MAGISTRATE'S COURT.

Dominion, Volume 4, Issue 1034, 25 January 1911, Page 3

MAGISTRATE'S COURT.

"(Before Dr. A. M'Arthui-,' ; S.Jr.) MAINTENANCE. AN INTERESTING 'POINT. . An point in connection with mainteiianeo cases was decided in the reserved 'judgment'delivered yesterday, in the case in wliich Henry Nicholas.Martin was charged with lailure to maintain his wife. Mr. A. L. Hcrdman appeared , for complainant, .and Mr. R. J. Webb for defendant. "This," said, tho magistrate, "is a complaint that tho defendant has failed and intends to fail,-to provide the complainant, his wife, with adequate maintenance. The' defendant admits that lie has.failed for tho last fifteen months .inmaintaining ■ his wife, but. denies that he intends. to do so. - For that time tho complainant has lived-with her mai>. ried -sister, having gone there .with-, her husband's consent. Things financially Were'very bad with , the defendant. He, however, wrote to his 'wifo to return to him, which slio/declined to do,, on certain; grounds' stated by, her. In my.opinion, it was her duty to have returned to ,'lier home. Thero ~wa? ~uo 'question of i ill-treatment or cruelty'of kind on tlie defendant's part. At:her sister's home,- complainant, acted'as housekeeper. Defendant has beeii very unsuccessful in business matters, and at tho present time, when all 110 has has been realised he is still in debt and without. employ-ment.-,'-There arc no children of the marriage. Under these circumstances can. 'I make, a- maintenance order,? . In answering' this question, -I am bound b'y the 'Destituto Persons . Act, 1910. 'Destitute" person' is defined in that Act as 'any person'unable, whether-perman-ently or temporarily, to support himself by his own means or labour. " His Worship ..held-that tho complainant ■ did not comQ.'under that definition. Section li.. Subsection 6, of tho Act-, says: "Unless the magistrate is satisfied that the wife is a- destitute person, 110 maintenance order-shall be made against the husband iii favour of .'the wifo if it is proved that . the husband is ,-not of, sufficient ability -to contribute to her maintenance." As it had been, proved that complainant's husband was not of sufficient ability-to. contribute to her. maintenance 110 order would be made.'. Should the defendant, at any timo become of\ sufficient ""ability to contribute', a :mainton-. ance order" would be made in tho or-i ■-dinary maimer.. »• .' , .' . ' \ /.'A SEAMAN'S CLAIM FOR WAGES. ; Reserved judgment was delivered 'in ,the caso in which Daniel Lynch, a seaman, .claimed £9 from'the Union SteamShip Company as Wages for November, and also-board and lodging. .. Mr; 0. R.\Dix anncared. for the complainant, and Mr. i"'.' Levi for the defendant company.-. : . . -. ' Tho complaint "alleged that .tlio ; Uniqiv Stcnm' Ship" Company. Limited, was-indebted, to iJaniel Jjyncli, of Wcl- , lington,.- seaman, in the 'sum of £7 for .wages under his contract of service as a seaman 011' the s.s. Kotiikn during the month of November, 1910, and in the sum of £2, being the costs of his board 'and lodging ashore at £1 a week as'.from. Novomber 17 to November 30, making a total of £9.'. It; appears, that,, while a seaman on the ivotuku, Lynch was arrested for assault,-land.fined £2 '. tho-following morning. Ho went to rejoin""hiis"vessel,-, but' found she' had sailed, and that his wages had been'.left "behind for him. However, the Siiperihiendent of' Marine refused to hand over his wages as he-had not been signed "q(f. ; Jleantiino he ifr'as. unable to get any other cniploynient, and now claimed £7cAvngcs, as he; alloged A that.'he .was still legally 011 the articles, and board and-, lodging. , Sir. Bis. sontciuled. tint, the master of the ship . should , have signed Lynch off' at the police station . or olso.'hayo giveii him"2-l notice:;' '; ■' 1 .- For 'the 'defence; it was' ' contended that as -Lynch had been left in custody of the police his contract was ..broken',, and that'if the ship paid his wages up till.that date it was,then justifiable to treat,him as a deserter. In the courso.-of his judgment, tho magistrate said: "I am of opinion that Sectip'n- 88 of tho Shipping and Seariieiv Act, 1908, is'applicable'to ; .the present case. - There is here a contract-.bf -scr■vico between the owners and master, of. tlio Kotuku and .-the seaman. , Lynch arising out of their, respective duties, or :at'any'rate incidental to .their relationship. Tho section gives the Court power to rescind such contract upon such terms as. the. Court thinks just. Lynch by his own action rendered himself unable to carry out his contract, as there was 110 compulsion 011 tho master to'detain, the steamer until such time as Lynch should be discharged from custody. Having regard, to all the circumstances - of the case, I think, it just thnt'the contract between, the company and Lynch should be rescinded, ■ and that tho company should pay Lynch his wages'up to November 17. As tho company has always been ready and willing to do this, there will bo 110 costs in tlio caso. Tho- shipning master will now Ibe able to grant "the seaman his discharge." ... ' .COMMISSION RECOVERED." 1 Reserved judgment was delivered, in", tlio case-in which Arthur Warburton' and Co. sued John George -Faldor to recovcr tlio sum-of £32 10s., alleged to be duo to. plaintiffs by defendant as commission at the rato of 21.per cent, upon a sale for £1300 of certain lands and premises iii Hall Street, 'Wellington South. In the alternative,; the-plain-, tiffs claimed tho sum of £32 10s., as fair and reasonable remuneration for services rendered by the plaintiffs to tho defendant at, the latter's request. For tlio defence it had been contended that, plaint-ills had mistaken the instructions as "to the sale, and that' the price, £1300 referred to one house only, instead of the/whole property, containing two. houses. In,giving judgment for plaintiffs, tho magistrate said: "Plaintiffs,sold at this price' (£.1300), but defendant refused to. complete the- purchase,-as,, he said, the sum of £1300 referred only to'tho house .'•bo occupied, and not. to the. remainder of tho property. The defendant : was himself..an experienced land, agent, and vet jh 110 one of his communications .does lio "inform the plaintiffs that he has subdivided the property. He certainly says that lie mentioned tho matter on three' occasions to Mr. ' Broadbent. This is.absolutely denied by Mr. Broadbent. I place 110 reliance; 011 Grant's evidence. Ho is too emphatic, and has evidently been well schooled by, the defendant. ... It was defendant's, duty ■ if he were dividing, tlio. property and quoting a price;for part only, to have pointed tha,t out distinctly in his-let-ter. If there has been a mistake, the defendant, in my opinion, has been entirely responsible for it,.unci hence the plaintiffs enlist not bo deprived of tho fruit of their labour. I consider that the plaintiffs arc entitled to a quantum meruit for their work doiio, and give judgment for tho sum of £20 and •costs." - Mr. M. Myers appeared for the plaintiffs and Mr. E. Hadfield for tho defendant. . ' - , THE WEIGHT OF'COAL. - Samuel Brown, Ltd., coal merchants,. "Wellington, s'licd the Tynesidc Proprietary Coal Mining Co., Ltd., to recover tho sum of £57 .18s. 3d. alleged , to bo due to plaintiffs by defendants as balance, on an account for coal supplied. Mr. A. L. Herdmairnppearcd for plaintiffs and Mr..Myers'for defendants. Tile case, arose, out-of a shipment- of Stockton coal, from Wcstport, delivered ex Rakanoa, in' December, 1903. I'laintiffs contended that they were entitled to charge for the coal, as at tho rite of five baskets to tho ton, whereas defendants contended that live baskets of

Stockton coal would not make a ton, I and that the baskets tised. in this par-1 ticular shipment held only 37411). After liearim; lengthy evidence, the magistrate reserved decision for a week. 'UNDEFENDED CASES. Judgment by default was given for plaintiffs in tlio following undefended cases:—New Zealand Farmers' Co-op-crativo Distributing Co., Ltd. v. Samuel Goodo, £18 7s. 10(1., costs £1 lis. Gd.; William Joseph Ferkins ,v. William G'arnham, £3 45., costs lis.; Smith and Smith, Ltd. v. .diaries Froggatt, .£2 9s. 2d., costs. 10s'.-William Hughes Field v. Pirihira' T'aiewa, £9 14s. 5d.,-costs £1 13s. fid.;' Thompson Bros., Ltd. v. Thomas Hill and -\!ary Josepliirio.Hill, £7 2s. 5d., costs. £1 6s. Gd.; A. Wheatley v. Georgo Williamson, £1 Gf. 5d., costs os.; Hallenstein Bros., Ltd. v. Leonard Armstrong, 18s. Gd., costs 55.; B. Singer and Co. v. E. P. Blake and Son, £52' 19s. Id., costs £3'l9s. 6d.; G. 11. Thornton v. Arthur J. Rusher £3 17s. Bd.J costs 10s!:' Charles Tandy v. Charles Galsworthy Heard, £1 19s. 10d., costs os.; S. S. .Williams, Ltd. v. Edward William Oliver, £1 los. id., costs 55.; Doylo. Brosi . v. C. Taylor, ..£2O 3s. (id., costs £1 35.; Edwin Booth r. Charles Edwards, £1 2s. 6(1, costs os. POLICE CASES. ' (Before Mr'. Wv G:;;Riddell/ S.M.) William Ham pleaded, not "guilty to a. charge ;of having played ''hazards" ' with dice .'at the' breastworks,- Queen's Wharf,;.oiV. January l|. Accused was 0110 of a number.'of men' summoned - as a result of a police raid last Wednesday afternoon. ■ Tho other .men were dealt with last week, but Ham's caso was adjourned until yesterday. Sub-Inspec-tor ■ Norwood prosecuted and Mr. E. J. Fitzgibbon appeared for the defence. Constables Thompson 'and Jlullooly repeated their evidence as in tho previous charges, stating that they -had watched tho game in' progress for nearly two hours. Witnesses did not. actually seo Hain. taking part in the play, but he was standing round .the . ring. .Ham did not arrive at thc ; breastworks until'after Morgan, 'against wliom ail information was dismissed' last Friday. Mr. Fitzgibbon submitted there was 110 case to answer. It. had to bo remembered that thero wcro a number of men always about the wharf who might

stop and-look at a game of "hazards" in progress, but before a conviction could be recorclc-d it would "have to be proved, that a man cither throw the. dice or passed money to make a bet. In this case thero was no evidence to that effect. , The magistrate dismissed the information without calling 011 tho defence. David Alexander M'Kay pleaded not guilty to a charge of failing to provide .maintenance , for his wife and for his four children. After hearing the evidence the magistrate ordered accused to pay 15s. 'a week towards the support of his wife and os. .per week towards tho support'of each of his children. Accused was also ordered to. pay £2 2s.' costs. Mr. P. W. Jackson appeared for complainant. • Alexander Aitcheson pleaded guilty to disobeying a-maintenance order for the support of - his three children. The arrears amounted to £25 4s. and accused was sentenced to a month's imprisonment: , Ono first-offending inebriate was convicted and discharged.