THE COURTS.

New Zealand Mail, Issue 1199, 22 February 1895, Page 29

THE COURTS.

SUPREME COURT-

IN BANCO. His Honor Mr Justice Richmond took his seat on the bench at 10.30 a.m. yesterday week. 4.dam and james m'laeen (appellants) V. Bartholomew denneh* (respondent). This was an appeal from a judgment given in the Magistrate's Court at Danevirke. Mr T.' Young appeared for the appellants, the other side was unrepresented. It appeared that an information had been laid, under section 24 of the Police Offences Act. 1884, against the appellants for making use of obscene language: in the respondent's hotel at Danevirke. The case was heard by two Justices, who came to the conclusion that the McLarens were guilty of the charge brought against them. Seeing, however, that if they were convicted.under section 24, they must be imprisoned without the option of a fine, the Justices took it upon themselves, out of consideration for the fact that the defendants were married men, to reduce the charge to one of using abusive and threatening language (sub-section 3 of section 29), and fined each of them «£2 and costs. But the defendants were not charged with the reduced offence in respect of which the fine was imposed. Hence the appeal. His Honor said it was plain the conviction could not stand. It must be quashed, but he wDuld allow no costs, against the respondent, seeing that it was entirely for the benefit of the appellants that the Justices had taken their illegal action. The conviction was therf ore quashed, without costs. DI RACK) V. PUBLIC TRUSTEE. This was a summons to review the taxation of costs in an action brought against the Public Trustee, charging him with maladministration of a lunatic's estate. The\ summons had been previously argued, and His Honor now gave judgment. He said he had come to the conclusion that he had jurisdiction to moderate the costs charged against the estate of the lunatic, and that they ought to be moderated. The defence of the action Di Rago v. the Public Trustee on the issues of fact was nowise beneficial tp ; the estate. The Public Trustee was entitled*and even obliged to defend the action, but as the plaintiff's title to sue was manifestly defective, that answer to the action might have been at once set up, and the expense of a trial saved to the estate. The trial} did not even serve the purpose of a vindi- | cation of the office, for the legal objections which might have dispensed with the necessity of the trial were successfully raised as nonsuit points. Costs, <£3 3s, on this application were allowed the plaintiff against the estate. £3O was allowed against the estate for argument of the law points in the original action. GEO. ANDERSON V. W. H. LEVIN'S TRUSTEES.

Argument on points of law raised by defendants by way of demurrer; Mr Edwards appeared for the plaintiff, Mr H. D. Bell for the defendants.

The plaintiff is a well-known member of the Wellington City Council, and was in the , service of Levin and Co. as head store/nan from 1861 to 1893. The statement of claim set out that in 1878 the late Mr W. H. Levin in a conversation with the plaintiff expressed himself weir satisfied with his services and promised to pension him when the proper time came. In December, 1882, plaintiff completed his 21st year of service with the firm, and on that occasion the late Mr W. H. Levin congratulated Tiim arid made him a present. In the course of a conversation which ensued plaintiff tajked of retiring owing to insufficiency of salary for his family needs, and entering into business for himself, whereupon Mr Levin renewed the promise ofapenaion. This induced the plaintiff to abandon his. intention of retiring. In 1890, plaintiff, by consent of his employer, took *trij>'to England and on his return in

November of that year Mr Levin offered to pension him. Plaintiff, however, preferred to continue" in the active service of the firm. In July, 1893, he was taken seriously ill with an affection of the heart, and during his illness Mr Levin repeatedly visited him and assured both him and his wife of his intention to pension the plaintiff. This assurance was also given in the following month to plaintiff's son, Mr Levin saying that he was going to provide for the plaintiff when he left off work as long as he lived. On the same day Mr Levin saw Dr Anson, and having ascertained' from him that it was imperatively necessary for the plaintiff to give up work and lead an easy and quiet life, he said it was his intention to give the plaintiff a retiring allowance of .£l5O per annum. In the same month Mr Levin wrote out and delivered to the bookkeeper of his firm the following memo.: —"Memo, for Mr Waters, 16/8/93. As from Ist September, 1893, Mr George Anderson retires on half-pay, i.e. .£125 per annum. —W. H. Levin." After a subsequent conversation with the plaintiff, in which the latter doubted whether, with broken health and medical expenses, he would be able to pay his way with the allowance of .£125, Mr "Levin promised and agreed to allow the plaintiff .£l5O per annum during plaintiff's life. Mr Levin intended by his will to provide for carrying out these promises, but he died unexpectedly on September 15, 1893, without having done so. The pension of £125 per annum was paid to the plaintiff from the Ist September, 1893, until Mr Levin's death. The plaintiff therefore prayed that the promises and agreements set forth above might be declared binding upon the defendants during,, the plaintiff's lifetime, or in the alternative he prayed judgment for .£2OOO. ',.'••

Mr Bell said the question was whether the payment of the.pension was an obligation upon the family of the late Mr Levin or upon the trust; i.e., whpther it was a legal obligation. . It was not a question at all of stopping payment to Mr Anderson. The point of law was raised by the trustees with regard to their trust, whether they were justified out of the trust funds to make these payments. If the Court could see any way whereby a legal obligation could be constituted the trustees would be satisfied with it. As it was there appeared to be two grounds on which it would be for the Court to say whether the claim could be enforced : Ist, that it rested upou a promise without consideration ; 2nd, it was a pontract not to perform within a year and there was no memo, of writing for it. , , Mr Edwards, in replying, remarked that the plaintiff had nothing to say against the conduct of the late Mr Levin's family. In fact, their conduct bad been geuerous. Mrs Levin had expressed the intention to pay during her lrfetims a certain proportion of the pension out of her income, and Mr Levin's father* had undertaken to make up the balance. .But this provision might be defeated at any time by the death of one or other or both pf these parties. Moreover, the plaintiff thought he e should not have the allowance as an act of charity from the private means of the late Mr, Levin's wife and father, but that it' should come from the estate of the gentleman who contracted to pay itiv '

After hearing argument on the law points, His Honor reserved judgment.

CIVIL SITTINGS.

Mr Justice Richmond sat on Friday to hear two civil cases brought by Harrison Bros., against H. T. Mahupuku, of the Wairarapa, one being to recover £2714 on promissory, notes, while in the other the defendant' was sued as executor of Tiki (deceased) for .£l4l. Both cases were settled. In the first judgment was entered for ah amount to.be settled between the parties, a counter claim being abandoned, plaintiffs giving credit for rents due the -defendant. Proceedings are stayed until Parliament meets. In the second case judgment was entered up for the amount claimed, prcceedings to be stayed for 21 days. Mr Izard was for plaintiff, and Mr Chapman for defendant. Auckland, February 14. In the case brought by the Crown against the Union Steam Ship Company for the maintenance of a passenger coming under the provisions of the Imbecile Passengers Act, Mr Justice Gonolly has given judgment for the defendants. The Company paid by instalments the sum of .£IOO named in the bond for the maintenance of the passenger after he had ■ been landed from their but declined to pay any more, and this case was brought to test the question whether they wete iable for more.

CRIMINAL SITTINGS

j The prisoner Joseph Foggan,in custody at STapier on several charges of burglary (including breaking into the Kaikora Post Office) was sentenced at the Supreme Court there last week to four years" imprisonment. Jas. Studdon was sentenced to two years' and John Russell to twelve months' imprisonment for similar offences. V The following cases are set down so far on, the calendar for the criminal sessions of the Supreme Court, which open on Monday week:—-John Doyle and Thos. Shaffery, theft; David Shannon, Arthur Poulson, Michael Knight arid ChasV Westbrook, burglary; Wm. A. Noon, forgery and uttering; Joseph Mason and James Studdon, burglary and theft (two separate charges); John Walsh and Richard Brooks, assault with intent; Geo. Todd, Jeremiah Crawley, Jeremiah Kelly and Robt. Wm. Mountain, inflicting grievous bodily harm ; John : Callaghan, ditto; Jeremiah Dunn, housebreaking; Wm. Thomas, manslaughter ; Henry Graham, alias Goodwood, personation; Henry McLaughlin, attempt to steal from the person; Duncan Calvert Monteith, forgery and uttering (two

charges) ; Joseph Traynor, false pretences; Jeremiah Dunn, burglary. Napier, February 15. After occupying the Supreme Court for two days the Hastings Post Office robbery case ended in the acquittal of the two young men Dennett. The evidence was entirely circumstantial, and, although it looked strong, the defence brought- evidence which satisfactorily explained away some of its most suspicious features. Napier, February 18. The Supreme Court was occupied all Saturday in hearing the charges of false pretences brought by Thomas Tanner against Carl F. Mortensen, in connection with the management of the Piri Piri sawmills. The jury retired at midnight, returning at 2 a.m. with a verdict of guilty. Accused was sentenced to four months' imprisonment. Christchurch, February 19. Sohnier, the second mate of the barque Franz, who was re-arrested in connection with the Timaru shooting case, was placed on his trial at the Supreme Court to-day on a charge of manslaughter, and found not , guilty.