AN OBJECTION.

Sun (Christchurch), Volume IV, Issue 959, 8 March 1917, Page 10

AN OBJECTION.

PLAINT NOTE UPHELD. A question of procedure was raised by Mr Hunter, who appeared for Albert Boak McCartier, who was sued by Milner and Thompson, Ltd., for the recovery of a piano or £B4, at the Magistrate's Court to-day, before Mr Wyvern Wilson, S.M. Mr Hunter raised the point that the action was one for recovery of a piano and damages. The plaint note, however, did not disclose that but simply asked for the return of the chattel. He therefore contended that the plaint note was defective and that the action must in consequence fail. A similar case, Kirkness v. Young and Kirkness, had been decided at Dunedin in November last by Mr Justice Sim and the judgment had been in defendants' favour.

Mr Rowe, who represented Messrs Wilding and Acland, the plaintiffs' solicitors, contended that the form of plaint note used adequately gave the indication of the relief sought. Damages, as stated hy Mr Hunter, were not asked for, but possession only. In the event, however, of the defendant failing to produce the instrument if required by the Court, then the alternative asked for was for judgment for the value of the instrument.

The Magistrate remarked that apparently the same importance and attention were not given to Magistrate Court documents as those used in the Supreme Court. Mr Hunter, in reply to Mr Rowe, said that the fact that the plaintiffs claimed £B4 showed that there was an alternative action and that the second action was for damages. The point was that the plaint note clearly did not reveal this.

The Magistrate said that the plaintiffs had faithfully followed the form of plaint note provided (Form b). To have departed from this would have necessitated interlineations. He was satislied that there was no need to amend the form in this direction, however, as two actions did not lie. The "plaintiffs asked for the return of the piano. If the defendant failed to do this if ordered, then clearly he should pay the value. The value was mentioned in the statement of claim and did not come within the definition of damages. The objection would not therefore be upheld.