SUPREME COURT.—Civil Sittings.

New Zealand Herald, Volume III, Issue 894, 25 September 1866, Page 5

SUPREME COURT.—Civil Sittings.

Monday, September 2-1. (Before His Honor Mr. Justice Moore.) The Civil Sittings of this Circuit Court wero held yesterday, before his Hon. Mr. Justice Mo.;re. His Honor took his seat on tho bench at 10 o'clock. YTILIJAMSOX T. THE BOVAI INSURANCE COHirANT. This cause camo before the Court as a proceeding to ascertain what damage? the plaintiff had curtained in consequence of the destruction by fire—(l.) Kiist, of tho biick building known as the Xew-Zealandcr office, Shortland-street. (2 ) Of the printing plant, type, steam presses, steam-engine, and general material. Mr. Gillies appeared for the plaintiff. Thero was no appearance on tho part of the defendants. The facts of the case were briefly stated by tho learned counsel, as follows :—The building was insured in the Royal Insuranco Company, ou tho '21th of September, 1565, for £3000. It*was partially destroyed by fire in May last. The plaintiff only claimed (a policy of insurance being a contract of indemnity) for the actual injury done to the building—namely, £2150—as proved to have been sustained. Ihe building, however, cost lor its erection considerably more than £3000. Several witnesses were called to prove the value of the plant, &c. The following evidence was adduced :— Mr. Philip Herapath examined by Mr. Gillies : I am an architect. I was tho architect .for 'the Sew Zealander office. The building cost to erect about £3475. T remember tho fire in May last. I examined the ruins with a view to ascertain the cost of rebuilding. It would cost over £l ; 000 to rebuild. I made an estimate which came to about £21.">0. 1 jnado tho examination at the instance of -Mr. Mabin. Mr. Reader Wood ; I am an architect. I remember the burning of the Xtit' Zi'afu/tih'r office. I examined the ruins with a view to ascertain the cost of rebuilding, and I made tho examination in conjunction with Mr. Herapath, and the estimate we arrived at was £2150. C. F. Mitchell deposed : I am a printer in Auckland. I was connected with tho Xcir Xealiimlf, and was in possession of building until January last. I offered Mr. Williamson JESOCO for the plant. Pbmt liabilities and good will would be worth £0000. I should think that was about the value of printing plant, material, steam presses, engine, *c. Mr. W. Seffern, examined : In January last I was in partnership with Mr. C. F. Mitchell. I should say the value of the plant and general material was ■between £5000 and £6000 in working order. Gilbert Carson, examined: I am a compositor. In January last I was in tho employment of Messrs. Mitchell and Seffern. I was working in the ollice the same day tho fire broke out. I consider tho plant was worth as much for working at thp time as it was at any time previously. Mr. Henry Hidings : I am an auctioneer. I was brought up as a printer. I hsve a general knowledge of printing plant and material. The value of what was saved I should say at the very utmost was £1000. I made that estimation, however, two or three mornings after the fire. I made a more particular examination subsequently, ani discovered they were not half that value. I would not have given half the amount for them. This was the of the evidence for the plaintiff, and his Honor left it to the jury to find their verdict in accordance with the allega'.ions made by the plaintiffs. The jury accordingly found that the dimaje sustained by the burning of tha building was £2150; by destruction of plant, <£c , £2000. V£R>"ONT V. TRICE. Mr. Brookfield and Mr. Beveridge appeared for the plaintiff; Mr. McCormick for the defendant. This was a proceeding by the assignee of a bankrupt estate, to compel the defendaut to account for and refund money (£13110s.) received, which the plaintiff alleged should form part of the assets. The defendant set off payments made on account of the estate, amounting to £135 Gs. The facta of the case are as follow:—A person named Richard Taylor became bankrupt in December , last. The -defendant in the present action is his ' mother, and a portion of the real estate had been mortgaged to him, as it was alleged, at the timo the ■ bankrupt knowing that he was insolvent. The defendant, during the time the insolvent was in prison, received the rents of the property. It should be stated, however, that the property was subject to a previous mortgage, and was sold by the present defendant on the 13th of March, by public auction, Mr. TJpham, her son in-law, a clerk in the Bank of New Zealand, being the pur- i chaser for £900. It wag suggested on the previous enquiry that there was a collusive transfer < of the property by the insolvent and his mother to the present owner. j ' Mrs. Anne Price, the defendant, "was put in the witness box, and was subjected to a very rigorous ' examination by Mr. Brookfield. She depisad tint eke had received rents from a person named Moon, ' from a person named Taylor, and another person named Jones, who rented houses at 10s. and 12s. a week under the estate. But sho could not say how < much she received. She received £21 from a person i named Bradley, for a house in Tipper Qu.en-street. < She could not swear how much more she received. She i declined to swear whether she had received the whole l of the rents of her son's estate, from 4th of December, 3665, to the 13th March, 1860. She did not think jhe received the rents all the time. There were five houses in TTppor Qaeen-street, six houses in Elliottstreet, two in Wellesley-street, two in Albert-street, one in 2f elson-street. The great portion of the monies was made up of small sums received at periods during ■which some of the tenements were unoccupied. She pould not statn cer tainty how long or how short I a period she received the rents, how much in the . aggregate she received per week, or how much for < the whole period between the above dates. Witness t could not say positively how much she obtained any , one month, as the tenants used not always to pay the full amount due, nor every consecutive week. In reply to Mr. McCormick, witness said that she made several payments on account of the insolvent. { gh» did hot know that Mr. Vernon was assignee. She - paid ground rent (£l9 10s.) to a Mr. Wilson. Paid 1 Oioney (£l2 os.) on account of city rates. Witness gaid she had authority from the insolvent to receive money and make payments on his account. The document was read and recited that the insolvent being indebted to Mrs. Anne Price £05 interest on mortgage executed by him for £1,500. ; "Witness further said that she had paid £42 to tho £and Society; £56 os. to Mr. Knox on account of previous mortgage. Paid also insurance (£5 55.), find other charges. ' ' ' ' '■ Mr, Theophiluß Kissling, Deputy-registrar of tho Supreme Court, proved tho presenting of the petition by the insolvent, which bore date i!2nd of December. Th«re was a vesting order dated 9th of January. Mr. Vernon, plaintiff, was called, but it was found that the vesting order was lost. He had been appointed assignee under an order of the Supreme Court. The witness, having deposed that he made diligent search, was allowed to give secondary evidence, and an authorised copy of the order was put in. It iwas also found that the deed of assignment was ihisßing, and a long contention ensued as to the admissability of secondary evidence to prove it. "The witness was allowed to prove tho deed of assignment. He did not go round and tell the tenants of the assignment, because he did not know where the houses were, and could get no account from Taylor. The Court adjourned for half an hour. On the re-assembling of the Court, Mr. McCormick said that the professional gentlemen were considering terms; but shortly afterwards, as it seemed, the negociation had been ineffectual, and the learned gentleman asked permission to recall Mr. Vernon, who said that he brought the deed of assignment with him to the Resident Magistrate's Court. Mr. McCormick contended that it was proved that Mrs. Price had paid the several sums deposed to: — £12 Ge„ £19 10s., £50 5a., £5 se„ £-12 : total, £135 6s. End these moneyß being paid for the benefit of the estate. Hie, Honor : Bhe may have done so. It is something like a tenant in life paying money for tho benefit of an estate. The tennnt in remainder was, no doubt, very much obliged to him. It was hardly evidence to the issue what sho paid as was contended for the benefit of the estate. Mr. Brookfield contended that Mrs, Price had received the rants, which amounted to £12 odd a week, for 11 weeks. She was a trespasser against the assignee, Mr. Vernon, as if she had been the greatest stranger to 1 aylor. The jury, after an hour's deliberation, returned a •verdict for the plaintiff of £106 2e. 9d., and finding, try direction of his Honor, that plaintiff was not inW&te&to«te&B.flantoatlie second glea. I

HASTIE AXI) OTIIKBS V. GIBBONS AITD OTHERS. Mr. Wynn appeared for the plaintiffs, and Mr, Brookfield for the defence. 1 his was an action for tho sum of £325 on a bill ol oxehango. After a jury had been sworn, it was stated by the learned counsel that the matter wat likely to bo amicably settled. After a short time it was arranged that a verdict should be taken for tho whole amount, payment to be made by instalments in 12, 18. and 21 months. Costs, when taxed, to be paid by defendaut. HARRISON V. TAUTRIIIOE. Mr. Qillios appeared for the plaintiff; Mr. Wynn and Mr. McDonald for tho defence. This was a claim for the sum of £25 2s Od, endorsed by defendant. The issues to be tried were three, viz., 1. Did p tain tiff endorse the promissory note? 2. Was tho promissory note duly presented for payment? and third, was duo notice given of the dishonouring of tho note ? John Rogers Harrison deposed, that he received tho note in question from defendant. The endorsement, was in defendant's handwriting. It was duo on tho ISth August, and ho received notice of its being dishonoured on tho 20th. Witness immediately posted a notico of dishonour to dofendant. After service of a writ on defendant, ho came to witness's oflice, and told him ho was surprised to receive a writ so early, and that he would pay the bill as soon as ho could, if witness would allow him time. Frank Minnette that on Saturday tho ISth August, ho presented tho bill for paymont at t'-.o Bank of New Zealand. Tho answer was thit there wai no account. Wm. Coleman, clerk to Messrs. Hill & Sonfdeposed that he posted a copy of the notice of dishonour at a quarter to three o'clock on tho 20th August, at tho Genera) Post-Office. lio made a memorandum of it at the time. J. J. Fitrgibbon, chiof clerk in tho Post-iffico, deposed that when a letter was posted at 3 o'clock p.m., it would bo delivered at 10 a.m. next day to any part of Auckland. W. J. Hill, ono of plaintiff's solicitors, deposed to having issued tho writ ou tlwL'Utt August, just after one o'clock. This was tho plaintiff's case. Mr. Wynn said that the only question to bo decided was one for his Honor's direction, whether there had been really a due notice given to the dofendant of tho di-honor, and ho submitted that this hud not be'n proved, and therefnro ho claimed a nonsuit. Mr. Gillies abdressed tho Court, and declinod to take a nonsuit, lie arguod that the evidence of Captain Harrison was quite sufficient to prove tho notico of dishonor, as defendant had acknowledged to hira tho receipt of such uoiice, and promised to pav if time wero given. This was sufficient notico. His Honor agreed with tho learned gentleman, and directed the jury to find a verdict for the plaintiff. Mr. Wynn gave notice of a motion for urrcst of judgment. The Court then adjourned.