LAW AND POLICE.

New Zealand Herald, Volume XXXVIII, Issue 11841, 19 December 1901, Page 3

LAW AND POLICE.

SUPREME COURT.— Wednesday. His Honor Me. Justice Coolly held a filling in banco yesterday forenoon. Harley v. Waihi Cold Mining Company, Limited: A motion for new trial herein was dismissed with costs £2 2s.

A S-harebroking Case: His Honor gave a lengthy judgment in the case of Brimblecombe" (appellant) v. Board (respondent). This was an appeal from a judgment of the Stipendiary Magistrate at Auckland, in an action by the appellant against the respondent to recover the respective amounts of 'i cheque for £10. drawn by the respondent on October 16. 1597. and interest thereon, and of a promissory note for £100. made by the respondent in favour of the appellant on September 8. 1597, and due on December 11. 1597. The judgment in the lower Court was for the respondent, on the ground that there was no consideration for the said cheque and promissory note. The transaction was that on September 3, 1297. the respondent purchased from the defendant 1000 shares in the Talisman Extended Company for £125, and the respondent, according to his own evidence, paid £25 in cash, and gave his promissory note for £100. The note was endorsed, '• 1000 Talisman Ex." The appellant stated that it was a time transaction, in that the respondent had a right to (-all at any time for the shares, plus any dividend and minus any call, during the currency of the promissory note, at the same time retiring it. The promissory note and cheque were both dishonoured. No application for payment, except by presentation at the bank, was made prior to the action in the. Magistrate's Court, which was commerced on October 18 of the present year. On the other hand, the respondent never mace any tender of the amount of the promissory note .and cheque, and took no steps to obtain the shares. He stated that he never applied for a transfer, knowing that i." was useless. Calls were made on the shares and paid by the appellant, and the respondent billet!'for them. In 1899 the Talisman Extended Company was absorbed by the Talisman Company, and a small dividend on the transaction received by the appellant. His Honor said it would appear to have been held in the lower Court that the consideration for the promissory note had failed, because the appellant could not now deliver the shares, and therefore that the position was the same as if it had originally been given without consideration. It was clear that if the appellant could have sued before '1 he Talisman Extended Company was absorbed in the Talisman Company, ami he could sue now. since the absorption was no act of his, and to hold that the respondent coukl avail himself of the fact that the appellant has held the bill so long without suing upon it. would be to take advantage of his own wrong in not paying it at the due date. The respondent had not claimed to receive back his deposit, which, if the defence which ho has now set up could be sustained, he might have equally claimed. If he had done so, lie would have been precisely within the terms of Soper v. Arnold. 35, CD., 384. After reviewing cases at length that had been cited by counsel. His Hcnor said that in the judgment in the lower Court an error, in his opinion, had been made in stating that it was consistent with the facts to hold that the respondent had an option to take the shares and pay the price or not, and that the right to get a transfer only extended to the time while the promissory note was maturing, and this error pervaded the whole judgment. In his opinion it was sufficiently disproved by the fact that the respondent never claimed a return oi- cancellation, of the promissory nolo. This was the defence principally relied upon in the Supreme Court, and it was attempted to support it by the very meagre evidence taken in the Court below. It was argued that, since the appellant there stated that the respondent had the right to call at any time for the shares, plus any dividend, etc., during the currency of the promissory note, at the same time retiring it, that lie must also be held to have admitted that that right ceased to exist immediately upon the maturity of the note. There was no question but that while parties cannot give evidence to vary a written agreement they may show that there was no agreement at all, and it was open to the defendant to assert that the promissory note, though duly made and stamped, was not intended to be a promissory .note in fact, nor evidence of agreement, but that it not only could not be sued on during its currency, but could not be sued on after it had matured; in fact, from first to last it was of no value to anybody. There was, however, no evidence to support such a proposition. Counsel for the respondent had not availed himself of the offer to have i the whole case reheard, and the evidence had 1 to be taken as it stood. He had no hesita- | tion in deciding that there was none of such option as was suggested, and which appeared to be a mere after thought founded on the obiter dictum of the magistrate. There wasreally nothing in a further objection raised, in the Supreme Court on behalf of the respondent, that this was not the right form of action, and that the appellant should have sold the shares and sued the respondent upon the loss of price (if any). The appeal was allowed, with costs £10 10s, judgment to he i entered for plaintiff in the Magistrate's Court for the amount claimed, with costs. 3joave to appeal to the Court of Appeal was granted. Mr. Cotter appeared for the appellant, and Mr. E. W. Burton for the spondent;.

POLICE COURT NEWS. . Mr. Thomas Hutchison, S.M., disposed of the business at yesterday's sitting of the Police Court. Drunkenness: For inebrity two first offenders were convicted and fined ss. Struck Out: A charge against James Webb, for wilfully breaking a pane of glass, valued at £16, the property of Wm, Brai-.eley, was struck out, Sergeant Hendry, who prosecuted, stating that he worn! offer no evidence on the charge. Dismissed: A 13-year-old lad named Geo. .McGregor was charged that he did, on the 28th nit., assault Wm. Turner. The statements of the boys showed that the alleged assault originated out of a quarrel between themselves, in which the boys were stated to have struck one another blows with their fists, and eventually bringing stones into requisition. His Worship dismissed the case. Assault: A boy of some 15 years of age, named Alex. Archibald, was charged with assaulting a schoolgirl. The lad pleaded guilty. Evidence of the girl was to the effect that on Saturday morning, the 7th inst., while she was going through the alley-way leading from Symonds-streeb tt> the Cemetery Bridge, accused, who was following in the rear, caught hold of her round the waist. Owing, presumably to a pedestrian coming; in view, accused released his hold of her and decamped. His Worship said that it was a. very serious offence to catch hold of a timid young girl without warning, as accused had done in this instance, and he said such assaults must be put down. But, as accused previously possessed a, good character, he would deal with him summarily, inflicting a fine of 40s, with the option of going to prison for two weeks. Building By-laws: On the information of the building inspector, Henry Phillips was charged that he, being the owner of a building in Swanson-street, did reside in such building without having obtained a certificate from the inspector of buildings showing that the premises were provided with proper and sufficient fire escapes. Counsel for the prosecution, Mr. Gregory, explained to the Bench that the ease had been deferred for a month to give defendant an opportunity to cany out the inspector's instructions. As defendant was now carrying out the inspector's requirements he would apply for a nominal penalty. A fine of Is was imposed.