LAW AND POLICE.

New Zealand Herald, Volume XXV, Issue 9034, 21 April 1888, Page 3

LAW AND POLICE.

SUPREME COURT.— Judge's Chambers. Friday. [Before His nonor Mr. Justice Gillies.] Probate. — Probate was granted to the executors in the wills of Daniel Poole and Moses Moralee. An application for probate in the will of H. C. Nankervis was deferred for further affidavit by the widow. Robkrt Graham's Estate.—ln the matter of James Fenton v. John Home and John Wilson, executors in the will of the late Robert Graham, Mr. Earl moved for a summons for direction as to the sale of tho real and personal estate of Robert Graham, deceased, under the decree made herein on the 9fch of July, 1887. With the consent of Mr. Theo. Cooper, who appeared for Mr. Fenton, this application was deferred until Friday. Lunatics Act.—ln the matter of the Lunatics Act, 1882, and of Charles James Mainprice, a lunatic, Mr. Earl moved for an order authorising the removal of the said lunatic. The lunatic was committed to the Asylum nine months ago, and his friends in England sent out an attendant to convey him homo. The medical officer was a consenting party, and it was intended to send him to Ei aid by the Tainui. The attendant only arrived yesterday from Wellington, and the application had been hurriedly made. The order under the circumstances was granted. In Banco. Rhodes v. Kerr. —The hearing of this motion .was resumed to-day, when Mr. . Thooc-Cooper addressed the Court on behalf of the plaintiff, and in opposition to the motion. He fully reviewed the evidence, and quoted authorities in support of the verdict of the jury, and upon the various questions of law raised. His argument occupied till one o'clock. Mr. E. Hesketh repliod, and quoted further authorities in support of the motion. His Honor then delivered judgment. He said that the first ground of the motion that " the judgment given was not in accordance with the verdict of tho jury," could not be sustained. With the exceptions of two issues (the 13th and H)th), tho whole of the issues had been found for the plaintiff. TLey had found —(1) That the representations alleged had been made ; (2) that none of them were true; (3) that they were made by the authorised agent of the defendant; (4) that Howorth as well as Hooker made them or some of them, and that he was present when Hooker made them ; (5) that relying upon them the plaintiff entered into the contract. Then came the findings on the promissory notes and agreement, which did not enter into the question as to whether the judgment was or was not in accordance with the verdict. Then came the two findings on the 13th and 19th issues ; these two findings in no way lessened the effect that tho representations on which the contract was founded were made by the agent of the defendant and were false. There was no obligation on a plaintiff in a case of fraud to discover the fraud within any specific period. The judgment of the Court on the findings was therefore perfectly right, and was clearly given in accordance with the verdict of the jury. The next grounds of the motion, "that notwithstanding the findings of the jury the judgment of tho Court should be entered for the defendant, and that the evidence established that the plaintiff, with full knowledge of the falsity of the representations, affirmed the contract," raised tho question of waiver. It appeared to him perfectly clear from the evidence that the plaintiff had not full knowledge of the falsity of the representationsuntil after the 19th of April. It was true that even in December, 1886, he was aware of the fact that one representation was not correct—that is, that the consumption of the gas was only one-tenth greater than coal - gas. But this was only one and a small portion of the representations alleged. The plaintiff would scarcely have beon justified in rescinding the contract because of this alone, and it was only the accumulation of the misrepresentations wlieh entitled him to the relief ho claimed. It was all the representations taken together—misrepresentation of composition, of quantity, of consumption, of burners —that constituted the fraud. It was quite clear that the plaintiff, although be had an inkling in March, was not then in a position to say it was a fraud. It was not until he had completed the tests during tho four weeks in March and April that he obtained that full knowledge which entitled him to rescind. Thenextground was that the damages should be reduced. He was satisfied that where a contract was set aside on the ground of fraud, although general damage could not be recovered, still it would not be doing equity if special damage—the expense which the person wronged had incurred by reason of the fraud—could not be recovered. No ground for such a doctrine existed. In this case the damages given were of that description, and of a moderate amount. Tho next branch of the motion was that a new trial should be granted, on the ground that the verdict was against the weight of evidence, and the mis-direction— or non-direction—of the Judge who tried the case. He had telegraphed to Mr. Justice Ward for his opinion on the verdict, and had received a reply that without his notes he could not tell. That showed that at any rate he had had no strong view one way or the other on the matter. The question must then bo decided upon the perusal and consideration of the evidence taken at the trial. He had carefully considered it, and he must say that he thought the jury could have come to no other conclusion. The evidence showed, to his mind, that the plaintiff—an unskilled man—had had no certain knowledge of the falsity of the representations until the four weeks' tests he referred to. He was "groping in the dark," as it were. Then, as to the admission oi improper evidence, the only objection was to one question and answer. Hβ did not think that question and answer really affected the issues raised, but he was clear no substantial wrong had been done by its admission, and therefore under rule 271 it was not ground for a new trial. Then as to the non-direction, he considered that the' acts rolied on by the defendant as evidence of waiver were not unequivocal in their nature, but were acts of tho plaintiff before he had a full knowledge of the falsity of the representations, and did not therefore indicate an intention to affirm the contract, the plaintiff could not waive his right to rescind without knowledge of the wrongs done. He had not that knowledge at the time, but was experimenting, groping in the dark. When ho ascertained fully the fraud ho complained of lie rescinded the contract. Tho Judge was, therefore, right in leaving these questions to the jury, and the jury found in his opinion correct answers to the issues. The motion would, therefore, be dismissed. Air. Cooper applied for costs of tho argument, and the sum of £'21 was allowed by the Court. Mr. Hesketh gave notice of appeal, and applied for a stay of execution. Mr. Cooper opposed [•the application, and after some argument, His Honor refused to stay execution. R.M. COURT. —Friday. [Before Dr. Giles, R.M.] Judgmknt Summonses.—The following judgment summonses were disposed of: — B. Kemp v. G. T. Kcetley : Claim, £3 5s (id. Defendant did not appear, and an order was made that ho pay the sum claimed on or before the 21st May, or undergo fourteen days'imprisonment; costs, (is. F. Mander v. J. C. Cairns : Claim, £V.) 2s 3d. There was no appearance of defendant, who was ordered to pay the claim by instalments of £10 per month, or to suffer, in default, six weeks' imprisonment ; costs, £1 l'2s. John Grade v. J. Kennie : Claim, £3 11s 9d. By consent, defendant was ordered to pay by instalments of 2a per week ; costs, ss. William McCarthy v. T. Allen : claim, £8 l'2e!. His Worship ordered that defendant, who did not appear, pay by instalments of 10s a week, or undergo one month's imprisonment ; costs, Ss. Geoige M. Johnston v. J. B. Kilian : claim, £4 2s Cd. An order was made by consent that defendant pay the sum claimed on or before May 21st; costs, ss. George Hulme v M. Ryan : claim, '225. The evidence of defendant was heard, and he was ordered to pay by the Ist June ; costs, ss. Samuel Taylor v. Tuckey : claim, £1$ 19s 6d. Defendant was examined, but His Worship did not make an order ; costs, os. Thos. Hohton v. Tiros. Surman.— Claim, £30 4s. The evidence of defendant was taken, but an order was not made. Skkgmer, Langguth, and Co. v. S. Coombes.—Claim, £5 ISs 6d. This was a judgment summons in respect to a claim for goods supplied. Mr. Muttony appeared for the ulaintiil's. and Mr. Brassuy for the de-

fendanb. Carl Seegner, one of the plaintiffs, deposed that the defendant had left the colony since the issuing of the summons without paying the claim. Coombes, who appeared to have money in his possession before he went away, met witness in the street, and told him that he (Seegner) would not get the money. Cross-examined; A telegram received from defendant informed witness that Mr. W. H. Fenton held power of attorney in Coombes' interest, and that the debt would be paid when funds were available. William Henry Fenton, who appeared to represent the judgment debtor, deposed that Coombes' passage money had been paid by Mr. Ewington, and £3 which he had in his pocket when he. left had been subscribed amongst his friend?. Crossexamined : Witness held a power of attorney, practically for nothing. He knew that Mr. Coombea had visited several drapers' shops in Auckland requesting employment, and he was not aware that he had refused a situation as drapers' assistant because it would be infra dig for the " great Sammy Coombes" to act in that capacity. Witness was aware that Mr. Coombes had travelled to Melbourne as a saloon passenger, and did not know that the Union Company had agreed to give him a second cabin passage on easy terms, but that Coombes had refused this concession, saying that he wished to enter Melbourne respectably. Mr. Brassey submitted that an order should not be made, as Mr. Coombes had left the colony as an absolute pauper, his passage having to be paid by public subscription, whilst the money he had in his pocket had not been earned by himself, and could not therefore be claimed. Coombes' reason for wishing to enter Melbourne respectably was that he wished to have an opportunity of bettering his position while there. The fact of his having left his wife and family in Auckland was in itself an assurance that he did not intend to remain in Australia. Mr. Mahony pointed out that he had gone away contemptibly, without considering the loss which the judgment creditor might suffer, and this was only a specimen of the debtor's impertinence. If he had come to Mr. Seegner and asked for time, some consideration would have been shown him, but too much loss was caused through tnis class of men. The Bench thought that a dangeroue precedent would be set up were a debtor allowed to evade the Act in this manner ; and he ordered the defendant to pay the sum claimed within 14 days, or in default that he undergo 28 days' imprisonment.

POLICE COURT.—Friday. [Before Mr. Jno. Gordon, J.P.] Alleged Larceny.—William Grant was charged with stealing a saddle, breeching, etc., value 30s, the property of John McLaughlin. The accused pleaded not guilty. Inspector Broham applied that the case be remanded until Saturday. Grant objected to the remand, as it would prove inconvenient to him. He owned a large milk trade, and had just bought out the prosecutor. The Bench ordered the remand, bail being allowed the accused—himself £10, and one surety of £10. The Use of the Tongue.—Emma Hunt was charged with using obscene language in Union-street. There was no appearance of the defendant, and the case was heard in her absence. James Shanaghan. Arthur Cooper, and Mrs. Ellen Mallet gave evidence, and a sentence of one month's imprisonment was imposed. Mr W. J. Cook was charged with using insulting language to Martha Fraider, at Prospect Terrace. Mr. Clendon appeared for the plaintiff, and Mr. Buckland for the defendant. The evidence of several witnesses was heard, and the Bench ordered that accused be bound over in his own recognisances of £10 to keep the peace for six months.