and then a crowd gathered, obstructing witness and another constable on their way to the police cells. Ultimately prisoner was put into a hansom cab, and, witness also getting inside, the vehicle started on its way to the cells. During the jostling in the crowd the handcuffs, which witness had been about to place on the prisoner, were snatched away by some unknown person, and his baton was also taken in a similar manner. While in the cab the prisoner suddenly sprang upon witness, and, exclaiming "I'll strangle you!" seized him by the throat, thrust his knee with great violence into witness's abdomen, causing internal injury, and forced witness's head through the cab-window. The result of the assault was that the witness was incapacitated from duty for a considerable time. The actual language for the use of which prisoner had been arrested was not elicited from the witness, nor was the conviction of the prisoner in the lower Court for its use put in evidence. No formal proof was given that Chapel Street was a public place within the meaning of section 24, subsection 2, of "The Police Offences Act, 1894," nor was it shown that the constable had been unable to ascertain the name and address of the prisoner, as required by section 35 of the Police Offences Act. No evidence was called for the defence. Reed for the prisoner. Tole for the Crown. CONOLLY, J.:— I am quite clear that the arrest in this case was a lawful one. Probably it would have been more discreet on the part of the constable if he had not interfered with the men in the first instance. The evidence is, however, that the prisoner used filthy language in reply to the constable, and that the constable then arrested him for obscenity; and he was perfectly justified in doing this. As to there being no proof that the filthy or obscene language was used in a public place, the evidence shows that it was used in Chapel Street, and that the arrest was made in Chapel Street. It would be absurd to contend that Chapel Street is not a public place. I remember, in a case in which a man was charged with indecently exposing his person in an omnibus, it was urged that an omnibus was not a public place, and Lord Campbell remarked that if this were correct England would be a place not fit to live in; and I think S.C. 1902. REX v. DUFFY. S.C. 1902. REX V. Durry. if Chapel Street is not a public place Auckland would be a place not fit to live in. It is absurd to contend that in cases of this sort it is necessary to prove that streets have been formally dedicated to the public use. I hold that the arrest was lawful, and that all the counts must stand. Reed: In view of the difficulties in the way of taking the case to the Court of Appeal, if the jury should find the prisoner guilty on all counts, would the Court reserve the point for the decision of the Court of Appeal? CONOLLY, J.: I decline to reserve the point. The whole case must go to the jury. The jury returned a verdict of "Guilty" on all counts of the indictment. Solicitor for the accused: J. R. Reed (Auckland). Solicitor for the Crown: Crown Solicitor (Auckland). S.C. HEARING. DUNEDIN. 1901. December 19. 1902. January 31. WILLIAMS, J. BASKETT AND ANOTHER v. THE BENDIGO GOLD- Contract Penalties Waiver - Delay caused by Employer — Payments on Where it is the duty of an employer to provide and prepare a site for the work to be done and he fails to provide and prepare the site, and the completion of the work is delayed in consequence, the right to recover penalties for non-completion by a given time is gone, even if the contractor could not have completed the work in time if no such delay had been caused. Where a contract provides that a sum of £2 per day may be deducted by the employer from any moneys due to the contractor by way of liquidated damages, and there is no agreement to pay such sum, the employer can only enforce the provision by deducting such sum from the moneys due to the contractor, and if money is paid without deducting penalties accrued the penalty clause is gone. Where extras are ordered which render it impossible for the contractor to complete the work within the contract time the right to deduct such sum is gone, whether such order is given before or after the time for completion of the contract. ACTION CTION to recover moneys due for work done under a contract. The defendants sought to deduct penalties under a clause in that behalf in the contract. The facts are sufficiently stated in the judgment. W. C. MacGregor, for the defendants: The penalties have accrued, and nothing has happened to take away the defendants' right to enforce them. The amount is £292. The answers suggested are--(a) that the site was not properly prepared; (b) that hog-stays were ordered after the time for the completion of the work. This contract contains a clause as to extension of time which is not in Anderson v. The Tuapeka County Council(1), and such extension is not to prejudice the contract. Murdoch v. Lockie (2) was decided on its special circumstances, and the same remark applies to all the cases. The principle is that the contractor has been prevented from completing the contract in time. This was not the case here. The question is discussed in Hudson on Building Contracts(3). In Dodd v. Churton(4) the rule is stated by Lopes, L.J., thus: "It is a well ascertained "rule of law that where the failure of a contractor to complete the work by the specified day has been brought about by the act of the other party of the contract, he is exone"rated from the performance of the contract by that date "which has been thus rendered impossible." It is ludicrous to suggest that the failure to complete in time was caused by the failure to prepare the site, or an order of twenty-two pounds' worth of extras. The defendants are also entitled to set off against the contractors' claim a claim for unliquidated damages sustained by the delay: The Government of Newfoundland v. The Newfoundland Railway Company(5); Hudson on Building Contracts (6); Fletcher v. Tayleur(7). 66 Solomon, for the plaintiffs: The engineer has given a certificate for the full amount, and it is not suggested that the work has not been completed. The penalties cannot be insisted on, because extras were ordered-Dodd v. Churton(4)-the reason being that the order put an end to the original contract, and because of the defendants' failure to provide and prepare a site: Hudson on Building Contracts (8). Illustration No. 4; S.C. 1901-2. BASKETT v. BENDIGO GOLDDREDGING COMPANY. S.C. 1901-2. BASKETT V. BENDIGO GOLDDREDGING COMPANY. Findlay v. Cameron (1). Further, the right of penalties was waived by the final certificate, and previous payments made without deducting penalties: Laidlaw v. Hastings Pier Company (2). Any claim for unliquidated damages for delay must be by separate action or counterclaim. MacGregor, in reply: The certificate was expressed to be without prejudice. It was not the engineer's duty to deduct penalties. It is the duty of a builder to apply for plans, and the plaintiff's should have applied for a site. There was an absolute agreement to complete, and the case is not within Holme v. Guppy(3), but within Jones v. St. John's College, Oxford (4). WILLIAMS, J. :— In this case the work has been done, and the plaintiffs are entitled to be paid for it, unless the defendant company is entitled to deduct the penalties from the contract price. If the penalties cannot be set off, no claim for unliquidated damages or for any other reduction of the contract price is before the Court. Whether or no such a claim could be sustained, and, if it could, to what extent, is beside the present question. Certainly, however, damages to be assessed on the basis suggested at the hearing could not be recoverable. The plaintiffs contend, in the first place, that the right to the penalties was waived before the time arrived at which, by the terms of the contract, they were to begin to run; and, secondly, if that were not so, the right to them was waived subsequently to that time. The plaintiffs tendered for the work according to the plans and specifications prepared by the defendant company, for £1,468, " company preparing site and road to same. This tender was accepted by the company on the 16th of March, 1900. The contract subsequently entered into said nothing about the site on which the pontoons were to be erected. It is the practice, however, in such cases for the company to provide the site, and the duty of the company to do so was recognised by the defendant, who did provide a site. The company did not, however, provide a site until the 16th of October, and by the terms of the contract the pontoons were to be completed on the 16th of November. It was only on the 8th of October that the defendant company (1) 4 V. L.R. (L.) 191. (2) Jenkins and Raymond's Architects' Legal Handbook, 4th ed. App. 238. (3) 3 M. & W. 387. S.C. 1901-2. BASKETT v. GOLDDREDGING COMPANY. had secured the site by arrangement with the Alexandra Lead Company, to whom the site belonged, and with which company the defendant company had been in negotiation as to acquiring the site since the preceding June. The plaintiffs, BENDIGO however, had not approached the defendant company previously as to the site, and in fact were not ready to begin the work, owing to non-arrival of timber, before they were placed in possession of the site. The plaintiffs always supposed that the site would be at or close to the place where it actually was, and in fact some of their timber had been carted to that site. There is nothing whatever in the evidence to show or to suggest that the operations of the plaintiffs were in any way hindered or delayed by their not getting the site till October, or that if they had got it earlier their operations would have been in any way accelerated. As soon as the plaintiffs were ready to go on they got the site. If they had wanted the site earlier there is no reason to suppose that the defendant company could not have made arrangements with the Alexandra Lead Company to get it. It was, however, not only the duty of the defendant company to provide a site, but it was part of the bargain that it should prepare the site when provided. The defendant company admittedly did nothing whatever to the site. If from a practical point of view it was reasonably necessary that something should be done to prepare the site for the erection of the pontoons, then it was the duty of the defendant to do it, and the not doing it was a breach of duty on the part of the defendant. I am satisfied, upon the evidence, that it was reasonably necessary that something should be done to make the site fit to erect the pontoons on. Mr. Payne, the defendants' engineer, himself says, "There is more or less preparation required for the site for a dredge." He also says, "If there was a "duty to prepare a site, it would be to prepare a fairly level "' site." Further on he says, "I can't call to mind any dredges "built on a slope. I have seen about sixty dredges built. I "can't remember any not built on a level." The plaintiffs were thus placed in possession of a site for the erection of the pontoons which had not been prepared for their erection, and which required to be prepared before the work of construction could commence. The plaintiffs indicated to the local directors of the defendant company what they considered necessary. They say that the local directors agreed to pay for what was to be done. This the local directors deny. I |