Friday, October 18.

Wellington Independent, Volume XXII, Issue 2586, 19 November 1867, Page 5

Friday, October 18.

Tho Court opened at eleven o'clock. KENKABD V FEATHERSTON". Their Honors proceeded to give judgment in tho above case. Mr Acting Chief Justice Johnston was of opinion —concurred in by the majority of the Court —that tho demurrer must bo allowed. In the courso of the caso, several general and interesting questions affecting tho practico of the Court had,boon insisted on, but with these it would not be necessary for him in reviewing the

case to deal. As he viewed the case, it was necessary on a pleading on a declaration in tha Court, that tho plaintiff should state facts which would enable him to prove to the satisfaction o£ the Court that his claim was good and substantial. He must como to the conclusion that, in this case, tho plaintiffs had not done so. Ab it appeared to him, originally the caso had been. treated only as a claim to receive or recover money duo on a certain contract — money to be paid on a certain event under the contract, wbiclt event was the giving of a certificate by a third party. It was Bet forth in the declaration that, the terms of the contract mado it necessary that, at the completion of the work a certificate should bo given by the Provincial Enginoer, and that on this certificate being bestowed, payment could bo claimed by tho plaintiff from the defendant. It was alleged that this certificate had been withheld, although the plaintiffs had dona all that was incumbent on them to obtain it by completing tho work they had contracted to do, and applying for it. It was also suggested that, the thus withholding tho certificate was an inequitable proceeding. The question before tho Court was, wlvether the want of equity had been, established It had not been averred or sngI gestcd that the non-giving of the certifieato had. been procured by the defendant by fraud or in collusion with the engineer— there was not the slightest suggestion that siv h was tho case. As was remarked, quite consistently, in tho courso of the arguments, it was not only never suggested, that tliero had been fraud, but it had not been. : shown even that the defendant had ever refused to ask the engineer to give tho necessary certifiI cate. It was quite clear that until the certificate was given, the defendant was both legally and I morally right in saying he would not pay the | money applied for. A suggestion had been made in the course of the argument, that defendant knew what work had been done, but it was .nofc necessarily to bo implied that, even if such were I the case, defendant was bound to perform an act ! not provided for in the contract — that was to say,' I he c< uld not bo considered bound to pay the money, even having personal cognizance of the fact of the completion of the work until the third party, the arbitrator, or engineer, had given tho necessary certificate. Looking at the whole case, in whatever form* he, for on», could not come to tho conclusion that there 1 had been such ladies on tho part of the defendant as would disentitle him to set up tha j contract as a precedent. Another question ■ was raised. It appeared from the declaration that the defendant assumed, or forcibly took possession of tho wharf, and it was alleged i that therefore tho plaintiffs aro entitled to claim payment- for the work. Without saying that under certain circumstances a general claim, might not have boon supported, he could not on tho present declaration ascertain any claim for quantum meruit or quantum valeaf- The plaintiff: I in his declaration did not aver that tho work, was ! of any stated value, and the defendant having j alroady paid for the material, it hud not been shown that tho work had not been rather detri~ mentul than useful. The mere fact of defendant having taken possession of the work did not necea- ' sarily make him responsible, or entitle the plaintiff to claim "a payment quantum valeat. Moreover, there was nothing in the declaration for such a claim. Confining himself to the declaration, ha was clearly of opinion that tho allegations were not sufficient — that some other allegations werewanted to make a good claim for relief qnantum For these reasons he thought, so did the majority of the Court, that the demurrer must be allowed.

Mr Justice Gresson was of the same opinion as. the Acting Chief Justice. It was quite obvious that the obtaining of the certificate was the condition precedent to tho establishment o£ plaintiff's claim for what he asked. The plaintiff alleged' they had done all they could do, had applied to the engineer for the certificate, and that the work was completed according to contract. It was also insisted 0» that tho Court was compelled to believe the allegations in the declaration as facta. It was not only the duty of the engineer to use his discretion in giving or withholding the certificate, but it would have been absolutely wrong in him to have certified that the works were completed, if ho wero notjatiefied with the manner in which they had been carried out, and did not eoixsciontously believe that they had been comploted according to the terms of the eontraot. The declaration set forth the terin3 of the eontraot which provided that " that it shall be the duty o£ the engineer to give a certificate when the work. is completed." In his opinion too much stress had been placed upon tho word " duty," which ho read, "It shall be his function." There had. been no imputation against either the defendant or the engineer of impropriety or fraud, or colltt* sion, and he was not by any means satisfied that the dofendant would not have exceeded his authority in paying any money whatever without the certificate of tho engineer or arbitrator having first been given. That being the case, ho entirely concurred in the remarks which had fallen from the Acting Chief Justice, and was of opinion that the demurrer must be allowed. There could be ne ground of action on this special contract quantum meruit us there was not a line in the declaration, framed for special relief. Mr Justice Eichmond thought it unnecessary to add anything to the remarks made by his Honor; the Acting Chief Justice and kis brother Judge, as he concurred in their judgment.

Mr Justice Chapman also ooncuvrod in thft opinion that tho demurrer must stand. As had been stated by his brother Judges, there was no* allegation of frad against the engineer, and even, had thore been any such suggestion of fraud, there should, in his opinion, bo something linking that fraud with the defendant. As it was, them had not boon tho slightest suggestion of fraud OP impropriety, and therefore the demurrer must stand. The declaration was expressly framed for* the recovery of money, and therefore he entirely agreed with his brother judges upjn the question of quantum meruitj Mr Acting Justice Mooro differed from the reat of tho Court, but, of course, his opinion was of no consequence when opposed to that of the majority of his brother judges, and he only gave it because the parties wore entitled to know tho views of att the judges in cases brought before them. This was a demurrer to a declaration, and it appeared clear to him that tho plaintiff, on the allegationsin the declaration, waß entitled to somo relief nofe inconsistent with the relief he asked for. Ho would not take up the time of tho Court by going through the allegations, but would confine himself to saying that upon thorn it was to him very oleo* that, the plaintiff was entitled to Borne relief' frot* tho defendant. Therefore he thought th» demurrer ought to be over-ruled. The Attorney-General applied to the Court t<* give costs.

Mr Justice Johnßton said it was optional with; rf^«gungel for the plaintiff to m»ve for a new ftPPb/ f° c leave to amend the dechvf Mr TMHPHPr* it was very likely he would ask. Mr justice Richmond pointed out that it waft open to the learned Attorney-General to Bigife judgment on the demurrer, and thus gain costs, or that if the plaintiff elected to amend he muat | pay the costs. Mr Travers asked for leave to amend the decoration. Mr Justice Grcsaon-aaid that of course tha 1 application was for leave to amend on payment o£ costs. Mr Justice Johnston said that if leave wer« granted, no judgment would be entered upon the? reoord. Mr Travers then obtained leave to amend the declaration on payment of tho costs of thft demurrer. M'aAßßiaiiß AND HEPBURN. Mr Smythies for the appellant; Mr Gillie^ with Mr Macassey, for the respondent. Mr Smythies, in opening the case, stated that the appeal arose from a case of a mortgage of ffc farm for £230, on which the mortgage hadi bee*

foreclosed, and the property sold for a sum winch, after payment of all expenses and interest, left an execs over the sum received on mortgage of £00. The original sum of £230 had been advanced by Mr McLaundress, of Dunedin, and at his death the mortgage fell into the hands of the respondent in the present action, who refused to deliver over the sum received in excess by the sale of the form. An action to recover the amount was taken before the Resident Magistrate at Dunedin, and a judgment against the respondent obtained. The matter subsequently was brought before the Judge of tho Supremo Court of Otago and Southland, who Jhad reversed the decision of the Magistrate, and the present appeal was against the decision of the Supremo Court. Mr Justice Richmond remarked on the unsatisfactory manner in which the case had been stated, and pointed out that in the briefs furnished to the judges several inaccuracies occurred. Mr-Gillies was proceeding to state the case for the respondent, when his Honor the Acting-Chief Justice said tho Court would not trouble him to continue, as no cause of action had been shown, and the Judges were unanimous in tho opinion that, the appeal must be dismissed with costs, and the judgment of the Court below affirmed. The Court then adjourned for half an hour, and on resuming the case called on was that of

CLEMENTS A>'D UDMONDSON. Mr Smythies appeared for the appellant, and Mr Gillies with him Mr Macassey, for the respondent. Mr ginythies said this was also an appeal iroin the decision of the Hon. A. R. C. Strode, R.M., at Dunedin and his Honor Mr Justice Chapman. The caso was briefly this. In tho month of March, the appellant^ who had received from tho Otago Jockey Club the right to open refreshment booths and stalls on a racocourse which was private ground, took an action against the respondent for trespassing on the ground and selling refreshments to persons visiting tho races. _ Tho Resident Magistrate had decided the caso in the favor of the defendant, and the matter was taken before Mr Justice Chapman, who stated in his Judgment the plaintiff or appellant should have been non-suited. Mr Smythies then quoted the case of Wood v Ledbitter, and proceeded to avguo that tho appellant having leased from tho Otago Jockey Club tho right of purveying refreshments on the racecourse was justified m seeking rodress at law from any person infringing On his purchased right. The Acting Chief Justieo was unablo to see why the respondent should be the person sued. It appeared to him that the lessors of the ground, the Otago Jockey Club, the persons with whom the appellant entered into a contract, were the persons against whom any action should be taken. Mr Smythies argued that if a landed proprietor allowed a person to hunt over his park, and somo other person took advantage of the permission to go and hunt himself on the ground, the individual who had received the permission was the a -grieved person, and had an action against the trespasser. The Acting Chief Justice could not see that tho cases were parallol. In the present action the Otago Joekev Club say A, B, C, D, and E, entered into a contract with F, by which they allow him the right of purveying refreshments on a certain piece of ground— a race-ground. G, with whom no contract is made, goes on to tho ground and hawks refreshments among the crowd. -Did the learned gentleman mean to arguo that F had a cause of action against G rather than against the perf ons with whom he had contracted and ontered into an agreement. Mr. Smythies contended that he had. Mr Justice Chapman said that in that case a lad who knew nothing whatever 'about any arrangement that might have been made with tho Jockey Club, could be proceeded against for going on the course with a basket of apples and selling , them. Did the learned gentleman think tliat ?

Mr Smithies certainly held that opinion. The Court did not see any use in going on with the case, and unanimously dismissed the appeal with costs. CLEMENTS AND , DAVISON. This case, which was identically similar to the last, in which the same counsel appeared, was also dismissed with costs. CHAPMAN AND TOOTH.

Mr Travors with Dr Forßter wero for the appellant, and Mr Travers being absent, Dr Forster opened tho caso, on tho understanding that the Court would hear two counsel, and that the argument would be commenced to-day by Mr Travers. The Court adjourned at 4.30, till 11 o'clock this morning.