THE COURTS.

Press, Volume LIII, Issue 16043, 27 October 1917, Page 6

THE COURTS.

SUPREME COURT

CIVIL SITTINGS.

(Before his Honour Mr Justice Sim

The civil sittings of the Supreme Court were resumed yesterday morning.

alleged partnership in a FARM.

In James Crocombe (Mr Johnston) v. Henare \\ akatu L'ru (.Mr Ravmond, K.C., with. him Mr Sargent) an application was. made for accounts in connexion with an alleged partnership between the -parties in respect of a dairy tarm of 140 acres at 1 tiahhvi.

On the 13th inst. evidence was p;ivcn bv George Bevington Rowe, the previous owner of we farm, who stated that the arrangement between the parties was that plaintiff was to do milking on shares —the parties to go half shares in milk, calves and pigs proj duced on the farm. j Mr Johnston outlined the case for the plaintiff, and said that both parties wero Maoris, but of different types —plaintiff being of the easy-going typo, while defendant was a native advocate experienced in legal matters. On or about December loth, 15)15, a partnership was entered into between the parties in connexion with Jlowc's farm at Tuahiwi. Tho statement that' the arrangement was to miik on shares was, in the circumstances., absurd, as plaintiff and his wife stood to make less than it they were a married couple employed for wages. If it had beeu a miiking shares agreement piaintitf would not have agreed to some of the farm being put in crop, but would have run more cows. Statements made by defendant to the person to whom he subsequently disposed of the farm supported the contention that IJru considered that .1 partnership existed between him and Crocombe.

Evidence supporting counsel's opening was gben. " . Mr Raymond, opening for the defence, said that the. defendant denied tho alleged general partnership, and evidence would be Jed in support of an arrangement limited .to a milking agreement. The arrangement alleged by plaintiff was outrageously improbable.•' The customary basis of milking agreements was that the milker got 33 per cent., tho owner taking th.o remainder; the arrangement between tho parties in this case was that eaeh took half; it was, therefore, fair to infer that in making that arrangement defendant took into consideration that plaintiff would have some other work to do besides milking. Uru bought the lease of the farm fox* £600; with. some other purchases the price totalled about £700. Plaintiff did not enquire into the details of the purchase, but claimed to bo entitled not only to one-half of the milking profits but also to one-half of the profits of the produce, including the crops growing on the farm when taken over. There was no fixed term of the alleged partnership, and one of the results would be that as soon as plaintiff found that there was an increase in the value of stock he could havo terminated the contract and had tho stock sold and participated in the profit. Uru had to pay £230 in rent per annum, and £13 in rates. The arrangement alleged by plaintiff was 60 extremely improbable that the Court would require to be satisfied by extremely clear evidence. The whole of the <vrrespondence between the parties was consistent with the claim that plaintiff acted as manager. Counsel submitted that plaintiff's was not a bona fide claim. Urn ultimately sold the lease for £700, and came out. of the transaction with a loss of something over £200. Defendant and other witnesses gave evidence substantiating ■ counsel's statements.

His Honour said the question to le determined was whether there-was a general partnership between the - parties, or whether, as alleged by'defendant, the arrangement was simply that plaintiff should milk the' cows and receive half the gross proceeds realised by the-sale of the milk and Iv the sale of calves and pigs. From the plaintiff's evidence it appeared that-lie considered that he wan- to receive a half share in- the farming business with the exception of the lease itself; but he made no contribution to the assets of the partnership; these cost the defendant £745, and there was, in addition, a liability of £163 in connexion with the lease. Apparently the defendant was to be out of pocket £745 and interest thereon, and was to pay rent and rates <»ut of his half-share of the profits. Taking the plaintiff's statement of the _ ar- | rangeinent, his Honour Was of opinion I that it was impossible to think that-

any sane person would enter into such an'agreement; the plaintiff's story was so impossible that the inference was that no such arrangement was entered into. Furthermore, plaintiff s actions were inconsistent with such an arrangement. His Honour briefly reviewed plaintiff's evidence, and said that the conclusion he had come to was that the arrangement was as alleged by ' defendant. His Honour ordered a decree declaring that the agreement between the parties was as stated in the statement of defence, and that accounts be taken between the parties on that basis, and to include the claims made by defendant in his counter-claim. The defendant was entitled to costs. IN CHAMBERS. Probates were granted in the estates of Margaret Emma Simpson, deceased, and Duncan McFarlane, deceased. MAGISTERIAL. (Before Mr T. A. B. Bailey. S.M.) DRUNKENNESS AND OBSCENE LANGUAGE. John Pomerenke was convicted and discharged on a charge of being found drunk, and sentenced to one month s imprisonment, for using obscene language. UNLAWFULLY WEARING UNIFORM.

James Tyler appeared in uniform to answer a charge of unlawfully wearing a uniform of his Majesty's military forces, and with being found drunk.

He pleaded that he had committed.the first-mentioned offence in ignorance, thinking that as he had served at the front lie was entitled to wear the uniform. He was convicted and discharged on-the charge of drunkenness, and fined -Ms. in default 14 days' imprisonment. on the other. THEFT. George William Hudson appeared on a cjiarge of stealing a diamond stud, valued at £7. the property of Harry Balkin. Accused, who admitted the offence, was ordered to come up for sentence when called upon at any time -within six months after the expiration of a term of imprisonment he is now serving for a breach of the Military Service Act, 011 the understanding that he would refund the money. Alice Maud Hooper was .-charged with stealing £9 2s 6d. the property of Charles Leonard Ensor, of Hoon Hay road. She was admitted to probation for six months, the Magistrate saving he expected her to refund tho moncv. BY-LAW BREACHES. For cycling on footpaths. Henry Beswick. Joseph Finnerty. Ambrose Duffy. Edward Oldridgc, and Walter Lowry were each fined 7s and costs. Leicester Mardon was fined ICs and costs for cycling by night without a light. HEALTH ACT. The Health Officer proceeded against Jane Fraser. over SO years of age, for living in a' house, unfit for human occupation. Defendant was fined 40s, in default one month's imprisonment, on the understanding that if she went into a home the warrant would be suspended. FAILING TO GRUB GORSI2. In the adjourned ease, George Maginnes (Mr Rowe) v. A. C. Langdale Hunt (Mr Acland), in which defendant was charged with failing to cut gorse, a fine of Is, with costs (amounting in all to 38s), was inflicted. INSULTING LANGUAGE. Richard Carney (Mr Thomas), charged- with using insulting language, whereby a breach of the peace might have been occasioned, was fined 20s. DEFENCE CASES. For failing to attend drill, the following were fined 10s and costs 7s: — Arthur James Woodward, Gordon Fenwick Pimm, Wm, Petherham, Arthur Joseph Nowsome", John Muir, and Lewis Robert Halliburton. Charles Brownie was fined' 20s and costs for. a similar offence. TEMUKA. (Before Messrs J. Blyth and H. E. Gapoer. J.P.'s.) Charged with driving at a n excessive sped over the intersection of King street and. High street, W. F. Wand, J. Chisholm. A. C. Brown; L. Dewar, 0. Slocunv, J. Reid. ' J. Nolan, J. Holden, F. Baker, W. Moody, and S. McC-ully were each fined 203 and costs. . . COURT OF APPEAL. JUDGMENTS' DELIVERED. (I'RIiSS ASSOCIATION' TELKGKAM.) WELLINGTON, October 2u. In the case of It. Alatson and Co. v. Fisher antl another; the -Court.of Appeal dismissed the appeal, with costs on the middle scale. J.'he Court held tJiat tho rerusal of the arbitrator to uMow interest was not.misconduct, even in its -most ■ tecnnical sense, 011 tne part of tlio ...arbitrator, ana., further, that no deiinite request- made to the arbitrator to -state, a case lor the Supreme Court 011 this point, and that h IB omission to do so could not be held, as misconduct..

in Ann Lockwood v. the Auckland Tramways Company's appeal, the Court ordered that judgment be entered for the company, the question of costs being Preserved for the/Supreme Court ,at Auckland. The Court held that plaintiff had wholly failed tp prove negligence, as no act' or omission on the part either of the lndtornian, or the defendant company, had been pointed tb, which could be relied on as having that, effect.' TJio Full Court delivered judgment in Skipper v. Dimming, an appeal against'tho conviction of appellant by tho Magistrate at llotorua, under the War Regulations, for - publishing a statement likely to intciTere with recruiting. • The Court held the -words used by appellant were a violation ef the regulations, and' dismissed the appeal, with £10. costs, witnesses' expenses, and disbursements. Tho. Court also decidcd that the- Supreme' Court has no power to vary or amend any sentence-imposed by a magistrate, and that it could only affirm or quash a conviction.