LAW REPORTS.

Dominion, Volume 3, Issue 784, 6 April 1910, Page 4

LAW REPORTS.

p; of appeXl

[K HUDDART-PARKER BOATS RUNf;/ : : NINO COASTWISE. V

: TJNDER WHICH LAW?; . la'ie.': : The' CourtVof Appeal .heard yesterday |'H-the7'. case' .of' 7 the , HuddartJarker j;7/Cbmpany7 Proprietary," Limited, '.■ versus i Stafford -Nixon,: Collector .of SvECustbms -at the port of Wellington. tojM:Beack comprised the Chief Justice |: :i S(Sir.; Robert; Stout)'; -Mr. .Justice -; WilJ7;7liams,vMr. ■ Justice' Edwards, and Mr. 'KAjnstice Chapman. . '•;' ■''■■/' : .. •,' ■.: Mr. Martin Chapman, K.C., with him £7"Mr77E.; F. Hadfield, appeared "for- the ki plaintiff company, and Mr. M... Myers '-^Vfor the defendant.. 7 The "case;stated for. the opinion of (;:.?theVCoyirt set out that the Huddart577Parker Company-was a joint stock.cbmII "rJpany.incorporated in the. State of ■■Vic-. ',';; toria aid Commonwealth of Australia, te zander the' laws in force in that State, registered ■as a", joint' stock j;>v'company at Melbourne. The company [p7 : . owned steamships .registered in' the VieIn 7torian; '.Register of. Ships.'. The,cbmf ;■:.; pany, had its -principal ■ office at J.Mel|;;v; bourne,'and; had agency offices in-New ■,Zealand. ,' The conipany engaged 'seaj: ;, men- and ; .officors on-;articles ...signed, in. '. or-.Sydney.:7These-articles the .contract between - the [:<; ; company t and, the; officers and'men em'•■7:7pipyed;;>iThe;;aftieles were, taken, out, J.for a. -term of, six' months, /and-' the •fi.iwages .-of. the."persons employed 'were ■^vfixea. 1 by these artioles.' Wages were J; .paid monthly at.Melbourne or Sydney, : to.' the place :of engagement. tV 'Several of the company's vessels traded teHfrom ,Australia, to New Zealand, and \j. ■-'• also ok the coast of New'Zealahd. ■•■■ The 1-7; wages, '■■ as fixea by ;the articles; -were; *.'■:,; in -.the; case ,of some engineers, equal Si; ', to .or; greater. ; than the current rate.' of. 67.';wages'payable in New-; Zealand, but; in. f : v/s'ome instances,;they .'were .less;- These jyV- wages; were 'fixed by an; award 'of .the p. 7 Commonwealth Court;; : of Conciliation' t;p'and. Arbitration,. a';court constituted by f.V.CVirtoe jof: the ; Commonwealth Cohcilia-

;.;!/! iion ; and--Arbitration Act, 1904, under, gr^which.' wages^' : of.- /inter-_Sfate ; . trading «,';■'=.' ships; 'were'.regulated. ; By. ine Vicr |ij;; tonan Marine 1897,- Section 166 jj'of,.the Merohant' Shipping..'Act,- 1894 i' /'(lmperial); was adopted. Each;separate If. estate had-. either adopted, this; provision/ or enacted a similar: provision!:/Y The jjv V'New ■;'Zealand ..'-Marine'-.--Department p:):: claimed/that -while, the. company/B ships ij'K'.were in-New Zealand ports; and while' E\-.; they; were travelling' between'..two .'New' £. •;!;' Zealand ports, the company ;■ was ..hound ;;-,/; under' Section -75 .of the New Zealand £:;> :ShippiflgVand;Seameii._Act; 1908,; to pay CV'.the New/'Zeaalnd current rate !of wages' J r;to . the':! crows...' The /Department .-also i'£Xdainied •■ that, under Subsection 3- of liy,: Section--.75- of the -AcVUtheS'.Collcctdr J//r of Customs was entitled;to' refuse'-'tlie ?/!;/; ship's clearance' till the crew-had been *:.';:.. paid the . ourrent rate' of' wages "ruling v//ih. New Zeaaltidj.'or,;'any:difference ! heft- ',/ tween -the agreed rate of- .wages ■ and the: Zealand-rate.-, : The/Department .;.. ••^further;'claimed!,that.'. seamen",employed Jy./f-by:|he company., tfere!'entitled! to! sue i:_/: .thfl.Jcpmpany; the £v;;'current ;iate of .wages,!-!-ndtwithstand-. ?>,;.;iDg.;-*the!!prorisions,, of. ;i ,the .-Victorian '!; ':!.■ ,Sta^nte,^ahdtthe"'agreement "in' the arx'/iicJes.}..- ';v;;r;;-i;-.ijV. ;.■':■ .' :'.'■ i' ; !!;...-.' '".>' ! !;.;;.; > ; *;Thje!vques'tions /submitted -,-for! -^the

f>> :^in!ionL*ft,the'Cmlrt' , :/:':.:iv ; !' ji; ; V--!\;- Section-75 of- the Ship-' p;!j:ping.!and :r Seamen!Act,! 190&7- apply! - J.'.';- 1 .?;:':;;'to! the .oompany'-s'-. ships;'(a) while U; in;'New;Zefti3Jiaip;ortsl!(bV-while; at . !./'/. ;;.Bea--beiween' i New: Zealand /ports?/ .. f. Y,>W: 2, .Are the' aboVe-niontiohed.;cbh-, ;;■;;. ■■'■■' ■-. tentions of the .Marine Department >"■ &/S;Well founded?- ':"' : ;r i , : !fc.;:"^.' ,: '»!' :; ''":: !'"■- '■'&, ;j, 3 -. Has .■" the!!.' Superintendent ,-df ■ • Marine> ■ thVy!!.rightvto ~ ?:.-.:. , : make'.the.indorsement mentioned in :;:rw Subsection/ 2 of/ Section.,7s' of the -1 j;.-.-f::Shipping-a'nd Seamen/Act; 1908, :oh" r b'-j-vthe articles of the company's ships i!.//V trading,as/aforesaid? -.-!■.'■:;' .: ::■'+:/;.

•y-.•":', ': :f• Can seamen on the company's ./;::•:' ships sue. in.Newy.Zealand, for the." i;:.':; cii Ment rate, of wages"rilling in i.:V:./No* Zeaalnd, notwithstanding that i'-' : : : - ; a different rate; of "wages is 'fixed by' ; ship's.,articles? • Court heard argument; and ■..-..■ .■;

I. SUPREME jCOURT,

'NELSON COAL-MINE CASE,

TRAMWAY TO THE 'SHORE.

;.;. The: ease of the Seaford Coal Company,. Limited, and E. : G. Pilcher versus John Shaw and G. B. Watson, heard on :March 18 _and 19, was decided by Mr. Justice. Williams yesterday. ; "V Mr; M. Myers appeared for the plaintiffs, Mr. D.M. i'indlay; for the .defendant Shaw, and;-Mr. Magirinity-for the . Watson; :,'"./ The case, which c6fnprised v a motion for the specific performance, of an.agreement, had been transferred from Nelson ■for/argument by Mr. Justice Dennistou. ■;..'. The plaintiffs claimed that . Pilcher,' .manager of- the company, .was, prior to' the formation' of ■ the' company, the owner of • the Pakawau Colliery, near Seaford, in the Nelson .'district.'■';' The colliery was separated from the' seashore by certain lands of the- defendant Shaw, over which it waß necessary-tb lay tram-lines to convey the coal to the

'shore for export. The company acquired l :: the colliery property from Pilcher, and in- ;~ September, 1905, Shaw on- : tered irtfco an agreement under which Shaw was to permit Pilcher to lay railV. ways, or tramways over the land and 4 to lease him two acres for- purposes conpnected with shipment of coal on certain .-conditions -which were varied by a- sub■■:l sequent' agreement of May, 1907. The had acquired land on the shore :,':"■ and erected a wharf; but owing to Shaw. '-.; not performing;his part of.tmvagree"/irie'nt,they were unable to construct ,the :-tramway across his land. The plaintiffs V,claimed that defendant be ordered to ..•; -perform his part of the agreement, and /they also claimed damages. . ■ ■;. : ;. The /.defendant. Shaw, admitted, having ■ "signed the . agreement of September, 1905, and he admitted signing a memo- ■ randum in May, 1907; to the effect-,al-v;leged, : b,ut..statcd.jfc.was not .an ..agree-, ■ ment, and its terms were never accepted :' by'Pilcher, who had already' refused to carry out.the agreement'of September,, v 1905, • which- had been rescinded by consent., The : memorandum of : May'/ 1907; was a proposal for a, hew 'contract. No route; had been approved, and no. proper route had been surveyed or submitted for approval. The 'defendant "Watson had ; been loined in the case in consequence' Tof lavirig bought land from Shaw.. His Honour, in giving judgment, said that Pilcher had done nothing whatever . on tho land from 1905 onwards, It was .not till August, 1908, that Shaw was - made aware of the proceedings to take tho'land. He took steps to object, and, at the hearing before Mr. Vickermann in November, his objections were sUs- ;: tained. If Pilcher had intended to rely ; upon tho contract, he could, at any ■'- rate, have commenced proceedings in 'October, 1907, when Shaw returned --'.'■ from' England. Instead of doing that, -he continued the proceedings which he '■'■■. had commenced behind Shaw's back, for :, the purpose of compelling Shaw'to give :' him something other than the contract'. i Is, those proceedings, Pilcher treated the

document of May, 1907, not as a contract, but as an offer which he would hot accept. Pilcher had failed in those proceedings, and it would bo in the highest degree inequitable to allow him to compel Shaw to perform tho'contract specifically. The defendants were therefore entitled to judgment. Costs:were allowed as if £600 had been claimed.'

QUARTERLY COURT RETURNS. The. return' of businesfs transacted in the Supreme Court in tho Wellington Judicial District during the three months ended March 31 gives the following items: — : ' •

'. Criminal Cases.—Sitting da,ys, 10; indictments, 8; proceedings stayed, 2; persons convicted; 3; persons acquitted, 3; persons committed for sentence, 13; subpoenas, 7; office copies (folios), 146. • -Civil days, 13; writs (ordinary), 33; writs (bills of exchange), 7; extraordinary remedy, 1; originating' summonses, 3; trials by special jury, 2; trials'by judge, 6;'jiidgmonts entered, 17; discontinuances, 2; charging orders,'s; executions, issued.'6; taxations, 33; subpoenas, 40;. office copies (folios), 70; searches, 6.

-Compensation Cases. —Claims, 4; awards, 1. . Chambers.—Sitting days, 32; motions, 200.; summonses, 26; petitions, 11; orders, 232.' Banco.—Sitting days, 12; motions, 3 ; hearings, 10; rules and orders, 9; appeals from inferior courts, 2; special cases, 2. Divorce and -Matrimonial Causes.— Sitting days, 5; petitions filed, 11; answers filed, 3: motions in Chambers, 5; orders, 6; "trials, by judge,: 7:; decrees nisi, 11; decrees absolute, 13; taxations, 2;office copies (folios), 12; searches, 4; Probate and Administration.—Probates, 65; administrations, 96; oxempli- , fications, 5 ;■ searches, 21. • Registration.—Chattel securities, 200; memoranda of satisfaction, 48; powers of attorney, 4; other matters,; 3; searches, 318. --• ;'■ •"•...-■•--.; : ■ Bankruptcy.—Sitting days, 2; debtors' petitions, 6; creditors'," petitions, 6; adjudications',' 8; discharge, 1; motions in Chambers/2;. niptions in Court, 2; orders; 6.;'-: \:'.. ' ••• ■)

Property Law' Act,-' etc.—Applications to conduct'sales,-20... '.;.;.,-.. Rating/' .'of judgments lodged, 2< '>'■'■'. r. Fees.—Bankruptcy, £87 -10s. 6d.; other -than bankruptcy; £626- 12s. 4d.; total,- £714 2s:--10d.- (1909,- £1029 2s. W-■>;.-■ :,;;;"" .; : ";^V'-

MAGISTRATE'S COURT.

(Before Mr. W. R., Haselden, S.M.)

Alleged false pretences. • '.. Two charges of intent to defraud by means of false pretences were stated against a mail named Arthur Howe, alias Thomaß Kennedy, alias A. H. O'Keefe. On October 9 lost ho was alleged to have obtained from' George M'Kenzic, at Waitara,'gig-hire to the -extent'of 255.', by means.of false pretences, and : four days later, at Wanganui, to. have/obtained from Charles ■Ryan, one gold watch and ruby ring, valued at £2 10s. ' ' ■; ■ .: On the application of Chief Detective Broberg the accused was remanded to appear at Wanganui that.day : week. A J SERIOUS; CHARGE.^/.'•,' ; - Alice. Mary : Anstice appeared on._reiiiiahd, to answer to a.charge of .having "unlawfully• used :; ah-instrumeht'-for-- an 'illegal operation/, and was further remanded- by- his 'Worship till April 13, .BaSl'Tiemg'' allowed $8. before; : '-t Mr( "Wilfpfd.appeared for the accused. ' /'

.ikSOBRIETY.

Thomas Louis Gardiner, a prohibited person, was : charged on two offences: Firstj : that, being a-prohibited person,' did. procure- liquor from some person or persons unknown;! and second, .that ho was found drunk in. Buckle Street. 'On: the first chargq he -was 'convicted and fined £2, with the option' ,of 14 days'- imprisonment.■-• For, drunkenness lie was convicted, and fined 55., in default,; 24 hours' imprisonment. With five previous convictions against his name, William Egan, convicted on his latest lapse from, sobriety was, on his earnest.protestation that he "would turn over, a; new leaf," discharged.

: John M'Kinnqn, once previously convicted for drunkenness, was fined 205., with the option of a week in prison, for his second offence, . : '■// JUVENILE COURT. A lad of 12 years was brought.before Mr. W. R. Haselden, S.M., at the Juvenile Court yesterday morning on a charge of having thrown /a stono to the danger .'of propert}', breaking a window. Ho was conyiot«d and discharged, '.!■'■ . ..''.'--

CIVIL BUSINESS. (Before Mr. W. R'. Hasolden, S.M.) UNDEFENDED CASES. ' Judgment for the plaintiffs, by • default, was entered up in the-following undefended cases:— i ' ■R. Jerusalem and Son v. Thomas Bright, £5 19s. Gd,, costs 235. 6d.; Smallbone, Grace and Co.. Ltd., v. Wey Kee, £2 \4s., costs 125.; Wilhelm.Farquliar Eggers v. Patrick O'Connoll, £10 13s. Bd., costs 30s. 6d. ; G. Hardt and Co. y. Archibald M'Phersoii, ±<10 125.. Bd., costs 30s. 6d.; Louis Morris .v. H. N. Cannall, £2 3s. 2d., costs 55.; Onslow Borough Council v. Harold H. H. Ahearn, ,14s.' lOd., costs 75.; Wellington Buildings |Jnion v. George Jacobs,' 145.. Sd.,-costs' 55.; George Rogers v. Alexander T). Campbell, £2 18s. 6d'., costs 10s.; Wellington City Council v. Thomas John Hodder, £11 18s. 4d., costs 55.; Dresden Piano Company v. John Alicic Bett, £18 Is., costs 305.. 6d. '. JUDGMENT SUMMONSES. . " In th<> judgment summons case Karori Borough Council y. Edmund Piatt, defendant was ordered to pay. the'amount owing (£lO6 3s. 2d.), on or before May 3, in default one month's imprisonment. ■. ... No order, was made, in the case, Albert Major v. Mrs. L. H. Toomor, amount owing, . £7 9s. 6d. ; :

• ' .-CLAIM FOR WAGES. In delivering his reserved judgment yesterday in' the civil action,' Ridgway (Mr. Neave) y. Wolters (Mr. Putnam), a 'claiitifor wages stated to be.duo for the period - November 20, 1908-Janu-ary, 15; 1910,, at the rato of 30s, per week, : Mr. 'Vf'. R;';Hasdden, S.M., ou'served.that the agreement which existed between-the parties'was not hv its. essence an agreement to pay wages, but- in' fact an agreement on the part; of the plaintiff to manage and work a certain farm, on a basis of division of profits, such ' division to covei- a payment of 30s.' per week : to, the plaintiff, any surplus remaining to be shared equally. There had already been a payment of. £60 to'the plaintiff, who admitted' that, but gavo no credit for it. Plaintiff "might have a cause' of action against the defendant, but not for wages, due under the agreement, as there was no absolute agreement by tho defendant to pay wages. The plaintiff would therefore be non-suited,'with costs, £8 6s. .' MOTOR-CAR V. BICYCLE. - A' considerable portion of the Civil .Sitting was taken up by the hearing of evidence in the case Whitaker v. Savage, wherein the defendant, Charles

Savage, a chauffeur, was sued by the plaintiff, Henrick Whitaker, owner of a motor-cycle; for damages amounting to £25, the result, it was claimed, of a~collision which took place between the plaintiff's motor-cycle and defendant's motor-car on the WellingtonJohnsonville Road. According to tho evidence, the road, in tho vicinity of the accident, was very narrow. As his Worship observed, it was " very ticklish road for the navigation of motorcars." Counsel for tho defendant expressed the opinion that it was the most difficult piece of road for motoring between Wellington and Auckland. Defendant's motor-car was going uphill, keeping about the centre of the road, when the motor-cycle, ridden by tho plaintiff, and carrying an extra passenger,' who was seated behind him, came downhill at what was described as a fast,pace, and, rounding the_ corner, collided with the car. . Plaintiff contended that the car was not on its proper side of the road. Defendant argued that insufficient warning was given of tho approach of the cycle. ' In giving judgment,, for the defendant, with costs', £8 10s., His Worship remarked that on such a road, the car was justified in proceeding along the centre, and . that proper care should have been observed by the plaintiff in taking his motor-cycle downhill, under what, he considered, were abnormal conditions for such a vehicle. With two persons on the motor-cycle, more than ordinary caro should have been exercised, i' Mr. Michel appeared for the plaintiff, and Mr. Wilford for the defendant.

At the Mount Cook Polico Station yesterday Mr. T. Bland, J.P., fined a first offender for-drunkenness 55., in default 24 hours' imprisonment. James Gunn Leckie, for being drunk and disorderly,'was fined 10s., in default 48 hours', and John Patrick Coyle,'-for drunkenness and disorderliness, was given .the option between a fine of 20s. and imprisonment for seven days.