LAW REPORTS.

Dominion, Volume 3, Issue 856, 30 June 1910, Page 9

LAW REPORTS.

RIDDLE SOLVED,

CLUB HOTEL AND CITY COUNCIL. COUNCIL'S CLAIM FAILS. The Supreme Court decided yesterday a somewhat important and peculiar case, brought by the Wellington City Council against Mrs. Jean Wilson. Proceedings wore taken on an originating summons, and the case was heard on Tuesday last by the Chief Justice (Sir Kobcrt Stout). Mr. J. (VSlien (city solicitor) appeared for the plaintiff corporation, nnd Mr. ]?. G. Dalziell for Mrs. Wilson. Tlio Court hud been asked to declare:— (1) That the City Council had a claim against' Mrs. Wilson in regard to drainage work executed in October, I'JOO, in connection with the Club Hotel, at the corner of Lnmbtou Quay and Johnston Street. (2) 'flint the council had this claim prior to February 11, 1900, when Mrs. Wilson assigned her interest to Joseph Dwyer.

Why the City Council Claimed. His Honour, remarking that the case, hnd some peculiar features, pointed out that the City Council were owners in fee of flu- land and premises, and that in 1872 the land was leased to the Wellington Public Jlall Company, Ltd., for 42 years at what was then a rack rent. The company sub-leased the land in 187G, and, by various mesne assignments, tho sub-lease became the property of Walter Eugene Manning and Reuben Baker in 1881',' remaining in their possession until September, 1300. In 1894, the Wellington City Drainage Empowering Act was passed, and, in pursuance of that statute, the council, in August, gave notice to the Wellington Public ilflll Company (the original lessees), and to others, anion;;:-,! thi'in Messrs. Manning and Baker (the sub-lessees) that urgent drainage work was required. The drainage work was not carried out, and the City Council consequently performed it. In such a case, Section 15 of the Act, provides that the cost of work done in this manner (with interest at six per cent.) should be a charge against the premises. The expense incurred by the council (.671 10s. lid.) was not'paid, end numerous assignments of the sub-lease r.ero made subsequent to the completion of the work. On December 11, 19115, Mrs. Wilson became the sub-lessee of the property, and she assigned the sub-lease to Joseph Dwyer on February 11, lDO'.l. Before doing so, she was notified of the claim duo by the council, and his Honour had this question to consider: Is she liable for the claim and interest? Tho Point That Settled the Case. One of tho points set up by the defence was that the name of the City Council (not that of Mrs. Wilson) appeared on tho valuation roll as owner. In his Honour's opinion, this contention was fatal to the claim made . by tho council. "Owner" was denned ' by the statute, 'ind, according to tho statute, Mrs. Wilson had never been tho owner, seeing that her name had not appeared on tho Valuation Roll. It was contended, however, that her name ought to have appeared on tho roll, for the reason that, when tho Wellington City Drainago Empowering Act was passed, the person whoso name had to bo put on the roll was "tho person entitled for the tir.-io being to rcceivo tho rack-ront thereof." Sinco 1872, tho letting value of the premises had greatly increased, and if Mrs. Wilson had hold the sublease long enough to have had her nar.ie put on the roll, it would havo been right to do so if the provisions of the Rating Act, 18f>2. or even tho provisions of tho Rating Act, IS9I, had remained law. In 189G, . however, tho Rating on Unimproved Values Act was passed, ami the system was subsequently adopted by the City of Wellington. The roll was then compiled under the provision of tho Valuation of Land Act, 190S, which statute interpreted "ownor" on a Valuation Roll as it was interpreted by tho Act of 1900. Tho person entitled to the rack-rent was not now tho person enrolled as owner on the Valuation Roll, whero rating on unimproved vnluo was tho law. "If, therefore," his Honour concluded, "the present owner were liable for the drainage under Section 15, n point which I have not decided, still tho 'owner' is tho person on the roll, and the defendant Mrs. Wilson was never on (ho roll, and cannot, therefore, be declared the 'owner.' Tho summons must be dismissed, with three guineas costs."

A MORAL CLAIM. BUT NOT IN STATUTE FOEM. The Chief Justice also delivered judgment in the two Wellington appeals, Alexander Jaraieson Pollock and Frank Mildenhall (separato nppellants) versus the Miramar North Building Deposit aim Mortgage Company, Ltd., and Young and Policy, builders, of Miramar (respondents. At tho hearing on Friday last, Mr. A. Dunn appeared for the appellants, and Mr. C. H. Treadwell for tho respondents. Tho claims had he.cn in respect of work done under sub-contracts for the respondents, Young and Pctley, who were contractors for the erection of buildings at Miramar for the respondent building company. Liens were also claimed over land alleged to be tho property of the respondent company The facts of tho cases were tho same, save in one particular, said his Honour, in giving judgment. Pollock was a sub-contractor for the painting and papering of houses belonging to tho respondents at Miremnr. Tho contractors with the respondents wero Young and Pctley. Pollock did work amounting to JEIG lGs., lor which he had not received payment. In pursuance of the provisions of the Contractors' and Workmen's Lien Act, 181)2, ho gave notice to the respondents that lie claimed a lion upon their land at Miramar. The respondents had not regular litis to tho laud described in Pollock's nolieo, but they had purchased 20 acres, part of which was referred to in the notice. The laud described in the notice was more than -100 acres, whose regular owner was Miramar Limited, a public company. Tho following objections had been raised in the Magistrate's Court:—(l) That tho notice was invalid as the land was not specified. (2) That tho respondents had no estate or interest in the land chirgcuble, as tho company was not tho registered owner of any land. (3) That as the respondent company wus not Pollock's employer there could be no charge registered against the respondents' taiul; and (i) that the lien was never registered. Tho magistrate upheld the first, second, and fourth objections, and gave judgment for the respondents. These four points had been argued before the Supreme Court. In regnrd to. the third point, which lny at tho base of Pollock's claim, his Honour said that in his opinion a sub-contractor might have a charge on the land of the employer of the contractor, even if the employer had not agreed to lie bound. Tho second jy.'iui to bo noticed was that the omnk'.w >■ had no estate or interest in the lain:, . ■ his title was not registered under the : ...-! Transfer Act, the land being anw,- that statute. In his Honour's upinion, the Act should he interpreted benevolently, and should bo held to give n charge in 'a case whore an employer held that kind of interest or cquiUible right which entitled him to demand a transfer of the land to him. If the Act did not hnve this meaning, then flie Lien Act • was very limited relief in (securing contractors or workmen tor their work and materials. Other questions camo up for consideration: (1) Was the notice sufficiently explicit? and (2) Was the notice properly registered? His Honour agreed with counsel for the appellants that all that had to be done was to leave tho notice in tho Land Transfer Office, and that, as it was a notice-, tho caveat would not prevent the notice being notified. His Honour was of opinion that the land could not have been reasonably ascerlainablo from the notice. Jiis Honour concluded. "I regret having to come to this decision, as it appears to me that the morality of tho

claim is all with the suh-eoiitractor, Imt the statute has laid clown what is necessary to make a claim Valid, and it seems to mo that Hint is absent from this claim. Tho other appeal must fall with this one. Both appeals are dismissed with thrco guineas costs each."

ALLEGED ISLAND BAY CESSPIT. APPEAL ARGUED. In Banco yesterday the Chief Justice heard counsel upon tho appeal of James Doyle, city inspector, versus Hamilton Gilmer. .Mr. .1. O'Sheo (city solicitor) for the appellant official, and Mr. A. lilair for tho respondent Gilmer. In the Wellington Magistrates Court the respondent had been charged with permitting nightsoil to remain on his land at Island Bay, to the danger of public health. Tho proceedings were taken under tho City Council's by-laws tAo. 402). The magistrate, Jlr. W. G. Biddell. dismissed the information, end an appeal from this decision was brought in the Supreme Court. ' Argument was chiefly concerned with the meaning of the word "permit."—whether knowledge was implied, or whether proof of knowledge was essential to justify a conviction being entered. His Honour reserved his decision.

MAGISTRATE'S COURT.

(Before Mr. W. G. Riddoll, S.M.) CHARGE OF FORGING TELEGRAM. Robert Stewart was charged with having, on March 2G„ 1910, knowingly and with intent to defraud, caused a telegram to be sent as from one V. Stewart, with intent that it should be acted upon as being sent by the said V. Stewart; and also with having, on the same date, forged the narao of V. Stewart to a receipt to a money ordor/tclegrain for £2. Chief Detective Broborg conducted the case for the police. Accused was not defended. Veronica Skidmore, of 49 Richmond Street, gave evidence that she was staying with accused in March last, being then known as "Madame Vonnie Stewart." She remembered at To Aro Post Office, a telegram addressed to Justus llobbs, of Kaipara Flats, but did not send it. The chief detective handed the irltness a telegram. After examining it, she said that the one she wrote was similar. The Chief Detective: Did you writo it? Witness: I don't know whether I did or not. Again shown tho telegram, she said that she could not identify the writing as her own. . She had on a previous occasion sent a wire to Hobbs asking for money, but had received none. She had never sent n telegram to Hobbs which had brought her £2 by way of reply; neither had she received ,£2 as tho result of any telegram sent by another person. Shown tl»e receipt for the money-order telegram, witness stated that she did not sign it. Justus Hobbs, railway porter, said that when ho was at Kaipara. Flats, ho received a' telegram signed V. Stewart, asking him to "send money—in trouble." He went to tho post office and telegraphed £2, addressing the telegram to "Vonnio Stewart." He understood that tho wiro was from her. John Brockonridgo, counter clerk at To Aro Post Office, .deposed to having received a telegram (produced) for transmission to llobbs, nt 8.10 a.m. on March 20, from a person whom ho identified as the accused. Frank Ernest Stubblefield, dispatch clerk at tho General Post Office, could not say for certain whether tho accused was the man who received tho money-order telegram from him. Patrick William Corby, licensee of tin Brunswick Hotel, remembered paying tho money order in question into his account at the Bank of Australasia, but could not identify with certainty the accused as tho man from whom he received it. Dctoctivo Cassells, in evidence, stated that when the accused wrote down on a pieco of paper, at his dictation, the contents of the telegram, he spelt "Flats" with two "t's," as it was spelt in tho original telegram. Henry John lung, teller at the Bank of New Zealand, and au expert in caligraphy, gavo it as his opinion that tho original telegram and the pieco of dictation put in by Deteetivo Cassells were written by one and tho same person. This was all tho evidence. The accused, who pleaded not guilty, reserved his defence, and was committed to the Supreme Court for -trial.

AN "IDLE AND DISORDERLY" THIEF. Two charges—one of theft of a lady's coat, valued at £\, and tho other of being an idlo and disorderly person, having insufficient lawful means of support—were preferred against a man named John Burke, who pleaded guilty to each. On tho "idle and disorderly" charge ho was convicted and sentenced to three months' imprisonment. Eor theft, lie was sentenced! to one month's'imprisonment, to ho concurrent with tho first sentence.

INSOBRIETY. Throe first offending inebriates were conviitcd of drunkenness and discharged. Mary Mullan, Thomas Frederick Lewis, John M'Phee, and Charles Grant, with previous records, were each convicted of drunkenness and fiuod 55., tho option being 21 hours' imprisonment. Thomas Marshment, a prohibited person, pleaded guilty to two . charges: (a) that he was louud drunk; and (b) that ho did procure liquor from some person or persons unknown. On tho first charge he- was convicted and discharged; on tho second ho was convicted nnd fined 40>., with tho olteruativo of seven days' imprisonment.

CIVIL BUSINESS. . (Before Mr. W. It. Haseldon, S.M.) SEAMAN'S WAGES. A magisterial decision affecting the question of overtime wages to be paid to seuuieu employed in loading or unloading cargo on Sundays—tho award specifies that overtime rates must, on such occasions, be paid—was given by Mr. W. It. Haselden, S.M., in ro the Austral, aaian Federated Seamen's Union (Mr. W. T.,Young, secrctnry of tho union, appearing), and Richardson and Companv, Ltd., of Tort Ahuriri (Mr. A. L. Herduiun), a claim for the. payment of penalties of =ClO for alleged breaches of the Seamen's Award of April, 1908. Tho statement of claim set forth that tho company's steamer, the s.s. Knhu, arrived at Cape Turnagain (East Coast) on Sunday, February 211, 1010, and dropped anchor for the purpose of working cargo, and on the same day weighed anchor again and proceeded to Port Ahuriri. The company declined to pay the crew tho minimum 'of four hours' overtime per man, as provided for in terms of Clause 31, nnd the last paragraph of Clause i"l 2 of the award. Tho same thing happened at Akitio on Sunday, March 10, when tho Kahu, having dropped anchor lur tho purpose of working cargo, weighed anchor again and proceeded to Port Ahuriri. Mr. Y'oung, for tho union, explained that under Clanso 31 of the award, overtimo must bo allowed when a vessel goes in and out of port on Sundays, Akitio and Cape Turnngain woro both ports, ho contended, within' tho meaning of tho Inst paragraph of Clause 12 of the award. If n Vessel dropped anchor for the purpose of loading or discharging cargo, embarking or disembarking cargo, overtime rales accrued. In tho first case—tho call at Cape Turnagain—tho Kahu arrived at 11.30 a.m., and left again at 1.30 p.m. No cargo was worked. It would ho shown. that tho weather was fine, but there was no ono on the bench to receive the enrgo, and the steamer therefore weighed anchor again without discharging it. Tn the second case—the call at AV.ilio—the steamer dropped anchor and weighed again a few hours later without working cargo. Evidence given by John Carlson, master of tho Kahu, and John Johnson, boatswain of tho vessel, went lo show that, on Eeb'uary 20, the vlearner called fu-jt nt Akitio, where cars" was worked, but on arriving at Capo Turnagain it lvvis found impossible to ;«irk tho cargo, the sea being too rough. Tho men were paid overtime for working cargo at Akitio. On March C, tho anchor waa

dropped at Akitio, but no cargo was worked, and a fe\y hours later the vessel again put to sea. Mr. Hordmon, for the company, submitted that the cases must be dismissed. The c.ise of February 20 complied strictly with the award. Cargo was handled at Akilio. and payment was made accordingly. No cargo was worked at Capo Turnogain. (la March- (i, when at Akitio. no c.irg') was worked. The men could hardly claim extra wages tor doing nothing. His Worship, after hearing further argument, decided that as the men had been paid for working cargo at Akitio on February 20, before calling rot Cape Turnagain, Ihc claim made in respect of that oa«a would be dismissed. In the second e.-iso it had been s-hown thai f.he vessel had dropped anchor for Ihc purpose of working cargo at Akitio, and though no cargo had been worked the award provided for payment. A penalty of .61 would l>e imposed, with costs amounting to £1 ss.

CLAIM FOR MAINTENANCE. In tho civil action, Baker v. Baker, a claim by tho wife (represented by Mr. Gray) upon tho husband (Mr. Blair), for arrears of maintenance alleged to bo due, amounting to £ib 10s., and for the recovery of £I'l alleged to be lent, evidence was heard for the plaintiff, and further hearing then adjourned till Tuesday next.