SUPREME COURT.

Gisborne Times, Volume XXV, Issue 2193, 24 September 1907, Page 2

SUPREME COURT.

MONDAY SEPTEMBER 23. (Before Hit* Honor., Mr Justico Denniston.) ACTION WITHDRAWN. Tho action McGrath v. Gisborno Times, a claim for £2OO for alleged breath of contract concerning plaintiff’s employment, has been withdrawn this sossion, owing to an adjournment not being allowed. ADJOURNMENT. In the ease Walter Robert Aikin (Mr. W. L. Rees, with him Mr. E. H. Mann-for tho plaintiff) v. Common Shelton and Co. (Mr. Stock for defendants), a claim for £IOOO damages for breach of contract, Mr. Rees intimated that owing to tho death of tho mothor of tho principal witness for tho dofonco, tho plaintiff would agree to an adjournment, though at considerable inconvenience. —Adjournment by consent to tho next sitting of tho Court at Gisborne.' CASE RE-INSTATED

An order to prohibit any further steps being taken in a Karaka judgment summons case was asked for. The facts wero that A. M. Lewis and another sued Selby Burson before the S.M. Court for a sum of about £2O. The case came before Justices who adjourned it until tho S.M., Mr. Barton, was sitting. It was heard next Court day at'lo.3o a.m., and in tho absence of defendant an order for imprisonment was made on tho judgment summons. The defendant, Burson, clamied that tho case being a Karaka one should not have been called till 11 o’clock, tho usual hour for country cases. Mr. Finn, on his behalf, therefore moved that the higher Court prohibit any further steps being taken. Mr. Sainsbury appeared for the defendants (plaintiffs in the lower Court).

After some arugument in tho case, Mr. Fiinn was asked by His Honor why tho ordinary steps such as applying at the office to have any mistake rectified, wore not taken. He was sure thero would bo no trouble in getting tho case re-instated, or the matter rectified, if it was shown that three had been any irregularity or mistake affecting tho defendant in tile S.M. Court. Mr. Finn said they must allow for a layman’s lack of knowledge of the proper procedure. His Honor: But his solicitor was not ignorant. A re-hearing might have been consented to. Mr. Sainsbury: We do consent. Mr. Finn: Well, that settles the matter. His Honor said tho order would be dismissed, on the understanding, however, that the parties agreed to •have a re-instatement of the case. The re-hearing was fixed for October 17, at 11 a.m. NON-ACCEPTANCE OF A TENDER. This was an appeal case, Webb and Sons (Mr. Finn) appellants, and William Sherratt (Mr. Stock) respondent. The appeal was from a decision of the Stipendiary Magistrate at Gisborne regarding the non-acceptance of Webb and Sons’ tender and the refusal to grant compensation according to the specifications. His Honor: The question is whether they refused to accept the lowest tender ?

Mr. Filin agreed at the time of closing tenders plaintiffs had tendered at £6176. His Honor said the tender did not appear to have been signed. Mr. Finn said ho intended to produce the document. There were other tenders in exactly the same condition.

His Honor said they were signed. It was a question whether in the absence of a signature and the want of punctuality there was a tender. Mr. Stock: That is what we say; it was not a tender. Mr. Finn said it was a simple contract. The defendant was bound to it by subsequent conduct. The cheque for £IOO on Webb and Sons’ bankers had been accepted. His Honor after comparing the documents, said they migjht have treated the name at the heading as making it a tender. Mr. Finn: It was treated as a tender all through. The question of the lack of signature was not raised till a late stage. His Honor: It is a technical defence. Mr. Finn, in reply to a question, said Mackrell and Colley got the contract, which was varied. His Honor said defendant was not compelled to accept any tender/ Mr. Finn: No, but Webb and Sons were entitled to the compensation provided in the specifications. Mr. Stock, replying to His Honor, said the defence had not been gone into in the lower Court, a nonsuit being granted. He contended that Webb and Sons’ document was not a tender, and that it could not have been enforced. There was no material connection between the cheque and the alleged tender. His Honor said it was enclosed and in tho same handwriting. Mr. Stock: That point was not gone into.

His Honor expressed the view that it was a pity that in the S.M. Court technicalities' which could .be met were not gone into. The point that no suoh contract, but only a modified contract, had been entered into, was open to argument. Mr. Finn rejoined that the plaintiff’s tender had up to a certain point been treated as accepted. His Honor said tlnrl another good ground for the claim would have resulted, had it been proved that the tender and the cheque were in the same handwriting. But the difficulty was that none of these things had been proved. The lino was very narrow, and lie would look into the case and authorities quoted As it was a nonsuit matter all lie could do would he to send the case back to the S.M. Court to be dealt with.

The Court adjourned to 10 a.m, the following day.

Press Association. NAPIER, Sept, 23. . At the Supreme Court to-day Daniel Tohill was sentenced to six months’ bard labor for the-fts from the railway goods died at Waipawa. Arthur Graham Owen, who pleaded guilty to making a . false declaration tiiat li£ was a bachelor, was romanded for sentence: William Smith, who pleaded guiltv to two charges of false pretences, was also remanded for sentence. The jury disagreed in the case of Albert Anderson, cbirged with indecent assault on a girl G years of age. A new trial will probably bo ordered.