Law Intelligence.

New Zealand Mail, Issue 245, 20 May 1876, Page 20

Law Intelligence.

COURT OF APPEAL. Eriday, May 12. (Before their Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Gillies, and Mr. Justice Williams.) The Coui't sat at 11 a.m. TIIRELKELD V. BLACKETT. Dr. Foster intimated that he did not intend to go further with the argument than he had gone on the previous day. Mr. Joynt, contra, cited 7 De Gex., 545; 27 L. J. Excb., 859; North London Bailway Company v. Metrop. Board Works, 1 Johnston, 412; Abraham and Another v. Great Northern Railway Company, 20 L. J. Q. 8., 332; Hammersmith Railway Company v. Brand, 4 L. J. H. L. Cases, 471. Mr. Chapman also submitted the demurrer was bad, citing Stainton v Woolridge, 26 L. J., ch. 300. Mr. Garrick replied, quoting, in addition to cases previously mentioned, Eerren v. Corporation Bradford, 21 Beaven, 412. The Court then adjourned till Tuesday. Tuesday-, May 16. WILSON (APPELLANT) CANTERBURY WASTE LANDS BOARD (RESPONDENTS). This was a special case, being an appeal from a decision of the Waste Lands Board, in reference to an application of Sir John Cracroft Wilson, of Cashmere, Canterbury, to purchase forty-three acres of land in the Ashburton district. An application of another person named Bartholomew Martin clashed with that of appellant, and the Board decided that in accordance with the land regulations of the province they could not grant the application of the latter. Mr. Harper and Mr. Bell appeared for appellant, and Mr. Garrick and Mr. Foster for respondent. The question turned upon the construction of the regulations, and, after argument, the Court took time to consider its judgment. Wednesday, May 17. in re hocken. This was a motion on appeal from the Supreme Court, Otago District, by Mr. Barton (with him Mr. Chapman), to quash an inquisition found by a coroner’s jury under the direction of Hocken. The Court, without calling upon Mr. Allan, who appeared for Dr. Hocken, instructed by the Crown, decided that it had not jurisdiction, and dismissed the appeal, without costs, on the ground that the objection to jurisdiction should have been taken in the court below. The Court then adjourned. SUPREME COURT—IN BANCO. Saturday, May 13. (Before his Honor the Chief Justice and Mr. Justice Gillies.) TYRELL V. SAMSON. Mr. Barnicoat applied on behalf of the defendant for a rule nisi for a new trial, on the ground that certain evidence had at the trial of the action been improperly admitted. ' The action was one of ejectment, brought by the plaintiff to recover from the defendant the possession of a piece of land in Nelson, and was lately tr ied at Nelson before his Honor Judge Gillies, when a verdict was found for the plaintiff. At the trial it became necessary for the plaintiff, in order to establish his claim, to prove that he was the eldest legitimate son of one Harriett Ann Hughes. Mr. Barnicoat contended that the following documents, tendered by plaintiff to prove his legitimacy, were improperly admitted in evidence :—l. A statutory declaration (under 5 and 6 W. 4, C. 62) made by a person resident in England, stating the facts of the marriage of plaintiff’s father with Mrs. Hughes, the birth of the plaintiff, and other matters. 2. A deed of conveyance of the land from which it was sought to eject defendant, from one Henry Hughes to the defendant, in which it was recited that the plaintiff was heir-at-law of Harriett Ann Hughes. The deed was not signed by defendant. It was argued that the declaration was inadmissable, on the ground that the statute 5 and 6 W. 4, G. 62, only applies where one of the parties to the action resides in Great Britain, and that the deed was inadmissable as being irrelevant and res inter alios acta. The Court, without deciding positively as to the admissability of the deed and declaration, refused the rule, on the ground that at the trial other evidence was adduced sufficient to satisfy the jury that the plaintiff was entitled to the land claimed. SUPREME COURT.—MATRIMONIAL JURISDICTION. Monday, 15th May. (Before their Honors the Chief Justice, JVlr. Justice Johnston, Mr. Justice Gillies, and Mr. Justice Williams.) BLAIR (PETITIONER), BLAIR (RESPONDENT). A rule nisi was granted in this cause, which came from Dunedin at a previous sitting of the Court. On the motion of Mr. Shaw, there being no opposition, the rule was made absolute. KNOWLES V. KNOWLES. Rule absolute for dissolution of marriage granted on application of Mr. Bell. A further

application, that the Court would declare the petitioner to be custodian of one of the children of the marriage, was postponed till Friday. THOMAS (PETITIONER), THOMAS (RESPONDENT), HAYES (CO-RESPONDENT). This case was before the Court on a previous occasion, when it was postponed owing to an omission of a date in the evidence tendered upon which dissolution of the marriage was asked for. The evidence had been taken by a Mr. Brown, who appointed a commission for that purpose, and during the interval between last Court and this he had taken further evidence. Inconsistencies were apparent in the evidence, and the Court seemed to view the case as one in which there had been connivance, and the matter was therefore adjourned, in order to allow counsel for petitioner (Mr. Bell) time to prepare argument on this phase of the case, and to cite authority on the subject of connivance. During the hearing the Chief Justice expressed a strong opinion that there should be such an amendment in the law as would enable the Judge in the district within which a case arose to try the question of fact, insteac of the present course of taking evidence by commission, especially seeing that it mainly rested with the parties themselves to say who should form such commission. SMITH (PETITIONER), SMITH (RESPONDENT), KING (CO-RESPONDENT). Mr. Travers for petitioner. Mr. Allan watched the case for the co-respondent. Petitioner is a Chinaman. Proof of the marriage of the parties at Wanganui about the end of April, 1875, was adduced, and it seemed that the wife left her husband so soon as the 6th of the following April. Adultery with the co-respondent was also proved. Decree nisi granted. GRANT (PETITIONER), GRANT (RESPONDENT), CROWLEY (CO-RESPONDENT). This was a similar case. The wife a few days after her marriage proved to be a very bad character. Rule nisi granted. The Court then adjourned till Friday. COURT OF APPEAL. Thursday, May 18. (Before the Chief Justice, Mr. Justice Johnston, Mr. Justice Gillies, and IMr. Justice Williams.) CREYKE V. DRANSPIELD. This was an appeal against the decision of the Supreme Court, refusing to grant a rule for a new trial. Creyke is a landowner, and is at present out of the colony, and Dransfield is a merchant of Lyttelton. Creyke was in 1864 the lessee of a certain section of land at Lyttelton, which was divided into sub-allotments with substantial buildings thereon, the greater number of which were warehouses or shops with dwelling-houses annexed, and Dransfield was tenant of one of these allotments. In November Messrs. Luck and Clark, agents for Creyke, received instructions from him to offer Dransfield an over-lease of the whole properties, and in his instructions to his agents Creyke referred to the rents then being paid for the whole of the various sections, and directed his agents to write to Dransfield to say “ Mr. Creyke receives now from his tenants £402 [yearly]. He will grant you an over-lease for 21 years from December, 1864, you paying £IOO per annum for first years, and after that, on the expiration of present lessees’ term, the sum of £500.” To this there was a note. —“ Lease from Creyke, say eleven years, from 31st December, 1863. The offer was made, and an interview between Dransfield and Luck followed. What passed at this no one appeared to remember, but subsequently the following letter was sent : Christchurch, December 2, 1864. Joseph Dransfield, Esq. . . , Dear Sir,— By your note it is quite plain that you have wholly misunderstood the business on which our Mr. Luck had a conversation with you yesterday. In order to make it quite clear to you, we enclose a plan of the property with the several lettages marked thereon, with the rents to the end of the present leases marked to each, the annual income being to us £402. At the end of ten years all the buildings will come to us, and pass at the same time to the freeholder. Now, we have been offered an extension of lease or rather anew one for twenty-one years, at an advanced rent. This we shall refuse unless we can make something by it, and have therefore offered to the tenants the terms as first sent to you as one of them. These terms they have refused, and we now offer you as an individual, apart from any interest you may have in the present lease, to give you an over-lease of the whole for £IOO per annum for ten years (at which time the present leases expire), and after that for eleven years more at £SOO per annum. You will please to understand that we cannot divide the property, and unless you or some one else choose to take it as a whole, we shall decline the offer made to us by the freeholders. You will be as able as ourselves to calculate what it is likely the property will be worth to you after ten years Of course you will gain nothing until that time and the difference of rental of the buildings on the land for the second period of eleven years, and £SOO the rent we require, is the profit to yourself. It would be better, if you think anything more of the subject, for you to come over and see us, but as you are now in possession of all particulars, .you may perhaps write us your answer, which we will thank you to give by Tuesday next, as we have to accept or decline the offer to us.—We are, &c., Luck and Clark. The only difference between our present offer and the first is that this is by far more advantageous to your side, as we are preferring to deal with you only. An arrangement was entered into by which Dransfield took the lease for eleven years, commencing from 31st December, 1874, at a yearly rent of £3BO, £9O a year to be paid by Dransfield to Creyke, from 1864 to 1874, as an annual premium for granting the lease. At the time of the agreement Dransfield believed, on the authority of the letter from Luck and Clark, that the various tenants were bound by lease, and continued in that belief until 1870, when a fire occurred in Lyttelton, owing to which all the buildings were burnt down. It then turned out that there were—-except in one or two instances —no leases. Five of the leases had been prepared ; but on December 15,1864, only three were signed, although Creyke had, before he left for England in 1863, told his ao-ent to get the leases all complete. . Consequently the buildings were not rebuilt, and Dransfield repudiated the contract on the ground of misrepresentation, declined to pay

any more rent, and applied for repayment of the rents he had paid. This was refused ; but Creylce’s solicitor offered to expend £BOO received as insurance. The case went to trial, Creyke suing Dransfield for rent due, at which trial a large number of deeds and documents bearing on the transaction were put in, and evidence given by Crevice’s agents on one side, and Dransrielct on the other.° The question for the jury was whether the belief that there had been leases was the inducement which caused the defendant to enter into the contract. A verdict was given in favor of Dransfield, the following issues amongst others being found: “ 4. Did the plaintiff upon the treaty between the plaintiff and the defendant for the lease set out in the said first paragraph of the declaration falsely and fraudulently represent and state to the defendant that the premises comprised in the said lease Avere then held by several persons under leases executed to them by the plaintiff for the term of eleven years from the 31st day of December, 1863, and subject to the payment by such persons to the plaintiff during such terms of rents amounting in the whole to more than the sum of £4OO by the year, and to the performance of certain covenants in such leases expressed and implied ?—Yes. 5. Were the said representations and statements false to the knowledge of the plaintiff ? —Yes. 6. Did the plaintiff then make to the defendant the said false and fraudulent statements for the purpose of inducing the defendant to accept and take from the plaintiff the said lease of the said premises as set out in the said first paragraph of the declaration, and to enter into the covenant contained in the said lease foi the payment of the yearly sum of £9O up to and until the commencement of the term thereby "ranted ? Yes. 7. Was the defendant induced by the said false and fraudulent representations and statements to accept and take the said lease and to enter into the said covenant therein contained for the payment of the said yearly sum of£9o up to and until the commencement of the said term thereby granted ?—Yes. An application Avas made to the Supreme Court on behalf of Creyke for a neAV trial, but the Judge refused the rule, and the case Avas carried to the Court of Appeal, and IVIr. Haiper obtained the rule nisi. Mr. Joynt noAV shoAved cause why the rule should not be made absolute. The learned counsel Avent into the evidence and the exhibits at great length, contending that the Court should not disturb the verdict of the jury unless it Avas perfectly manifest that there had been a failure of justice ; that the evidence adduced shoAved that there had been falsehood and fraud in the representations made by Creyke to Dransfield in reference to the leases ; that the alleged false representations Avere made by Creyke Avith full knoAvledge that they Avere untrue ; that the alleged false and fraudulent representations were of a character calculated to induce Dransfield to enter into the contract he did ; that in fact they were the only representations Avhich could have influenced him, and in truth did induce him to enter into the arrangement ; that—upon the authority of Pigott v. Strattan, Johnston’s Rep., 341; Kennedy v. Steam Company, L. R., 2 Q. B.; Royal British Bank v. Nicholls, 3 De Gex and Jones, 439; Flint v. Wooden, 9 Hare, 618 ; Reynolds v. Spry, 1 De Gex, McNaughten, and Gordon, 660; New BrunsAvick and Canada Railway Company A r . Mugridge, 1 Drewry and Smale, 381 the person making the false representations could not set up the negligence of the other party in failing to ascertain the truth of the representations made, and that it rested entirely upon the party making the false representations to show that such representations had not been the inducement which caused the other party to enter into the agreement. The Court then adjourned till 11.5 a.m. next day. RESIDENT MAGISTRATE’S COURT. Thursday, May 18. (Before J. C. CraAvford, Esq., R.M.) A drunkard was fined 55., or 24 hours’ imprisonment. vagrancy. Cornelius Urell Avas charged Avith being a vagrant. Sergeant Mionaghan said that prisoner came to the Court about a Aveek ago, and stated that he Avas very badly off ; Mr. Crawford gave him 3s. He Avas afterAvards seen in a hotel drinking. He Avas found sitting on the step 3 of the fountain all day, and had to be taken into custody. Sent to gaol for seven days, with hard labor. LARCENY. Carl Iversen and Anni Iversen, tAVO Norwegians, were charged rvith taking from the shop of Mr. George Coleston Sage a quantity of merchandise, valued at £B. Prisoners pleaded not guilty. Neither of them could speak the English language. George Coleston Sage, SAVorn, stated : I am a draper living in Tory-street. I knoAV the prisoners. I engaged the female prisoner about six week ago as a needleAvoman, aied the man about a fortnight afterwards as a laborer. I paid both of them £1 a xveek. I discharged the female prisoner on the 19th April, because she took some of my property. I had on a former occasion accused the Avoman of taking some goods from the shop. She admitted the offence, and returned the stolen articles. The male prisoner left on the 6th May of his OAvn accord. From information received yesterday, I went to the house of the prisoners Avith Detective Farrell. There Avas no one in the house Avhen I Avent in. In a box in one of the rooms we found a quantity of boots, shoes, calico, bunting, scarfs, and pocket-knives (produced), Avhich I recognised as my property. The female prisoner Avorked in the room Avhere the goods Avere kept. Detective Farrell deposed : I Avent to the house of the prisoners along Avith a Avoman named Karin Olssen to search for a belt and a gold broach. I found a quantity of boots, &c., in tAvo boxes. Made enquiries Avliere the prisoner’s had been employed, and from information received, Avent to the shop of Mr. Sage,

and asked him to accompany me to the house of the prisoners, Avhere I showed him the articles I had found. He recognised them as his. I then arrested the prisoners. Carl Iveson, one of the prisoners, said that he kneAv nothing of the charge. It AA'as his Avife that took the goods. Anni Iverson said that most of the goods produced Avei’e hers. She had bought them from Mr. Sage. Prisoners Avere committed for trial at the next sitting of the Supreme Court. The same prisoner’s Avere then charged Avith stealing a gold brooch and a belt, the property of Karin Olssen. The missing articles had been found in the prisoners’ house by Detective Farrell, and proof of the Avoman’s guilt being clearly proved, she Avas sentenced to six months’ imprisonment, Avith hard labor. There being no evidence against the husband, he Avas discharged. PROVOKING A BREACH OP THE PEACE. Robert Bradly and Jane Bradly Avere charged AAuth using threatening language toAvards Thomas Minogue calculated to provoke a breach of the jieace. Mr. Buckley appeared for plaintiff ; Mr. Cheeseman for defendants. Thomas Minogue said that Avhile engaged on his farm Bradly came up to him and Avanted him to fight. Witness said that he Avas no fighting man. Bradly then said that “he Avould do something before he left the place that Avould be recorded in history after his death.” Mrs. Bradly also used bad names. She even Avent so far as to call him a coav, and threw a stone over the fence at him. Several other persons xvho were in the paddock at the time corroborated previous Avitness’s evidence. James Farrelly stated that on Monday when riding along the road he met Bradly, Avho said that “he had heal’d that Minogue had been telling all the people about the neighborhood that he (Bradly) had threatened to burn doAvn his property. He (Minogue) should take care that the threat Avas not carried out before morning.” Witness then informed all the neighbors Avliat Bradly had said to him. He afterAvards met Bradly, who said “ that Minogue was rich and he Avas poor, but a penn orth of matches Avould make Minogue as poor as himself.” All Minogues’s crops Avere stacked up near Bradly’s house, and the neighbors had to stop up Avatching them for tivo or three nights afraid Bradly would carry out his threat. The crops Avere valued at about £BOO. His Worship bound Robert Bradly over to keep the peace for six months, in the sum of £2O and two sureties of £lO, and Jane Bradly for six months, in the sum of £lO. Defendants to pay costs. Another charge against Robert Bradly for assaulting Mr. James Farrelly Avas dismissed Avith costs. WILFUL DAMAGE. George Payne, charged Avith breaking three AvindoAvs in the house of S. Brown, Avas sent to gaol for one month.