THE COURTS.-TO-DAY.

Evening Star, Issue 6966, 28 July 1886, Page 2

THE COURTS.-TO-DAY.

S'JPREME COURT.-IN BANCO. (Before His Honor Mr Justice Williams.) Stbachan and Othebs v. Mubbay and Othebs. —In this previously-heard case His Honor delivered judgment as follows : The facts upon which this case was decided by the Magistrate arose before the recent legislation enabling married women to hold property, and also before the recent Act amending the law of distress for rent. The Magistrate has found that the articles seized, although originally purchased out of the income of Mrs Mosch's separate estate, belonged to her husband. The question is whether there was any evidence which would justify him in coming to that conclusion. That the legal property in these articles was vested in the husband is beyond question. The trustees of Mrs Mosch's settlement, as the Magistrate says, never had any title to or control over the furniture. The question remains whether the husband held this furniture subject to his wife's equitable title to it. If he so held it, then, in view of the case of Duncan v. Cashin, L..R., 10, C.P., 554, it would probably not be considered as the goods of the husband so as to enable the landlord to follow and distrain upon it beyond the demised premises in the event of a clandestine removal. This latter point, however, it is not necessary to decide, as I think that the Magistrate, upon the evidence, could properly find that this furniture had become the absolute property of the husband. There is a broad distinction between the case where the capital of a fund belonging to the wife for her separate use is received by the husband and where the income, or the proceeds of the income, of such a fund are so received. In the former case there is the strongest presumption that it was intended that the husband should hold and invest the property as a trustee for his wife. In the latter case it would be inferred from very slight evidence that the wife intended the husband to have, as his own, property which, with her assent, he had received. In the present case both the husband and the wife wc-e present, and appear to have concurred in selecting the furniture at the time it was originally purchased. Not only were the articles which were seized purchased at this time, but a number of other articles, such as carpets, bed linen, and blinds. The cost of laying the carpets and fixing blinds and shelving was included in the account, and paid out of Mrs Mosch's money. This latter work was done in, and all the articles were sent to, the house rented by the husbind, and were there mixed and used in common with furniture thero belonging to the husband. It seems to me that the wife, by placing the furniture purchased under her husband's control, and by allowing it to be mixed and used in common with her husband's own furniture, may be presumed to have intended that the husband should hold it not for her separate use but for the purposes of the joint establishment, and in the same way that he held the rest of the furniture. I see very little difference between this caso and that of a wife handing over to her husband rart of the income of her separate estate, and the two arranging that he should apply it towards furnishing his house. No English case exactly analagous can bo found. It has been decided, however, in New York that the furniture purchased by the wife with the moneys received for the rents of her eepirate estate, and mixed with the other furniture of the husband, was also bis property and liable for bis debts; there being no agreement or understanding between them at the time of the purchase that such furniture should be kept by him as her trustee merely, or that the title thereof should be vested in another person for her separate use (1 " Bishop on Married Women," pago 820). On the whole, I think that upon the above grounds, and also in view of the other facts stated in the case, of the circumstance that Mrs Mosch was not called as a witness, and that Mrs Mosch is attempting to set up an equity against her husband's creditors, there is sufficient evidence to show that that the goods, at the time of the seizure, were the absolute property of the husband. I wish distinctly to state that it by no means follows from this decision that under the present law relating to married women's property the tame inferences would be drawn from the above facts. The decision relateß only to the state of the law where a married woman cannot hold pergonal property except through a trustee, and where in the absence of a trustee the property would belong to the husband, unless the husband had himself become by implication of law a trustee. Appeal dismi-sed with coats, Llolos. In re Thomson and Chiits (caveat).—ln this previously-heard case His. Honor gave judgment as follows : If the caveators in the present case have any right as against the registered proprietor, it is the right to have a lease in terms of their agreement with the mortgagor placed upon the register. To this lease the registered proprietor must necessarily be a party, both for the purpose of demising the land, and also of entering into the landlord's covenants. It is impossible in the present proceeding, and upon tho materials before me, to decide finally whether such a right exists. Tho proper and only mode of deciding this is by an action for specifio performance of the agreement in question. _ All I can say now, from what is before me, is that the caveators may porhap* be able to establish this right, and that they ought to have a reasonable opportunity of endeavoring to do so. If they do not choose to take the necessary steps to establish by tho decree of the Court any right they may assert, they ought not to be allowed to continue the caveat. The object of lodging a caveat where the right asseited by tho caveator is the right to the specific performance of a contract by the oxecution and registration of an instrument undVr the Act is to enable the right to be asserted effectually by action. If the caveat in such a case is lodged without any intention of so asserting the right, or if the right is not so asserted with reasonable promptitude, then, in my opinion, the Court or Judge should, in exercise of the powers conferred by section 144 of the Act, order the caveat to be removed. In arriving at this conclusion I have not overlooked the provisions of the 146 th section—that a caveat is to lapse at the expiration of fourteen days after notice given of an application to register some instrument unless the Court makes an order to the contrary. Notwithstanding this section, however, the fact of a caveat being on the register is a blot on the title, and must tend seriously to hamper- the registered proprietor in negotiations for the sale, mortgage, or lease of the land. The caveator should not be allowed to continue thus t» interfere with the rights of the registered proprietor unless he can proceed to establish, in due oourse of law, a superior right, The order will be thai the caveat b» removed unless the caveators, within fourteen days, issue and serve upon tho registered proprietor a writ of summons and statement of claim in respect of the rights to whioh they conceive themselves entitled. If the caveat is thlis romoved, the costs of the summons (L2 2s) and disbursements will be paid by ths caveators. If the action is commenced, the above costs will be added to and form part of tho cpsts of tho action. DIVORCE COURT, (Before Mr Justice Williams.) Mills v. Mills and Ferrier.—Suit for dissolution, of marriage. Mr Denniston said that foe appealed for the petitioner. His Honor; Is there no appearance for thfi respondent ? Mr Jjeunjstfln ; No, your Honor; nor for the 00-respondent, His Honor: Is there an affidavit of ser vice of the petition on the Attorney General ? '' Mr Denniston said there was; service was effected on November 10 of last year. The r etition asked for a decree of dissolution of

marriage between James Mills and Anuabella Mills on the ground of the latter's adultery with the co-respondent, Gibson Perrier. His Honor was aware that the greater part of the evidence had been taken on commission, and counsel now proposed to call a little further evidence, and then address the Court in support of the petition. George M'Lean stated: I am chairman of the Board of Directors of the Union Steam Ship Company, and I have known the petitioner for many years. He has been connected with the Company ever since its origination, and lias been for some time managing director. I have known the respondent also for years. The marriage certificate produced is that of the marriage in 1871 of the petitioner, James Mills, to the respondent, Annabella Mills. The respondent's maiden name was Langlands, and the certificate was signed by her father, William Langlands; the petitioner's father and brother, William Mills and David Mills; and James Scott. These were all relatives of the parties and witnesses of the marriage. The petitioner left New Zealand for England about four months ago, and had to stay at San Francisco for three weeks on his way. He left here on the business of the Company and by direction of the Board of Directors; it was important business and required the petitioner's special attention. At the time he left I knew that these proceedings were being taken; the petitioner's departure had nothing to do with these proceedings. His going Home had been arranged.by the directors before this happened, and he had arranged to take his wife Home with him. Nothing was arranged by the directors as to the time when the petitioner should return, but it was supposed to be about the end of the year. Business circumstances have, however, arisen since his departure which may prolong his return, the date of which is somewhat indefinite. I have known the petitioner and his family intimately, and visited them frequently. From my knowledge of the petitioner and his wife, and from what I saw of their domestic relations, I can say that I never saw anything but such amicable relations between them as could well exist between man and wife. I had no reason to anticipate anything of the sort that has now happened in oonnection with the co-respondent or anybody else. In July last the petitioner took his wife over to Melbourne for a holiday, and he, after staying there about a fortnight, returned to Dunedin, leaving the respondent staying at his brother's residence, and arranging that she should return in a few weeks' time by way of Sydney and Auckland. During the early part of October I was at Wellington, and came down to Dunedin about the middle of the month. While here I leceived a cablegram from Mr David Mills, at Melbourne, to the effect that the respondent and co-respondent had gone away together, and asking me to break the news to the petitioner. The petitioner was at the time at Wellington, where he was engaged in negotiations in connection with the San Francisco mail 'contract. I went up to Wellington immediately and communicated the intelligence to the and he came back with me instead of proceeding to Auckland, where he had arranged to meet his wife.

John Patrick Spring, insurance agent, said : I have resided in Dunedin for about nine years, and during that time have known the petitioner and his family. They were great personal friends of mine, and I and my wife frequently interchanged visits with them. From my knowledge of them I can only say that the relations between the petitioner and the respondent were most friendly. I also know the co-responden* (Gibson Ferrier) intimately. I have not seen him often at the respondent's house —about twice, I should think. From what I have seen and know I had no ground to suspect any impropriety between the respondent and co-respondent; I never knew them to meet anywhere.

His Honor :' I do not quite see the point of this evidence. Mr Denniston said that it showed the relations of the parties as observed by their intimate friends.

The witness continued that no suggestions ever occurred to him of any impropriety between the respondent and co-responaent. Montagu Pym, auctioneer, stated : I have known the petitioner and his family and also the co-respondent very well for years. The domestic relations of the petitioner and his wife were, as far as I could see, very good they always got on very well together. I knew last year of the corespondent's intended holiday trip to Austraiia. He was manager of the Bank of New Zealand. I knew when he went away that he intended returning to Dunedin. He left all ins business and private matters unsettled, leaving his private papers and things about. Subsequently I received a hurried note from him, requesting me to put certain things of his away, realise on other things, and hand the proceeds to the bank.

His Honor: He has not returned to Dunedin ? Mr Denniston: No, His Honor: The evidence taken on commission shows that citation was served on the respondent and corespondent together, in London, on December 5. Mr Denniston: I have not thought it necessary to prove that they are still together ; that can be done by letters to friends in Dunedin.

J. P. Spring, recalled, stated that his wife had, not more than a month ago, received letters from the respondent stating that she and the co-respondent were still living together. Mr Denniston said that he had subpoenaed the respondent's father to give evidence if His Honor considered it necessary ; but Mr Langlands was very reluctant to appear, and counsel would rather not have to examine him if possible. His Honor said he thought the evidence of identity of the parties was sufficient. Mr Denniston said he would put in the certificate of marriage and the evidence taken on commission. His Honor said that of course the evidence made out a very clear case, and there was no question of the identity of the parties. The only question, then, was whether the petitioner had been guilty of connivance, collusion, or condonation. The evidence negatived any idea of the sort; still it was a question whether the petitioner should not be callefl, so that he could be asked as to whether any arrangement had been come to for the bringing of this suit. Mr Denniston submitted that the only point was whether the Court was satisfied, as far as it could reasonably be, that the petitioner was not an accessory to or connived at the adultery, or condoned the same. The only difficulty was that the petitioner had not tendered himself as a witness, but that was explained by his absence from the Colony on business. His Honor said the practice had always been for a petitioner to appear and be asked if he had had any communications with the respondent since the alleged adultery—whether there had been any interviews or letters between them—in order that the Court might test whether there had been suoh. A petitioner's evidence was always the best for that purpose—to show that there had been no condonation, and that the suit was brought independently.

Mr Denniston submitted that there uould be no condonation after proceedings bad been commenced, and in this oase proceedings were taken as soon as the fact of the adultery canje to the petitioner's ears. His Honor: Yes ; the proceedings seem to have been taken as promptly as they could be, Mr Denniston submitted that he had established a clear case, and that there was an entire absence of collusion, connivance, or condonation on the part of tho petitioner. His Honor said he would take time to consider his decision; he would give judgment this day week. RESIDENT MAGISTRATE'S COURT. (Before Messrs G. Fenwick and G. P. Farquhar, J.P.s.) Jn the following cases judgment was given for plaintiffs, with costs, there bring no appearance of defendants : —J. Wilson v. W. Shand, claim LI 13s 6d; T. Low v. D. Bourke, LlO Is; P. and J. Isaacs v. W. thojnsop, L,2 9s f)d. ft.' ftlingenfejd v. E. Qlegg.—Claim, L 5 10s, goods supplied. ~fyr T. C. Farpie appeared for plaintiff; Mr D. M.' Stuart fop defendant.—Judgment was given for plaintiff for 265, without costs.

W. Marshall v. F. Curtis.—Claim, L2 14s, goods supplied. Mr Hay for plaintiff; Mr D. M. Stuart for defendant.—Judgment was given for defendant, with costs. (Before Messrs G. Fenwick and A. Bartleman, J.P.s.) M. Hallenstein and others v. T. Evans.— Claim, L 5, rent due. Mr Sim for plaintiff'. —Judgment was reserved. CITY POLICE COURT. (Before Messrs W. Hutchison, J. Elmer, and H. F. Hprdy, J.P.s.) Drunkenness. Ellen Fetherick (who came under the habitual drunkard clause of the Act) was sent to gaol for one month ; Ann Jane Seals, against whom there were forty previous convictions, was fined 40s, in default fourteen days'imprisonment; Sydney T. Sharpely, a first offender, was convicted and discharged. Vagrancy.—A remanded charge against Emily Stone (who had left the town in obedience to an order of the Court), was withdrawn.

Hawking without a License.— Ah Fonp, charged with hawking fish without having Srocured a license, was fined L2, or fourteen ays' imprisonment.—Ah Fong decided to go to gaol. _^_________