LAW REPORTS.

Dominion, Volume 4, Issue 1117, 3 May 1911, Page 2

LAW REPORTS.

» COURT OF APPEAL. A SHEEPFARMER'S WILL, MARLBOEOUGH CASE. A complicated matter in regard to the , will of tho lato Thomas Carter, shcepiarmor, of Burleigh, Mnrlborough, was dealt with in the Oiurt of Appeal yesterday. This was an appeal, from a decision ot the Chief Justice as to tlio construction of tho will of tho .deceased. Tho appellants were Unas, .Uanby Walker anu jieisio Waikor, ol' Jleiuaurne, inlants, grandchildren, of the testator's, nall-brotlier, JoU'i Waliior (born aner ilie deatli oi Die testator), and tne responucnts were All red Jonu Litc'hneld, kmlwood F. (joultcr, James Bell, ana John C. Chaylor (nil of Blenheim), executors and trustees of tho will of Tlios. Carter, ami George Henry Edward Walker, oi Springlaiids, near Blenheim, one ol tho grandchildren of tlio testator's liaiilirotucr, John Walker, born in the liiotime of tho testato. , , and appointed to represent tho grandchildren of the testa,tor's half-brotner, and the testator's halffister (Elizabeth Hogg), who wore, bom in the liletime of tho testator, and are still living; and the Public Trustee, representing tho personal representatives of Jienry Noble Lamming and Alice Catherine Walker, who wore grandchildren of the testator's half-brother, and died after the testator's death. Tho Court consisted of Mr. Justice Williams, Mr. Justice Denniston, Mr. Justice Edwards, and Mr. Justice Chapman. Mr. T. F. Martin appeared for tho appellants; Mr. M. Chapman, K.C., with him Mr. Newman, for the trustees; Mr. E. M'Callum for tho children born during the lifetime of the testator; and Mr. J. L. Stout for the Public Tnistco, and representing tho children who have died since the testator's death. Greater part of tho day was taken up in argument. Decision was reserved.

sale' of foxton hotel.

WAS A .MISTAKE HADE? An appeal concerning an action decided by Mr. Justice Cooper in litigation regarding Whytc's Hotel, Foxton, was before the Court yesterday afternoon, the parties being John Rainbow Stansell, of Shannon, commission agpnt, appellant, and Frcderick S. Easton, of Foxton, flaxrnillcr, and Barbara Ellen Austin, of Foxtou, executrix of the will of Herbert Austin, deceased, flaxmiller, respondents. The original action was heard on January 4, 1911, by Mr. Justico Cooper, who decided in favour of tho plaintiffs, with costs. A rehearing was asked for by Stansell, also for a reversal or alteration of tho judgment. It appeared that, in August, 190 C, Stansell owned AVhyte's Hotel mid the laud on which it stood. The hotel, etc., was subject to a lcaso to A. J. Whyte and others. On August 31, Stansell agreed to sell the property to the respondents for dCGOOO, but it is alleged that tho agreement, by mistake, omitted any reference to tho sale of the land. The purchase money was paid, but Stansell refused to transfer the land. He alleged that ho had never agreed to sell the respondents any land whatever, and that the' land formed part of tho premises only by virtuo of a lease from one Arthur Clement Stansell. Ho therefore denied that reference to the land was omitted from the agreement by mistake. Hβ also denied that he put respondents in possession, and said that if they entered into possession they did so pursuant to the lease to one Thomas Hayward. His Honour decided that the plaintiffs (now respondents) were entitled to recover £to in respect of damages, and that they woro entitled to have specific performance of the agreement. Leave was reserved to plaintiffs to movo to enter judgment for .£3OO, tho value of tho land, in the,event of its appearing subsequently that tho defendant .had pjut. it out of his power to" s'pe > cifie"aUy perform his agreement to transfer'thp'laud. The grounds of, the appeal wero that the judgment was bad.in law, in that (1) at the trial -the Judge misinterpreted the law in its application to the case; (2) that the judge (without a jury) misinterpreted tho evidence given at the trial; (3) that tho judge admitted hearsay and other evidence which should have been excluded and which admission materially affected the result; and (4) that tho judge had no evidence to sustain his findings of fact. The Appeal Court consisted of the Chief Justice (Sir Robert Stout), Mr. Justico .Williams, Mr. Justico Denuiston, and Mr. Justico Sim. Mr. 11. D. Bell, K.C., with him Mr. A. S. Menteath, appeared for appellants, and Mr. C. H. Treadwcll for tho respondents. Mr. 801 l had not concluded his argument when the Court rose until 10.30 this morning.

IN BANKRUPTCY.

SERVING DISAPPEARING DEBTORS.' At a sitting, in Bankruptcy, before tho Chief Justice (Sir Robert Stout), yesterday, Mr. C. R. Dix asked for leave to servo one R. W. Allen, hotclkeeper, a debtor, by substituted service. Sir. Dix said it had been found impossible to serve Allen with a petition of bankruptcy and a summons in support, as his address in the city could not be found, and Allen himself could never be found. Allen, it was stated, was believed lo be somewhere in Wellington. An affidavit was put in by_ Cecil Ross Dix, solicitor for the petitioning creditor, in which he stabd Uiat ho had on numerous occasions personally endeavoured to serve the debtor, but without success. He (Mr. Dix) _ believed tho debtor was purposely keeping out of tho way to , avoid service. The affidavit proceeded to set out the reasons for this belief. In conclusion, tho affidavit says :— "I informed the debtor that proceedings in bankruptcy were ponding, and asked him to enable me to serve him with the necessary documents with as little publicity as possible, and he promised to call at the office for (ho "same. He called with his solicitor within two days after the service of the bankruptcy notice, but I have not seen him since. Since tho service upon the debtor of the bankruptcy notice issued out of this Court I havo had a constant look out kept for the debtor by persons constantly about tho streets and hotels of the city and who know him intimately, but my informants state thai they have not sonn him since the date of such service." ■V direction was made by his Honour that a notice of service should bo inserted in a Wellington newspaper. SERVICE: ON A BROTHER. Authority for substituted service was asked by Mr. W. 1 , . Ward, who informed the Court that one John Francis M'Govern had been missing sinco March 3. Asked by his Honour how suggested this should be done, counsel said he susoested that they should serve M'Govcrn s brother in Wellington. Tho mother and the two sons lived together. His Honour agreed to this course. A MATTER OF WAGES, A motion for the discharge of Caroline Ciillon was moved by Mr. Putnam. This application, counsel explained, had been adjourned some time back on account of the non-payment of certain wages. Thero were three amounts of wages to bo paid, and a consent had been given in respect to one sot. Debtor had been doing her best to get the money to clear tho other two debts, and the previous day he had received a cheque for tho amount from her eon. Mr. Putnam suggested, that tho discharge be granted subject to (lie eonsent of tho Oilicia.l Assignee and to his putting in an affidavit that the wages had been paid, rather than that the matter should stand down for a further thrco mouths, which would havo to bo done if they waited for (he cheque to be paid at the bank. His Honour said the discharge would be granted on the Official Assignee notifying tho registrar that the necessary payments had been made. NO OBJECTION LODGED. A motion for the discharge of Edith Vaughan was moved by Mr. C. R. Dix. No objection was offered by the Official j Assignee, and the discharge was granted.

IN DIVORCE.

DECKEB ABSOLUTE GRANTED. At n silling in Chambers yestcrdnj morning, Mr. C. K. Dix moved, before (ho Chief Justice (Sir Robert Stout) Joy a de-ci-oo absolute in (lib divorce case, Marion Walden v. Eustace Vivian Walden. The divorce was originally granted on Iho ground of habitual drunkenness and cruelty. The decree was granted, petitioner being given interim custody of the children.

A STOCK ROAD.

INFANT LITIGANTS BOUND. An originating summons concerning certain land in Martinborongh was heard by tlio Chief Justice yesterday, tho partics being l'elcr Oliver, administrator of his father's estate, plaintiff, and George Oliver and the other next of kin, defendants. 'The plaintiff asked tho Court to approve of u. family arraii;pmeiit on behalf of certain infant defendants, by which a slock road was to bo made, the road decreasing tho property slightly. Mr. G. 11. Fell appeared in support of tho application. Mr. 11. Buddie representing the defendants, consented to tho arrangement, which was approved by his Honour.

MAGISTRATE'S COURT.

(Before Dr. A. H'Arthur, S.M.) CIVIL BUSINESS. THE HUSBAND AND THE WIPE. Ecserved decision was given in thecase in which Margaret Aekins, married woman, of Wellington, sued Robert James Aokins, civil servant, to recover tho eum of .C 22, being the balance of weekly instalments of £2 10s., alleged to bo duo for maintenance for a period from January 7, 1911, to April 1, 1911. Mr. Dalziell flppcard for plaintiff, and Mr. A. Gray for defendant. In the course of his judgment, thn Magistrate said: "It appears that, as far back as tho year 1890, the parties agreed to live apart, and have done so ever since, under the terms of an agreement dated-October 20, 1899. After one year from date of agreement, tho defendant was to pay nlaintiff £2 10s. a week during their joint lives for the maintenance and support of' (he plaintiff and tho children of tho marriage. In the " course of twelve years, tho children have grown un, the plaintiff, during tho whole of that time having cared for them. On different occasions tho defendant had been summoned for th« amount due, and the nlaintiff had accepted £2 a week in settlement. The defen- ' dont's salary had (from the time of the agreement beins entered into) increased ■ from ,£l9O to ,£315 per annum. He now ; sought to contend that there had been • a waiver of tho agreement so far us .S3 10s, per week was concerned, and a new agreement entered into for the sum of > £2 per week. This was based on two .i facts:—First, that one of tho children was married, and the others either sclfeupporting or partly so, and secondly, that J!2 had, on different occasions, been accented." After quoting authorities, . the Magistrate said that defendant had failed to satisfy him that tho plaintiff had undertaken to rcceivo for the future a sum of £2 per week, instead of £2 10s. per week, as contained in the agreement. Judgment was accordingly given for ' tho plaintiff for .£22, less JClfi (the . amount paid into Court), with costs on the usual scale. NON-SUITED. H. Hooper, land and commission agent,, Wellington! proceeded against James E, Bradley, farmer, Wellington, to recover the sum of ,£25 as commission alleged U be duo on the sulo of a farm. Mr. V. R. Moredith appeared for plaintiff, and Mr. M. Luckie for defendant. After plaintiff had tendered his ev!« donee, Mr. Meredith asked that plaintiff . bo non-suited in order that ho might have an opportunity of getting a neces- . sary witness. His Worship accordingly non-suited plaintiff, and allowed defend ant £\ Iβ; costs.-:' . ■-> ■ ■■■ CLAIM FOE GOODS SUPPLIED. Alexander Di'mdore, general importer, sued Jane Siogcl, ladies' tailor, to recover the sum of .€2l Is. 5d., balance alleged to be owing on account of goods supplied. Mr. Organ appeared for plaintiff, and Mr. Hindmarsh for defendant. After hearing the evidence of both parties, the magistrate intimated that he would give his decision on Thursday next. ■ UNDEFENDED CASES. Judgment by default was given for plaintiffs in tho following undefended cases:—A. and T. Burt, Ltd., v. A. and J. Williams, .£.16 Bs. Id., costs £3 95.; Diamond Confectionery Co. v. Ernest Craig, .Cα 4s. <id., costs £1 s:i. Gd.; U. W. M. Kendall v. E. Bingham, £2 25., costs lls.; Thompson Bros., Ltd., v. David A. Elliott, £3 75., costs lls.; Tho New Zealand Consolidated Dental Co. v. Parko I'ittar, .£29 7s. Id., costs £2 Ms.; Henry Stairmand v. Mary Hill, £21 Is., costs .£1 35.; H. Oscar Hewitt and Co., Ltd., v. Bernard 0. Bcrgersen, £i Is. Cd., costa 10s.; E. Hannah and Co., Ltd., v. William Henry Gulliver, .£5 2s. 6d., costs £1 3s. Cd.; G. H. Thornton v. Hop Sin?, £8 os. lid., costs £1 3s. 6d.; L. Casolberg and Co., Ltd., v. Herbert B. Hay, £1 75., costs 95.; James Patterson v. Wnlter Kempton, £3 ss. 2d., costs ss.

IS IT A PRIVATE DRAIN?

' (Before Mr. W. G. Riddoll, S,M.) , The Wellington City Corporation sued John James Boyd, builder, of Wellington, to recover the sum of £b l!ls. lud., alleged to bo duo as the tatter's proportion of a private drain laid through certain properties in Elizabeth Street. Tlio City Solicitor (Mr. J. o'She.i) appeared for'plaintiffs, and Mr. D. 11. L'mdluy for defendant. , Mr. O'Shea, in opening, explained that, under the Wellington City Drainage Empowering Act of 1891, the corporation had (aid a private drain to take the place of an old box drain that had been discovered when the original combined sewer,and storm-, water drain was laid years ago, Tho cost of tho new drain had been ascertained and apportioned, mid, under Section i of the Act, the council had elected to do the work themselves. Notice, was , served on the property-holders concerned on June 22, 130 V), and the work was completed before October 11, 1000, at n cost of £32 Cs. 3d. Defendant was (he owner of certain promises affected, and his proportion of the cost had been assessed by the City Engineer at ,£5 19s. 10d. Demand for payment had been made on September 28, 191(1, and on various other dates, but tho money hnd not been paid. Tho City Engineer's certificate was produced in accordance with tho by-law. Mr. Findlay asked for a nonsuit on the ground that plaintiffs hod placed no proof before the Court that the drain / was a private drain. They had tendered / evidence as to its discovery, but there/ was no evidence tli.it it had not been put/ down by a public body to serve a public* purpose. As a further ground for noi\suit, counsel submitted -that tho certificate put in by plaintiffs was no p/roof that the City Engineer had properly/ apportioned tho costs, and. lastly, iti was submitted that plaintiffs' case mpsf fail because there was no proof thaA notice had been served on any of I,'iK> other owners concerned, whereas, coilnsol contended, this was rsscniinl. , Decision was reserved. JUVENILE COURT. A lad, II! years of ape, was charged in (hi Juvenile Court wj'.li theft of JM ss. Bd., the property of 0. L. Cole. Me wae convicted, and ordered lo be sent to tho Stoko Industrial iSvhool, his father to refund tho money within a specified timd