AN UNUSUAL CASE.

Evening Post, Volume LXVI, Issue 20, 23 July 1903, Page 5

AN UNUSUAL CASE.

MOTION TO DISPAUPER. A motion to dispauper Thomas Mitchell, who was last week granted leave to appeal in forma pauperis from the decision of the Supreme Court in his action against the New Zealand Loan and Mercantile Agency Co., Ltd., and others, came before the Chief Justice and Justices Denniston, Conolly, Edwards, and Cooper in the Court of Appeal this morning. Mr. Bell appeared in support and Mr. Jellicoe to oppose. Mr. Bell made a preliminary point that Mitchell had not paid the ten guineas costs he was ordered to pay when the Court discharged the order previously granted. Counsel then went on to deal with the merits of the application." Thia alleged pauper, he said, was shown by the affidavits filed to be in possession of an eight-roomed house and 4£ acres of land at Aramoho, which he himself valued at between £3000 and £4000. He was actually living in it with, his wife and son. This land and house were included in the securities the defendant company; was entitled to. Mr. Jellicoe: It is assigned to John* son. Mr. Bell replied that Mitchell remained in possession. He, however, had felt the difficulty, and they would see how ho met it. He had only been nonsuited, and the defendants could not put him out of possession without bringing an action against him. Inasmuch as he had only . been nonsuited, he could defend the action and have the whole matter tried over again. Yet he now sought to appeal in forma pauperis, and if his appeal "was disallowed he remained in exactly the , same position. Was this equitable? Mr. Bell asked. Mr. Jellicoe : We don't contend for that position. Mr. Justice Dennislon : It is not a mat« ter of contention, but of actual rights. Mr. Bell eaid Mitchell saw this posi* tion, and in his first affidavit, filed on. 3rd February in opp6sition to the defendants' motion to discharge, said : -"It is true that I am now, and for some timepast have been in the possession of the house and land referred to ... but such possession is entirely on the sufferance of Ernest. D. Johnson, who is entitled at law to .determine such possession." When he said he was there on the sufferance of Johnson, Mr. Barnicoat wrote on behalf of Johnson asking him to give up possession. Mr. Jellicoe wrote in reply : "You are w«ll aware of the nature of the action. Pending the hearing of his appeal Mitchell does not propose to interfere with the status quo, nor does he intend to give up possession of the house and land." Mr. Bell submitted that' it was plain .upon the authorities that a man ill such a position had no right to claim the indulgence of tbe Court as a pauper. He gave an altogether incorrect excuse for his possession, in his own affidavit, and the moment .lie -was called on to give it up he said he did not intend to -do so. . Mr. Bell hoped the Court would, in considering Mitchell's evidence given befpre the Registrar, bear in mind this evasion. In the same week in which the plaintiff commenced, the 'action he divested himself of bis properly, and gave it to his son. He transferred it for the purpose, as he said, of putting it out of the litigation, and now asked the indulgence of the Court. In addi^bri'to his butchering business at Wanganui, he got the Patea<meat woriis, and put it in. the name of his son, after the commencement of the action, whUe_ admitting that his eon had no money. The Chief Justice said there was a doubt whether Mitchell really had anything to transfer. All he had got was apparently got on credit. Mr. Bell contended that if the plaintiff had himself earned on the business he would not have been entitled to proceed as a pauper, and was he to be allowed to alter that position by putting his son in nominally? His Honour: He does not appear to have had any money when he put hia son in. Mr. Bell : There were book debl«. His Honour remarked that they apparently did not cover the plaintiff's debts. Mr. Bell said that had that been, the position and Mitchell was still in the business, ho would not have been allowed to proceed as a pauper. Mr. Justice Edwards: 'He has not to -swear that he is not worth £25 over his lawful debts, but that he not worth £25. In reply to the Bench, it was ascertained from Mitchell that the Patea meat works were sold some months ago, and the surrender was signed a. couple of weeks ago. Mr. Bell remarked that the son might have got -£10,000 for the business, and the plaintiff might have got his share. He would like to know more about it. Counsel went on to quote Mitchell's evidence given before the Registrar, and cited authorities with the object of showing that plaintiff was not entitled to proceed as a pauper. If the Court did not discharge the order already made (as ife did the 'first order), then in. the alternative he submitted that it ought to be made a condition of the order that Mitchell must give up the house and land at Aramoho to the defendants. He could not be allowed to fight them with their own property. If he had been willing to submit to that condition there would not have been the present objections raised. Mr. JeJlicoe submitted that jthe Court had to look in all these cases at the nature of the action and the nature of tha relief claimed, in order t& get at the subject matter of what was to be considered a pauper's means. The house and land in question were part of the Aram.oho meat works property. Mr. Jellicoe traced the various negotiations in connection therewith, and the finding of the Court, and said that Mitchell's present position in law in regard to the property was that of a tenant at will. Mr. Bell : Then why didn't he go outj when he was asked? Mr. Jellicoe said he* didn't go out but remained a tenant on suffrance. He might be evicted at any time without even a demand. The value of that tenancy on suffrance was nil. Mr. Bell asked what of Mr. Jellicoe's letter sa.yiSag lie wouid not give up possession. Mr. Jellicoe said he could dispose of that matter in a few words. He stated how Mitchell had been granted leave to appeal in forma pauperis in the first in» stance, and Low counsel Lad been assigned. But that order the Court had afterwards discharged. He submitted that nothing the assigned counsel said or did could bind the pauper after the Court liad discharged the order. The position, was the same as if the barrister ha 4 never been assigned. In reply to the Bench Mr. Jellicoe repeated his contention. ' He added that the letter was possibly written under a mis-, conception of the pacts at the time. It was iiever intended to suggest that Mitchell intended to assert any greater interest than he stated ho had in his aflidavit. Mr. Justice Cooper: I undeistand, Mr. Jellicoe, there is a Tery simple way out of the difficulty, and that is by your giving up possession of this m-operty at once. * Mi. Justice Denniston said such going out would have to be an unconditional one ; there was no question of a quid pro q,uo, and the plaintiff would have to leave in a given fixed time. Mr. Jellicoe: I submit with gre«t respect that the Court has no right to impose any such undertaking. Mr. friend Mr. Bell, however, will, I am sure, accept my undertaking that my client will 1 give, up possession.,

Mr. Bell said he was afiaid he wouL be here again arguing this matter, and h •would prefer to avoid that, and have th matter disposed of with some finality. Mr. Jellicoe said he would be able t< give his friend an undertaking that wouli dispose of the matter. Mr. Justice Edwards : But we jus heard that this unhappy gentleman is no bound by anything his solicitor does ii or out of Court. . Mr. .Jellicoe : He is sp long as the ordei stands. f/v. Bell : If the Court makes it £ condition that Mitchell gives up posses eion at once we don't desire to plac6 anj opposition in the way. Mr. Justice Edwards : I should havt thought you would be glad to see the enc of the matter. " Mr.' Bell: That" is so. Mr. Justice Edwards suggested that as doubt had been raised as to whether th« solicitor could bind his client they hac better ' adjourn, the matter for a week and let Mitchell bind himself by getting out. Mr. Justice Denniston : If as you saj it is of no value to you, turn yOurseli cut to-morrow, and divest yourself of the cause of the opposition. Mr. Jellicoe : The Court cannot go thai length. His Honour: It can go the other . length. To enable a settlement of the point tc be arrived at between the paTties the motion was adjourned after some furthei discussion till 2 o'clock. On the Court resuming, Mr. Bell initimated that it had been agreed that the order for leave to appeal in forma pauperis should be va&ed by adding the condition that quiet possession of the house and land should be given to E. D. Johnson within twenty-one days. The order was varied accordingly. Mr. Bell : I "still think we are entitled to the £10 on the discharge of the first order. The Chief ' Justice: Well; you are entitled to it. Mr. Bell: Yes— if I can get it. The Appeal Court then adjourned.