LAW AND POLICE.

New Zealand Herald, Volume XXIV, Issue 8927, 16 December 1887, Page 3

LAW AND POLICE.

SUPRBME COURT.—Citil Sittings. Thursday. [Before His Honor Mr. Justice Gillies,] Samdbl Jackson, Jun., v. Alice Maud F0L87.-i.Thia was an action for probate in the will of the late Frank William Foley. The defendant was the widow of the deceased, Foley, and disputed the will on the ground that when the will was made the testator was not of sound mind. Mr. Theo. Cooper appeared for the plaintiff, and Mr. Button with Mr. Napier for the defendant. Mr. Cooper said at this stage he had an application to make. The plaintiff was executor under the will which the defendant disputed, and he had to apply for an adjournment, and the grounds he acknowledged were somewhat singular. Mr. Jaokson, the plaintiff in the aotion, was the executor under the will, but was not otherwiib interested, as a brother of the deceased, resident in England, was the legatee of all the property under the will except some bequests and a life' interest of the widow in some of the property. Hβ put in an affidavit by Mr. A. Devore, stating that tho plaintiff Jackson had left the colony without providing for the oonduct of tbe suit. The interests of others, Mr Cooper pointed out, besides the plaintiff, are involved, and the person entitled under tho will had not yet had an opportunity to say whether he would take the position of plaintiff, or accept the position set up by the defendant that the testator was insane when he made the will, and he therefore asked for an adjournment till next suasion. If this was refused, he (Mr. Cooper) should have to withdraw from the case, and there would then be nothing to go to the jury, and therefore there could be no verdiot. Mr. Button objected to any adjournment. The executor, who was also the plaiutiff, had been guilty of gross misconduct, and that should be no reason why the wrong to Mrs. Foley should be prolonged. He read an affidavit by Mrs. Foley, in which she alleged that the plaintiff had kept her husband in a hotel drunk, that he had squandered her husband's estate, and that she believed the object of tho application for the adjournment was to enable the plaintiff to eioape criminal proceedings; that great oost had been gone to in obtaining evidence for this case, and it would be impossible to get all the witnesses again, and that uhe was now without means, and dependent on the hospitality of her parents. His Honor said so far as the application for the adjournment went, ho saw no grounds for it, but how about proceeding? Mr. Button said the plaintiff had put in an appearance.and judgment, dismissing theaction, would permit them to take action on the other will. His Honor said he saw no other course before htm but to dismiss tho aotion. It would hare been more satisfactory if they had got the evidence on record. The oase was then formally called. There waa no appearance of plaintiff, and His Honor, in accordance with rule 257, gave judgment dismissing the action. Costs were allowed against the plaintiff personally on the higher scale. Jambs Carleton v. Albkkt Mioa Suei , - hkub AMD Others.—This waa an action to recover £500 damages. Mr. Browning ap peared for the plaintiff, and Mr. Buck land appeared for one of the defendants, Mr. \V. Dalton Bueh. Hβ said none of the other defen dants bad been served, although they were rightly joined in the action. They had never left their homes, but no attempt had been made to serve them. He asked for an adjonrnment of the aotion in order that Messrs Rogers and Shepherd might be served. Mr. Browning said they did not claim judgment against those who were not served. They claimed judgment against William Dalton Bush, and if he chose he could claim from them for their contributions. His Honour said the claim was against tbe defendants jointly, »nd he could oot give jadgmeut on that olaim against one. The best course would be to adjourn tbe aotion until the next sitting, leaving it optional with the plaintiff in the meantime to am<;nd his statement of claim.

Edward Clay v. Robert Wigmore.— This was an aotion to recover £1250 damages for libel. Mr. K. Hosketh, who appeared for the plaintiff, informed the Court that the case was settled.

Another Will Affair — Thk BisHor Case. —James Rae, executor in the will of the late George Wesley Bishop v. Faith Bishop. This was an action for probate, which was opposed by Mrs. Bishop. Mr. Hesketh and Mr. Napier appeared for the plaintiff, and Mr. Button for the defendant. The deceased, G. W. Bishop, it will be recollected, was shot by a woman in San Francisco, with whom he had been cohabiting, and the body was brought to Auckland for identification. After reading the pleadings Mr. Hesketh proceeded to take evidence. James Rae, pawnbroker and money lender, deposed that Mr. Bishop left for America on the 28th of February this year. Witness had known him for twenty years, and was familiar with hit position generally from his own statements. Shortly before leaving for America Bishop resided with hie wife and family in Eptoin, and witnese saw him almost daily, and six weeks before he left Mr. Bishop told him he had made up his mind to go to America, and he left witness a power of attorney. He saw Mr. Bishop packing his boxes on the 24th February in an upper room in witness's house, and when he was nearly finished witnes* suggested to him that he should make his will before going ok a lone; journey, as he did oot know what might happen. Hβ replied, "1 think I will," and he atked for paper, pen, and ink. Witness gave him what he required, and Mr. Bishop went upstairs. Witness went up a short time after, and Mr. Bishop asked him, "What ehall I give Georgi* (hie youngest girl)?" Witness said, "Please yourself," and he then replied, "I'll give her £100." Witness then left the room, and shortly after wards Mr. Bishop said he bad finished, but would require some witnesses, and plaintiff replied that they could get tbe two young men next door. Mr. Bishop and the plaintiff then went next door, and plaintiff iotrodnoed Mr. Biahop to Messre. Norrie and Kempley. Mr. Bishop signed tbe will in their presence, and they witnessed it. Mr. Bishop then went to America, and witness did not see the will until he heard ot his death. In cross-examination the plaintiff said the witnesses to the will were his tenants, and carried on a soft goods trade. They were not indebted to him in any sum whatever, but they had since become bankrapt. He was not aware that there was a recommendation that they should be prosecuted for fraudulent bankruptcy, but he heard the creditors had passed a resolution to that effect. Witness did not remember saying a word about this will to any one until after he heard of Mr. Bishop's death. The witnees was cross-examined as to an erasure and interlineation on the will, but he could make nothing of the words erased, and he could not account for it. Ho did not notice it until after Mr. Biehop'a death. William Nixou Norrie and Alexander Morrison Kempley, the -witnesses to the will. also gave evidence an to what took place at the time, and identified their signatures. Mr. Button said after this evidence the plaintiff must succeed, but he asked that tbe coets be paid out of the estate, as there were good grounds for tiie course taken by tbe defendant, who, being next of kin, was entitled to administer in the absence of this will, the existence of which wae unknown to any person except Mr. Rae and the witnesses, until it was produced after the death of the testator, and who waa entitled to receive £100 under the will, while the wife got 1 nothing, aud she was justified in asking that the will should be proved in solemn form of law. Mr. Hesketh replied. His Honor said the mere fact of a man making a will, aud leaving his wife unprovided for, fully justified her in asking that the will should be proved in solemn form of law, and he ruled that the costs of the plaintiff should be paid out of the eatate on the higher scale, the defendant to pay her own costs. Probate was granted to the executor named in the will.

IjIVORCB AND MATRIMONIAL CAUSES.

William Hknry Modldkn (petitioner), Grace Motjldsn (Rksfondknt), and Edward COKBSTT AND Jamks YotTNG (CoBKaroNßENTs).— Motion to make deoree of divorce absolute. Mr. B. fiesketh appeared for the petitioner, and in support of the motion. Hie Honor ,eaid there was something very peculiar about this application. The case had been heard before him in October, 1884; the jury found on certain facts ; and he distinctly refused to grant the rule nisi for dissolution of the marriage, on the ground of proved , misconduct o\ the part of the petitioner. Mr. Heajteth/mid His Honor was under a, lerioas misapprehension, for no motion had been made for a decree until last April. He recapitulated what took place at the several trials, and read from the endorsements on kit brief, all of which he said were made by

himself, These showed that the first trial took plaoe on October 8. 1834, when the jury found for the petitioner, Mr. Moulden. The petitioner was about to movo for his decree whan the respondent moved for a new trial, and on Ootober 15 a, new trial was granted, Hia Honor then staking that the ends of justioe would be attained beat by a new trial being had, and that he felt that he (tiis Honor) had not direoted the jury fully enough. He submitted that if the petitioner's conduct as disclosed on the flrat trial disentitled him to a deoree, then a new trial should not hare been granted, because if the petitioner succeeded again he would still remain disentitled to a deoree ; and hence His Honor's remark that if the verdiob was re peated at .the second trial the decree must go. The second trial was held, and the petitioner again succeeded. Hie Honor repeated that he was sure he had intimated that no decree would be granted. Counsel then said, then there was no need to hare granted a new trial. His Honor then referred to his note-books, but no entry ap« peared of a motion for a decree. Mr. Hea keth repeated that, as counsel in the cause, no application had ever been made for deoree until the application to Mr. Justice Ward in April last, when the present rule nisi was granted. Then there was s> further application for the wife's costs, and they were allowed for the first trial only. That rerdict was repeated, but no application had been made for a decree, for the reason that the petitioner had to pay not only his own costs, but those of hie wife, who was totally without means. His Honor replied that what he said was that, if the jury took the same view on the eeoond trial, the respondent must take the result, and now two years were allowed to elapse before an application was made to another Judge, who did not hear the case, for a decree niai, which was granted, and he could not understand how he made the order, in which it was alleged "after bearing the evidence on oath." Mr. Hesketh said that he did not know that the decree could be drawn in any other form, aud he oould sttte that tho evidence was closely scanned by His Honor Mr. Justice Ward before the rule nisi was granted, aud His Honor was esptoially impressed with the fact of there having been two trials and two verdicts in favour of the petitioner. His Honor said it was quite contrary to the spirit of the Act that a Judge who had not heard the evidence should proceed on it ht all. Mr. Hesketh submitted it was quite correct for the rule nisi to state "upon hearing the evidence," because it was a rule of Court, and the Court was speaking, and the Court had heard all the evidence. His Honor said that he granted the new trial because he did not believe the evidence, and was dissatisfied with the verdict of the jury. The rule nisi net forth what was not true, and to make it absolute would not be right. Mr. Heiketh said he oould only repeat that it waa a rule of Court, and not an order of a Judge, and that section 25 required the Court to make the rule. The Court had heard all. Mr. Hesketti asked what would occur in the event of the death of the judge who heard the oase? H* presumed the same course would be followed, and the application made to the then presiding judge, bat the rule would be the act of the Court. He trusted that as a second trial had been granted, and tho petitioner put to the expense of it, and had twice satisfied two juries, that tiis Honor would grant the decree. LI is Honor deolined to make the rule nisi absolute on the grounds that the rule nisi was made by a judge who had not heard the evidence, and had no opportunity of judging of the petitioner's misconduct, and that be hud pro viously intimated that he should not grant the decree owing to the petitioner's misconduct. Mr. Hot keth then stated that he had h»ped it would be unnecessary to advance the objection that he was about to make, bat that as he had never applied to His Honor for a deoree, and could therefore never have been refused cne, he must now ebjeot that as the rule nisi had been granted it waa final between the parties, and it was not now open to tae Court to raise the question which His tlouor bad raised. The time to consider such a question was before and not after a rule nisi bad been granted, but he admitted it would have been otherwise had the matter of this objection occurred since tbe rule nisi bad been granted. His Honor, however, intimated that he oould not alter the conclusion he had arrived at. Mr. Heaketh replied, then your Honor that will oompel the petitioner to consider the necessity for appealing. It was a most serious matter tn»t these two persons should be bound to each other after what had taken place. Druulla Annib Gordon, petitioner; James Gordon, respondent.—This was an application to make a rule nisi for dissolution of marriage. Mr. Blade* appeared for the petitioner. There was no appearance for the respondent. Mr. Blades moved that the decree ni«i made in April last be made absolute under the 30th clause of the Divorce and Matrimonial Causes Act. The necessary affidavit had been filed on the Ist of December. He also asked that costs be allowed against the respondent. The case was heard before Mr. Justice Ward, who made the decree. His Honor, looking over Mr. Juitioe Ward's notes, said, he saw that costs were against tbe 00-mpondent, but Mr. Blades pointed out that there was no co-respondent. His Honor then made the rule abmlute, with costs againtt the respondent, £25. This concluded the civil sittings of the Court.

K.M. COURT.—Thursday. [.Before Mr. H. G. Seth Smith, KM.]

JCDGMKNTS FOB PLAINTIFFS.—R. ReW V. O. Gooavrin, claim £5 5s ; coats £1 17s. A. Buckland v. J. Lockhart, claim £7 ; costs £1 163. A. Buokland v. J. M. Hill, claim £14 3s (id, judgment for £12 13s 6d ; coat* £2 10s. G. flulrae ▼. VV. Miller, olaim £13 7s 6-i ; costs £2 6b. E. Render 7. J. Robertson, claim £3 17a ; costs £1 2s 6d. A. Buck land v. P. Molutyre, olaitn £3 19s; costs £1 9» 6d. H. C. Hanchard v. T. G. Bray : Tina vTae ft summons to a tenant to give up possession. Ordered to give up possession on or before 13th January, 1888. U. MitcheUon and Co. v. A. Brooklee*, claim £14 17e 6-1; costs £214 a. J. Wylie v. T. Clark, claim £2 12a; costs £1 si. JB. Wayte v. J. J. Dignan, olaim £5 Sβ 2d; oosts £2. Same v. H. Williams, olaim £3 ; costs £1 Is (id. J. L. Cochrane, v. Captain Minchin, (claim £1 3i 7a : costs £1 Iβ 61. W. Parkinson v. J. H. Cotnish, claim £2 13s Id ; costs £1 Is 6<i. T. alator, v. J. Ha>s, claim, £6 14s 6d; costs 15s. J. Warren v. W. Piper, olaim £16 Oβ 4-i; costs £2 8«. H. A', iloffmana v. 1). hhcehau, claim £7 7s; cost* £1 16s. M. Robinson v. J. Nash, olaim £7 12s; cotta £1 ISs. Hammond and (Jo. r. M. H. Frost, olaim £1 10s ; coats Hβ. J. Dunn v. J. Hawthorn, claim £16 10s 5d ; costs £2 10s.

W. K, Franklin v. M. Martin.—Claim £20 on an agreement. Mr. Franklin conducted his own case, and Mr. Humphreys appeared for the defendant. The ease was adjourned till to-day to enable the plaintiff to look up authorities.

New Zealand Timber Company v. Smith. Claim £5 Iβ for timber supplied. Mr. Theo. Cooper appeared for the plaintiff, and Mr. (J. JSf. Braaeey for the defendant. The case was nonsuited, as the company had credited the timber to a Mr. Lonergan, aud Hie Worship held that the company must look to him for payment. Costs £1 6«.

MkS. J. DrYSDALE V. M. Claim £10 for damages caused by illegal trespass on property belonging to plaintiff, a boardinghouse keeper in Hobson-street. Mr Humphries appeared for the plaintiff, and Mr. Calder for defendant. Judgment for plaintiff without oosts.

Co-opbrativs association.—A large numbar of actions were brought; by the Gooperative Association for calls, and judgments for plaintiff were given against the following:—D. Brookett £12 10e, ootte £2 15s ; A. Bremner £1 ss, coses £2 6s 6d ; W. (Jhitty £1 ss, costs £1 3s 6d ; J. Clements £1 ss, ootte £1 12s 6d j G. Kigg £1 s>, costs £1 2s 6d ; W. Shaw £1 s*, co»te £1 2a 6d j T. Satton £1 ss, oost« £114s 6d ;W. Sturges £1 ss, cost* £1 13s 61 ; W. Vmoe £2 10«, coats £1 9s 6.t ; J. A. Williams £5, coats £1 2s 6d ; J. Wilson £1, costs £1 6s 6d.

H. B. Wokrall v. W. G. Allkn.—Claim £17 4s 4d. Mr. Macrae appeared for plaintiff and Mr. Theo. Cooper for defendants Plaintiff was nonsuited with costs 26a.