LAW REPORTS

Dominion, Volume 8, Issue 2333, 15 December 1914, Page 9

LAW REPORTS

COURT OF APPEAL TWO RESERVED JUDGMENTS Two reserved judgments were delivered by tbo Court of Appeal yesterday morning. Tho first judgment concerned the., interpretation of a memorandum of agreement entered into on April 30, 1912, between John Henry Herman and Bernard Jacob Weger, both drilling engineers, of Wellington, _ on tbo one part, and Frederick' Cassin, land and estate "agent, of Hastings, on the other part. The matter originally came before the Supreme Court in July last in the form of" an originating summons asking for a decision under the Declaratory Judgments Act, 1908. The plaintiff-was the Herman and Weger Manufacturing and Contracting Co;, Ltd., of Palniers'ton North (now the appellant), and the defendant was. the Mangaohe Oilfields, Ltd., of Napier (now the respondent). -The agreement between the parties x was as to certain oil-boring oporationsiiear Napier. The principal question before the Court related to. the matter of casing in a well, which had been sunk, and to whether the Herman and Weger Company lad to leave the casing in the _ well or whether the company was entitled to remove it? And, if the company was not entitled to remove the casing, was it (the Herman arid Weger Co.) obliged to bear the expense of the purchase of casing for the second well. His Honour the Chief Justice (Sir Robert Stout), who heard the case, ruled that the defendant could order that the casing could be left in the first well; also that plaintiff was bound to supply the casing used in the eecond well, except so much as may have been directed by the defendant to be left in the first well. The plaintiff company was directed to pay £10 10s. cost's to defendant. From this decision. the Herman and Weger .Company appealed, on the ground that it was erroneous in law. At the hearing, Mr. C. P. Skerrett, K.C., with him Mr. G. Samuel, appeared for the appellant company, while Sir John Findlay, JLC., with him Mr. H. B. Lusk, of Napior, appeared for tho respondent company. , In dealing with the matter the Court of Appeal had before it an affidavit in addition to those before the Chief Jus-, tice, whose judgment was varied by the "Court in favout of the, appellants on the more important question and allowed to stand in other respects. The Court decided that, as appellants had substantially, succeeded, they were entitled to costs on the highest scale. SAWMILLING AGREEMENT. The case of the Onehunga Sawmilling Co.; Ltd., v. the Official Assignee in bankruptcy of the property of Michael Hersey King, sawniiller, of Kaurimu,-was also dealt with fry the. Court. In May, 1913, Michael Hersey King • started business as a sawmiller at Raurimu, and about the same time ho entered into an agreement with the. Onehunga Sawmilling Co., Ltd., to supply the company with the whole of the milled timber from the area comprised in. a license to cut timber neaT Rail-

rimii.. In addition, King executed in favour of the eame; company an instrument by way of security over .his plant, etc., and a mortgage of his lease and license. King was adjudicated bankrapt in November, 1913, and it was then contended-tha't it was'.;not possible to carry but the'.agreement with the Onehunga Sawmilling Co., except at-a' loss'of;'.2s. per 100 ft.' Injdealing ■with- the. Deputy Official As; eignee questioned the validity of the agreement above referred to,' and the • result, was that the. matter was submitted to the Supreme Courti The Deputy Official Assignee then moved for' ,ah order under the Bankruptcy Act, 1908, to the effect that he'was entitled to disclaim the agreement without also disclaiming the timber-cutting license. The grounds of the motion were: (1) That the terms of the agreement were unfair and -unconscionable, and (2) that the term's of the agreement were inconsistent with or repugnant to the Contractual arid equitable right to redeem, and were a clog upon the equity of redemption. His Honour Mr. Justice Edwards, in granting the order moved for, remarked that . "nothing could be more unfair and unconscionable than a transaction, which must necessarily-.involve one. party who is simple enough to enter into it, in a heavy loss for the benefit of the other party, who is astute enough to induce him to do so, and which will probably result, as it has resulted, in the present case, in his bankruptcy." The Onehunga Sawmilling Co; now appealed against His Honour's judgment on' the ground that it was erroneous in point of law. At the hearing, Mr. C. P. Skerrett, K.C., with him Mr. D.--S. Smith, appeared for the appellants, while Mr. M. Myere, with' him Mr. H. R. Cooper, of PalmeTston North, appeared for the respondent. . After dealing in _ its judgment with the-legal technicalities of the agree-ment-between-the parties, the Court ordered a variation, of tho judgment of the Court-below by striking-out certain words. The Court expressed the opinion that the appellants were entitled to a declaration that the agreement of May, 1918, would not be affected by the release of the securities. No costs were allowed.'

UNDEFENDED 3 DIVORCE CASE. In the Suprcnw Court yesterday morning, before His Honour Mr. Justice Hosking, Violet CaVhro petitioned for dissolution of her marriage' with William Alexander Cathro on the ground of misconduct. There was no defence. Mr. T. S. Weston, who appeared for the petitioner, called evidence to show that the respondent, n commercial traveller,'has lost his position with a local firm because of the fact that he had heen accompanied on his travels by a single woman. ' His Honour granted a decree nisi, to be made absolute in three months. DECISION RESERVED. Decision has been reserved by His Honour the Chief Justice (Sir Robert Stout) in the civil action, F. H. Futter v. C. J. Futter and W. C. Futter,, a claim for .specific performance. The case involves the partition of certain property ;in the Ngahauranga Gorge, left by § the late John Futter to the three litigants, who are his sons. Mr. A. Gray, K.C., with him Mr. E. J. Fitzgibbon, .appeared for tho plaintiff, Mr. 0. N. Beere for TV. C. Futter, and Mr. A. W. Blair for C. J. Futter. PATENT EXTENDED. An application 'under Section 20 of •tlis Patents, Designs, and Trade Marks Act, 1911, was heard in'the Supreme Court yesterday afternoon by His Honour the Chief Justice (Sir Robert Stout). The applicants were: John Nowsome Clapham, hairdresser, of Palmerston North, and Thomas Huddy Conzens, saddler, of Christchurch. They bought tho extension of tho patent of an improved rem-holder and wheel-stop or chain for holding horses. Tho grounds of the application were that the invention was of exceptional merit, and that the patentees had not been adequately remunerated. Sir John Findlay, K.C., with him Mr. D. R. Hogga cd, appeared for the applicants, while Mr. H. H: Ostler, of the Crown Law Office, appeared for thb Registrar of Patents, who did not raise any objection to the application. After hearing legal argument His Honour granted an extension of ten

years, remarking that the patentees did not appear to have, niado anythiug to date out of the invention, -which was a meritorious one, and one which had been favourably noticed by the authorities of the St. Louis Exhibition.

MAGISTRATE'S COURT

ALLEGED THEFT OF JEWELLERY CHINAMEN AND OPIUM. Mr. D. G. A. Cooper, S.M., presided over a Bitting of the Magistrate's Court yesterday. . Alfred John Burrows, who appeared before the Court on Saturday on a. charge of entering the house of Dr. Robert Stout with intent to commit a crime, was further charged with the theft of jewellery and plate valued at £91, the .property of Dr. Francis M'Kenzie.- On the application of Chief-Detective Broberg, accused was remanded till to-morrow. Bail wds allowod in £100. FINED FOR HAVING OPIUM. Charges of having opium in their posession in a form suitable for smoking were preferred against two Chinese, Yee Bow and Chin Ah Leong. The former plea/led guilty, and the, latter not guilty. Mr. J. F. W. Dickson represented both. Fines of £5 were imposed in each case with costs £2 Bs. 6d. AN OLD OFFENDER. A very old offender, in the person of John Power, was remanded till to-mor-row on a charge of stealing fifteen pairs of trousers, valued at £6 7s. 6d., from Christopher Smith. Inspector Hendrey intimated_ that the charge would be made indictable, as accused was so frequently'before the Court that the Supreme Court should deal with his case.

"DISREPUTABLE STATE OF AFFAIRS." The severest penalty the law could impose was meted out to Hans Rasmussen Smith, charged with assisting a prohibited woniaii io consume liquor. According to the evidence, accused had invited the woman in question to his house. - She was discovered there a week later by her husband, dead drunk hi!bed. The-woman's clothes had disappeared, while she was covered from head to foot with bruises. The Magistrate fined accused £10, with costs 195.. in default _ three months' imprisonment, remarking that the case disclosed a most disreputable state of affairs. : OTHER CASES. As the result .of a disturbance on the wharf, William Joseph Piatt and James White appeared, charged with assaulting a nightwatchman. Each was fined £1 or three days' imprisonment, while Whit© was fined £2 or fourteen days' imprisonment for using obscone language. Thomas Chalmers Leslie M'Gregor was remanded to December 16 on a charge of attempted theft from the person of James Stevenson. . James 'MMillan was fined 10s., or 48 hpurs' imprisonment,. for drunkenness, and £2, or.seven, days' imprisonment, for resistinc: the police. David Hammond Harrison Wilson was convicted.and discharged for drunkenness, and fined £2, or seven days' imprisonment, for using obscene language. HughjM'Donald was fined £2 or fourteen days' imprisonment for using obsceno language. Altogether thirteen first offenders were ■ dealt with for ' drunkennoss. Mary Sprowell. similarly charged, was fined 10s. or 48 hours' imprisonment. May Donaldson, a prohibited person, was sent to Pakatoa Inebriates' Home for twelve months on a charge of being an habitual inebriate. She was convicted and ordered to pay medical ext>enses on a charge of helpless drunkenness. . James Walmnley was fined £1, with costs 75.. in default three days' impris. onment, for committing a breach of v his prohibition order. •

MAINTENANCE CASES. The following'were penalised for disobeying maintenance orders: —John Scrimshaw was ordered to be imprisoned for ten days, warrant to be suspended on payment of 10s. per week off the arrears (£9 155.); Edward Bevan,. two months' imprisonment unless arrears (£62 10s.) are paid forthwith. On each of two other charges in respect of arrears amounting to £63, he was sentenced to one month's imprisonment. Thomas Carswell was sentenced to seven days' imprisonment, warrant to be suspended if lis.' per week is naid off arrears (£5 Us.). . Kenneth Clark M'Kenzie was ordered to pay 2s. 6d. per week towards the maintenance of his son at the Wereroa Boys' Training Farm. MILK VENDOR FINED. The case against Arthur Copping, proprietor of the Gracefield Farm, Lower Hutt, charged with selling adulterated milk, was concluded before Mr W._ G. Riddell. After hearing the additional evidence for the defence, the Magistrate entered a conviction' against defendant, who was fined £3, with costs £2 18s. Mr. P. S. K. Macassey appeared for the prosecution, aid Mr. F. E. Petherick for tho defence.