THE COURTS.

Press, Volume LXI, Issue 18487, 15 September 1925, Page 6

THE COURTS.

SUPREME COURT. (Beiore his Honour Mr Justice Kesd.) MONDAY. CLERK'S THEFTS. . rn 'he Supreme Court_yestcrday. when sentencing Jlervyn Bank:, aged 35, who pleaded guiltv°in tie lower Court to itcaling the -urn "of £l-5. the funds of the Canterbury \gr ; cu!turai College, his Honour Mr Justice Rood said: "I have to inflict a term of imprisonment as a warning to others.'' ?>lr C. P. Thomas, who appeared for the prisoner,' said that hitherto prisoner had borne an excelloni record. Ho had been married for 12 years, and had been engaged in work for agricultural and pastoral associations, and other societies. Right up to a month ago nothing was known against him. His wqrk was excellent, and his books -were up-to-date. Then his health broke down and he start?*! drinking. His Honour: Was it cot observed that he was drinking to excess? —They say it •was not. IT» 0> a man who (locs not show the signs of liquor. His Honour continued that it had occurred to him in dealing with cases of breaches of trupt, th3t possibly some system could be evolved at least in-Jjie Government service, that when a man vc*s seen going in for excessive drinking and gambling, he should be reported upon, the books examined, and a warning given. It seemed that nothing vis *vor done until the defalcations were found out. Unfortunately in these cases they had to make an example as a warning to others. Mr Thomas drew attention to the fact that Banks had been a good citizen for fourteen years.

His Honour: It is always a very hard thing for a Judge to have to deal with a case like yours, where yon have led a respectable "life and suddenly taken to stealing and dishonesty, but my dnty is clear. I propose to take into consideration the fact that you rpparently have not falsified the books. I cannot overlook the fact that since October you have been deliberately stealing. The sentence of the Court is that you be detained lor reformative purposes for a period not exceeding twelve months.

INDECENT ASSAULT. William Carlyle Graham, an elderly man, appeared for sentence on a charge of indecent assault.

The case had been adjourned in order to permit enquiries as to whether a place in an institution could be found for Graham. Mr C. S. Thomas said that he' had received an assurance that the Salvation Army would take the prisoner. His. Honour, in addressing the prisoner, said that his caso was really one for pity rather than anything else. At the game time young lads had to be protected. On his own admission, prisoner could not control himself. He would be ordered to come up for sentence at any timo within two years, the conditions being that ho enter the Salvation Army Home and act in accordance with instructions there. Prisoner was ordered to pay the costs of tho prosecution, £6 4s,

CONVICTION QUASHED. Reserved judgment was given in an appeal by Patrick J. O'Donnell against John Francis Downey, -with a view to quashing two convictions" by the Warden at Westport. The appellant was convicted and. fined for two breaches of tho Mining Act. Mr A. T. Donnelly appeared for the Warden, and Mr B. Twyneham represented O'Donnell. , , . Ilia Honour found that tho Warden had power to imprison without the option of a fine, but should have warned tho occused of hia statutory right to trial by Jury. This warning was not given, and the Warden therefore had no right to inflict a penalty. Tho convictions wcro quashed. WHOSE ASSETS! Reserved judgment was given yesterday in the case heard on Friday . last in which Mr A. \V. Wattcrs, Official Liquidator for Buick Sales, Ltd. (now in liquidation) made application for an order allowing him liberty to exercise, without the sanction of the Court, powers defined in sub-sections (a), <c). id), and (i) of section 195 of the Companies Act, which provide for a liquidator s power to- take proceedings on behalf ot a company in liquidation, sell the company s property, and take all steps necessary tor winding up the company's affairs and disposal of the assets. The liquidator, after going into the company's affairs, decided to take legal proceedings ior the protection and recovery of the company's property, on being indemnified against all costs and expenses, and he suggested that he should be indemnified out of the company's assets. He asked for liberty to take, tho proceedings without obtaining indemnity from the , creditors in tho event of the assets proving insufficient to meet the costs. ■ . Mr A. T. Donnelly appeared in support ot the liquidator's application, and Mr M. Myers, with him Mr M. J. Gresson, opposed it on behalf of Charles James Jones, a director ol the company. , , The question was an involved one, which had arisen in New Zealand for the first time. It was argued that the liquidator could not proceed unless with the consent of the Blackwell's Motors, Ltd., and until the purchase of the business by that company from the receiverjoad been set aside. In giving hia judgment, his Honour overruled this contention. X>? DIVORCE.

A large number of undefended divorce cases were dealt with. . Henry Arthur Ellery (Mr W. J. Hunter) v. Mary Jane EUory, on grounds of adultery Richard Lawrence being named as corespondent. A decree nisi, was granted, to be made absolute in three months.^ George Montgomery Hernck (Mr W. J. Hunter) v. Maude Herrick (Mr V. Amodeo), on the grounds of mutual. separation. A decree nisi was granted, to be made absolute in three months, respondent to nave interim custody of the two children. Margaret H. Ker (Mr T. W. Rows) v. James Baxter Ker, on grounds of separation. A decree nisi was granted, to be made absolute in three months, petitioner to havo custody of the child. „.._.. , .. Elisabeth Silvcy (Mr K. H. Livingstone) v. William John Silvey, on .grounds of desertion. A decree nisi was granted, to be mado absolute in three months. Thomas Matthews (Mr Y. D. Sargent) v. Mabel Evelyn Matthews, on grounds of adultery,- naming Percy Miller as co-respon-dent A decree nisi was granted, to te mado absolute in three months. _ Elsie Cooke (Mr P. Amodeo) v. Thomas Edgar Cooke, on grounds of drunkenness and failure to maintain. A decree nisi was granted, to be .made absolute m three months, petitioner to havo interrn custody of tho children. , Eustace Barnard (Mr J. R. Cunningham) v. Elizabeth Barnard, on grounds of desertion. A decree nisi was granted, to be mado absolute in three months, petitioner to have interim custody of the children. Joseph 'Baretta (Mr A. A. MeLachlan) v. Agnes Mary Baretta. on grounds of mutual separation. A decree nisi was granted, to be made absolute in three months, petitioner to have • interim custody of the children. Evelvn Agnes Heffler (Mr E. White) v. Arthur- Alexander Heftier, on the grounds of separation. A decree nisi was granted, to be made absolute in three months, petitioner to have interim custody of the children. Marguerite May Swan (Mr 0. 6. Thomas) v. James Swan. A decree nisi was granted, to be made absolute in three months, petitioner to have custody of the child. Marion Newton (Mr S. E. McCarthy) v. William Bcrtio Newton, on grounds' of separation and desertion. A decree nisi was granted, to be made absolute in three months, petitioner to have custody of the child.

Robert McFarlane (Mr F. D. Sarg«nt) v. Alice Margareta McFarlane (Mr J. R. Cunningham), mutual agreement, and on the ground that the husband claimed a divorce. A decree nisi was eranted, to Is made absolute in three months.

When Sydney Cox applied for a divorce from Emma Lucy Cox (Mr A. H. Cavell), the application was refused. Yesterday the wife asked for a divorce" on the grourids of desertion. His Honour decided that the case should be heard before Mr Justice Adams, and directed accordingly. . Renald James McKenzie (Mr F. D. Sargent) v. Alice Gwendoline Rhona McKenzie, naming Leslie Greener as corespondent'. A decree nisi wa3 granted, to be made absolute in three months. Frederica Jean Elizabeth Stanton (Mr J. R. Cunnnigham) v. Frank Nelson Stanton, on the grounds of adultery. A decreo nisi was granted, to be made absolute in threo months.

Samaol Casuo (Mr F. D. Sargent) v. I Hilda Clara Cague, naming 3 man named [ Harvey as co-respondent. The case was adjourned for tho production of farther eridenee. * George Thomas Hennessy (Mr "R. A. Cuth- ! Bert) v. Elaine Hennessy (Mr W. J. Sim), on grounds of separation. The case was adjourned to allow counsel to submit written argument on a point raised by his Honour, who asked if the Court had jurisdiction. The parties married in India and separated in 1921 when in England. Petitioner later came to New Zealand. His Honour was not Bure if the Court could grant a divorce, but ho did not doubt that petitioner had made a permanent home in New Zealand. Louis Arthur Lake (Mr ■ W. R. Lascelles) applied for restitution x>l conjugal rights by Jemima Amelia Laie. An order was made for the restitution of conjugal rights within fourteen days. RETRIAL REFUSED. An application for a new trial in & divorce case, McConnell v. McConnell, was heard. Last week a jury • heard the petition of Sydney Charles McConneli for a dissolution of his marriage with Rosette Olive McConnell on the .grounds of misconduct with John Thomas Chambers and'found" for respondent. J£r F. D. Sargent appeared in support of the application for a new trial, and Mr Cottrell and Mr C. V. Qnigley opposed it. During the course of his submissions Mr Sargent remarked -on the conduct of the respondent and said that she broke down towardi the end of her cross-examination and had to be. assisted from the Court. His Honour: If we gTant new trials eTery time there is' a little" hit of theatrical disjoins we would always bo gran tine them,

I Toi car. go back to Eirdeli and Pick-wick j for that.

Mr Sargent submitted that the evidence of Mr Hardie was almost conclusive that adultery had been committed. His 'Honour said that his view of the rase at the lime of hearing did not affect '.lie position. What he had to do .was to consider whether the jury could not reasonably have -Vomer to the conclusion they came to." They had the evidence of respondent aitd co-respondent denying any familiarity, and against that they h.iu cc;\j.u a-.; \■ i.-_n thev were invited to draw an inference from. He did not think that in the circumstances any judge would hold that the jury had acted perversely. "There is no harm in my saying that I don't take tha same view as the jury, bat I don't think that is any reason for a new trial," his Honour concluded. "THE LOCAL AUTHORITY." NOT THE DRAINAGE BOARD. On Thursday last the Christchurch Drainage Board raised the question of the meaning of tho word "the local authority" in Sub-Section 2 of Section 116 of the Public Works Act, as amended by Section 13 oi the Amending Act of 1910, and Section 13 (a) of the Amending Act of 1911. The action followed upon a refusal by the District Land Registrar to treat the Board as a "local authority" on the ground that Section 116 had no application to the Board. The Registrar informed the Board's solicitor that ho intended to register documents affecting certain land in the drainage district without considering whether the Board was satisfied with proposed roads or with the provision for drains in those roads. Tha Court was also asked to determine if tho Registrar was bound to refuse to register any document until he was satisfied that the owner of the land had obtained the Board's approval of roads and rains on the land. Mr R. A. Cuthbert appeared for tho Board, and Mr*A. T. Donnelly for the Registrar. The Section upon which the dispute turned was,,-as follows: —"The owner shall submit to the local authority for its approval a plan showing tho position, course, levels, grades, and exteat of the proposed ro3d or street, and on such approval being obtained shall form the or street so dedicated to the satisfaction of the local authority, and shall, if so required by the local authority, metal the road or street or any required portion thereof, and provide and lavnecessary pipes for water supply and drains to the satisfaction of the local authority, and shall also construct in connexion therewith such drains and footpaths as may be agreed upon between the owner and the local authority." In giving his reserved .tudgment his Honour said that the proceeding was byoriginating summons for the determination of the following questions:— (1) What w-as the meaning of the phrase "the local authority" in Suh'-section 2 of Section 116 of the Public Works Act, 1908, as amended by Section 13 of the Public Works Amendment Act, 1910, and Section 13 (a) of the Public Works Amendment Act, 1911, and was the Christchurch Drainage Board "the local authority" within the meaning of that sub-section or part of that sub-section in the circumstances set out in the affidavits filed in support thereof.' (2) Was the District Land Registrar or tho Registrar of Deeds bound under the provisions of the said Section 11C, Sub-sec-tion 4, of the said Public. Works Act, 1908, [ to Tefuse to register an instrument affecting ' the land within the Christchurch Drainage ■ Board's district, and being an instrument ' referred to iu that Sub-section unless and until he was satisfied that the owner had 1 submitted to the said Christchurch Drainage Board for its approval the plan referred to 1 in the said Section 116, Sub-section 2 of the said Act, and obtained such approval Bnd had formed any road or street referred to in the said. Section 11G, Sub-section 2, to the satisfaction of the said Board and had provided and laid necessary drains to tha satisfaction of tho said Christchurch Drainage Board. .

His Honour said that the section read: "Shall submit to 'the' local authority for its approval a plan, etc.," and so throughout the sub-section; in no place was the expression "a local authority" used, and that remark applied to the sub-section as originally framed as well as to tho amendments. By the uso of the definite article the intention of the Legislature to confine the right of prescribing the conditions, which had to be complied with by the owner before dedication to a particular class of local authority, was, he thought, strongly evidenced. That more than one local authority should have a voice in the matter was not contemplated. The sub-section, before amendment, had a reference to drains in the words, "Shall construct in connexion (with the road) such drains and footpaths as may be agreed upon between the owner and the local authority." It was impossible to imagine that the Legislature contemplated that some body other than the local authority having the care and control of the road would necessarily have to be consulted with regard to any arrangement with the owner as to what footpaths and drains he should make.

Taking tho section as it Btood the intention of the Legislature was clearly to vest the jurisdiction solely in the hands of the local body having control of the streets or roads. The first question must bo answered in the negative.

With regard to tho second question, for the reasons already stated, the local authority, of whose approval tho Registrar required to be satisfied, was the one having control of the roads. He need not consult any other body. The question must therefore bo answered in the negative.

MAGISTERIAL. MONDAY. (Before Mr H. Y. Widdowson, S.M.) N DRUNKENNESS. Four men, who had been bailed out of the lock-up on drunkenness charges in tho sum of 20s, were each convicted and fined that amount, in default 24 hours' imprisonment. A single woman, similarly charged, was convicted and discharged, and a man, who appeared in Court, was convicted and fined 10b, in default 24 hours' imprisonment. REMANDED. A remand till September 23rd was granted in the case in which a youth, Cyril L. W. "Withell, waa charged with being idlo and disorderly, in that he had no means of support. In asking his Worship to remand the accused, Detective-Sergeant D. Connolly, for the police, said that Withell had been obtaining goods from a largo number of firms in the City and the police wished to be able to make enquiries into the matter. Probably, tho police would not proceed with tho present charge when the case came on for hearing, as other charges were pending. WEEK-END BRAWL. "Guilty to everything," pleaded Henry Smith, a young iron-worker, ol Chriatchurch, when charged with drunkenness; with assaulting Walter Smith, of Bath street, by striking him with his fist; .with damaging Smith's overcoat; with using obscene language in Durham street and lastly with resisting Constable J. McCormack when ho endeavoured to arrest the defendant. Prosecuting for tho police, Sub-Inspector J H. Mathew said all five offences were the result of drink. On Saturday afternoon ho explained, tho accused went to the house of Walter Smith, in Bath street, and when later Walter Smith arrived home Henry Smith struck him and tore his over'eoat. The complainant called for help, a. •policeman arrived on Use scene and accused £as arrested after a struggle. The two men wero not related, he said, but they had been friends. , . ~ „ "I don't remember anything aDout it said Smith from the dock, 'I w» dead (hi'tho drunkenness count Smith_ was convicted-and fined 10s, in *ef»uH24 hours imprisonment; for obww We, oonvkied and fined £2, in default 14 days imprisonment; for assault, ""* fined £5. in default one ment: for damaging the overcori. 30s, in default 7 days' imprisonment; and for re sisting arrest, 40s, »*£»,£ *S %. pnaonment Hu *£!£ and ho ordered tences would be cumulative ani te o£ Smith to pay the fines off at the rato or £2 a woek. „„ T it-fcc CIVIL BUSINESS. Tudemenl by default ws» giro* * or Judgment loilowing cases: plaintiff in «"* £", e co-op. Association *ow. Zealand i annex* H^ P McE wan, £ll - «; v. Agnes Manning £1- * - £ _ w> Co., Ltd. v H , Ingram, England and Sons ;• / rcderi K. £2B l€s.2d: UJ. T . Arthur Gilroy, £i 76 6a: Greig, Peiham, £1 Ssji, «» • Ltd _ v> Nor . £2 4s; John Bums njan B . F. D. Kestevcn Ltd. v. H. Kay iW 1 & «■ v. . CaroUno Mason J« f Co. v. H. Ermine, costs oni. v . W. O'Callaghan £2 to Struthers and Co.,_L.£ McDongaU, £s sd; saroo Maoe l Andrews, 13s 10d; F. P. HoW £1 15a 3d; f Canterbury Employees' Hf.ftoa^^Uni .n Vera. Bishop. c Lt d., Ltd. SSlna Sons, Ltd. £ll 19s f • r. A. Noble, v. C J» i l 3 ~ G r. Sievors, £33 £ll 10s €d; <*f a J orn e T . John G. Bur--126 D. S and S T. .

of £2 15s 6d to Pierce Bros., in default three days' imprisonment. F. McKeon was ordered to pay Ashby, Bergh and Co., Ltd., the sum of £1 8s 4d, in default 7 days' imprisonment. W. Ken? was ordered to pay the sum of £3 19s to W. H. Simyns and Sons, Ltd., in default 4 days' imprisonment. A COLLISION. A New Brighton carrier, A. J. Beaven , (Mr W F. Tracy), claimed from Horace Randall, carter, Linwood (Mr W. J. Hunter), j the sum of £lB 13a 6d, said to bo damages suffered as tho result of a collision between Beavan'a cart and Kandall'B motor-car in J;;no last . __ ~ ' After hearing the evidence his worship held that as far .as Randall was concerned it was an accident, and gave judgment for him with costs. • RESERVED JUDGMENT. Reserved judgment was given in the adjourned case iri which Miss Isobel W. Best, St. Alßans (Mr J. H. Upbam), claimed from Alfred William Lawrence, farmer, Amberley (Mr C S Thorn**), and Leonard George Checkley, salesman, St. Albans (Mr W. R. Welles, tho sum of £72 te « "lleged to be the amount of damages sustained by Best's car M » result of a collision,with fhe defendant's car at ts"t ttnet and Papanui road in April last. His Worship s»»e judgment tor tne defendants, -ffitb. coats. IN OTHER PLACES. WATERFRONT THEFTS. . (FXE3S ASSOCXITIOV TEIXGBAIO AUCKLAND, September 14. At the Magistrate's Court Henry Newell, aed 40 Harry Bette 27, Amos George Tay- | lor 27 who pleaded guilty to stealinga quantity of, serge stocks, etc from various vessels, were sentenced to six month*, and tho two others each to two ZM imprisonment. Thomas I-"****. fTtho theft of serge, the Shwr, Swill and Albion Co., was fined £lO, there bting no conspiracy in this case. WELLINGTON OFFENDERS. (PBXSS ABSOCTA.TIOH TZLIGBAM.) WELLINGTON, September 14. In tho Supreme Court to-day, W» Honwrt Mr Justice MacGregor «»tenced tho f<*toeing prisoners, who W P^f 3 : <k»Umr Court: Marcus Stapleton Alfred te attempted rap*, to reformaUvo detention for two years; William Henry Gibbons, to 18 months' imprisonment for Fincham, aged 60 for higamy -was sentenced to imprisonment till the nsintr of the Court, and to pay costs of the Prosecution. Th* case was qmto an unusual one and there -were circumstances wnicn inclined the judge to leniency. Counsel for prisons* said tho latter had nleaded frailty, ajid had then sought to withIrlw Thfplea. Ho asked the judge to take tho course taken by his Honour; MrJnstico Hceking in 1919, who had 'held that the Court could not set aside or quash a pie*.?* sruiltT because the depositions did not justify lis offence charged. He asked, the judge to convict the' prisoner, but to set him freo at tho rising of the Court. His Honour said the legal position was clear Taking the man's mild infirmity and the fact that ha had been in gaol for some weeks, he would order hia imprisonment till tho rising of the Court.