LAW REPORTS.

Dominion, Volume 4, Issue 973, 14 November 1910, Page 3

LAW REPORTS.

SUPREME COURT. WHAT CAUSED THE SLIP? .THE CONTRACT CLAIM. Legal argument in the case John O'Donnoll v. the Pohanginn County Council was heard in the Supreme Court, by Mr. Justice Cooper on Saturday. The claim was for .£230 Bs. lid., alleged to be balance duo, on a contract. Mr. A. Gray appeared for the plaintiff, and with him Mr. A. Pair. Mr. J. P. Inness represented the defendant. The case was one in which . O'Donnell had undertaken a contract to repair a bridge for the council. During the progross of the repairs a hillside slipped, and destroyed some of the result of u JJonnell s work, and buried his tools and suspended the work. The plaintiff claimed on the ground that the slip was caused by the act of the council's officers in running water through the hill, and ne contended that there was an implied warranty of the safety of the hill. The defence was that there could be no implied warranty, and that the slip was an act of God. One of the points was that the council's officers had been conveying water through the hill, and the slip occurred after a heavy rainfall. His Honour, therefore, had to decide whether or not either the conveyed water, the rain, or both, were the cause of the slip. His Honour remarked that it seemed clear that the slip was caused by the combined effects, but it wus very difficult to draw a line between an act of God and an act of man. It was remarked by Mr. Inness that witnesses had stated that they had seen the hill slipping several days before the rainfall. Mr. Inness said that the only two questions to be discussed were (1) as to the operations of the council's officers on the 'hill, and (2) the matter of warranty. He held that there was no implied warranty, and, in saying that there could not be any, argued that, a 'person who undertook a contract took a risk of injury through the weather or act of God. "Not arising, of course, through the neglience of the defendant," added his Honour. . • . Mr. Inness: "Yes." Decision was reserved.

NO JURISDICTION. MAGISTRATE'S DECISION EE- ■■ VERSED. The Chief Justice (Sir Robert Stout) delivered on Saturday the united judgment of himself and Mr. Justice Cooper on a motion for an order prohibiting the Magistrate's Court from exercising jurisdiction in the case of Herbert James Baker v. Annie Gledhill. Gledhill had become indebted, it was alleged to one Luke M'Gann to. the extent of JE6S for commission. M'Gann assigned the debt to one Aubrey, . and Aubrey assigned it to Baker, who sued Gledhill for the amount in the Magistrate's Court, but did not name the assignors in the plaint note, as required by. Section 62 of the Magistrate's Court Act, 1908. Before the hearing of the action at Wellington, Gledhill's evidence was taken at Dannevirke. No objection was on that occasion raised to the jurisdiction, but at the hearing at Wellington the point was raised by Gledhill's solicitor, "who submitted that owing to the omission from the plaint note, as mentioned above, the magistrate had no jurisdiction to deal with the case. The magistrate (Mr. Haselden, S.M.) overruled the objection on the ground that Gledhill had waived or acquiesced in the irregularity on the plaint note. Gledhill then appealed, and the case was argued by Mr. W.' J. Organ for plaintiff and Mr. A. ■ Fair for. defendant. The Chief Justice, in his judgment, said the plaint note did not contain ■what the statute required it to contain, and he could see no evidence of waiver .or acquiescence on the part of the plain'tiff."''The' plaintiff was not served with a copy of the plaint note, and could not have seen it without coming to Wellington. The plaintiff was entitled to the prohibition asked for. . The costs would be six guineas. His Honour added that Mr. Justice Cooper agreed .with this decision. . Mr. Pair asked that costs should not be granted, as the objection taken was merely a technical one, and the magistrate had found for the defendant on the merits. His Honour, in refusing this application, said that the objection was more' than technical. The summons issued was in violation of the law. Not to grant costs would be to make a new precedent. MOTOR REGULATION ACT.. A-CHAUFFEUR'S APPEAL. ' The Chief Justice (Sir Robert Stout) heard on Saturday, an appeal by Charles Pym against a conviction in proceedings brought against him by Constable Denis Mahoney tor breach of Section 9 of the Motor Regulation Act, in that he drove a motor-car along the Great North Eastern Road at Upper Hutt in a manner dangerous to the public. It was proved in the Lower Court that the defendant, who was chauffeur to Mrs. Jacob Joseph, drove an ordinary motorcar, such as is used for the conveyance of passengers, along the public road at. Upper Hutt, at a speed of between 20 and 30 miles an hour, at a time in the afternoon when there were more people than usual in the street. Section 2 of the Act defines, a motor-car as "any vehicle propelled by mechanical power, if it does not exceed three tons in weight unladen." It was not proved by informant. that the car in question did not weigh more than three tons, and the defendant's counsel contended that a complete case had not been made out. The magistrate overruled this contention, and the defendant

was convicted and fined. He appealed. After heaving argument by Mr. T. M. Wilford (for the appellant) and Mr. H. H. Ostler (for the Crown) his Honour said ho would take time- to consider his decision. DIVORCE. TWO.MARRIAGES DISSOLVED. A decree absolute dissolving the marriage of Henry John Withers and Martha Withers, on the ground of desertion, on the wife's petition, was granted by the Chief Justice (Sir Robert Stout) on Saturday. Mr. Wilford appeared for the petitioner, who was granted custody of the youngest child. The parties were married at Eketahuna in 1002. Katherine Taylor was granted a decree absolute, dissolving her marriage with David Alexander Taylor, on the grbund of the husband's misconduct, plaintiff to have custody of the child; and 10s. a week for the child's maintenance. The parties were married at Wellington in 1902. Mr. Wilford appeared for the petitioner.

Mr. Kirkcaldie said they also claimed costs prior to the filing of the petition. An accountant's fees were also applied for. ~Rh Honour said he. had never in 40 years experience heard of an application for fees of an accountant. Decision was reserved. A. P. KIGGINS. In connection with the bankruptcy of A. F. Higgins, formerly in business as a grocer in Kent Terrace, a motion to tax a bill of costs was referred to the Kegistrar.