SUPREME COURT.

Otago Witness, Issue 3870, 15 May 1928, Page 31

SUPREME COURT.

Monday, May 7.

(Before his Honor

Mr Justice Sim.)

PALMER v. OTAGO HARBOUR BOARD. This was an appeal from the judgment of the Magistrate’s Court. The appellant was Richard Abraham Palmer, trading as Palmer and Son, quarry proprietors (the defendant in the lower court), and the respondents the Otago Harbour Board (the plaintiffs in the lower court). The claim by the Harbour Board was for £9O damages from Palmer and Son for trespass on the land on which their railway siding has been constructed, or, in the alternative, £9O for the use and occupation of the land for a period from January 1, 1926, to October 20, 1927. In the Magistrate’s Court Mr Bartholomew, S.M., gave judgment for the plaintin tor £9O and costs. Mr W. G. Hay appeared for the appellant, and Mr H. A. Barrowclough for the board. In giving judgment, after hearing counsel for the parties, his Honor said the question was whether the Harbour Board was entitled to recover any sum from Palmer. lhe appellant relied on two documents produced in the court. In the agreement between the Minister of Raihvays and the Harbour Board, the board undertook to provide and reserve the land required to maintain a siding giving connection between the quarry at Logan's Point and the main line. The Minister, on his behalf, was to provide the line free of expense to the board. It seemed to him that it was not desirable that he should express any opinion as to the exact nature of the rights of the Minister and the board in this document, because the Minister was not represented in the court. For the purposes of the case it was sufficient for him to say that the agreement conferred on the Minister the right to lay down and use the siding, and he thought that that involved the right to the use by any licensee duly authorised by the Minister, in accordance with statutory authority. That, at any rate, was clear, whatever else might be in doubt. Then they had the application by Palmer in the prescribed form for the right of access by means of the railway siding, and his Honor quoted the application, and said he thought that, as far as the Minister could give the right, it gave Palmer the right to use the siding, and Palmer was acting strictly under the authority of the license conferred by the Minister. It was clear, looking at the two documents, that the board was certainly not entitled to treat Palmer as a trespasser. The right to recover for use and occupation depended upon the agreement, and it was quite impossible to find anv agreement between the parties on the subject. There had been an interview between Mr Bardsley (the secretary of the board) and 1 aimer, and a letter had been written to Palmer on the subject in December, 1920 stating that the charge for the use or the siding was to be £5O per annum. I aimer replied to that letter in the same month, and said that that was too stiff a rental in view of the fact that he had also ten pay £52 per annum to the department for the use of the siding. It was clear that the proposal by the” board to charge £5O was not agreed to by Palmer. Then a debit note was sent to 1 aimer on «une 30 of last year, to which 1 aimers solicitors replied denying liability. It was clear on that evidence that there -was no agreement to pay anything lhe position apparently taken up was that Palmer was entitled to use the siding under the authority conferred by the Minister, and that he was not liable to the board at all. He thought that that -was the right view of the matter, lie thought the appeal should be allowed, and that judgment should be entered for the appellant. His Honor ordered the case to be returned to the Magistrate’s Court and judgment entered up accordingly. Appellant was allowed lOgns costs, and disbursements. Wednesday, May 9. (Before Ilis Honor Mr Justice Sim.) A QUESTION OF PARTNERSHIP. The case to engage his Honor’s attention was one in which the Otago Farmers’ Co-operative Association, Ltd., claimed £Si>9 18s Gd from Arthur Blowers and Caroline Mary Blowers, of Purekeriki, Owaka Valley, for advances made by plaintiff company or a declaration as to the equity in assets. Mr W. G. Hay. with whom was associated Mr H. Brasch, appeared for the plaintiffs, and Mr F. B. Adams, instructed by Mr J. Wilkinson, for the defendants. It was mentioned by Mr Adams that the defendant, Arthur Blowers, had filed a confession of judgment. Mr Hay stated that the action was brought to recover the balance due to the Otago Farmers’ Co-operative Association on a current account, or to recover the the same amount as damages for fraud. Arthur Blowers had confessed judgment on the cause of action not embracing fraud. The object of the case was to make the wife responsible along with her husband for the amount claimed. Since 1919 the defendant had carried on a farm at Purekeriki, Owaka Valley, as a partnership under the name of Arthur Blowers. The plaintiffs contended that there existed a partnership in fact, or as an alternative, that the wife had been guilty of fraud in the representation that her land was hot part of her husband’s assets. In 1919 the farm was purchased for £6020. A first mortgage of £4OOO was taken out on the place by the wife, and her husband gave collateral security on his life policy. The amount of cash put in at the time of tho purchase was £2020. That was Mrs Blowers’s money. Counsel proceeded to refer at length to correspondence that had passed between Mrs Blowers and the Otago Farmers’ Co-op. in order to show

that she had a real interest in the place. Mr Hay then went on to outline the evidence that would be called, and said that the two parties had been carrying on business in common with a view to profit. Evidence was called on behalf of the plaintiff’s case, a considerable portion of which was of a formal nature. Frederick Freeman, managing director of the Otago Farmers’ Co-operative Association, gave evidence as to having had interviews with Mr and Mrs Blowers. Mrs Blowers had outlined what was going on on the farm, and said that they were working very hard on it. She said that she had been milking the cows, and that her time was fully occupied. He had noticed a marginal note in Mr Todd’s diary (Mr Todd had been manager previous to witness taking the position) that the property was in Mrs Blowers’s name. It was in 1924 or 1925 that he discovered that Mrs Blowers claimed the land.

Witness was examined at length as to an extensive correspondence that had passed between him and Mrs Blowers and the association. It had been insisted that the account should be held in the joint names of Mr and Mrs Blowers, and that security should be given over the land. Mrs Blowers had said that she had provided the land. The balance owing to the firm in September, 1927, was £904 15s Id, and was now £859 18s 6d.

Andrew Todd, formerly manager of the Otago Co-operative Association, stated that he understood from Blowers that it was his own property, and he had been surprised to find that the property was in the name of the defendant’s wife. Blowers had said that that made no difference. He was relying upon the equity of the land, although he had taken security over the stock. To Mr Adams: If the stock and chattels were not sufficient security it would have been advisable to have a mortgage over the land in May, 1921. Norman Robert Wilson, accountant, said that he had seen Mr and Mrs Blowers on August 10, 1926, and had told them that the Finance Committee of the association would like to have Mrs Blowers joined in the account, that they should raise more money on the land, or that a second mortgage should be given by Mrs Blowers. It was pointed out that the association looked upon the land as an asset. He had asked Mrs Blowers if it was her intention to see the association paid, and she had replied, “ Yes.” Mr Adams: After a letter of June 28, 1926, was it not clear to you that she (Mrs Blowers) claimed the" land? Witness: Well, it looks like it.

Henry P. King, accountant, gave evidence as to the sale to Mrs Blowers of a milking plant in September, 1926: and a separator in November, 1926. The hire and purchase agreement had been signed by Mrs Blowers.

Mr Adams said that as to a partnership the firm knew that the husband used the property as his farm. In September, 1926, Mrs Blowers purchased the milking plant and separator. The feature of the case, which explained the whole of the evidence, was that these people were man and wife. If they had been entire strangers there might have been some cogency in the evidence, but it would take a great deal to establish a partnership between the two. As to fraudulent misrepresentation, that had been narrowed down to the question whether there was any fraud in the valuation form of 1925, and any loss following on that form. Mr Adams went on to review the evidence, and said that even if it had been estab lished that there had been any fraud, and it was really believed by the association and it acted upon that supposition, it was Impossible from the evidence to think that the association suffered any loss whatever. Any loss had originated in a stupid blunder by the association, which had known the real state of the case all along. Caroline Mary Blowers, wife of Arthur Blowers, and one of the defendants in the case, stated in evidence that her money had gone into the purchase of the farm. The money had come out of a farm* previously sold. She had told her husband that if he wanted to go sheepfarming she would have nothing to do with it; but she would invest her money and buy the land, if he could get the stock for it. She had no intention of deceiving when she signed the form disclosing the assets and liabilities of her husband. She was asked by tho association’s representative to become joined with her husband in the account, which she understood would have made her liable for her husband’s debts. It was not sugested at that time that she was liable for them. She had taken exception to being accused of any misrepresentation in connection with the contents of the form that had been signed. She had said she was anxious to do her best and would join if she got an undertaking that the stock would not be interfered with so long as the account was reduced. She was told that it was not businesslike to do a thing like that. The interview ended abruptly. She was told that they had done with her, and she just walked out. To Mr Hay: Some of her husband’s money may have gone into the purchase of a house at Anderson’s Bay. She could not remember whose name a farm at Outram was in. She thought it was in her husband’s name. /Thursday, May 10.

His Honor Mr Justice Sim continued the hearing.

Mr W. G. Hay (with Mr Brasch) appeared for the plaintiff, and Mr F. B. Adams (instructed by Mr J. Wilkinson) for the defendants.

Judgment had been confessed by the male defendant, and what was now sought was to include the female defendant in the claim. Arthur Blowers, the first witness called, stated that in 1919 he had badly injured his hand, and could not do any writing. He had to get his wife to write letters for him. She wrote most of the letters to the Otago Farmers’ Cooperative Association for him. He bid at a sale and brought about £275 worth of stock, No arrangements was made to pay for it. Mr Todd, of the Otago Farmers’ Association, wrote to him, asking him if he wanted to make any financial arrangement, and he replied “ Yes.” The horses on the farm belonged to him. He did not tell Mr Todd that he owned the farm. He never at any time said so. Mr Todd said, on one occasion, “ The worst of it is the farm in your wife’s name,” and witness said, “ Well, I can’t help that, Mr Todd.” He never told that to Mr Freeman.

Cross-examined by Mr Hay, Witness said he had not a property at Anderson’s Bay. If there was one in his name he would say that it w-as a lawyer’e blunder. His wife had sold the house for £775, and handled the money. He had had a house at Mosgiel in his name. He would contradict Mr Todd’s sworn statement that he had told Mr Todd he had purchased the farm. The valuation of the assets was a matter of form. Mr Adams then proceeded to address the court, and was followed by Mr Hay. . Judgment was reserved. AUCKLAND SITTINGS. AUCKLAND, May 10. In the Supreme Court the jury found a verdict of not guilty in the charge against James Henry M’Keitch. a married man, aged 23, of having abducted a girl under 18 years from Moerawa, near Kawakawa. The defence was "that accused took the girl away at her own request, and his Honor said the jury had to determine whether it was to save her from herself or for his own ends. PALMERSTON NORTH. May 8. The May sittings of the Supreme Court commenced this morning, before Mr Justice Ostler. Addressing the grand jury, his Honor said that three cases required their attention. Regarding one of the alleged breaking and entering of a house to commit a crime, it was a matter for grave consideration whether there was sufficient prima facie evidence to put the accused on trial. If the jury thought similarly it was their duty ‘to throw the bill out. The two other cases were both sexual ones. True bills were returned in Rex v. William Alfred Te Mokina Walden, alleged offences against a female; Rex v. Keith Drysdale. alleged offences against a female. No bill was returned in Rex v. Stephen Gough, alleged breaking and entering by night with intent to commit a crime. William Alfred Te Mokina Walden, married, 25 years of age, was found guilty of carnal knowledge of a girl under 16. Counsel for the defence asked permission to raise before the Court of Appeal a legal point which may result in the acquittal of the accused. The father of the girl produced a certificate of age made out in 1925 when the girl was 13 years old, explaining that she was an adopted daughter, having come under his care when five years of age. Counsel submitted that something more definite was needed to show the girl in the case to be the same girl mentioned in the certificate, and asked leave to take the point before the Court of Appeal. His Honor promised to consider the matter and give his decision to-morrow.

Keith Drysdale, 20 years of age, was found guilty of indecent assault on a girl under 16 at Levin and was sentenced to three months’ imprisonment with hard labour. His Honor refused probation, stating that it was necessary to protect young girls from contamination. A short sharp sentence would do the accused a lot of good and be a lesson to others. aVX 9 William Alfred Te Mokina Walden, who was found guilty of carnally knowing a 15-year-old girl, was sentenced to three years’ imprisonment. Speaking in regard to a point raised by counsel for the defence, his Honor said he was of opinion that the evidence given by the Crown sufficiently proved the age of the girl, but if counsel considered otherwise he could refer the matter to the Court of Appeal. _, May 12Three years’ separation was the ground on which John Sato, a Japanese cook, sought a divorce from Livinia Sato,, of Wanganui, at the Supreme Court this morning. The petitioner gave evidence that the parties had been married in November 1917, and had separated the following year. Since then he had never seen his wife. Air Justice Ostler: When did you come to New Zealand ? Petitioner: In 1909. Have you lived here ever since 7—Yes, except during the war, when I was in the navy. His Honor: The Japanese Navy?— Yes. His Honor: Where do you hope to die?—Home. His Honor (to counsel): Your client is not domiciled in New Zealand and cannot secure a divorce here. Accordingly the petition was dismissed. Later Sato’s counsel pointed out to His Honor that the petitioner in saying “ Home ” had meant New Zealand, notJapan, and he asked that the matter bo reopened. His Honor said that it could be reopened later.

WELLINGTON. _ . . May 8. Tor receiving jewellery valued at £57, knowing it to have been stolen, Claude Weldon Ellison was admitted in the Supreme Court by Air Justice Smith to a year’s probation on condition of paying £5 3s, the costs of prosecution. For theft of articles valued at £4 9s, Jack Cooper got six months. A charge of breaking, entering, and theft at Masterton, to which he pleaded not guilty, was withdrawn. r ~ May 10. In the Supreme Court to-day Harold Edmund Collie pleaded not guilty to having wilfully detained a postal packet which should have been delivered to his wife at New Brighton. The question the jury had to decide was whether the detention was wilful. They found for defendant, and accused was discharged May 11. Mr? Wall, at present licensee of the Empire Hotel, was charged in the Supreme _ Court to-day with attempted fraud in selling furniture in Wellington on which there was a bill of sale. She pleaded not guilty, stating that she had not been informed by her solicitor of the encumbrance. The jury, after three hours’ retirement, found her not guilty. John George Fury was found guilty on three charges of abetting a serious crime by a male, and was remanded till tomorrow for sentence. May 12Ln the Supreme Court the tollowing prisoners were sentenced by Mr Justice Smith:—Edward Prendergast, three years i 1 gaol for indecent assault on a male ; ■John George Furey, aged 19, four years in the Borstal Institute, concurrent with a two years’ sentence recently received for indecent acts on a male ; James Peter Walker and Alfred Victor Smith, fined Sl5 each for theft of a radio set : Gordon Lewis Keene, married, aged 32 years, for forging and uttering, reformative detention not exceeding two years. CHRISTCHURCH. May 8. Only seven indictments were submitted at the criminal sessions of the Supreme Court to-day. Mr Justice Adams congratulated the grand jury, and commented on tire complete absence from the calendar 'of crimes relating to sex. Wilhelm Back, charged with stealing from the person of a drunken man a gold watch and chain and money, of a total value of £lO, was found not guilty. Norman Clark pleaded not guilty to a charge of breaking and entering a dwelling house and steal ing £2O. The prisoner was found guilty and remanded for sentence till Friday. May .9. Sydney Herbert Nunn pleaded not guilty to having, at Fairlie on September 4, defrauded a Crown grantee of a security by removing without consent 20 sheep, a spade, a cream separator, and clippers, thereby impairing the security. The Crown Prosecutor said that Nunn was a returned soldier. He compelled to leave his farm, and gave a bill of sale to the Crown to secure advances made to him. He sold the sheep and took away the goods referred to. He said the separator did not belong to the Crown. To convict, it must be established that the sheep were included in the stock secured, and the jury must be satisfied that Nunn had a dishonest mind. After hearing the evidence, Mr Justice Adams directed the jury to return a verdict of not guilty. This was done, and the accused discharged. The Judge said he desired to repeat what he said in a similar case yesterday—that responsible departmental officers should not institute proceedings without full inquiry and competent advice. Described by the Crown Prosecutor as a “ receiver in a large way ” and a handy outlet for criminals for the disposal of stolen goods. James William Falkingham was charged with receiving, on March 17 and 18, a quantity of tobacco, cigars, and drapery, valued at £lO9, knowing the goods to have been stolen. The prisoner, said the Crown Prosecutor, had practically retained two burglars and instructed them where to make robberies. These two dangerous criminals, Tretheway and Brisbane, toured up and down the country by car, breaking into country stores and taking the goods to Falkingham. These two men were now serving sentences. The accused, they stated, got all the proceeds of the robberies, giving them only a trifling sum. When the police searched the accused’s home they found goods concealed in various parts. The accused had sold some of the goods to traders, declaring they were part of a bankrupt stock. He-was in the act of trying to sell more to a tobacconist in the city when the police arrived. Evidence was given by storekeepers who had been robbed, by hotel licensees, and by two tobacconists to whom the accused had sold goods, and by George Tretheway, one of the thieves now serving a sentence of three years. The jury, after 15 minutes’ deliberation, brought in a verdict of guilty, and the prisoner was remanded for sentence. Charles Arthur Kirk was found not guilty on nine charges of stealing bicycles of a total value of £49. It was alleged that Kirk had stolen the bicycles and taken them to cycle dealers, borrowing sums of money on each one. Evidence of identification was given by dealers, and a bank officer gave evidence as to the handwriting on I O U’s, but the jury was not satisfied that identification had been proved. On one charge they failed to agree and on the others they found the accused not guilty. At the judge’s direction, a complete verdict of not guilty was given. Kirk will appear at the lower court on five summary charges heard recently by Mr H. P. Lowry, S.M. May 11. In the Supreme Court the following prisoners were sentenced:—Norman Clarke, for housebreaking and theft, reformative detention for two years; James William Falkingham, for receiving property dishonestly obtained (two charges), three years, with hard labour; Alfred Norman O’Meara, for theft from the person, six months in gaol; Charles Edward Blacklock, for theft, probation for three years, and ordered to make restitution; John William M’Clure, for burglaries in 1919, probation, as he has lately been in gaol on other charges.

In sentencing Falkingham, Mr Justice Adams said that the prisoner, while keeping in the background, had joined two well-known criminals, and not merely acted as a “fence" for them, but as an agent provocateur. His Honor took a serious view of the case.