C.A. 1900. HEARN V. opinion, a conclusive authority on this point. The claim in that case, according to the particulars, was £20 12s.; but the plaintiff, by an error in addition, made them amount to MILLER. £19 12s. only. Upon the trial the plaintiff desired to abandon £1, and thus to bring the amount claimed below £20, and thus deprive the defendant of any right to appeal. The Court held that he could not do so, and therefore that, although he might abandon the £1, and thereby take a judgment for less than £20, he could not abandon it to the defendant's prejudice, but that so far as the right to appeal was concerned he was bound by the sum claimed. And this case is stronger than the present, since it would appear that by his plaint he claimed £19 12s. only, and it was only by correcting the addition of the particulars that the amount could be made above £20. 66 Harris v. Dreesman (1) is also in point. There the claim had been for £22, but judgment had been given for £12 only. The question of jurisdiction was distinctly raised; whereupon Alderson, B., stopping counsel for the appellants, said, "The cause was of a sufficient amount when the action com'menced; it was therefore of the amount sufficient for an appeal, otherwise it would always be in the power of a County Court Judge to avoid an appeal by finding a verdict under £20"; and Pollock, C.B., added, "We are of opinion that the appeal lies." 66 66 66 66 I am not prepared to overrule these judgments, even if I disapproved of them, which I do not, considering that they were not only in accordance with the statutes to which they referred, but are distinctly applicable to the present case. Mayer v. Burgess (2) does not appear to be in conflict with the above-cited cases, but is clearly distinguishable. There the claim was for £20 1s.; but the question raised in the Court of Queen's Bench was whether the County Court Judge could have given a judgment for more than £20, and it was held that, since he could not legally do so, but could only give damages for a lesser sum, no appeal would lie. Seeing, therefore, that the judgment appealed against can only be supported by reading the word "claim" in section 159 of the Magistrates' Courts Act in a different sense from its plain and ordinary one, and that it is directly opposed to Harris v. Dreesman(1) and North v. Holroyd (2), I am of opinion that this appeal should be allowed. MARTIN, J.: The case depends on the construction of section 159 of "The Magistrates' Courts Act, 1893," which provides, so far as is material to the question under consideration, that either "party may appeal to the Supreme Court against any final "determination or direction of the Court in any action on any "matter of fact, only where the amount of the claim exceeds "fifty pounds." The question is, do the words, "amount "of the claim," in section 159; mean "amount of the claim "in respect of which a summons was issued," or do they mean amount due to the plaintiff as ascertained by the judgment "of the Magistrate's Court "? I do not think that any assistance can be obtained from the cases decided in England with reference to appeals from the County Courts, because the statute under which they were decided is very different in its language from that of "The Magistrates' Courts Act, 1893," The English statute (13 & 14 Vict., c. 61, sec. 14) provides that "if either party "in any cause of the amount to which jurisdiction is given "to the County Court by this Act shall be dissatisfied with "the determination or direction of the said Court in point of "law, he may appeal." The amount to which jurisdiction is given by that Act is in respect of claims over £20 and under £50. The Court held, in Harris v. Dreesman(1), that an appeal lay, although the plaintiff obtained judgment for only £12, because he had sued to recover £22, Alderson, B., saying, "The cause was of a sufficient amount when the "action commenced; it was therefore, of the amount suffi"cient for an appeal." appeal." And in North And in North v. Holroyd (2), Kelly, C.B., says(3), "It is impossible to say that the C.A. 1900. HEARN V. MILLER. C.A. 1900. HEARN 2. MILLER. 66 66 plaintiff can abandon his claim so as to deprive the defendant of his right of appeal, which was already vested by the bringing of a claim exceeding £20." Given a cause, therefore, of the amount to which jurisdiction was given to the County Court by the English statute; the right of appeal vested as soon as the action was brought. No such words are found in the New Zealand statute, and the English cases do not, therefore, aid us in arriving at an interpretation of it. Neither do the cases which have been decided as to the right to appeal to the Privy Council against the decisions of Colonial Courts help us. However apposite the language of the judgments in those cases may appear at first sight, it will on examination be found that the statutes or Orders in Council governing the matter differ in their terms from our statute. Macfarlane v. Leclaire(1) and Allan v. Pratt (2) were both decided upon the words of the statute 34 Geo. III., c. 6, sec. 30, in Canada, which enacted that the judgment of the Court of Appeals should be final in all cases where "the "matter in dispute" should not exceed the sum or value of £500; and the cases show that, whatever was the amount of the plaintiff's claim, "the matter in dispute was really more than £500. So, in the case The Bank of New South Wales v. Owston (3), the question turned on what was the amount "in "issue," which were the words used in the Order in Council giving a right of appeal. Turning then to "The Magistrates' Courts Act, 1893," section 8 provides that "claim " as used in the Act, if not inconsistent with the context, is to include debt, demand, claim, or damage. Sections 29 and 30 provide that the jurisdiction of the Court shall include, inter alia, money demands, the enforcement of claims upon and the recovery of possession of movable property, and also the recovery of possession of tenements where the claim is alleged to have arisen on the determination of certain tenancies, and the granting of a writ of arrest for holding to bail any person about to quit the colony leaving unsettled "a claim within the ordinary or extended jurisdiction of the Court. In sections 59 and 60 provision is made for the joinder of "claims " against certain persons. The Act is divided, various sections being grouped under general headings, and immediately before section 68 is a heading, "Commencement of "Action. Claim." And section 68, which provides for the commencement of an action, directs that the plaintiff shall deliver a full and explicit statement in writing of the particulars of his claim. Section 74 and the following sections provide for a counterclaim by the defendant. Section 104, dealing with the judgment, provides for the judgment and set-off in cases of claim and counterclaim. Section 108 provides for payment into Court if the claim be for money. Then, going on to section 159, we find a right to appeal is given where the amount of the claim exceeds a certain sum. This word "claim" must, I think, be used in the sense that it has throughout the Act been used in up to this point. The word is defined: jurisdiction is given for the enforcement of a claim, a writ of arrest may issue in respect of the claim, the claim may be joined with certain other claims, the action is commenced by issuing a summons with particulars of the claim, judgment is to be given in respect of the claim, and, lastly, an appeal lies where the claim exceeds a certain amount. The word "claim" in section 159 must, I think, refer to the claim particulars of which are to be delivered under section 68 when the action is commenced. I think that, assuming the case to be within the jurisdiction of the Magistrate's Court whenever the amount for recovery of which the action is commenced exceeds £50, except in cases such as Mayer v. Burgess(1), where as a matter of law the plaintiff cannot recover more than £50, a right of appeal lies, and that the judgment of the Supreme Court should be reversed. Appeal allowed. Solicitor for the appellant: W. Corry. (Wanganui). Solicitors for the respondent: Borlase & Barnicoat (Wanganui). (1), 24 L.J. Q.B. 67. VOL. XIX.-10. S.C. HEARING. CHRISTCHURCH. 1900. February 27. DENNISTON, J. THE MAYOR, COUNCILLORS, AND, BURGESSES OF Penalties-Liquidated Damages—Contractors. · P. and W. had contracted with the plaintiff Corporation for the removal of nightsoil, &c., from the Borough of Sydenham. While carrying out their contract, and through their negligence, H. was killed. His legal representatives thereupon sued P. and W. and the Corporation, and recovered £200 damages. The Corporation paid this amount, and commenced the present action against P. and W. to recover the £200 it had paid. P. and W. denied any liability, but said that, if they were liable, their liability was limited to £1 by reason of stipulation 17 of the specification, which was as follows: "The contractor shall pay to the Council as liquidated damages the sum of £1 sterling for each and every case 'of refusal or negligence on his part to carry out the work as herein "specified, or fulfil any of the terms and conditions of this contract "relating to the carrying-out of the contract or to the carrying-out of "the works included therein." Held, That, notwithstanding the words " liquidated damages" in stipulation 17, the £1 therein mentioned was a penalty, and that therefore the stipulation afforded the defendant no answer to the action. ACTION CTION by the plaintiff Corporation against the defendant to recover £200 under the following circumstances: By an agreement dated the 19th of June, 1897, the defendants, Charles Henry Poore and David Weir, contracted with the Corporation to remove from the Borough of Sydenham all nightsoil, &c., for the term of two years from the 1st of July, 1897. One of the terms of the contract was that all drays used by the defendants in carrying out the work under the contract should have a lamp burning thereon until daylight each morning. Paragraph 17 of the specification contained the following stipulation : "The contractor shall pay to the Council as liquidated damages the sum of £1 sterling for each and every case of refusal or negligence on "his part to carry out the work as herein specified, or fulfil |