MAGISTRATE'S COURT.

Dominion, Volume 5, Issue 1264, 20 October 1911, Page 3

MAGISTRATE'S COURT.

(Before Dr. 11' Arthur, S.M.) KAPANGA SHARES. HJORRING AGAINST BRIBSON. HJOEEING FAILS. Raserved judgment was given yesterday morning by Dr. M'Arthur in tho caso in which Fred C. Hjorring, sharebroker. of Wellington, 6iied J. Bridson, sharebroker, of Coromandel, the object of the action being to recover .£4l 13s. 4<l. It was alleged that this amount was tho loss incurred on shares by Hjorring whilo acting for Bridson. Mr. K J. Eitzgibbon appeared for Hjorring, and Mr. P. W. Jackson for Bridson. At the hearing Mr. Jackson applied for a non-suit, on the grounds that tho provisions of Section 133 of the Stamp Dutv Act had not boon complied with, 'and, further, Hjorring had neglected to stamp the contract note, and to forward it to Bridson within twenty-four hours, as required by tho Act. In granting a non-suit tho magistrate remarked that Hjorring had not proved complianco witli the provisions of Section 133 of tho Stamp Act, IMS. This section provided that on tho salo of any shares in a mining company a seller's contract noto on duly stamped material shall, within twenty-four hours of tho hour of the sale, bo transferred by the seller to tho buyer, and a buyer's contract noto shall, in like manner, bo transmitted by tho buyer to the seller. "These requirements," said his Worship, "were not complied with." Sub-section 5 of tho suction stated: "A contract for tho sale of tho shares shall not bo valid, or enforceable, unless tho provisions of this section shall lie complied with." Counsel had relied on the case of Gualter, Dvkcs and Co. v. Beggs. In that casa it had been held that it was incumbent .on brpkpxs (in im, action by;

them against their principals for moneys spent in connection with tho salo and purchase of mining shares on behalf of and at tho request of their principals) to provo complianco witli Sections 132 to Ml of the Stamp Act, ISOS, and, if they fail to do so, the brokers cannot recover such moneys. In his Worship's opinion the case of Gualter, Dykes and Co. v. Beggs controlled tho present case, and plaintiff must bo non-suited on tho ground of non-com-plianco ivith Section 13,' iof tho Stamp Act. SPENCER PIANO MO. 51877. RE-MENTION OF ONE FALKINER. (Before Mr. W. G. Riddell, S.M.) In delivering judgment in tho case in which John I'lockton, dealer, claimed .£ls as damages for depreciation in value ot a piano from Walter Smart, pawnbroker, _ Tho magistrate (reviewing tho evidance) remarked that Flockton had bought a Spencer piano, numbered 5157", from a man named Falkiner, in December, 1909. At that timo Falkiner had been acting as a mercantile agent for the London and Berlin Piano Company. Flockton, for the sake of convenience, left it at the business premises of Falkiner. About three weeks later Falkiner pledged the piano to defendant Smart for £i«, but without first having obtained Flocktou's authoiily. Subsequently Falkiner was prosecuted for theft, 'in connection with this and other pianos, and was sentenced to terms of imprisonment. Beforo theso happenings, however, Falkiner had given Flockton an order on Smart for the return of piano numbered 51877. Smart, however, refused to give delivery as litigation was pending between himself and tho Piano Company in connection with other pianos pledged by Falkiner, among which was the ono numbered 51877. ■Subsequently, through his solicitor, Smart told Flockton that lie could have the instrument if plaintiff paid .£2O together with interest and a fair proportion of additional advances which had been made to Falkiner. Flockton was quite willing to pay tho amount for which the piano had been pledged, but had rcfufed to pay the additional money demanded. In December, 1910, the piano No. 51877 was sold by public auction and Smart retained one of the instruments pledged by Falkiner, thinking that it was tho ono which Flockton had purchased. It was not until February 17, 1911, however, that defendant had discovered his error, at which time ftit agreement had been made whereby defendant Smart had agreed to return the piano to Flockton upon the latter paying the sum of £.10 previoujly advanced, and also the sum of £\ Is., which sum was to havo covered thc costs entailed by _ Smart in negotiations. Piano No. 51877 was eventually recovered and handed over to Flockton who had considered that it had depreciated in valuo and consequently claimed .£ls as damages. Mr. Dunn, for the defence, had contended that Falkiner, being a mercantile agent, the pledge made with defendant' was valid, and that tho point in the dispute was a question of law. An offer by defendant had been made as a matter of grace, to return tho piano, but it had not been admitted that defendant was bound to do so. Therefore, if any damage was sustained, defendant was not liable.

His Worship went on to say that, in his opinion, defendant Smart had misunderstood his position in demanding nioro than the, amount for which the piano had been pledged, and further that sufficient care had not lxcn exercised in regard to the !ale of the piano. . Regarding the point raised by counsel for Ihe defence, Mr. Riddell held that Falkiner had been a mere gratuitous baileeof the pjuno for plaintiff and had not be?« actin.v as a mercsntiln ajrent with respect to plainlili'.i busines?. Floekton's titf» t» Ike yinno had been a good one ftttd as ke had purchased it from Falkiner, who had been acting as a mercantile agent for the London and Berlin Piano Company, and, as plaintiff had had bo connection with the other pinnos pledged by Falkiner U Sru-aTt, ho (Flnckto«) was in no way bound by an agreement between defendant. Smart, and Falkiner. Even if Falkiner had dealt with thi.r instrument as a mercantile agent, Flockton would still have keen entitled to its return under Sub-Section C ..of Section 11 of the Mercantile I,nw Act, IMS.

In conclusion the magistrate went on to state, tliat lis was unabfe to find (hat the instrument lind been damaged white in the actual custody of the 'defendant Smart, so that the deterioration for which Flockton could recover was limited to that which must liavo taken place durin" tlio time the piano was in die hands of the person who had purchased it from Smart. He fixed the-su damjuves at .£;>. C'o.'ts apoimtiiiff lo £2 2s. were allowed. Mr. a. 0. Jackson appeared for the plnmtiff, and Mr. A. Dunn for the vofead»»t.

THE INSURANCE SERVANT. An application was made vcsterdav by Mr. P. 6. ])alB->ll, on behalf'of the Coldxial IXutusl Life Assurance Company, Ltd., for a re-hearing of th; ca« in which judgment ra eiven I>t Dr. M'.Artliur, S.M., on August" SS, 1911, for AV. F. Okixttn, sgent, in the ground that a claim for 451 1 li«. Cd. made efjainst him by the society ttm not an equitabis »ne. The Application, was made oa (h» followin j grounds:— (1) That the decision was founded on a misconception of facts. (2) That tho magistrate drew a wrong inference of fact, and found erroneously that the defendant had been compelled fo take over business which he had not introduced, the value of which lie had no means of a<vert:iining, and which, a? suggested in his Worship's judgment, was evidently bad. (3) That the decision was based on the erroneous assumption that tho defendant obtained no advantage when taking over the responsibilities of maintaining the business introduced by his predecessor. (1) That the magistrate's decision on the question of the interpretation of the agreement between the plaintiff and defendant was erroneous in law, and, further, upon the ground set out in the affidavit of Ed. Thos. Wray. Mr. E. J. Fitzgibbon, in opposing tho application on behaif of Clapton, said that tho powers under Section 150 of the Magistrate's Court Act were to bo exercised by magistrates in accordance with tho rules of the Supreme Court with reference to the granting of new trials. Ho submitted that, no matter how his AVorship considered tho four grounds of tho applications, it was utterly impossible to get any one of these under tho rules laid down in tho Supremo Court. It was not alleged by tho applicants for a rehearing that they had fresh ovidence to adduce. Even admitting, however, that there were grounds, such evidence could have been" obtained at the previous hearing, and fresh evidence could not be entertained in support of the present application. Decision was reserved until next Tuesday. UNDEFENDED CASES. Judgment by default was given for plaintiff in the following undefended cases:—Briscoe and Co., Ltd., v. Alfred King Boyd, 4:7 Us. 2d., costs £1 ss. Cd.; New Zealand Express Co., Ltd., v. Cecelia Stewart, 19s. 6d., costs 55.; Edmund Carroll v. E. O'Sullivan, £'1 18s. 3d., costs lis.; Novelties, Ltd., v. C. H. Holland, £o 18s. 7d., costs £1 3s. 6d.: Vacuum Oil Co. v. Hibbs Bros., £2 13s. id., costs, 175.; E. \V. Mills and Co., Ltd., v. Koger Garth, ,£133 17s. Gd., costs 4:9 fis. fid.; John S. Swan v. Edward J. Moore, £6 Cs., costs £1 3s. Cd.; Ernest Andrew Ewart v. Iliigh 11. Shortland, ,£2O lis., costs £3 7s. (or possession); E. W. Mills and Co. v. William Webber, 13s. 6d., costs 55.; Cycle and Motor Supplies, Ltd., v. T. Donaldson, £W 7s„ costs £1 10s. Cd.; Blundell Bros., Ltd., v. E. Iveagh Lord, jun., 155., costs 55.; Bing, Harris, and Co., Ltd., v. Anthony Gear, £2 2s. Cd., costs 155.; Rosenberg and Co. v. John Simpson, £1 Is., costs 75.; Turnbull and Jones, Ltd., v. D. S. Wylie, JEI7 17s. Cd., costs £1 10s. Cd.; Commercial Agency, Ltd., assignees, and James Jolinston,' assignor, v. Robert and Mrs. It. Manson, £2, costs 135.; H.M. tho King and James Alfred Watt, ,£2l 17s. 4d., costs £2 lis.; same v. Albert Edward Cox, .£l2 12s. Bd., costs £1 10s. Cd.; Alfred Pinckney v. Frank Morton, £2 7s. Cd., costs 10s.; E. Reynolds and Co., Ltd., v. J. H. Ycrcx, 4516, costs .£1 10s. Cd. JUDGMENT SUMMONSES. In tho case of Bing, Harris, and Co., Ltd., v. G. 11. Price, a claim for 418 18s., defendant was ordered to pay tho amount by instalments of 4:1 monthly. 'A. B. Bacon was urdercd to pay Joseph Lewis 4!1 as., on or bel'oro Novombor 2, JOl3 ox uidergo iifgn days' dotoaidon..

1!. F. Penrco was ordered to pay Kellow and mil tho sum of £ib Is. in weekly instalments of ss. NO ORDER. No order was made in the case of Blundell Bros., Ltd., v. Walter Evenson, a claim for .£7 10s. UNSOBER ONES. (Beforo Mr. W. G. RicWcll, S.M.) Ono first offender for insobriety was convicted and discharged, and, for a similar offence, another was lined 55., in default 24 hours' imprisonment. Matthew Boyd pleaded guilty to a charge of drunkenness, and was mulcted in a penalty of 10s., in default IS hours' detention. William Mylan, appearing on remand, and charged' with insobriety, was fined 405., in default seven days' imprisonment. He was also made the subject of a prohibition order.