LAW REPORTS.

Dominion, Volume 5, Issue 1307, 9 December 1911, Page 15

LAW REPORTS.

SUPREME COURT. PETITION BY MRS. MEWHINNEY. OYER THE CHILDREN. FATHER'S EFFOET TO AKGUE. GIVEN SHOET SHRIFT. A farther phase of what is known as "the Mcwhinney case" came before the Chief Justice (Sir Robert Stout) in the Supreme Court yesterday afternoon, when Mr. A. Gray appeared in support nf a petition by Mrs. Mewhinney for the custody of one of th« children during the holidays. The husband, Oliver Mewhinney, appeared in person to oppose tho application, and asked that, in view of the recent decision of the Court of Appeal, his Honour should declino to heir the petition. His Honour, replied that he would treat tho petition on its merits. Mr. Gray drew attention to the fact that the two children were in Court, in company with the respondent, and suggested that, on account of what might be said during the hearing of, the petition, they should be removed. Mr. Mewhinney remarked that ho hid supposed that they might have been wanted to answer questions. His Honour observed that they were too young for that, ejid should not have bsen brought there. He then ordered their removal.

Mr. Gray said that the application was one made by Mrs. Mewhinnoy for the permission of the Court to have one of the children in her custody dnring the Christmas holidays. There was no way of proceeding except by petition. His Honour: Can I make any order in view of the decision of the Court of Appeal? .... . Mr. Mewhinney: I submit not, your Honour. , His Honour: I am not asking you, Mr. Mewhinney. Ton should know that yon are not asked. . His Honour wont on to explain to Mr. Gray that the decision of the Court of Appeal made it clear that neither the husband nor the wife could have the children away from the custody of toe Mr. Gray submitted that the decision wa4 open to a wider ruling'than-that. ■His Honour stated that it would only mean varying the Court of Appeal decision, and how could he do that? Mr. Mewhinney: That would bo taking them out of my custody. His Honour: You keep quiet. Mr. Gray submitted that the principle of the .judgment was that tho children should bo placed at school until a further order of the Supreme Court had been made. He referred to the Court of Appeal judgment. His Honour said that he could only vary the order if some now circumstance arose. • ...

Mr. Gray: I think that this is a reasonable application, your Honour. His Honour: I think so, too. I think that the order which I allowed on the previous occasion was perfectly reasonable. But the Court of Appeal saw fit to alter it. Mr. Gray: Then the children cannot come out except in the custody of the school authorities?

His Honour: That is so. Unless somo arrangement is como to between the parties and tho school authorities, I havo no power to grant the application. , ; After some further discussion, Mr.. Gray said that his client had suggested an agreement. , Tho essence of that agreement was that she should have ono of the children,, and Mewhinney the other. ! His Honour: Apparently he won't agree. Mr. Gray: Then we have to coma to your Honour. .His Honour intimated that ho had read through the papers, and had seen no reason to grant tho application. 1 Mr. Mewhinney again essayed to break jintaj the/'argument, but his-Honour gave, 'hint ! firm!y' to understand that ho must wait until ho was called on.

Mr. Gray suggested, that, if his Honour would express an opinion, the' school'authorities would no doubt respect it.

] His Honour replied that ho could not do that. Ho was not acting as guardian. ■ Mr. Gray submitted that, as no provision had been made for vacations, this could be treated by his Honour as a fresh circumstance. .His Honour did not concur in this view. Counsel again referred to the arrangement which his client had endeavoured to make with respondent regarding the children's holidays. .

His Honour thought it a proper arrangement, but, apparently, there was no chance of it-being effected.

Mt. Gray: Well, in that' case, the children are practically prisoners, Tho Judge agreed that tho authorities had no right to let them out for the holidays. Counsel would havo to apply to the Court of Appeal. Mr. Gray remarked that there was nothing to appeal on. Besides tho Court of Apiwal would not sit beforo March.

His Honour said that he did not thinkthat tha law shoidd allow that parents should be deprived of their children for the few weeks of tho holidays. It was not right for tho parents or for the children. But ho was powerless. It was clear that neither of the parents had a right to tho custody of tho children.

Mr.. Gray said that his client had heard that the children were to he removed during the holidays.

His Honour: If they are removed that will be a new circumstance on which I can net.

Mr. Mewhinney: Your Honour has overlooked one point. The school is not in existence during the holidays. His Honour: I don't want any words from you.

Mr. 'Mewhinney (picking up a bundle of papers): But I want to reply, your Honour.- »•".■'... His Honour: And I don't wish to hear y0n....

.Mr. Mewhinney: But surely I have a right to roplv. . His Honour (firmly): That will do. It is not necessary to reply; the petition is dismissed. Continuing his remarks, his Honour stated that neither party had a right to take the children from tho..school durin» the holidays nor had the school authorfties a right to allow them to bo tnk»n. Mr Mewhinney: I apply for costs, your Honour. His Honour: When a party appears in person, he docs not get costs. Mr. Mewhinney: But there' has been legal preparation, your Honour. His Honour: If you come hero without a solicitor you do not receive costs. Mr. Mewhinney: I think that is an unfair rule, your Honour. H His Honour did not arguo the posi-

ACCOUNTS WANTED. PLAINTIFF NOT ENTITLED TO SUE! Reserved judgment was delivered in the Supremo Court yesterday by the ,Chief Justice (Sir Eobert Stout) iii the preliminary action, in connection with the civil case Ol Briggs v. Harcourt and another. The parties to the action were leresa ,Briggs, plaintiff, and John Bateman Earcourt and Charles James Stanton Harcourt, defendants. At the hearing, Mr. E. J. Fitzgibbon appeared for tho plaintiff and Mr. F. G. Dalziell for the defendants.

It appeared from tho proceedings that, on March 12, 1892, Teresa Briggs (as administratrix of Phenix Briggs, deceased) became the registered proprietor of certain land in Wellington and Marlborough. This laud was to bo held in trust for herself for life. After tho death of Teresa Briggs the property was to pass on to tho three children of Phenix Briggs. Since June, 1901, Teresa Briggs had borrowed moneys from J. B. Harcourt and Co., on the security of tho property, and Harcourt and Co. had collected the nnts and profits of the properties mentioned in their securities. Certain of the properties were subsequently sold tiirough Harcourt and Co., and the proceeds api plied to the credit of Teresa Briggs, in an ' account with the firm. On July 7, 1910, i Teresa Briggs became a bankrupt at Hoki- ! tikn, and on October 31, 1919, the Official ] Assignee sent to Harcourt and Co. a no- ! tice, disclaiming the interest of the bank--1 nipt in tho properties mortgaged to them. The discharge was granted in March last. ; Teresa Briggs now claimed to be entitled Ui an account from Harcourt j.nd Co. of a'.' r,onpy« '.••"phei! and paid ',:;; tie-' in ...•>iii'?i-i ; on v; : t!i (he prperiios comprised in

Harcoiirt aud Co., lioivcver, contpndocl that they had rcmlorcil full iiceounU, and that sho was not entitled to an mcqunt in respect of the period beforo or einco hor bankruptcy. It was agreed to state a special cass for tho decision of tlio Court, and tho following questions were submitted :—

Is plaintiff entitled to any inter-at in tho properties in her estate disclaimed by the Assignee? Assuming that defendants havo not already accounted, is plaintiff entitled

to the account claimed? Was tho Assignee entitled to disclaim, and is the disclaimer valid? Is the Court, under Section &i of the Bankruptcy Act, entitled to vest the interest so disclaimed either m plain-

tiff or defendants? The decision of the learned Judge was that the plaintiff (Teresa Briggs) Mas not entitled to sue. Tho disclaimer of t&e Official Assignee was held to be tiiiu. CLAIM UNDER A MORTGAGE. £4000 INVOLVED. Ecserved judgment was delivered by the Chief Justice (Sir Eobert Stout), in the Supreme Court yesterday, m the case in which T. G. Macarthy, brewer, of Wellington, proceeded against James Bonnie, architect, of Wellington, and others, to recover the sum of .£4OOO and interest thereon alleged to be due to plaintiff by defendants under a mortgage on land at Island Bay. ino Chief Justice (Sir Eobert Stout) was on the Bench. _ „ , ... At the hearing, Mr. J. C. Peacock, with him Mr. Eoggard, appeared for T. Ji. Macarthy; Mr. T. W. Hislop, with him Mr. T. C. A. Hislop, for tho defendant (Bennie and others); Mr. F. G. Bolton for the trustees of the late C. W. Benbow; and Mr. T. Young for C. M. Mootefiore. From tho facts placed before tho Conrt it appeared that Francis Loudon sold land at Island Bay to a syndicate of 10 persons, including himself, and defendants. The (syndicate paid ,£2OOO cash, and gave Loudon a mortgage over the land for £40M, the balance of the purchase money. Loudon assigned this morfj gago to T. G. Macarthy, who now sued defendants for the JE4OOO.

The defences sot up were: First, that the defendants were only liable for .£4OO each; and secondly, that the mortgage was invalid because it was made between Loudon as ono of tho mortgagors and himself as mortgagee. It was also alleged that several members of the syndicate were bankrupt or insolvent and, therefore, plaintiff- as assigneo. of Loudon had to bear his sharo of tho contributions, which thpy we're liable to mako. His Honour held that tho defendants wore severally liable, and gave judgment for tho amount claimed, with costs. '

NOT LIABLE FOR RATES. OHIEO HOME, ''EPUNI STEEET. Whether or not the Wellington Hospital Board is liable for rates on the Ohiro Home, in Epuni Street, was the question docided by tho Chief Justico (Sir Eobert Stout) in tho Supreme Court yesterday. The parties to tho action were the Wellington Hospital Board, plaintiffs, and the Wellington City Council, defendants. Mr. W. F. Ward appeared for the board, and tho City Solicitor (Mr. J. O'Shea) for tho City Council. The Ohiro Homo was formerly controlled by tho Benevolent Trustees, but has since beon handed over to the Wellington Hospital Board. Tho institution is used to provide a refuge for aged people of both sexes in needy circumstances, and tho inmates aro treated by tho board's permanent medical staff free of charge. If their condition of health requires it, they are removed to the general hospital, and are thero also treated freo of charge. By a demand on August 15, 1910, tho City Council demanded £39 Bs. Id. for rates, being the first of two equal instalments for the year ending March 31, 1911. Tho board asked tho Court to say whether or not the amount was due. His Honour, after reviewing the facts, hold/that the board was not liable for rates on the property. PIERRE CHAPLIN'S CLAIM, The Chief Justico (Sir Eobert Stout) heard further evidence yesterdav morning in tho case in-whicb."Pierrc Chaplin, cook, of Wellington, sued W. T. Young (secretary) and tho Wellington section or' tha Seamen's Union to recover £150 damages alleged to be due on account pf injury suffered through the defendants having interfered with Chaplin's employment, and for an injunction to restrain tho defendants from further interfering with his employment. ; Mr. P. Levi appeared for Chaplin, while Mr.-O. R. Dix represented Young and the Seamen s Union. Particulars of tho case were published earlier in the week. Ono more witness for the defence was called, and-legal argument followed. .' Decision was reserved. ISLAND BAY CASE. . Legal argument was heard yesterday "J. tt", 0 c , aso o£ Loughnan and others v. '!'•, /■'• an action to secure corapletion ot an agreement to purchase laud at Island, Bay. Evidence was taken last week beforo the Chief Justice (Sir Eobert Stout). r« lr ' A- i ?r - Blair appeared for the plaintiffs, and Mr H. F. fon Haast, with him Mr. IL Buddie, for the defendant. Decision was reserved. IN DIVORCE. Corroborative evidence was tendered vestorday in tho divorce petition of Thomas Kogers hells v. Eva Mary Ivells. A decree nisi was granted. Mr. P. Levi appeared for the petitioner.