Nelson Supreme Court.

Marlborough Express, Volume III, Issue 108, 21 March 1868, Page 5

Nelson Supreme Court.

CIVIL SITTINGS.—MARCH 12 and 13, IS6B. [Before His Honor Mr. Justice Richmond ] OWEN AND K K U LI. V MURDOCH. This was im action (or the recovery of damnges. aliened to have been -uitained l»y plaintiffs, in consequence of the illegal entry upon, and the removal of u store at Ilaveloek.Jiy tlie defendant. Messrs. Plmrazyn and H. Adams appeared for tlie plaintiffs ; Mr l J ilt for defendant. A special jury ws empannelled and Messrs. Hartmann, Kummer and Sindh gave evidence for the plaintiff, and Mr. l.eov for the defence. file counsel then addressed the nry. Ilis Honor said that the two questions for the jury to decide were—(l) Did defendant direct tlie demolition of the store ; (2) and, if he did, to What amount of damages weie the plaintiffs entitled ? There was no doubt that defendant was a trespasser, but was he the leader, and weie the others actinic uniler his diiection? With regard to the second point, it would appear that there was a considerable depreciation in the value of property at Ihneloek. The evidence of Hartmann as to the price paid was thore trust worthy than that of l.eov. hut the jury must decide whether, in December, 1 tsfJG the building' was woith anything at all as a store, and nor merely as old iron. This was an action for the forcible violation of tlie rights of property, and the jury were not restricted in their finding to the meie value of the property, but might give damages on account of the violence used. No attempt had been made to impeach the owneiship of tlie plaintiffs. '1 he jury, after a short consultation, found the following verdict on the issues set forth in the declaration : Were the plaintiffs possessed of the premises, the subject of this action ? They were. Did defendant take forcible possession ? Yes. Trt what amount of damages are plaintiffs entitled ? £3OO. MOFFITT t. SINCLAIR. Tliis action was brought by C. 11. Moffftt, who is a solicitor lesiding at Blenheim, against James fciin duir, merchant, of the Same town, to recover the amount duo on two bills accepted by defendant, and on which plaintiff had advanced the snrn of <£(!o0. Of this, .£'2oo had been repaid, so that the present claim, including interest, amounted to £3Bl Os. 4d Defendant had refused (o meet the lulls, on tiie ground thut plaintiff had been guilty of fraud. Tim moneys were advanced to a Mr. ,M ‘Donald, then manager of the Pictoii and Blenheim branches of I he Bank t.-f New Zealand, and defendant alleged that they were advanced exclusively for the purpose of meeting Mr. M‘Donald's share in a saw-mill speculation in which he, in company witli two oiliers, Denham*, and Kirlcwoqd, had embarked. Defendant further alleged that plaintiff Was aware when he (defendant) accepted the hills, that Mr. M‘Donald was in debt, and that the whole of tile moneys would not be applied to the saw-rnill expenses, but a portion to paying off private debts; that plaintiff, as confidential adviser to defendant, was bound to inform the latter of McDonald’s position, but bad not done so j and, further, that plaintiff was bound to see that the moneys were applied solely to the purpose for which tiiey were ostensibly advanced. Plaintiff denied any knowledge of MlDonald’s position, and alleged his belief that the whole oTflie—inoTTey was to bo applied to the mill, and that lie was not bound to see that H7e "money was applied to the purposes for which it was advanced. The issues for the decision of the jury wore as follows: 1. Did the plaintiff draw and the defendant accept the two bills of exchange in the declaration mentioned 1 2. Did the plaintiff and defendant agree in the manner particularly set forth in the first, second,’ and third paragraphs of the defendant’s second plea? 3. Was any part of the proceeds o‘f the two bills of exchange applied witli the privity and knowledge of the plaintiff, to other purposes than those tor which the defendant accepted them ? 4. To what sum (if any) is the plaintiffenfifled ?• Messrs. Conolly and Kingdom appeared for the plaintiff, Mr Pitt for tile defendant. The case was opened at great length by, Mr. Conolly, after which Mr. Moffitt gave ids evidence. , On the following day, Messrs. Sinclair, M’Donald, and 'Denham were examined. Mr. Pitt then addressed the jury for the defendant, and Mr. Conolly for the plaintiff. His Honor, in suiiimmg up, said that in tiiis case the burden of proof really lay with tlie-giclendant, who had to support a'charge the part of plaintiff, in u transacuaiimnvThcii hie (deCeiiclant’s) liability admitted. Substantially the

case of fraud was this : Sinclair had aarreed to give his niime to hills for £650 for the mill, and allcgfd that. Moffitt had advanced out of this sum for the payment of private debts, artel had led defendant (o believe that the whole money went to the mill. If this was proved, a raud would tie made out. and defoiidatT’s liability discharged. [Mis Honor recapitulated the evidence to the jury.] lie thought that it was utterly .incredible that Moth it, Humid have ntuli'itaken to see to the right application of the money. Had any such agreement been made between the parties a business man like defendant would not be likely to have omitted sneli steps a> might, ensure that this should bo thine. There was h contradiction us to the time when defendant was first, spoken to about the mill. \T Donald gave evidence both wavs; and plaintiff and defendant contradicted each other. This was a vital point to decide. [His Honor put to the jury the issues a: t ' (I upon.] The ptry then retired, and, after some consultation. returned a verdict for plaintiff on all the issues, and also for the interest (£l7 Bs. 10d ) which had accrued <m the sum due since the issue of the writ. —Condensed from the Examiner.