LAW REPORTS.

Dominion, Volume 3, Issue 855, 29 June 1910, Page 9

LAW REPORTS.

RIVAL BAKERS,

HUTT TRADESMEN IN CONFLICT. INJUNCTION ISSUED. Tho Lott-crMhitt cnso of William Krncst Grautham, baker, versus Mnrdo Campbell, another baker, was decided in tho Supreme Court yesterday by tho Chief Justice (Sir Eobcrt Stout). The plaintiff Grnnthnin claimed on injunction of the Court restraining the dcfmidiiit Campbell from carrying on business as a baker at liower Hurt. On May 12, 1000, Campbell liml sold the goodwill of his bakery business at the J-Jiitt to Grantham for JOT. Campbell aurced that for a period of ten years ho would not "conduct," "carry on," or "assist in conducting or carrying on" a business as baker within n radius of eight miles from tho premises on the Main Koad, Lower llutt, where the business winch he Bolt) to (irantham was carried on. Campbell had engaged himself to a baker, as a journcvmaii baker, his place ol employment bcins less- than two miles distant from Granthani's shop. ... . . Mr. 0. Bcere appeared for the plaintiff Grantham, and Mr. V. Levi for the defendant Campbell. . His JJonour,*" in delivering judgmeni, romarked that two contentions had been mado by Campbell: (1) That tho acting of Campbell as a journeyman and baking bread for a baker was not a breach ol the contract; (2) that if it was, then such a condition or agreement was void as boing in restraint of trade. In his Honour's opinion, the words of the agreement covered what Campbell was now doing, lie was assisting in the Manufacture ot bread, and therefore came within the very words of the agreement. J. ho second point was that if tho agreement meant to restrict. Campbell s getting employment in the manner mentioned it was void. It hud to be noted that the covenant was restricted as to time—ten vears-aiid as to distances-eight miles from the business premises. I his would allow Campbell to get employment in Wellington. Tho area was not a very populous one from which he was Phut out and his Honour waa or opinion that the agreement was valid. The second contention, therefore, failed, and an injunction would be issued, as was claimed, with ten guineas costs and disbursements. A PRIVATE BURYING GROUND. ITS MANAGEMENT. The legal position of a quarter acre of land, five miles'from Bulls township, which had been used as a burial ground for two families, was involved in the case of Donald Fraser, farmer, ot I'ekchon (plaintiff) versus James Campion and twelve other residents of the Kangitikei district (defendants). Hearing took nlaco on Juno 23, and the Chief Justicu duliveral judgment yesterday. _,:,,, In 185-1, when the land near Bulls had not been long settled, one of tlm sottier» died, and there being no burial place near-none being nearer than Wellington or Wanganui—the owner of Section Jo or the Kangitikei district allowed the body of his shepherd, Mr. Campion, to be buried on his land, and set apart a piece of tho property as a burial ground for the Campion family. Mr. 1-rasers family and the Campion family intermarried, and the land had since teen used as the burial place of the Fraser anil Campion families. A deed had been executed by which it was desired to 'set aside this land as a burial ground within tho mcaninc of the Cemuteries Act, 1008. lho question submitted to the Court was whethei ol not this emild be done. Mr. H. F. Johnston appeared for tno plaintiff, and Mr. J. W. Solmond, Solici-tor-General, represented- the AttorneyGeneral. ' . . His Honour said that it had been pointed out that, as the plot had been set apart as far back as 1851, it should lw deemed a burial ground. However, the history of cemetery legislation showed what 'was the intention ol the Cemeteries Act, ISSB, consolidated in .1908, and his Honour had come to the conclusion that there was no provision Minor iirovidins, or allowing lor the management of private burial grounds. It was clear also that the setting aside of land for private burials would be contrary to tho law against perpetuities. His Honour could not therefore declare that this private ground might bo treated as a public cemetery or as a burial ground in terms of the Cemeteries Act. It must bo looked upon as a private burial place which was dealt with in Section 82 of the Act. As the Attorney-General had been brought before tho Court, the Crown would bo entitled to five guineas costs. His Honour added that he considered this to be a case in which the parties might well ask the Legislature to pass some amendment: of the Act to enable them to have this piece of land permanently set apart as a burial ground under tho Statute. THE NEW ZEALAND WINE CASE, DECISION STANDS. Tho Jlnsterton appeal case, Nathaniel Miller, police sergeant, v. George Lamb, wine manufacturer, was mentioned again before the Chief Justice yesterday. Lamb had been prosecuted for Belling wine, manufactured by himself, in tho Masterton No-License district. Tho magistrate, Mr. Graham, S.M., had_ dismissed the ease, but the Supreme Court reversed this decision, and lieli,! that the (lolling of New Zealand-made wine in a No-License district was illcg.il. When Ibis decision was given on .Tune 21, application was made, on behalf of the respondent Lamb, for a rehearing before the Full Court, an application for leave to appeal having boon abandoned. It was this matter to which reference was niade yesterday. His Honour said that lie was not prepare!! to withdraw his judgment for throe reasons. • First, the case did not concern many people in the Dominion. There appeared to bo only one vineyard, and the case had no general application throu»hout the Dominion. Second, his Honour had no doubt about the decision in the case. Third, tho accused person had been treated lightly. Ho had only be»n fined, and had not been sent to prison. There was no precedent laid down which his Honour might follow in withdrawing his judgment ■U the heaving, Mr. J. H. halmoiul, fio'licitor-Guneral, appeared for the Crown, and Mr. C. P. Skerrett, K.C., with him Mr. ]?. P- Kelly, for the respondent.

DIVORCE PETITIONS.

TWO DECREES GRANTED. Two divorce' matters were heard yesterday by the Chief Justice. The' case of Frances Constance Glover v. Walter Goodwin Glover, was finally disposed of. Mr. Y. 3. O'Rcgan, wlio appeared for the petitioner, called corroborative evidence in regard to albjted mi-sconduet on the part of the respondent, and n decree, nisi was granted to lie made absolute after three months. Dissolution of marriage was brought by Agnes Mary Dawson Welsh, who stated I hat in 1595 fihe was married to Ralph Herbert Dawson Welsh. Subsequently, she lived with her husband in Auckland, Xiipior, and Wellington, and there were two children of the marri.-.Re. Frank James Caw, porter in the Commercial Hotel, Wellington, corrolwrated a statement, made by the petitioner as to misconduct on the part of Caplain Welsh. •\ decree nisi was "ranted, with costs, tho petitioner to have I he custody of her two children. Mr. A. Fair appeared for the petitioner, and Mr. S. J. Moran for Iho respondent. „

, MAGISTRATE'S COURT.

(Before Mr. W. E. Hnselden, S.M.) DOCTORS AND THE DONKEYMAN. UNUSUAL MARINE CASH. An inteiesl.iiiff point arising out of the provisions of Section 119 of the Shipping •ind Seaini'n's Ad was contested before Mr. \V. It. Hnselden, S.M., yestcnlay, when John Murphy, a rlonkeymnn, emuloved on the s.s. Polieruii, proceeded against tho Union Steam Ship Company, I,td., for the recovery of .£ll ss. 5d., amount cluimed under the, section for wurcs and medical expenses incurred while temporarily incapacitated from

duty through illness. Mr. O'Uegan appeared for the plaintiff, and Mr. Levi for the defendant compimy. Tho facts, as outlined by Mr. O'Rogan, were that Murphy, feeling ill, had, on March 29 last, reported himself to the chief engineer of tho Pohenui us being unable to go to sea. He was suliseqiiently accredited by tho Union Steam Ship Co. to Dr. Pigeon for medical examination. ThL doctor diasno-sd influenza, prescribed for him, and said that Murphy was fit for light duties, but must avoid'draughts and chills. Murphy, dissatisfied with the doctor's examination, consulted Dr. Macliin, who also diagnosed influenza, but certified fhat he was unfit for duty, and ordered him to go to bed. The marine superintendent and the chief officer of the Poheriui were shown l>. Maokin's certificate, and Murpliv was immediately signed off. He was attended by Dr. Maekin till April 18, on which date he was certified us fit for duty. Murphy then returned to tho Poheriia, but on applying to the Shipping Office (Marine Department) for his wages and medical expenses, was informed that the Union Steam Ship Company had not lodged the amount, on tho ground that Dr. Pigeon had certified that it was not necessary that ho should leave off work, being reported as fit for "light duty." The Marine Department, on being appealed to by the secretary of the Seamen's Union (Mr. Young), stated that as the two medical certificates we.ro in conflict, settlement of tho question was a mutter between Murphy and the Union Steam Ship Company. ' Honco the action, which was a lest case. The real issue,'said Mr. O'Regan, was whether, a set-man should bo entitled to the guidance of his own 'medical advisor, or whether ho was bound by the result of a medical inspection arranged by the company. Evidence war. given by Murphy in support of the points set out by Mr. O'Regan. Cross-examined by Mr. Levi, witness stated that he was working right up till the timo ho left tho Poherua. Dr. Mackin also gave evidence. Ho was not aware, he said, that Murphy had been to another doctor liefon? consulting him, but. Murphy wus not fit for duty when he examined him. Dr. Pigoon, examined, said that, in his opinion, Murphy was not attacked by true influenza. Having regard to the comparatively mild nature of the indisposition, ho considered that Murphy would be better employed in light duties in tho fresh air than shut up in a boardinghouse. In his opinion, Murphy was not incapacitated from work. Cross-examined by Mr. O'Regan, Dr. Pigeon stated that be had no recollection of having told one Quin (referred to him by the Union Steam Ship Company for examination, and subsequently incapacitated for ten inonthsl that thero was nothing the matter with him. He would not contradict that statement, howMr. Levi, addressing tho bench, said that the issue involved was not so much a question of law 'as of fact. He referred his Worship to a recent appeal from a decision by Mr. Riddell, S.M. (Smith y. Ltitnbert—L.U. February, 1910. pp. 90), in a similar action, in which, however, the facts were somewhat different. His Worship! Bnt that referred to a seaman who was suffering from a chronic disease, with intermittent periods of freedom from its effects. It was held that the man was not wholly incapacitated in terms of the Section. Mr. 1/evi, continuing, said the simpleposition was that there- was a diucrcnes of medical opinion. His Worship did not think that influenza was a inuliidy to bo treated lightl>. 110 was iiiulined to support Dr. Mackiu's view of the case. Further, tire Union Company accepted Dr. Mackin's certificate, and acted upon it. Judgment would bo for tho plaintilf, for the full amount, with cosls and witnesses' expenses, amounting to XI 3s. UNDEFENDED CASES. Judgment for the plaintiff by default was given ngainst the defendants in the following undefended eases:— Iloulder and Henneker v. William Arthur Jones, X 5 17s. lid., costs ,C 1 .'is. 6d.; Karori Borough Council v. Leonard Sydney Humphries, 3s. Bd., costs vs.; Rob-

ert Francis Smith v. David Higgle, .tin 135.. costs .£1 16h. (id.; Thomas Shields v. Thomas 11. Morris, £2 10s., costs 55.; Isaac Bitanskv v. Matenga I'olangaroa, -Xl 7 12s. (id., costs ,£i 13s. Gii.; J. 13Clarkson and Co., Lid., v. George Uccre, JIS 18s. 4d., costs ISs. fid.; Ernest Bolloii v. Emily Dickson, .I'll 25., costs 11.=.: Australian 'Kodak, Ltd., v. Henry Phillip:., ,£l2 Is. 9d., costs .CI. ins. Gil.; Isaac BiUnsky v. Willi.™ Kimhi, .fill ISs. Gil.. costs ,C 1 IBs. Gd. JUDGMENT. SUMMONSES. In Iho nnclerineiilicncil judgment siiinmoiis oases, orders were made as follow:— Peregrine Tlonrv Forster was ordered to pay ,C 1 7s. (Id. lo Uates niifl I.ee.s on or before July 12, in default 21 hours' imprisonment; W. ('.'villi) was ordered lopay ,£G lGs. to William Finnis ITnrclinjj on or before July 12, in default six days' imnri«oi:eicn(. No order* were made in the following cases:—A. Sinclair v. William .Fitzpatrick, a claim for .E7 16s. fid.; Humphries Brothers v. David Morris Owens. JM ss. Gil.; F. B. Oormlcy and Co. v. l'ercy Taylor, .£2 7s. 7(1. COMMISSION ON LEATHER. Further evidence was heard in the suit between Edward M'Ginly, commercial traveller (Mr. Bis), and Granville Hunt, merchant (Mr. I.evvey), an action for the recovery ill" .£l.l 10s., due on account of work, 'trips, and attendances of the plaintiff, on behalf of (lip defendant, in connection with indent orders for leather. Commission was alleged to be due on certain goods to bo delivered, the issue being whether a previous judgment of (he Court covered goods arrived and delivered oi deliverable, and all claims settled by a certain payment of £K, or whether in the settlement was included good? still to arrive and deliverable at a future date. His Worship reserved his decision. ROBEBTSON *iNn CO., LTD., V. THOMAS. Reserved judgment was given by Mr. W K. ITaseldcn in the case Robertson and Co., Ltd. (Mr. Young), v. G. Thomas (Mr. Levvey). a claim for .£BO 4s. lid.. amount stated to be due for goods alleged to have been sold and delivered, and for wofk claimed to have boon done. Tn awarding the. plaintiff .CG7 12s lid., Willi costs to scale, his Worship said that tho documentary and other evidence was confirmatory of the plaintiff's version of what was 'claimed to have been I he ! nature of 1 ho contract so far as the question of iiaymon , . was concerned. The goods were, delivered on tho exclusive credit of tho defendant. BREACH OF THE DRIVERS' AWARD. Judgment was also given in tho cast' Walter Newton (Inspector of Awards) v. John James Moore, carrier, of Maranui, in which tho Labour Department proceeded against Moore for alleged breaches of the Drivers' Award. The case for the prosecution set forth that defendant had failed to pay wages weekly to his employees, and that a driver named Ifalley, employed bv Moore had been paid at a lov.er' rate'.than provided for by the award. Halley had been paid 255. weekly instead of 31s. For" failure to pay wages weekly, defendant Moore was lined 10s.; for paying at a lower rate than that specified in the award, his Worship iinnosed a lino of 20s. The information against J. Moore and Co. (of which firm Mrs. Moore, represented bv Mr. Luke, was the principal),, of having failed lo keep proper books, was withdrawn. POLICE CASES. (Before Mr. W. G. Riddell, S.M.) . CHAKGH OF STEALING A MUFF. ACCUSED .RETICENT. Catherine Moore, a middle-aged woman, was charged with having stolen from tho D.I.C. a sealskin muIV valued at XS.

Chief-Detective Broberg asked for a remand till Monday next, that further inquiry might be made, as the accused, he stated, hud refused to vouchsafe any information concerning her antecedents. The application was granted, and bail allowed, on the accused's request, eeeurity being fixed at ,£25, with ono surety of £?>a. LADY'S APPAREL STOLEN. A young woman named Georgina Perrett was charged with having on Juno 25 stolen from Vera Nelson one blouse, one fur necklet, one skirt, and ono chemise, of the total value of ,t;i Ills. Accused pleaded guilty, hi the course of the usual police statement it was mentioned ,tii;tt licensed hail taken the'articles from Iho complainant's room during her ah.eiice, the missing goods being subfound in her possession. Sho had previously been convicted for llioft, on that occasion being ordered to como up for sentence when called upon. His Worship admonished accused, and said that as the Salvation Army authorities had ottered to take charge'of her he would give her another chance. Sho would be convicted and ordered to como up for sentence when called on, the condition being imposed that sho would enter tho .Salvation Army Homo for a period of six months. UNWILLING TO WORK. John Faithful, an able-bodied young man, was charged with being an idle and disorderly person, having insufficient lawful means of support, lie pleaded guilty. It was sUi'ted that the accused had done little or no work for the last twelve monilis, subsisting upon the earnings of a woman of loose character. Ho had served a sentence of three months for vagrancy at Christchurch in 1906, and in' 1907," at the same place, a term of twelve months upon his conviction as a rogue and vagabond. lie. was convicted and sentenced to three, months' imprisonment. A SIMILAR CASE. An "idle ami disorderly" charge was al.-o preferred against a young man named Michael M'Grath, whoss mode- of subsistence was stated lo be similar to that adopted by Faithful. M'Grath had previously been before the Court on various charges, including theft and forgery. Accused was convicted and sentenced k> three months' imprisonment. COMMITTED TO PAKATOA. George Hastings, a prohibited person, pleaded guilty to three charges of having procured liquor, it was stated by Sub-Inspector Norwood that the accused had liesn convicted upon 28 previous occasions, four of them being within the currency oi the present order against him. His' Worship convicted accused, and ordered his removal to the Pakatoa. Inebriates' Institution. Formal convictions were entered up on tho other t\vo charges. FURTHER INQUIRIES TO BE MADE. John Henry Hippin, charged with having been found drunk, pleaded guil'ty, arid was convicted and discharged. To a charge of stcilinj a rug valued at 3'>s., the property of some person or persons unknown, lie pleaded not guilty, and was, on the application of Sub-Inspector Norwood, remanded till Friday, in order that further inquiries might be made.