jewell, hotelkeeper, of Foxton, and received £1 Tier week for her services. She had received medicine and prescription on one occasion before January, 1885, from Dr Rock-b'-ow On January 3rd she was riding ou horseback, when her horse threw her, and she fell on her elbow, and her arm nung uselessly at her side. Mr Jewell’s sou was with her, and she asked him to go for Dr Rockstrow. She stayed at a house in the vicinity until Mr aud Mrs Jewel, came. She was then taken to the hotel, where Dr Rockstrow attended her. Her arm waa very painful. Mr Jewell brought medicine during the night, which she believed came from Dr Rockstrow. In the morning, Dr Rockstrow came and said he wanted assist-

aoce. He and another young man pulled her i »rm, and afterward put splints on. He did jiot Bay be would not undertake thd.caee, He removed the splints in a fortnight. She asked the doctor if she could go safely to Wellington, he replied she could, t>he left her arm entirely to his control. Saw Dr Rookatrow .the night before Bhe left Foxton, when he told her to keep the splint on and keep the arm in a steady position. He seemed anxious that gbe should go to Wellington. She asked him 'what his charge would be. He considered for some time, and then said a guinea, which she paid. The next morning she left for Wellington in the coach, and arrived safely. She arrived on a Tuesday, and consulted Dr Gillon • in reference to her arm on the following Saturday. Saw Dr Heniy on the following Monday. Dr Henry came to see her the next day, and brought Dr Grace with him. They called her in and gave her chloroform. Dr Henry continued to attend her for some months. Her arm was slightly improved. Ten months elapsed after the accident before she could do anything at all. She could do light housework. Was in good health afc the time of the accident, but very ill after it for some time. [At this stage the witness removed the bandages from her arm and exhibited it to the jury.J Cross-examined by. Mr Baker,: Went to re- . dde at Foxton in October, 1883. Knew Dr Kockatrow very well. Had never heard anyr thing about Dr Rockstrow’s status as a man. Previous to the accident, she had gone to him as a medical man for advice. Believed him to be a doctor, as he had always been regarded in Foxton as one. On arrival at the hotel at Foxton, immediately after the accident, the doctor bandaged her arm ; no splints were put on that night. The splints were put on next morning. The first day he came once or twice ; after that he came at intervale. W itness was satisfied at that time that Dr Rockatrow was doing his best for her. . He attended her for three weeks. She paid him £1 Is, the amount charged, but thought the fee would have been three or five guineas. Dr Rockstrow often asked her if she was . goiog to Wellington, and appeared anxious that she should go. Dr Gillon would not undertake the case unless she went to the Hospital. Dr Henry told her that her arm had not been properly treated. Dr Henry deposed that Mrs Syms consulted him in February, 1885, in reference to her arm. iiHe found the bones of the forearm out of place. He pointed out the difficulties of the case to Mrs Syme, but thought he - would be able to do something for her. There was a dislocation of some standing—at least a few weeks, he thought—it was not a difficult operation to reduce a dislocation of recent standing, He had attended the plaintiff’s case, and effected some improvement, but was unable to do much without danger to the patient from inflammation. He looked for a fracture, but found none. _ There was a good deal of deformity in the arm still. If he could not have ad- ' minatered chloroform to. her he would not have touched the case owing to the difficulty of the operation. A dislocation could be reduced if of two or three day’s standing, but it became very serious after that. Dr Grace saw Mrs Syme in February, 1885, in consultation with Dr Henry on account of the condition of her arm. The arm was rigid, and the two bones of the forearm were dislocated, and riding. Thought the dislocation was not of recent standing. Thought it must have happened at a longer period than three weeks. The delay made the case very doubtful as to the result. He thought the case previously had been very unsuccessfully treated. In answer to Mr Baker, witness said a medical man often had to take up such cases whether he liked it or not. It was quite possible for one man to have difficulty in reducing a dislocation by himself. After a reduction, the muscles would not be strong enough to force the bones out. of position again if the bandages were removed. Some pressure or force would be necessary, the ligatures were broken. For the defence Mr Baker called Dr Gillon, who deposed that he remembered Mrs Syme calling on him in reference to her arm. He told her he should want a consultation as the case was a very grave one. He advised her to goto the Hospital. Did not remember much about the case, as it was D o long ago. Dislocation of the elbow was one of the most difficult to treat in the whole body. It was one that required a great deal of experience and considerable skill. If the dislocation had taken place more than two or three hours before. Should not attempt a case of re-dislocation unless the patient was put under chloroform. Dr Collins was examined afc considerable length as to cases of dislocation and re-dislo-cation of the elbow, John F. Kockstrow deposed that he resided at Fox! on. IV as in charge of the Westport Hospital under the Provincial Government of Kelson, in 1867 and IS6B. Was at present medical attendant by appointment of Government to the Natives. Had resided in Foxton since 1873. Received his medical education in and was a native of Prussia. Had not registered himself in this Colony under the Medical Practitioners Act. Haid often been called upon to act in cases of accident in Foxton. The nearest medical man from Foxton resided at Palmerston North, 25 mile 3 distant. Thought every one in Foxton knew he was not a registered medical practitioner. Had attended the Jewell’s both before and after the accident. Had never represented to the plaintiff that he was registered. On the 3rd January, 18S5, about dusk, a messenger came and asked him to attend to Mrs Symes, who had fallen from her horse and injured her arm. He did not go, and did not promise to. Another message came to him to go to Sutherland’s for the same case, but he declined to go. In cases of emergency be attended charitable cases ; and when he heard that Mrs Svme was coming to the hotel he went there with splints and bandages. He found that Mrs Syme had sustained a forward dislocation of the elbow, which he took steps to reduce. He pulled the arm, and heard the peculiar click made by the bones when being shot into their proper position, and was satisfied that the dislocation was duced. That was about three hours after tue accident. Witness was then examined at considerable length to show that a fracture of the bone had taken place, and that plaintiff had contributed to her own injury by removing the Spl At 10 minutes to 7 the jury retired, and at 8 o’clock returned with a verdict for plaintiff, with £2OO damages, on the ground that de*—r.a/1 ohnwn negligence in not setting

the limb on the night of the accidant, and in not calling in medical assistance afterward. Costs were allowed on the lower scale. Mr Baker intimated his intention of applying for a new trial, on the ground that _ his client could produce evidence that the limb was "set on the night of' the accident. He asked that execution should be stayed.

Mr Justice Kichmond did not- see. any grounds why he should stay execution. The Court then adjourned until 10 o’clock on Friday (to-day).

Balance of contract £ a. d. price uncertified for 284 17 0 Retention moneys upon £ s. a. contract price 112 18 7 Retention moneys upon extras 23 1 5 Deposit .« 25 0 0 161 0 0 Less penalties of £1 per day from 5th December, 1884, to 26th May, 1885 147 0 0 14 0 0

' Amount to go to credit I of Bay lie aa against new contract price.... 293 17 0 New contract price ... ... 3Q9 0 0 Credit from old contract as above 29S 17 0 ‘ ■■ • ... 100 3 0 Add-.penalties for extra eight weeks, certified by City Surreyor,' for completion of work ... 48 0 0 Balance due by BaySis to Cor-