SUPREME COURT.

Gisborne Times, Volume VII, Issue 400, 26 April 1902, Page 4

SUPREME COURT.

(Before His Honor Mr Justice Conolly.) In banco yesterday His Honor heard the case Morrison Bros. v. Eliza Coleman, an appeal against the Magistrate's decision in a claim fora p.n. on a subcontract for painting work for the sum of £ 106 9s Id, the excess over £IOO being struck oil the claim in order to allow of its being brought within the jurisdiction of the Lower Court. Mr W. I). Lysnar (instructed by Mr E. J. Chrisp) appeared for appellants, and Mr C. A. DeLautour, with Mr Nolan, for respondent.

In reply to Mr Lysnar, His Honor sa'd be did not see bow he. could deal with the question of fact. Mr Lysnar said His Honor had the assistance of the facts, as they were. He would not find the difficulty which appeared on the face. Mr DeLautour said the question was dealt with quite recently by the Chief Justice. It was held that in an appeal on fact from the Magistrate’s decision the appellant must show that the Magistrate’s decision must be demonstratively

wrong. Ilis Honor said he must consider the decision given was right. Mr Lysnar said he would show by evidence that the Magistrate was wrong sufficiently to bring it within the case his friend had just quoted. He would go so far as to ask His Honor to ignore the evidence of both parties, and look at the facts as they appeared from independent witnesses. His Honor : I can’t ignore that part of the case. You have put the evidence as part of the case. Mr Lysnar said His Honor could go so far as to ignore part of the plaintiffs evidence and take the evidence of the defendant, whose statements the Magistrate acted upon. Even assuming that the promissory-note was given, as held by the Magistrate, they were still entitled to judgment. On the intimation of His Honor, he would not trouble as to the question when the work was finished, so as to give the workmen a lien. His Honor : If the other side intended to dispute that it would be a crossaction.

Mr Lysnar said the statement of claim was under the Contractors’ Workmen’s Lien Act, 1892, and they were claiming from Eliza Coleman, and not from the Official Assignee. The Assignee was joined as an interested party, but they were not seeking judgment against him. His Honor : He was made a defendant. Mr DeLautour : And is obliged to be here.

His Honor said the summary of the statement of claim said nothing about Mr

Coleman. Mr Lysnar : It recovers from the defendant Eliza Coleman £lO6, less the £6 abandoned. Mr DeLautour said there was no question about the amount. Mr Lysnar said they would confine themselves to Morrison and Sheet's evidence and a little of Mr Coleman’s. He had reviewed the evidence taken in the lower Court. The question was, Was the Magistrate right in finding that the plaintiff accepted a promissory note unconditionally from Skeet? His Honor : The question whether it was for the whole amount had not been

raised. Mr Lysnar: I had it in my notes. I know we claimed for the full amount. His Honor : It was not raised. Certainly the inference would be that it was given for the whole amount, with perhaps a discount for cash. Mr DeLautour said Mr Lysnar was departing from his own grounds. His Honor did not think the question should be raised now. Mr Lysnar: There is no evidence. That surely is a ground of appeal. In the conclusion of Morrison’s evidence, he said the £IOO was due. The amount of the contract was £95, and the excess for extra work. Whether it was for the whole or part, they were entitled to appeal. Mr DeLautour : The question cannot enlarge the grounds. His Honor did not think the question of the odd £5 could be raised now. Either the promissory note was a settlement between Morrison and Skeet or itwas not.

Mr Lysnar said they did not think in the lower Court the Magistrate wauld take the promissory note as representing the £IOQ claimed. His Honor: You were going for the £IOO or nothing. (Laughter.) Mr Lysnar said ■ they thought the Magistrate should have given crpdit for £95 and judgment for £5. His Honor : Supposing Sheet had not become bankrupt, could you have recovered front both Sheet and Mrs Coleman under the Workmen’s Lien Act'/ Mr Lysnar : Both of them, I-lis Honor : Twice over ? Mr Lysnar did not contend that they should be paid twice. His Honor said a promissory note was not payment. Mr Lysnar said in face of His, Honor's opinion it was not necessary to prove that a promissory note was not payment. He went on to quote from the Act of 1882 to show that a workmen’s lien was not settled until the amount owing had been paid, and as His Honor had ruled that a promissory note was not payment, therefore the amount was still owing. His friends were quoting from the common law, but the claim was made under a special Act,. Mr Lysnar continued the argument at some length' Mr DeLautour said lie would submit that the judgment of the Magistrate on the point of fact would not be disturbed. It was impossible to say on reading the evidence that on the question of fact the Magistrate’s decision was demonstratively wrong or unrea-

sonable. His Honor : It is (.lie matter of law that is of importance. Mr DeLautour : Then the matter of Jaw is as to the finding. He went on to quote authorities on the point. I-lis Honor said if the payment had been made an out-and-out' one there would be the receipt taken. Mr DeLautour : The finding of the (Magistrate was that it was accepted unconditionally. His Honor : That does not make it absolute payment. Mr DeLautour : II slaved all remedies during the pendency of the condition. If Sheet had not failed the bill would have been met on maturity. Mr Nolan pointed out that the remedy against Mrs Coleman only arose through Sheet. It was a suspended remedy against Sheet; therefore it must he a suspended remedy against the principal.... When plaintiff’s remedy did arise he was too late. His Honor : There is hardly anything for you to reply to, Mr Lysnar. You base your case on the statutes ? Counsel for respondent pointed out that they had quoted Judge Edwards’ opinion that the statute did not apply in cases like the present one. I-lis Honor said it appeared to him that ip answer to the Second question of law, tiie plaintiffs did not lose their rights under the Act. Even if Morrison had obtained a judgment against Sheet for the amount, and it was a much stronger case, he still had his remedy, if fn (ime. If, wopld bp most unreasonable to suppose that a person must await a promissory note being paid or dishonored before he had his remedy against the other party. Notice had been given in .ime, and the other party had been disabled through bankruptcy. It seemed to Ilis Honor there was no question about die rights ot plaintiffs. Judgment would be for appellant, and costs. Leave to appeal was granted on Mr DeLautour’s application. Mr DeLautour asked for a stay of proceedings, to which Mr Lysnar objected.

His Honor said the Appeal Court . commenced on the last day of June. Practically three months were asked for.

Mr Lysnar said the case was one in which very strong reasons could be shown for objecting to a stay of proceedings. Mr Nolan: The appeal could have been prosecuted six months ago. Jlf Lysnar said .there had been sq

Supreme Court here since ; it was a rule that the cases should oe taken in Gisborne ii' possible. Mr Nolan said he had urged his friend to go elsewhere. His Honor : You might have had the case taken in Auckland. Air Lysnar said there was the question of cost.

His Honor : I am quite satisfied from the Jaw on tiie case. I don't think I ought to grant a stay of proceedings.