THE COURTS-TO-DAY.

Evening Star, Issue 8610, 2 September 1891, Page 2

THE COURTS-TO-DAY.

BUPHKME COURT-IN BANCO. (Before Hie Honor Mr Justice Williams,) MICHAEL O'BRIEN V. CHARLES A, SWANSON. Appeal from the decision of Mr Carew, R.M., in respect to the Middlemaroh liquorselling cases. Mr Fr&ser, who appeared for respondent, said that the two appeals were abandoned. Mr Macdonald, who was present, appeared for appellant. His Honor: No orders are asked for ? Mr Fraser: No, your Honor. I have protected my client. Appeals dismissed. TIMOTHY GORMAN V. MARY GORMAN. Case on appeal from Mr C. E. Rawson, R.M. at Inveroargill. Sir R. Stout for appellant, and Mr Fraser for respondent,

The statement of faots referred to in opening the oase set forth, among other things, that oomplainant and defendant in the Court below are husband and wife living apart; that the husband was in poßßesßiou of the Railway Hotel at Dipton, whioh was the wife's separate property btfore the marriage ; that defendant had threatened to burn down her hotel; that the hotel was recently destroyed by fire, the jury returning a verdict that the fire was intentionally caused by some person unknown ; that complainant has let a contract for the erection of a new hotel on the old site; that this property was leased to one Ayling, who was putting liquors into a temporary building when defendant turned the goods out, and told the contractor that whatever he put up on the ground would be knocked down; that on the 29th June defendant kuocked off two weather boards and split another one, The matter was brought before the Resident Magistrate, who was satisfied that complainant was not actuated by malice in asking for sureties, but simply wished the preservation of the peace, The magistrate determined that the allegations afforded no ground of defence to the threat made by defendant; that no bona fide question of title had arisen to justify defendant's conduct or to oust the jurisdiction of the Magistrate's Court; and that if defendant had any pecuniary claim upon his wife or her property, that would not justify his threat, his proper course being to take his civil remedy, if he had any. The magistrate's deoieion was appealed against on these grounds—(l) That a bona fide question of title was before the Court, and consequently it had no jurisdiction; (2) that the threat, as alleged, to destroy a buildiDg about to be erected above the value of 1.5 had not been proved, and the complaint had not been amended; (3) that there w.ib no proof that if the threat proved had been carried out over L 5 worth of injury would have been done; (4) that the complaint did not disclose an offence as provided by section 8, subsection 4, of the Justices of the Peace Act of 1882, as the building alleged might never have been erected.

Sir Robert Stout said that the first question of law that arose was this: under what section of the Act were theße proceedings taken? He submitted that they were taken under section 8, subsection 4, of the Justices of the Peace Act; and that the only case in whioh sureties of the peace could be required for a threat to do an offence punishable under the Malicious Injury to Property Act was one in which it would appear that if the threat were oarried out the offence would be a punishable one. In this case tho threat could not be carried out, because the building was not in existence. There was no building on which to carry out the threat. Tne second point which the magistrate had not met was that the man was in possession, He had been in possession a long time by permission of complainant. Whether it was or was not a tenancy at will did not matter, but it appeared from the agreement that the tenancy was more than a tenancy at will, because the agreement was that the parties should keep the two families apart. The magistrate found that the man was in physical possession ; and, that being so, the question arose whether a person had a right to put a building on the property without his permission, Hence there arose a bona fide question of title. It was not a question as to a good or a bad title, but whether the man had any title or even the pretence oi a title. Mr Fraser said that the position defendant took up at the hearing was that he had money transactions with his wife, that he had been licensee of the hotel, and that he was joined in possession with her, but he did not claim that he had any right to the property beyond being in possession. After the hotel was burnt the wife leased the property to one Ayling, and, uuder all the oiroumstanoes, the Magistrate's duty was to go into the oase so far as to see whether defendant had a reasonable claim to a title or whether the title was just put up as a defenoe. Before the Court would reverse the magistrate's decision it would require to be perfectly satisfied that the magistrate waß wrong in finding against the bona fides of the defence. Learned counsel further submitted that it was immaterial whether the building was in esse or not; it was the threat that was the offence. Sir Robert Stout was heard in reply. Judgment reserved. RESIDENT MAGISTRATE'S COURT. (Before E. H. Carew, Esq., R.M.) Roxburgh Amalgamated Mining Company v. James Steele. —Claim, L 22 17s 10J, on calls. Mr Chapman for plaintiff company, and Mr Mouat for defendant.—After argument, His Worship intimated that he would reserve his decision.

Karl Graf v, Abraham Posnanski.—Claim, L 3 10s, balance of account due for making an artificial leg. Mr Hodgkms for plaintiff, and Mr Hanlon for defendant,—Plaintiff, a mechanical engineer, said that defendant asked him to make him an artificial leg. Witness said that he had better go to the man next door, who was a leg maker. Posnanski replied " You wear a leg yourself, and oan make me one." Witness then consented to fill the order, and the price of L 6 was agreed on. Posnanski said that he wanted it made strong. He paid LI 10a on delivery, and LI afterwards, and then came and said that the leg waa too heavy—it made his hip ache—and he would not pay any more. Witness had made his own artificial leg. To His Worship: It was not part of a mechanical engineer's business to make artificial legs, but the one he made for himself had given satisfaction during the fourteen months it had been in wear. To Mr Hodgkina: The leg was as light as it could be made. It was built of moko, or cork wood, To Mr Haulon : Posnanski wanted a piece of leather altered on the leg, and witness did it, Witness had a leg made by Johnson, the other man referred to, but it broke. An aitifioial leg from Bin below the knee down ought to weigh 71b or 81b. He weighed his own leg, that Johnson sent him, and for.nd out. When it first came home it weighed bajf a ton, Could give no idea of what that part of a man's leg ought to weigh. He had never taken any off.—Mr Hanlon: No; you put them on. Would it Burprise you to learn that that part of a man's leg weighs only five or six pounds ? Witness: No; I would not be surprised. I do not think that leg (produced) is too heavy for Posnanski to wear. I have seen him wearing it, Have never heard that an artificial limb should not be more than half the weight of an amputated limb. Poßnanski said on trying the leg on that he thought it wpuld do; that he supposed he would have to get used to it. When he complained of its heaviness be asked if it could be made lighter, and I said I did not think it oonld. If I had made the iron parts any lighter the leg would not have stood an hour.—Mr Hanlon said the defence was that the leg was not fit for the purpose for whioh it waa intended, —Abraham Posnanski, tailor, gave evidenoe to the effect that Graf came to him and said he had come to measure witness for a leg. Witness had not seen him previously, and asked him whether he had made any legs befpre. He paid that he bad made four, ope fop himself, whioh he showed to witness. Graf added that ho had bad one made by Johnson, but that it broke when used. Witness said: " If you oan make me a leg that I can ÜBB&ii you use yours yon oan make me a leg; bat it mast be light." Graf said ha would make a very nice leg of cork. The last thing witness said was; "Mr Graf,

make it light; if yon dont make it light I can't wear it." The understanding was that there should bo aoork foot. Witness agreed to pay L 6; but kept on saying the leg most be light. When the leg was brought home witness could not wear -it; it was too heavy by ilb, according to the books.—His Worship aaid that he would like to have expert evidence on the matter. —Mr Hanlon said that if an adjournment were granted without the other ewe'asking for costs he wonld undertake to procure expert evidence.—The oase was adjourned by the Court until Friday. Roxburgh Amalgamated Mining Company v. Philip M. Broad.—Claim, L 22 17s lOd, on calls, Mr Chapman for plaintiff.—Judgment by default. Qeorge Arundel v. Robert M'Kinlay.— Claim, 15s, money lent. Judgment by default. -. CITY POLICE COURT. (Before Messrs H. Gourley and J. Elmer, J.P.8.) Drunkenness. A first offender and Swan Gavin (who had not been before the Court for over three years) were convicted and discharged. Drunk and Disorderly. Frederick Freinstein was charged with, while drunk, behaving in a disorderly manner in Princes street last night.—Constable Hastie gave evidenoe.—Accused said he remembered nothing of the occurrence.—He was fined 10s, in default forty-eight hours' imprisonment.

Chimney on Fire.— John Neame, who did not appear, was fined 5s for allowing the chimney of his house in Leith street to catch fire on the 26th ult. Occupying a Disorderly House,— James Freeman was charged with being the occupier of a house in Chalmers place occupied by persons having no lawful means of support,—Sergeant-major Bevin said that this case was adjourned for a week to give the man an opportunity of leaving the locality. Se had done so, having removed to South Dunedin. The case was withdrawn.—Mr Gourley asked if there was no legal plaoe for people of thia clasß to remove to. He often noticed these cases coming before the Court.— Sergeant-major Bevin replied that the place where this man and others who had been before the Court lived was a hotbed of infamy, and bad to be cleared.—Mr Gourley said that might be so, but if these people were removed from one plaoe to another, and were a nuisance in the next abode they took up, then to his mind it was the police who caused the nuisance.—Sergeant-major Bevin: We only act under instructions, your Worships.—Mr Gourley: There ought to be Borne place for them to go to. They must live. If they commit an offence they should be Bent to gaol, and if they don't you have no right to send them from one place to another, because you know for a certainty that wherever they go they will be as great a nuisance as ever. You find that a man is a nuisance in one place, and you send him to another place where he is sure to be a nuisance also, and therefore I hold that the police, and not the man, are the cause of the nuisance. Sergeant-major Bevin said that in the present oase the Bench gave the man a week to leave his house.— Mr Gourley: If a man commits an offence he should be punished. If the offence is not sufficient for punishment he should be allowed to remain where he is, because it is better to leave him there than to send him to another place to be a nuisance.—Sergeantmajor Bevin: We are only acting under instructions.—Mr Gourley: It seems to me that the instructions are entirely wrong.