COURT OF APPEAL.

Dominion, Volume 2, Issue 329, 16 October 1908, Page 4

COURT OF APPEAL.

W. ■ %s iSiFiXiVSB siiEST'ERDAY' S -PROCEEDIN GS. -J*>* v ' J'iX.i. ~pWps SOWQITOR? STMC® THEKROLL. WnSa'-tho sittings of tho Court^"of" Appeal woro resumed yesterday, tho, Chief. Justico (Sir'-;Robert''Stout) • and Justices; Willinmsj* Popper,---andChapin,an i .;^ei^.ypror : sentfep' ,w..-*,»v v ifogj. JM, The first matter which wascbWidflred'ttas' a motipjuto a. striking the ' v riaiiio.-. of' Robert iloncrieifrH Gutlibe^t^gn' off the roll of solicitors entitled to practise in New Zealand, upon the grounds (1) .That whilst acting as a legal practitioner in Orange fwa& ,;at th? : ; ,Grini-, inal "Sessions', of th'o High "Court, sitting' lit' BloemfonteinV': convicted of - theft; aitd*; (2) that'oil'August 30, 1905, Cuthbertson's nanio was removed from tho roll of attorneys of tho High Court of Orango -River- Colony-. - Mr. Blair, who.■appeared onl.behalf of the Now Zealand Law Society, in- support of tho motion, said 4hat.Cuthbej-tson ; was not ,(practising m tho Dominion, but tho. society had deemed it to bo its duty ''to'have his name removed from the roll of .solicitors in New Zealand. . . . ■ . THe J rul6 i wfi*s made absolute; -and : the : usual < oosts/werojalJtavpdvi'J ,i ;:i ' ' LANDS 'CA^^ QUESTIONS AS TO COSTS. Tisp„ questions.Telating.„to. costs, in 'the action?,with reference to certain Wairiiarama lands/betti'eeii ! Mrs.'Donnelly and others and : ' Miss Meincrtzli'a'geri, .wcro then dealt;',witj)y. tho Court consisting of Mr. Justice Williams as presided!;/ snd-:s Justices'-Denniston.;r'?Ed-v' wards (l ; l f!9opsr t '...and .. Chajnnan. Mr., JH. IK p. (with liim, Mr. appeared. on behalf" / o'f Mir'S.' 'Donnelly akl othera,"ami" ■ Mr. 'Morisoli -'for MisV Mcihertzhagen.. vi > With regard to a motion for the discharge,;, of an injunction, judgment was, it will bo remembered, given in 'favouf'~6f."MrS'T~Don"" nelly who/, wero, .allowed..; cost^;, -. Application was now'mado.on their .behalf for the-costs'" to be as frOm'a distance. ./... After hearing" argument,-Mr. Justice Wil-' ■ liamff'-deliVcrod-'tho ijudgment .'of. tho Court.; Application for costs as from a distance; ought, lie lifeld,'to be made* at- 1 tho - k tiin'6 A judgment was orally practice of tho'lCourt 'since tho, coming" into vfprco .off the Act of 4882 - had been to specify'in-'thflV certificate of costs that costs were allowed as from a distance if it were tho intention, of the Court that they should .bo allowed:-" ■The fact'that nf the'certificate'no'mOntioii' was made as to costs being allowed as from a distance indicated that in the. opinion of the Court costs as from a -distanco should Dot . bo-allowed. As' to tlio'merits of tho •case',' it appeared- Court-that all-par- , ties had...concurred, in transplanting, the .case to thiss. district, and'<tlicreforo;'-tha't 'although" there were somo elements'in., the, case of what might bbvtalled.'foreign origin,- : 'it must bo: treated as a, -Wel]fngtoii"casgau'dHhat if costs as from a distance;',had-'been,. applied for, Abb (Uour't Jwifuld 'have" refused"tohave,:: granted th'einv: v "'■" v"*■'• '--V . Tho-motibii 1 Would.-therteforo /bo'^dishiissed,''; : Svith.^fiye costs'j : ThiF'qtli'cr". jnattcr..'ivas -an appeal' jjy give';])er;, costs^'o'n' an application .-for writ .of .->' Cor-? ■ tiorari tli: behalf that,-! the costs;had - been . refused for- reasons', which 1 ; i did .grounds-forvthe oxerK ciselof- a judicial discretioti-refubing<cbsts"''to • a suoocsSfuMitiga-nt/v*- •• / : J. Farther;'argument will with'-'re-*, fcpcctjfo 1 the 'question" this''niprfting.^ : ' SUIT:v ';/• PETITION- ON GROUND' OF -DESERTION/ * EFFECT OF .MAGISTERIAL. PRDEJ}-. The case'between Seorgina'Genet"Xpotitioner) andj'Alfrdd'-Gonet ; (i'esp6ndent),'-which was removed Court of- Appeal from the Supremo Court at Christcliurch, was then taken, Justice ..(Sir,;. Stout)' 'and ; , 'Justices'' v ; s Wi]liamsV" ■Edwards,' Cooper, an'd'-'Chapman. Mr. Donnolly, of Christcliurch, .appeared for .fche^'pßitio.uprj • arid':, Mr?/ 'jfeprife vened.' v.':' - - ••'■ In" of'the case, Mri 1 Justice said' tlio; subject' nVatter;bf.v it .m-as" a \vife,vfor,-. digsolu'tipn ..ofiier,. marriage, ■ jv'ti)i' .her.i:busband' w the/ground;? that : -.he..4iad/ without:;justi!!cause, ; :' deserted: her 'rfnd left 'her- , .ibhtiiiiiftl)y''.ifoi''»tfvo'» , yca¥S!' End upwards, from Juno 1, to, June 16, 1908.;.;. "Respondont.t did lWt' apjYeaii 'to "oppose: the .petitioriv" ; ■•'Oii f^une i, ''_ 2- 1903j .iJgb'ltionor obtained.'.aii.. order "Ipngcr'.; iohabit ;,a sixtcen'.'being; c'om- r mitted' to f.her';. ;and: quirepLi'.to pay 10s, por week' for, her use. The grounds on which the order was applied for and granted were tho persistent cruelty of the respondent to"the petitioner,^""and "his" wilful neglect'to provide reasonable maintenance for her and her infant child. No inention was made of desertion. Tho provision ...ith'at" ,thfe.' applicant bound to cohabit with her husband was declared by the Act to'havo (while in force) the effect in all respects of a decree of judicial separation on tfie ground of cruelty, under tlio provisions of. tlje, .Divorce-.and-Mutri- • Monial Causes Act, 1867, During the pro-'' ceedihgs':in"tlld. Magistrate's' Court the re-' epondent- '.stated, i that" ho 'wauld' ; -never---liYe petitioner again ;,aiid lie did Jn'iact.« Eover again live witli lier, nor. did he in anvway oftiiijoly "'with'' the order;" The petitioner'; had maintained''herself and'childr'The' 1 was therefore -fully- proved, unless' the position was affected' by the existence,of the protection order. There wero, his Honour showed, conflicting decisions both in New Zealand and in England as to whether tho existence of an . order.; uhdeiv: ; the r»Married Persons Summary Separation Act, 1896, or the corresponding Act: in England, was a bar to proceedings in divorce on the ground of desortipn. As many other cases were stated to bo pending, lie thought it very desirable that the question should be submitted to tno highest Court in the Dominion. Tho Court intimated that it would take time to consider, its judgment.