MAGISTRATE'S COURT.

Dominion, Volume 1, Issue 311, 25 September 1908, Page 4

MAGISTRATE'S COURT.

POLICE CASES. (Before Mr. W. G. Riddell. S.M.) 1 ALLEGED THEFT. Corbctt Richard Cresswcll, who was before tlio Court last week on a charge of vagrancy, appeared in answer to a charge of having, at Porirua, on September 19, stolen two blankets, a pair of trousers, hair brush, broom handle, pair of socks, tomahawk, cap, two shirts, one boot, and one undershirt, of a total value of £2. the property of Samuel. Edwin Taylor. Accused pleaded not guilty, and on the application of Sub-Inspec-tor Phair a remand until Friday next was granted. SHIP'S APPRENTICE IN TROUBLE. Alphonso Vancaillio Jas. Doyle, a ship's apprentice, pleaded guilty to a charge of having, on September 17, at Wellington, stolen twenty-five yards of zephyr, valued at £3, the property of the Federal-Houlder-Shiro Shipping Company. On the application of Chicf-Doteetivo M'Grath accused was remanded until this morning for sentence to cnablo further inquiries to bo made. CHARGE OF ASSAULT AND ROBBERY. A woll-dressed young man, Patrick M'Gill, appeared in answer to a charge of having, at Wellington on September 21, assaulted and robbed one Henry Myers of tho sum of £20. On tho application of the polico a remand until September 30 was granted. Bail was allowed in the sum of £50 and two sureties of £25 each. Mr. P. Jacltson appeared for the defence. MISCELLANEOUS. A middle-aged man, named James Gibson, described as a shearer, was convicted and fined 55., in default 24 hours' imprisonment, for insobriety, and on a second charge of indecency was convicted and fined £3, in default 14 days' imprisonment. John O'Brien, charged with insobriety, was convicted and discharged on the understanding that his friends would find him employment. Two first offenders were convicted and fined 55., in default 24 hours' imprisonment.

CITIL BUSINESS. (Before Dr. A. M'Arthur, S.M. UNDEFENDED CASES. Judgment for plaintiff by default of defendant was entered in tho following civil cases: —

Universal Supply Co., Ltd. (in liquidation) v. Gertrude Gibson, £2 10s., costs 10s.; Edward Anderson and Co., Ltd., v. Clias Williams, £6 2s. -Id., costs 135.; .Commercial Agency, Ltd., v. Ernest J. August, £21 45., costs £2 145.; same r. James It. Williams, Bs. lid., costs JGl'9s.; C. 31. Banks, Ltd., v. J. H. Norman, 10s. Gd., costs Cs.; Jolin Itigg and Co. v. ,Jas. Ilenrv Simmons; 25., costs 25.; Dalgetvand Co., Ltd., r. Mary A. Wilkins, £10 17s. 4d., costs £1 12a. Gd.; Commercial Agency, Ltd., assignee, and Briscoe and Co., Ltd., assignor, v. Petlev s'nd Young, £171 3s. 4d., costs £7 19s. Gd.'; Dresden Piano Co. v. Jas. M'Kenzie, £2G 165., costs £3 75.; A. Levy v. J. H. M'Leod, £4 10s. Gd., costs os.; George Benge v. Strand Bros., £7 145., costs £1 Gs. Gd.: John It. Randerson v. Edward Pope and Edward Warner, £1-5, costs £1 13s. Gd.; South British Insurance Co., Ltd., v. Harold Doorey, £1 4s. 9d., envta 75.; Wellington Gas Co. v. H. H. Knight, £12 Gs. Gd., costs £1-. 10s. Gd.; Wellington Hospital Contributors v. John Jas. O'Brien, £2 Is., costs Gs.; Hendry V Rudge Depot v. Miss Y. S.'Black, £5 10s., costs £1 3s. Gd.; George Webb v. Frederick Conrad Leopold Olson, £2 10s< 4d., costs 10s. JUDGMENT/SUMMONS. ' In tho judgment sunimons'caso-Yerex Backer'and'Finlay, Ltd.',. v. "Wm. ! H. .Brbwer, debtor was ordered to'pay£l 14s. oil or before October 8, in default 48 hours' imprisonment. LABOUR UNION AND MEMBER. • . . UNFAIR PRACTICE.

AN INTERESTING JUDGMENT,

Reserved judgment was given by Dr. A. M'Arthur, S.M.; in tho -ease Wellington Drivers' Industrial . Union of Workore (Mr. Loyvoy) v. Donald Eraser (Mr. J. J. M'Grath), a claim for £10, tho amount, of a fine inflicted by the plaintiff union on defendant,'under' and in accordance with Rule 3G of the registered rules of the union, which fine defendant had, not paid. Rule 10, of tlio amended rules of - the union provided that, subject'to tho control of, tho union, in general or special meeting, the property and funds of tho union and its business shall be managed by a committee of management. Rule 36 provided' that the committee should havo power to inflict fines not exceeding £10 for unfair practices and breaches-of tho union's rules. Rule 33 laid it dowji that all subscriptions, fines, and levies should be paid to tho secretary, in all proceedings at law or otherwise, . . .'tho secretary or agoht duly, appointed to represent the union. Defendant wns an active member of the management committee of tho plaintiff union. On Juno 28 tho bakers' strike oecurrcd, and defendant attended a meeting of the management'committee of tho plaintiff union called on that day to consider the mattor of tho strike. It was decided that tho Drivers' Union should tnlce no part in the strike other than to uso their best endeavours to prevent any member of their union going into tho bakehouse to assist in making broad. Defendant acquiesced, or at least- mado no dissent, and the committee then communicated their decision 'to the bakers. Defendant was also present on this occasion, and acquiesced in what was said. It was admitted that on the samo evening defendant went to work in a certain bakehouse, and had remained employed there ever since. Oil June 30 the secretary of the union wrote to defendant, asking him to attend at" tho offico of the union on Julv 3 to givo reasons why he had not kept faith with his fellow committeemen in the matter of the bakers' strike. Defendant was asked to make a special point of being present, as the committee wanted to get tho full facts of tho mattor. Defendant did uot attend the meeting, and the case was dealt with jn his absence, and ho was fined £10 for unfair practice under Rule 36; Eo had not paid the fine, and the union was taking proceedings to recover it under Rule 38. Rule 32 provided that no fines should bo inflicted unless 48 hours' notice of meeting should have been given, and his Worship was of opinion that a sufficient notice of tho meeting had been given to defendant. Counsel for tbo defence contended that tho notice given to defendant was not sufficient to warrant the committee in fining him. In the opinion of the Court, if the sufficiency of tho notice calling a special meeting for a specific purpose wns Questioned, tho grounds on which it was objected to should bo brought before the' Court, and it ought to bo shown that the resolutions carried were not the legitimate outcome of such notice. This, his Worship considered, counsel had failed to do. A further objection raised by counsel for the defence was that the rule under which the defendant was fined was unreasonable, and therefore ultra vires. On this question, Gunner v. Holding was to the point. There the full Court approved of the principle laid down in the Fleminpton case (1901, 27 V.L.R. 7), saying at page 321: "In that, case we considered all the English authorities, and we thought that there still is nor/, as there, always was, jurisdiction in the Court to eay whether a by-law is reasonable, or uot. but," alwsvs irith this that the. Court should show every consideration to thorp in authority, and should be very cautious in interfering irith their discretion, but where a by-law was shown 'to be clenrlv unreasonable the Court will declare it to be voidi" Judged in the light of this statement, and of tho requisites of a good by-law, his Worship could sec nothing in the rule that was clearly unreasonable. The last point was, " Was the

conduct of the defendant an unfair practice?" Defendant was an intelligent and • active member of the committee of management. Flo was present at the meeting of the committee when it was decided that the members should uso their best endeavours to prevent any member of their union going into the bakehouse and assisting in the making of bread. Ho acquiesced in this, and proceeded to the meeting with the committee, when the decision was communicated to the bakers. That very evening, however, without any' communication wifcn • the members of the committee, he proceeded tn the bakehouse to make bread, snd had remained there erer since, not having given any explanation of his conduct. In his Worship's opinion, this conduct amounted to an unfair practice. Defendant was at perfect liberty to dissent from the decision of the committee, and to go his own war, but he agreed with them, and without any further communication did that which he had tacitly promised to urge the members of the union not to do. Tlis resignation was scut in on July 1, and was accepted on July 3, subject to his compliance with Rule 9. The evidence showed tint defendant's resignation was not accepted until after he had been fined. Judgment would bo for plaintiff. _0n the application of Mr. M'Grath, his Worship fixed security for appeal. HIRE-PURCHASE OR SALE. Reserved judgment was given by Mr. Riddcll, S.M., in the case of H. Oscar Howett and Co., Ltd. (Mr. O'Leary) v. Alexander Dunbar (Mr. Dix), a claim for possession of certain goods said to be held by defendant under a hire-purchase agreement, dated October 12, 190 G. By tho agreement defendant agreed to hire from plaintiffs for a term of six months at least the goods mentioned therein, admitted to bo worth £4'7 ss. Defendant also agreed to pay to plaintiffs without demand rent for tho hiro of the goods as follows: —£7 10s. cash on signing the agreement and £3 4s. on the fourteenth of every month thereafter, commencing from November 14, 1908. As soon as the payments made by defendant amounted to the value of the goods they bccame his property, but until the whol« amount was paid they remained the absolute property of plaintiffs. If defendant failed to pay any instalment of rent plaintiffs could resume possession of the goods, or defendant might terminate the hiring after six months by returning the goods, but remained liable for all rent duo up to tho date of their return. According to the evidence, when the agreement was signed plaintiffs gave defendant an invoice of the goods dated October llj 1906, debiting defendant with their price, crediting him with £7 10s. cash, and showing that four promissory notes had been taken for the balance, each dated October 11, and duo at three, six, nine, and twelve months respectively. Defendant said the transaction was a sale for £7 10s. cash, balanco to be paid in four instalments, for whjch the promissory notes were given, and that .the. agreement was taken as a security. Plaintiffs said the agreement and promissory notes wero part of one arrangement, ris., a hire-purchase contract. The terms of the agreement, however, did not seem to have been carried out, for no monthly payments were ever mads under it. Oil tno other hand, defendant satisfied the first promissory note and p.iii diffc-ient amounts in reduction of the others, which were dishonoured. On December 24, 1907, plaintiffs threatened to tako possession of the goods under the agreement if the baknee, £24 13a. 10d., ■then duo was not paid within ten 'days from date. This threat ttj.s not carried out as a payment was irade on account, and the matter ran on until April, 190S, when plaintiffs sued 'defendant for the balance due in rcspcet of the promissory notes, £19 145., and obtained judgment for the amount less £7 10a. paid on account. They then issued execution on the judgment, and found that defendant had given a bill of sale over the* goods to a third party. ' The return was nulla bona, and plaintiffs commenced tho present proceedings for possession. Viewing the whole of the doeumeuts connected with'tho transaction, together with the sets and "evidence of both parties, his Worship thought tho real contract was one of sale and pur-ohaso-fßnd not..of iliirc. „> It-seemed to tho Court that plaintiffs'. elfction 'to sue de-. fondant far the balance of moneys due on tho promissory notes, their taking judgment and issuing execution under the judgment was clear evidence that they regarded the goods as defendant's. But even if the goods hid been held under tho agreement plaintiffs' election to sue dofondant for the balance of moneys duo would hare determined their right to rcju no possession. By resuming possession plaintiffs determined the agreement, and by so doing, lost the richt they had to stie tho principal. 11l his Worship's opinion defendant was entitled _tc judgment with costs £2 fls. against plaintiffs.

INTERESTING SHIPPING CASE. STEAMSHIP COMPANY AND SEAMAN. (Before W. G. Riddell,'S.M.) A case of special interest to seamen and shipping companies was brought by Captain G. G. Smith, superintendent of marine, against the Union Steam Ship Company. 3V!r. H. D. Be!!, K.C., appeared on behalf of the complainant, and Mr. Levi appeared • for the Union Company. Mr. Bell explained that a man named Peebles'had been engaged to work as firomnn or greaser on tho steamer Arahura when that ship first left Scotland for New Zealand, and tlmt he had worked on the ssuno vessel erer since. In June, 1907, Poebleo began to suffer pain in the loins, which at last became so bad that ho had to leave the ship snd go int-o hospital at Wellington. Section 119 of tho Shipping and Seamen Act, 1903, pro-' vided that " where a seaman is left on shore at any placo in New Zealand . . . by reason of illness or accident whilst in the scrvico of tho ship, incapacitating him from performing his duties . . . the master or agent shall deposit with tho superintendent tno full amount of wages then duo to th« seaman, and, in addition, a sum not exceeding fifty pounds, for the purpose of defraying any expenses' lawfully incurred by the superintendent for the maintenance of, or medical attendance onj tho seaman so left on shore." In this case, Mr. Bell said, tho required deposit had not been made, although, he contended, it was a case in which the section clearly applied. Tho action was twofold. To a charge of failing to make a deposit as required by the section a plea of not guiltv was entered. Tho civil claim was for £'23 IDs. The amount of the claim was mado up of damages £15 45., being tho amount of wages that would have havo been duo to Peebles had he been working during the term ho was laid up, and £S 10s. maintenance and mcdical expenses. The other action was brought as an indirect means of obtaining the amounts claimed to be duo in caso the civil action failed.

Dr. Young deposed that he examined Peebles, and found him to bo suffering f: om a stone on the kidneys. On February 28 the witness signed a certificate that Peebles was so affected, and was unfit for work. He advised Peoblos to go to tho hospital, T.'iiich tho man did. Thero he was operated 011 by Drs. Young and Ewart, tho stono being removed. Peoblcs had now (juite recovered. John Peebles, fireman, said ho had on tho Arahura at Greenock, Scotland, on July 12, 1905. He was still employed on the Arahura. Ho had never had a day's illness before, ho loft Scotland, and first felt pain in June, 1907. The pain was always increasing, thero being a severo recurrencc every three or four wocks. He saw n doctor at Greymouth, and tho doctor Tranted him to go into hospital there some time before ho left tho ship at Wellington. Ho signed off at Wellington on February 28, tnd was reengaged on April 18. 110 did not know tbit li<! was ontitlca to luto a mm deposited *ith the superintendent of marine. Tlie witnesj himself paid Dr. Young 7i. (id. for hit examination, but ho did not pay him for helping at the operation. After' li« left -he hospital ho stayed with a friend for three wuc-ks, paying him £1 u week for board. Hotare ho left tlie ship he spoke to tho captain, who told him it vm the beat thing ho could do Captain Q. G. Smith, superintendent of mirine at Wellington, w»id P«9blai'« dieehnrji* Had Ween rmtifled at Groymouth, »o that he heard nothing of it until a *eek Inter. He had made no claim for a deposit, ns he was of opinion th*fc PeehUs hsd rot been entitled to it, nor did he get any deposit from tho captain or anyone else. Arthur M'Cuvdy, chief engineer of the Arahura, said he had known Peebles for twelve months. Peebles was a vory good man. Tho

witness found shortly after he joined the ship that Peebles was Buffering pain. When Peebles left to go into hospital witness told him that -when he was cui'ta he would get hie job back again. Mr.. Levi urged that the cose was not one of learing a seaman ashore at #11. The man, counsel contended, voluntarily left the ship, and applied for and got bis discharge. By doing this he terminated, at hio own request, all arrangements between himself and his employers. It would be an abuse of language t» say, in the words of tho section, that Peebles had been left ashoro ill. The aecti«n had been framed to m«et a different atnte of things altogether. The section applied only when a man was taken ill, and bring unftblo to work, was left on shore; but it did not apply where a man askod the captain for his discharge and obtained it in the ordinary course, as the agreement between tho two was. thus terminated. Section 105 of the Act distinguished between a discharge and leaving a man on shore, and from this it would bo M that tho case was simply one of discharge in tho ordinary way. Mr. Levi further contended that Peebles's ailment was not an illness within the meaning of tho section, and even if it was, it was not such as to incapacitate him from work. Captain Lambert, master of tho Arahura, also gave cvidonco. After Mr. Bell had replied to Mr. Levi's arguments, his Worship reserved his decision. / OTHER CASES. Ealmond and Spraggon, indent agents (Mr. von Haast), sued Frederick William Weidmer, photographer (Mr. D. 31. Findlay), for £10 10s. 3d. for goods claimed to have been sold and delivered. Plaintiffs were nonsuited with costs £1 ss. The hearing of evidence' before Dr. ll'Arthur. S.M., in the case William Aubrey (Mr. Dunn) v. Henry Arthur Hurrell (Mr. Blair), a claim for £106 10s. commission alleged to be dvio on the salt, of certain land, was concluded. His Worship reserved his decision, f The Drapery and General Importing Co. of New Zealand, Limited, claimed £117 15s. from Samuel Wallace May-Somervillo, draughtsman, and Caroline S. May-Sornerville, balanco alleged to be owing on goods supplied. After hearing the evidence of one witness tho easo was adjourned until thin morning. Mr._ Lewoy appeared for plaintifia and Mr. Luckie for defendants. MOUNT COOK POLICE COURT. . At tho Mount Cook Police Court yesterday, beforo Mr. Thomas Bland, J.P., Amy Robertson was charged with being drunk "and disorderly in Sages Lano at 1 a.m. yesterday." Accused pleaded not guilty. Sergeant Rutledge prosecuted. Evidence was . given, by Sergeant Baskivillo and Constable M'Gregor, as to the accused being drunk and behaving in a disorderly manner. Evidence for tha defence was given by John Doreen and John Anderson, who admitted carrying beer to the accused.' Witness Doreen was not present for half an hour previous to accused neing arrested. His Worship said the evidence for the defence was full of discrepancies as to what took place. The defendant was fined 40s. ar .14 days' imprisonment. One first offender on hail was fined 10s.