SUPREME COURT.—Civil Sittings.

New Zealand Herald, Volume III, Issue 896, 27 September 1866, Page 4

SUPREME COURT.—Civil Sittings.

Wednesday. (Before His Honor Mr. Justice Moore.) His Honor took hi? seat on the Ijench at 1Q o'clock. J. S. MACFAKLAXE V. AUCKLAND COMPANY. Mr. Gillies and Mr. Weston for the plaintiff, Mr. Wynn and Mr. McCormick for defendants. This action arose out of the following state of facts as stated by the counsel for the plaintiff. On the 2Jlh of July, 18 «5, Charles Clayton; the owner of the schooner Ono, executed a mortgage on that vessel for £150, to J. S. Macfari lane, and •. policy of insurance with the AuckI land Insurance Company. The vessel had been I insured upon what is- termed a " valued" policy, that is to say, that the insurance company and the owner agreed aa to the value, s»nd they further agreed as to the amount of the insurance. The value agreed upon was £450, and the amount of insurance £350. The policy was also a " time " policy as j distinguished from a polioy for I a voyage only. There was a limitation laid down m the polioy that the Ono should only trade between (Jape Colville and Point .Rodney, and the duration of the insurance was to be for Bix months. The insurance'had been transferred to the plaintiff in the usual way, who also' gave the propey notice to the Company, who approved, and it was endorsed on the policy. In the October (2oth) following, as ihe plaintiff contended, there was a renuwal of the policy, with all stipulations, &o. It was also contended that the vessel had become ft total loss; that notice of abandonment had been duly given by ownqr; • The defendants gave a general denial to the whole case, and relied upon the following questions 'of law and fact—first, that the policy th.it was issued in October after tho mortgage was executed, was not a renewal of the policy which had previously expired, that it -was an entirely new policy to tha owner Clayton, and that they &&

not know Mr. Macfarlane in the matter at all. That there wag no notice of continuance or cessation of this mortgage. That the fresh policy had been issued to Mr. Clayton. Evidence was adduced to B how that the Bchooner could have been repaired for an exceedingly small cum of money, and therefore that she was not a total loss. It appeared during the proceedings that the fresh policy had never been issued from the Auckland Insurance Company, that is to say, though it had been made out, it had nevor been handed over to the owner and insurer of the schooner, but was retained in the office until the morning ol the trial (yesterday), but this was explained by the secretary saying that Clayton was told that it would be >eady in a few days, that he had never calle I for the policy, and, consequently, it remained in the office of the company. It was also contended tha*. there could be no renewal of the policy, unless such us could be produced in writing. The ownership of the schooner was admitted, al*o the mortgage, but not the assignment. The notice of abandonment given by the owner was also admitted.

It was contended in reply that tho policy of insurance was like any other contract, being promise of specific performance. That Mr. Macxarlane, as in possession of the legal estate by virtue of his being mortgageo, was also in tho position of trustee for the mortgagor, and obliged to account for the moneys of the estate. The notice of assignment of the policy was duly served on the defendants. That the test of total loss was ■whether any prudent man would have thought it vprth his while to repair the vessel, or buy it for the purpose of repairing. The policy being a "valued" policy, there was no question whether the vessel was of greater or less value than she was insured for ; and being a time policy, within certain limits a< to trading, thero were no special circumstances connected with particular voyages that affected the case. damage or loss sustained was to arise from perils at sea. There had been five polices issued to the owaer. It was further contended that she was placed in the spot where ihe was wrecked by the order of the marine surveyor of the company, and it was suggerted by the counsel for tho plaintiff that the fact of the fresh policy never having left the office of the company was liable to the inference that either it was not made at the time stated, or that somethingwas interpolated- for the purpose of auswering the present action. The following receipt was relied upon as showing a renewal of a previous policy, and that the contract was for a total loss :— " Auckland Insurance Company, <lth October, 1565. " No. 37. Keceived of Mr. Charles Clayton, of Auckland, the sum of £11, being the premium on iuiurance of £350, for the total loss only on the hull of the schooner Ono for six months, being retewal of policy No. 6, and under the same stipulations and conditions according to the proposals numbered as as above, and accepted by the directors the 4th day of October, IS(>5, subject to the usual conditions of the policies of this company. "(Sjgnod) Geo. "William Jones, " Secretary, pro tern." The following evidence was adduced. Mr. H. F. Andrews, chief clerk in tho Custom House, produced the Register to prove the ownership, Tie entry was to the effect that Clayton was owner, and J. S. Macfarlan s mortgagee. The date of the entry was 20th July, 1855. Mr. B. Hobbs, formerly Secretary to the Auckland Insurance Company, proved the value of the vessel, ftccordinc: to agreement, at £450, the risk insured being £350, also agreed upon between witness and Clayton. Captain Casey was marine surveyor to tho Company, and was consulted as to the value of the Tessel and the sum assured. Captain Casey said he was thoroughly satisfied ; that he knew the vessel as well as he did one of his own vessels. He did not therefore send in a written report. (The policy was ■was put in and read. It was in the usual form, and recited the various risks against which the holder was insured )

George William Jone3 deposed that he became Secretary pro tern after Mr. Hobba left, and subsequently became permanent secretary. (Policy produced.) The document handed in was the original policy, and expired on the 4th of October, iB6O. Beceived on that d*te from Mr. Clay ten £14 ; a new policy was made out and issued between that date 25th of October. It was executed on the 25th. We tad no notice that Mr. Macfarlane had ceased to be mortgagee, or that he continued to be so. The policy remained in the possession of the Company. The preceding policies are dated 25th of February, 1555, 4th of April, 1565, and the Sth of May. There were only five policies altogether. The reason of this was that the Company only issues time policies. Witness gaid that ho had refused the solicitor to the plaint.ff to see the boo* without taking advice.

In croaa-examinatijn by Mr. Wynn, the witness added Mr. Hill, jun., son to plaintiff's solicitor, subsequently saw the registry. 1 lie reason the policy ■was not delivered to Mr. Clayton was that Mr. Clayton did not call for it. The receipt was in witness's handwriting.

The proposal for the new policy wag dated the 4th of October, and Mr. Clayton was informed that the policy would be ready for him in a few days. He never called for it.

Charles Clayton, examined by Mr. Gillies, deposed that in April, 1865, he was owner of the jchooner Ono, and in that month insured her for £350 in the Auckland Insurance Company. The Teasel cost witness between £400 and £450. In the month of July mortgaged her to Mr. J. S. Macfarlane for £150. That mortgage existed at the time of the wreck. Witness was owner subject to that mortgage. On the 4th of October the policy expired. The vessel continued trading until the month of March, 13*35. Vessel had come from Oman with a load of firewood, which she landed in Freeman's Bay. The winds had been northerly, and jhe ran aground at Cooper's Point. t»he was not much injured. She was surveyed by the Insurance Company. She was brought round to Custom-house-atreet by the directions of their surveyor. Gale sprung up on 30th March, and on the 31st fhe became a wreck, her starboard side was stove in. Her timbers were altogcthor shaken, and at high water she was submerged. Witness sent notice of abandonment to the Insurance Company. Witness did not think she was worth repairing. Had she been uninsured witness would not have repaired her.

In cross-examination witnesß Baid he might have expressed a wißh to go on a different voyage, but did not remember haying said eo. Understood that the freßh policy was to be a renewil of the previous one. That was distinct understanding. (Application read.) The master wa> in charge -when she went on the rocks, also when she was hauled off. Witness could not §ay whether the master was on board when she got on the rocks. So far as witness could see at 'hat time the vessel was right enough. Got notice of her being on the lockß from, the Company. Pis Honor: The witness is the mortgagor. The plaintiff is mortgagee of this vessel, and has whatever legal or ejuitable estate there is in the vessel. The insurance after all is for the beDpfit of the mortgagee. That does not of necessity imply that the mortgagor pan have no insurable interest JJotbing the witness could gay can affect the right pf the claim of the mortgagee. The mortgagor plight perhaps slander his own title, and an action would lie against him for that, b\\t nothing ho can Bay will affect the claim of the mortgagee, Examination continued; About three days after the ■ve««4'» repaira were commenced she was Wrecked. Mr. Gillies objected to any allegation of sujpicious conduct, such as wilful neglect to repair as in this case must be specially pleaded. If the defendants had any oasa of that kind they should have fully 8»t it out in the pleadings. '■• Witness •. The vessel was put where she became a wreck by order of- Captain Casey. Had told Captain Casey what her condition was. Two dayß had not elapsed before her repairs commenced. Gave notice of abandonment on the 3rd r>f April. Asked several shipwrights what it would coat to repair the vessel, fcoth before and after the abandonment.

Thomas Thwaites, examined by Mr, Weston, saic he wa9 a shipwright carrying on business in Auckland, and having 25 years experience. I inspected the Onfr about tbermiddle of March last, by'order of Mr. Clayton. The master of the vessel was present. She was then a little out of repair, not much. After the wrjci she was shook to nieces. It would not be worth anybody's while to repair her. " In cross-examination witness said that he saw the yessel on the Monday after the wreck. She was •wrecked on a Saturday. Did not then examine her particularly, being concerned more in looking after his tools than anything else. Examined her thoroughly about a month after the wreck. Did not know whether anything had been done to her in the meantime. The rain the day before, and the gale on tha day of the wrack prevented the men completing

the repairs. It would have taken about £20 to complete her repairs. For a person in the trade, it might be worth while to repair her. MVthew Thomas Clayton oxamined, said he was no relative of Mr. Clayton who had just boon examined. "Witness was marine surveyor to the New Zealand Insurance Company. Remembered the Ono being wrecked. After being wrecked oiaminedher; she was lying on her starboard side, muoh shaken and half full of water. To somo people it might have been worth while to repair—if a man was a carpenter for instance. To the Judge: 1 do not think it would be worth whilo of a man who was not a carpenter to repair her. Cross-examined: It might have cost £80 or £t)0 to repair her. She would be then worth perhaps £180 or £200. Mr. J. y. Macfarlane, examined by Mr. Gillies : In July last I advanced £150 on mortgage of the Ono, and took an assignment of the policy of insurance. I was the mortgagee when she was wrecked. The vessel seemed to be altogether shaken and completely out of shape. Cross-examined by Mr. Wynn : She was ultimately sold under an execution for £30. That was four or five months after the wreck. Sails, ropes, and gear were mostly gone. I asked the Company to sell without prejudice. I spoke to Mr. Nathan on the subject. Jeromiih Casey, examined by Mr. Wynn, said ho was formerly marine surveyor to tho Auckland Insurance Company. Was requested by that Company to survey the Uno. She was then on a Hat rock at Freeman's Bay. She had a plank started and a stanchion was broke. Witness advised her removal, aud approved of her being taken to Custom Housestreet, bhe got a pretty good hammering during the gale. (Laughter.) r-urveyi-d her after sho whs wrecked. There was a hole in tho starb mri side on the bilge. The principal damage was in the bilge. The planking was broken outside and inside ; she could have been sent to work again as good as she was before for £50. Mr. Nicols estimated the cost at £75, I thought £50 enough at the time, but I signed for £25 more against my own conscience. (Loud laughter.) She would have been worth £150. V'itness would not cousider it worth while to repair her. Cross-examined by Mr. Gillies: Captain Casey, what was she worth as she lay to anybody who wanted her ?

Witnoss (meditatively) : Well, sir, she would not be worth anything to anybody then, whether he wanted her or not. (Laughter.) I did not survey the vessel before she was insured. I believe she was insured first, and my opinion was asked afterwards. They had a habit of insuring vessels and asking my opinion afterwards. (Laughter.) That was one of the reasons for my resigning. Mr. Henry Nicol, examined by Mr. Wynn, said ho was a ship-buildor on the North Shore, and had experience of many years. Surveyed the Ono in company with last witness. Ther* was a plank started off the bilge inside and out "Witness estimated the coat at £75 to put hor in repair. Her full value, when repaired, would be about £200. Tho wreck would havo been worth, to anybody wanting it, about £100. By Mr. 9-illies: I would have repaired her then for £75. I saw her yesterday. I would not now repair hor for £75. She is now damaged on both sides. Captain Anderson, oxamined by Mr. McCorraick, said he was a marine-surveyor. Had been previously a ma9ter mariner. Made a survey of the schooner Ono on the 17th of April, in company of Alexander Duthie. Tho starboard bilge was gone, and tho lining Btarted on the port sido. It would have cost £50 or £60 to repair. The value of the wreck might De from £100 to £120. After she was repaired her value would be from £175 to £200. There would have been no difficulty in repairing her where she

lay. Mr. Alexander Duthie, a shipwright, also said that it would coßt £50 to repair the schooner as sho lay. That the value of the wreck was about £100, and that when repaired the would be worth £170. Allen Henderson knew the schooner. He had lately purchiised the schooner for £30. She Was much worse when witness bought her thau after the wreck. She i.ould be put in repair at present for £120 or to be ready for sea. dho wjuld than be worth £200 To Mr. Gillies: It would not be worth any body's while, except a shipwright like myself, to purchase the v essel and put her in repair. To the foreman of the jury: The ve33el, if sold the day after the wreck, might have fetched about £«0. The learned counsel on each side having addressed the jury— His Honor summed up. The jur}- returned the following verdict:—That the defendants did insure the Ono ; that Clayton assigned the policy to the plaintiff with the Sanction of the defendants; th»t they took the risk fjr an ensuing time of six months, that the vessel woj lost ; that Clayton was owner thereof. This was a verdict for plaintiff on all the issues, and tie jury assessed the damages at £350 for the plaintiff. POLICE COURT.—Tuesday. (Before J. H. Homo, Esq., and J. W. Bain, Esq., J. P's. DRUNKENNESS. John Ellis and Margaret McCann, were mulcted in the usual penalty for this offence. James Cotter was summoned hut did not appear 1,0 answer a similar charge. Bail forfeited. BBEACH OF THE SLAUGHTEE-lIOUSE ACT. E. S. Sandal was charged with a breacli of the 10th clause of the Slaughter-house Act ISoO, by slaughtering sheep on his premises. Mr. Commissioner .Naughton conducted the prosecution. Constable Clarke, deposed to having visited the defendant's premises on the 17th inst., where he found two sheep, one half drossed and the other dressed, also a quantity of blood and offal. The defendant was unable to give any satisfactory explanation. Fined 40s. and costs. This concluded the business. "Wednesday. (Before C. Heaphy, Esq , and T. B. Thornton Esq., J.P.s.) DEUNKENNESS. Catherine Douglas was fined 40s. and costs for this offence, or, in default, 4S. hours" imprisonment. This being her third offence, she ' was sentenced to seven days additional. C. Smith was summoned, but did not appear, to answer a similar charge. Bail forfeited. FOWX-STEALING. William Lindsay was charged with having stolen from the premises of Mr. John White, on the 25th Sept., six fowls, value 17s, The prisoner pleaded guilty, and was sentenced to six months' imprisonment with hard labour, There was no other business before the Court.