SUPREME COURT.

Colonist, Volume LIII, Issue 12975, 14 December 1910, Page 3 (Supplement)

SUPREME COURT.

NELSON.— THURSDAY, DEC. 1.

CRIMINAL SITTINGS

(Froni "The Colonits," Dec. 2.)

The' usual sessions of tho Supreme Court at Nelson commenced yesterday, his Honour the Chief Juctice (Sir Robert Stout) presiding. Criminal business was proceeded with, and the following gentlemen were sworn as grand jurors: Messrs A. Bigg-Wither, H. Braddoll, J. M. Calder, J. H. Cock, C. H. CpoteC. P. Graham, A. J. Glasgow, A- Gould J H. Griffin, C A. Hamilton; T. B. Huffam, 0 W. Haubv, H. A. Hobbs, F, I. Ledger, Ko.^ei S , A. Tasker, H. Naldoi-, 11. B. Gibson H. D. Paton W- »■ »Arl^and H. Saundcrs. Mr J. H. CocU was chosen as foreman. ■ , ■ Mr John Langley Adams j who railed ; to answer his name when called upon, was fined £5. Mr J. W. Saxton, who stated that he Was'over 60 years of age, Avas excused from attendance. , , His Honour, in Ins address to the Grand Jury ;said he must congratulate Nelson on -being free from any seriouscrime. There did not seem^to bejany persons of the criminal class -in either Marlborough or Nelson. The lapses or citizens were 'few and not' of. serious import. There were four Jiersoiis indicted for various charges, but they did not require much commeiit from him as from the evidence- givon. in thei lower 'court the Grand Jury would havb no difficulty in regard to sending aU the accused for trial. His Honour then briefly ' reviewed the various charges, and the Grand Jury retired. The comhioh'iurors were then sworn in Messrs T. Glappar and R. ! Neal, being over 60 years of age, were excused from "attendance.: ' '■ — ' ;.

CHARGE OF PERJURY

After half an hbiir's retirement the Grand Jury" returned -a true bill against John William Ferguson, of Bainnaml charged Mvith : committing perjury at the. sitting^, "of ftheS:M. Court "at . Gollihgwbod,- <jn"?stk. May last"" in" the hearing' of a civil action, by falsely swearing that he aid on ; l4th July, 1908JpaV to John Patrick Haj'fs the sum of £31 3s. '''„'■'' Mi' : G.-U. ! Fell ac^ed 'as Crown. Prosecutor,' 1 and "Mr A. T. : Magiumty., withliim-Mr P. B/AtkinsbriV appeared for the accused, who- pleaded not guilty. ... -;\- ■■■■■ " •" ',' . . , The following comprised the jury :^- Messrs AY/ G.-'Wilsori (fdi'cman.); 'T. Louisson, G. : Mercer, Pi" Chmg; W> Bovey : E7V: Jolmsohv 'KCHaminotad, E. E. Grove, Hv Gay, J.-.P: .Royal; 'E:Bateup, and G./Wise. r : Five persons wdre challengedby the iccused, and four were ordered to stand aside by tlieCfbwlj. ■ Mr Fe'.l : outlined' the' case for the prosecution, and called — , - ; ;: r; - - John Patrick Hayes, soH<Ht6i\ who itated that accused borrowcd ; £2sfrpm him' in'l9os under bill of sale, which w&s roaewejA. (ram time to. time. 11l 1908 he found acdtisea'was t)Vo' );eai;B in arrears with interest. -He sent accused a letter with statement showing that accused owed him £31 3s 4d. In July, 1908, at ' the ' C!ollingwood Courty 'accused paid ' himrfie^s M^bf that he wascertdii^aiid lie mado a note bf the amount received. Accused paid him with 'F. ,C. Richardson'^ cheque for £6 10s; ; --ktid' he gaye; accused change: "He * gave accused' a receipt on the detailed account, which showed that '£3l:3s'M had been paid.. He,' hbwever, only received £6 3s 4d. Just before Christmas accused wrote md; asked that ,the bill of sale f aKihg duo oil ' ,22hd January bb.reiiewed. rhis : was ;tlie only bill' of s.ajejhe had ,vith 'accused; aiid'' in the 'middle of January accused paid the interest due >n the bill of : silo." - liite'rest again became due in Ju1y,1909, and as .ac-, cused' did iiot' pay he suetl hini aiicl: ibtaihediudgnient for the &mouait,\£l is, in Noyember, J. 909. Accused then ; disputed the claim, : alleging tHat ih«^ principal had been paid. .In . May,! 1910, ho 'again' feued accused for the principle, £25, and interest krid charges due,-^S6 3s-4d, tfud'Obtaijaed iudgmerit'

Cross-examined by Mr Maginnity : He did not realise on the bill .'of sale rwcause^lio heard that Ferguson was laying'°a trap for him— that he 'had a receipt for the ljiH of sale— and not because ho wanted to punish' Ferguson in court. Curiously enough, lie had ince before given, a receipt in a similar

manner. James Sim Eyans, Stipendiary Mag-, istrate, staiiei that at' the hearing of i plaim for principal and interest, £27 Is 6d, at Ckrilmgwood on IVlay; 24th, judgment was given fcir plaintiff; (Mr' aayes) for tlicajncmut "with' wsts, Accused in his uefehce' swore .thftt" he had oaid the whole amount covered, by the receipt dated 14th July, 1908. He said there were one £10 note, two £o . lotes, and five £1 notes, and a cheque ;or £6 10s, out of which ho "received ; 5s 84 change. . Accused >aid tltatwhenhe paid the inoi)sy.he asked Mr Hayes If he would rene\v , the loan, again :u .he ranted it.', '' Accused Eaid:that ; , ; Mr Sayes replied, "I. svippoEe; «o." ' „ Mr Maginnity; took exception to the witness .referring ■'t6.ajns"'-no'te's.;.of . cvi-, lence, J and quoted a ruling' of Mr Justice Deuniston. .tliat^her jjidge^s :note.s, m a previous trial were Kbtcj'jd.ence, His -Honour asked, to be showp, the; •uliri g, ""and ; af te'rv'peru sal said it re- ■ -erred-to quite- a.different'matter. The Magistrate was quite entitled to -use 'iis notes made at the. time- tel refresh )us memory. :Tha ; julihs~ quoted p.y .Mr. Vlaginnity rofenc<r to' notes-: made by v. judge.or his i associate. >... " ':'■" , "■■ Continuing,' ' witness . ,Saul that ac•used saidr positively {hat bcremeiii-. Sered paying the i'u'l; amount to Mr. Hayes;,.. ■. • . ■■-.' ' ""'. ".- '.."' '• .: .;■ Alfred" Edward. Fanthfcrpo, clerk of Zf.be Stipendiary Sfagistrate^s Court at CJollin&woqd,, gave formal evidence. Francis C. Richardson , mining agent it C6lli:ngwood, -stated that , on July Ith 1908. accused came to him and Sorrowed £6 10s to pay to Mr Hayes, solicitor.' ... . • . ■■ ■ 'Cross-o>-aJnincd.' Acetified din lint. iay anything when ihe came, to borrow She amoiiiit except that it was for Mr Hayes. . ... ... i°~" . •.'- ■ . .■•■-'.■; Tliis closed' the case fbr'the prosccu.tipll.' ;,'*'....-. '^ ;..' '•' .;'•-•. ■ -.' ■ Mr Maginnity said he did «ofc pro? .■iosa'.'..tQ,!c4H' evidence,; aiid asked if ■ *;liere;was"a ca^e to, answer. ■ ■/_" HirHSnoiir: There is not the least loubt : about, that. .No r-r.u p.iys in- ' teripst nif ai,u'af:c.unt he does»iiot 6we._ . Mr Miigi wiity.- contended that ovilencb, ig?.ir.Btr'- a; jolan cl':;rf:ed, witli perjury i roquired; to Ti'-> - f»: vohorated ,Sy two. witli psse?. or. tl hi 1 -' fj'uctcd.. authorities in ; pup;;o--t:- ■. ,'.:". "-;.' •.-".. .; His Honour Sf' id tV.vt accused's, letters wqre cbrrobonii i\ p..'.. He .quoted ; lutiiorities; to ;slu)w {Ij^t \ evidence ' hy withessey \vr s net ' liccesr. sary." ■■; " .'. ," .. ■/. - •■'■•,, '.;.,.. . •■:,. :•■; ' "Mr Feilltheri addr<wiTd,the; jury^;.;; ; Mr Maguimty contended that- as'acv -used . had' in , his ha.rds the paper, -lignecV «i&3: receipted .by:,-:an,, .'^stut.e lawyer, ho was .jVistifird. ,in'J-believinK' that tho money had bpeiV/ paid. i'lt \vas not a; Qase. of., whether or not- ac-: :Cuse3 . tiaid ■ the mories, hnt whether When, he' made- statement'- ;be ,-bfi-t ! ieV<ki hb lisid paid .the money. Having that receipted- accoiint.ih.Kiß Hand'ac.eiised^hefcpnteudedy'was justified 4n; coniing to'the'Cppchisiori^that he,ha3 ;jiaid that vocneyt.-r There was a ; gray.e d^oubt' as -.tp.' whether _acc'used-:-iuteJid--M to ; -,mis\oad a^eourt of justice, and tl\ere beinsj a doubt; accused was enLtitled/ta the beaefiVbfit/ ) .;' ■ "Honour said candid not ;,' differ- ?frojmqthe''r /chwnal;,.ca6es, ; - 'and . j the JOTy, . ha<i £ff -.depjtde their yerdict ! r>rf th^eyi|ence.adaticed. The question ■of, mercy did not come into. it. ; agiiused paid ;the money .where -did he ieb ;it t , and why did he.bqrrqw £<a 10s? In 'his letters accused admitted his liability, paid -% interest, , and asked fqr^ai fiaiewal of the^loan J t - : fin -regard to "im receipt it did not state \' 'B^cejved- >the ' above ampxint". ; - it si^iply stated, "Received paynumt."-: pfas Ultxe apc.uSod ov;erpome /by jtempta•tion when.Jje'sajv! thcixeieeipfcTn >fuiV

explanation. Although they might foci sorry for accused, they had to do their duty and bring in their verdict, in accordance with the evidence, unswayed by anything that might have been said. After a short retirement the jurj returned a verdict of guilty, with a recommendation to mercy. His Honour said it was a proper verdict. Accused had no doubt been overcome by temptation,, ami he would admit him io probation^ £7 to be paid towards the cost of the prosecution within sis mouths. THE CROIXELLES DISTURBANCE The Grand Jury returned a true bill iv the case of Wi Vvaaka, a Maori, charged with having at Croixelles on July 19th,- (1) assaulted ariothe* \laori named Mokau, causing, him ac- ■ tual bodily harm, (!J) with dischargiu<' a firearm with intent to maim Mokau; (3) with attempting io intimidate Mokau. Mr C. Y. Fell appeared for th< Crown and Mr Magiunity for the accused. . , Mr Maginnity said that if the -indictment- ■■ was-- reduced to- common assault accused was prepared to pleao ; guilty. ...-.-.-.. Mr Fell said he was quite ready tc accept that. • . His Honour said that the affan arose out of a drunken brawl, and hi thought it was quite right for tin Crown Prosecutor to accept the plea. Mr Maginnity said" that, accused Wfls now a prohibited person. ' His Honour said that the expense: in this case had been very heavy. Ht was prepared, to admit the accused tc probation for twelve months, and he warned him that if he was found taking liquor anywhere he would be lia blc to be brought before the Couri and sent to gaol. He ordered accuset to pay the costs, over £30, in monthi\ ■ instalments' of 30s per month unti tha- amount was paid. Accused shouk thank his cousin (Mokau) for bavinf. prevented him from striking his. wife.for had' he done so His Honour said he would have sentenced him to the full term of imprisonment. ALLEGED FALSE REPRESENTAv TION. A tine bill having been returned "against James Harris, a butcher charged (1) with having at Motuek: prior to December. 18th, 1909, obtain ed an credit by false representatibi eight sheep from Goo. Deck, of Ri waka; (2)" with having failed to keej jjropor. books, the following jury wa; empanelled:— Messrs William F. Pc" .lew (foreman), G. E. Jamiesdn, A. R Best, T. Louissonj J. K. Johnston, P Chfng, W. S, Bovcy, H. Gay,G. R Roil, J. Mercer, F. Richards,; and W Gibbs. , ' '". Four jurymen : were ordered tstand aside and four were challenged Mr C. R. Fell: appeared for th Crown and Mr P. B. Atkinson for ac cused, -who pleaded not guilty. . ; Cecil iCiiapp, a.printer's apprentice gave evidence that he took a message to George I>eck from accused to the ci feet tha-fc: accused had paid rthe mone, into the. bank,- .and could Deck let hlr liaye some sheep. : . ■ . James George Massey Deck, a fai mc\r, residing, at Riwaka, stated tha accused purchased stock from him o: three.different.occasions. When spo ken to. about- the payment for twitted .of -ca,ttlp: purchased on Angus 18th,.accupcd said, he wou'.d settle ii,. a few days. On 18th September h< __ received a jnessage from accused by ; * boy, stating that the money owing, fo the cattle had been paid into his ac .count at -the bank, .and could ho lei accused have eomo sheep. _He sen | accused eight sheep, but neither th< ! sheep. iior ; ; the cattto had been pan for. He saw accused a few days afte. this -transaction, and spoke to accur ed, who said he had not deducted .' j small amount owing by him to accuE ' cd. but had paid the full amount in. I Cross-examined : He would not liav i given accused the soeond lot of sheo) : if the boy ]|2d not stated that the cat tie wero paid for. William He.nry manager o the Bank of New Zealand, Motueka ii fcated •■• that accused had ieyer pai< any amount into the bank .to the ere dit of J. G. M. Deck, nor ltad anyon paid any sum into Deck's credi. 'on accused's account. ] William Rout, Deputy Official As- ! siguee, gavo evidence as to the book >.kepj>"by accused, who, was made bank I rupt on a petition by several creditor f He could not ascertain accused's posi tioii from the. books, so called in a: Accountant. As far as he could sei accused had not kept a record of th< amounts paid away and received. Cross-examined : : There were no fals* entries as far ns he could see. John OE. Milner, accountant, statelio did licit- disoovQr any false entric. in- the. books. The books wore no well. kept. . . .'- Tliis Avas all the eyidence K and M: Atkinson having intimated that h< had no evidence to call, Mr Fell ad dressed the jury. Mr Atkinson submitted that accus cil had no intention of misleading oi depriving Mr Deck of his property. I he had not been made bankrupt h< AVas Bitre he would have been paid. Ii regard to the book keeping, accusec 1 was quite unable to keep accounts arid had not been guilty of fraud. In summing up His Honour dean with the charge of failing to keer proper books and he quoted the law on the subject. Accused, he said, ought to have kept pioper books, but had not done so.. However, he did not think there had been anything wilful. In r*egard to the other charge, which was a oriouß one,- if the jury believed the story of the boy and Deck, and he saw no reason why they should be dis^ believed, then accused had obtained the sheep by a- false representation. After a short retirement th© jury; relumed with a" verdict of guilty,, on the first count, with a recommendation foi consideration on account of .accuseds youth, and not guilty on^the second count., • ■'""", , , His, Honour said aqcused had brought disgrace, upon himself; and bis family, but he "would give him the benefit of probationi Accused must, However, within six months refund to Mr George Deck £8 155,. tho value of the Ii sheep obtained from him. NO BILL; In the case of Clifford RafFnell Willis, farmer, formerly of Takaka, chai-ged. \vith theft, : th© Grand Jurj -fbund net bill-and accused was discharged.': :-• . ■ . ••;■ This concluded the criminal business and- the Court adjourned "until 10 o'clock this morning. ..,: IN CHAMBERS. ?■ ;His Honour heard a., summons under the A'rbitratipii Act- in which Thomas McNabb claimed £10 from John Smith •and Co. for his services as an arbitrator inmaking ah award which was afterwards set aside. Mr Houlker appeared- in : supp6rt of the summons, end 3VIt Hayeijtb oppose. Judgment was reserved. .;; . ' v Mn the. estate V of- N. Edwards, de.tipaJied, an application was made for jtho appointment of a new executor. Th© ; application was by Mr John Sharp (for whom Mr C. R. Fell appeared) to be retired from the trusts of the will, 1 and- for Mr D. R. Edwards tabe appointedin his place. MrC. Y. Fell appeared-- for the continuing executors :and the life tenant. OrderV ''granted. •' ' ' ' ' -" ' : NELSON.--FRrDAy', DEC. 2, 1910. V ; IN DIVORCE. ' _. • Edith May. -Saunders, of" Brightwater, petitioned for the dissolution of her. marriage. with h«r husband y iFrahcis =': Joseph- Saunders, pfi the}' ground of desertion. Th© parties' were married a£ the Registry Office; on, 27th March;, 1900, and jliyed together^ at Wellington, Awaliuri,' Hastings, Gisborne, and BrightVwat?<r until September, 1904, when he deserted :; her, and his whereabout^ Jn'erc still unknown. There were iio; ■.chiklren-rby.-the ;m3rriage.-;"Mr C- R-. ! -Fell appeared for the' petitioner. :

After hearing evidence, a decree nisi was granted, to be made absolute in three months, with costs against respondent on the lowest scale, with nitnesses' expenses and disbursements.

CLAIM FOR SPECIFIC PERFORMANCE.

John William Moulder, hairdresser, of Takaka, claimed specific ance by Magnus Manson, storekeeper, of Takaka, of an agreemceit to sell his shop, houses, and land at Takaka. Mr A. T. Maginnity appeared for the plaintiff and Mr Hayes for defendant. 11l the statement of claim it was set out that by agreement in writing dated stli February, 1910, defendant agirt^d to sell liis shop, houses, alul laud at Takaka for £550 cash, and the stock in his shop. at invoice prices; that the defendant refused to complete the sale of the shop, etc.. and refused to produce the invoices of the stock ; •,hat thei plaintiff tendered a conveyance of the lands comprised in tbo igreement, and the defendant refused to carry out the agreement forsale *nd purchase. The plaintiff claimed jpceific performance of the agreement, ir i.n.tho alternative £150 damages for breach of agreement. It was admitted by defendant that the conveyance had been duly tenderxl and refused. Plaintiff in evidence stated that some time in 1908 he agreed to go into partnership with defendant, who was lis brother-in-law; in a haj.Ftlrescer's uid fruiterer's buehiofes at Tflkakd. flic, partnership was continued for 76 reeks, when defendant turned him nit. Before that defendant offeied aim, in writing, dated February sth, 910, the business for £550 cash, with ;tock at valuation. He accepted^tho offer in writing a fortnight later. Siib;equently defendant told him that his ,vife and son were against his selling md he withdrew the offer. _ He had ilways been willing to carry out tho igreement; , - , ' \ CroEs-examinciil : He went b:uit>mpt ,n 1909, andobtained his order for dis:harge in December of the same year. Zis "debts -were contracted before he nitered into partnership with defendmt. There was no one present when le accepted defendant's offer verbally ibout 19fch , February, 1910. A few lays later he again told def endan fc hat he had accepted his offer. While n Nelson on loth February, arrangng for the purchase of the business, le received a telegram •signed by derndant's son, Percy, containing the-.-ords, "Stop proceedings." He relied that the matter had gone too far, md it was too late to* withdraw. It ?as not true that defendant's wife old him before he left for Nelson that, rer husband had gone back on his iffor. Defendant's son told him that •,e did not think his father' was in. his ight mind when he made the offer. Io did not tell; defendant's son then hat heY would not go on with it. Hfe ad at that time succeeded in raising he whole of the purchase money. He new defendant was in the Mental lospital in 1907. ■ ■ . , Re-examined : He did not know *>»«' he conveyance* was tendered on May th that defendant did not intend to omnlete the agreement. Defendant ever said anything to him abont 'ercy's telegram or letter until some imei after, when he said his son had o authority to send them. The agree»ent was in defendant's hand writing. V letter was put in by plaiutifr show,g that in October, lgog^there were egotiations for the purchase of the usuk-ss bet'wcwu the parties.) This closed 'the evidence for the Mr Hayes submitted that the plainiff must be non-suited, as there was a complete deed of contract. His [oriW overruletl the point, and evince for the defence was taken. Defendant stated that the agreeent was in his hand writing, and Ins ffcr meant the'whole of the property, /hen plaintiff was in Nelson, he cie.rmiiiGd not to let plaintiff have , the •roperty if he could help it. Aoout 3th February he toM his son to.teH laintiff that he wpu.iVnot go any fur--,er with the sale. When he met ■ lamtiff on Monday, February 21st, he ,ld him that he was going to withlraw the offer. A quarrel followed, nd he had never spoken to him since. Ie did not remember telling plaintiif hat his son had no authority to send He wire* l Cross examined : He did not know nti: his son Percy told him that plainiff had gone to Nelson to get the pur-h.-se money. He admitted wanting to -t out, of the business "for a few ours." The family were against tho ile Up till" the time his son. saw mi at the mill ho had done nothmg^to ithdraw the offer. He told plaintiff distinctly vlusn they were quarielkllK 'iat ho had irithdrawn the offer. At he time he made the offer he would rave taken £550 for the property from "percy Manson, son of defendant, 'aye evidence that during the early 'art of February last hisfather's menv condition was nttfc- ■, satisfactory. bout a week after the offer was made c heard that his father was going to •ell his property. He went to see . hrn ather at Awaroa and the latter told urn to withdraw the sale. Be then ,-ired to" plaintiff to" stop the : business, md also wrote a 1 letter to the^same ffect. He and plaintiff had a talk and ihe latter said be did not want. to take uiy advantage of, witness' father. ■ Hearing of the case was then aaourned until 9.30 this morning.

KELSON— MONDAY, DEC. 5; 1910

Judmerit '.'tvtt's given in the case fof Fohri William Moulder, hairdresseyof Takaka, v. Magnus Mansou, storeceeper, of the same place, a claim tor jpecific perfo'i-mahce of an agiewnent jo sail certain property, or in me alternative £150 damages. His Honour, said that proof' of completed contract lay on plaintiff, and on the facts it was shown that there had been revocation before acceptance. Judgment would therefore be for defendant, with costs oh the lowest scale. Mr Maginnity flppoarod-for tlio plaintiff, and Mr" Hayes for the d-> fendant. , t

BROWN V. TURNER AND EARL.

This was a claim made by W. E. Brown, of Lower Moutere, against W. K. Turner and Benjamin Earl, of Nelson, under an agreement by which plaintiff leased to defendants 14 acreu of land, of which 8 acres were in orchard, for a term of three yeara. Plaintiff, in his particulars of claim, set out the covenants of the lease and claimed £25 for breachi of the covenant to render naif yearly accounts (the rents? payable was oneAf ourtili gross proceeds for the first year and one-third for the second and third years) -, £10 as damages for failure to clear noxious' weeds ; and £20 as damages for failure to syringe and prune fruit trees j a total claim of £55. In the alternative plaintiff claimed £55 for 1 use .and occupation. ; ■ ' Mr Maginnity for plaintiflf and Mr Hayes for defendant. - '- After hearing evidence His Honour gave- judgment for plaintiff for £32 14s 6d, SyitJi costs. £14 14s r and disbursoments and witnesses' expenses. The sittings have now concluded.

. In the case of Willi- > Ttttie v. Euphemia- Fry, an : -' application for a document to h-j construed as a codicil to the- will of the late Eliza Sarah Pattie, Mr Hayes, instructed by Mr L. D. Easton, appeared for the plaintiff, and applied, for an adjournment, explaining that one of thcCprincip^al witnesses, • owing'-fco illness; was unable to be present. Mr Maginnity, for defendant^ applied; for and was granted £1 Is costs. ■ v

Yesterday at the Supreme Court on the application o£ Mr ..Maginrtityj His Honour Sir Robert Stout remitted the fine of £5 imposed on <Mr J. Langley Adams, who faued- to ._ attend as ; a grand juror at the opening of the sessions. A medical . cf rtifieate was put in certifying that Mr Adams was too ill to appear.