LAW REPORTS.

Dominion, Volume 3, Issue 804, 29 April 1910, Page 2

LAW REPORTS.

SENTENCES.

A SHORT HOMILY ON DRINK.

BY HIS HONOUR.

The Chief' Justice (Sir Robert .Stout) iad four prisoners before him for sentenco yesterday moraine. - ■.

Two men from Stratford, Peter Neilson and Harold Adolphus Rudolph Ketterer, having pleadod guilty to. a charge . of breaking and entering and theft, first appeared in the dock.

His Honour, after perusing a statement handed in by the prisoners, remarked on tho complaint that they made . that they' had been unablo to obtain employment. How could they expect to get employment if they were constantly drinking? vNp.nmplover would have such meu.. Ketterer, the younger man, had been convicted of drunkenness at Petone, ho had served a month's imprisonment for being idle and disorderly at Martinborough,, and ho had been convicted this year, of theft and vagrancy at Foilding. Neilson had a still graver record. In 1905, lie had been before the Court on three charges of theft, and later he had been convicted of resisting the police (1900), drunkenness (1907), drunkenness and disorderly conduct, theft, and assault (1909). ,-,..',.. ;

"When you have a record like- that," commented the Chief Justice, "who can you expect is going to employ you?. Of course, if you get any money, you simply go away and spend it on drink. I must ifay. lo you, what I have felt disposed to say to so many men, that if you go about spending in drink what little money you do earn, you will always end in guol. There is- no happiness, in such a life. You are fools; that is what you are. You are bdth young men, aud I hope that there is a chance of your retrieving yourselves.- Therefore, I shall pass a short sentence, seeing that the things stolen; were not of much value." Sentence was then passed that Neilson should be imprisoned in the Wellington Gaol for twelve months, with hard labonr, and Ketterer to nine months,' imprisonment,: also with.hard lahour.

"EMPLOYER ALSO TO BLAME." Fred Lindsay Backhouse, who'' had pleaded guilty at New Plymouth to two charges.of forgery and uttering, stated that, when lie signed the document,' he had no idea- that he was doing wrong. Ho had collected only the money due to him, .whereas, if he hail had any criminal intent, he could have obtained about Jsoi

His Honour, said that drink appeared to have caused' the lapse. Prisoner's employer, however, had beon to blame for having left him without wages, but Backhouse had no right to forge his employer's name. He would be placed on probation for twelve months. As he was not earning much, no order would bo mado calling upon. Mni to pay expenses.

'THEFT AT RAHOTU. Thomas Burns, whose offence had been breaking und entering and theft, stated that at the time of the- crime he had been under the influence of drink. His Honour remarked that tho thefts had all been committed about the, same time, from Hood's Hotel, Rahntu.' Nothing was known. against the prisoner previously, and as lie was a young-man he would bo granted probation for twelve After the first threo months he would bo required to refund Jil a month for the remaining nine months, to pay .for'the goods stolen. ; ';'" ■: '"..' 'IN BANCO. , THE CARE. OF A CHILD. '. An appeal from a recent decision "of 'Mr..W. G.'Riddell, S.M;, in..the Wei-' lingtou Magistrate's Court, was heard yesterday, by the Chief Justice.. ; . In. tjiii,caso,,.in ; tho Alesaridei'VKiigi \a ' driver,---. charged, on tha information of his wife,.'. .Fanny Kingy,with.having failed to maintainhis sii-ycar-old child,.. Malcolm King. After hearing evidence, the '.magistrate -had ordered-King to pay 10s.'a week towards the child's maintenance;' -. • The appeal now brought by King was based on tho grounds—(l) that there was no evidence that he had failed to provide for the child; : (2)fhat there had beeh'no breach of duty on his. part, as far as' tho 'maintenance of .the. child was concerned. Mr. T. Neave appeared for King, and Mr. F. E. Pelherick for Mrs., King. The .Chief Justice remarked, during the hearing of tho case, that it .was the dutyof .the Court to- see that tho child was provided for.. If "the parents had quar-'' i rolled and separated, they should, no doubt, ,bb'punished, but the cnild mast, not suffer. , From the evidence , it.;', appeared tba't-King, .living in a bbardiughou'se and attending his work, had not been able to care for tho child properly. If, at'any time- King considered that the child was not receiving proper treatment, while-in the ;custody of, its mother, ho might' apply to the Court to have it taken from her. In. the event of the Court determining that neither parent was' competent to have the custody of the child, .there was power to tako the child uway from both of them. He saw good reason why the parents should come together again. The appeal was disallowed, with three guineas costs,

HOTJSLKEEPER AND POLICE. - . Tho appeal of John Shelly, licensee of thu . Foresters' .Arms Hotels v. ,I'ercival Jones, police- : constable, - was nieutioneci before Mr. Justice Cooper yesterday l . The appeal was in regard to a recent, decision of. Mr.. W. G. Riddell, S.M., in the Wellington ■ Magistrate's Court, Shelly having been convicted and fined, .£lO on a charge, of permitting drunkenness on his licensed promises. Mr. M. Myers, Crown Solicitor, appeared on behalf of the respondent police uiheor. '.'.-■ Mr. D. M. Findlay, who appeared for tilts licensee, asked that the appeal should be withdrawn. . His Honour said that the appeal could uoc properly be withdrawn; it must be dismissed. Mr. Findlay p6inted out that notice that tho appoal would - not be proceeded with had been given soma time ago, and, for that reason, he considered that costs should not be ■ allowed. His Honour said that three guineas costs was a reasonable'iimonnt to allow. Tho. appeal' would be dismissed.

IN BANKRUPTCY. CASE OF JOHN MORRIS SCHAPIRO. At a sitting in bankruptcy yesterday,' before Mr. Justice Cooper, the Official Assignee moved to set aside a mortgage given by John Morris Schapiro, trading as John • Morris, furniture dealer, Wellington, within threo months of the commencement of his bankruptcy, the ground of the motion being that such mortgago constituted a fraudulent preference to the creditors to whom it was given. Mr. M. Myers appeared for the Official Assignee, and-Mr. -P. Levi for the mortgagees,' Catherine and James Hall-Kenny. Mr. Myers stated that Schaprio,' on December 2, 1908,' within three months of the commencement of .his bankruptcy; gave a mortgage over certain property to Catherine Hall-Kenny and James HaltKenny. It appeared that an advance of .£IOO was made on the mortgage at that timet and, if so, the transaction could not be set aside so far. as-that amount was concerned; but the amount which the mortgage was given to secure was £G\2, and it was not suggested .that more than .£IOO was advanced coutcmporaneouslv with the execution, of the mortgage. The bala-uce of £512 .< was owing previously in respect of advances made from time to time by Mrs."Hall-Kenny to Schapiio. Up to the time when tho notice of motion was filed, 'there had been no suggestion from the Hall-Kennys or the bankrupt that pressure had been brought to bear on the bankrupt by either. of the mortgagees to cause him to give the mortgage. At-the time/ when Schapiro gave the mortgage, which was over a property in Cuba Street, he could nut' have honestly bcliovcd it was possible For him lo carry on his business. In. this motion -thi; Official Assignee had to meet I he opposition of the mortgagees and tho.

bankrupt, who had made affidavits, but ho would cross-examine them upon their affidavits. Honrv Kember, accountant, Wellington., said he had examined .the books of the bankrupt, and found that on DeccmDer 2, 1808, lie was utterly bankrupt. A Croesus could not have stood very long the class of business that he was-doing. He must have been losing money all the time he had been in business. The books were too incomplete to cnablo any accountant to make out a. balance-sheet. He was not paying his accounts. He was getting goods from London and from New Zealand firms and sending them to auction rooms in Wellington and country towns to fetch what they would. That meant throwing money away.' There was, on December 2, 1908, no.possibility whatever of Schapiro becoming solvent. . To Mr. Levi: In saying .that Schapiro was bankrupt on December 2, 1908, witness did not take into consideration .his property in Cuba Street, as it was hot shown on the books..

Catherine Hall-Kenny said she . 6rst lent money to Schapiro several years ago. Two daughters of hers were working for him, and they told her that he required money for his business. Witness gavo particulars of money lent by her to Schapiro, and of a loan of .£250, which she raised on her furniture, afterWards lending the money to him. She got no security from Schapiro. She thought he was prospering, and trusted him. He was to pay back the .£250 ill thrao : years. Witness renewed the bill of sale to Miss Saundersbn for the .£250 at.the end of the three years, and Schapiro promised to pay the money back in another three years. Witness did not ask Schapiro for security/ but' he said he would give her security.-. Her daughters left his employ two years ago, but she let tho money remain owing to her,, and .did' not 'ask for security. The'loan to. Schapiro and the bill.of sain to Miss Saunderson were renewed in 1906, still without 'security, which witness, did hot ask fori In December, 1908, witness aud her son went with Schapiro to Mr. Cook's office to arrange about the loan. Her son arranged to lend Schapiro XIOO, when she was not ; present. Later, in Mr. Cook's office; when she was present, her son refused to let Schapiro have the ■£100 without the mortgage. Schapiro said he was very hard up and had a bill to pay. . i .' Mr. Levi: She did not know at that time that. Schnprro was in financial difficulties. -

Sohapiro, cross-examined by Mr. Myers in regard to statements mado by Mm in an affidavit, admitted having received .£250 from Miss Saunderson through Mrs. Hall-Kenny, seven or eight years ago. At the time of: his filing, be owed Miss Saunderson and she had a bill of sale over 'his stock.

Mr. Myers: The bill of sale existed at the time of your bankruptcy, but the stock didn't, I suppose? Bankrupt: A good deal of the stock was changed. ■■■■'•'-. " Continuing, bankrupt stated that he paid Miss Saunderson 10 per cent, on the money 'lent. At the. time of borrowiiiij' this money, his books were not in existence. He promised Mrs. Hall-Kenny security for the money borrowed .by her for him, but ho did not give security. Ho said that Mrs. Hall-Kenny did not press hint hard enough,'and ho wanted to go; on with some buildings. Ho could see that they, were soft' people, 1 and he tried to get out of giving security. On December 2, 1908, he received..£loo from James Hall-Kenny, and signed- a mortgage for ■ Hall-Kenny, threatened to._ hand him over to the police for obtaining money on false pretence;! and also to murder him. It was under those circumstances that.he signed the mortgage, which he considered was his ruination. Had he not given that mortgage, he would have been in business yet. Mr. Myers; And ..would you say that he was so violent that you would have had to sign 'the mortgage irithout getting that additional. ,£100? I don't know; I would not gu,as strong, as that.. To Mr. Levi, bankrupt replied that, at the time of signing the mortgage, ho had no idea that ho'was in a state, of bankruptcy. ' ' .

■James Hall-Kenny deposed that he lent Schapiro several suins of money on the understanding that he was to give him a mortgage. Schapiro "fooled", him until December 2, 1908, 'when witness ,6100, threatened ;hira".*ith'the police, and obtained the mortgage.' ■■■-. .•?■■ ■ ■■ ,

His Honour said that he could not disbelieve the evidence of pressure, and as there was an onus cast upon the Official Assignee to prove that Schapiro's dominant motive in this transaction was to prefer the Hall-Kennys this decision must end ■ the matter. ■ The Hall-Eennys had acted loosely j'more than that, they had invited inquiry by not disclosing the facts which they had now stated ja. evidence. JTndcr these circumstances, his Honour would not allow costs against the Official Assignee, but the .motion 'would bo dismissed.'' .-.,.'. . ■•'-.•■■

MAGISTRATE'S COURT.

'. (Before Mr. W. R. Haselden, S.M.) ' STRUCK BY A TAXI.-CAB. , .' ■ DAMAGES AWARDED. .'-'.' A claim for' JBII is., arising out of a collision between a taxi-cab and a bioyclo, was brought by Mathias Ellison, stevedore (Mr. P. W. Jackson), against James Reid (Mr. Von Haast). ... The collision occurred at the corner of Cuba Street and Webb Street, on the evening of March 2, and as a result of it plaintiff's bicycle was badly broken, and plaintiff received some minor injuries which kept hiin from work two days. Plaintiff alleged negligence on the part of defendant's driver, who, he stated, wasnoton his proper side of tho road. Defendant's driver stated that he had taken every reasonable care, and could not have avoided'a collision. "V His Worship held that it had been by ' independent testimony ' that the car' had come round the corner at a pace too fast for safety, and it was exceedingly fortunate more damage had not occurred. If plaintiff had broken a leg or had been killed no doubt heavy damages, would'have been given against defendant. As it was, plaintiff got off in a marvellously-fortunate way, and the Court thought that .£5 would cover all the legitimate damage. Judgment would be for the plaintiff for this amount, and costs £3 is.

NON-SUITED: A PARMER'S CASE. Reserved decision was given by Mr. W. R. Hnselden, S.M., in the case P. T. Edwards, farmer (Mr. Blair), v. the Fresh Food and Ice Co., Ltd. (Mr. Johnston), ,a < claim for .£156 la &A., .concerning a contract for.the supply of milk entered into between plaintiff and defendant. His Worship held that the contract between the parties, dating from February 1, 1908, was discharged by a substituted contraot dating from October 21, 1908. ■ Plaintiff denied this, and said that, the defendants had committed a breaoh of the first contract, and that the first contract still subsisted. He (plaintiff) refused to recognise the second contract, and denied that he sued on it, or that his claim conid be adjudicated on under the substituted contraot. There was, therefore, said his Worship, a difficulty in giving a judgment for plaintiff for the sum ho was entitled to under the' substituted contract, and the only course open was to non-suit him with the nsual costs. The costs amounted to J>B 19s.

. . UNDEFENDED., Judgment was entered for plaintiff bj default of defendant in the following civil cases:— H. Oscar Hewitt and Co., Ltd,, v. Mrs. Henrietta Whitford, £i. 19s. against separato estate; A. Adams v. A. Gruuiwald. £2 15s. 3d.,- coats 175.; Baldwin aud Rayward v. John Tofts, .£6 2s. Gd., costs £V Bs. Gd.; James Patterson and Co. v. George Sage, £i Is. 2d., costs 10s.; George Hendry v. J. Rapley, ,£S2 17s. 6d., costs £2 lis.; M. Seigel v. Richmond Davies, .£B, costs :£1 10s. Gd., Maria Cooks v. M. Domuth, .£l2 10s., costs .£1 10s. Gd.j-Robr. H. Wilson v. Thomas Sinclair, /;8 Ms., costs £1 ss. Gd.; John Bnteman Harcourt and Chas. Jas. Stanton Harcourt v. John Hunter, .£79 3s. Id., costs £i 9s. Gd.

In the case, Isidore Jacobus v. Chaa. Harris, a debt of .£2 Gs-6d., defendant was ordered to pay forthwith,'in .default two days' imprisonment, the warrant to be suspended if defendant pays 235. 6d. od May 12 and 235. 6d. on May 26. Archie Leckie was ordered to par J63 18s.. to; Samuel Jarvis forthwith, in default two days' imprisonment. 'An order was made that the warrant be suspended so long as defendant paid ss. per week, the first payment to be made on May 12< POLICE CASES. (Before Mr. W. G.Riddell, S.MJ TWO HOMELESS ONES. ,: \ . David Brogmus and William M'Carthy, who were found on premises in Taranaki; ; Streot at 3 o'clock in the morning, were charged with being rogues and vagabonds. Both defendants were prolific inexpla-. nations, but their statements were not sufficiently convincing for the Court. The police stated that there were 19 pre- , vj oils convictions against Brogmus, but . nothing was known against M'Carthy. Brogmus was sentenced to three months' •• imprisonment. M'Carthy was convicted and ordered to come up for sentence s when called upon; EEMANDED FOE SENTENCE; . A plea of guißy was entered by Samuel Coulter to a charge of being an idle and ■'•'■ disorderly person within the meaning of. . the Police Offences Act, Accused. was demanded until April 3ft" for sentence. ALLEGED ASSAULT WITH INTENT., A 40 , 11^ ''* was granted in Uia case of Wilford Kelly alias Edwards, and Alexander Driscoll, who appeared ia ■ Bnswer to a charge of. having, on April; 26, assaulted one George\M'Allister with intent to rob him. , '

■'•■'. THEFT.'". .-;. A charge of stealing wearing apparel valued at 4s. lid., the property of Geo. Goldstein, was preferred against Nicholas Crawford, who. entered a plea -of gtriltyA conviction and fine of 40s, in deianre seven days', imprisonment, was- entered, an . order ; being made, that the' good* should be returned to the owner* ■•••■■

■■•;.,■.-.-' INSOBEEETY; ■:■■: James Higgins, charged with insobriety, was convicted and fined 10s. .with' th«' alternative of 48 hours* imprisonment. One first' offendar, who failed to was fined 205., another was fined ss, and a third was convicted and discharged.