LAW REPORTS.

Dominion, Volume 3, Issue 852, 25 June 1910, Page 14

LAW REPORTS.

. SUPREME COURT. AFFAIRS OF A PARTNERSHIP. SUBSTITUTION OP DEBTORS. The Chief Justice dolivored judgment yesterday in tho caso of Milne v. Olivecrona, a claim for debt under somewhat unusual circumstances connected with certain partnership arrangements. His Honour commenced his written judgment by briefly stating the facts as proved before him or admitted. There was a partnership between Somcrlcd Bartlett Mao Donald and Garnet Ryland Milne. To this partnership Milne provided £250, advanced by his father, John Milnb. Mac Donald seemed to havo put in not more than £8. Tho business was carried on by them, and some time after its commencement they asked for a loan from John Milne, which lie granted to tho firm, called Milne, Bartlett, and Co., amounting to £500. Interest was to be 6 per cent, per annum, and the loan was to be repaid within three years. A few months afterwards, namely, in December, 1903, a written agreement was come to between the defendant and Somerled Bartlett Mac Donald and the plaintiff, Garnet Ryland Milne, ' that Mac Donald should retire from the business, and that the plaintiff Garnet Ryland Milne', and the defendant should .take over the business, assets and liabilities of the partnership, and the joint responsibility for 1 the payment of tho £500. The agreement stated, . inter alia, that Mac Donald was to receive £8, the amount ho paid in, and certain profits; that the defendant and plaintiff, , Garnet. Milne, should take ovei the assets and liabilities of tbo firm, and should take over, jointly, tho responsibility ; of the repayment of the £500, advanced by the plaintiff, John Milne, together with interest, and that tho rearrangement and adjustment of the firm was to, be approved of and the agreement signed by John Milne. John Milne signed the agreement. It ap- . pcared clear, therefore,' that through this agreement there was a substitution of' debtors, namely, Garnet Milne and Olivecrona for Garnet Millie and Somerled Bartlett Mac Donald. What next occurred was an agreement' come to between the defendant and John Milne that Garnet Milne, was to retire from the business, and that the defendant was to take on the • responsibilities and the duties of the business.

In his Honour's opinion this was a clear case of novation, or substitution. There was a complete substitution of Olivecrona for Mac Donald, and, in his Honour's opinion, there' was just as clear, a novation when Garnet . Milne left the partnership, and the_ defendant becamu liable to tho plaintiff, John Milne.

So far as the £500 was concerned, John Milne was entitled to recover that amount from the defendant with interest at 6 per cent., the amount of interest being £180. As to the amount, of the £250, the balance of which, namely, £231, is owing, the burden was on the plaintiff to prove that the defendant was in a position to pay it,, because that was the term of the agreement. , It was not to. bo due' until it was convenient for the defendant to pay. That being so, in his opinion the plaintiff could not recover that amount in this action, and so far as that claim was concerned the plaintiff must be non-suited. The other claim in the statement of. claim was an account. He understood that thoro was 110 need to. pursue that account, as nothing turned ou-Jt,. but if the plaintiff asked'for- it, thoro was no doubt that, he was .formally entitled to it. ■ The plaintiff was, therefore, entitled to recover the sum of £630,. with costs. 1 Seeing 1 that the plaintiff, .who was really .entitled to sue, was..'not joined till the hearing, ' his • Honour thought tho costs should be modified and limited to costs according to scalo, as if. £500 was/claimed, with £5 ss. for second counsel, witnesses expenses, and disbursements. IN CHAMBERS. ;.:V DIVORCE CASES. ■ The Chief justice (Sir Robert Stout) held a short sitting in Chambers yesterday. . . His Honour fixed Tuesday nostras tho date for hearing the divorce case, Agnes Mary Dawson Walsh v:" Ralph Herbert Dawson Walsh. On the motion of Mr. Fair (for the petitioner), security for costs, £20, was allowed, and alimony at 30s. a week for four weeks; also costs of petition for alimony one guinea. Mr. Casey appeared for the respondent. . . 111 the divorce case of William Alfred Sayer (petitioner) v. Susannah Sayer (respondent), and George Cowman (corespondent), Mr. Young, for the petitioner, was granted leave to . proceed ivithout service of summons on the corespondent, jvlio, it was stated, bad loft the country. . ' . IN BANCO. AN EXCHANGE OP LAND. Tho Chief Justice (Sir Robert Stout), sitting in banco yesterday, heard an appeal' from a decision of Dr. M'Arthur, S.M., in a caso in which T. B. Venables, land agent, Wellington, claimed from A. Benge, farmer, Upper Hutt, tho sum of £124 Bs. 9d., as commission on an exchange of land negotiated by plaintiff witli W. G. Somcrville, solicitor, of Wellington. Tho magistrate gave judgment for the defendant on the grounds that Venables had noi acted properly in tho matter of the exchange, and that Bengc had not attained tho age of 21 when he appointed Venables his agent, although the actual exchange was negotiated after his coming of age. . His Honour, after hearing . lengthy argument, said that in his opinion there had been no improper conduct whatover by Venables fn negotiating tho exchange. Tho values of tho properties on both sides had, no doubt, been inflated, but this was usual in such cases, as was well known to Benge. On the other ground, however, his Honour upheld the magistrate's decision, ruling that Venables could not bo appointed by Benge as his agent before the latter was of age. Tho appeal was dismissed with costs. Mr. A. Dimli appeared for the appellants and Mr. C. H. Treadwell for tho respondent. CLAIM FOR PLUMBING. The Chief Justice (Sir Robert. Stout), sitting in Banco yesterday afternoon, heard legal argument on an appeal from . a magistrate's judgment, in a caso under tile Contractors' and Workmen's Liens Act. Tho appellant was Frank Mildenhall, plumber, of Island Bay, and the respondents wore tlio Miramar North. Building, Deposit, and Mortgage Company, Ltd., and Young and Petloy, builders, Miramar. Argument in the case was, taken as applying also to a similar caso, in which the parties were Alexander Janiicson Pollock (appellant) and tho same respondents. Mr. A. Dunn appeared for tho appellant and Mr. C. H. Troadwoll for the respondents. Tho appellant, Mildenhall, sued tho respondents in the lower court, claiming, under the Contractors and Workmen's Lien Act, 1892, to recover from them the sum of £30 for plumbing work dono under a sub-contract for the ..respondents, Young ,and Petley, who

wei'o contractors for the ercction of certain buildings at Miramar for the respondent, Minunar North Building Deposit and i'lortgage Company.. Ltd., and also claiming a lien under the same Act on certain land at Minimal' alleged to be owned by tbo respondent company. The action was heard in the Magistrate's Court on October 23, 1908, and it was proved or admitted thattho work had been done, and that the amount claimed was owing by Young and Pet-ley to Mildenliall. The respondent company raised, certain objections to tho claim, and tho magistrate, after hearing tho case, decided that the plaintiffs cfmld not succeed, for tho following reasons.—(1) That the notices given of the claim were invalid. (2) That tlie interest of the defendant company in tho land was not an estate or interest chargeable within the moaning of the Act. (3) That registration had not been effected. The plaintiff gave notice of appeal on the ground that the judgment was err.incous ill point of law in respect of each of tho above tlireo reasons given by the magistrate. After hearing argument, his Honour reserved iiis decision.

MAGISTRATE'S COURT. (Before Mr. W. G. Riddell, S.M.) THE PEOPLE'S MEAT. CASE OF PRIVATE SLAUGHTER, Two prosecutions under tho meat inspection by-laws of the City Corporation were heard beforo tho Court, when Mr. J. O'Shea, City Solicitor, proceeded against Douglas Bcnge, butcher, on two charges: (a) That he did unlawfully sell meat not killed in a registered abattoir or. slaughterhouse. (b) That, there being a registered abattoir in the city of Wellington, available for slaughtering stock, ho did sell meat slaughtered elsewhere than in a registered abattoir. Mr. O'Shea stated that there was an abattoir in Wellington, and the slaughtering of meat which . had not been duly inspected as to fitness for human consumption was forbidden. On visiting the defendant's shop,, tho corporation inspector found threefourths of ' a beast there, the remaining fourth having, been .used for German sausages. The benefits of the abattoirs would bo lost to the. public if proper inspection were not in every case secured.

Mr. Izard, for tho defence, entered a plea of guilty. He contended that the beast seen by the inspector was fit for human consumption. The inspector bad informed Bongo, that it could be sold.

His Worship said that where there was an abattoir provided .it should be used. There was no excuse on this occasion. People who failed to avail themselves of tho facilities for inspection committed a breach of tho by-law.. A conviction and a light penalty would suffice on this occasion, and act as a warning to others. Defendant would bo fined 205., with costs 75., solicitor's fee 215., in default 48 hours' imprisonment.

The second charge was withdrawn. Charles Henry Smith, an employee of defendant Bong", was also proceeded against for having slaughtered meat for human consumption in ■ a place other than a registered abattoir, such having been provided in the city of Wellington. Tho defandant admitted tho offence. Questioned by the inspector at tli.J old slaughterhouse in Happy Valley, lie, answered that two animals, had been killed, one of them beuig too poor for use. He had four beasts,to kill. , Defendant was convicted and fined 10s., with costs 285., tho option being 48 hours' imprisonment. .. HOTEL CASE. Evidence was partly heard in tho prosecution of Susan Doores Williams, licensee of Barrett's Hotel, for having, it was alleged, permitted drunkenness on the premises, and also of' Percy James, a parson other than the licensee, for having, it was further alleged, supplied liquor to George M'Kinty, a person already in a stato of intoxication.' Sub-Inspector Norwood prosecuted, and Mr. C. B. Morison defended'. M'Kinty, in the course of a rambling statement, said that ho liad been drinking in Barrett's Hotel on tho morning and afternoon, of Friday last, but had no clear recollection of what had occurred in the evening. , Furthor hearing of tho caso was adjourned till Friday next. BREACHES OF THE BY-LAWS. Charles Butler' Nixon, proceeded against by tho Corporation Inspector (Mr. J. Doyle) failed to appear in answer to two informations that ho had failed to make proper- drainage connections on his properties. •On tho first charge ho was convicted and fined 205., costs 285., the option being 48 hours' imprisonment. The second chargo was adjourned till July-29, to givo him an opportunity of carrying' out 1 his obligations in the matter of drainage connections.

William Williams, charged by Mr. Cable (tramways assistant engineer) with having left a car while in motion ,was convicted and ordered to pay Court costs, in default 24 hours. Ho pleaded, in extenuation of his offence, that ho had been unable to get his parcels out of tho rear of tho car, as tho conductor stood in tho way.

For driving after dark without lights, Julius Lamberg and Horace Biggins, who each pleaded guilty, were fined 10s. eacli, with costs 75., the option being 48 hours' imprisonment-. George' Tillotson was convicted of having allowed liis horse to wander at large, and fined 10s., with costs 75., in default 24 hours' imprisonment. OTHER CASES. . Doris Payne and Hazel Lora Stanley, each with a police . court record, were sentenced to one month's imprisonment for importuning. Two first offenders were convicted of drunkenness and fined 55., with tho usual option. James Henwqod, remanded from tlio previous day, como up for scntenco on bis conviction for drunkenness, and was consigned' to gaol for ono month. An application ,by Jane Elliott for a summary separation from her husband, Jolm Elliott, and also maintenance, was dismissed without prejudice, his Worship holding 'that the allegations were too general. Mr. Levvey appeared for the plaintiff and Air. Dix for the defendant. STREET FOOTBALL. Fivo boys of various ages weTe convicted of having played a gatno of football to the danger of passers-by in Tinakori Road. Each was ordered to pay 7s. costs, and given tlireo weeks to find the money.