MAGISTRATE'S COURT.

Dominion, Volume 4, Issue 1159, 21 June 1911, Page 5

MAGISTRATE'S COURT.

I (Before Dr. A. M'Arthnr, S.M.) KING AND SUBJECT. MAY A SUBJECT COUNTERCLAIM , MAGISTRATE' SAYS "XO." ".As to the question as to whether, in au action between the Crown and a subject, the subject has a right of set off, I am of opinion that the subject has no such right." This was Iho important, remark mat by Dr. A. iM'.Artlmr, S.M., yesterday, i delivering an interesting reserved jud; mont in the case in which (he Coimiii sinner of Taxes sued the Eastern Extei sion Australasian and China Telegrap Company, Ltd., to recover the sum i £"l 3s. 10d., alleged to bo due on accour of taxes unpaid (£67' 35.) and intere; thereon at 10 per cent. (M Us. 10d.). Th Telegraph Co. eotinfcrclaimed £67 !>s., a lesinp that on August 23, 1501, they ol (dined judgment against the Comniissione for the refund of certain income tax, an costs to be fixed by the Supreme Courl These costs were subsequently fixed a .£lB5 2s. 9d., and settled about Septera her 20, 1910, and the Telegraph Co. wer entitled to interest thereon at G pp cent, from August, 1904, to September l!) 10, this interest amounting to ,£67 9j They had since received a bill for incom tax amounting to .£l3l Ids. Cd.; pnjiir i£G7 ls ; 6d., and taking credit for the sun of .£67 9?. The sum so paid, togethe with the amount credited, ma.de up tin whole amount payable by the Telcgrapl Co. for such income tax. Therefore th< penal rate at 10 per cent, (amounting t< £6 14s. 10d.) never became due. Sir. T. Neave appeared for the Com missioner of Taxes, and Mr. A. W. Blai] for the Telegraph Co. "The claim and counterclaim," remark e<l the. magistrate, "give rise to two ques tions: (a) Whether interest on a judg ment runs against the Crown? (b) Whether, in an action between the Crowr and a subject, the subject has n. right ol set off? Of cours?, as between subject and subject, bath questions may be answered in tho affirmative. The counterclaim sufficiently discloses the facts,, which arc not in dispute. If the .£67 9s. can be iredited to the Telegraph Co. as a set-off, then the penalty' (,£6 14s. 10d.) cannot be charged against them. In my opinion, if costs can be charged against the Crown, is haa been done by the Court of Appeal, it is a logical and, moreover, a just conclusion following from the law,.as I rend it, that interest on those costs should also run against the Crown. Tho Commissioner had tho uto of the company's money, and tho company ought not ultimately to suffer tiny less by that. By Section 24 (3), Crown Suits Act, 1908, where the Crown is unsuccessful. the defendant is entitled to costs. Why not then to interest on his costs?" His Worship here quoted authorities in support of his view that interest can run against tho Crown. "I have now tc consider the second riuestion." continued the magistrate, "as to whether in an action between the Crown and a subject, the subject has a right of set-off, i am of opinion that the subject has no such right." Numerous authorities were then quoted by the magistrate, aud he continued: "If then a person has a claim auainst the Crown, how is he to enforce it? I consider that tho answer is contained in Section 25 (1) of the Crown Suits Act, 1908, which states .— 'When any person has any claim or demand against his Majesty within ■ New Zealand, he may set fntlh'in a petition the particulars of his claim or demand, in Iho same manner (as nearly as may be) as'in a-statement of claim in an ordinary action.' "In my opinion, therefore, judgment must be for tho Commissioner- of Taxes for tho amjiint claimed," viz., .£74 3s. 10d., but I am als'; of opinion that the Telegraph Company has ii claim against the Crown for .£O7 95., for which it must proceed by petition. Considering the nature of the claim, and tho justness oi liaving the. questions stated,'l think that no costs should be allowed. PAINTING AND PAPERING. Reserved decision was delivered in the :jvil ease in which G. H. Jackson and Co., oil and colour merchants, 2 Cuba Street, sued . Henry North, wire-mat-tress manufacturer, of Little Taranaki street, to recover the sum of £7 55., alleged to bo due as 'balanco of an account for painting and papering in connection with a residence at Norton Terrace, Kilbirnie. Defendant counter-claimed for .£3O 10s., alleging that ho had suffered damage to that extent in connection with (ho contract for painting and paperin" carried out by plaintiff. Mr. , D. Jackson appeared for plaintiff, and Mr. F. G. 80l- I ton for defendant. ' After reviewing the evidence, his Worship said: "I am of opinion that the defendant approved the work when remitting his last cheque in .part settlement of the account fully four months after the work was completed. In my opinion the defendant must'fail, in as much as, on his Inst payment, he made no complaint, although tho work-had been completed for four months. Further, he made up complaint after the receipt- of plaintiff's letter of December 2. Again, ho allowed the ordinary period of maintenance —threo months—to go far by, and, still further, makes no complaint "except until sued, when he sets up a counterclaim nine months' after the job has been completed.'' ' . ■ - Judgment was accordingly entered for plaintiff for the amount claimed, with the usual costs. ■ OVERHAUL OF A MOTOR-CAR, Judgment was delivered in the caso in which Wilkins and Andrews, engineers, of Wellington, proceeded against J. E. Fitzgerald, cycle'agent, of Wellington to recover the sum of £8 18s. Cd., alleged to bo due to plaintiffs by defendant, us balance of an account of ,£24 18s. 6d. for work and goods supplied in connection with the overhaul of defendant's motorcar. Defendant counterclaimed .£29 155., alleging that, in May, 1910, plaintiffs contracted to overhaul. tho .defendant's ear and supply all the necessary materials for the sum of .£8; that, at the time that the car was handed over to plaintiffs, defendant had an agreement with an intending purchaser to buy the car for .£OO, if it were put in good working order; that plaintiffs failed to carry out the contract, and, owing to their faulty workmanship and negligence, defendant had lost the proposed sale of the car; and that on receiving back the car there was missing an accumulator, a Dnnlop tube, aud the step and back-door were damaged. Defendant therefore claimed £\ 15s. special damages for the loss of these articles, and .£25 for general damages. Mr. P.- W. Jackson appeared for the plaintiffs, and Mr. S. J. Moran for the defendant. "As to the repairs to bo done," said his Worship, "it appears that they were originally agreed upon as .£B, but, after some time, the defendant agreed to ,£l4. The trials, after the car was supposed to have been repaired, seemed to me to he most unsatisfactory, as it was returned on many occasions to the plaintiffs' garnge; .£lO was paid by the defendant, thus leaving (all sentiment apart) a balance of <£l, which I consider he still owes. I now come to the counter-claim. As to general damages, I consider that tho defendant is entitled to none, as long before the- time for repairs to be completed he ought to have iivcssed his claim, but I do consider that hn has proved his special damages to the extent -of ,£t 15s. "Judgment will be for plaintiffs on tho claim for .£4. and for the defendant on the counter-claim for <C 4 155., costs to Ik assessed on the difference- as for judgment for 15s. for the defendant." .. A BANKRUPT'S AFFAIRS. A. D. Kennedy and Co., Ltd., wine and spirit merchants, Wellington, as assignee uf John ttobert Georgn Stanscll, sued the Official Assignee in bankruptcy of tho property of John Robert George Stansell to recover the sum of £73 9s. Id., alleged to be due as balance of an account for .£173 9s. Id. Mr. O. Beero apreare.l for plaintiffs, Mr. W. 11. D. Hell for defendant, and Air. D. Jackson watched I he proceedings for Levin ami Co., l.nery and Co., and T. and W. Young. The original defendants were M'Grath and Willis., solicitors, but at the first meeting of creditors it was decided (hat the Official Assignee should defend' the action, and M'Grath aud

Willis wer> subsequentl.)' struck out clelemlnnls. Hid Uliicial Assignee bo substituted Plaintiffs in Dicir sMomeiit of chum i legptl that on May 10, Ml, M'Hraili a Willis received on account of .John lie ■rrt George Staiisell a -um.of .WO2G !■ 3d., being the balance of jmrcliiifP moil payable to Stimuli by Itobort Dwypr ; tlii- sale of tlm intwp»t of Slanseil u> I. Hallway Hotel, Lower Unit. On <'• same-dny Stanfcll, heiiiff indebted lo t plaintiffs in the sum nf ,£173 n>. hi, fin an order in writing upon M'Gvath n> Willis directing llicin to pay plainui £)13 its. 1(1. The iirder was duly pr seuted to il'Grath and WilHs. who. was alleged, were directed by Staiwll pay, and they promised to pay the su out of Iho fund on Jtmo 5, 1911, provi ed the temporary transfer of Iho licen of the hotel to Robert Ihv.ver wis ]w cd by the. hicensin;: Commilloe. .11 Iraiiifcr was duly passed, and plain 111 received ,£101) on account, but tbeb: a nee of the order was refused as M'Ural and Willis stated that they had recei ed notice, of Slansell's banliruptcy. Hen' the present action. The principal witness for the plai tiffs had not completed his evidence yf terday when the case was adjourned u til 10 o'clock this morning. A TIMBER DEAL. David Lewis O'Donnell, builder, of Ki birnic, sued Charles Henry Compton ai James John Clark, timber merchan trading as the Evans Bay Timber Con pany, to'recover Bs. sd. alleged bo duo to plaintiff by defendants fi timber supplied. Jlr. A. H. Atkinson appeared for plni tiff, and Mr. A. Dunn for defendants. Defendants had paid .£67 into Court : full satisfaction ot the claim. After hearing evidence his Worsh: gave judgment for defendants with cost £i ss. UNDEFENDED CASES'. Judgment by default was given fc plaintiffs in the following undefenrh cases:—Adams, Ltd. v. Howard J. Mil ■doch, 7s. 9d., costs 125.; Malcolm Ge Reid v. W. Aubrey, £4 2s. Gd., costs 5s Wellington City Council v. Herbert Ca den Watson, .U22 7s. 10d., costs ,C 1 "s Jerusalem and Co., Ltd. v. T. 0. Hal .£l7 2s. Bd., costs .£1 10s. Cd.; Laery nn Co., Ltd. v. S. G. Billows, «S7 17s. 8d costs Bs.; Wellington Building Tradi Labourers' Union v. George Green, 17 4d., costs 55.; William Campbell \ George James Mitchell, ,£ll 7s. Id., cosl £1 14s. Cd.; Charles Jones v. Mrs. Mar Harding, costs Bs. Id.; Wellington Trai ers' Agency, as assignees of Kempthorm Prossei and Co.'s New Zealand Drug Co Ltd. v. Arthur Reade, £Z Ms. 10d., cost 10s.; I'helps, Wilson and Co. v. Samue Sneakman, £6" ss. 3d., costs X' 4 Jis. Gd. Rosenberg and Co. v. Charles Maddison £2 is. Gd., costs . c .s.; A. and T. Burt Ltd. v. Thomas M'Guire, £.% 3s. Id., cost .£2 Us.; Laery and Co., Ltd. v. Mrs. Hai nah Hansen, costs 125.; Louisa Powell i Horace Carter, «£1 11s. Cd., costs 55.; sani v. Albert Carter, £1 Bs., costs ss. JUDGMENT SUMMONSES. John M'Millan was ordered to pay ,£1 17s. Id. to Henry Edward Manning on o before July 1, 1911, in default sever days' imprisonment. No order was mr.de in the following cases:—Empire Loan and Discount Co! Ltd. v. Thns. Hill,'a claim for .£25 15* id.; A. M. S. Nimnestad v. William Wai ker, a claim for ,£IS Us. 2d.; M. Segrie v. Alfred I'alkner, a claim for ,£G 2s. FOB BOAUD AND LODGING. (Before Mr. W. G. Riddell, R.M.) John T. Foley, Jiotc-lkeerier, of Welling ton, sued Charts James Ellison, faddler of Wellington, and James M'Dougall, as slant to Ellison, to recover the sum o £o' lCs. Gd., alleged to be due for 'boan and lodging joiatly authorised by the de lendnnts.' Plaintiff and the defendant M'Dougal appeared in person, and Mr. E. C. LcvVcj appeared for the defendant KUisoii. The magistrate, after hcarin? evidence dismissed the claim against Ellison, witr costs.. Judgment was given for plaintifi against M'Dougall for £i 10s., with cost: 9s. SEWING AND MILLINERY. Marion Duff, married' woman, of Abe! Smith Street, claimed I,o=. from Adalinc Alico Hodan, married woman, of Ohirt Road, alleging that that sum was duo by defendant for sewing and millinery worli done. Each party conducted her own case. After hearing both sides, the magistrate gave judgment for plaintiff for 75., with costs 6s. POLICE CASES. Minnie M'Neill, against whom there were numerous previous convictions, pleaded guilty to a charge of theft of a lady's fur valued at =£2, the property of Mary Wiltshire. Sub-Inspector Sheehan stated that defendant and complainant had had an altercation in the Princess Theatre Hotel, and defendant had gone off with the fur. A fine of £2 was imposed, the option being U days' imprisonment. A young woman, named Edith Home, described as a domestic servant, admitted that, on May 2fl, she had stolen a purse and .£l2 in money, the property oi ■Tcan Provis.' The money, it appeared, had been taken from a coat hanging in the dining-room where complainant was employed, and nothing had, been recovered. Accused had not previously been convicted of dishonesty, and the magistrate decided to give her a chance. She was convicted, and ordered to come up for sentence when called on, upon condition that she refunded the money at (he rate, of ss. per week. William Gillan pleaded guilty to a charge of drunkenness and to a further charge of refusing to quit licensed premises—the Foresters' Arms Hotel—when requested to do so. On the first charge he was convicted and discharged, and, on the second, he was fined 205., and ordered to pay witness's expenses is., in default seven days' imprisonment. . A further, remand until June 28 was in the case in which Frank P. Bruford was charged with having, on March 13, obtained .£l3 from \\ llliam Dwyer by means of a false pretence. Accused was removed to the Wellington Hospital while on the way from Dunedin to Hunterville, and ho is still too unwell to proceed to Huntervil'e. Richard Hamilton, who had been locked up for drunkenness on Monday and admitted to bail, became intoxicated again, and had to answer two charges yesterday. Hβ was fined 10s., with the alternative of 48 hours' imprisonment. JUVENILE COURT. Tn the Juvenile Court yesterday morn-, ing, before Mr.'W. G. Riddell, S.M., a lad, 15 years of age, was charged with attempting to evade payment of a tram fare on the Miramar section. Hβ was convicted, and ordered to pay court costs 135., and witnesses' expenses l.s.