SUPREME COURT.

Hawke's Bay Herald, Volume 6, Issue 325, 14 October 1862, Page 2

SUPREME COURT.

Satubday, October 4, 1862. (Before His Honor Mr. Justice Johnston.) Newton, Irvine & Co. v. Hameling. This was an interpleader cause in the District Court, removed by writ of certiorari to the Supreme Court. Mr. Allen for plaintiffs ; Mr. Carlyon for defendant. Plaintiffs had obtained judgment in the lower court against John Wilkinson of Waipawa for the sum of £89 10s 3d. Wilkinson, it appeared, had obtained a contract under the Provincial Government for some road work, and Hameling, the defendant in this action, was one of his sureties. Wilkinson failing to complete the contract, he assigned his right title and interest therein to Hameling, who gave notice by letter to the Provincial Government, and carried out the work. Meanwhile plaintiffs attached in the hands of the Provincial Treasurer the money accruing on the completion of the contract, and the money was paid into court in satisfaction of the writ of execution. Hameling then took out an interpleader summons on the ground that the money was his, not Wilkinson's — he having done the work and paid the wages. His Honor ruled that, under the colonial law, the assignment took immediate effect ; and, even, as had been urged, notice was necessary for the charging the funds in the hands of the Treasurer, such notice had been given by Hameling's letter to the Provincial Government ; — that tha moneys due under the contract did not come withia the meaning of the 83rd section of the Distinct Court Act — were not funds belonging to Wilkinson at the time of the levy ; and although it had been urged that the plaintiff should at least recover for so much as was due under the contract before the abandonment by Wilkinson, yet it was not shewn whether any part of it was due at that time. But even if it had been so shewn, the contract was an entire contract, and the amount due under it was only payable on its completion. Wilkinson, therefore, had earned nothing, and Hameling was entitled to the full amount. Upon the subject of costs, His Honor ruled that each party should bear his own, inasmuch as the plaintiffs might have been misled by want of notice of transfer from Wilkinson to Hameling^ and by the act of the Government paying the* cheque into court in Wilkinson's name.

Monday, Octobee 6. la re D. Devereux, an Insolvent Debtor. His Honor took his seat at 10 o'clock. The gaoler not being then in attendance with the prisoner (Devereux being confined for debt) a fine of £5 was recorded against him. Shortly afterwards he came into court. On being apprised that he had been fined, the gaoler pleaded, first, that he was newly appointed and not au fait at his duties ; to which His Honor replied that a sharp lesson in the performance of such duties would prove a very salutary commencement ; — second, that there was no clock at the gaol ; which. His Honor could not recognise as an excuse, although he thought the fact one on which might be based a claim on the Provincial Government for a refund of the amount. Ultimately, however, the fine was remitted. D. Devereux, late butcher at Waipawa, and now confined in the debtor's prison, applied for Ms discharge, from custody. He was unrepresented by Counsel. His Honor regretted that the case was one in which he had no jurisdiction — the applicant's person having been taken under an executiou from the Resident Magistrate's Court. It was a strange anomaly in the law of the Colony that a man owing a debt of £10 under execution from the Resident Magistrate's or District Court wouldhave. to remain in gaol for a period of three months, and then not be released from the debt ; whereas a debtor to the extent of thousands of pounds, imprisoned under an execution of the Supreme Court, could not only be released after being in prison for a period of two months, but could be discharged from future liability. Such a state of things was monstrous. The law, however, had lately been amended, and he trusted this was the last time he would have to refer to such a thing. It was sad to think that a tradesman (a carpenter) should lie rotting in gaol, doing good to nobody ; and he hoped that some employer of labour would pay the debt due by the prisoner and give him employment, so that the sum could be worked out. Any master tradesmen would be quite safe in doing this, as, in the event of Devereux leaving his work or attempting to go away, he could at once be sent again to prison. Prisoner said that he would be happy to do so were the claim against him a just one. The amount, however, for which he was imprisoned had already been paid. He did not owe one man a penny. His Honor said that he could not take cognisance of that. The case had been duly heard, and he (the Judge) must presume that justice had been done. The applicant was then removed in custody. Stuart, Kinross & Co. v. W. Villers. Mr. Wilson appeared for plaintiffs, who sought to recover the sum of £197 8s Id, due in account current. A jury was empannelled, but, it being found that the case was undefended, it was immediately discharged. Alex. Kennedy deposed to having presented the account, and to defendant having admitted that it was all right. Judgment for plaintiffs, with costs. Tuesday, October 7. In re James Chajjman, a Lunatic. A jury having been empannelled (P. Searles, fore-

jnan) His Honor addressed them upon the duty they were called upon to perform, viz., to decide from the evidence they would hear whether Chapman was of sound or unsound mind, and, if the latter, for how long ; in order that the Court might exercise its jurisdiction to the protection of his person and property. Mr. Wilson having briefly addressed the jury, — J. D. Canning gave evidence to the effect that he had known James Chapman for about 5 years. Some months ago, being then overseer to Mr. Onnond, Chapman had written to that gentleman and witness to the effect that he had stolen some .knives and a blanket, and insisting upon being prosecuted for the theft. The delusion continued ; Chapman complained of headache, became low spirited and unfit for any duty, and witness had him taken to Waipukurau, where two medical men resided, and upon whose evidence.he was committed under the Lunacy Act, as likely to become dangerous to himself and others. In reply to His Honor, witness said that Chapman's connections in England were highly Tespectable ; that he had a brother in New Zealand, supposed to be in Rangitikei, but who had not answered the letters that had been written to him with regard to the state of his brother ; that he had a mare and pony worth about £60, and from 300 to 400 sheep, which yielded 2s. a-head for wool money &c. Dr. Hitchings deposed that, some 4 months ago •Chapman was received into* the Hospital upon the certificate of two medical men that he was in an unsound state of mmd — there being no Lunatic Asylum in the province. He was then labouring under a delusion that he had committed a theft, and was in a state of profound melancholy. He was also in the habit of writing silly poetry on the walls, sometimes of an obscene character ; of planting lettuces in the garden so as to form the word " mad," &c. ; and on two occasions he escaped, having been found, after one •of the times, on the Spit with nothing on but a "blanket. He had also written on the wall of the Hospital what purported to be his will, bequeathing to the General Government all his property m satisfaction of his supposed crime. Latterly, under a change of treatment, he was much better ; but he (the witness) was doubtful of a permanent cure, especially since he had heard that the complaint was hereditary. The patient required soothing and encouraging, rather than strict or severe treatment. Dr. Venn gave evidence as to Chapman being of unsound mind and incapable of managing his •own affairs. His (witness's) examination of the patient took place on Saturday night, and he was then fully under the delusion of having committed a theft. He would recommend humane and gentle treatment. His Honor explained to the jury that, under the English constitution, the sovereign took care of all persons who could not take care of themselves — also of their property ; that in England this function was usually exercised by the Lord Chancellor, under the sign manual ; but that, in the Colony, this duty devolved upon the judges of the Supreme Court, who, however, before assuming such duty, first empannelled a jury to determine the question as to the sanity of the person represented to be of unsound mind And such determination should not be arrived at without proper consideration, as it was just possible that, through carelessness, a person of sound mind might be pronounced insane, and his property taken from his custody. In this case there could be little doubt that the young man before the Court was incapable of managing his own affairs, but he (His Honor) would read over the evidence, (which he did). Chapman, in reply to His Honor, said that he had nothing particular to say to the jury ; he believed that he had stolen the articles referred to, but if Mr. Canning said he had not there need be nothing more about it. His expression, Avhich must have been an intelligent one formerly, was very vacant throughout. The jury, without retiring, found that James Chapman was, since the Ist July last, of unsound mind and incapable of managing his own affairs. The Judge then consulted the Crown Prosecutor, Dr. Hitchings, and Mr. Canning as to the best mode of 'dealing with him — His Honor expressing himself as anxious that, if it could possibly be managed, his income only should be used for his support, leaving his sheep to accumulate. Dr. Hitchings suggested that he should remain in the Hospital, for which the Provincial Government made no charge, but a doubt arose as to the propriety of his remaining there — whether as regards himself or the patients generally. Mr. Canning did not think that, from the position of the young man's friends, there would be any difficulty as regarded money ; he thought that, by next day, he would be prepared with a proposal las to his future custody and maintenance. His Honor acquiesced, and the Court rose.

Wednesday, October 11. „ vjj: In re Brooke Taylor. The Court was occupied this morning in hearing arguments in counsel on both sides — Mr. Allen for the committing Magistrate, and Mr. Carlyon for Mr. Taylor — for and against the rule granted on Thursday the 9th. The arguments were wholly of a technical character ; but there could be no doubt of the informality of the warrant of committal — the name of tho gaol not. being specified upon it. Mr. Allen argued that the defects were those of form only, hut His Honor ruled that the warrant was also defective in substance. His Honor remarked that, even according to the affidavit of Mr. Taylor, it would appear that the Resident Magistrate had sufficient grounds to think the court insulted; at the same time the Magistrate was clearly wrong in taking the evidence upon oath of Morris on his own behalf, and thus eliciting evidence prejudicial to another case that had just been heard but not decided. A professional gentleman would very naturally be excited at seeing such a course pursued, and would interfere ; and, after the decision had been given against his client, might use language which could not be justified in a court of justice. There had been faults on both sides, although no imputation could rest upon either. The warrant would be quashed, but he trusted the v matter would end here, and that it would be long before such another case would become before the court. Mutual courtesy and forbearance should be exercised

between justices and gentlemen of the professionRule made absolute.

In re James Chapman. A letter was handed in from the Provincial Government, making an offer for the continuance of the lunatic in the Hospital, which His Honor said was very liberal and reflected great credit on the humanity of the authorities ; but, — Mr. Canning having stated that he could make arrangements for his safe custody and proper attendance without the necessity of his being an inmate of the Hospital, which was in some respects undesirable, and having further stated that although the expense would considerably exceed the income derivable from the sheep, yet the young man's friends, upon being written to, would no doubt remit such funds as were necessary for his proper care and comfort, — His Honor agreed to this, Mr. Canning to give bond for the fulfilment of his engagement, and to report quarterly to the court upon the state of the patient. The court then adjourned sine die.