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THE COURTS-TO-DAY., Issue 8038, 15 October 1889
SUPREME COURT—IN CHAMBERS.
(Before His Honor Mr Justice Williamß.) , fie Mountain MAii> Gold Mining Com* pany, Limited.—Motion for order, dissolving this company and as to disposal of books. —On Mr Qosking's motion His Honor ordered the company to be dissolved and documents to be deposited in the Resident Magistrate's Court at Arrow. Re Geoboe Watt, deceased.—Motion far letters of administration with will annexed, for reducing penalty by one-fourth, and for dispensiog with one surety (Mr John Macgregor).—Letters of administration to bo issued to widow; penalty reduced by onethird, and one surety dispensed with. A'e William Bulleid, deceased.—Letters of administration were granted on Mr Wood's application, Re, Akthuk Shabkey, deceased.—On Mr Wood's application probate was granted herein.
SUPREME COURT.—CIVIL SITTINGS.
(Before His Honor Mr Justice Williams.) WINMILT, V. GALLIB AND OTHERS.'—An action to set aßide the will of the late John Gallic Judgment having been given in favor of the plaintiff, the matter came up for the argument of the question of the granting of letters of administration and the matter of costs.
Mr J. F. M, Fraser appeared for the plaintiff, and Mr F. R, Chapman for the defendants.
Mr Fraaer said that he raised the question of the granting of administration, as it were, under protest, and submitted that by the pleadings the defendants were estopped from denying the right of the plaintiff to a grant of probate. At the outset it bad been agreed that the claim and counterclaim should be heard together, and though the question of costs was reserved no suggestion was made that the question of administration should not follow the decision of the case. The learned counsel referred td affidavits that had been filed showing tbe plaintiffs fitness for the position of administrator, and then submitted that none of the defendants were entitled toor fitted fortheposition of administrator. After arguing the matter and citing authorities, the learned counsel said he had presented to the Court as an administrator the plaintiff, a man of perfectly reputable character, fully competent, and prepared with sureties, who was the only person in the action who had asked for administration, and who bad earned it by his diligence in prosecuting the action to recovery * According to all the precedents he had been able to discover and all the principles be had been able to apply, the plaintiff in this case was entitled to the sole administration. On the question of costs, the learned counsel submitted that as far as the plaintiff Harry Winmill was concerned he was beyond all question entitled to the costs of and incidental to the proceedings out of the estate; and, further, that in no case where the proceedings had taken the shape the present proceedings had asaumed, and where the issues had been found as in this case, had the propounder of the will got costs, but had been condemned in costs; and such by weight of authority, he'submitted, would be the course adopted in this case. These propositions were argued at length, and numerous authorities were cited.
Mr Chapman said that on the question who was to be administratoi he was willing now to fall in with His Honor's suggestion that some neutral person should be appointed. But if the learned counsel on the other side did not fall in with that, then he claimed that the other parties should Btand upon their right of claim to administration. The question, he submitted, was in no way hampered by the particular issne of the claim and counterclaim. He took it that in granting probate in the absence of the widow it was a question of next of kin. Taking the motion on legal grounds, it should be borne in mind that Winmill had placed himself in a position of personal hostility to a. majority of the parties interested.
Mr Fraser said that in the face of the judgment of the Court it could not be seriously proposed to appoint the next of kin administrator. His Honor remarked that if one Bide succeeded and got administration the probabilities were that the matter would not be at an end, and if the litigation were to be prolonged the estate would be swallowed up by an administration suit. Having got to the present stage, he was decidedly of opinion that it would be satisfactory if a bargain could be struck out of Court. He did not suppose that up to the present the parties had approached each other. He should have thought that counsel, in the absence of the parties, would have had some preliminary negotiation, to ascertain if anything could be done. It was hardly to be expected that so far one side would have approached the other.
Mr Chapman: My learned friend held strong views on the subject, and so did I. His Honor said that whichever side succeeded in the present application he feared that an administration suit would be entailed. He should have thought that as Winmill and Mrs Ludford, who were in the same boat, wanted a share in the same estate they would have been willing to accept a lump sum in preference to going into the question of complicated accounts and protracted litigation. Gould not the parties settle between themselves what amount the plaintiff and Mrs Ludford were entitled to ? Mr Chapmau : That might be discussed between my friend and his clients, and afterwards between my friend and ourselves ; and if nothing of that sort could be agreed on we might then discuss the further question of whether we could agree to a mutual administrator.
His Honor: I should have thought that something of that kind was worth discussing. The object of plaintiff in trying to upset the will was to get his share. Mr Fraser: Yes, your Honor, as expeditiously and economically as possible. His Honor: Then if he gets a settlement at once, and without further litigation, it might be worth his while considering whether he would not accept what he considers himself entitled to.
Mr Fraser: Undoubtedly. The position of administration—whether he be & member of the family or an outside person—would not be a happy one. Mr Chapman: But if an outside person he could always secure his own happiness. If he found himself badgered by the parties he could come here.—(Laughter.) Mr Fraser: I think myself that the suggestion made by your Honor for the sake of the estate should be acted on, so as to prevent its being dissipated by law. Mr Chapman: That is what we all desire. Mr Fraser: After your Honor's decided 1 expression of opinion, I think that my client, as a perfectly reasonable man, will say to me "I am quite satisfied with whatever you advise." Personally I should be prepared to go to any reasonable length to prevent the estate being wasted. His Honor: I should have thought the case about ripe for settlement out of Court. The question of costs is, however, one that ought to be decided by me in order to assist you. If you thought that there was a probability of a compromise it would not be necessary to go into precise taxation. Mr Fraser: We are very anxious to have done with the case—we are sick and tired of it. Having succeeded in establishing the justice of our case, we are satisfied. As to a mutual administrator—
His Honor: I was suggesting a settlement of the whole matter—inquiring whether your client and Mrs Ludford could not arrange with the other side to accept a lump sum and avoid further litigation. Mr Fraser: I anticipate opposition right along the line, your Honor. Mr Chapman: From the outset I acceded to your Honor's suggestion that it was reasonable to appoint an outside administrator If we cannot agree to one, your Honor will have to select him. If Mr Winmill's right is insisted on, of course we shall insist upon ours. His Honor: I quite understand that. Mr Fraser: lam perfectly satisfied with my position as claimant, but am anxious to avoid the estate being dissipated in law. His Honor:, Which I am quite sure it would be if an independent man were appointed, unless some settlement is come to in the way of next of kin. But that is a matter for subsequent consideration.
The suggestion of His Honor to defer the matter with a view to a settlement out of Court was agreed on. Mr Chapman then proceeded to argue the question of costs solely. RESIDENT MAGISTRATE'S COURT. (Before Messrs M. Sullivan and W. Wright, J. P. s.) 1 Tablet' Printing Company v. E. H. Harper.—Claim, Ll7 18s, printing done and goods supplied.—Mr. Thornton appeared for plaintiffs, for whom judgment was given for the amount claimed by default. J. Stowart, v. B. Calverley.—Claim, Ll2 Is Bd, on a judgment summons.— Mr Bithgate appeared for plaintiff; Mr Stamper for defendant, who said he owned a sand-pit at the beach. Judgment was given against him some two years ago, but he was unable to pay anything off the debt—he was scarcely able to pay his employes. He could not state how many loads of sand ho had sent away.—Evidence as to the amount of sand forwarded by defendant was given by Charles M'Carthy, station-master at Abbotsford, who said that nearly 2,000 truck loads had been consigned. —Defendant was ordered to pay 10s per month, in default fourteen days' imprisonment. —Defendant: " Thank you, your Honor. I'll pay LI per month." CITY POLICE COURT. (Before Mr G. Penwick and General Pulton, Justices.) A DrsoKDKRLY House.— The case against Elizabeth Brackky, charged with being the occupier of a disorderly house, was withdrawn on the application of the police, accused having left for Melbourne on Thursday last. Assaulting A Chinaman.— John Robertson, Charles Seal, Percy Hogij, William Morton, Francis Morris, and Henry Tompkins, lads whose ages apparently raDgod from about seventeen to fourteen, were charged under section 3 of subsection 29 of the Police Offences Act, 1&84, with behaving in a. manner whereby a breach of the poace was ocqasioned. Mr Solomon appeared for Tompkins ; Mr Hanlon for feho other accused'. Mr VV. Macgregor, who prosecuted on behalf of the police, said that on the evening of Tuesday, the Sth, a Chinaman named Ching Lum was going along by the corner of Fredeiick street and Athol place when he was hailed by a mob of boys, of whom the accused were ring- i leaders., They chased him some distance ; down the street, shouting and throwing i stohe3 at him, and wound up by Seal throwink a large Btone which hit the Chinaman on i the head and cut one of the arteries. Com- i plaihant was assisted to the hospital, and was still we»k from loss of blood. He \ (Mr Macgregor) would ask the Bench to deal 1 with accused in sUOh a way as to teach them i that they were not at liberty to Commit such i (*.n attack. It wan a serious affair, for the i Chinaman had had a very narrow escape. As regarded Seal> there was another charge, laid by the Chinaman himself, of inflicting i grievous bodily harm. That case would i come before their Worships after the present i one.—Ching Lum, who appeared in Court i with a bandaged head, and apparently in a i state of extreme nervousness, stated in the i course of his examination that the accused were standing in the crowd of boys who ' threw the stones at him. Robertson and i Seal were the only boys he actually saw ■• throwing. In answer to the Bench com- ] plainant said that he also iecognised Morton | as being with the mob of boys.—George \ Bowden, carter, recognised Robertson, Seal, i and Hogg as beiDg among the crowd that \ "chevyed" the Chinaman, fle saw Robertson : and Seal throw stono3. One stono that Seal i threw struck the Chinaman on the temple i and knocked him down. Stones wore also i thrown at witness. —Mr Hanlon asked 1 whether witness went to the assistance of < the Chinaman.—Witness replied that he did 1 not.—Mr Hanlon asked witness whether he i considered it a plucky thing to refrain from c assisting an unfortunate Celestial who was J being assaulted by a myriad of boys.—The } Bench ruled that the question was not a e proper one to ask. Witness had apparently 8 done his duty.— After Bowden's evidence was n concluded Mr Macgregor said that he t would like to get an explanation from witness d as to why he did not interfere on the t Chinaman's behalf.—Mr Hanlon objected, \ and the Bench held that the objection wa3 a a fair one, Mr Hanlon's question having been t disallowed.—Mr Macgregor said that he \ wished to show that witness had been s threatened as to what would be done to him fi
i: he gave evidence in Court.—The Bench said that if this was the case they would allow the witness to state what happened. The Court would not encourage the terrorising of a witness.— Witness, in answer to Mr Macgregor, said that as he was going home last night he was assailed with a shower of stones. It was dark, and he could not say who threw them. The same night Robertson and another lad met him, and Robertson said that if witness went into Court he (Robertson) would take care that the gang would give him "a good doiDg." John Pearce, a lad, identified Robertson, Seal, Morton, and Morris as among the lads who threw the stones. The Chinaman threw the first stone.—William M'Donald and James Lloyd, two lads, also gave evidence.—Dr Copland said that when the Chinaman was brought to the hospital he was suffering from a very deep wound in the front of tho right ear. The wound was an inch and a-half in length, and bled very freely. An artery was cut pa> tially across. This was more dangerous, for bleeding, than if it had been cut completely through. Tho Sufferer had left the hospital today, and there was no need for him to return.—Mr Macgregor intimated that that was the case for the police.—Mr Solomon said it would hardly be maintained that there was any evidence against Tompkins. The Bench agreed that this was so, and Tompkins forthwith retired.—Mr Hanlon submitted that there was no evidence againßt any of the other boys except Robertson and Seal, and as to these the only evidence which connected them with the offence was that of Bowden, who, according to one of the witnesses, was not there at all. Further, it was not fair to select these six boys to answer a charge in which a large crowd were concerned.—Mr Macgregor reminded the Bench that the charge was not of throwing a stone, but of being concerned in a breach of the peace.—After consultation with his brother Justices Mr Fenwick said : The Bench have come to the conclusion that they must convict the whole of the accused of being engaged in this disgraceful row. With regard to Seal, his conduct was more reprehensible than that of the others, and he will be fined L2, in default fourteen days' imprisonment. Robertson will be fined LI, or seven days', and each of the others ss, or aeven days'.—On the application of Mr Macgregor costs (LI 16s) were ordered to be paid in equal shares by accused. Grievous Bodily Harm.— Charles Seal, convicted in the previous case, was then charged with assaulting Ching Lum with intent to do grievous bodily harm. Mr Hanlon defended.—The witnesses were the same as in the previous case, with theaddition of a boy named James Martin. After the evidence had been taken the Bench suggested that the charge should be altered to one of common assault. This suggestion was adopted; accused pleaded not guilty ; Mr Hanlon consented to the evidence already led being accepted as the evidence in the new case; and the Bench finding accused guilty, he was fined Ll—half of this amount to go to the Chinaman—in default, seven days' imprisonment. Accused was allowed one month in which to pay the fine.—An application to have accused bound over to keep the peace was not granted. Disorderly Conduct.— John Stephenson was charged with behaving with intent to provoke a breach of the peace, and a second information charged him with assaulting Constable Ramsay while in the execution of his duty. Mr Solomon : I appear for defendant and plead guilty tc both charges. I may be allowed to say that the defendant admits having behaved himself improperly on the occasion, and he can only say in reply that he is extremely sorry for whatho did, and expresses repentance for having made an ass of himself. He had been out dining, and misbehaved himself, I admit. It would be absurd to suppose that in a small place like this we do not know all about a case of this kind, and the greatest punishment that could bo inflicted upon him has been already inflicted, and no fine that your Worships could impose would be complained of; but you will agree, and the
police also, I have no doubt, that the humiU' ation attending upon the proceedings up to date far exceeds any monetary punishment that could be inflicted on defen dant. I can only say that he is heartily ashamed of himself, and simply places himself in your Worships' hands.— Mr Fenwick: Although accused has pleaded guilty, the Bench are not justified in inflicting anything liho a nominal penalty, for both the charges are serious. On the first charge accused will be fined L2, or fourteen days imprisonment, and on the other L 5 or one month. Costs will be allowed in each case.
Breaking into a Dwelling.—A lad named George Mossiler was charged with breaking into the dwelling-house of John Graham, Walker street, on the 13th October, and stealing therefrom one pair of gold earrings, twenty-one cigars, a tin of cocoa, a comb, and a tin of aprbots, value L 3. Chief-detective Henderson asked for a remand until to-morrow. Accused had been arrested only half an hour previously. The property was found on him, and he admitted that he broke into the place, so there would be no hardship in granting the remand.— Remand granted.
THE COURTS-TO-DAY., Issue 8038, 15 October 1889
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