LAW AND POLICE.

New Zealand Herald, Volume XXII, Issue 7383, 18 July 1885, Page 3

LAW AND POLIC E.

- ■■■ ♦ SUPREME COURT.—Civil Sittings. Friday. [Before His Honor Mr. Justice Gillies.] McMordo v. Wilson.This was an action brought by Charles Napier McMurdo against Hugh Munro Wilson, for specific; performance of sin agreement to purchase land and pay £170, the balance due thereon.—Mr. Mahony appeared for the plaintiff, and Mr. Theo. Cooper for the defence.—The statement of claim set forth that the plaintiff and defendant wore both resident at Warkworth, the defendant being a surveyor and county engineer. In October last, an agreement was entered into for the sale of certain land by plaintiff to the defendaut, the price being £200, of which £30 was cash, and the balance left due was £170. Plaintiff was always willing to complete, and tendered a deed of conveyance to the defendant, but the defendant refused to complete. The statemeutof defence was a denial of all the allegations, but it admitted the entering into the agreement, but set out that the plaintiff represented to the defendant that the block of land known as Sir Frederick Whitaker's block, iu Warkworth West, contained 12 acres, whereas it contained only 74 acres, and thereupon the defendant claimed to have the agreement cancelled and £30 paid as deposit returned.—Charles ft. McMurdo, the plaintiff in the action, gave evidence as to the circumstances attending the sale of the laud, and produced a plan. When defendant asked him what was the area of the block witness told him he did not know, but defendant asked him to make a guess. Ho refused, and only said, "Perhaps more or lees 10 acres," and he told him approximately how many allotments there were in it, and he said that, the roads would perhaps take up two acres out of the ton, and strongly advised defendant to get them closed, to which defendant said no, that the roads being left open, enhanced its value. The agreement produced was drawn out at witness's house. In December, the defendant came to him and told him he intended to back out of his bargain. Witness was prepared for this, for he had heard that defendant had been told that he (witness) had offered this land to another man for £150, and the reason he gave witness for backing out was because witness had . only paid £130 for the laud. He gave no other reason then. Prior to this, witness handed over the conTeyance from Sir F. Whitaker to witness (produced) to the defendant about the end of October or in November. Another interview took place in January, when defendant came to his house, and he then for the first time accused witness of having misstated the area of this block. Witness indignantly denied having named any acreage as » certainty, whereupon defendant insulted him, and he turned him out of the house. On the 19th of January he received a formal refusal to complete the purchase, and a demand for the return of the £30 paid. Witness denied that he had ever represented that the land contained twelve acres.—lie was cross-examined at some length.—Win, Somerville, master mariner, captain of the s.B. Rose Casey, deposed to being present at the first interview between plaintiff and defendant, when they went over the land prior to the purchase, and Montague McMurdo, sou of plaintiff, gave 'evidence as to conversations between the plaintiff and defendaut relative to this purchase.—Cecil McMurdo, a second son of the plaintiff, also gave evidence as to tho conversation which took place between his father ami the defendant in December, when Mr. Wilson said ho would back out of the bargain, as plaintiff had only given £130 for the land. He gave no other reason.—The conveyance which was tendered to the defeudaut was put in evidence, and this closed the plaintiff's case.—The defendant, iu his evidence, stated when he entered into an agreement with Mr. McMurdo the defendant told him that it contained between eleven and twelve acres. Witness told him he wanted it for a. paddock for his horses, and thought it was bounded by the river and the main road. Nothing was said about a reserve along the bank of the river. After a series of applications to plaintiff for the deed of conveyance to see that his titlo was good, he tendered him & tracing of a plan, and from this he aicertained the area to be only 74 acre-* convened to him. He told the plaintiff that, in consequence of the deficiency of area, he would vitiate the agreement. This was after ho had obtained the conveyance, and he declined to complete the purchase, on account of the deficiency of the area. The land was of no value at present except as a paddock. It was not likely to be required for building purposes for many years, for the place was not making much progress. In cross-examination, he said he knew there were allotments and subdivision in the block, but he thought it was only a private subdivision, and that the roads were not dedicated.—Hugh Davies, a farmer, Lower Matakane, depostd to the land having becu offered for fide to him, iu tho latter part of ISS4. by Mr. MoMurdo, who told him it contained 11J acres, and offered it to him for £175. Witness did not purchase. Afterwards he had a conversation with Mr. McMurdo, who told him he had sold the land and made a good thing out of it, and that he (witness) might have done the same, lie did not say to whom he had sold the laud.—Counsel for the plaintiff addressed the Court.—His Honor said the agreement specified no rate per acre, or any acreage. It was simply a lump sum for the block, and therefore the onus was on the defendant to show that it was an essential part of the agreement that he should have 11 or 12 acres, and this he had failed to do, and his defence could not avail him. His Honor decreed that the agreement be specifically performed, and that the money be paid as prayed, together with interest from the date of the writ, and costs on the lower scale.

Watts v. (Jilmick. —This was an action brought liy Chariotto Watts to recover the sum of £101) money lent to the defendant, Benjamin Giltner. —Mr. Theo. Cooper appeared for the plaintiff, and Mr. Edwin Hesketh for the defendant.—The defence was a total denial. — Witnesses were ordered out of Court, and Mr. Cooper opened the plaintiff's case, and called the plaintiff, who deposed that she was widow of the late Captain Thdrmaa Watte, and the defendant was her trustee for certain pro perty. In June last year, she bad a conversation with the defendant. She wanted to raise £400 to complete a building, and Gilmer said it was just as easy to raise £600 aa £100, and, as ho was dreadfully hard up, would ehe lend him £150. She told him to arrange the matter about borrowing the money with Mr. Bcetham, and the business matters about borrowing the money were entirely between Mr. Gilmer and Mr. Beetham. She did not then consent to lend the £150 to Mr. Gilmer, but eome time after the money was in Mr. Dufaur's hands which had been raised on mortgage—£6oo at 8 per cent. She met Mr. Gilmer by appointment at the railway station, and askod him to sign a paper promising to pay interest on £150, and the principal on demand. He refused to sipjn anything, saying, " Surely you don't doubt my word—such an old friend 1 Surely, you do not doubt my word ?" She met him again the next day, and told him she conld only lend him £100, and he said, " On my word ae a man you can trust." She got Mr. Beetham to write to Mr. Dufaur to let Mr. Gilmer have £100. She made a demand for interest every due date, but received no reply to four letters, so *he went to Mr. Gilmer and asked for the interest on two quarters due. He said he could not then give her sixpence, but if she called on Monday he would hare it for her. She went punctually at the time appointed, but Mr. Gilmer was not there, and she waited for a half-an-hour, but he did not come. She instructed her solicitor. She never received any portion of the principal or interest. Cross-examined : She knew that Mr. Gilmer had not power to mortgage, but had power to sell, eo he went through the form of sale to Mr. Beetham, who then mortgaged it to Mr. Btirtt. She denied that she owed Mr. Gilmer anything, and the money was not raised to pay Mr. Beetham what was due to him, and to Mr. Gilmer what was due to him. Mr. Beetham received £450, and placed it in the bank to her credit, but she owed no money to Gilmer, and heard nothing of any debt due to him by her late husband until she asked for the interest ten years after his death.— Albert Beetham was examined as to the transaction. In cross-examination he said he knew before he received the £450 that it was agreed to give Mr. Gilmer £100. Hβ advised Mrs. Watts to get Mr. Gilmer to sign a bond which he had drawn up, but he talked her over, and she gave him the loan' without it. Personally he objected to lending the money at all. In re-examina-tion he said he had never heard of any claim

Mr. Gilmer had against Mrs. Watts' estate. J —Mr. E. T. Dufaur, solicitor, who acted for the parties of the trust property, deposed to the fact of £600 being raised on mortgage, and ho received the money. He paid £100 of that money to Mr. Gilmer on the order put in evidence. He knew by the deed that Mrs. Watts had a life stake in the property. In cross-examination, he said of the £600 he paid ?ASQ to Mr. Beetham £100 to Mr. Gilmer, and the balance on the 6th of June, less his costs. He was cross-examined as to why he paid £450 to Mr. Beetham, and explained that Gilmer and Baetham were in his office, and Beetham said he wanted £450 fur himself to clear him, and Gilmer said " What about mine ?" He assented to the £450, but some discussion took place, and Gilmer said " What about mine ?" Witness said he should recollect that ha had some costs, and they agreed that the £450 should be kept by witness until they could mutually agree how the balance was disposed of. He held the money for both parties, but never for Mrs. Watts, and would not have paid it to her if she came for it. He could not without Mr. Beetham's consent. He never had any instructions from Mrs. Watte on the subject, nor did he dispose of the money or any portion of it to Mrs. Watte , order, and never up to the time he parted with the £600 did he hear of any loan to Mr. Gilmer. He understood that Messrs. Beetbam and Gilmer had claims against the trust fuDd, and Mr. Beetham told him he was responsible to the contractors for the erection of the buildings after the fire. After the first interest was paid on the mortgage witness heard fortheirsttimeof any loan to Gilmer.—This closed the plaintiff's case.— Mr. Hesketh asked whether there was any claim to answer, as it was shown by Mr. Dufaur's evidence that the money was not held by Mrs. Watts '—His Honor said that, even if Mr. Beetham had himself lent the money on Mrs. Watts's behalf, it was sutfioient.—Mr. Hesketh asked for a nonsuit, on the ground that there was no evidence of a loan by Mrs. Watts, or anyone on her behalf.—His Honor said he must decline to grant the nonsuit.—Mr. Hesketh asked that a note be made of his objection, and opened the case for the defence, and called the defendant, who deposed that be was trustee for the property of Mr. Watts, in which Mrs. Watts had a life interest. He never borrowed any money from Mrs. Watts. He received from Mr. Dufaur the sum of £100, which it was agreed to pay him in lieu of a much larger sum due to him by the late Mr. Watts, in all over £200. He never signed a deed of assignment for that. Watts made no deed of assignment after tho debt was incurred. The reason why the mortgage was required was to complete the erection of the buildings after the tire. Mr. Dufaur told him he had no authority to mortgage, and he could only sell and remortgage back. He told Mrs. Watts the estate owed him £150 or £160, and if any money was to be raised he might as well be paid off, and she made no objection. He spoke to Mr. Beetham, who said he saw no reason why he should not be paid also, and witnese concurred, so they agreed to raise £b'OJ to pay for the buildings and their ] amouuts. and to send the plaintiff's son home. He never applied to Mrs. Watta for a loan, or that the mortgage should be £600 in order that he might get a loan. He related the interview he had with Mrs. Watts, and aaid he only accepted the £100 in payment of what was due to him, and gave a receipt for it, but he never promised to pay interest. Mrs. Watts never asked him to sign any paper or deed. He denied totally that he ever borrowed any money from Mrs. Watts, or that he agreed to repay it. The witness was cross-examined, and counsel then addressed the Court. — Hie Honor said that it was jjuite clear that the debt for which defendant claimed was void, that he never intended to claim for it, and that it was au afterthought, lie commented at some length on tue evidence, and on the admissions of the defendant himself. He could not avoid believing that the statements of the plaintiff and Mr. Beetham were correct, and they coincided, Hβ must believe them in preference to the statement of the plaintifl, and the sotting up of a claim which he as a business man must have known was long barred by the statute. As to the question of law, he saw no reason to believe osher than that the money was hers morally. —Judgment was given for the plaintiff with interest trom the 31at of May, and costs on tUe lower scale.

MOWBRAY AND ANOTHKB T. NANKKRvIS. —This was an action by John Mowbray and another v. Henry C. Nankervis for possession of land and hotel and breach of covenant in deed of lease. Mr. E. Hesketh, instructed by Mr. Alexander, appeared for the plaintiff, and Mr. Button, instructed by Mr. Franklin, for the defendant. This case had previously been before the Court in another form. The Htatemeut of claim set out that the defendant had leased a hotel at Whangarei, in which was a covenant that during his term of lease he should not buy, sell, or dispose of any colonial beer other than that supplied by Whitson and Sons. — The defence admitted that beer was sold other than Whitsons. The case was before the Court previously to relieve the defendant from forfeiture, when it was stated that the quantity of beer sold was small, and only because he was new in the place and not acquainted with the running of the steamers, and running short of beer he procured some from a local brewery.—The defendant was examined. He got possession of the premisee on the 2Sth March, although stock was taken on the l(jth. He obtained a lot of beer from Whitson and Sons. He also obtained some from Downing at Whangarei, some four or tive barrels and five gallons of stout, but no other beer or stout. The value in all was about £16 or £17, and up to the time of the action he had obtained no other colonial beer or stout from any other firm than Whitson and Sons, but he got two cases of colonial bottled stout from Hancock aud Co. He had ordered beer from Whitson and Sons before he got this from Downing, but had not received it, and he had none from Whitson, and had to get it from Downing, aud he sold it. He got them a barrel at a time, but could not give dates from memory. (Mr. Button read out the list of dates on which these were procured.) They were in April, and the bottled stout was got on the "2Sth of May.— In answer to Mr. Button, witness said he paid Loram £300 for the goodwill. On the 17th of March he went to Whiteon's brewery and ordered five or six barrels of beer that night. He was told it could not be sent that night, as the day was a holiday, and he told them to send it on by next steamer; but it was not sent, and by the 2Sth ultimo the beer in the house from Whiteon's was exhausted, and he sent to Downing'e for a barrel, but he sent two barrels. He was a stranger at Whangarei, and cot acquainted with the movements of the eteaniert.. Since then he had from eight to ten barrels a month from Whitson'a. He did not buy the beer from Downing to break the covenant, but to keep the house supplied. When he bought the bottled stout he was not aware it was prohibited by the lease. He paid from £800 to £900 in actual cash to Loram for the goodwill and stock and furniture.—William Charles Walker, manager of the firm of Messrs. Robert Whitson and Sons, deposed that he never received any complaint from the defendant of his orders not being carried out until this action was commenced. The custom was to despatch beer by the first steamer after the order was received. During April they'supplied only three barrels, but since then they averaged eight to ten. Previous to this the average was above ten. In cross-examination he said, when interviewed in connection with this matter by Mr. Nankervis and hia solicitor, that as manager he would have taken no action, but he could make no promise for the trustees. At this stage the Court then adjourned until ten o'clock to-day. . POLICE COURT.—Friday. [Before H. G. Seth Smith, Esq., R.M.J Breach of Apprentices Act.—Henry Miles, bricklayer, was charged with a breach of the Masters and Apprentices Acs, by absenting himself without leave from his employer, William Spence Simpson, Auckland. Mr, W. J. Napier appeared for the defendant, who pleaded not guilty. Mr. T. Cotter, who represented the prosecutor, said that the case was somewhat peculiar, as the defendant had been absent from the colony for about three years, and consequently proceedings could not be taken. William Spence Simpson, bricklayer, produced the articles of indenture of defendant, drawn up in August, 1881. Defendant worked for him about two years, and then went away without any notice whatever. His father said he was travelling in Europe, and had been to A>- \, Prussia, &c. Prior to this, he had ._ • for a time, and h> * returned to hia vnrk on v (.wit 5)

agreeing not to bring the matter into Court. Since his return, about two months ago, he had seen the defendant's father and brother, who had promised to call and arrange the matter, but failing to interview him, the proceedings were taken. Aα application at this stage, by Mr. Cotter, was made to amend the information, by inserting the date of the meeting to arrange the matter. Mr. Napier opposed the application, which was upheld by the Bench, as he had no jurisdiction to amend the information. An application for costs by Mr. Napier was refused, as it was only on a technical objection that the infor* mation had been dismissed. Unughted Hoarding.—James Morrie, contractor, pleaded not guilty to a breach of tho city by-lawa, by failing to keep a hoarding in Lower Queen-street lighted on July 9. Constable Lamb said there was a faint light at nine p.m., and at ten o'clock it was out, and remained so all night. There was a dim light in Mr. Stacey's window adjoining the hoardiug. For the defence John Langley deposed to lighting the lamp (produced), and seeing that it was burning properly. James Stacey deposed to the gaslight in his window being lighted when the hoarding was up. Fined 5s and costs, 7s. Cabman's Trodbles.—John Clarke, cabman, pleaded guilty to striking John MoAnaley, Hobeon-street, in the face with his list on July 14. There waa a cross information charging McCanaley with throwing stones at tho defendant's cab, and breaking s panel to the value of £5, to which McAnaley pleaded guiity. Evidence was taken on both sides, from which it seemed that the parties had had a dispute in the Opera House, and Clarke meeting the boy at the dock gate, had fresh words with him, and jumping down from the box of bis cab, knocked him down. Upon recovering his senses MoAnaley fired several stones at the cab, doing the damage. Clarke was fined 10s and costs for the assault, and the cross information waa dismissed.