COURT OF APPEAL.

New Zealand Times, Volume XXX, Issue 4413, 12 May 1875, Page 3

COURT OF APPEAL.

Tuesday, May 11

(Befor his Honor the Chief Justice, Mr. Justice Johnston, and Mr. Justice Gillies.) Several matters having been mentioned, and the order of taking the cases decided up®n, the following business was taken ; BRUCE V. GILMORE. Mr. Garrick said he observed that this case, which was tried in the Supreme Court, Canterbury, had not been set down on the list. The omission appeared to him rather strange, as he had received notice of appeal, and an order had been taken out to remove the case to the Court of Appeal. It appeared, however, that the appellant had omitted to set the case down, and he desired to have some expression from the Court as to whether it was competent for him to set it down.

The Chief-Justice and Mr. Justice Johnston concurred that as the case had not been set down according to rule, the Court was not seised of the matter, and could not entertain Mr. Garrick’s application. Mr. Garrick explained that ho appeared in* Court in consequence of the receipt of the notice of appeal, and he was anxious to have the case set down in order that he might argue the question as to costs. The Court reiterated the opinion that it could not take cognizance of the* matter. YOUNG V. PERCY. This was an appeal from the decision of the Resident Magistrate at Wanganui, who gave judgment for the plaintiff (Percy), in an action for the recovery of £64 195., being the amount due for the passage of defendant’s coaches through the Kaitoke toll-gate, near Wanganui. Mr. Brandon for the appellant; Mr. Hart for the respondent. The special case stated by the magistrate (the parties being unable to agree) showed the following facts to be proved;—That the defendant had a contract with the PostmasterGeneral for the carriage of the mail between Wellington and Wanganui ; that his coaches passed through the toll-gate at the times mentioned in the particulars of demand; that he carried on the business of a passenger crrrier, and conveyed both ordinary passengers and goods as well as mails ; that he received notice from the Chief Postmaster before undertaking the contract that mail carriages carrying passengers and goods would be liable to the payment of tolls ; and that during the first part of the term for which tolls were charged he admitted his liability to pay. At the hearing it was objected for the defence that as the Imperial Acts relating to turnpike roads and the tolls thereon expressly exempted carriages carrying her Majesty’s mails from tolls, the defendants coaches were also free ; that as the defendant had entered into a bond with her Majesty the Queen to fulfil his contract, he was at the time of carrying the mails in her service ; that the Provincial Act having appointed penalties for the evasion or non-payment of tolls, no action would lie for their recovery ; and the right to charge a second toll onAthe daily coach was also disputed. The questions for the opinion of the Courff were :—l. Whether the defendant was in the service of her Majesty the Queen as a mail carrier in such a way as to be exempt from the payment of tolls ? 2. Whether in the case of the daily coach between Marton and Wanganui the plaintiff was entitled to demand or receive tolls twice within the twenty-four hours on the same vehicle? With regard to the second question, it was agreed by the parties that if the Court should be of opinion that the second toll could not be demanded, the amount of such second toll should be assessed by the Clerk of the Resident Magistrate’s Court, and deducted from the amount claimed by the plaintiff. The case having been argued at length by Mr. Brandon and Mr. Hart, The Court reserved its decision.