SUPREME COURT.

Auckland Star, Volume IV, Issue 1011, 16 April 1873, Page 2

SUPREME COURT.

THIS- I>AY.

(Before His Honor Mr Justice Johnston.)

Civil Sittings. His Honor took his seat at ten 0'c10ck.,,,, FITZGERALD' V. TE MOAKANUI. This was an action to recover £100, witn interest thereon, amount of promissory note made by the Auckland Saw-mill Company in favour of the defendant, and endorsed by him. The plaintiff had advanced to the defendant the money on the note, and it had been endorsed over to the plaintiff by the defendant. . , „ Mr MacCorniick appeared for the plaintiffs, and Mr Whitaker for the defendant.

Theissues submitted to the jury were ■:— Ist. Did the defendant endorse the promissory note mentioned in the declaration? .. 2nd. Was the promissory Dote presented for payment ? , j,,, 3rd. Had the defendant due notice of the dishonour? 4th. What sum is the defendant to recover ? The pleas put in for the defence were ,: — Ist. The defendant did not endorse; the note. 2nd. The said promisory note was not presented for payment. I 3rd. Due notioe of dishonour had not been received. Mr MacCormiok applied to amend ihe declaration in order to plead that the defendant had waived his right to notice by promising to pay subsequent to the dishonour of the note. Mr Whitaker objected to this amendment on the ground that it had taken the defendant by surprise. They had come there to meet the plaintiff's' declaration, and j had received no intimation of the proposal to plead a waiver. His Honor said he could not allow the amendment to the pleadings at that period of the case, and suggested that the merits should be gone into, leaving the proposed amendment an open question. This course was adopted, and Mr Mac 4 Cormick stated the case to the jury. He put the note in evidence, the endorsement being here admitted by Mr Whitaker after referring to the document to Te Moananui. Thomas Edward Fitzgerald deposed to having advanced £100 on the note. It had never been paid. Frank Corbett, clerk in the Union Bank of Australia, deposed that he had presented the note to the Bank of Australasia, and it' was dishonoured. Charles de Thierry, native interpreter, stated ;that. he went to Ohinemuri to serve defendant with a writ which he had received . from Messrs Jackson and Russell. He had some conversation "with Moanani on ;that occasion. Mr. Whitaker objected'to the evidence being proceeded with on the ground th^t it. was adduced to prove a waiver of the right to notice of dishonour. He applied' for a postponement of the trial. ... ■ . ■ ■ After argumentHisHonorrefused the postponement and agreed to grant MrMacCormick permission to amend the pleadings in order to plead a waiver of right to notice by ; promises to pay subsequent to ?tke dishonouri of the bill. The declaration was amended accordingly.

Evidence of C. DeThierry continued : lie explained to the defendant the cause of his visit. He read over the summons several times. Te Moananui said it was quite right. The blame was not Mr Fitzgerald's, but was that of; the people of the mill. He said he would ;give Mr Mackay an order to pay the £100 out of the rents due to him for rents of properties at Shortland. He also said that at that timeMr Mackay had £300 of his in his possession.. James Russell proved the issue of the"

summons

This concluded the plaintiff's case,

For the defence Mr Whitaker called

Te Moananui, whose evidence was'interpreted by Mr Preece, who deposed that the note was given to him by the Sawmill Company for timber. He received £50 from Mr Davis, Mr Fitzgerald's agent, for the note; He remembered Mr De Thierry serving a summons on him at Ohinemuri. Witness said let Mr Mackay take that document back to the person who sent, it. De Thierry did not read it over. He gave it to, witness' secretly. When De Thierry, mentioned Fitzgerald's name witness asked him what it was for. De Thierry replied that it was on account of money paid him formerly by Mr Fitzgerald. He did not promise to pay it : ;. why should he? :" :<...:■. ."- Cross-examinedbyMrMacCormick: W^hen Mr Davis and he went to the bank there was £100 paid to Mr Davis, and he gave,.witness '£50, and the next day he gave him £30. I He had never signed a promissory note before. Maoris did not understand those documents until they brought them to grief., t / a v Mohi Keiti, wife of MoananuL.andJ Mr James Mackay were examined. MrWhitaker then addressed the jury for:the;defold.ant, and Mr McCormick for the plaintiff. i_ The jury was considering the verdict when

we went to press