LAW REPORTS.

Dominion, Volume 4, Issue 1183, 19 July 1911, Page 5

LAW REPORTS.

MAQISTRATE'S COURT. (Before Mr. W. G. Riddell, S.M.) INTERESTING TEST CASE. LATE CLOSING TIME. , SHOP ASSISTANTS' HOURS. Employers throughout tho Dominion are said to be concerned in the result of a case heard in tho Magistrate's Court yesterday, and still awaiting decision. On the information of the Inspector of Factories (E. J.J.o Cren), Horaoe J. Archer, draper, of Cuba Street, Wellington, was charged with having employed a shop assistant after 9 p.m. on one night during a certain week. Mr. H. 11. Ostlor appeared for the informant, and Mr. T. S. Weston for the defendant, who pleaded not guilty. At tho outset, Mr. Weston intimated that, as this was purely a test case, he would admit that a sale had taken placo at 9.30 p.m. Mr. Ostler pointed out that it was provided in the Shops and Offices Act that shop assistants should not be employed jn or about a shop, if situated in a combined district, after 1 p.m. on statutory closing day, nor after 9 p.m. on'one day, nor after 6 p.m. on any other day of "tho week. The assistant (in the case before the Court) had been employed at 9.15 p.m. The provisions, of the Act of 1391 were that every shop had to be closed at a certain Hour, and then it was provided that every employer had half an ■ hour's grace before an offence was committed. In 1905,' the> scheme of the Act was amended* so that, instead of a provision for the; closing of the shop at a certain hour," it was provided that every ~ employee should finish at that hour, and there was retained a provision stating that an offence tad been committed if the employee had been worked for more than half an after the closing time. Counsel argued that the Teal meaning of the Act was that it was an offenco if an assistant had been employed in a shop after 9 p.m., or if ho had been employed in connection with the husinessfiof 'the shop half an hour after 9 p.m. (lifter reviewing different clauses of the i Act', counsel contended that the object „pj the Legislature, when framing the lavhvwas to provide that a shop assistant/should get away punctually' at the hqar. stated, but that tho employer shouldt'lie allowed half an hour's grace in correction with tho business outside tho shop. Ur_SVeston contended that if Mr. Ostler's argument were correct it would have been TviSry easy for. the Legislature to have m.-j'defthe position clear. Counsel briefly re-ferred-"to those clauses of tho Act which hadibcen singled out by Mr. Ostler, and remarked that if the time wero fixed at 9 jj.mX'ihere was bound to bo a difficulty in ifcjosing, and prosecutions would •be •numerous. To obviate this state of af-fairs,','i'-the Legislature had given the Bhqpkoepers half an hour's grace. With regard to the contention that this half an hour..'only applied to work done outside the'.shop, the meaning was far too wide to bear the interpretation. If the section of the Act was to bear that meaning the legislature would have put it in clear and unmistakable words It was quite clear that .the Legislature intended, that the employer should close his shop at 9 o'clock, but that he should not be penalised if he finished half an hour later. * Decision was reserved. • ANOTHER CASE. ' Another alleged breach of the Act was heard when Robert Sinclair, grocer, Wellington, was charged with having employed a carter for more than nine hours on more than one day during the week ended June 24. Thi Inspector of Factories (E. J. Lo Cren) prosecuted, and Mr. T. S. Weston appeared for tho defendant, who pleaded not guilty.

Mr. Lo Cren remarked that no action would have been taken in this case if it had been an isolated one. Tho carter started'work nt 8 a.m., and finished his round at Wellington Street, Kilbirnie, at 7 p.m. Then, after having tea, it was lato when he got back to the shop. If

overtime had been worked unavoidably be could havo notified the Department,-but ho had failed to do this. After hearing evidence and legal argu> ment his Worship reserved decision.

SHOULD HAVE GIVEN NOTICE. Reserved decision was given in tho ease in which Charles Henry Osmond, assurance superintendent, Wellington, proceeded against 11. J. Fowl, contractor, Miramar, to recover the sum of .623 25., alleged to bo due by defendant, and made up as follows:—,£s 10s. rent for use and occupation of premises at Miramar for the month of May, 1911; «£IG 10s. damages for breach of agreement, whereby plaintiff agreed to leaso the premises for six months at a monthly rental of ,£5 10s.; and XI 2s. damages caused to property. Defendant counter-claimed for .£l3, made up as follows:—£3 for grazing a horse for fifteou weeks at 4s. a week; and .£lO as damages for expenses incurred for medical attendance on three persons suffering from diphtheria and for hospital charges brought about through plaintiff's failure to put a drain in the premises (as per agreement) to carry off refuse water, Mr. V. 11. Meredith appeared for plaintiff, and Mr. P. W. Jackson for defendant.

His Worship, after a brief review of the case, said: "I think that the tenancy between the parties can only be regarded as a monthly one, the rent being paid monthly, and plaintiff was entitled to a month's notice frG.ii defendant before giving up possession. Defendant admits liability for the broken window, but says that the grate was damaged before he went into tho house, and his wife, corroborates this statement. The. onus in respect of this item lies on plaintiff, and lie has failed to discharge it." Judgment was accordingly given for plaintiff for one month's rent, and one month in lieu of notice, .£lO 10s., and 12s. for window, totalling .£ll 25., with Court costs, «£1 45.. and solicitor's fee, Jil 6s. Referring to the counter-claim his AVership stated that he was satisfied that defendant could not recover, as he had failed to prove that the illness for which liis claim for damages depended arose directly from the defective drainage referred to.. Similarly, he had failed to prove the claim for grazing. Judgment was,' therefore, given for plaintiff on the counter-claim. BREACH OF AGREEMENT.

The tenancy of a house in Bruce Avenue, Brooklyn, formed the subject of a civil action in which G. T. Ivellaway, labourer, Brooklyn, sued Lewis Binns, upholsterer, Brooklyn, to : recover the sum of £7. ss. 9d. as damages for alleged breach of agreement. Mr. P. Brandon appeared for plaintiff and Mr. E. J. Fitzgibbon for the defendant. Plaintiff stated that, on or about April 2S, 1911, ho proceeded to take a house, owned-by plaintiff, in Bruce Avenue, for a term of 6 months from May 3, with the right of renewal for another G months, at a rental of 14s. Gd. per week. Defendant had been offered possession, but did not take it, and refused to carry out the agreement. Plaintiff had subsequently found a tenant to tako the house from June 17 at 12s. per week. Plaintiff therefore claimed lis. 6d. per week for the period during which tho house was without a tenant (from Jlay 3 .to June 17), aud 2s. 6d. per week for tho remaining portion of the six months mentioned in the agreement. Defendant denied having agreed to take the house at the time of signing a contract in plaintiff's house, and stated, that the whole thing depended on an inspection of the house, which was to bo made by defendant on the following day. His Worship considered that defendant was bound by the agreement which he had signed, but did not think that he should bo held liable for the ■ full amount. Judgment would be for plaintiff for £1 7s. (sis weeks at 14s. Gd.), with costs 12s. and solicitor's fee .£1 Gs.

THE KACEHORSE RANGIKAPUA. (Beforo Dr. A. M'Aithur, S.M.) Plaintiff was non-suited in tho caso in which Charles Fritchard, horse trainer, Lower Hutt, proceeded against J. Ilarte, settler, Wellington, and T. Long, settler, Wellington, .to recover tho sum of .£157 Bs. 5d., alleged to be due to plaintiff by

defendant? for fee?, etc., in connection with the training of the racehorse lianglkapua from -Match 27, 190!), to April 21, 1911. Defendant Long had previously confessed judgment, but the action wa*> contested tiv tiie other defendant. The original full claim was for .£23G Ss. 5d., on which plaintiff had allowed a credit of .£79 made up of slake money received, and sundry payments mado to plaintiff bv defendant Long. After plaintiff's case had closed on Thursday last, .Mr. l-air put forward a non-suit point. He contended that his Worship had no jurisdiction in the matter, because the full claim was tor over ,£2OO, and there was no admitted credit or set off. On the evidence, also, he contended that defendant was entitled to a non-suit liecause plaintiff had not shown that Long bad any authority to pledge Harle. Mr. Jackson submitted that the riilf could not apply, as plaintiff had suet two defendants, who were joint owner;', and the fact that Long confessed judgment bound Harts to a certain extent.

Before calling on tin.' defence, his Worship stated that he would look into the non-suit point yesterday morning. After a lengthy review of the law on the subject, his Worship went on to say thar, in his opinion, the defendant was entitled to a non-suit—Firstly,, on the ground that the claim . was beyond the jurisdiction of the Court, and secondly on the ground that the evidence for the plaintiff had not disclosed any liability on the part of the defendant Harle. Plaintiff was accordingly non-suited against the defendant Harle, _ the usual costs being allowed. His Worship remarked that it was a hard case forpaliutitf.

CROSS ACTIONS FAIL. Reserved judgment was delivered in the onsc in which Flora Einilv Craig, stationer, of 5!) Vivian Street, sued Anne Trillo, of 09 Vivian Street, to recover .£lO damages, alleged to have been sustained by reason of defendant, not delivering certain goods on April 28, 1911. There was a crass action in which Charles Seymour Trillo, husband of Anno Trillo, sued William Craig, husband of Flora Emily Craig, to recover .£'-0, balance alleged to be due on the sale of stock-in-trado and fittings. Mr. H. Machell appor.red for the Craigs and Mr E. J. Fitzgibbon for the Trillos. "These," said his Worship, "arc vo actions arising out of the sale of a small bookselling business. The husband and wifo of each are parties to the actions. Tho first is an action for <£20, said, to be for tho balance of purchase-mom of the business belonging to plaintiff. -TMero is, however, ii receipt given in full for tho purchase-money although it is alleged by the plaintiff that it' was only in part-payment. In face of the evidence I can only take it as a settlement' in full." "The second action is for some fittings, which wcro said not to liavo been delivered. There is, verbally, no evidence | to support' this claim. As a result each plaintiff must fail, and no costs will bo allowed." FOR SERVICES RENDERED. ' Judgment was reserved in tho caso in which JJavirt' Clark, agent', G3 Manners Street, Wellington, sued Amy S. Barraclough, proprietor of the Barraclough Herbal Proprietary, 13 Myrtle Crescent, Wellington, to recover tho sum of ,£SG is. alleged t'o be due for services rendered in the supervision of her business. Defendant counter-claimed for ,£3O 15s. •id., alleged to be due as balance of moneys received by plaints&f for the use of thb defendant and not accounted for. Mr. G. 'Samuel appeared for plaintiif and Mr. E. K. Kirkcaldie for defendant. UNDEFENDED CASES. Judgment by default was given fo: plaintiffs in tho following undefended cases:—Lawrence and Hanson v. William 13. Carrick, .£27 Ss. Gd., costs i 2 Ills.; Joseph Nathan and Co., Ltd., v. Isabella Carter, £2 55., costs <£1 Bs.; Wellington Trust, Loan, and Investment Co., Ltd., v. William Thomas Bowater, ,£25 Ills., costs .£2 lis.; John Campbell v. Frederick Sage, ,£l2 25., costs .£1 lis. Gd.; Wellington Meat Export Co., Ltd., v. William Thomas Bowatbr, Is. ad., costs .CG Us. Gd.; Henry George Scott v. D. Lester, Jill, costs .£1 10s. Gd.; Allender and Co. v. H. Hoar, £2 12s. Gd., costs 55.; W il-

liam Small v. Joseph Small, .CIO, costs ■El ss. Oil.; Donald Kobertsoii v. George Tom Langley, .1:5 15s. 5(1., costs .£1 lis. lid. j N.Z. Investment, .Mortgage, and Deposit: Co., Ltd., v. Bernard Diederich, 4i12 Els. (id., costs Al G«. lid. JUDGMENT SUMMONSES. No order was made in tho following judgment summons eases:—Alexander I'eid v. Frederic kliiggs, a claim for .62 Is 6d.; H. W. Johnson v. Edward Charles Ferris, 4:1 12s. Gd. POLICE CASES. (Before Mr. W. Ci. Biddell, S.M.) William Ormondson pleadod guilty to s charge of drunkenness, and to a further charge of wilfully damaging two panes «ft..gla«s, -valued at His., the property of 1 or-ce Hay. it appeared that, while drnuk, aceuscu had thrown stones through the windows of complainant's l house. He was convicted" and discharged for drunkenness, and fin'i 20s. on the second charge, and ordered to. pay 10s. for the damage done, in default seven days' imprisonment. Annie Murdoch pleaded not guilty to a charge of being an idlo and disorderly person, with insufficient lawful means ot support, init tho evidence wafi held to bo against her. Sho was convicted, and ordered to como up for scnlencs when called upon, a condition being that she left for Melbourne within a week. John Lawrence was convicted and discharged for drunkenness, and fined -iOs., with the option of 11 days' imprisonment for procuring liquor during the. currency of a prohibition order in force against him. Three first-offending mebrintes were fined ss. each, witli the usual alternative, and another first-offender, who had been remanded for a week's medical treatment, was ordered to pay 17s. fid. cx ; penses, the alternative being 48 hours imprisonment. . For allowing offensive rubbish to accumulate on premises at S5 Dixon Street, Agues Johnson and Agnes M Lean were fined 20s. each, with costs 95., and witnesses's expenses 25., ■in default se\en days' imprisonment.