SUPREME COURT.

Taranaki Daily News, 21 August 1919, Page 7

SUPREME COURT.

YESTERDAY'S SITTING. ■ The sittings of the Supreme Court were continued yesterday, before hi* Honor Mr. Justice Hosking. PRISONER FOR SENTENCE. Frederick Thomas Ellis appeared for sentence on three charges of obtaining, money by false pretences, to Which he had pleaded guilty in the Stratford Court. j. Mr. S. W. Fitzherbert, who appeared for the prisoner, urged, in mitigation of the sentence to bo imposed, that prisoner had been in gaol nine weeks. Also that he was practically an invalid, having had an operation to his head, and he had also been under medical treatment for a bad leg. - . In reply to his Honor, the prisoner said his age was 27. He admitted having served terms of three months and six months imprisonment for false pretences. , In passing sentence, the Judge remarked that his method of obtaining money appeared to have some system in It. In regard to his health, he would be placed under the control of the Prison Board,-and his health would be looked after by the prison authorities.. The sentence of the Court was three years" reformative treatment, and his Honor remarks dthat it would depend entirely on prisoner himself as to whether he had to put in the whole term or jjot. Prisoner left the dock making muttering* which were not audible all over the court.

SALE OF A LAUNCH. CLAIM FOR BALANCE OF PURCHASE MONEY. In the Supreme Court yesterday, before hi* Honor Mr. Justice Hosking, William Richard Home (Mr. A. H. Johnstone, with him Mr. C. ,H. Croker) applied for an order against William Stubbs (Mr. H. R. Billing) for" the execution of the transfer of a section.of iind, which was agreed to be taken as part of the purchase price of the auxiliary launch "Norse, Wan,"' or, in the alternative, £IOO as damages. All witnesses were ordered out of Court. In opening.the case, Mr. Johnstone said the action was for the balance of the purchase money for the auxiliary schooner "Norseman", in which it had been agreed that the price should be paid partly by the transfer of a section or wholly by cash. Plaintiff was a foreman carpenter in the employ of the Harbor Board and defendant was concerned in fishing ventures and lived at Moturoa. The,!;facts were simple, but, in view of the aounter-oiaim filed, Mr. Johnstone said he thought the whole circumstances shoiihVbe placed before the Court. He said'that in June, 1918, an advertisement appeared in a-local paper notifying there waa for. sale in Wellington a vessel described' as a ketch. This was seen by Mr. David Wilkinson, a marine engineer, of Moturoa,;who conferred with the plaintiff about it, and it was agreed that if the vessej. was satisfactory and the price right 'they would purchaso it. At the end \l June Wilkinson went to Wellington jjjnd saw the vessel, which had been laid, up for about nine months and was ijl a, somewhat unkempt condition. A purchase was arranged at £BS. It turned out, however, that the vessel was moored too close to the buoy in the harbor and, on a high wind, she was blown against' the buoy and sustained some damage, as a consequence of which the price was reduced to £OO. Repairs were effected at a coat of £l4. The vessel was at that time propelled by sails. While at jWellington, Wilkinson purchased an oilengine for £4O and installed it hinj* self' in the boat. About the end of .Tiirief 'the* Vessel Was ready for sea, and set oittij for New Plymouth under sail, with Wiiij and another seaman on board.!; On'reaching Stephen Island the weather was too rough to proceed further, anil •they sheltered in French Pass. ' Subsequently the journey was completed, and When they reached Moturoa the vessel was, brought up on the beach, and Home saw her for the first time. She was taken hack off the beach, but within a week another examination was made and it wag decided to give Jier a thorough overhaul. Home, Wilkinson, and a-man named Harrison spent a lot of time in this work. It was found that the engine purchased in Wellington was not suitable, and another one was purchased and installed. Wilkinson worked hard for three months on the boat in order to make the best job of it for himself, and at that time there was no intention of selling it. The vessel was ultimately ready for sea again on December 6. She was launched, and it was found that the engine would not work on account of not having a waterproof magneto. This was remedied, and from then on the v sal gave no trouble. A seaman named Anderson was appointed sailing master, and from January to April of 1919 she continued to cruise about Moturoa engaged in fishing expeditions. About this time Wiyrinson obtained * , permanent position with the Ironsand Company, and fyas'unable to sail'in the vesselor have much,, to do, with heiv In .consequence of this,' ana:"" wftnfc 'a poor man jrod l seeding!the^mon«y,Horns deeded to sell his share in, the, vessel and advertiiea to' thiilt eftect Subsequently' he heard that Stubbs was looking for # bdal, and on Ariril 13 he went to see Stubbs. HOffefet-'hls-' sta-for £IBO.-"-Iff conversation, he told Stubbs he had been out only once and was then violently seasick, aMiljat was,one;.reason, far, his desire to "sell. The'atfegations of fraud in- the counter-claim 'felaM fai-geTy to the'(!6fiye"rs-tt'i<Jn"wMehtook place "On this occasion, »41A Mr J.Johnstone, aid-rMged from J A #o,; J (JB ; ;,th? (jlphabetvflnd -from . seas'ckiicsa. to ,marine. insurance,.,, .'.Mr. Horqe said hqwoiikl b.e.losjng. £4o„if he sOTd"his share'at £lso.^''The'boat'was stated to-be in good order, and Set 'speed was -stated to-be- about six miles- per houry'. Sheohad;<ifvfcr Wn tested over a her rime in travelling froM known positions had been taken and she had |»»en compared with another boat the'sp£ed ! ot whSch'was known: Nothing was said about the;raoney made by fishing- with, the- vessel, but it was said that there, were good fishing prospects about the islands and off the Moturoa harbor No arrangement "to purchase was made on that occasion. Subsequently a meeting took place* between Home and Stubbs and A man named Stanley, with whom Stubbs Was a partner ili another vessel. A thorough examination was made, and they also saw the spare engine and dinghy. No bargain was made that day, but at night Stanley came back to Home and asked him to come down and see Stubbs, which he did, and subsequently an agreement to purchase was entered into. On the following day the parties went to the solicitor, and instructions were given to have the purchase com- l pleted according to the terms of the i agreement. It so happened that it was] the day the solicitors were closing up for the Btete* vacation, and the agree- i ment oouU sat b« etwuiiatid it, a**.!

Stubbs, however, was anxious to get possession of his share of the vessel, and so they went to the Custom Office and had his name entered in the register as part-owner. A meeting took place between Wilkinson, Stubbs, Stanley, and a Mr. Stone, and it was arranged tiiat in future Stanley would be the sailingmaster. On April 23 the vessel went to sea on a fishing cruise, with Stanley, Moiloy, and Stone on board. They went oiit in the roadstead beyond Waiwakailio and fished all day. They came back on their engine power, and when off the railway station they anchored for a while, subsequently coming on to Moturoa. When starting up the engine the painter of the dinghy became fouled with the propeller, and they had to proceed by sail. They did not get back to the harbor that night. Early in the morning the men on board did not like the position in which the boat was, and they decided to leave her and come ashore. They did so, and shortly after the Norseman did the same, and became a total wreck. She was eventually sold for her fittings, the engines being sold separately. Home was away at the time. On his return, a few days later, ho met Stubbs, and asked him to complete th* purchase,,and Stubbs refused, stating he had "been had."

Evidence was then given by David Wilkinson, marine engineer, one of the partners in the vessel. Altogether, the vessel had coat them about £3BO. In regard to the insurance of the vessel, proposals had been. made for a £3OO to £4OO policy, but, owing to the high cost of the premium, nothing was done. In reply to Mr. Billing, he stated he had been out in the boat about a dozen times. He denied they had had frequent engine troubles. The repairs effected at New Plymouth on the vessel's arrival here were to make her more sea-worthy. Plaintiff, in evidence, said he had received a deposit of £SO on account of the sale of his share in the vessel, and had agreed to take a section valued at £IOO in payment of the balance. He had seen his name erased in the register at the Custom Office and that of Stubbs substituted in its place. Cross-examined by Mr. Billing, he denied that the hurry to effect the transfer was on his part. It was Stubbs who was in the hurry. When Stubbs was asked for the transfer of the section which had been agreed upon as part of the purchase price, he refused, saying it was not going to be transferred, and that he had something frem Captain Waller which would settle that. He said nothing about misrepresentation, or that he had "been had." Witness may have said in casual conversation that the vessel could earn about £4 a week taking out fishing parties on Sundays and holidays. He based what he said upon inquiries made by people of the men working about the wharf. He never told Stubbs that his share of the boat's earnings had been 18s 2d. He had told Stubbs that the boat was worth £450 and that she could be insured on the basis of that value.

During the cross-examination, defendant came into Court with an armful of what looked like driftwood.

"What do you say to this?" asked cross-examining counsel. "These are portions of the hull of the vessel; would yon say they were sound?"

Witness looked at the pieces and dug ,a knife into several of them, and declared they were not unsound. Some of them, he said, had not belonged to the hull of the vessel, whicli wes of kauri below the water-line, and those submitted were Oregon pine. In reply to the Judge, witness said the vessel had not been lying on the beach ever since the wreck.

In re-examination by Mr. Johnstone, witness said his portion of the earnings of the vessel were small because she had not been worked consistently. The agreement was put 'in, and Mr. Billing agreed to admit failure to execute th£*f&risfer. Mr. Johnstone, therefore, closeffhe plaintiff's case at this stage. Mj|Billing said the defence would bo an jPjjjjgatloh : of fraudulent misrepre:sen¥#on» r a«d "if the representations martfe did Hot amount to fraud then they amounted to a warranty as to the condition of the vessel and her earning capacity. Defendant counter-claimed for tht* sum of £l5O.

The Judge: You will have to prove that they were false to the knowledge of the pergon making them. Mr. Billing then proceeded to call evidence that prior to buying a share in the Norseman he had bought a share in another boat called, the "Rose." His partner worked the boat. As she was too big for two men to pull, they thought of going in for a launch. Home came to him and mentioned about his share in the Norseman, which was said to be suitable for fishing and eargo-carrying. He told witness that his average earnings 'with the vessel had been £4 per week, but he wanted to sell because he was seasick and' could not go out in her, and he had a, permanent job on shore. Her earnings would not warrant the employment "of a man, so lie had decided to sell. The age of the boat was stated to be ten or twelve years. He also sr.id she could easily be insured for £SOO, to which witness replied that it would pay to buy, Her at Home's price and wreck her. Witness went to have a look at the boat, but could not get down into the hold to have a good look on account of the lumber in her. Home told him the engine in her was a new one, capable df doing six knots, also that. there was a trawl with the vessel, about SO or 60 feet, and that the vessel was powerful enough to pull it. They afterwards tfent to look at the spare engine. Ho was told there were two sets of sails in the hold, but these were not examined. Witness made a condition that the vessel must be surveyed and passed by the machinery inspector Home seemed to agree to that, though the work was never done. He believed he told Home lie was favorably impressed with what had beßn told and what he had seen, but that" he would consider the proposition with his partner, Stanley. The same night they had another interview about it, and it was pointed out that the vessel would have be surveyed before Stanley, who was a, returned soldier, and cotild get an advance from the Patriotic Society in order to acquire a half share in her. Her cargo-carrying capacity was also discussed, and also her trawling powers. An agreement was arrived at to buy at £l5O, a. section, which Horaß offered to take at £IOO, being accepted as part payment. He was induced to enter into the agreement on account of the size of the boat, her cargo-carrying capacity, and her earning power as represented by Home. He was prepared to buy her on his own judgment and the appearance of her as he saw her.

To Mr. Johnstone: He had owned the Rose six or seven weeks at the time ho bought his share in the Norseman. Mr. Home did not tell him he had been negotiating for a £3OO insurance. He said it would be easy to get £SOO on it. Witness and Stanley slept on the ship the night they bought her, and Stanley stayed on her for some time after that. He denied asking Harrison anything about a heavy duty engine for the Norseman. He asked Wilkinson about an engine. He was told the engine in the boat was no good. He told Wilkinson

this, but he denied it. He told Wilkinson that before the vessel went to sea it would have to be properly engined. Mr. Johnstone asked why, when he discovered that the engmo was no good, he did not go straight to Home and repudiate the purchase, to which defendant replied that Home was away at the time. "How could I write to a man if I didn't know where he was?!' protested the witness.

Continuing, witness said that when the agreement was drawn up Home was supposed to produce his receipts to show that he was part owner of the vessel. Mr. Johnstone: When you went to your solicitor why didn't you ask him to include all the warranties you say were given in that agreement? Defendant: Well, if I engage yon to do my work, I ask, why didn't you do it? Mr. Johnstone: Is that your answer?— Yes.

Continuing, witness said that since he bought the Rose he had been frequently on the beach, and had seen the Norseman. She was frequently tied up at the wharf. Mr. Johnstone: Then how were you deluded into the belief that her earnings were £4 per week? Witness: Because Home told me. Continuing, witness said the section mentioned in the case he had bought for £6O from a friend who was hard up. There were some other expenses he had paid for his friend, and also the cost of grubbing the gorse on it. In regard to the wreck, he said the vessel had no business to have been lost. It waß criminal negligence that lost her. It was after the wreck that he discovered the vessel was unseaworffliy. He had no chance of discovering that beforehand. If the vessel had been got hold of at the time she could have been salvaged. Re-examined by Mr. Billing, with the Court's permission a question was asked as to the.disposal of the wreck, and witness said it was sold without his authority. In reply to the Bench as to whether that was admitted, Mr. Johnstone said that Wilkinson (the other partner) went to Stubbs and asked what .about selling the wreck, and Stubbs replied that he would have nothing to do with it. Wilkinson, therefore, decided himself to sell in order to avoid further loss,

John Henry Stanley, carpenter, gave, evidence as to the negotiations for the purchase of the Norseman, and stated that plaintiff said she could be insured for £SOO, and that, by selling his share for £l5O he would be losing £4O. He was present when the agreement was drawn up at Stubba' place, and knew that it was agreed to take a section in part payment. The first time they went to sea after the purchase they found she leaked badly. In regard to the trawling, he was quite sure that with the trawl out the boat would not do a quarter of a mile per hour, which would not give steering way. The inside timbers of the ship that he saw were waterlogged and many,of them in a perished state. When told that the boat was twelve years old, he laughed at the idea, and was certain that some of the timbers were considerably more than twenty years old. Bruce Douglas Stone said he went on board the Norseman on the occasion on which she was wrecked, at Mr. Wilkinson's request, to represent him, as he wa3 unable to go to take charge of th? engine. He considered the engine was unsuitable for a boat. It was certainly not strong enough to drag a trawl. On one occasion Home had asked witness if he knew of anyone who wanted to buy a boat, as she was of no use to him lying idle at the wharf. He said he had bought on Wilkinson's recopimendation, but that she had not turned out the "spec" that was anticipated. Ho seemed very anxious to dispose of her. John Molloy, laborer, who had some experience in timber during two years' work in a sawmill, deposed that when he saw the Norseman some of the timbers in her were very rotten. There was a variety of woods in the vessel ] . „__, IN DIVORCE. McEWAN v. McEWAN. Agnes McEwan (Mr. P. O'Dea) petitioned for the dissolution of her marriage with Henry Thomas McEwan, laborer, Palmerston North, on the grounds of drunkenness and persistent cruelty. Petitioner stated they were married at Palmerston North in 1003, and there was one son. Within two weeks of the marriage her husband came home drunk, and four or five months after he lost his work through drunkenness. They came to Wanganui, and her husband got work at the harbor, but he continued to drink. He would Come home drunk and sometimes walk the floor all night, keeping her from getting any sleep. He had threatened to cut her throat with a razor or sharp knife, which she had taken from him. He had also threatened to drown himself in the river. He once cut his own throat. He also threatened to strangle her on several occasions, and once caught her by the throat, and had threatened to shoot her. His father had committed suicide. Respondent had had prohibition; orders against him. She had tried to get him to leave off drinking, but he said he would drink till he died, and stop for no .one. When he came home drunk he would sometimes pick up the child and carry it into the bedroom. On one occasion he threw it down so violently that she thought he had killed it. While at Wanganui he had been expelled from the Cosmopolitan Club on account of his drunkenness and for making disturbances. His language to her was most disgusting. She had had no support from him, and had maintained herself by her own work from two years after the marriage. In some cases her husband had taken the last shilling out of the house and spent it in drink. He had also sold his tools for the same purpose. She had not lived with him for over two years. Her husband went into camp, and she saw him when he was on leave. He did not go away from New Zealand, but was discharged from camp. Evidence was also given by W. G. Powell, carpenter, Hawera, who boarded with the MeEvvans for three months at Wanganui, about two years ago. He said there were always disturbances, and respondent was very abusive to his wife. He had heard him threaten to strangle her. It seemed to be the custom on Saturday night for him to bring his friends home for a night's beer and,, whiskey drinking. He made things soljot that witness left the place. His Honor granted a decree nisi, to be made absolute in three months, with. £ls coats and disbursements. INJUNCTION UNDER DEED OF SEPARATION, _ln the case of Hartley v. Hartley, of Hurleyville, an application was made by the wife for an injunction against her husband, under a deed of separation, re~ straining him from breaches of the eovttiants contained in the deed to present him from interfering with his wife i'w-J" S P ratt appeared for plaintiff and Mr. P. O'Dea for defendant, Mr. Spratt stated the deed of separation, among other things, provjtotl that

the Wife should have the custody of the chihlren without interference of the husband. He was to have access to them on certain occasions.

Plaintiff depose dthat the deed of separation was signed on January 29 last. About a week later defendant came to her house and asked to be allowed to see the children. He was penitent and much broken up at having to leave his home and children. Witness was sorry for him, and said he could come and see the children if he would be peaceable. Reference was then made to a certain Sunday in April. Defendant had come to the house on the Thursday previously and said he would stay to see his wife through her confinement, She told him she did not want him to stay, and that if he did she would give him no food. He said he would take it himself, and he clui. He slept in a spare room. On the Sunday night they had retired early, and defendant came to her room, and, finding the door locked, said: "I thought so." Ha then went round to the window and commenced to talk to witness, but she made no reply, whereupon he got in through the window and said something about making her talk. He then took the key from the door so that witness could not get out. There was another door from the room into a room in which her daughter and a niece were sleeping. She got out of bed to go into that room, and he caught hold of her and stopped her. She then snatched up, some of her clothes, and jumped out of the window and went and locked herself in the wash-house and waited till the return home pf hit Bon. He came a few minutes later, and they went into the house together. They found her room door open, but the key was not to be found, and while they were trying to find a key defendant came out of the spare room and abused the son for interfering between him and his wife. She arranged for the son to sleep in her room and she went into the adjoining room with the girls. Her husband stayed until about a fortnight after the confinement. He camo back again, however, on one occasion, and there was trouble between him and the son, whom the father wanted to fight. A struggle took place, in the course of which defondant hit the son in the ribs. He also picked up a chair and struck him with it. Witness tried to stop the blow, and defendant picked up the things on the tea table and threw them at the boy, striking him several times.

The Judge: Does the husband want to go to the house and do these things? Mr., O'Dea: No, your Honor. He has not been near the place since May, except on the one occasion.

The Judge: Then why should not the injunction- be made?

Mr. ODea said his client's statement was that he had been invited to the house on the occasion in question, and that his luggage had been carted there by plaintiff He also stated that he haS offered his wife.£loo to go into A boarding house, and she had actually cone to inspect the place, but nothing came

The Judge pointed out that it was unh «v e t for the fami 'y that the ease should be heard publicly, and it would be much better that an order should be accepted.

After consultation with counsel, attendant agreed to accept the order His Honor said he would make the orderrbut the writ should not issue front the office Without application to a JuuC and so long as defendant kept the terms of the deed no application inthat reXct would bo necessary. The order was S w.thout prejudice to defendant's rfchta TZu\ de l\! U Jud S e ~kingT t It would be better that defendant should not see hm wife or the eldest son When vijiting the other children. Fifteen guineas cost, and disbursements we« allowed agamst defendant, to be mm mo l ig° UrtthenadjOUrned tiU^6this