LAW REPORTS

Dominion, Volume 9, Issue 2626, 23 November 1915, Page 9

LAW REPORTS

SUPREME COURT

MR. W. DINNIE'S PETITION

A NONSUIT ENTERED

His Honour the Cliief Justice. (Sir Robert Stout) delivered Lis reserved decision in the Supremo Court yesterday afternoon in the petition of Walter Dinnie, of Auckland, formerly Commissioner of Police, v. His Majesty tlie King. Mr. E. G. Jellicoo appeared for tlie suppliant, while tlie SolicitorGeneral (Mr. J. W. Salmond, K.C.) appeared for the Crown. In the petition it was set out that on March 11, 1903, the suppliant (Dinnie) joined the service of the. New Zealand 1 Government at a. salary of £500 per annum, with annual increments of £25. In December, 1909, certain changes necessitated the retirement of the suppliant, who -was then Commissioner of Police, anfl .in original contributor to the Public Service Superannuation Fund.' At the request of the Minister, he relinquished his position on six months' leave of absence as from December 31, 1909. On the faith of certain representations by the secretary, of the Superannuation Board, the suppliant applied for and obtained a refund of his payments (£93 18s. 6d.) to the fund, but the application and payment were (suppliant said) made under a mutual mistake. Before the expiry of his six months' leave of absence, the suppliant was transferred to the position of president of the Tokerau District Maori Land Board, from which position he was retired as from July 31, 1914. During the period of the suppliant's employment as president of the Maori Land Board, his salary was -subject to a deduction of £10 per cent, by pvay of contribution to the Superannuation Fund, and lie became entitled to a pa)-ment of about £25 per annum in respect of his service with the Maori Land Board, but the Government- and the Superannuation Board refused to recognise any claim for benefits in respect' of the wholo period! (11 years) of his service as from 1903. Suppliant now claimed damages and a declaration that he was entitled to 'the benefits of the Superannuation Fund in respect of the whole ■ period of, his : seiv vice, subject t-o repayment by him to the fund of the sum of £93 18s. 6d., which he had previously drawn by the mutual mistake referred to.

The Solicitor-General, for the Crown, raised the point that there was a break in the service of the suppliant from the time that he resigned his position as Commissioner of Police until he was appointed to the position as president of the Maori Land Board. Suppliant had vacated his former position ill December, 1909, and had accepted six months' salary in lien of notice, and consequently his appointment in the following July did not amount to a transfer.

His, Honour.held that, during the interval of the suppliant's employment as Commissioner of Polico and his employment as president of the Tokerau Maori Land Board, he held no office under the Crown. He might have been harshly treated, but that was a matter for tho Crown's consideration. Suppliant was accordingly nonsuited with-costs on the lowest scale. MONEY-LENDING TRANSACTION. Reserved judgment was also given by His Honour in the case in which the plaintiff was Susan Emnfa ' Timmings, wife of William E. Timmings, of Edinburgh Terrace, Wellington South, and the defendants the South Pacifio Mortgage and Deposit Company, Ltd., money-lenders, of Wellington. At the Mr. E. G. Jellicoe appeared for the plaintiff, Mr. H. F. O'Leary representing the defendants.

Mrs. Timmings said that in November, 1910, she borrowed £75 from the defendant company, and in return gave a bill of sale over chattels to secure £91. She claimed to have paid up to April 7, 1915, a total sum of £93 155., and to havo afterwards tendered (under protest) a sum of £20 in full settlement bf further debt. This sum had been refused, the defendant company claiming £25 12s. 6d. under a bailment, which Mrs. Timmings said she had signed on March 18, 1912, without knowledge oij its effect. She said the defendant company had actually been overpaid, and she therefore claimed to redeem the premises, and also sought an injunction to restrain defendants from seizing tho chattels or in any way interfering with them.

There was no dispute as to the money which had passed, but the defendant company claimed that 20 per cent, .interest was payable on overdue instalments as well as upon the original amount due. _ The claim was based on this rate of interest.

_ His Honour was of opinion that plaintiff (Mrs._ Timmings) was entitled to tho relief claimed, and 'judgment was given accordingly, ■ with costs on the lowest scale, an order being made for the cancellation of documents. NOT EXEMPT FROM RATES. _ A rather important point in connection with rating law was. decided yesterday by/ His Honour the Chief Justice (Sir Robert Stout) in the case of the Miramar Borough Council v. Archdeacon Dovoy and others. Recently Mr. D. G. A. ( Cooper, S.M., decided that certain property used as a church in the Miramar Borough was not liable for rates, although it was used as a school for gain during the greater part of the week. The borough authorities decided ■to test this decision in a higher Court, with the result that the appeal was allowed with 3 guineas costs'. Mr. T. Neavo appeared for the appellant borough council', and Mr. P. J. O'Regan for tho respondents. APPEAL' ALLOWED. His Honour the Chief Justice (Sir Robert Stout) also gave judgment on an appeal from tho decision of Mr. D. G. A. Cooper. S.M., in the ease in wbich 'Anfne Rudd, married woman, of Kilbirnie,' was . charged with sending through the post a letter containing words of a grossly offensive character. In Seotember last the Magistrate held that- the accused must be convicted, and imposed a fine of £10, wiffli Court costs 75., and solicitor's fee, three guineas. It was against this decision that Mrs. Rudd appealed. Mr. E. G. Jellicoo anpeared for tho appellant, while Mr.,A. Gray, K.C., with him Mr. D. R. Hoggard, appeared for tho respondent. , The appeal was allowed four guineas costs, the conviction being quashed. CLAIM FOR DAMAGES. A claim for'damnijes, in resoect or in--1 juries to a motor'through collision with a tralnwav pole-, was heard in Hie Supreme Court yesterday before His Honour Mr. .Justice Clioonian .and a jury of twelve. 'Hie plaintiffs in the ease were Fitzgerald mid Pearee, motorcar proprietors, of Wellington, the defendants lining the "Wellington Cifcv Corporation. Mr.T. Neavo appeared For the plaintiffs, -,wliile the City Solicitor (Mr. J. O'Shea) appeared for the Corporation. In the statement of claim it was set out that oil July 17 last, about the hour of midnight, a motor-car, owned by Fitzgerald and Pcarce and driven by one of their employees, collided with a tramway polo in .Tervois Quay, and was seriously damaged. The night was very dark, and the pole was not lighted. This fact, combined with tho fact of the pol* being in the centre or tho street, plaintiffs "said, constitut/Ml »» » tha pent ofjjbe Oqtßoratictik waa the

causc of tlio collision. Plaintiffs therefore claimed tho sum of £501 as damages for injuries to the car and loss of business consequent npon the car being out of service.

By way of defence tile Corporation pointed out that the tramway polo was in position in the road by authority of an Order-in-Couucil, and it was denied that there was any negligencc on tlio part of the Corporation. The ear, it was contended, was insufficiently lighted at tho time of the collision, and was negligently driven, inasmuch as the driver did not keep as hear as possiblo to the correct (left) side of the road. Tlio case had not concluded last evening when tile Court adjourned until 10 o'clock this morning. FURTHER ADJOURNED. The adjourned case of D. W. Hamilton v. Margaret J. Vowless, an application for nullity of marriage, was further adjourned yesterday morning until Wednesday, December 1. Some particulars of the ease were published on Saturday.