LAW AND POLICE.

New Zealand Herald, Volume XXV, Issue 9087, 22 June 1888, Page 3

LAW AND POLICE.

SUPREME COURT. Sittings.

Tetorsday. [Before His Honor Mr. Justice Gillies.] The Tatjranga Conspiracy Cask.— David Asher again appeared in the dock, on the charge of having conspired with Tβ Pine Awanni by false pretences to defraud Her Majesty of certain moneys. Mr. Button (with Mr. Hudson Williamson, Crown Prosecutor) appeared for the Crown, and Mr. E. Hesketh for the prisoner. The case had occupied tho Court during the whole of Monday and Tuesday. The case for the Grown was closed on Tuesday evening, and Mr. Hesketh then addressed the jury for upwards of an hour. Hβ resumed his address this morning, and concluded a most able and exhaustive defence at a quarterpast eleven o'clock. His Honor then summed up the evidence, copious extracts from which he read to the jury, commenting and explaining as he proceeded. The jury retired at a quarter to one o'clock. They returned at six o'clock with a verdict of "Guilty," and recommended the prisoner to the merciful consideration of the Couit, on account/of the laxity which had prevailed in the Whole matter of the purchase of native lands. His Honor, in discharging the jury, concurred in their verdict. Sentence was deferred. The Court adjourned until ten o'clock next morning. R.M. COURT.—Thursday. [Before Dr. Giles, R.M.] Judgments for Plaintiffs.—Judgments for plaintiffe were granted in the following cases :—New Zealand Timber Company v. J. C. Cooper, claim £28 15s, costs £2 19s ; A. Buckland v. H. G. Walmsley, claim £9 7s 6d, costs £1 12s; Thomas Slater v. F. Forster, claim £1 4s, costs 6s; Joseph Edward Brethertpn v. P. Langton, claim £9 6s 10d, costs £2 4s ; E. J, Thomas v. J. Kirk, claim £1 11s sd, costs 6s; Thomas Gillibrandv. J. W. Reed, claim 15s, costs 6k ; Kempthorne, \ Prosser, and Co. (New Zealand Drug Company, Limited) v. W. J. Suiter and F. L. Protheroe, claim £26 18s 1 Id, costs £3 Is ; E. W. Burton and M. R. Keesing v. Albert Say Board, claim £1 16s, costs 7s ; the Rational if t Newspaper Company, Limited (by the official liquidator) v. Elizabeth Bacon, claim 11s, costs 7s; Rationalist Newspaper Company v. W. E. Kirk, claim £1 7s 6d, costs 7s; Eyre v. Fury, claim £1 3s 2d, costs Iβ.

George Hinds Leaning v. Henky Jas. BUBHELL.—This was a claim for £25 for costs of funeral of the late Frank W. Foley, deceased. Mr. Theo. Cooper appeared for the plaintiff, and Mr. W. J. Napier for the defendant. The plaintiffs claim was that ho had been instructed by the executor, Mr. S. Jackson, jun., to couduct the funeral ; that Mr. Jackson had left the colony, and the claim was brought against the defendant as second executor, under the second will. The defence was that Mr. Jackson gave the order, and Mr. Bushell was not liable. There were two wills, one contained the names of both Jackson and Bushell; the second one the name of Bushell only. Both wills contained the direction to the executor to pay the testamentary and funeral expenses. George H. Leaning deposed he knew the deceased Frank W. Foley. Mr. S. Jackson, jun., came to witness and asked him to arrange for and conduct the funeral of the late Mr. Frank W. Foley. Witness told him it would be an expensive funeral, to which Jackson l-eplied, "Give us a good turn out, there is plenty of money in the estate to pay for it." Jackson also told witness he was an executor in the estate. Witness then supplied casket, hearse, and half-a-dozen carriages to carry the body from Grey-street to Queen-street wharf; the hearse, a pair of horses, and two men were also sent over. The Mineral took place from Devon port wharf to the Devon port cemetery. Witness paid cemetery fees about 2ns. He also supplied crape, and men, and paid for hire of two hearses, cabs, etc. Witness looked to Jackson, as executor of the estate, for payment of expenses. The charge was £25, and it was a fair and reasonable charge. Mr. Jackson had since left the colony. Mr. Cooper hero made application for probate of will. Mr. Napier admitted he had the probate, but declined to produce it. Mr, Leaning here stepped down, and Mr. J. Hammond was put in and sworn. He testified he was a clerk in Mr. Napier's office. Mr. Cooper asked him if he knew what capacity Jlr. Bushell acted in regard to the estate of Frank William Foley. Mr. Napier objected, as what the clerk knew oh the matter was privileged, and the witness declined to answer. Mr. Cooper asked the Resident Magistrate to compel him to do so. Mr. Napier contended Mr. Cooper should have got a certified copy of the proof. The Resident Magistrate hero granted an adjournment, to allow Mr. Cooper to get the Supreme Court officials, but Mr. papier said he would admit the evidencd] and the caso proceeded. Thomas William Taylor was then called, and deposed that he was a clerk in the Supreme Court. Ho produced two wills of Frank VV. Foley —of one, probate was granted on the second will, and it was registered, but the other was not. One will contained the names of both Jackson and Bushell, the second that of Bushell only. The latter will, dated November 14, 1886, contained directions to the executor to pay the testamentary and funeral expenses. Mr. Leaning was recalled, and stated he had sent accounts to S. Jackson, as executor of the estate. He had received a promissory note for £25 irom Mr. S. Jackson, as executor of the estate, in payment of the account. The receipt for this note was dated 11th November ; the funeral was on September •23. The note was never presented, because ho found it was useless, Mr. Jackson becoming a bankrupt before it was due. Witness had pub in no proof of debt in Jackson's estate. Witness claimed from Mr. Bushell, not as a private individual, but as executor of the estate of Foley. Mr. Cooper here put in a conveyance to prove there was property in the estate at Mangonui. Ho also stated that a summons and subpoena had been issued against Mr. Bushell, but he had gone away. William Gray, clerk in the Official Assignee's office, proved that Foley's estate was the principal creditor in Jackson's estate to the amount of £2700. About £290 of assets had been collected, but it had been nearly all expended. There was about £4 in hand and a few trifling things to bo collected. A charging order of over £100 against the estate had been granted. Mr. Cooper called for Mr. Bushell, bub he was not present, and an adjournment was had till two o'clock. On the case being resumed, Mr. Cooper called Henry James Bushell, who deposed he was acting executor in the will of Frank "W. Foley, deceased. Ho had not realised the estate. He bolieved there was a life assurance of £500. He had also heard there were shares in a Manchester warehouse wholesale drapery, and 80 acres of land at Mangonui. Had taken steps to realise the property at home. He had received no moneys from the estate. By Mr. Napier: He did not know there was property at home, or any life assurance. He had heard the shares in the clothing manufactory had no value. He had not reduced any property into possession. He had received an account from Air. Samuel Jackson, junr., of moneys alleged to be due to Mr. Jackson by Foley, deceased. The account was £352 2s. Re-examined : Foley had told witness that his (Foley's) life was insured. A horse and cab had been sold since Foley's decease for £4 or £8. It had been paid to Mr. Napier. By Mr. Napier : Believed it had been absorbed in costs in the Supreme Court. The deed for land was also held on a lien for Supreme Court and other costs. Foley brought £6000 to the colony when he came about four years ago. He placed the money in the Bank of New Zealand, and Mr. Jackson had conducted Foley's business. The investigation into Foley s affaire had proved that Jackson had misappropriated some £2000 of Foley's money. Mr. Gray was re-called to prove Jackson's departure on the December 'Frisco mail boat. This closed the plaintiffs case. Mr. Napier, for the defence, contended that Jackson ahd never been an executor at ail, and further, that the contract was one between Jackson and the plaintiff personally, and not as executor ; also that Jackson gave his promissory-note for the money ; also there had been no assets proved in the case. Mr. Napier quoted Williams on Executors, Bth ed., vol. 2, p. 1795 ; Bryce v. Wilson (Adolphus and Ellis' Reports), p. 349, note 3. Mr. Cooper replied, asking for a judgment on assets in the future and a limited one against the estate, not against the executor personally. The Resident Magistrate reserved his judgment^

Thos. Thwaites v. W. Seagak.—Claim for £4 9s 7d, balance of money paid for defendant by plaintiff. Mr. J. A. Tole appeared for the plaintiff, and Mr. Theo. Cooper for defendant. The money was advanced to pay certain claims of rates, etc., against property. Thwaites advanced £10 9s 7d. Mr. Seagar repaid £6 of this by two instalments of £4 and £2, leaving the above balance. Mr. Seagar had never previously denied the debt. Benjamin Blakie deposed that in August, 1879, he had leased to Seagar an allotment, No. 16, in Auckland, at £20 per year, and all rate 3 and taxes. A demand was made at the end of last year to witness for £7 2s lid, rates, and there was also owing two months' rent, £3 6s Bd, making £10 9s 7d. Witness saw Seagar, who asked witness to go down with him to Mr Th ivaites to get the money. He did so, and the money was paid to Mr. Alexander, who made the demand. By Mr. Cooper : The money was due on or before January Ist. Thos. Thwaites deposed he advanced £10 9s 7d to the defendant. Mr. Seagar applied to him for the loan of the money, saying it was to pay certain back rent and rates. This was upon property which witness had taken over from Seagar, and on which a distress might be levied. Witness went with Mr. Seagar to Mr. Alexander, and at Seagar's request gave Mr. Alexander a cheque. Seagar had repaid £6 in two instalments, and had never disputed the claim. Mr. Cooper contended that a nonsuit should be entered against plaintiff, as when the plaintiff took over the property he took it with its burdens and liabilities, as well as advantages. Had the lease been determined the defendants would not have suffered, and he had no interest in it, and the turning over the leasehold implied the turning over all the interests and property in it. Seagar was not liable, and had he refused and a distraint issued the plaintiff would have suffered, and his property would have been levied on. The purchaser of an equity of redemption is bound to protect the vendor for any subsequent action on the property or interest conveyed. This was laid down in Waring v. Lord (one of Lord Eldlon's cases), Guthrie and Laruach estate v. the Bank of New Zealand ; and later still, Fraser v. Laishley, heard before Mr. Justice Gillies. The plaintiff bought the property for a mortgage debt, and in buying the pro}>erty he bought everything on it. As to the alleged " payments on account," the £6 paid was not payment on account, and had it been so it implied no legal binding, because the debfc originally was not a valid one. Plaintiff should be nonsuited. Mr. Tole, in reply, argued that the defence was trying to cloud the issue. The money had been honestly paid, and defendant himself thought himself liable, for he had acknowledged it by paying the £6. The money was paid by the plaintiff at defendant's request. Mr. Cooper, in reply, reurged his contention that Mr. Thwaites bought the back liabilities on the property. Mr. Cooper also said he intended to call no evidence, but rested his case on his contention. The Resident Magistrate assumed it was agreed that the purchase of a lease carried with it liability of back rates and rent. Mr. Tole eaid unless there was a special agreement or formal evidence could be given to show the contrary. He quoted Lyle v. Edwards, 30, Law Journal (Common Law), p. 193. Chitty on Contracts, p. 689, stated " that the release should be considered according to the purpose of which it was made." Also, Addison on Contracts, fifth edition, p. 921 ; also from Judge Broad's book. The Resident Magistrate said he would consider his judgment. A. G. Purchas v. Hayden and Sarah Smith.—This was a claim for £9 9s for medical attendance. Mr. Brookfield appeared for the plaintiff, and Mr. E. Cooper for the defendant. Dr. Purchas deposed that on April 5, 1882, he was called to a boy named McCracken, residing in a house of Mr. Robinson, near Mount Eden. The boy was the son of the female defendant, who was then Mrs. McCracken. He attended the boy from April 5 to June 16, some fifteen times. Witness thought the charge more reasonable than it might have been. He had not been paid the account. William Blacklock, collector for Dr. Purchas, deposed to calling on the female defendant, and to her denying liability, and refusing to pay ; and that, while the boy was her Bon, that at the time he met with the accident he had left home, and gone into his uncle's training stables. Sarah Smith deposed she was mother to the boy McCracken; the boy was hurt; that Dr. Purchas attended him. When the accident happened she went to see the boy, and saw the doctor attending to him. She raised no objection to the doctor. This was the plaintiffs case. Mr. Cooper contended that there was no case, as no contract was proved, and he could find no authority for the mother being liable for her children, but the father, and also when a boy was out at employment the employer was liablo for medical attendance, &c. He quoted " Chitty on Contracts," 10th edition, p. 537, Also, it was the boy'e uucle (Mr. Robinson), with whom he was employed, who sent for the doctor, and made the contract for his services. Mr. Cooper asked for a nonsuit. Mr. Brookfield contended there was a moral obligation to pay. He quoted Blackstone at length, on " Parent and Child," to prove parents had a right to maintain their children. The Resident Magistrate gave judgment for the defendant.

POLICE court—Thursday. [Beforo J. P. King, Esq., J.P.] DrunkennksS.—Ellen Lawson was fined 5s and costs, or 24 hours' imprisoment for this offence. Larceny. —Daniel Geary was charged with having, on or about June 13, at Auckland, feloniously stolen and carried away a kitchen range, register grate, and gas stove, valued at £16, the property of Edward Bartley. Sergeant-Major Pratt, who appeared to conduct the prosecution on behalf of the police, asked for a remand of the case, stating there was another man mixed up in the affair whom the police wanted to get hold of. The case was remanded till Thursday next, prisoner being allowed bail in his own recognisances of £100 and two sureties of £50 each.

This was all the business.