SUPREME COURT

Otago Witness, Issue 4039, 11 August 1931, Page 44

SUPREME COURT

(Before his Honor Mr Justice Kennedy.) AN APPEAL CASE His Honor presided over a sitting of the Supreme Court on Wednesday to hear an appeal against the decision of the magistrate at a sitting of the Magistrate's Court in Blacks. The plaintiff was Thomas Carruth, Poolburn, builder and contractor, and the defendant was Alexander Kinney, Chatto Creek, runholder. The appeal was against the decision of the magistrate on a point of law and a matter of fact in a partially successful case brought by the plaintiff. The plaintiff had claimed £212 17s 2d, and the magistrate had awarded him £97 6s 2d, and under the appeal a claim was made for the difference between the two amounts. The claim by Carruth had been for work and labour done by him for Kinney, and also for commission of 10 per cent, on the total cost of the labour and materials expended in respect of the said work. Mr- A. N. Haggitt appeared for the plaintiff, and Mr Callan for the defendant. Mr Callan said he would like to refer to the question of sufficiency of notice of appeal. The only information given was that the appellant intended to appeal to the Supreme Court both on law and also on a matter of fact. Counsel said that this was not a sufficient notice, as there was no statement where the magistrate was alleged to be wrong, either in his law or his fact.

After some argument his Honor said he would reserve his decision on the point. Mr Haggitt said that the claim was for the difference between £212 17s 2d and the amount awarded, £97 6s 2d, a total of £ll5 Ils. The original claim had been for £220 15s 2d, but before the case was heard it had been amended to £212 17s 2d. Counsel said that their main complaint was that the magistrate had not made sufficient findings in fact in connection with the case. He thought that the various claims should have been dealt with seriatim and findings given on each. It was clear that there were certain items which were definitely in dispute. In the first place the magistrate had given credit to the defendant for a sum of £4O 19s 2d worth of railages, which, he said, was an amount paid by the defendant.

Mr Callan said the document in connection with this amount was not before them. After some argument his Honor said he thought he should proceed as if the document was not before him. Mr Haggitt could seek an opportunity of discussing the matter with the opposing solicitor. Mr Haggitt said that the arrangement was for an alteration and extension of an existing sun-dried brick building in Central Otago. It was a very old building, and the parties gave their respective accounts of what had taken place when the arrangements were made. Counsel then went through the various amounts which made up the total, commenting on and explaining the items. He regarded it as an important point that the magistrate had found that the cartages were payable by the defendant. Counsel then proceeded to deal with the law on the case. Mr Callan said that in order to decide the questions of fact the magistrate had to discover the reliability of the only two witnesses who could help him —the plaintiff and the defendant. The magistrate had decided this, and now his Honor was asked to reverse his decision. The magistrate had endeavoured to ascertain what these two unbusinesslike parties had arranged, and they had his decision. Undoubtedly a figure, was mentioned for the cost of carrying out the work, and the magistrate had to find out what it was, and whether the way in which it was mentioned was sufficient to create any legal consequences. Mr Haggitt said that he could soon clear up the point regarding the ques tion of notice, and he quoted from the Magistrates Act of 1928 to show that there was no need to give reasons for his appeal. He was rather surprised that Mr Callan should have raised the point. His Honor (with a smile) : You did not express any surprise this morning. His Honor said he would reserve his decision. Friday, August 7. (Before his Honor Mr Justice Kennedy.) IN DIVORCE BLISSARD v. BLISSARD. Wife’s petition for dissolution of marriage on the ground of separation for three years. Mr J. B. Thomson appeared for the petitioner, Mary Letitia Blissard; Mr E. J. Anderson for the respondent, William Blissard, who offered no opposition. The petitioner said she resided in Invercargill. She was married in 1928 to the respondent. After the marriage there was trouble between her and her husband, and a separation order was agreed upon. Corroborative evidence was given, after which his Honor granted a decree nisi, to be made absolute after three months. DAVIE v. DAVIE. Husband’s petition for dissolution ot marriage on the ground of separation for three years. Mr A. C. Hanlon, K.C., with Mr G. M. Lloyd, appeared for the petitioner, Hilmer Frank Davie, of Dunedin, insurance in-

spcctor; Mr A. G. Neill for the respondent, who did not oppose the petition. Hilmer Frank Davie, insurance inspector, said he was married to the respondent at Dunedin on January 29, 1901. There were three children. After marriage he lived in Dunedin with his wife, and they were happy until 1923, when disagreements arose. His wife became discontented about living in Dunedin, and had a desire to go elsewhere. Witness. considered it would have been very unwise to do so. He was then a working jeweller. Later on, he let the respondent go to Australia for a trip. On returning she stayed with her sisters at North Dunedin. She went to her home at a later date, when two of the children had their holidays. She left the house one morning at 6 o’clock, and again lived with her sisters. Witness tried to get her to return, but she had refused. She had remained away since April, 1928. After corroborative evidence had been given, a decree nisi was granted, to be made absolute after three months. DECREES ABSOLUTE. John James Gilbert v. Ellen Elizabeth Gilbert.—Mr B. S. Irwin for petitioner. —Decree absolute granted. Annie Grace Poulter v. Robert James Poulter.—Mr F. B. Adams for petitioner, Mr G. M. Lloyd (instructed by Mr L. R. Simpson) for the respondent, who did not oppose the motion. —Decree absolute granted, the petitioner to have custody of the children, the respondent to have access to them at all reasonable times.

CIVIL SITTING IN RE ROBERT JONES, DECEASED. An originating summons to determine a certain bequest under the will of Robert Jones, retired farmer, which bequest has lapsed through there being no party existing able to take the benefit. - -rMr A. G. Neill appealed for Frederick George Duncan, plaintiff in the matter; Mr J. S. Sinclair for Roger Jones and others (first defendants) ; Mr J. B. Callan for Ann Ellen Foulkes and others, and John Jones and others; and Mr E. ADuncan for the Presbyterian Social Service Association. Mr Neill stated the position of the plaintiff, and said that counsel had conferred on the matter. It appeared that there were strong moral claims by the children of Thomas Jones, of Llandudno, Wales, and the Presbyterian Social Service Association had agreed to the terms of the order which the parties were now asking his Honor to make. Mr Sinclair and Mr Callan spoke for the defendants represented by them. Mr Duncan said that, while the Presbyterian Social Service Association was willing to abide by the decision of the court, it had agreed to £lOOO out of the total sum of £2OOO being paid over to the children of Thomas Jones, of Wales. At the same time they recognised -that they could possibly have claimed the full amount. His Honor made an order, bj- consent, that the sum of £2OOO under the will be equally divided between the Presbyterial Social Service Association and the children of Thomas Jones of Llandudno (North Wales), the costs of all parties to be taxed and paid out of the fund.