COURT REPORTS

New Zealand Times, Volume XXX, Issue 6623, 12 September 1908, Page 6

COURT REPORTS

FRIDAY, SEPTEMBER 11. SUPREME COURT CRIMINAL (Before his Honor Mr Justice Cooper.) PRISONERS SENTENCED. PROBATION GRANTED. A lad named Arthur Harrod, seventeen years of age, who- had pleaded guilty to a cha-igo of having attempted to commit an indecent assault at Cross Creek, was brought before tho Court for sentence. Air A. L. Herdman, who appeared for tho prisoner when he was first brought up on Wednesday last, had expressed the opinion that it was doubtful whether any such offence as that to which the prisoner had pleaded guilty had been committed at ail. In th© first instance the lad had boon charged with sheep stealing and as he ‘had made an explanation the present charge, which was of a much moro serious character, had been made against him and he had pleaded guilty to it. On that occasion his Honor adourned the case in order tliat ha might carefully consider it.

ITis Honor now said the case had given him a considerable amount of anxiety. Ho had no doubt hut that the prisoner understood the nature of the charge preferred against him when he pleaded guilty. Tho testimonials that had been handed in showed that previously the prisoner had borne an exceedingly good character. The offence to* which prisoner had pleaded guilty was punishable by imprisonment for five years. Assuming tho prisoner had committed this offence, if ho were sent to gaol the result probably would be tliat there would be no future chance of his reformation. His Honor had with considerable hesitation decided to extend the provisions of the First Offenders Probation Act to the prisoner. In so doing he had considered prisoner's previous good character, and, in addition, when reading the depositions ho could not help fooling some element of doubt as to the prisoner’s guilt, and further ho had a desire to save tho prisoner from a criminal career. Ke would be admitted to probation for throe years on condition that he entered into a recognisance to bo of good

behaviour during that period, found two sureties to bo approved by the Crown for £SO each, and paid the casts of the prosecution, £2 Bs, in three mouths. AX HOTEL THIEF. A young man named John William Bishop was brought up for sentence of having stolen two portmanteaux containing property and personal effects owned by Chiof-Dctoctive McJlvcney, from o bedroom in the Royal Hotel. Prisoner, when called upon, had nothing to say in mitigation of his punishment, and ho was sentenced to two years’ imprisonment. The stolon goods were ordered to be restored to their owner. SUPREME COURT-CIVIL his Honor Mr Justice Cooper.) A LEVIN LAND PURCHASE. KIB BEE WHITE v. SOMERVILLE. The hearing of this case, which was commenced on Wednesday, the 9th inst., was continued. Mr C. B. Morison appeared for tho plaintiffs, James Henry Kibblowhitc and William Dun* can Kibblowhito (who was joined as a plaintiff at tho opening of the proceedings), and Mr M. Chapman, K.C., with him Mr A. Dunn, appeared for tho defendant, Vriiiiam George SomerviPo.

Plaintiffs’ case was that certain land known as Whirokino No. 2, which is situated near Levin, was offered by defendant for sale, and tho plaintiff, James Ilonry Kibblonvhite, by bis agent, "William Duncan Kibblowhite, agreed to purchase it. The area of tho property, was 7013 acres, and tho terms of purchase wore:—£l2oo within one month; £BOO within twelve months, with o per cent, added, and the balance, £I7OO, hy taking over an existing mortgage bearing intercut at ol per cent, and payable in January. 1912. Plaintiffs alleged that the actual boundaries of the property were misrepresented to them as including certain valuable flat land, whereas, in fact, this level portion of the country "' Ri ' tho p:*opertvof a neighbour. Plaintiffs consequently asked that the contract to purchase should bo set aside, and that the sum of £I2OO which ho had paid on account of tho purchase should bo returned. Defendant domed that any misrepresentations had been made as to tho boundaries of the property, and contended that plaintiffs had no rightful reason for desiring the rescission of the contract. Defendant alleged that both before and after the making of the contract the Kibblewhites visited tho property several times, and tho true boundaries wore pointed out to them. Defendant, who had entered tho wit-ness-box on tho previous afternoon, continued his evidence. Ho said lio thought tho property was worth from £7 to £8 per acre. He r>aid £6 10s per acre for it.

In cross-examination dofondant said ho had prepared a list of his properties, which included Whirokino No* 2, and which stated that it was r‘substantially ring-fenced.” This was an error, as tho word should have “ sufficiently ” instead of “substantially/* Mr W. D. Kibblowhite had admitted that ho had been shown tho proper boundaries by Thomas Rogers. Mr Chapman addressed his Honor, and submitted that there had been no personal misrepresentation on tho part of the defendant in regard to tho property.

His Honor said there was no imputation against Mr Somerville of any personal impropriety of conduct on his part.

Mr Chapman said tho crus of the case was that xdaintiffs would have to show that the persons employed by tho defendant misrepresented the boundaries of the property. Mr Morison replied, and argued that if tho plaintiffs had established their case the onus was shifted to the defendant to call evidence to rebut plaintiffs’ case. His Honor reserved judgment. A CLAIM FOR COMMISSION. HUTCHISON v, BENGE. In this case Mr G. Hutchison appeared for tho plaintiff, William Gordon Hutchison, and Mr C. W. Treadwell for the defendant, Alfred Benge. Plaintiff, by his statement of claim, .set out that until recently he was the owner of a block of land situated at tho Upper Hutt. containing about 3567. acres. On March 30bh, 1908, defendant gave plaintiff an option to buy or sell this property for £.2300, or, including the stock that was on it, for £2GCO. This option was to have a. currency of thirty days. In pursuance of this option ho entered into an agreement with one Herbert. Pearson Rawson, dentist, of Wellington, for the Air Raw,son of the property for w 2350, but owing to plaintiff having no title to tho land other than the option, Air Rawson refused to carry out tho agreement. Later in tho same day the defendant, on the position being explained to him, gave plaintiff an authority to sell the property for £2250 net, and this authority provided that tho plaintiff should receive as commission on the sale any sum received as purchase-money over and above £22*50. Acting under this authority, plaintiff obtained from Mr Rawson an Undertaking to nuroha.se the property prior to the. signing of the authority, was informed of the parties with whom plaintiff was negotiating for tho sal© °A property, and was also informed of tho circumstances of the proposed sale, to which lie fully assented. Tho plaintiff stales that from inquiries ho has made ho has learned that Air Rawson has entered into an arrangement with the defendant as to the terms upon which the property is to he purchased and that a deposit has been paid on account of the purchase money and that tho purchaser has taken possession of the property but tho whole of the purchase money had not boon paid over to defendant. Plaintiff also claims that he negotiated with Air Rawson for the purchase of the stock, and that he has been informed that the stock has been taken over and that defendant has received , from Mr Rawson £2OO for the stock. Plaintiff therefore claimed £4OO as commission on the sale of the land and £lO as commission on the sale of the stock, Dofendant, by his statement of defence. said that if plaintiff had acted as his agent and entered into a contract with Air Rawson for the sale cf the property he (defendant) was gl-

ways ready and willing to carry out that contract, but Mr Rawson had refused to perform and carry out the contract on the ground as he alleged

that he was induced to enter into it by misrepresentations made to him by the plaintiff with regard to the boundaries of tho farm, and as tho rosult of thpse misrepresentations the sale to Mr Rawson did not come off and thereby defendant lost the benefit of the proposed sale. Dofondant denied that tho plaintiff had procured Mr Kawson or any other person to enter into a valid contract for tho sale of the farm in accordance with the instructions the defendant had given him, and consequently ho was not entitled to any commission.

Mr Hutchison proceeded to open tho case, for the plaintiff when his Honor pointed out to him that on tho agreement made between the plaintiff and defendant it was quite plain that the plaintiff could not recover tho £4.00 claimed as commission until tho purchase money under the contract between Bongo and Rawson had been paid over.

Mr Hutchison thereupon asked for judgment for £lO, the amount of the commission on the sale of the stock.

Mr Treadwell agreed to this course being followed on the express condition that ho was not to he taken to admit any liability as to the £4OO, that nil defences were open to him and that he was allowed costs on the claim of £4OO.

His Honor thereupon entered judgment for plaintiff for £lO without costs; the plaintiff to pay £ls 15s and Court fees and the total sum of £4 for witnesses’ expenses in respect of the £400; against these costs the defendant to he entitled to sot off the £lO the amount of plaintiff’s judgment. MAGISTRATE'S JURISDICTION (Before Mr W. G. Riddell, S.M.) POLICE CASES. ' Samuel Bray, for whom Mr O’Regnn appeared, was fined £4, with costs 16s. in default twenty-one days’ imprisonment, for having used obscene language at Island Bay. George Sturt, a young man,- pleaded guilty to six charges of theft of sums of money, paid to him on behalf of his employer, Alfred Cooper The total amount stolen was £8 7s 4d. The accused was sentenced to three months’ imprisonment on each charge, the sentences to lie concurrent. John Butler, on a charge of having assaulted Mildred Butler, was remanded until September 16th. ILLEGAL SALE OF MILK. George Bell, for having Bold milk other than from a registered dairy, was fined IQs, with costs £1 Bs, in default forty-eight hours’ imprisonment. Mr Richmond appeared on behalf of tho Health Department, which prosecuted, Mr O'Leary representing tho defendant. _