APPEAL COURT.

Press, Volume LXIV, Issue 13102, 29 April 1908, Page 7

APPEAL COURT.

THE KAIAPOI FACTORY FIRE. (PKESS ASSOCIATION" TELEGRAM.) WELLINGTON, April 28. The Appeal Court to-day delivered judgment in tho oaso of tho Phoenix Assurance Company v. tho United Insurance Company, which involved' reinsurance on tho premises of tho Kaiapoi Woollen Company in Chrustchurch, which were destroyed by lire in November last. For some years the plaintiff company had effecfea reinsurance with, the defendant company to tlio extent of some £$00 odd, on one of the premises of the Kmapoi Woollen Cotnipany, and the premises were designated; as "attached." In 1907 another policy of reinsurance was issued by the defendant company to th» plaintiff, which was expressed to bo "iv lieu of the last policy." This policywas for a slightly different amount, viz., £620, instead of £GSO, and in the proposal which hsul jn-eceded it, and in the policy itself, the building was described as "detached o feet." This policy was in force when the pre-. uiiscs of the Kampoi Woollen Company ■were destroyed by'fixe on 13th November last. It appears that the Wool Inui Company had two build ings in Cliriet-chilrc-h, one attached and the otlier detkebed 5 feet. It was the attached buiMiivg that was destroyed , . The plain/uiff company applied to the deiendiant company for payment of the momeye due under tho policy, but the defendant company refused to pay on the ground that the last policy issued by them covered the detached' buifchnjj,. Tho plaintiff company claimed that it was intended to cover tho attache" , buildinig, and' that the description of tho building on the policy as "detached? , was a mutual mistake, thei'aco that the policy was issued in lieu of jui earlier policy on tho attached building showing that it was that building which was intended to be reinsurea. For the plaintiffs, counsel contend/ad tliat reinsurance coiikl havo been only on the warehouse destroyed, as tbej never insured tho factory, and that the -words "d'otached 5 fett" were surplusage and imn.utcriaL Tlio mistake, it was arguff, oroso through' a clerk in the plaintiffs' office mistaking the two buildings, and! putting a plan of tlio factory on. the proposal for insurance of the warehouse. Without caUrnig upon tho defendant's counsel, the Court gave judgment for the United Company, with ecsts on the highest scale in the Court of Appeal and iiD the Court below. OTHER CASES. The Court of Appeal gave judgment in the case of Hex v. ltcesonj arising out of a criminal libel action. The' Court held that it was not necessary for the proewutioir to prove at a trial tliat the order autihorising a prosecution liad been mndie by a Magistrate under section -*> of the Criminal Ocde Act Amend nwtnt Act, 1901, so long aa the order was -duly iua<!b (as it was m this case). That was sufficient. The conviction was affirmed. Tho Court then took tine cases oi Rex v. W. G. Tustin. 'Die defendant was convicted itnder tho Bankruptcy Act for fia.ilimg to keep proper bocks audi of contracting debts when he had no reasonable probability of being ablo t<. pay them, but tho jury expressly found that lie was not guilty of any fraudulent intenx. A question was reserved for the higher Court whether fraud was a necessary ingredient in the offence charged. There- was also another question of tko admission of n deposition. Mr Ncavo appeared for the appellant and Mr Myurs for the Grown. Without calJi-ug on the latter, the Court decided that fraudulent intent was not netvssary to constitute tho offencecharged v gainst the appellant, and affirmed the conviction. In Hex v. Hurkuid, aa appeal against a conviction at Auckland for interference with a girl under the ago of consent, tho Court also affirmed- tho conviction. A telegram was received from prisoner's counsel stating that he did no wish to go further with the appeal, but tlie Court considered they siiouid hear t!;e case. The Court had- before it an. application by Frank Sales for now trial. *>ales had been- convicted at Chrisfrcliurcli of breaking and entering, and on a question of identification, leave was granted to apply for a new trial The hearing of the case h;id not concluded when tho Court rcco for tlio day.