LAW REPORTS.

Dominion, Volume 7, Issue 1972, 31 January 1914, Page 14

LAW REPORTS.

LOWER COURT. INSULTING WORDS ON WHARR TOARBITRATIONIBT, ONE OP THE EX-STRIKERS FINED. Another case arising out of the fricbetween ex-strikers and l Arbitratwnists on the wharf came before Mr. W. Q. Riddell at the Magistrate's Court yesterday morning. Tho oase was one in which Archibald Txickte was charged with using, insulting language, to wit, lou ro one of tho3o scabby oirtfie Clyde Quay Wharf on January 2. Accused, who was represented by Mr. P. W. Jaokson, pleaded not guilty. Maurice Leney, Arbitrationist wharf labourer, stated that, on the afternoon Mi question, he was coming down the fangway of the collier Svcrne. Before e reached tho wharf Leckie met him on the gangway and used tho language mentioned in the charge. Witness did not mako any reply to the first remarks, but wheirLcckie repeated them witness clapped him on the shoulder and said: Look hero, young man, you must moderate your language or it will get you into trouble." Leckio at once shaped up in a, threatening position, and 'other wharf labourers gathered in anticipation of a. fight. No blows were struck, howerer.

Edward .Winter, wharf labourer, also an Arbitrationist, described proceedings on tho gangway. He heard Leckie use tho language complained'bf. Leney had remonstrated with accused in. the words previously stated, and tho man in charge also reproved accused. /William Herbert Preston, a foreman i? *. he , employ of tho TJ.S.S. Co., stated tiiat iio was in charge of tho men on the brerne on the day in question. Ho noticed Leckio and Leney having a few words, and ho called over the side of the boat: "That's enough of that, Leckie!" Alter tho occurrence Lenoy camo backon board to get his coat. ' This concluded tho evidence for the prosecution, and Mr. Jackson then stated that tho, defenco would be a denial that the words had been used by defendant. They would not Bay that the words were not used at the time, but would show that they had not been used by Leckie. ■■••..-■ ,

Leckie, the accused, stated tnat on tho day jn question about 40 or 00 men wore coming ou\tho boot. Lenev was on tho wharf first, and when he (witness) came down tho gangway Leney;offored to fight any striker. Witness replied: "Very well, if that's what you want, let us get on with the game." iiiey wore both separated. Leney had his coat off at the time Witness did not himself use the words complained ox, out he , had heard someone else make use of them. .Charles Latham, wharf labourer, who camo off tho Sverno just behind Leckie also gave evidence for the defence, and *redk. Koatley and E. N. Stewart gave similar evidence.

_ John Troon stated that he preceded Leckie down tho gangway, and sa-.y Leney at the foot of tho gangway. Leney said that somoone,had called him a scabby . Leckie, however, did not say anything. . To Detective Broberg: Witness would contradict statements to the effect that .B 0 , * 1 n J?i to fight Leney. - On the weight of ovidence," stated tho magistrate, "accused should be convicted. There is plenty of evidence thai no used the worde.' A fine of 40s. was imposed, with costs 12s. An option of seven days' imprisonment was allowed.

* -TWO "HOOP-LA" RIVALS. Rivalry in trado was the cause of tho appearance of two young men in the Magistrate's Court yesterdav morninit before Mr. W. G. Riddell, S.M. Tho proceedings disclosed that the young men-in queetiqn—Fredk. James Thomas and, James Findlay-=wero. both engaged in the hoop-la saloon profession. Thomas had called Findlay over to him in Manners Streot, where, in the latter's words, ho objected to Findlay giving too many hoop-la, ring 3 for sixpence, and then said "something nasty." Findlay had remonstrated with Thomas for the words used, arid had threatened to have him prosecuted. Thomas thereupon, struck him, and on going around a side street had struck Findlay again. Detective-Sergeant Bailey, who witnessed the. melee, arrested the pair, with the result that they were ea-sh charged with committing a breaoh of tho peace. Thomas pleaded guilty, and Findlay, who was represented by Mr. P. W, Jackson, not guilty. The evidence of Detective-Sergeant Bailoy was to the effect that Thomas was the aggressor and .that he struck Findlay twice. After heating the evidence. His Worship fined Thomas 205.; and convicted and discharged' Findlay.

OTHER POLICE OASES. ' For insobriety three first offenders irere dealt witb according to ecale. Similarly charged, John Hydp was fined 405., and a prohibition order taken out against him for one year. Esther Collier was remanded for medical treatment on a chargo of drunkenness. Michael M'Carthy was made the subject of a prohibition order in Wellington and Hutt districts for a period of one year. John James Elliot, a seaman, pleaded guilty to.a charge of having absented himself without leave from s.e. Hurunui. Ho was convicted and sentenced to soyon days'. imprisonment.

SMOKING IN AUCTION MAftT. Two cases—the first of their kindwere dealt with on the information of Inspector Doyle. They were cases in which William Grant and Robert Hazelwood were each charged with unlawfully smoking in tm auction mart where foodstuffs were being sold by auction. It * was'explained that the by-law had Been framed in the interests of public health, and warnings had leen given and notices erected in the auction marta to the effect that smoking was prohibited.

"Every citizen in the city jg supposed to know tho by-laws," said tho Magistrate. ' "Thie by-law has been framed in the interests of public health. This practice of smoking in auction marts must Lβ stopped. I don't propose to impose a penalty, however, beyond the payment by each 'defendant of court costs 7e."

UNATTENDED VEHICLES. ' Arthur Stephen Harrington miJde no appearance on a cliargo of leaving .■» vehicle unattended in Blair Streot. Ho was convicted and fined 6a., with coste 7a. Arthnr Redmond failed to appear on a charge of leaving a vehicle unattendod in .Taranaki Streot. He was fined (similarly.

W.ATINING TO SHOPKEEPERS. At tho Magistrate's Court yesterday, Messrs. Hulbert and Beattio wero proceeded against by the Inspector of Awards (Mr. R. T. Bailoy). They were charged that, being tho occupiers of a shop, they had worked a person other than a registered occupier after 6 p.m. on moro than ono night u week. Mr. H. F. O'Leary appeared for defendants, and entered a plea of guilty. The action, he said, had been brought for the purpose of bringing under the notice- of shop-owners in Wellington \Ma fact that anyone clso in business other than a registered shop-owner was a shop assistant. Defendants know now that such assistants must cease work at the hour laid down in the Act,

Mr. Bailey 6aid what Mr. O'Leary had stated was quite correct, and that lio would not press for a heavy penalty. All that was desired was that publicity be given to tho case, so that other shoplteepers migjit be warned. Defendants wero convicted and ordered to pay costs 7s.

CHINESE & HALF-HOLIDAY. Young How Bros., for failing to close their premises on a Wednesday afternoon after 1 p.m., were fined 40s. with oests 7e. • • . The facts in this case were somewhat exceptional, stated tho Inspector of Awards. The dofondant brothers kept a shop at the corner of Adelaide feoad. end he (the inspector) had • suspected that there was an illicit,trade going on after 1 p.m. on Wednesday. He watched the place, and saw a boy of nine years go into tho shop and come- out with a packet of cigarette tobacco. Hβ then questioned Young How, who. however, bfoko out into a torrent of Chinese. Defendant had been before the Court before for failing to close his premises on Wednesday.

OIVIL CABES. INTERESTING TEST CASE. An interesting test case, heard before Mr. E. W. Burton, 5.M.,. yesterday, n-as ono in which tho Stewart Glass, Timber, Hardware, Co., Ltd., of Wellington, proceeded against the Canterbury Steamship Co., of Cltristchurcb, for tho delivery of the balance of a shipment of timbor or its value, £22 12s. Gd. _ In the statement of c'aim by plaintiff it was alleged that on July 2, 1913, defendant company received on board its steamer Storm, then at Hokianga, 6409 pieces of timber, to bo. conveyed to plaintiff company, in Wellington. Tho Storm duly arrived at this, port, and defendant delivered to plaintiff 6374 pieces of timber. Application was made to defendant company for the delivery of tho balance of tho timber, but the delivery had not vet been made.

Mr. 'T. C. A. Hislop appeared for plaintiff company, and Mr. Douglas Jackson for defendant company. Evidence waa brought forward in deienco that tho whole of the cargo comprising the G409 pieces of timber had boon landed at 'Wellington. Upon plaintiff company taking over the cargo the shortage was discovered. Mr. Jackson ■ contended that delivery had been made to the Harbour Board of the wholo cargo, and that defendant company's responsibility ceased there. Hβ suggested that during the interval before plaintiff company taking over the cargo the missing pieces of timber were stolen from the wharf; either carted off the wharf or dumped into the 'arbour and towed away.' Mr. Jackson cited a Scottish judgment .in a similar case, which entitled'him, he 6aid, to judgment.

Mr. Hislop contended that the onus lay with defendant to show where the shortage of timber was, and thit ho could not. show.- Tho defenco (stated Mr. Hislop) wanted the Bench to draw tho inference- that timber was taken from the wharf at Wellington by thieves. This, however, was highly improbablo, in view of the fact that there were two night-watchmen near by. His Worship, in reserving his decision, said that there were really two legal points for him to. decide. " First was whether defendant had discharged the onus cast upon him to show delivery: secondly, whether or not delivery to tlw Harbour Board is delivery to tho plaintiff.

CHINESE & DOCTOR. CASE OF LOO SHOOK DECIDED A rather important ruling as to tho admissability of a letter in the civil case Loo Shook v. Dr. F. W. Mackenzie, a claim of_£lß2-as wages, has been given by Mr. J. &. Evans, S.M., before whom tho case is being heard. During the bearing, Mr. V. R. Meredith appeared for plaintiff, and Mr. C. H. Treadwell for defendant. The Magistrate is at present in Nelson, and his ruling runs as follows:— "Tho question I have to consider is whether a letter, written by tho defendant to his manager on the evening of tho day on which the defendant arranged for tho plaintiff to go on to tho farm at Kawhai, is admissible in evidence as proof of the terms'upon which the plaintiff went on to tho farm, or in corroboration of the defendant's version of tho terms. I had previously rejected tho letter, but Mr. Twadwoll strongly urges that it is admissible as part of the rea gosta.' This is tho only ground upon which it is urged that it is admissible. In my opinion it is not part of the res gesta' in the sense in which that term is used. It ia nothing more than the plaintiff's statement of tho arrangement between himself and the defendant, with tho reasons that the defendant says actuated him in sending tho plauiKff up. It is no part of the bargain mado between the parties. It is an instmction to his manacer, not written with the knowledge, consent or concurrence of the plaintiff. It was not carried to the manager by the plaintiff, and there is -no evidence that it came to the knowledge of the plaintiff, or that the manager acted towards tho plaintiff m accordance with tho instructions in the letter If this letter vraro admitted rn evidence in jwoof of the matters stated, then every statement of the arrangement como to hy the parties made by either of them to a third party would be admissiblo if mado shortly after the arrangement; and parties could make evidence in their own favour Iγ telling their friends what arrangements had been mado. Thero is, in my opinion, no authority for the proposition that such statements foijra part of the 'res gesta.' They are not part of the 'res gesta ' Tlwy are a mere narrative cf the terms of a concluded agreement made after the event by one of tho parties without tho knowledge or concurreribo of the other party. The letter may 5o used t» refresh the memory of the defendant, but it is JK>t,_ in my opinion, widence unless the plaintiff makes it evidence by cross-examination or otherwise This has not been.done, and the letter must be rcjeoted."