SUPREME COURT.

Poverty Bay Herald, Volume XLV, Issue 14711, 17 September 1918, Page 5

SUPREME COURT.

TO-DAY'S PROCEEDINGS

SENTENCE.

When the Court resumed this morning the prisoner Love Tulce, te Rangi Huraej appeared for sentence. Mr. Rogers, on behalf of accused, said that after the jury's kind and thoughtful recommendation of leniency there was little for him to add. The case was not attended by tlie usual xevolting -circumstances. After the committal of the/ offence and before the police had had anything to do with the, ease, accused had applied for leave to go to the front, but his employers had refused leave, evidently regarding him as a useful employee. The wife had overlooked the offencei and had gone back to him. .. His Honor said he noticed from the • .police -report that there was another girl involved — just over the age. Mr. Rogers asked his Honor to admit accused to probation. His Honor: Oh, dear no. We never do that m these matters. I could not do •that. , ; " Mr. [Rogers proceeded <k> suggest that j .probation might be granted. His Honor : It is no use talking about {probation. Mr. Rogers asked his Honor to deal, with prisoner as - leniently as possible.' His Honor said it was very-unfortun-ate that an' educated young Maori like this should have placed himself within' the provisions of the law m this way. He recognised that the girl did not ob*je'ct, that accused was a Maori and was voting- (<ns,&he jury had pointed out), but it t\*as the same law for the -Maori . and the- European, and this was a .law made for the. protection of young girls. so 'that they l should not be tampered with m this way and perhaps ruined for life. The limit of imprisonment m £hese cases was five years, and when unaccompanied i by any special circumstances it was generally the practice to give the- full five* [years. However, he recognised prisoner) i would be punished by losing a good' j position, and that the girl was a willing I subvect, .and he would take into 1 consideration the jurV's recommendation. He j 'did. not think he would be doing his duty unless he gave a term of imprisonment... That, was why he refused to grant proi bntion. Probation was only granted m eitreme cases. Probation was not m the i question. Tlie sentence' would be for a I term of two and a-half .years*.. whieh was half tho usual term civen.' • CTVtL BUSINESS.' The. n »'iminal m*ooeedin~R; at.!- tho ,-6iu ! ;nremo Court were concluded this morn-, vner: . arid 1 ' civil busmess'. was then proceeded with.- i } BANKRUPTCY : DISCHARGE . !;■: •- 'i •■■'■'- GRuVNTED. .-.-:. x V ' ';. In tne matter of the' Bankruptcy Act ( and\ James -Erskine, baker; application lor discharge (adjourned from last si£■Ung). . • • v - r j; Mr T. Alston Coleman appeared for - ; ■ \ V Mr Burnard represented JVlrs Erskine. . p Mi?, NAlan appeared! for it-he deputy official assignee, Major A. G. Beere. Mr Goleman,vin opening, • said this ap^ .-'' plication was adjonrned -until i thig "sitting. • at' the i-equest of the official assignee, as 'm his first report he^ indicated that the ; application, was of ai premature natui*e, ' arid" lie inquired time .'to see to the real^ isation of the estate^ and generally to >see' how the: estate stood. The matter was adjourned; to. tMs sitting, and his Honor had intimated there would bo no difficulty m gi'antinig the application .The assignee liad filed ,.a supplenientary report in"-cbnnectiou with matters affecting the •debtoir'sivifel ;•■ • " -'■■- ;.' . • His Honor remarked that five 'creditors •had responded to the circular. ' y Mi* : ■ W-e are not ; informed who they are. 7-, Mr Nolan : Ono is a large' creditor, and t3ie' other, four are small creditors/ / His Honor inquired what 'proportion . .-they represented. V Mr. Nolan : They represent ftbout'twothirds of the claims. . '' . " Mr Coleman said 'that m, his supplementaryreport the assignee urges a.'refusal of the applicationi becaiuse oi his wife's lapse. Three months had been allowed for the application .'. to startd- .- ovei*, and so far there liad been no fm Ititer meeting of creditors arid no active steps had been taken to realise the busi-' ; ness.

i His Honor remarked that these thefts occurred while the assignee was carrying on the business. It was a singular kind of theft, the talcing of a. large quantity '■ of loaves: ■.-•:■■• ''>'•' ,''" j Mr Burnard explained that Mrs Era? jj kine ! had I been ' assisting her- 'husband' in 1 ■i carrying oh the-' business, and was at ;j present m a bad state of health, the ' Affairs of the estate having to some ef.--tent preyed on her mind ; . Mrs Erskine, '; lie ppinted f Out; had a series of. claims; j; including £2ooQ/w;hich she had advanced, ■; to; her ; ' "h"a^Dai^s \banking account arid ■ £1300 '.acpuhwlat'ed ''rent not. paid. . -, [.', ;. "His Hbiiiof reinarked^that evidently these. olaimsT were, to be f rejected or were -, to be subject-to p^ j ■: Mr Bttrha-i:d, saU£ fe'dis^reew- "witU' •* tho 1 .: View of the 'assignee that.rae^e claims '; must be iejected, !ahd apart -f^m'-.tilip '•' claim for l^ht'Mrs Erskine also" claimed j m respect of the' endorsement of '-certain ••! bills'. " Her ' health "" liad! been serjousiy.' ' impaired by .the worry of the wliolo" af- ; fair, and- a proper penalty having: been I meted out to her m rfespofet of this.j lapse, he did not think it should be j brought, beforo this Court. Proceeding; j counsel, submitted, that it was aperfecfcly | illogical suggestion on the part of, the' j assignee that a man's right *to discharge ; j should be"a«ected simply ' because' his' wife,' acting under the strain , of worry I,'1 ,' should have committeed some' offence .of . theft. ■--.:.' = ' '■,'■"'.■'-•.' - - "','• His Honor remarked that bankrupt had apparently kept himself, to the baking. . Mr; Burnard concurred, remarking, 'that Mi. Erskine was a hard .worker,, and perhaps did not possess the/extent of* management as did his wife-.'or the assignee. J . His Honor : He has been m the Court for 21 months and m the employ of the ! assignee on wages. Is the business profitable ? Is it. paying for : itself f 1 Mr. Nolan : Yes, it is; doing 'a little better than paying for itself, \ and bank, rupt is, probably better off than T ' he has been 'for a long time. He has been m receipt* of regular wages, .„ whilst the wife :.has been receiving rent, there being no rent paid , before the bankruptcy. His Honor added that the report.expressed the opinion there was no .sale for the business until after the vfeaiv It might sell then or conditions 'might ., be worse'; he did not know. -Jf bankrupt was discharged would he still be-employ-led by tho assignee? I Mri Nolan said-^the . assignee .had asked him to suggest . that if inclined- to •f- grant the discharge his Honor might make it a condition that he should cnnitinue to occupy the position. ; ( , ,j His Honor: I dorft knOw" , that I /should turn him into a bond; slave.' | ; Mr. Nolan : We might' ,' obtain r a promise* that Mr. Erskine .would ' carry I His Honor said he* took it that.bankrupt was free to refuse to continue. He ; . could hot bo compelled to carry '^on 'the employment, but up to the present had ; probably been willing to 'carry*' on to • conciliate the Assignee* It seemed to be a case m- which the man had been hard working, but a muddler. He .-did not know that,, beyond being .*. careless, he had committed ..'any offence, under the Bankruptcy ; Act ..in any particular way. Ho (his Honor) could not^grant ,a discharge if he} had. Had he'kept hooks? j Mr Coleman : He had a;' regular accountant, employed at the \ bank's sug- , gestion, and it was thus he- found the position he was m. ) His Honor: Do you suggest there was i any offence against the Bankruptcy Act? "I Mr. Nolan: Not at all ;' on the con- ' -trary, the Assignee's first report mdi»- -» cated that there was not., -7 His Honor: Tlie wife's jinoney 'has b gone into the business. . Has she anvb thing? > j yVIr Burnard said she had a block of • property— a town building — which was heavily mortgaged, and of course was not saleable at present. " " His Honor: I don't think I ought to 1 keep this man undischarged <any longer. , The Bankruptcy Act is to relieve people , from trouble, so that they shall not < . reach stages of insanity. •._,..' will grant •his discharge, Pc has been a long time

m Court, and has evidently assisted the I right up to i,lie fence. Defendant's Assignee over the last 21 months. Tlie property was iiigher, and consequently applicant is not guilty of any offence the fallen brier would fall on to witagainst the Bankruptcy Act, and I think ness' property. Witness had no hint he has got a right to get his discharge, that the fence on the boundary was CASE SETTLED. wrong until the job was completed. William G. A. Reynolds., sheepfarmer, Tlie men started m May, and owing to Te Araroa, v. Frederick R. As 'Rey- tire- unfavorable weather tlie work was nolds, sheepfarmer,* TV Araroa: (1) For not. completed' till , tune. In the declaration that plaintiff is entitled to following month witness wrote to half-share as partner: (2) that partner- defendant, enclosing account. In makship be dissolved ; (3) that accounts be ing up the compilation witness charged taken and affairs wound up. his own and the men's labor at ICs )Mr Lnsk appeared for plaintiff, m- each per day, while one of witness' strncted by Messrs Rees, Bright and men cost him £1 per day. Witness reWauchop, whilst Mr Burnard appeared eeived! a .reply to the effect that plarinfor defendant. • tiff was not satisfied Avith it. On Sep-

Mr Lusk said he was glad to intimate that .this case Avould not trouble his Honor, as they- had come to terms. They had not been put into proper form, but would ask his Honor to enter a decree m terras of the arrangement It was agreed the case should stand over until 2 p.m. A FENCING DISPUTE. . Percival . J. Roberts, of Rere, sheepfarmer, v. Andrew Picken (junior), of Rakauroa, sheepfarmer. The statement of < claim sets out that m or about, the mqntli of December, 1916, it was agreed between the parties that the plaintiff should pull down and re-erect the boundary fence betAveen the properties of the •parties at Rere, and defendant should pay one-half of the cost of clearing the land on -the ..defendant's side of the fence to a- chain m width. The amount, owing by .the' defendant was claimed .to be £52 Bs. Plaintiff frequently demanded payment of the sum' of £52 Bs. from defendant, who neglected to pay it,- and plaintiff claimed : fa) Tlie sum, of £5*2 8s ;.(b) the sum of £4 interest; (c) such further or other relief that .the Court shall seem meet. ' '

The. statement, of defence denies that any agreement . was entered ,'' into . bpr, tween the parties, and that if any' agree- : ment was entered into between "plaintiff and himself it was m a letter sent .by him to -plaintiff authorising hini "to.fau and clear. scrub and. bush, on my sfdo of tho boundary line for a width, of " one chain or, more, and to erect a,.new.and substantial fence, thereon. I myself .not to be responsible for any share of thfc cost- The line- must be cleared go therg is- no- chance' of any trees: oil ' niy side falling or burning the fence." lii .respect to the second Jssue. of' the claim, defendant denies that plaintiff proceeded tb . perform the "work as alleged m clause 2 of/ the claim, or that the, amount payaible ,by him was the amount therein set out. In regard to. clause 3, he contend 1 . Jed" '(a) " the* fence , had not been erected oh the boundary between, the properties; „i(b) the plaintiff had not felled arid Jcrleared the 'scrub and bush on the defendant's side of the boundary for a width .of, one chain or more- (c) the line had- not -been cleared so that there was ho* chance of • any trees oh tho defendant's . sid©- of "the boundary falling on or burning the fence ; (d) 'the fence was not ' ii siiTbstantiai one; (c) the work performed by: thY plaintiff was of no value to the i.defendant. •.- .' 'j , ■'' '

•Mr L. T; Bur nard appeared for plaintiff, whilst Mr T. Alston Coleman represeiit«d- the defendant; . •'•'• ■:'■ '

Mr Unrnard, , an opening;,- 'explained that the ' parties were neighbors.- Theboundary _.ad- ihllen into; 'anda verbal -agreeriient (had beeh made for the plaintiff to' erect the- fence changing defendant half cost; • Plaintiff '"proceeded with, the work, and 1 sent iii • nn ! account to the '^cfefendlant for half . cost, -which' defendant', repudiated. -'Defendant "set tip 'a written a'gi*eomeht, and contended that the fence had not been' erected 1 on the boundary Line. The original fence, lie explained, had ,beoh a' give-and-take litie, : wliiohi -wan cuetomairy m '--this district iii hilly ' country. The* matter 'had been- discussed and the question, of. the boundary thadi not theii' been r raised. •It was only -discovered that the f en.cc jV.-ais hot on the boundary- Some- months a f ter repudiation.- Six months . after" plaintiff *» erected' the "fence defendant 1 wrote claiming the whole ' fence :as on Jiis property', ■ that plaintiff's. half shaire m the fence was vested in - : def eh-' ;dantx, aid further that V W was not going -to pay a penny towards the erection* of' ttlie fenoe or for the felling of his portion bf the" bush.: He 'anticipated, nb •difficulty m proving the contention ihnt the 1 fence was to be erected on the existing, line. V -The second ground of j defence was that it was hot a substantial fence. v He claimed the .evidence would! show that it was a substantial fence. Counsel proceeded to refer .to 'the law on the subjeot. - - ' '% ■ His Honor said that with, any such agreement for fencing he did- not think -it cOnld be repudiated • for** 'any small 'deviation Or .because it, was" not quite >up'- td .the standard 1 . It was -merely a matter of deduction. ' .'- .. ! , Mi* •' Cblemaii said he was going to {show, that the fence as erected was pot worth anything to defendant,. -and' he intended! calling fencers and settlers wfhohadihad considerable experience;' . * J/jHis Honor : . You -say- : it : is, not a .'case Of trivial deviation. ..-.!.-■ f\ Mr Coleman : No, not- at- all.;\ Coun* jsel added that they had several 'grounds '■fjvr complaint;, hot' onljr as' to -the qusljity '■c"rt__- fence, but" they said it was^UisuaV •to i f ell' "and biirn ■•> tTnoV) bjisli "] previous. ! io^ ;thc ' erfectibh of 'the fence.- The' result <waS that as soon .'. as si '--fire was. put onto' "the? bush' the ;"f ertee would'; be -cTeatroye'd. ?f he ■'■ bush, was • ; felled! but-, "not cleared. -They considered' that it 'should be burnt before the ••-. fence '-'waft' erected. -'.Apart' front' thisi the- fence . was : neither sheep nor aattlo- proof ,- and- the hiethod. : ;6f .orectiorif was absolutely, valueless;. ;."• it. Avals • not, m f act, v oVori stock proof. • rCounsel added- that defendant' had; paid Hnto* Court £B,' which : he claimed to,- be reasonable.' payment' for tlie felling of ; his "'bush. ; : '^7'" ■•■'..' "". ' : ' 'Mr Barnard said; thte r evidence -would bo : • directed to all paints mentioned which would be conclusively answered, find they burned the' bush prior to the erection of the new fence! ' they would' have deprived "the properties- of any fenae whije the bush. was'-getting into ther condition tt> bufn, 'and' defendant : was' consequently asking them to do 1 the impossible. The' plan adopted was the'one generally taken; r and 'when' defendant felled -and 'bririied the re»t„of his bush the* fife- would, proceed iupn^ill and hot down to wards J the' if e'rice. " F;iii^ /iher .than this, had plaintiff burned tljd bush: 'Ite--- would have' ".been i : ft.7-'d*ttger of - -bairning^ defendants > staftdinjj bufth. Plaintiff liad made- provision for' a ! nte at oh© danger point by lusing wine berry posts., ;the. requisite permaneht posts aM ; battens being; located at l ai iafe spot 'and leady.- 1 for 'replacing the'' fence after defendant burned his' bush. ' - ■ ■ < ' Percival ' John -Roberts', plaintiff, said ; his property ; adjoined that- of ■• the defendant's a at ':: Whar'ekopae, ; - about .36 ; miles from Gisborne. ' Witness had' 1 beeh engaged practioally/all his life m farming pursuits. '.Witness' ■ property was , £000 aoi'es, and d'efehdant's was>9oo. In 1902 witness took t_© property .from • "flue. ' Ciovernmenti, 'iand '■'tlje : old /fence Ayas erected m 1907 .when- .Hntolflnson^ occur pied the land occupied •'by7tKe.7 defendant,,' on a;.give-andtak&; Weis. '' Exqept for a few .^.areas: of. .' soiTib: . the whole of the> boundary "JJie'^was clear; / His.': Honor :'•' If defendant took; over the property .' with-: tlie. - fencing -there ; o:i.n ho niake? any deviation.?' A- fence ' is . better than a paper^true boundary ■: line.-.- ./.'' - .■- .;-. . -"• - - ■'•■ ..-,-■ \ To Mr,Burnard: W'itlv'the exoeption • of apart . where there was!a boggy place,- j tive line of/ fence .existing before-, jthe ■• contraoit Avas* pf tho bestr. ■■> on.'J the\d&- ; fendant's sidp tW bush^-caine 4-ight' up \ to tlio fence, Op th§ .rfatp- of : J^tniary- « bo „wa» ploughing, " When ;W.<*: nVghbot*- { Robb and defendant ,-ca.me up-'and- gave ' nojt.ice of -ji! 'bariK." -. ...,lhi the coui , se:\of ! tlief, conversation he ' meritionedi the. bad ] state .of the ; repair. |of ; the boilindary | fence, with d\ neighbor -named ■■*■ Robb^. ■ .^ Witness saad »to» defendant:' "I ; do not 7, mind : fencings for ypu,' because- If,couild;' ; get 'sometliing out of :you to pqy f or,.dt.". ; < Ahout^tihe end;o£t.MArcb .witness wrote! -1 to def endaht m connection. ■' rwitli ithe < mattea-, andl - received > a > reply- ' giving * autliointy to clear' the hush- and ;erect : '* a npw unci substantial rfenpe, he? to bej ■ '■ responsible 1 for liiis share 6|'thppo»t.' '- Hisl-Honor: Then there* war.n6 iv firr- •] thoi' interview until yoii wrdtje the \ .letter?— No. " ;.-..;,-.>.;■ ■-,<'-.. i,, „... Tp MrTßurnjvrd : It was-, necessary to' ii clear the bush because it would Thrive I < fallen through : tihe>'"' fence into ' watness' \ 1 property. On his side of the fence the ] property ■ was cleai* with the excert.iori ] of a small patch of wineberry (shrub), ; whilo on def^ndant_ side tlie "bush was '

tember 11th witness replied to the,,effect i that there was only one place where the' fence was not the full height. In respect to the position by the • creek the posts consisted of wme-berry wood, which could be easily replaced if destroyed m the course of the "burn." j ■On October 13th witness informed his solicitors to Avrite to defendant. The! first conversation he had on the matter was a request: of defendant's solicitors to arbitrate on the matter and if possible to secure an amicable understanding. Witness, later went up to the fence with one of his men and found defendant already there wath. a little stick. He -said: ."I suppose you know th© legal height of a fence." Witness replied, "I did not come h£re to talkj about the legal height of fences." Defendant then put; the- stick alongside -several posts,' finding no more than an inch or .so out for a distance of several chains. Witness said : "Bother that — you don't seem to. want to pay' for it." He rep-lied : "I am not going to pay for anything I can get out of.-' Later he and he found a peg down by the river and. that tlie fence was off the boun-

dairy. 'After n. good) deal of conversation it was decided to go down. On arriving at the river ' they ; fotind : a peg, which had -'been rooted out of the ground. Witness -told' defendant he was wrong; The" peg ;had been under some growth, which when cleared showed the pcg -distinctly, although he had -not previously seen it. It was- not the' peg on which, he took up his line with Hutchinson. a.nd showed 'the boundary m accordance with the new numbering oi the seations. The ' present fence wa& put up .substantially on the old fence and was a. good line*. It t was effective m keeping . the^ -stock m; and r defendant's cattle, although 'tlieydiad been ' tramping up and down, had not succeeded m getting, through. 7 ..... (Proceeding.) ..

The case of Rjna. Rangirei*emoana v. Thomas Bartlett,: .junior, has' been, set down for hearings to-morrow. -morning.