SUPREME COURT.

Otago Daily Times, Issue 15300, 14 November 1911, Page 3

SUPREME COURT.

IN BANCO.

Mo.vdat, November 13. / (Before hU Honor Mr Justice Williams.) IN HE CATHEBLVE FBASEB, DECEASED. Blair and others v. tho Olago Hispital end Charitable Aid Board , and others.—An I originating summons for tho interpretation of a will.—Mr Woodbousc appeared for tho trustees under tho will (Blair and others); Mr Adams for Nathaniel Peterson (secretary of tbo Kcgions Boyond llissionl. David Leslio (treasurer of the Ramabai Mission), and H. S. Wilson (treasurer of tho Brethren); Mr WeMS for tho Rov. Mr Conirio (treasurer of the Presbyterian Church of New Zealand); Mr White for tho Hospital and Charitablo Aid Board; Mr Donald Roid, instructed by Sir Ramsay, for Noah M'Lellan; Mr Stephens, for William M'Lellan; Mr W. Downio Stewart for tho Rev. Mr Axcben (secretary of tho Duncdin Presbyterian Orphanage). Tho question before, tho court on this occasion was ono left over from Friday's hearing—na-nely, whether the direction in Ihe will to tho trustees to invest tlio sum of £500 and to apply the income therefrom as a scholarship to assist young men pursuing, their studies in preparing for the ministry cf the Presbyterian Church, 'or some evangelical religious body, came vrith'in the term "religious and charitable bodice," and entitled tho toholarship fund , to a share of tho residue pro rata with the other religious and charitablo legatees. Mr Webb, on behalf of the Presbyterian Church, argued that tho scholarship fund has a religious and charteWo object, nnd, unless it was 6pccifk>ia!ly execpted from participating in the residuary gift, it shown be entitled to share. .'• . Mr Adams, for the other religious organi- I rations mentioned in tho .will, said tho intention of testator woe to found ono scholarship, and , a sum sufficient for that purpose was set aside. It was certainly not tho intention that (We-oighthe of the residue should go towards the establishment of one scholarship. This would mean that £3000 would be the sharo going to tno fund of tho Presbyterian Church. Mr Stewart, for the Presbyterian Orpnansje. also addressed ■ tho court...

His Honor reserved hie decision. W BE THOHAB IBELAND, A BA.VKBOPT. An application by Davena Ireland to annul tho bankruptcy of Thomas Ireland, of Dunedin, clerk, her husband, on tho ground that it was an abuse of tho process of tho court, etc. Mr W. L. Moore appeared to movo, nna Mr A. S. Adams to oppose. In this previously heard case, reported in the Otago Daily Times on November /, his Honor r»vo jtdgment as {o'towV".,™ The bankrupt. Thomas- Ireland, in 19M entered into a deed of separation with his

wife, Dnem Ireland by which ho cou. nanted to pay his wife £2 12s a month for her B i.pportT and 17s 4d a month for• tfie lupport Of a Child. Ho duty made theso parents up to Juno 1906. Since then ha has paid nothing. In June last Mrs Ireland issued a writ in the Supreme Courtto recover the arrears, and obtained lament for £262 b, ami «*li On the 24th July Ireland was adjudicated 'a bankrupt on his own petition. Tho bankrupt s other debts amounted to 12 only. Mrs Ireland now seeks to set aside tho bankruptcy on the ground that the'petition,was presented solely for the purpose of defeating her claim, arid that it is an abuse of the procei of tho .court. At the .tatutary meeting of creditors the bankrupt filed a written statement in which ho endeavoured to account for his default in payment bv showing that rwing to ill-health and boitiir out of work his averase weekly earning

from June,. 1906, to Juno. 1911. were an proximately £1 6s 2d per week only. He stated that ho had "no means of satisfyiiiß thn judgment, and , to avoid further proceedings he thought his best course would be to file a petition in bankruptcy. If tn« •statement of the -bankrupt be accepted as true then, althWh ho may have been unablo to pay hie wife in torms of the de«i. it is perfectly clear that ho made no attempt to pay her anytime: at any time. It is impowiWe to telicw. that-dunnf? thewhofc five yeans he wae never in a position *cr pay her a shilling It decs not, however, follow- that because a bankrupt had failed in his duty to a creditor and has filed only to escape further proceedings thai his so filing is an abuse- of Qw process of tho court. As was hold in .ex parto Painter (1895, 1 Q. 8., 85), a petition presented to oscano proceedings by a creditor cannoi do scid to be presented for a purpceo foreign to tho bankruptcy law*. Mr Justice Kennedy, in his judgment'in'that case, says: "Thero may be cases in which tho debtor's object in presenting a petition is so distinctly foreign to the purposes of the Bankruptcy Act lhat it is a mere abuse of tho process of tho court." In in re Belts (1901, 2 K. 8.,39), wbero the bankruptcy was annulled, the debtor had previously at eliort intervals presented two other bankruptcy petitions for the purpose of evading committal orders made against him, and was an undischarged bankrupt undar tfioso bankruptcies. Ho then presented tho third petition with the same object. It was hold that .tho pro<vntation of this petition was part of a scheme, and that lie was makinz of the bankruptcy law k> assist him in his frauds upon his creditors and to enablo him to get credit There is nothing of this kind in the present case. Tho only ground imon which it con t> o su&B^ , < hat t,K > fi - in J! •was an abuse of the process of the court is the relation, of'husband and wife, which existe between tho parties. Thn bankruptcy will not however, discharge the bankrupt from hie obligation, to - maintain his wife and child, though it may do away with tho pitft liability and the future l.abuty unde? tho deed.. The existence of aJ.eovj liabilitv to his-wife under a judgment would "impair his capacity to provide foi the future maintenance of his wife and child. It is plain that ho filed in order if get rid of the judgment. Had thorn brer no judgment it cannot bo inferred tha lie would havo filed merely to gft rid o his liabilin- to pay future instalments. II h<> had filed solely for that niirpo=e t-be-i probably the enfic would have been governed bv the case of re Afkir.s (13 Rixette. L.R.688). rcccntlv decided by tho Chief Justice. If it appears that tho bankrupt ks bwn guilty of misconduct thnt enn bo considcroo when Ire comes up for his rlischareo. I/wk ing at all tho authorities I cannct sny that . the filing by the bankrupt wis nn abus; of the process of the coict. and it is only il it was kucli an abu?«> t'lal thero ys jtirifr diction to annul the adjudication. Motio» dismissed.

, IN CHAMBERS. Probates wcro granted as follow:—In

70 Arthur Edward Elwoll. A}?eased- (Kfr K. C. Smith): William Wward Taylor (Mr A?pinall); and Henry William Cottrell (Mr Crcagh).

CRIMINAL SITTINGS. (Beforo his Honor Mr Justice Sim.) His Honor- took his seat on tho bench at lull-past 10 o'clock. THE GRAND JUBr. Tho following gentlemen constituted the Grand Jury:—Me*sre A. J. Sullivan (foreman), K. M. Hogg, H. V. Fulton, L. R. Wilson, D. (J. Groves, J. T. Laing, G. 11. Urust, T. T. Miller, K. A. Macdona'.d, 11. H. Driver, J. h. L. Rutherford. H. 1\ Marsliall, J. Brown, C. Speight, D. Gain, 1 , . IJojx!, J. Clcgho.ii, T. Arnold, J. touchman, G. Todd, \V. Elder, R. Hamilton. 1118 llONOlt's CHARGE. Addressing tl» Grand Jury, his Honor said: Mr Foreman ami ge.nt.emcn of tho Grand Jury, tho district k to bo congratulated, I think, on its freedom from serious crime of every kind. There aro only three cases to occupy your attention on the present occasion. In one caso a man is charged with being a roguo and a vagabond; in another case a man is charged with indecently oxposing his per eon in a publio place; and in the third ease a man is.charged with breaking into a dwelling-house and stealing therefrom. In ordinary circumstances two of these cases would bo disposed of by tho stipendiary magistrate. The law provides, howovcr, that whero tho ponalty for an offonco punishable on summary conviction exceeds tiirec months the accused person is allowed the opportunity of being triod by a iury if he desires it In the iirst-inentioriod cases (lie accused persons have chosen to be tried by a jury, and so those two caecs will come, beforo you. In the first caso, where a mm is charged with being a rogue and a vagabond, you havo to be satisfied, in the first place," that tho man has been convicted of being an id'.c and disorderly person, and if you aro Mtiaficd ho has been convicted of that, and there, is evidence to .show lie habitually consorts with reputed thieves or prostitutes, that constitutes tlio offence of being a roguo and a vagabond in tho meaning of tho Police Offences Act. You will havo before you evidence, of the conviction and tho evidence of'.constables as to tho persons wkh whom tho accused is in tho habit of conBOTtiiig. I think you will havo no difficulty irt c6ming to tho conclusion that there is nothing to prevent you from nuttircg tho accused on liis trial. In tho other ease the man is charged with indecently exposing his pereon. Tho offence is alleged to have taken place in Jubilee Park. You will have tho evidence of tho young lady in whose presence tho offence is said to havo f>ceti committed, ar.d after hearing her evidence you will, 1 have no doubt, find a truo bilk In order to find a true bill under j the act it is neooeeary that tho exposure should bo obsoeno and also wilful. Acci-

dental exposure would not be an offence under the act. In tho third case, where a man is charged with breaking into a dweJ-ling-l'roiiso ami stealing therefrom, tho offence is alleged to havo b?on committed l in a fishing hut on the banks of tho Kakanui River. According to tho evidence on tho denositioHß tho fishing hut was occupied occasionally by Iho owner, so that it would bo a dwelling-house within tho meanintr of section 271 of tho Crimes Act. You will have evidence ae to tho man being found in-tho Hut and tho evidence also of admissions made by him to tlio dctectivo when ho was arrested on another charge, and probably that will justifr you in putting him on his trial. That is all it is necessary for mo to say to you. If you will bo good enough, gentlemen, to retire to your room tho bills -will bo laid beforo you. TRUR BILLS. True bills wero roUirnod by tho Grand Jur in the three cases laid before them—

! namely, George Marshall, indecent expseuro; Georgo Kelly, charged with being a roguo and a vagabond; and Alexander Walnuist, breaking and entering and theft at Maheno. BUEAKINO AKD ENTEHISR. Alexander Valentine _ Waitlist, alias Fimrlay, was charged with, on or about September 30, at Mahono, breaking and entering the dwelline-housn of Walter Richard Sumpter, and stealing therefrom certain goods and cliattrk On a srwnd indictment he was charged with exiling a quantity of shceps' tongues, whisky, and biscuit*;" from tlio dwelling-house of Walter

Richard Sumptcr. The accused; w!io was undefended, pleaded " Not guilty." Tho Crown Prosecutor (Mr J. F. XI. Frafor, K.C.) said tlio case presented no difficulty, bccauso tho accused was not only actually caught in the hut, but had subsequently made a full statement c! the facts to others. Mr Sumptcr had a small hut on tho luikanui River. lie had arranged to meet his brother-in-law (Mr Newton) there on tho Ist October, with the niton- . tion of fishing. Mr Newton,.on reaching tho hut, found tho accuscd thero with « fire lit and making hims.'lf comfortable. As Mr Newton was walking towards tin hut the accuscd anpoareU in the d:orway. Xlr Newton said. " What's tho meaning of this?" Accused replied that a inan at Xlahcno had told him lie could rftoo a night tl'iere. Mr Ne'.vtcn said, "It is not my hut; I will have to tell my brother-in-law." and accused said, '"If you do it moans two years for mo." lie iuld<d that h<« sot into tho hut by the window. Xlr Newton pointed to tho broken lock on tho door. Accuscd said lie liad intended to nut it right l>cfo:c lie left, and offered Xlr Newton a £5-note to nav for the damage dor.c. Xlr Newton refused the money, Myinc it was not Irs hut. Xlr Newton then asked him if he wjh the man wlx> lirul orcapcd from the po'.iro at Gommrirs Crossing, and accused admitted that he was. Xlr Newtr.n ?.iid to the mm that he would not trivo liim away, and the man lh.cn went off, taking his dog with him. Kvidcnce was given by Alfred IT. Newton (farnie-, Herbe-H. Waltc- Ttichard Sumptcr (irctioneer, Oimnru). pnvid Cnx (farmer, Herbert). Robert M'Chi'key (rcttlor. Xlahcno), and Constable xi'Gregor.

The Accused, when called upon, said h» would not givo evidence. Totho jury, he said that tho given by Mr Ncwlon o{ tlie clothes worn by tho. man he saw in tho hut did nol correspond with tho clothrs thnt ho (accwod) was wearing at tho beginning of October. His Honor summed up, and the jury retired at 11.53 a.m. They returned seven minutes after with a verdict of "Guilty." •Subsequently tho nccuwJ was called upon for sentoncc. Ho had nothing to my to the court.

Tho Crown Prosecutor said tho accused's character was reported to be bad. 110 had bocn convicted oi' indecent atssault, wcuping from ciist'xly, breaking from prison, resisting tlw police, and with being a rogue and a vagabond. Ho was a labourer by occupation! mid was a native of New Zealand.

His Honor eentenctd tho accused to nine months' imprisonment with hard labour.

AN INDECKNT CASK, fieorgc Marshall was charged with, on Scntvmber 25, wilfully and obfcencly «- liosing his titreon in a public place-to wit, .lubilw Park, Uunodin. On a second count he was charged with committing an indecent act in u plucc to which the publio had accc3<i, and on a third count with committing an indecent act, intending thereby to olfend a certain woman.

Tho accuwd, who was defended by Mr llanion, pleaded " Not guilty." Evidence was heard at length, and the jury wired at 3.40 p.m. At 3.47 p.m. they rctumi-d with a request that they should be allowed to view tho locality referred to, nnd cab* were provided to take them to Jubilee Park. The jury came into court at 5.10 p.m. with a verdict of "Not guilty." Tht accused wa* at once discharged from mstody.i nOUUE AND VAGABOND. George Ernest Kelly was charged with l>eiii n a. roguo and a vagabond in that he unlawfully consorted with reputed thieves and Vnutiluti'b ant ] having no visible in«in.i of support, and liad been previously convicted of being idle and disorderly. Tlio accused, who woe defended by Mr C. Scurr, pleaded "Not guilty." Ihe Crown Prosecutor Kiid it would l>e proved that tlio acouscd had been convicted as an idln and disorderly person. Ho had not worked, and ho was const.p-r.tly consorting with renutc thieves and prostitutes, and, finally, 7)o was charged by the police with being a rnpui> and a vagabond; He would not work, and if he yonsorted with low characters the end came for-ner or Liter, and h? would rob a. (hunken man or commit some otbor offenco.

Evidnnce v.ns givcn by Detective War , !. Constable Rutherford, Constable _ Woods, Constable Kelly, and James Norrio (clerk iii Uio Magistrate's Court, Duncdin).

On behalf of tlio ucoused, ovidonoo wae givon by Janet Coutts. Counsel addressed tlio jury, who retired at 5 p.m., ami returned an hour later with a verdict of "Guilty," with a recommendation to mercy. Mr Scurr asked his Honor to toltc into consideration tho fact thut prifoncr hn<l been iii custody siree the timo of lii« nrrcfitn fortnight up,, The man was prepared ta loavo Ihe Dominion. Accused wis -seiitencwl to six months' hard labour, to bo detained in prison thereafter for reformatory treatment for a i>eriod not exceeding five joars.