LAW REPORTS.

Dominion, Volume 5, Issue 1443, 18 May 1912, Page 3

LAW REPORTS.

CHANGE OF VENUE GIVEN.

LIBEL ALLEGED.

STAGPOOLE AND PIRANi

Change of venue from Palmerston North to Wellington has been granted'defendant iu tho case of Thomas Stagpoolo v. I'irani nnd Co., Ltd., and Frederick I'irani, an action for alleged libel published in a newspaper called the "Feilding Star," owned and managed by defendants. The plaintiff was a schoolmaster under the Education Board. The alleged libel was headed "A Fraudulent Return Sent Iu by Mr. Stagpoole." The application for cliaugo ot venue was argued on Saturday last before Mr. Justice Cooper and Mr. Justice Chapman, and judgment' bf the Court was delivered yesterday afternoon.

In tho course of judgment tho Court said:—The defendant, Frederick Pirani, had taken a leading part in a lengthy proceeding involving an inquiry into plaintiff's conduct beforo the Teachers' Court of Appeal, in which plaintiff appealed from n decision of tho Wangonai Education Board.' Wo think it undeniable that the hearing of that appeal caused a great deal of feeling and considerable excitement in a district wide enough to include the town Of Palmerston, where the inquiry was held. . . . Wo are satisfied that tho whole subject of the Education Board's decision and Mr. Stagpolle's appeal, with which the matter complained of is not wholly unconnected, have entered into the public mind in the district, and that feeling has run high in connection with Jlr. Stagpoole and his grievance. It is not too much to say that a local atmosphere has been created which is highly charged with excitement. "In the circumstances disclosed by the affidavits we do not think that we can attribute to the public that they will, or to the whole jury panel, that it will thus carefully discriminate between the cause of the excitement and the subject of the action. All the matters which have caused and kept lip excitement and feeling must be looked upon as .to some extent cumulative. This we think is made clear by a matter which has heon referred to in affidavits filed since this summons was issued, but which we are entitled to consider. In the "Manawatu Daily Times, of April 30, a column is devoted to the publication of the substance of the affidavits filed upon this motion. . . . This was presumably published as matter in which the public were deemed to l>e interested, and,.to comply with a demand for matter respecting this action. It is difficult to see why interlocutory proceedings in such, an action should interest tho public unless there was already a state of excitement in the district. It seems to us to accentuate the fact that excitement exists, and that prejudice probably exists . '. "Ia the commentary upon this the artide goes on to say: -'We .recognise that the 'Feilding ■ Star', has endeavoured to foster antagonism between the two towns. We do not think that such an expression h«T3 any tendency to allay the prejudice «'hich Mr. Pirani states on oath exists in Palmerston against him. The matter does not stop there, as, in the issue of May 1. appears a letter headed 'Rough On Palmerston and Its Jury List/ and signed 'I am, Etc., On the Jury List, i This letter censures 'three business men in Palmerston who had so low «in opinion of the people of their town that fhey dul not consider them capable of sitting on a jurv that would give a man a fair trial. As the letter is published anonymously, it may be recorded as adopted editorially. There can be no doubt that such matters as appear in tho affidavits woukl.be looked upon by many people, and possibly by manv jurors, as offensive. They were not published by or with the consent of the defendants, and they, would have remained on the file of this Court unknown to» the jurors had they not been published in this way. We cannot but think thai I .their publication might prove prejudicial | to the fair trial of the action, and we come to the conclusion that it is undesirable in the. interests of justice, and it would not be fair to defendant that this case should be tried in Palmerston. This may lio unfortunate for the plaintiff, who is not to blame, but it is not in the interests of justice that a trial should take place where such conditions exist. "It was argued that the attitude of the newspaper referred to. and perhaps tho prejudice, if any. against, the defendants was brought on themselves by means of articles published in their paper in Feilding. Tliere may have been articles justifying tho nttitude of the 'Manawatu Daily Times' in a general sense. There is, however, no issue here between the two newspaper proprietors, nnd the plaintiff's articles, published at Feildine, can have had little or nothing to do with the last matters to which we have referral, which we think must be taken as placing it beyond doubt that the venue ought to be changed." , , , , . , An order was accordingly made for trial at Wellington. Costs .£5 ss. to be costs in tho action. At the hearing Mr. M. Myers, instructed by Messrs. Loughnan and Jacobs. Palmerston fiTorth. apneared for plaintiff, and Mr. A. W. Blair, instructed by Messrs. Ongley and Kelly, Feilding, for defendant. COMPENSATION SOUGHT. UNIQUE CLAIM. MO,BOO FOR LAND TAKEN, ETC. A claim of ,£IO,BOO occupied the attention of tho Compensation Court all day Seste rday, and hind not concluded when !io Court adjourned. Mr. Justice Chapman presided, and sitting with him as assessors were Mr. W. G. Foster and Mr. W. M. Haniiay. The parties to the action were Hector Norman M'Leod, estate agent, of Wellington, claimant, and the Wellington • Harbour Board, respondent. Mr. C. P. Skerrett, K.C., with Mr. M. Myers, appeared for the claimant, and Mr. T. S. Weston, with Mr. T. Neave, for the Wellington Harbour Board. Claimant was the proprietor of three sections of land adjoining one another, and situate in Watt's Peninsula (Miramar). Block VII, Port Nicholson survey district. Under proclamation dated Juno !!5, 1909, the lands were takeu and vested in' the Wellington Harbour Board for the purpose of enabling spoil to be taken therefrom in order to carry out reclamation works in Evans Bay. The land so taken had an area of roughly 1} acres, with a dwelling valued at .£6OO. M'Leod claimed .£IO,BOO for all loss sustained, alleging that such land had gpecial value, because it contains brickmaking material of special quality, and has special value on account of its situation for brickworks, etc. M'Leod also claimed interest on the amount as from June 25, 1909, at 5 per cent. . Mr. Skerrett, in opening, referred _ to the suitability of the land for building sites, its convenient situation, _ and the curious fact that it was the sito of _ a famous old Maori pah. It had a. special valuo for which it was purchased long before there was any talk of reclamation work. Mr. M'Leod, \then ho purchased the land afi far back as 1902 (two sections) and 1905 (tho third section), formed t.iic opinion that he rould uln.lise the laud, by establishing brick works, and using tho clav iu the formation of bricks, b\ selling 'material (gravel) for roads, and by supplying fcnoil to landowners for improving their sections, u itcn tho brick material, etc., was exhausted, the hill would be removed, and Jl'l.eod would be left in possession of very valuablo level buildiiig sites. Connsc went on to explain that M'Leod had had tests anplird. finding the material suitable for bricks, had gone into tlie question of establishing brickworks. In January, 1903, ho received the first intimation ot the proposed reclamation wc.Tk, but later the scheme wa= supposed to hare been abandoned, and M'Leod purchased a brick' making plant to carry out jus original proposal. Later, however, the reclamation work was set afcot, and in June, 19C9, M'Leod's land iva; required. f.ouusel indicated lira:' evidence would I s ; ciilM to iJi'ivfc thill the land iva-■ boughi , for the pnijM)-e mid th.-.t the neiii'mc wii= iiiactk'iible and payali.e. II would then be for die < "Ui'l In siv if a sum, in addition to the mtual ve.-idenlini value, should be paid a« coninen-alion. Hector Norman M'Leod. the clatmanl. said h« reside-! at Miramnr. and was a Mavor of the borough. IJe had b*on connect"'! T.he district for 14 year#. It la 1803 tint lw Urot OQU-,.

sidereil the scheme of purchasing the laud, and after going into the question very carefully he decided to purchase tiie sections, for the reason that they could he improved and would provide him wl y! funds for old age. J1 c proposed to endow n the Jiiil by pulling bricKworks there and having the level land afterward.--, close to a wharl', which would no doubt l;e increased to cope with extending traffic ami demands. The spoil which was uiisuit- ! able for bricks he proposed to dispose 01 I as .spoil for use on sandy <li>trici>, ni<-'tai I for roads, and ballast for ship*. I was demand for maierial in the district i under these heads. The metal taken from the cutting had previously been used on the Evans Hay Koad. At the iirst sale, witness bought section '-1, aim within a month following in IW>- he purchased 26, and kuew he would later he able to buy 'J5 because it could not be 1 cut up advantageously without 24, which i witness would not sell. He purchased sec- | tioii 25 in PJOS. On Xo. 21 he could o'ecc ! a brick plant. In lOuti he approached .Mr. | Tlios. Lloyd and suggested the | proposal. lie also spoke to Mr. J\ *">. Lam- : bert, an architect of long experience, on general questions relating to the feasibility of making tho brickworks succcsslul. Mr. Lloyd made a quantity of briefcs and advised that it would be a payable business, and said if Ive had been Tree he would have been willing to manage the business. Witness bought machinery early in 1!)08, at a time when, according to newspaper report, the reclamation scheme was abandoned, and according to a resolution of the Harbour Board indefinitely postponed. Witness went on to reler to. the bricks that had been made from tite spoil on tho property, lie was quite sausued with them, and in all cases they proved very satisfactory from the point ot view of weight, absorption, and facing. (Several samples were here produced.) Witness knew of a case in 1905 where a contractor had paid Cd. a yard for spoil taken from land adjacent to these sections. Based on a sale that had token place, witness set down the value ot_l»in property as a residential site at «£«jl-J (216 perches at <£11 10s., plus .£OOO value of house). . „ To Mr. Weston: He gave £290 for Section 21 in 1902. In 1905 ho gave £tal for .Section 25. For Section 26, he paid in 1002. The original price was X3lO on the first subdivision. Had it in his mind to establish brickworks in 1902. Irior to 1908 ho had not discussed the scheme with anvone other than Lambert and Llovd. ile considered there was a depth of 20ft. of pug clay all over the section. There was a considerable depth oi other material that could be used in making After tho luncheon adjournment, the Court visited Miramav to view the sections. Tho hearing was resuined at f p.m. In further cross-examination, M eon detailed lioiv his calculations had arrived at, fixing his claim at XlO.blli.. Me admitted that, had he wanted to biiy land in the middle of Miramar m !..».) ho would probably have given ' c ' ! i. lol Tl t than what it was valued at m JJOi. He declined to admit, however, that tie general run of land in .Miramar hail >■<■- predated. At certain spots; in. Miramar sections had been sold, at a greatly ieduced price. Regarding some land .tliac could not be sold quickly on subdivision, witness said it was because it had been badlv cut up. In reference to a sale ho had quoted that morning to Mr. Hjorring, he did not know thai it had ne\ei beer completed, or what deposit was paid or that Sir. Hjorring was not now m die country. Thomas Lloyd, brickmaker, r< * l " dent at Napier, deposed that m 190b he had been a member of the firm of lihoford and Lloyd in Wellington, and during that year ho had practically arranged to manage brickworks at Miramar, tho material to como off M'LsoU's 6 ? I c ,"°, l } s - Witness was so well satisfied with the prospects that ho was willing to put A3OO into a partnership with M'Leod. _Miiliess detailed the advantage-s of the site. _ To Sir. Weston: Was only a worKing partner in the firm of Whiteford and Lloyd. He came out of that venture wuh a Only two witnesses had been examined at 5 p.m., when the further hearing was adjourned until 10.15 a.m. to-day.

CONCERNING A GRAVE PLOT. INJUNCTION SOUGHT. In the Simreme Court yesterday, before Mr. Justice'Cooixu-, hearing was coacluded of the action in which* George Bolton, settler, of Wellington, against Martin Joseph Lee, railway guard, of Wellington, and Amy Louisa Lee, his wifo, claimed an injunction to restrain the latter irom further trespass, and .210 damages for alleged trespass. .Air. A. Gray appeared for the plaintiff, and Mr. T. C. A. liiSsOp for the defendants. Particulars of tho action 'were published yesterday. The subject of dispute was portion of tho burial ground in Bolton Street cemctery. The action originally came More Mr. Justice Edwards in September, last. During that hearing it was announced tnat a settlement had been arrived at, and the case was not proceeded with. On Thursday Mr. Grav informed Mr. Justice Cooper that plaintiff had been compelled to bring the action again as the agreement oi September last had not been carried out. Defendants stated in deienc« that the reason that the agreement had not been carried out was that they had been unable to gain the permission of the Minister for Internal Affairs to exhume the body. The

sum of 2s. 6d. was paid into court in satisfaction for any damage done. Hearing of evidence was concluded yesterday afternoon, when his Honour reserved decision. IN DIVORCE. UNDEFENDED PETITIONS. Decrees nisi were granted yesterday morning in a number of undefended divorce petitions, heard before the Chief Justice (Sir Robert Stout). Evelyn Annie Monk, of Johnsoaville, sought dissolution of her marriage with Eugar Guy Monk, oil the grounds of desertion and failure to maintain. The marriage took place at l'aimerston South on July ir, lS'Jd, but there were 110 children of the marriage. Mr. A. L. Herdnian appeared in support of the petition, and Ins Honour granted a decree nisi. Habitual drunkenness and cruelty on tho part of her husband were the reasons why Mabel Adelaide Caulton asked that her marriage with Bert, H. H. Caulton should bo dissolved. Mr. 1-'. W. Jackson led evidence to show that the parties were married on January 12, 1901, and lived together at Wellington and Pctone, there beiug three children. A decree nisi was ordered to issue.

Harold Armstrong, for whom Sir. D, S. Smith-appeared, prayed for divorce from Anna Theresa Armstrong on account of the latter being a hopeless mental defective, Tho marriage took place on April 30, 1889, and tho two children of the marriago were both dead. Respondent had been an inmate of mental hospitals since 1899. As Mr. H. H. Ostler, who appeared for tho Solicitor-General, did not offer opposition, the decree nisi was granted. Alice Ethel SofFo asked to be divorced from Harry Soffc on the ground that the latter had deserted her, and failed to provide maintenance for herself and child. The parties were married at St. Andrews, Canterbury, on October 26, 1901. Jlr. P. W. Jnckson appeared for tho petitioner, and called tho necessary evidence to allow of a decree nisi being granted. Charles Geo. Lamb, labourer, of Carterton, petitioned for divorce from Lucy Jane Lamb, on tho ground of the latter s misconduct with Herbert Morris. Evidence showed, inter alia, that the marriage had taken place on January 23, 1909. The usual decree was granted. Mr. P. W. Jackson represented tho petitioner. Isabella Humphries, who was married at Wellington oil March 4, 1895, petitioned for divorce from Archibald William Mace Humphries, on the gTOunds of desgrtaon and failure to maintain. Mr. A. H. Ifindmarsh adduced evidence in support of the petition, and a decree nisi was granted. Desertion was what was alleged by Maud Leach in seeking dissolution of her marriage with George Leach, which took place in March, 1903. one child of the marriage. After Mr. A. H, Hindmarsh had called the necessary evidence, his Honour granted a decree nisi with interim custody ui the child.

Ariel Eliza Economos, who was married to Haralaniboj Economos on January I'JIIT, had not seen her husband mil' lieaid nl' him since three days titU-r the utarMr. K. M. Watson appeared in suppm't «!' her pelil ion lnr diviilTe ye.--lenuiy, n decree nisi being ordered in be i.-iued. , ■ ■ Guslave Kihvin Ponrsnn lluil Ins marring* with Harriet Vonvson shoulij h« on the ground of j\or lmscoriuuK with Hot is-vr, 3 number of tk* B» Irving do. XJift aaniw took zuxc oa

May 20, 1908. The accessary evidence being forthcoming, a decree nisi was granted. Mr. P. \Y. Jackson appeared for tlu- petitioner. , On the evidence tendered, the respondent in the case of Emma Charlotte Campbell v. ,lolin William Campbell was said by his Honour to have double Iho number of convictions necessary to receive a indeterminate sentence. Mr. I'. W. Jackson appeared in support of the wife's petition for divorce,, and a decree nisi was granted. William Bobert Swanson alleged desertion a ground for dissolution of his marriage willi .Annabeil M'l.eod Swanson. Kvidonce called by Mr. F. I'. Kelly showed that the marriage took place at Auckland on September «, UHJI. Tlio decree nisi was granted. Misconduct was the ground on which Edith Gertrude Keller petitioned for divorce from Wm. Joseph Keller, to whom she was married in November, 11)09, at Brisbane. Decree nisi was granted with interim custody of the child. Mr. C. H. Iwird appeared for the petitioner. William Pollock, in seeking dissolution of his marriage with Mary Pollock, alleged Ihat tlio latter had been guilty of misconduct with John Kcid. Tlio parties wcro married on January 24, IMB, and the respondent had since gone to livo with the co-respondent at Brooklyn. The usual decree was granted. sir. T. >i. Ilolmden appeared for the petitioner. In the case of Florenco May Paulsen v. .Arthur ranlsen, the grounds of the petilion for divorce were drunkenness and cruelty. The marriage tool; place at Wellington on September 22, IS9B, and tlio parties afterwards lived together at Masterton. In 100G n. separation order was granted against respondent. Since tho service of the present petition ho had threatened his wife with a revolver. A decree nisi was granted. Mr. W. Perry appeared for the petitioner.