LAW REPORTS.

Dominion, Volume 5, Issue 1355, 5 February 1912, Page 3

LAW REPORTS.

,-■ — THREE PRISONERS SENTENCEDONE STERNLY DEALT WITH. WHAT THE J TOT DID NOT KNOW. At the Supreme Court on Saturday throe prisoners came liefore Mr. Justice Chapman for sentence. Mr. H. H. Ostler represented the Crown. Lewis Witten, tl years of ago, who on Thursday last had been found guilty of criminal assault on a young girl, and also guilty of another offence, was first placed in. tho dock. He was not represented by counsel, and had uothing to say as to why sentence should not bo passed. Mr. Ostler stated that there wero soteral previous convictions against him, including one for a certain offence at Otaki in 1910. His Honour said that it was fortunate for the prisoner that no harm had been done. The jury, had brought in a recommendation to mercy, but when doing so they oould not havo known of his previous convictions. Tho sentence of the Court would be five years' hard labour for the first.offence and one year's hard labour for the second offence, the sen- [ fences to be cumulative. Theft of Postal Packets, George Cecil Coleman, a youth 19 years of age, came up for sentence on a chargo of stealing postal packets at Nelson. Mr. A. L. Hcrdihan was present to speak for prisoner. ' Counsel stated that the youns man's father was a farmer at Nelson. Coleman had previously been in the postal service at Wellington, but had been dismissed for laziness. The offence was apparently 'Jne not so much to primary instinct as to laziness. None of the missing letters had been opened, and in one case the prisoner explained that he did not deliver the packets because he owed" the addresseo money and was afraid that if he went dear the shop he would be asked for it. His Honour remarked -that this did not properly account for tho offence. Mr. Herdman referred to prisoner's youth, and to the fact that-he had lost his occupation. His father, was willing to take him on'his farm if his Honour would srivo him a chance. His Honour observed that must come afterwards. Accused would have to go to prison. These cases were viewed seriously by all tho Judges, and looked upon as far more serious than ordinary thefts. No one know who would get into trouble or who might b9 suspected when such thefts occurred. His Honour was very sorry for accused and for his family, but ho would have to sentence him to three months' hard labour. "Subjected to Great Temptation." A seafaring man named Henry Hay, 23 years of age, had pleaded guilty some, time ago in the lower court to stealing nroney from a companion, in whose company he visited the Foresters' Arms Hotel. 'Hay was brought up for sentence on Saturday, and' had Mr. R. H. Webb to speak for him. ' _ ■ ', Counsel stated that this was the first time that his client had been before the Court, and'he felt his position keenly. He had. acted under the influence of drink, and had been subjected to great temptation as his companion had displayed his money freely and (in a wild . state) had thrown it about. ' Since coming to New Zealand Hay had'led a decent life, and had been in constant employment. On one occasion ho had been in the service of "Judge Martin. If probation wore, granted accused would make the most of'his chance. 31?.' Ostler reported that Hay was a deserter from the Morayshire, but nothing else was known against him except that he was addicted to drink. His Honour stated that he certainly had no sympathy for the man from whom the money nad been stolen because, if it had not been stolen then, it would, probably, .haytf-been squandered in liquor,'but that was no excuse for Hay. His Honour, however, was prepared to give prisoner probation and, if the latter made an effort, he could so live as to efface the conviction from his record. He would be granted probation for three years, during which time he must abstain, from liquor, and he would ,bo ordered to pay .£5 towards the costs of the prosecution in monthly instalments of 10s. A sum of £3 %. Od. found in his possession would,'he restored to the man from whom the money bad been stolen. ARISING OUT OF A WILL. QUESTIONS ANSWERED. In tho Supreme Court on Saturday Mr. Justice Chapman delivered reserved judgment in an originating summons in which ho w&s asked 'to interpret the will of tho late .John M'llvride. j Tho plaintiffs were Alfred Ernest Cousin's, engraver,' of Wellington, and Thomas De-vine, farmer! of Whitenian's Valley, trustees of the will of John M'llvride, deceased, .settler, lato of Wellington. The defendants were Selina M'llvride, widow, of Wellington; Isabella Agnes Cousins, wife of A. E. Cousins, of Wellington; Grace M'Kenzie, wife of Alexander M'Kei.zic, of Ajmere, India; Christina Prouse, 'wife of Richard I'rouse, sawmiller, of Levin; Peter John M'llvride, electrical engineer, of Lower Hutt; and Catherine Elizabeth M'llvride, spin's-i t«r, of Auckland. Mr. C. H. Treadwell appeared for the trustees and one set of beneficiaries; Mr. O. 1!. Beere'for the residuarv legatees; and Mr. Av W: Blair for the life' tenant. Plaintiffs asked for answers to the following questions:— (1) Are plaintiffs bound in the first place to exhaust the capital sum of -E42U 4s. 7d., being the proceeds of the sale and conversion of testator's real and personal estate (other than the Kussell Terrace houso, the furniture, goods, chattels, etc.) in making good the annuity of -S!2G bequeathed by the will of Sclina 3l'llvridc, in so far as the income-of the capital' sum is insufficient to meet the annuity before mortgaging tho Eussell Terrace house and furniture? (2) Or is it, in the first place, the duty of the plaintiffs to mortgage the property, preserving intact the balance of such capital sum now in their hands and replacing out of the proceeds of the mort gago that part which has been expended by them in making good the balance of the annuity? (3) Are the trustees bound in any event to mortgage tho property? After reviewing the case, his Honour gave the following answers to the questions raised:— (l)_Thc trustees are not to exhaust the capital of the residuary estate before resorting to the house and furniture in Russell Terrace. (2) It is their duty to mortgage that properly to reinstate and relieve the capital of the/residuary estate. (3) Tho trustees are bound to mortgage tho Russell. Terrace property to reinstate the residuary estate aud also for tho further purpose of keeping up the annuitv unless tho widow releases them. "I do not agree," he added, "with the contention that this' case ought not to havo been 1 brought before the Court. I therefore allow tho parties their costs out of the estate. These costs, however, l think should be fixed. " What, his Honom considered a more difficult qftestion wa3 whether, supposing that tho sum raised proves insufficient, the "annuity or yearly sum" is to bo treated as an annuity left by testator to his widow payable in any event and thereto :n a idmrge 1 upoir his whole estate or whether it wasnov. in effect a gift of income, plus tin; aid given to it by the power to resort to the house and furniture. This question wis not asked by tho originating summons and the was not argued as if it had been asked. His Honour therefore came to no conclusion upon Mr. Trend well stated that the summons hail own'intended to cover (he.question :iiriitioned. Ilis Honour then said he would consider it after legal argument or without argument, if counsel desired. 'Meantime tho summons could be adjourned and mentioned again later on: