Supreme Court.

Manawatu Standard, Volume XL, Issue 7841, 19 May 1904, Page 5

Supreme Court.

PALMERSTON.-WEDNESDAY.

(Before the Chief Justice)

ALLEGED FALSE REPRESENTATION.

■ TJ?° «ase, in whid* Caleb Smith sued Mrs M.E. Crook for a recission- of agreement to purchase on the ground of alleged misrepresentation of the value of the business sold was continued yesterday afternoon. Defendant was subjected to a lengthy arid severe cross-examina-tion. ..;■■■' His Honor, on comparing the defendants bank book and ledger disC??^ d there was a sum -°? about £1500 unaccounted for. He considered the ease should be adjourned to enable the invoices and vouchers to be produced ' and examined. The case will be continued in Weilirtgton at a ;latcr date.

Messrs Myers (Wellington) and Cooper* appeared for plaintiff and Mr Cooke, instructed by Messrs Guy and Maclean, for defendants. ALLEGED INFRINGEMENT OF . PATENT. F. T. Pacre (Mr Baldwin) v. D. Donald (Mr limes). " The statement 6f claim set out that defendant claimed to be the patentee of an invention, patented No. _._._.•_ November 14th, IS9S, and by letters sent to plaintiff and his agents threatened hinif with legal proceedings in respect of.ithe manufacture, sale, etc., of tho patent. Plaintiff contended that by 'such action he had suffered damage and claimed £50 damage and further relief as the Court thought fit- . B Defenhaiit denied the allegations of plaintiff. p f He was the inventor of an improved wire strainer, the sal-ie:it--ppin';? of which were described. Plaintiff?-.^'- was alleged, since letters patent hadHjecn granted the defendant, had patenfel and sold a wire strainer alleged Ad te an infrino-e----ment of the defendaritV^fiten^ The latter counter-claimed to'-the extent of. £500 damages, and applied for injunction restraining plaintiff from" further infringement. Having heard expert evidence <*iven by Adam Burges and C. Bergersen, lalmcrstou, as to the use of springs in the two strainers, his Honor sa?d ho did not see how there could be any infringement of defendant's patent. At his suggestion the case was adjourned till this morning, for the patents to be more closely examined.

THURSDAY. The patent case of Page v. Donald was continued at tin's morning's session. ° His Honor intimated to Mr. Innes, counsel for the defendant, that he did not think he had proved his case. The main contention was that there had been an infringement, but he did not think there had been. Replying to Mr Baldwin, his Honor said the , matter was now one for settlement of costs only. An injunction was not necessary in view! of the fact that there had not "been any infringement.

Mr Baldwin submitted that under the section he was entitled to an injunction. His Honor, after hearing counsel, said an injunction could be granted if counsel particularly desired it, but he saw no reason why the parties should be put.to unnecessary expens*.

In giving judgment, his Honor said :—I am of opinion that Page's invention is not an infringement* of Donald's patent.. From the evidence of the experts, especially Mr Burges and Mr Bergensoii, it is plain that it is not so. It is suggested by tho defendant that the spring in his machine is infringed by the use of the wire in Page's invention. It is sclear that it is not so. The spring in Donald's machine is used for- the purpose of keeping a steady tension' upon the wire and causing the gripper to remain tightly closed upon the wire.. In Page's case the wire spring has an entirely different effect. As Mr Bergenson very properly , pointed out, the effect is rather iv the nature of opening the gripper after the strain is removed than in closing it. If is clear thero. is no infringement. With reference to the injunction, it seems to me the threats were made under a bona fide belief by Donald.that his patent was infringed by Page's. It seems to me that an injunction is unnecessary to the plaintiff, and would be a useless expense as far as the defendant is concerned. I shall therefore give /judgment . in favour 06 the plaintiff Page upon the counter claim with costs £25, disbursements and witnesses expenses.

ROBBERY AND ASSAULT.

The youths Smith, i Hurdle and Dowdall, remanded on Monday last till to-day, were brought before the Court for sentence. Mr Baldwin, on behalf of the prisoners, said that if the boys were allowed to go on a farm, employment w-ould be guaranteed. •:■■■■■''■ '

His Hc»oi* said that provided the prisoners kept their employment for two years, did not go back to Feilding, kept away, from hotels ; and led sober lives they would be allowed to 'go. :If they disobeyed those provisions they .would be liable to be called for sentence? His Honor'■added it was a very painful thing for him to think young men gave way to" drink; far more perhaps than it w*as to themselves. He would give them this chance because he did not wish to send boys to gaol. •

■■:'..' IN; DIVORCE, Frederick .Flavell (Mr' Sandilands) petitioned for a dissolution of c*arriage with Mary Jane Flavell (Mr Prior) on the grounds of desertion. Petitioner :■ stated. theyi were married at: Kaiapoi in 18S9? Their first child was born the following year. About four years after marriage?they took' up their permanent residence in Feilding.? In 1899 his wife left him. Petitioner . detailed ■ several instances of his wife's treatment;' of. ?him.,,He could not understand her behaviour, and her refusal to return home, and he therefore had,.her examined by . two doctors, and they, certified she ..was perfectly sane. Court ■ proceedings ; were commenced against. petitioner by his wife but the ..ease was dismissed; Mr Greenfield advising? Mrs Flavell 'to return home, but ■ she. refused. 'His;';wife made, no further claim for . maintenance '.'■ after the. result- of the Court case. He denied cruelly .at .any tinie, and said his wife had no re_son to leave him. She had ; deserted him and refused all .requests to return, - ? '?

Cross-examined, witness aa'mittec ne frequently had rheumatics, and on those occasions Ins wife sometimes laced his boots.. He had been a member of the Salvation Army but denied he had been expelled because of his treatment of his wife tie hao sent in his resignation, due °- senders, circulated by his wile. Had not refused his wife a doctor during an accouchment period. Had never looked his wife in a room. He denied that he had ins wife medically examined with the idea of having her confined as a lunatic. He ■'could not remember dosing ' her with black medicine, which, it was alleged, he used, to measure out by drop£. He had _ii<r. gested to his wife that a period fn a Rescue Home would be benelhial to her. Counsel : Why did you want to send her there ? Petitioner: If you go into tbat question I will-"have to expose Mrs Flavell. I do not want to do that before the whole world. Counsel : You can say anything 3frs Flavell will meet all you c_n say. Petitioner : Perhaps * but I may. have more respect for Mrs Flavell than you have. Counsel: Had you not a lady friend at this time to whom Mrs Flavell objected. . - Petitioner: Mrs Flavell did not object to her. 1 d_c! not suggest she should come and live with Mrs rJavell and .myself. Under further examination witness admitted that after his wife left him the lacy referred.to had staved at his place. Petitioner explained that his final rupture with his wife was due to an incident he, himself, had witnessed. Petitioner alleged that on one occasion he had watched outside the house occupied by hiswife till one o'clock in the morning. Going away he met a man named Clarke Lucas going towards the house. Petitioner, who was disguised, said he made a circuit across the paddocks and got back to the house. The bedroom window was slightly open, and on approaching he: alleged that he distinctly heard 'la&vjvife and Lucas conversing. Next day "w^ness stopped his wife's credit, idid _ot speak to her again, and took stepSsto obtain „ housekeeper. Amelia SlkiltJ&fi. a neighbour of the respondent, 'fivfeff in Feilding, said the latter had t&}d ber that petitioner was unkind, antr^sbp did not intend to live with him. ■'fitness said she told respondent not to?"** be silly;-. ,but . the latter said sho could not live with him s»ny longer; she intended to lock the house up and put the key where he could get it.

The evidence of the last witness closed the petitioner's case..Counsel for the respondent, iii opening for his client, detailed numerous acts of unkindness* and cruelty; that had occurred, in fact, said counsel, her life, has been one longj state of cruelty and in every way. the case was not one in which release should be granted. His Honor: Certainly not, if you' prove those allegations. But I don't understand the case, Mr Prior. If Mrs Flavell believed what she wrote in that letter (referring to one written .by Mrs Flavell accusing her husband of adultery) she should only betoo anxious to be free. But it ap-* pears she still wants to be Mrs Flavell., ■_ Respondent said that she considered Ker husband's cruelty commenced shortly *xf ter.- the first child was' Lorn, when he neglected to see. her. till after an operation had "been performed on her. On another occasion he struck her while sbe was doing the washing and later on be one night asked her to go for a walk. She went out with him. He took Ker toi the Salvation Army barracks, ' an_ she, heard him give his testimony.-He took her home again and without any apparent cause, caught hold of her by. the.' shoulder, dragged her about the room and forced heir head as hard as he could against the side" of the wall. She thought he was going to kill h"er. She ha 3 got oyer the constant insults to her by" his accusing her of being immoral and • the real cause of her leaving home was, the constant cruelty. His Honor.: 'Why are you not willing if lie treated you- Jik'et this to bo free *?—Because I hope that before my husband dies he will see the folly ,of his life.-

His Honor :?\re you willing to go back to him now ?—^es, if He will treat me as other wives are treated by their husbands and give up "other women.. I ,tlo not think .women are very nice -svh'o ,go travelling about with another-woman's husband. Respondent wa9 cross-examined at length on her evidence in chief. Sho reiterated her charges of cruelty, both physically a"d in tho statements she alleged her husband made againsfc»her chastity. Mary Ann Baker deposed to having accompanied respondent to petitioner's house. There was a woman staying with him at the time. Witness knocked at the door. Petitionsr came in' answer and as soon as he saw his wife he slammed the door. Not a word was spoken oh either side. (Left sitting).