SUPREME COURT.

Gisborne Times, Volume XIX, Issue 1558, 14 September 1905, Page 3

SUPREME COURT.

CIVIL CASES. BLACK v. TOMBLEBON. His Honor, in delivering judgment in |h« above case ycstorday, said : *• I am satisfied that the plaint has been proved, and that ihora has boon a breach. I ftm ’ - also satisfied that the offer made by tho defendant to soil tho sheep ' at a valuation cannot bo taken into consideration in reducing the damaeo.. If that offer had been accepted plaintiff would have debarrod himself from seeking a romody for damsgos afterwards. lam also satisfied that plaintiff has grossly exaggerated his r damages, expeotlDg to make more out of defendant than ho oonld out of sheepfarming. That, of course, I oannot encourage. Tailing the evideuoe as a wholes the evidence of the slook agents satisfied mo beyond all; doubt the plaintiff could have replaood the sheep if he had boeu anxious to do so, and satisfied me that these sheep could havo been replaced within ample time to satisfy all plaintiff’s requirements •* * J?s ioa varying from 17s 6d to £l* Tho sheep themselves were of a very variable quality as shown by the evidence of the agents who valued them. I think a fair and! ample allowance to make to the plaintiff will be the sum of 2s fid a head on the 1500 ewes. With reaped to the hoggets, the matter is rather different. It is quite plain that the plaintiff was not at alt anxious to roplaoo the hoggets, and that ho made no attempt to do so. At the same time it is shown that at about that time the hoggets wore valued by competent valuers at Is 9d a head in exoess of the prioe that defendant agreed to sell them to plaiatiff, , There is a questiodabout these hoggets, that no oontraoi in 'writing "appears to havo been entered into, but I do not think that tho defendant, upon the state of the pleadings, can tako advantage of that, but 1 shall leave that point open to him for the present, and assess the value of tho hoggets at Is 9d per head for 150 hoggets, whlob comes to £ls lus, making the amount of judgment altogether' £2OB ss. For this amount plaintiff will have judgment with oosta according to soale, leave being reserved to defendant to apply to reduce the amount hy £ls 15s on the ground that no valid oantract with respect to the hoggets has keen proved or admitted.” In reply to counsel, His Honor said he would not allow oasts for seoond counsel.' £t was an ordinary aotion for breach o 1 contract,

IN BANCO.

DUNLOP v. LYSNAR. In the appeal from tho Magistrate’s iieoision in tho oaso Dunlop, appellant, v. Ljfaaar, respondent, claim for coils for e»at work and mcuey advanced, oonnsel igVsod, with His Honor's permission, that [be notion be allowed to stand over until lodgment in'the raoent Bopreme Court totioo, Donlop v. Lysnar, was received. His Honor allowed the ease to eland i ver until the next silling in Qisborhe.

ROGERS v. ROGERS. Joseph John Rogers (Mr J. W, Nolan) t. William Thomas Rogers (Mr Stock), for dissolution Of partnership. Mr'Nolan stated that the oase had been practically settled. His Honor made a note of the aettlo* Cieot agreed upon. i v. I ,t‘ ; : AN APPEAL OASE. Johan Person (Mr H. J. Finn) v. W. A. Barton and another, application for a writ of prohibition to prohibit farther proceedings in respect of a conviction of ! ilte said Johan Person on the 21st July, 1906. ■ I Mr Ohrisp appeared for respondent, and nplaiued the. case, which was laid under ihe Municipal Corporations Aot 1000, tho thargo being that defendant_enotoaohed on j ihe public road at Kaiti by placing a juilding thereon. His Honor said Mr Ohrisp bad to prove ibas Person erected the building. Mr Ohrisp said there waß- no evidence I is to who erected the building, bat as the lafendant had occupied it for five years it iras reasonable for the Magistrate to I usumo that defendant had ereoted the I lailding. He quoted authorities. • 1 His Honor: If a man lives in a house it gannot be said bo erected it. Alter further discussion Hi» Honor said Ihe inference of ereotion could not be Irawn from ocoupation in the present lase. In criminal oases inference was irawn, but there was no analogy between the cases. Mr Ohrisp said that if His Honor took ihat view it waa of no avail going further. His Honor said if thiß fisherman Person ji ns wise he would get off the road as soon ii possible. The appeal was upheld with costs £IQ 10a and disbursements. /V FACTORIES AOT OASE. Robert Robb and James Robb, appellants (Mr T. Alston Coleman) v. Lysaght Pbilpott Bullen, respondent (Mr J. W. Nolan), appeal from decision under the Factories Act. Mr Ohrisp, instructed by Mr Ooleman, appeared for plaintiffs. He stated lhat this was the first case of the kind whioh had arisen in the colony. He detailed the (iroumstanoes of tho case, and pointed out that the Aot waa for the purpose of uroteoliog employees. Before a mao (iould be convicted for not registering his promises as a factory it must be shown that he employed two persons other than himielf. There moat be some relationship (3 f master and servant in exiatonoe before Obcro could be a factory. _ Mr Nnian said a factory was defined as any building where artiolee were mannicaotared foe trade and sale and where xneohanioal contrivances were used for the purpose of manufacturing goods for sale. He held that the interpret ition of the Act was that two or mere persons were debarred from workiog together without registering the premises occupied by them as ft factory. , His Honor said as the oaso was one of importance he would take time to go through tho whole statute. INTERPRETATION OF WILL.

In the matter of Thomas Adams, deceased, motion for interpretation of will, Mr Nolan appeared on beba'f of the adult Children, Mr DeLautour* for the widow, and Mr Slock for. the trustees mentioned in the will. Counsel explained that there were oartain ambiguities in the will, upon which they asked His Honor’s decision. His Honor said the intention of tbo testator was plain; he endeavorod to carry on a state of things which existed in his lifetime, and which depended in his lifetime on the faot that Lb had sole authority and possession of the whole property. A copy of the polioy would have to be pat in. ■'■■■■•

divorce. , . < SHE LOVED ANOTHER. i _____ i Arthur Ernest Lister, petitloner(Mr H. J. Finn) v. Edith Lister, respondent, and j Waller Cunningham, co-respondent, application for divorce. Mr Finn shortly detailed the olroam- - stanoes of the case and called Arthur Ernest Lister, petitioner,, who produced a copy of the marriage certihcate. He was at Levin on October 8,1903, *and proceeded to Napier the following day, afterwards coming to tils■home. Witness prepared a home at Pakarae, but his wife refused to go there t'i live. Oomiog baek from Pakarae, he found his wife bad gone to Walmata. Ho visited her there, and received a letter from her, dated September 17th, I£o4> stating that she was willing that ho should ; go« a divorce, as she loved another man ■bettor than she cotiid ever love him. Ia another letter Mrs Listor charged her husband with oruedty to her. Witness staled that tbo wont to see his wife fa consequence of these letters, but was unahlP Ho see her, and had Dot seen her since, W. H. Qlejre, gardener, Haiti, gave evidence as to the aliegod intimacy between the respondent and co-respondent. Abbotsford Smith, farmer, deposod that herserved Cunningham with the oitatioD. latter stated, ”, I am very glad it has •codas to this. I expected it, but I expected it Scorn the other side,"

His Honor granted a dcoroo qisi, and awarded 'costa acoording to soale against oo respondent.

ALIMONY. I Mary Elizaboth Smith, potitionor (Mr I G.H. Lysnar) v. Abbotsford Smith, rospon I dent (Mr H. J. Finn), asking order for payI merit of alimony. His Honor said this matter had boon I referred to tho Registrar for report, but tho I parties could not bo got to attend boforo the Registrar. ~ | Mr'Finn stated hia ollent had offorod to | secure 1330 per annum on potitionor for life to the satisfaction of tho Registrar. His friend wantod a lump sum of £6OO, whioh was impossible, as respondent’s properly was tied up. Respondent had been maintaining petitioner and the ohildren.

Mr Lysnar said he could not aooopt tho offer of £BO per year. Matters were unsatisfactory, and petitioner was left in a distressed position. ‘ ' His Honor hold that ho had nothing before him to enable him to make an order, and ha would give Mr Lysnar an opportunity to get thß papers in order by adjourning tho matter till October lOtb, at 9.80 a.m., in Wellington.

' IN CHAMBERS,

In tho matter of Mary Valentine Evans deceased, letters of administration were granted to Henry Harley Davis Evans. Frobato was granted in tho ostato of Annie Harris, deceased, to Fraaois Robert Harris, executor. In re John William Sunderland, deceased, letters of administration with will annexed were granted to Richard Sunderland, Waipuna, Hawke’s Bay.

BANKRUPTCY. Applications for discharge from bankruptcy were granted to Alfred Baehelor (Mr H. J. Finn) and G. H. and K. Humphreys (Mr E. J. Ohrisp).