SUPREME COURT.

New Zealand Times, Volume LXXII, Issue 4634, 12 April 1902, Page 2

SUPREME COURT.

SITTING IN BANCO. IMPORTANT JUDGMENT. His Honor the Chief Justice sat in Banco yesterday, and disposed of some important matters. A test case relating to the “idle and disorderly” provisions of the amending Police Offences Act of last session was dealt with. The case n as an appeal on behalf of Thomas O’Connor against a conviction of him by the Stipendiary Magistrate cf Wellington on a charge of vagrancy. The main point of the appeal was that the Magistrate had convicted O’Connor on the ground that O’Connor “Knowingly consorted with reputed thieves,” v herons the Act specified that. conviction should follow when a man was found to “habitually consort with reputed tjjieves or prostitute's.” It was urged chat the ground of conviction cited by the Magistrate was not a sufficient one. His Honor reserved his judgment on the appeal, v His Honor delivered judgment in the appeal of certain Chinese —Joe Quick, Ah Duck, Ah Shong, Ah Tun, Ah How ; Low Sheke and Low Jim —against convictions entered by the Stipendiary Magistrate of Wellington against them for having played pak-a-poo (also, in the case of Joe Quick, with having kept a common gaming-house). His Honor hold that the Magistrate had erred in assuming that because certain instruments necessary for playing tho gamo of pak-a-poo were found in tjio bouse of Quick that those instruments constituted evidence open which to convict of keeping a common gaming house. If the evidence adduced in the case amounted, to anything, it was only that a game was about to be played. Under section 10 of the Act a conviction might have been entered lor keeping a bouse at which certain illegitimate games wore playoff. The present conviction against Quick must bo quashed. The charges against Bow Sheke and Low Jim were under section 4, of “assisting in conducting a common gaming house.” There was no evidence against Low Jim of any act having been done by him. All that was proved was tnat he was in a room of the house. As to Low Sheke, the , only evidence was that lie was in the room with Joe Quick, and that there were found on him two papers which are held py persons who have tickets in a pak-a-poo lottery. That, also, was not evidence that he acted or assisted in. conducting a gaming-house. The convictions against both must be quashed. Tho ' charges in tho information against the others were that they ,( were found in a common gaming-house.” The' case, as stated, as well as the informar tiou and conviction, overlooked the fact that a necessary ingredient in the pU fence was “without lawful excuse." If a necessary ingredient was omitted the conviction must be quashed, and that would be done in these cases. ; Jfo costs would be allowed.

In the case of Ballinger Bros, against Ballinger and Co., his -Honor, in delivering judgment as to costs, said it had been agreed that tho damages should be awarded on so much per square foot of tho skylights manufactured by'defendants. It was clear plaintiffs could not claim profits and damages as well.'”

In the Palmerston North case of Osborne against Wilson, an appeal against a decision of the Stipendiary Magistrate of that district ordering the present appellant to pay certain costs incurred on his behalf for nursing and for medically treating a sick child of his, his Honor allowed the appeal. The judgment of the lower Court bad been for £l3 on a claim by Dr Wilson for £29. The appellant was a member of Court Manawatu, A.O.F. (Palmerston), and the respondent was one of two surgeons of that society. Each surgeon had. a list of the members he was to attend, and Osborne was not on Dr Wilson’s list, bub on Dr Mclntyre’s. When Dr Mclntyre met with an accident, ho asked Dr Wilson to attend Osborne’s child. The request was complied with, and the child was removed to a private hospital. His Honor said that as the questions raised wore of general interest to friendly societies it might be expedient to deal with them first. Reliance was placed by the appellant’s counsel on rule 61, which provided; “No surgeon shall he allowed to enter into any private contract with any member of the order or candidate for admission, but shall either pass or reject the candidate in accordance with these laws.” This was a very indefinite sentence. It could not mean that every contract between the surgeon of the lodge and a member was prohibited. It must have reference to what the surgeon had undertaken to do, and he was not to contract in violation of his engagement. He was to examine candidates and attend members in sickness, and might be required to attend members of other Courts. Ho was to have a list supplied him of the members he was to attend, and he was to be paid by that list. It did not appear to his Honor that this rule was operative in the present case, as the appellant was not on the surgeon’s list. If he had been, then the duty of the respondent was to attend the appellant and his family, and not to make any contract at variance with his duty. W hether any contract made would have been void it was, perhaps, not necessary to consider. The answer the first question must therefore be in the affirmative. As to the second question, if the Magistrate’s ruling on the facts were right, his Hon or was of opinion that he had jurisdiction to bear the case and adjudicate. Certain rules of .the society dealt with compulsory arbitration, or domestic adjudication by the society.

None of the provisions covered this charge by the surgeon. It was not a dispute between a member of the society and a society’s officer. The dispute was as to a bargain not made between the member as a member and the officer as an officer. The notice of appeal raised the question that on the evidence the defendant was not legally liable to the plaintiff. This point seemed necessarily to arise, and was therefore one that must be determined. iVas there any evidence of a contract to pay for the respondent’s sendees as surgeon ? The evidence of the respondent showed that there was no express contract. Was there any evidence from which one could bo inferred ? The respondent attended as a lodge surgeon, and he admitted that for the first attendance ho could not have charged the appellant. If he had intended to charge specially for the attendance at the private hospital he should have intimated this to the appellant or Mrs Osborne. His Honor was therefore of opinion there was no evidence from which a new contract could bo inferred, and that the judgment of tho Magistrate should be set aside and the appeal allowed, with £5 os costs. Judgment would be entered in the Magistrate’s Court for tho defendant—tho present appellant—with the ordinary costs of that Court. Mr Bell appeared for tho appellant, and Mr Skerrett for tho respondent.