SUPREME COURT.

Dominion, Volume 1, Issue 282, 22 August 1908, Page 10

SUPREME COURT.

CRIMINAL SESSIONS.. YESTERDAY'S PROCEEDINGS.' Tho Criminal Sit-tiugs of tho Supremo Court wero resumed yesterday, Mr. Justice Cooper taking his seat at 10 o'clock. A SERIOUS CHARGE. I-larry Ballantyno, a young man, wa.s charged with having, on July 25, committed a serious criminal offence,at Upper Hutt. ■ Mr. "tt'ilford appeared on behalf of tho prisoner, who pleaded not guilty.' Tho public wero excluded during tho hearing of the case, which occupied tho wholo of ■•tho forenoon. The jury, who retired at 1 p.m., returned at 4 p.m. with a verdict of not guilty. His Honour: Do you .find prisoner not guilty generally, or not guilty on 'tho. ground of' insanity ? The Foreman: Not guilty generally. His Honour: Let the prisoner bo discharged. CHARGE AGAINST A HOTEL' PORTER. William West,'alias Westphal. a middleaged man, was charged with having, on April IS, attempted to commit a serious criminal offence on a married woman. The prisoner, who pleaded not guilty, was dofended by Mr. Toogood. ■Prosecutrix gavo evidence that on the dato in question she was staying at the Masonic Hotel. Her husband was away in Christchurch at tho time. As sho was indisposed she loft the light burning in her room that night. Prisoner, who - was the night portyr, requested her to put-it out abfrut midnight. When sho told him that she was unwell ho offered to bring her a sleepingdraught. Sho declined to accept that, but ordered a glass of stout. Prisoner went away and brought a bottle of stout back to h#r room. He poured out a glass for her, and, with her consent, drank what was; left in the bottle. Subsequently ho committed the offence with which ho was charged. At tho timo prisonor was under the influonce of liquor. Among other witnesses called by the prosecution was Detective Cassells, who deposed that on one occasion- prisoner asked lnm if there was any chance of ' him getting into trouble for having gone into prosecutrix's room. - Prisoner had -admitted to- witness that he had written the statement which had been produced. Subsequently prisoner remarked:,''l know I had no right to do what I did, but . I was mad with' drink o,t the time."

'•-Prisoner _ (sworn) stated,'inter alia, that when tho licensee of tho hotel askod him to. writo down tho facts ho (tho licenseo) said that it must be a statement which would be to prosecutrix's satisfaction. ■ The case will bo concluded this morning. CIVIL SITTINGS. ADDITIONS TO PARLIAMENTARY BUILDINGS. FLEMING UQS3 v. MICHAEL FRAIN. CLAIM FOR DAMAGES. . Judgment was delivered yesterday by Mr. Justice Chapman with respcct to tho easo of Fleming Ross versus Michael /Frain. ' His Honour said that tho defendant, having; » contract with tho Government for additions to -Parliamentary Buildings, sublet tho joinery contract to ono Martinson, who found himself unable to carry .out his contract. Plaintiff based his cltim for damages against defendant on two grounds: (1) That lie became surety for Martinson and t-h'at' this gavo him tho right on Martinson's'failure to tako.'his position, finish the work, and thereby earn a profit, and so recoup himself; (2) that it was expressly agreed between plaintiff and defendant that plaintiff should be substituted for Martinson. There was-a third question respecting, a sum of £100 which plaintiff • alleged was his, ho having deposited it to guarantee performance by Martinson of his contract with defendant. Tho plaintiff, therefore, in addition to tho sum of £100, which ho had at stake in connection with tho guaranty, claimed tho profit which ho might liavo made had ho been allowed to carry out tho contract,-, and damages for defendant's alleged breach, representing expenditure on which the plaintijf -said he :.ombarked by way of preparing to execute '■ the work, this being stated at £35.

' Discussing the question raised by the plaintiff under tho first head, His Honour said that it was singularly bare of authority. Ho could not think that a surety could have tho right-as-against-the contractor to take a matter in hand, complete tho contract, and himself sue for tho contract money, or,' as \tm claimed in tho present case, damages for breach. It was difficult to see by what process he would himself become bound by tho terms of the contract, which might contain special provisions for penalties, etc., and if lie was not bound tho contraetee would be placed at a great disadvantage. That would especially bo the case where there were several sureties: If ho were a party who had obliged himself •to complete tho contract, that obligation would presumably carry with it a right to perform that duty. A surety took the risk of the principal's-failure and indemnified the holder-of the obligation against -that risk. Tho correlative duty of tho holder was not to treat him as tho contractor but to mitigate as far as possible his loss.- The proper way to do that might be to do the work himself or employ a suitablo person to do it. No authority to support the right as claimed in tho present case could be found.

Tho otlior branch of the case had, continued His Honour, to bo determined by moans of the evidence, which was conflicting. Plaintiff and defendant, who appeared to bo respectable moil, had absolutely contradicted each other on the more important questions which arose. The first question in dispute was whether the plaintiff or Martinson deposited a sum. of £100 with defendant by way of security for tho performance of tho contract. Martinson's tender was £1248 ' Bs. for work and material. In his intimation of his .intention to accept the tender,, defendant .wrote that a surety must be givsn .to him. .If a form which accompanied the . letter of acceptance was intended to call for a security by way of doposit it clearly indicated. a deposit by tho person expected to sign it, not by Martinson. A cheque for £100 worded "nay Frain or bearer," was dishonoured. Plaintiff obtained a crossed chequo in his own favour for £100 by means of his own cheque, the butt of which was entered "Martinson, deposit _ contract Parliament job." The receipt given by defendant for the bank's chequo stated briefly:— !' Received from Ross £100' as deposit on account of Martinson on contract Parliament Buildings." Seeing that plaintiff was acting as bookkeopor for Martinson it was, his Honour said, suggested that tho receipt was roall.v equivocal and if it were looked at alone it could not be said that its language positively determined whether plaintiff was depositing tho sum as a surety for Martinson nr lending it to Martinson, and at the samo t.imri depositing it as his_ agent, Although it was not Wholly unequivocal, tho receipt snpcared to the. Court to indicate that plaintiff when drawing it un had a deposit by himself in his mind. If that was bis view of tho matter it must bo imputed ns defendant's view ns he had acknowledged receipt

" from Ross," not from Martinson. No doubt were circumstances which assisted tho defendant's contention.

His Honour then dealt with plaintiff's claim for profits which lie mic(ht have made had lie Wn allowed to cnrrv out the contraet. Plaintiff's er«so t/ss tlinfc lio saw de-

fendant when nobody else w*.s nresent but Martinson. who was not nmiUble as a witiiojn. Defendant nositirelv denied that lie over ncroed to allow plaintiff to carry on the 'contract in place of Martinson. After referring at considerable length tn the evidence, his Honour said that' if tlio timber v-n.q ordered for tho work it showed that

pin in tiff wns not relying'on a sub-contract, •villi defendant, hut on his assumed Wal rinhh. Indeed, it was qtiltn nossililo that lie plight lmvo thought that defendant in .com-

moil with himself assumed the existence of this legal right, and that this led him to suppose that ho had closed the matter with defendant. Tho conflict was between theso two parties and ho (his Honour) thought that the weight of cvidenco was in favour of the defendant. Whatever there might have been in plaintiff's mind it was not proved to tho satisfaction of tho Court that dofondant made tho alleged agreement. The plaintiff had therefore made out his right to recover tho suni of £100, hut had failed to establish his claim for damages. Mr. .Bell, K.C. (with him Mr. Levvoy) appeared on behalf of the plaintiff, and Mr. Skorrott, K.C. (with him Mr. Von Haast) for the defendant. CLAIM FOR RENEWAIi OF LEASE. Mr. Justice Chapman heard legal argument in the caso of Crespin Parkor (plaintiff) versus .Reginald P. Grevillo and Mary J. Edwards (defendants). Mr. Johnston (with him Mr. Rothenberg) appeared on bohalf of tho plaintiff and Jlr. Findlay for tho defendants. Tho facts in this caso wero as follow: — Plaintiff leased a property at Haywards from defendants for a period of nine years from March, 1899. It was provided in tho agreemont that tho lease might be renewed for a further period on condition that certain improvements had been carried out and tho property kept in a proper state. Plaintiff gave notice that lie desired a renewal, but defendants refused to grant the.samo on the ground that.-the covenants in the lease had not been performed, particularly those with reference to tho eradication of noxious weeds. The. claim was ono for specific performance.

: It was argued for the plaintiff that no substantial breach of any of the covenants had occurrod and that at tho time notice of intention to renew was given thero was no existing breach of any covenant. On behalf of the defendants it was contended that any breach however trivial during tho term ontitled them to refuse to renew the lease. Judgment was reserved. QUARTERLY CIVIL SITTINCS. LIST OF CASES SET DOWN. Mr. Justice Cooper will hold a sitting in Chambers at 10 o'clock this morning for tho purpose of settling the order in which tho cases set down for hearing at tho Civil Sittings which commence on Monday next aro to bo taken. Following is a list of the cases for. hearing:— (Before a Common Jury of 4.) - Annie Stewart 1 v. Mere Isherwood of Mere To Puni, claim for £250 damages for alleged slander. . (Beforo a Common Jury of 12.) Ernest Albert Barton v. Fritz Jensen and Mothers claim for £620 and interest, monoy alleged to bo duo. Hamilton Gilmer' and Allan Maguiro versus Robert Dwyor, declaration of alleged partnership. . Hamilton Gilmer and Allan MagmVo v. Joseph Dtvycr, declaration of alleged partnership. . ; Public Trustee v. John Goring Johnston claim for £501 damages for allegedly causing death. . Elizabeth Green y. Itirkqaldio and Stains. Ltd., and Sydney Kirkcaldio," claim for £500 damages for alleged wrongful imprisonment, 0t Henry Albert Ward versus New Zealand Loan and Mercantile Agency Company and Robert M. Mac Knight, claim for £1393155., allegod loss by salo under mortgage. (Beforo a Judge Alone.) , Ernest Albert- Barton i versus Fritz Jonsen and others, action for accounts (liemanot). ' ' Now Zealand Acetylene Gas Lighting Co. Ltd. v. Frederick Andrews and Charles Ranger Bailoy, claim for £103 lis. <id. interest allegod to bo duo on a promissory note. T . Alice Bertlia Sherwood v. William John Parsons claim for £100' alleged damages to Pr Smiry 'Adam Mackay v. Clias. Freeling Roovos, claim for £250, alloged commission on exchange. ; Jamos Henry Kibblewhito v. Wm. Geo. Somervillo, olaim for rescission of contract, etc.

Thos. Geo. M'Cartby v. Benjamin Dawson and J. J. K. Powell, olaim for £375 and interest on money alleged to haxa been lent. Robert James Kells v. Geo. Hamill, claim for specific performance and £500 damages for alleged breach of contract. . Win. Gordon Hutchison v. Alfred Benge, claim for £410, alleged to'be'due as commission. • . • ' .

Christian N- Rokkjer v. Australian Alliance Assuranco Company, claim for £250, alleged to be due on an insnranco policy. Humphries Patent Bracket and Scaffold Co., Ltd. v. Butters, Hale and Co., claim for injiinction, etc. ' • Wm. Robertson v. Jas. Barry and others, claim for £300, alleged to bo due on. commission. Wm. Henry Rose v. Henry Denhard, claim for £500 damages for alleged libel. Geo. Washington Phipps v. Atlas Insurance Co., Ltd., claim for £131 10s. 6d., alleged to be duo on a policy. Emily Marianne Lingard v. George B. Richardson, claim' for specific performance and £500. Emily Alice Spearman r. James Costin Webb and J. J. Webb, claim for £20, rent and possession of land. A. Peters and Son v. Wm. Evetts, sometimes known as Wm. Odium, claim for '£5 damages for leaving omploy without notice. IN DIVORCE. (Before a jury of 12.) ! Elinor Susan Gillespie v. Thomas Gillespio, suit for dissolution. " (Before a judge alone.) Helen Ritchio Ball v. Alfred Ball, suit for dissolution. ' . ' Joseph Edward Harlem, sometimes called Joseph Henry Harlem v. Mary E. E. Harlem, suit for dissolution. Walter Samuel Furby v. Lily Furby and I'oter. Ballantyno, suit for dissolution. John Eaton Dcadman v. Eliza J. Deadman, suit for dissolution. Mary Campbell v. Rata Campboll, suit for dissolution. Georgo Stafford v. Bertha Stafford,. suit for dissolution. Jessie Foroman v. William Thomas Foreman, suit for dissolution. Elizabeth Barrow v. William Barrow, suit for dissolution. Chas. Honry Pearson v. Clara Jane Pearson and George Brewer, suit for dissolution. Emma Stevens r. William John Hitchcock Stevens, suit for dissolution. Evelyn Ellon M'Lennan or White v. John White, suit for nullity.