PIRANI V. PIRANI.

Dominion, Volume 3, Issue 895, 15 August 1910, Page 5

PIRANI V. PIRANI.

WIFE'S MAINTENANCE CLAIM. ' A MAGISTRATE'S NOTES. Tlio appeal of Frederick Pirani, of the "Feilding Star," against a magistrate's judgment on Mrs. Piraui's claim for maintenance, was heard''by Mr. Justice Cooper and Mr.'Justice Chapman, sitting in-Banco last Saturday mowing. The appeal rose • from proceedings taken by Martha Pirani against her husband, in March last,' at the Wellington Magistrate's Court, suing for maintenance contributions amounting to £91 10s. At the hearing of, tbo case, it was stated that the parties were married at Napier, on May 23, 1879, and that in July, 1902, tlicy agreed to live apart, Pirani agreeing to pay £2 7s. (afterwards £2 155.) per week in support of his wife. . The payments were made up to December 19, 1903, but Mrs. Pirani alleged that, since that date, up till February-last, her husband had paid only £70 15s. Claim was therefore made for £91 10s., the balance alleged to bo due. The reserved judgment of 3lr. W. R. Haselden, S.M., was given '■ in these words:' \ I think a valid claim has been , proved, whereby the defendant undertook to pay to the plaintitf tlio sum sued for. I think the plain-. ; tiff has fulfilled her part of the contract and is entitled to recover. On the ground that this judgment was wrong in facts and law, an' appeal was brought ill the Supremo Court, and when the case came before Mr. Justice Cooper, on Saturday, July 9, complaint was mado that tlio magistrate's'judgment aud his notes of evidence wero so brief, and omitted so much,' that both parties would be embarrassed in the further proceedings. It was alio discovered that letters which had passed botween the parties and ;othei" records. connected with the case ' had not' beeii sent forward from tho Magistrate's Court. His Honour, therefore, intimated that he would give instructions to. havo all necessary papers supplied to him,'.and that the appeal. would be considered at a later date.

It was from that adjournment that the case came into court again last Saturday morning. Mr. G. B. Morison appeared for the appellant, Piraui, and Mr. A. 1 Gray for the respondent wife: On tho previous occasion the appellant had been represented by Mr. A. Blair. Mr. Morison : said "the' question 'to be considered was whether a .contract between the parties for payment of a weekly allowance ■ was established by the correspondence. Mr. Justice Cooper: Yes.' It. is limited to that. If we are unable to determine that question on the correspondence, the parties will be able to call evidence. _ ' *'■ Mr. Morison: .My instructions arc that the notes of evidence give no, indication "of what the evidence was.' Mr. Justice Cooper:. The matter of complaint was that the notes did not contain tho full'evidence of the parties. I. don't sake it to be a complaint against the. magisttato. Mr. Gray: Oh, no. . Mr.." Justice Cooper: Tho magistrate took down what lie thought relevant and omitted What he thought irrelevant. Mr. Blair thought that some of the matter's tho magistrate noted were not relevant, and "that some, of those he omitted were relevant. Mr. "■ Justice Chapman and I.agree that if we can-' not determine the case satisfactorily from'tho notes and evidence, the'parties will have to' be called and examined. ■ ; Two Letters, Mr. Morison said the crucial letters, were those written •by the appellant on May. 5 and. May 7, 1902. 'They wore as follow:—' •.-..- Palmerston North, ; Mays, 1902. -.. I have made- arrangements to \ move into the house in 'Main/Street ■ now occupied by Mr. Do : Lucn, ■ the •' only place available.' It is, six rooms, with bathroom, outhouse,'--etc., and will be empty on -Thursday, and we shall move'on Thurs- . day morning. Under present circumstances, I don't feel inclined to ■ burden you with my presence there, and shall make other arrangemeuts: In tho meantime, to prevent you continuing the circulation, of tho yarn that- you -cannot, ■ got. any . money from mo except by doing .sowing, I will allow, you £2 7s. per . week, in addition to tho 13s. house rent, and tho' first payment will bo made to you' on Thursday. -Of •'■ , course this is to be paid on, '■ condition that you maintain yourself and the three youngest children out of it, and that no credit is • taken. If any bills are seen, I "shall of course pay them out of your al-. l'owance. I take this "course in deference, to' your wishes, and shall, of course, reserve the right to enter, the house at any reasonable time....' ... Tours.'trujy, , .-•.'Fred Pirani.

:■ ■.;!'■' ': /' May .7, 1902, : I find that:the 1 house I had arranged to get is-sold,, and I have now taken.the six-rooined house in , Pascal Street, just, .vacated by Mr. Ford. It seems convenient, and I - have- arranged for the men to com- ; mence moving at .9.30 to-morrow morning. I will occupy one room ■ in the house, but to save'trouble or- expense I will., get. j. my meals . elsewhere. There is a side entrance with a key, and I can use that without disturbing iyou. '".'■' Mr. Justice Cooper: I suppose ho meant to slcepthere and get Ms meals elsewhere. ;" ' ; ' Mr. Morison: I take that to be the moaning of it. Counsel proceeded to arguo that the Court could not presume a contract between husband and wife in the same .way as it could between business people. A series of payments by ono, person to another might in certain circumstances justify the inference ,that a contract existed between them, but. no - such inference could bo drawn from a promise to pay or from continuous payment of an allowance by a husband, to a wife, because such payments w v ere customarily made. It would, therefore, be necessary for the other side to prove that thero was a contract,'and he submitted that such a contract could only have its basis on a valid and binding agreement to separate. Argument for Respondent. . Mr. Gray argued that there might bo an agreement for separation by word of mouth. Ho did not rely, on the letter of May 5 as an actual agreement, but it was the basis of an agreement. The parties really separated in July, 1902, and that was a ■ compromise of a pending suit. Mr. Justice Chapman: Do you show that from tho correspondence? Mr. Gray: No. It was shown, in tho evidence, and I am sorry the -magistrate's notes do not show it. Counsel went on to outlino the proceedings instituted by the parties beginning early in 1902, when the husband commenced a suit for restitution.- Tho appellant afterwards admitted that his ultimate object was divorce. In tho month of July ho abandoned his suit, and sho abandoned" her counter-petition on the ground of cruelty J

To show that separation, was complete- ~ and was based on an agreement to sop- i. : urate, counsel read the following lotto of'the appellant:— '■:.•'• July-Ist, 1902,' " As I have received several bills for goods supplied to you for the house, while you have had your weekly allowance from mo regularly in advance, I have in each' case given notice that while I am making 'tliat allowance I will not bo responsible for any debts you incur. If any further instances rcacli me, I shall have to advertise. ■ _ '•,-..■■ Fred. Pirani. Mr. Justice Cooper: It is clear that they have lived apart for eight years, and Pirani says he does not intend to., live with her again. There can bo no intention on his. part to contest his right to live witli her. Mr. Morisou: The Court will not make an mtendaiit of separation if it is not proved. Mr. Gray: He said ho had had^twenty- ',' five years of purgatory, and his object, ■'■ in- bringing the suit for restitution was divorce. Counsel further argued that the, consideration given by Mrs. Pirani in return for tlie allowance was the maintenance of the three youngest civil- '■'■ dren. Tl,cre was an, agreement for separation, which was acted upon with- ' out question for 7£ years, and without any question as to the amount of tho payments, and.it was too late now for' any of the parties to say that no suchagreement was mwlo. Decision Resarvefl. _Mr. Justice Cooper said'.that if the Court found tho written matter suffi-. cient to 'establish a valid agreement... they would support tho judgment of tho ~• magistrate' without further hearing. 'If'.-, not, thoy would require to hear evidonee. The magistrate's notes might be, for aught they knew, quite a suffi- " V cient record of tho relevant matter adduced in Court. Thoy : did not intend ',' to suggest that the magistrate had not v performed his duty. Mr. Morisou: I certainly do aofc-sug-'■''■' gest that. ... ''■;■ SEQUEL TO A BANKRUPTCY. LAWYER'S TROUBLES. ',' !,: A motion to strike the name.of John ■'-.-: James Patterson oif lie roll of barrister* / and solicitors was before Mr. Justice Chapman in Chambers' on Saturday . " morning. The Haw ke's Bay Law, So- ' ciety, as plaintiff,' was represented ,by Mr. A: Gray,'and the defendant by Mr. . - ; - C. P. Skerrett, K.C., and Mr. Johnston. :- Patterson carried on business as-a solicitor at Daiuievirke, and also ; as money-lender, sawmiller, storekeeper, . and rlaxmiller, at else- ■...■< whore. He became bankrupt on August v.21, 1908, and subsequently, as tho result ..;' of proceedings initiated by the Deputy 't Official Assignee, he- was conyicted of failing to keep proper books,' not de- : , livering up ; all books, and mutilating :■>, books, both before,and after the bank- ;.-. ruptcy, and'was sentenced to twelve, vv months' imprisonment. - - >,- The motion to strike off his name.wao... beforo Mr. Justice Chapman on a pre--., vioua occasion, and was adjourned to •'; enable the Law Society to file answering .:..'; affidavits., This was done, aud tho mat- -■;. ter came up again, as. already stated,; last Saturday. .- .'. :.' ~ ■ .- : A rule nisi was inado, and reserved ■: for .-tho. Court, of-Appeal, his Honour..'.' stating that sufficient, explanation, had .; not been given- concerning the destrue-'-ticri.of the books-by a-fire in January. 1909.