THE COURTS.

Press, Volume LXIII, Issue 18927, 16 February 1927, Page 7

THE COURTS.

SUPREME COURT. (Before bia Honour Mr Justice Adams.) A WILL .CASE. Application was made by Mrs Lily Elizabeth Newman, under the Family Protection Act, for provision out of the estate of her first husband, Jom Gracia, fanner, Waikerikikeii, Alcaroa County, who died on November 29th, 1915. Tba claimant alleged that Gracia died without making adequate provision for her proper maintenance and support. Peter Newman, her present husband, was * labourer earning about £3 a week. John Itobert Newton and Arthur Meredith Moore, farmers, of Akaroa, who are the executors and trustees under the will, were the defendants. Mr W. J. Sim, instructed by Messrs O'Dca and Bayley, Hawera, appeared for Mrs Newman, Mr P. J. Amodeo for tho trustees, and Mr Nicholls for the testator's sons, and for the assignee under an order.for representation. During the twenty-three years of her married life with her first husband, Mrs Newman set out, she had working" men to cook for on his farm, and had no help in tho house. While she-remained'a widow she received from'her late husband's estate the sum of. 425 in .'pocket money. The estate kept hor in clothing: during that period, and she kept house for, and looked after, the children. After aha married again she kept three of the children by her first marriage, receiving an allowance for their maintenance. Her present husband could do only casual work. She owned a> four-roomed cottage, in which she lived, valued at £250. .That, in addition to furniture, was all she possessed. She had been informed that her late husband's estate had been valued - for death duty ait £13,558. Her eldest daughter had obtained an order under the Act-for £SOO out of the estate, is addition to a legacy of £SOO under the will. Since her second marriage.she had not received anything from her first husband's estate, and, by the will, would not. do so. There wore seven children by her first marriage, and all received legacies under the will. There were no children by her second marriage. Mr Sim said that under tho will Mrs Newman was given an income at the discretion of the trustees as long.as she remained a widow. - She was well provided for at the time. Bho now applied for an extension of time in which to make the application. Delay in making the application was caused by her impression that ehe had no rights under the Act after her second marriage. A testator could not assume that if his widow married again her cecond husband would adequately provido for her. His Honour said that he would like the case to be heard V a Bench of Judges, preferably three. Important issues were involved. Mr Sim laid there was sn analogous posttion crested by the Family Protection Act. Mr Amodeo said that ho was quito willing that the matters in .dispute should bo argued before a full Bench of Judges. Mr Sim said the cost of taking the case before tho Full Court was little more than taking it before the present Court. His Honour directed that the argument be taken before the Full Court. It was evident, he said, that if the decision was erroneous in one particular irreparable damage might be done the plaintiff. The probability was that the decision of tho Full Court would be acceptable to all parties. SUSPENSION OR DISMISSAL? An appeal was made on fact and law against a judgment given in the Magistrate's Court sgainst the N.Z. Termers Co-op. Association of Canterbury, Ltd., in favour of John G. Ball, for /96 5s 9d. This decision was given by Mr H. A. Young, S.M. Mr H. C. D. van Asch appeared for appellants and Mr M. J. Gresson for respondent. Counsel for appellant company said that the appeal was against the decision of the Stipendiary Magistrate, > who gave judgment for J. G. Ball, auctioneer, against the company for £125 for two months' salary, lew «8 14s 8d paid into Court for wages from November Ist to November 12th, 1926. Ball, who was head auctioneer, was employed at *750 per year. On October 21st, 1926, he was given • an opportunity • to resign for reasons not material to the action. Bb °»*" quently he did resign, to take effect on December 31st. 1926. About this time it was ascertained by. Mr W. Macbin, general manager, that Ball owed the- company 49S for

goods supplied. He made arrangements for credit for ibis amount for six monhts. Counsel detailed other arrangements mado regarding credit. The respondent apparently became annoyed at his treatment, although tho company-had been justified in its action,, which was quite an ordinary business act, unless special arrangements were, made for credit. With a company employing 500 hands, like the Farmers' Co-op. Association, the terms should be strictly cash to its employees. No action could be brought' under the Truck Act for goods supplied out .of the store of the employer, except in the case of certain specified articles. On tho first day of the Agricultural Show the respondent made prejudicial remarks about Machin and the company. Mr van Asch read the evidence of Cunningham and Shipley regarding these statements. He said that Machin had rung up the respondent nn the following day, and had offered him Sj2 in cash and a post-dated cheque, on condition that Ball ceased his statements. In his cvidenco before tho lower Court -tfachin had said -that ht was not going to pay a man to go about traducing the company. Upon tho evidence the Magistrate had held that the respondent waa not dismissed but suspended,' and that hj» was not satisfied of the power of the general manager to dismiss respondent; and there was no evidence of the directors having decided oh dismissal. The issuer before the lower Court was whether tho manager was . justified in summarily dismissing respondent. He relied partly on respondent's admission' in a. letter he had written because of his dismissal that he had'' been dismissed. - Respondent's conduct 'subsequently had iprovcd' that he considered such to bo the case. If he was suspended and doing work, yet getting no "ages, why.complain? As a, matter of fact, he did complain. When the manager had said, "Don't come back to the office again" that was dismissal. He was still in tho employment of the company on November 11th snd 12th, but a s a result of his conduct tho company dismissed him. It could have called on his service* np to December pist. The directors had approved of Ball's summary dismissal. This had not been questioned. Even for a single act of insubordination the company was entitled to dismiss Ball, provided the act was of such a nature as to justify dismissal. His Honour: That means that you are entitled if you arc entitled. Mr van Asch said there had not been an isolated act. Ball's.conduct had Veen angry and defiant on November 11th. -Ho had said ho waa no .lonnw in. the companyV emplcyment and could say what he liked. That statement was. also an admission of dismissal. If ever there was a concern wrapped np with the farmers it was'tho Association, and if ever there was a time for an employee to be loyal to tho Association it was on a Show Day. Instead .of working in the interests of the company he did entirely tho 'opposite. It was a most extraordinary way of complaining, about the management of the concern. The conduct of the respondent was much worse than in a caso counsel had referred to, in which judgment had been against the • employee. The respondent had remained defiant right up to the hearing of the case in the Magistrate's Court in December. He hsd said, "I have not gone back to apologise, and do not intend to." Judgment should either bo for the defendant, or plaintiff should, ba nonsuited. Mr Gresson said the questions were: Was Ball suspended or dismissed,-or, if dismissed, was dismissal justifiable? The question of'suspension or dismissal was an inference to be drawn from the facts. A. contract had been made whereby Ball had resigned. Counsel read Machin's evidence in the lower Court. The first point to be decided, he said, was whether Machin's action amounted to suspension or dismissal. If he ehoso the course ot suspension the company was liable for salary up to December 31st. Then, supposing Machin's action amounted to dismissal, was it justified? Ball's statements were not a public traducing of Machin and the company, but vulgar abuse to the directors. It was a case of insolence. In certain walks of life the epithet applied by Ball to Machin was quite commonly used. It was a caw of abuse. His Honour asked when the language crossed the border line. Mr Gresson: If an employee of mine used the term to me he would not last very long. His Honour: What would the position be jf there was no retraction or applogy? Mr Gresson said this raised the question •of justification. In the case quoted by Mr van Asch, the employee had mado suggestions of misconduct against the employer.' After farther legal argument his Hononrreserred judgment.

MAGISTERIAL. TUKSUAV. 'Betoro Mr E. D. Hosier. S..U.J 'NOTHING TO*E4T.'' When George Spillane, aged. 3;*« >ears. was arrested and charged with being an idle and disorderly person, in that ho had insufficient means of support, he told the polico that he had bad nothing to eat (or four days. "Ho had had some drink," observed SubInspector J. M. Mathew. Accused' was reminded (or one week. ALLEGED THEFT. A charge of theft v.ns brought against a lad of sixteen, at ho, it was alleged, had stolen 12s from his father. The boy was said to bo out of control, and was remanded to appear before the Children's Court on .February 30th. STOLE FXtOM DWELLING. Charles Arthur Kirk was charged with breaking and entering by day the dwelling of, George Spiers, and stealing therefrom £2, the property of James Spiors. The accused pleaded guilty. James Spiers, son of George Spiers, of 80 Edgeivare road, St. Albans, said that he bad missed 30s from the house about six months ago. The following day Kirk returned the money, and said, that he was hard up. Small sans had been missed since then, and about January 81st £2 was taken from a box. Detective Stndholme gave evidence of interviewing Kirk', who admitted that he had gained admittance to the house by obtaining the key to the door from an outhouse. He had made four visits and had taken money on each occasion. Accused said that he had been out of work for six months, ond was living Bpart from his wife, to whom he had to pay £2 a week. He had stolen the money to help pay his way. To the Court, the accused said he was oot of work, and had no home to go to. nc wan committed to the Supreme Court for sentence. A GRAVE CHARGE. The Court was cleared while the esse against Treavo Gardiner, charged with committing rapo nt Templeton, was heard. Gardiner, who is a married man, 28_ years of ago. was rc-piesenttd by Mr F. D. Sargent. After tho evidence had beon heard accused, who reserved his defence and pleaded not guilty to the charge, was committed to the Supreme Court for trial. (Before Mr H. A. Young, S.M.) CIVIL CASES. His Worship g&va judgment for tho plaintiff by default in tho following cases: —Hugh David Wilson r. William Livingstone Wilson, £lO4 10s 3d; Hunter and Ronaldson v. !•• J. Baker, £6 4s; W. H. Simms ond Sons, Ltd., v. W. J. Johnston, £ll 3sld; Ballin Bros. Ltd., v. M. Malcolm, £6; F. Bradford v. C. Devonport, £6 10s; F. H. Steel, Ltd., v. F. J. Huddleston,o£ll 5s 8d; F. W. Cochrane v. James Wren and Co., Ltd., costs only; Watkinsoa and Kcnnett v. E. Milner, .'1« 3d; National Motors, Ltd., v. John Pearson, £4 0s Od. JUDGMENT SUMMONSES. Robert Hugh Willis was ordered to par Margaret Evelyn Dougall the sum of £l7 4a, in default 19 days' imprisonment, warrant to be suspended so long as defendant pays not less than 10s a week. On a judgment summons, Charles Aldons was ordered to pay Charlotte Bruyere £l< 18s, In default 19 days' imprisonment. An order waa made that F. I. Jones pay Joseph, Edward Laurence the sum of £8 i*» 6d, in defanlt 10 days* Imprisonment, warrant to bo suspended so long as defendant pays not less than Ss 6d a week. Andrew Thompson was ordered to pay wG. Snook the sum of £lO 8s 6d. in default 11 days' Imprisonment. CLAIM FOR POSSESSION. McKeniie and Willis (Mr W. F. Tracy) claimed from S. J. Rosevear the sum of -» 10s and chattels. . , . ... J. Willis stated that when defendant s wife committed suicide, the husband mo. stripped the house of all furniture and refused to deliver up possession of that o»nea by plaintiff company, for which payment baa not been made. , , ..- „_ Judgment was given for the Pl»'"" s J"* pany, and an order was made for the return of the goods. SALE OF A DOG. George- Reed, farmer, Burwood (Mr »• *■ Tracy), claimed from Bart Moore (Mr• KTwyneham) the sum of £5. being the amount owed by defendant on the sale of a dog After hearing the evidence h.s . w °" h ' p gave jjudgment for the plaintiff with costs. BREACH OF AWARD. Peter Weenink, inspector of!■*•»*». C«tm£ church, claimed from Dodge Bros.. "*;<** M. J. Bums), the sum of £ls as a penalty for a breach of the North Canterbury earpenters' and joiners' award. It was alleged that defendants had em ployed . worker who was; not. a member of