LAW AND POLICE.

New Zealand Herald, Volume XXVII, Issue 8179, 14 February 1890, Page 3

LAW AND POLICE.

SUPREME COURT.—Civil Sittings.

THURSDAY. =-'- [Before His Honor Mr. Justice Conolly.] Thomas Slater v. Auckland City Council.—The hearing of this case, in which the plaintiff, lessee of the City Market, claimed that the deed of lease might be cancelled, and for £700 damages, was resumed. Mr. Tole, instructed by Mr. Johnston, appeared for the plaintiff; and Mr. Theo, Cooper, instructed by Mr. Cotter, for the defence. The plaintiffs examination and cross-exami-nation had occupied the whole of the previous afternoon, and his cross examination was resumod. He was questioned by Mr. Cooper as to certain interviews he had with the Finance Committee, complaining that he had been deceived and misled; that they did not give him what he bought; and that the whole affair, from the advertisement to the conditions of sale, wero a trap. He stated that at this interview he complained of the representations made by Mr. Philips, but the only satisfaction he got from them was that they questioned him about his means, and what property he possessed, and he became very •ngry at the treatment he received. The witness was examined by Mr. Tole. He called the Council a lob of Russians, and said he could nob be worse treated if ho were in Russia. When he purchased the market he relied on Mr. Philips' representations, and had full faith in his statement that the whole of the produce that came to Auckland would go to the market, that he bill would be passed, and the market made a proper market. He took these statements for facts, and acted on them. At the close of tho examination of this witness, Mr. Cooper said he would admit that the present receipts from the market, as collected by the receiver, who had been appointed by the Court, wore about £32 per month. Mr. Cotter, solicitor for the Corporation of Auckland, deposed that within the last half-hour he had been subpoenaed to produco the lease between the City Council and the plaintiff. He had possession of two documents, and thoy wero now in Court, but ho declined to produce them unless his lien on them for costs of preparing thorn were paid. He had not been paid for them by any person, nor had he sent in any bill because the matter had not been completed. By Mr. Cooper: Under the conditions of sale, Mr. Slater was bound to pay tho costs of the lease. Mr. Tole contended that there was no lion as against tho uses of any document by the Court, and submitted that a solicitor having a lien on documents as between other Sarties, must produce them upon subpoena. I'e quoted Fowler v.» Fowler (50 1,. J., Chancery division), Hope v. Liddell (24 L. J., Equity division), He said all that wa3 required was to produce tho lease for a few minutes, and it would be handed back to him. He would nob lose his lien on it. His Honor said that the claim went further ; it asked that the deed be delivered up and cancolled. Mr. Tole contended that it must bo produced for tho inspection of the Court. His Honor said that if it was produced it would become an exhibit; it would bo irregular to hand it back until the final order of the Court wa3 made ; and suppose the final order of tho Court should be the cancellation of the lease, what thon would becomo of Mr. Cotter's lien ? Mr. Cooper replied to Mr. Tola's arguments, and said the Court did nob ask for the document, but one of tho litigants required it for evidence as part of the plaintiffs case. In fact, he could not complete his case without it. He quoted Kemp v. Kean (2 Moody and Robinson, 437), a case on all fours with tho present one. The deed, he said, was prepared for Mr. Slater under the conditions of sale, and he had not oven signed tho bond, so that tho deed was not completed, and on these grounds Mr. (."otter was entitled to retain possession of the documents. His Honor said he may be acting contrary to some of the authorities, but ho must rule that this deed need not be produced by Mr. Cotter unless his costs were paid. Mr. Tole asked that a note should be made of the objection. Mr. Tole then submitted that argument might be taken on the admissions made in the pleadings. In regard to the misrepresentation and conditions ho had no other evidence to produce. His Honor said that the main question was the misrepresentation, and whether the representations made were binding, and tho question of law was whether the deed was , valid one. It was a trial before a jury, and as such ho understood Mr. Tole had closed his case. Mr. Cooper contended that there was no case to go to a jury, as tho only questions were really questions of law. He argued that thgyo was no evidence that the representations alleged were made. It was a representation of somothing in the future, and was not therefore a misrepresentation ; secondly, that tho representations, if nnulo by the town clerk, were made by him outside his authority. Argument ensued on these points. Mr. Tole replied to Mr. Cooper's arguments on the points of law as to whether there was a case to go to the jury, and he relied on the fact that thoy bail not gob authority to charge tolls, but only got a lease of land, and that did not roach what they paid. He quoted Uhitty on contracts to show that the Council was bound by the representations of the Town Clerk, as he was their agent, the sale being authorised by the Council. His Honor pointed out that the Town Clerk could not bo taken as agent for the Council. It was the auctioneer who was agent. The fact that conditions may be inspected at the Town Clerk's oilico would not constitute him an agent. Mr. Cooper pointed out that the same advertisement stated that the conditions were also lodged for inspection at the Market-house. His Honor said that Mr. Philips could not be the agent to sell the property. It was sold by auction,, and if any one man was the agent it must be the auctioneer. Mr. Tole continued his argument at some length, and contended that the whole surroundings showed that the Town Clerk was the agent of the Corporation in regard to tho letting of tho Market, and contended that there was a case to go to tho jury. His Honor said he was of opinion that there was no case to go to the jury, and ho was further of opinion that the plaintiff must be nonsuited generally. Of bourse he took it for granted that these misibatementa complained of were made by the Town Clerk, for they were uncontradicted. These statements were that tolls and duee would be enforced, and that a short Bill would be passed through the House, and that the farmers had used the streets long enough for nothing. It was on the 18th February that this conversation took place, or was alleged to have taken place, and on the Ist of April the second conversation took place. Plaintiff before he signed the lease asked the Town Clerk if there was likely to bo any hitch. . Something must thon have been in progress. He must hold that thore were representations which Mr. Slater believed, but the first thing to inquire into was were these representations false, and next was there any representation that Mr. Philips was the agent for the defendant. That was the moat material point, and it appeared to him that Mr. Philips was nob the agent of the defendants. The sale was by auction and the conditions of sale wore simply left at the Town Clerk's office for inspection ; but thero was nothing to show that he was authorised to give advice. No evidence was shown that the Town Clerk was authorised by the Council. The statements were entirely volunteered by the Town Clerk on his own responsibility. The next thing to ask was, were the statements false ? Ho thought it was incumbent on the plaintiff to show they were. As to the statement that the market was worth £120 a month, Slater admits that ib would be worth something like this under certain circumstances, but even if they were exaggerated, wero they more than puffing? He doubted if they amounted to more than that. Then as to the other statement that they were going to get a short bill through the Houso, this even if admitted, did nob depend on the City Council; it required the concurrence of Parliament. The City Council could not say they would pass an Act. They might introduce it, but it was in the discretion of Parliament whether they should pass it. Moreover, it was very unlikely that such an Act as that indicated by Mr. Slater would pass. Then Mr. Slater must have known or be taken to know the time when Parliament usually sits, and if Mr. Philips told him that the whole matter would be in full swing in June, he must have known that that was the time when Parliament usually assembled, and that ib was very unlikely that the Bill could pass and be brought into operation for five or six months after that. There was no evidence to go to the jury that the Act had not been applied for, and that could have been easily ascertained when the city solicitor was in

the box, as he would be the party who would know. He thought that plaintiff acted in an imprudent manner in taking the statement of Mr. Philips, bub afber signing the lease he entered into occupation, and the doctrine caveat emptor applied. He was of opinion that there* was no evidence to go to the jury of misrepresentation by the defendants, or that anyone was authorised to act on their behalf. He thought there was no evidence that defendants did not give assistance. Then, with regard to clauses 7, 8, and 9. of the statement of claim as to the lease being invalid, the lease not being put in evidence it was Dot before them. The plaintiff was non-suited with cost 3. Mr. Cooper applied for costs on the highest scale, and costs for an extra day. Mr. Tole objected, but His Honor said that their scale of costs was very low, and he granted the application. The jury were then discharged. C. Wallace and Others (Executors in the Estate of Wm. Rattray) v. Thomas Banner-man.—This was a claim for possession of land. Mr. S. Hesketh appeared for the plaintiff, and Mr. Theo. Cooper for the defendant. The action was brought to recover possession of certain land in Ponsonby by the executors of Wm. Rattray. The execution of a mortgage from Bannerman to Rattray was admitted, but the contention was that it was Bannerman's wife who was in possession of the property. Mr. Hesketh, after opening the case, called Edwin Carr, one of the executors in the will of the late Captain Wm. Rattray, who produced probate of the will of deceased. The defendant resided in England - street, Ponsonby, on the property the subject of the action, and described in the statement'of claim. The mortgage, Thomas Bannerman to Wm. Rattray, and a sale under that by the Registrar to the plaintiffs, as executors, were put in, and witness said so long as the interest was paid, Mrs. Bannerman was allowed to remain, but no interest being paid since the death of Captain Rattray, they sold through the Registrar. He himself went to the house and asked Mrs. Bannerman whether she was prepared to leave or pay rent. It was admitted that Mr. Bannerman had left the house on the 24th July, 1889, and a duplicate of the notice served at the house for Mr. Bannerman was put in. Witness said when he called at the house soon after the notice was served, Mr. Bannerman was away on thegumfields. He told Mrs. Bannerman she would either have to arrange for paying rent, or that she must leave. She replied that they would do neither. He called a second time, and Mrs. Bannerman referred him to her solicitor. She gave no reason for refusing. He got that reply and nothing more. Since then he had seen Mr. Bannerman twice. The first occasion was just after this action commenced, and he claimed that the trustees under the will were bound to find him (Thomas Bannerman) work to pay the interest, and he said ho would not leave, he would fight it out. Witness explained to him that there was no work to bo done on the estate, but he insisted that'they were bound to find him work on their private estates. He saw him a fortnight after, and he intimated to witness that the case must go on. He would nob give up possession. In cross-examina-tion witness said that Mrs. Bannerman was sister of the deceased. Mr. Bannerman only occasionally visited the place. Wlliam Edmund Bennett, rate collector for the City Council, produced the rate book, showing that the property stood in the name of Thos. Bannerman, and the rates had been paid regularly. The defence was that Mrs. Bannerman was the occupant under the will. Mrs. Bannerman, sister of Captain Rattray (deceased), deEosed that her husband earned £14 a-month, ub she voluntarily lived on £4 a-raonth, to pay for the property. From the time her brother died she had been in occupation, and her husband was away at Awhitu. Prior to that he had been employed by her brother, bub he had not supported her during the last seven years. He occasionally came up to Auckland, working his passage in a cutter, for he had no money. Ber son, who was earning 7s 6d a-week, lived with her. lb was her money that paid the rates. At this stage Mr. Cooper asked that the case might be adjourned with a view to settlement, and Mr. Hesketh concurring, the Council retired. They returned in a-quarter of an hour, and Mr. Hesketh said the trustees had offered to Mrs. Bannerman the place at 4s a-week rent, and afber her husband's death she should have it renb free. She desired time to consider the proposal, and he would ask that the matter might be allowed to stand over. His Honor agreed to take the application on Monday morning at eleven o'clock.

R.M. COURT.— [Before Dr. Giles. R.M.] Undefended Cases.—ln the following undefended cases judgment was given for the plaintiffs:—William Caron v. S. J. Jackman, £40; W. R. Cook, as assignee of the book debts in the estate of W. G. Allen, v. E. A. Hastings, £5, costs 17s 6d ; E. and E. Christie v. E. Burton, £4 lis Id, costs 17s 6d ; W. R. Cook v. W. Payne, £4 lis 6d, costs 17s 6d ; B. Kemp v. H. L. Rosenberg, £5 6s, costs £1 ss; J. J. Craig v. J. Trimmer, £8 16s, costs £1 6s. Dr. Beale v. F. Brooks.—'Claim, £10 10s for medical attendance. Mr. Palmer Napier appeared for the plaintiff, and Mr. Napier for the defendant. Evidence was heard at considerable length, and His Worship gave judgment for the plaintiff, but only for an amount already paid into Court, £4 4s. Mr. Napier objected that the Bonch could nob give judgment for a sum paid into Court, and at his request, Dr. Giles book a note of the point. T. Barron v. H. Bradney.—Claim, £1, for wages alleged to be due for services rendered by the plaintiff whilst in the employ of the defendant. Mr. Williamson appeared for the plaintiff. After hearing the evidence of the two different parties, His Worship nonsuited the plaintiff, with costs. POLICE COURT.— (Beforu i>fessrs. F. G. Clayton and J. A. Connell. J.P.'s.] URUNK.ENNESS.—Seven persons were punshed for first offences. Maria Lysaghb, fvho had been previously convicted, was nned 20s and costs, with an alternative of 18 hours' imprisonment with hard labour. Larceny. Letitia Hughes, who admitted aaving been drunk, was also charged with ;he larceny of some small articles valued ab Is., the property of G. Woods. The prisoner pleaded guilty, and was sentenced to six months' imprisonment with hard labour. Charge of Theft.—Two boys, Charle<Wilson and William Fricke, were charged with having stolen a box containing a scarf pin and other articles, belonging to A. Macindoe. The case was remanded till Monday, bail being allowed in two sureties of £10 each. Alleged Wife Desertion.—A case in which John Campbell was charged with,, wife desertion, was remanded till Saturday, on the application of Mr. Strathern, the visiting officer for the Hospital and Charitable Aid Board. Charge of Riotous Behaviour.Agnes Austin was charged with riobous behaviour in a public place, Chapel-street. Mr. Tyldon appeared for the prisoner, who pleaded not guilty. Detective Hughes gave evidence as to the offence, and deposed that the prisoner led a life of infamy. The riotous behaviour took place in a private yard. Mr. Tylden objected, that a private yard could nob be called a public place. The Bench said they were sorry they musb dismiss the charge, as they considered the evidence hardly sufficient to convict bba accused. Alleged Objectionable Pictures.— Isaac Wittenberg was charged with having sold indecent pictures in a public place. Mr. F. Shortland appeared- for the defendant. Inspector Broham eaid this had been brought as a test case, in order that the opinion of tho Bench mighb bo gob as to whether the pictures could be called indecent or not. They all seemed bo bo photographs of statuary. William Hodge deposed to having bought a packet of the photographs, and handing it bo detective Hughes. The latter gave evidence as bo the arrest, of the accused. Both these witnesses considered that the pictures were indecent. The Bench examined a packet of the photographs, and, after retiring for a short time, Mr. Clayton said that after careful consideration the Bench felb.bhab bho charge mu3fc be dismissed.