SUPREME COURT.

Gisborne Times, Volume XXVI, Issue 2139, 14 March 1908, Page 1

SUPREME COURT.

HALF-YEARLY SITTING. CLAIM FOR TRESPASS. Tho hearing of the claim for £IOO damages for alleged trespass brought by J'ossio A. Stewart against the U’nroa County Council was continued before His Honor Mr Justice Chapman in tho Gisborne Supremo Court yesterday. Mr. Bell, K.C., with Mr. Chrisp nppoared for the plaintiff, and Mr G. Stock defended.

Charles Edward Stewart, husband of tho plaintiff, recalled, gave evidence of tho building of tho fence across the road which hail been removed by the County employees. Enoch Hallott, formerly overseer of the Wairoa County Council, said ho know tho road in dispute and remembered the washout which occurred in 1895. About four or live chains of tho road was then rendered impassable for traffic. Ho found that it was impossible to reform the road along tho original survey, and asked Mr Stewart to alloiv it- to go through lus property. To this Mr Stowart agreed. He spolto to Mr Stowart about acquiring the land necessary for the road, but Mr Stewart informed him that as the land was mortgaged it would he necessary to get the mortagees consent to the. deviation. This was obtained, and witness proceeded to construct the now road. Ho expected this deviation to remain as tho permanent road. To Mr Stock: Tho additional land was taken to guard against the contingency of the road being again washed away. No specified area to bo taken was mentioned to Mr Stewart, but as far as witness could remember about 3 acres was taken and the price discussed. "Witness understood tile land would be taken under tho Public "Works Act. Ho pegged off the lino of road and tho Council s employees formed tho track. The fence Was re-erected at the County s expense. As fur as ho knew Stowart never attempted to obstruct the road in any wav. Sonio time during tho last two years Mr Stewart met witness and complained that the County Council hail not carried out the -arrangements made for tho taking of the land. To Mr Bell : Tho deviation made was the only practicable way of reforming the road. To His Honor : He understood that tho County should purchase all tho land fenced off for tho purpose of tho road. , , , To Air Bell: Air Stowart knew that the laud would liavo to be surveyed before it could bo legally taken by the Council.

This closed tho plaintiffs evidence. Ah- Stock claimed that plaintiff should bo non-suited on the evidence. The road had been used as a public highway with the full consent of the plaintiff and it could not be denied that tho road was a public road. County money had been spent upon it and plaintiff had never obstructed traffic or tho County employees in effecting repairs. Air Stock quoted authorities in support of his contention. His Honor: Stevtuts evidenco shows an agreement that the County had to tak ethe land under the Public "Works Act. ' . Air Stock said that plaintiff might have a right to compel the County Council to define tho road; but could not succeed in an action for trespass. In reply to Air Stock His Honor said he. did not think it was necessary to call evidence that the road had been open to public use, as that had already been shown in plaintiff s statement. . "William Short, clerk of tho W airoa County Council, said that ho remembered tho washout on tho road in 1895. At a subsequent meeting ot tho Countv Council a resolution was carried instructing the overseer to obtain tho land from Air Stewart for tho purpose of reforming the road. a copy of tho resolution uas not- toiwarded to Air Stewart. At a, later dato the overseer was instructed by the Council to take steps to acquire the land under the Public W orks A>. To His Honor: He could find no written report from Air Hallet de-M----ing with the road in the County reC °To-Air Ball: The Council had never paid Airs Stewart any money ior tlio land, nor had tliero been any -arruigenicnt- in writing. • . Air Bell' contended that, freedom to'use a road until a survey was made, did not make the road-a i . blic one. The defendants did not contend the road had been dedicatees but that it was Alien- own land . 1 e County Clerk had admitted that tlie defendants had never bought the land or mado arrangements, to buy the land. Stewart had given a clear history of the road, and showed that while he desired the County to do what was right in the matter, tins was neglected by . defendants. All Bell emoted authorities to show that tho land was still private property, despite tho fact that it had-been used bv the public. Air Stewart had admitted the public had a right of way through the property, hut not the specific right-of-way as defined by the road. It was the duty ot theUount.v to make a survey and take tho road in a proner legal manner. . . His Honor reserved his decision. A PROBATE CASE.

Hor.amona Turoa and others (Air G Hutchison) sought to compel Frederick Hall and AVilliam Oswald Skeet, executors in the estate of the lato John Alfred Harding, to file an inventory of the estate and effects. Mr Bell, K.C., with Mr Nolan appeared for the defendant executors. Air. .Hutchison contended that any person interested in the estate had a right to claim that an inventory should bo given within a limited period of the granting of probate. Here an interval of six months had elapsed, and this rule had not been complied with. The Court could compel tho executor to do his duty. It had been decided that-an-action was tho proper form under which to compel the observance of thp rules, and authorities were cited in support ot tho contention. Air. Hutchison said that the deceased must- be regarded as a debtor to the plaintiffs, as ho had occupied their lauds, and as creditors the plaintiffs were entitled to know the position uf the estate for their own protection. There was no hardship entailed in asking the defendants to file an inventory, and such a procedure was the only way in which plaintiffs could obtain information of value to them. Air Bell said tho action was unnecessary. If what Air Hutchinson contended was correct, the man in tho street could come into court and compel oxecutors to disclose . tlio affairs of an estate. His Honor said he thought tho action was unfounded. It was the duty of the executors at the instance of some person interested in the estate, to disclose the affairs of their trust. There were certain considerations before this could he done, and it was necessary to show that the plaintiffs were interested in tlio affairs of the estate. The plaintiffs had not alleged they wore creditors of Harding, and had thoir right denied by the executors. If they proved that they were creditors, and wished to protect themselves, the present action would be a right ono and they would he justified in asking the Court to piotect them before the estate was dispersed. Looking at all circumstances no definable interest was claimed bj plaintiffs in Harding’s estate and the action must fail. Judgment was entered tor deleiKtaut with costs on the lower scale. A TRADING COUPON CASE. William Brady, manager of the Poverty Bay Co-operative Association, (Air Stock.) appealed from a decision of tho Stipeudury Magistrate at Gisborne, in which he was fined for selling packet- lea containing coupons,

’ Mr Nolan resisted tho appoal on behalf of the Crown. Mr Stock said tho case arose over tho salo of packet tea containing coupons, which, when a. sufficient number was obtained, could bo exchanged for books. The books wero sent out by tho Book Gift Tea Company and not by tho defondant in tho original prosecution. Tho salo was hykl to bo a broach of tho Trading Stamp Act, and a conviction was entered. That conviction was now appealed against. Air Slock held that tho coupons loft nothing to clinnco as tho prizes woro choson by tho customer, tho stamps were redeemed by tho vendor and there was no difference between these coupons and tho discount tickets issued by a tradesman for which goods were given in exchange. Mr Nolan said that tho position was that a porson presenting twe.lvo of the coupons was entitled to a book. The coupon was a trading stamp m tho meaning of tho law. It might bo argued that ono coupon itself was not a trading stamp. If that contention was good tho whole Act was ineffective. His Honor said that to sustain tho conviction, tho coupon would liavo to be issued at one shop and honored at another. He was under tho impression' tho conviction could not bo sustained and would like before giving a decision, to consult ono of tho other Judges of the. Supreme Court on tlio matter. The decision was consequently reserved. WILLIAMS AND KETTLE V. ALOR-ICE BROS. Air Stock askctLfw-,an extension of time to move for'a new trial or other roliof in tho case of Williams and Kettle Ltd. v. Alorico Bros. Mr Bell K.C. consenting, His Honor extended the time for twenty-one days from tho date of trial. Proceedings to bo stayed in the meantime. IN CHAAIBERS. Off the motion of Air Burke, His Honor granted probate to the executors of tho will of tho lato Air William Dewcs.

IN BANCO. APPLICATION TO SET ASIDE AN ORDER. Selby Burson, (Air 11. J. Finn) made an application for a writ of prohibition, to prohibit Albert Alicfiael Lewis, on the judgment of Air. AV. A. Barton 5.A1.., from further proceeding on an order under tho imprisonment for Dept Act 1874, and for an order staying all proceedings pending the hearing of the motion. Mr Sainsbury opposed the application on behalf of Mr Lowis. Mr. Finn stated that a judgment summons was obtained against the appellant on a certain affidavit, and he proposed to attach that document and ask that tho order be set aside. Tho declaration was faulty, as the Act provided tliat. a document when amended must be initialled by tho Justice of the Peace before whom tho allegations woro sworn. Tho summons was also ineffective, as it was issued and signed by the deputy clerk of the Alagistrates Court. This was not sufficient to comply with tho Act. r J ho person holding that position should have signed as “Acting Clerk of the Alagistrate’s Court.” On these giounds ho held that an order ior imprisonment was invalid. Mr Sainsbury said the hearing on the judgment summons was heard, by consent, before a magistrate. Thu was equivalent to appellant moving for any irregularities in the proceedings, and lie could not now ask that the proceeding be quashed. Mr Saii.sbury cited authorities ill sup port of this view-. Tho statement |n \ id“d that when a deputy clerk vas appointed lio should have the ame j aver and privileges as a Clerk of the Court, and there was no iced ior him to stato that he was .“.-a'y ar acting officer. . His Honor said ho. would prefer not to decide the case on iiie acquiescence of tho appellant, rs the appeal rested on other points. Tho esse could bo decided upon the affidavit which, it was stated, was not drawn up according to the rules i t the Supreme Court. Tho code in uro for tho Supremo Court did not apply to this declaration. He had only to ciisider if the document could be safely act ed upon. Looking at-, the defects in the document he did not think tlcy wero made negilontly. Execution was also taken to the summons upon the ground that the signature of the signature of the officer . f the Cci.i t. The Alagistrate’s Court set out- how a. deputy could be appointed, and a person taking out a sum ions had a right to expect- that the officer jtouiug the summons was qualified u do so. ' It was not intended that the ■public should have causo to it quite into the details of the officers appt :'ntmont. The clerk signing tho summons had all the powers :nd dut/.ns of clerk of the court, and his signal! ie was sufficient. The motion w. -jld be dismissed with. £5 5s costs. . CLAIAI FOR ".ALIMONY. SMITH V. SMITH.

Alary Elizabeth Smith (Air G. Lysnar) petitioned for comnrmation of tho Registrar’s report on an order for alimony and maintenance against her husband Abbottsford Smith. Air Finn appeared for respondent and objected to the report on the ground that it was against tho weight of evidencein defining respondent’s financial position. The report set out that the properties should produco £312 per annum, whereas it only produced £266 17s 6d per year. The -respondentwas willing to admit- the later amount as his true income. Air Lysnar said the present order against tho respondent was for £2 6s per week. The inquiry had been taken on an application to increase the amount. The statement of accounts put in as evidence at the inquiry went to show that tho respondent’s net income was greatly in increase of the amount admitted. He also asked the Court to increase -the -amount of maintenance and compel respondent to find security for the order nuulp. His Honor reserved his decision. The Court then adjourned until 10 o’clock this morning. NAPIER SITTINGS. INTERESTING STOCK CASE, Press Association. NAPIER, March 13. At the Supremo Court to-day, John McKenzie was convicted and was sentenced to 18 months’ imprisonment for perjury. . A civil action, the Official Assignee v. Williams and Kettle, Ltd., was hoard, and judgment was reserved. This was -a case of some importance to stock agents, the claim being for repayment of proceeds of sale of qattfc by the defendant company acting under instructions from Air. H. G. Harding, who was subsequently made a bankrupt-. For the plaintiff it was contended that the cattle were the

property of Harding, and the- proceeds of tho property belonged to the bankrupt’s creditors. The deiondant’s case' was that a letter ol instruction froin Harding gave them tlio right to dispose of the cattle as security for repayment of his account, and to credit his account -with tho proceeds, which was done