SUPREME COURT.

New Zealand Mail, Issue 746, 18 June 1886, Page 9

SUPREME COURT.

IN BANKRUPTCY, Saturday, June 12. j (Before his Honor Mr Justice Richmond.) applications for discharge. Re William Wood, Bootmaker. There being no opposition, the discharge was granted. Re G-sorge H. Smith. Bankrupt had taken up a farm in Nelson without having any knowledge of the business, and had lost all his capital. His creditors had not proved, consequently there was no opposition. Discharge granted. Re J. H. Wallace and Co.—Mr Filzherbert appeared for the bankrupts, Mr Gully opposed on behalf of Mr Wakeford and seven other creditors, and Mr Skerrett also opposed on behalf of J. H. Pollock, who put in a preferential claim for salary due. Mr Gully submitted that bankrupts could not apply for their discharge until the preferential claim was settled. Mr Skerrett having explaimed that Mr Pollock’s claim was for wage?, Mr Fitzherbsrt said he was prepared to dispute this, otherwise the bankrupts would not have applied for their discharge just yet. _His Honor said it would be be3t to ascertain if the claim was a preferential one, because if it were he would be unable to deal with bankrupts’application. J. H. Pollock, being sworn,, said he was a stockman, and was employed by J. H. Wallace and Co. in the. capacity of overseer in connection with their live stock sales at the Hutt and other place?. He entered bankrupt’s service in July last, and was to receive £2 per week until things became prosperous ; but as he could only claim for three months under the Act, he now claimed for thirteen weeks, from September 7 to December 5, which, at £2 per week, would be £26. He had had a conversation with Mr B. Wallace, and his claim had never been disputed. Cross-examined by Mr Fitzherbert: Had filed a declaration of insolvency himself, and his discharge was ordered to issue within two months from the end of November last. [The Official Assignee expl lined that the discharge had been granted, but the fees had not been paid.] Witness remembered something being said about division of commission on stock sales, but his arrangement with Mr Bruce Wallace was that he was to receive £2 per week, and a boDus at the end of six months, [Mr Gully here stated that as it might turtber affect the application, he was prepared to urge another preferential claim on behalf of bankrupt’s late storeman. Mr Fitzbe -bert replied that he should have a great deal to say in reference to that creditor.] Crossex inclination continued : Received money every week for expenses in travelling about. Had not got his note-book with him, and therefore could not say what sum of money he had recsived from August to October. Might have received £4O 10s in all, but denied that any of these sums was for wages. They were for getting cattle, &c., over from Wanganui and other places, Received the money from Bruce \Yallace. To his Honor : Took a note of the sales to ascertain what commission he might get, but thought no more of it when the firm filed their declaration of insolvency. His Honor said that as the case was of some magnitude, and there were many other cases to c'-me up, he would give a special day to it, a 3 he did not not want to postpone i‘. indefinitely. His impression was, so far as the matter had developed itself, that the caSs was one of salary, but he was not then prepared to give an opinion. The application was therefore adjourned to Saturday nc-xt. Re William Hunter, cab-driver. —No opposition. Discharge gran 1 e 3. Re G. W. Ewart, John Hopwocd, Peter Hansen, and John Sim.—Toe hearing of these applications was adjourned uutil next sitting. PUBLIC EXAMINATIONS. Re Frederick J. Kuch, Pork Butcher.—Mr Thompson for bankrupt ; Mr Jellicoe for Mr Yo3seler, opposing creditor. The bankrupt being examined at length, stated that about the time he commenced business in November, 1882, he purchased a cart from Mr Vosseler,

and agreed to pay £22 for it. Told Vosseler that he wanted it for a hawking cart. Sold the cart the same day to' a man named Emery for £25, taking an 1.0. U., which had never been met. Sold the cart to “ encourage business.’’ Had arranged with Emery to sell him the cart before he himself bought it from Vosseler, but did not tell Vosseler of the arrangement. While in business as a pork butcher engaged his brother, who was to receive £1 per week. Paid him small sums from time to time, but owed to him the amount stated in his books. In the course of further examination it appeared that Vosseler had lent bankrupt several sums of monoy after be started business ; that Vosseler, beside losing the oart, had not received tdl the money back which he lent ; that bankrupt had incurred other liabilities for stock ; and that he had, in consequence of pressure, given to Mr Mitchell, farmer, of Porirua, a bill of sale over portion of his stock-in-trade tor £B6. Bankrupt knew he was in difficulties at the time, but believed he would be able to pull through as nobody else was pressing him. On the application of Mr Jellicoe the case was adjourned at this s age UDtil 21st inst, in order that a charge might be formalated against bankrupt. Re Richard E. Smith, builder —Mr Gully for bankrupt, Mr Jellicoe for Official Assignee and several creditors. The Official Assignee reported that this was the third titne°within twelve yeais that bankrupt had sought the protection of the Bankruptcy Court. Bankrupt was examined at considerable length. He found himself unable to meet his liabilities five months ago in consequence of los?e3 on contracts. He called a meeting of his principal creditors (Messrs Booth, Hutchins, Halley, and Compton, timber met- ’ chants ; and Dawson, ironmnnger). No other creditors were invited, and did not state at the meeting that he had other crecitors. Mr Hutchins pressed him, and in Jauuary last he signed a paper which he believed gave him six months longer to meet his liabilities. Was not told that it was a mortgage over property he owned in the Adelaide-road, and had no other idea than that it was a simple agreement that be waste receive tix mouths’ grace. Knew what a mortgage was, as be had executed one before—as a first mortgage over his property. He did not offer to give security to the creditors. Hutchins was appointed trustee with himself to look after the estate. Did not tell Mr Izard that he agreed to give a second mortgage over his property. Was sued in the Resident Magistrate’s Court by a iub coatractor. Had hot kept books and account?, as he thought the bank-book was suffi cient. Mr Jellicoe said he was prepared to take out a summons in the matter. His Honor said the bankrupt’s statements were not satisfactory, as he ought to have kept books. In faet, no person should become a contractor unless he kept accounts. He bad given this opinion often before, and would have something more to say when bankrupt applied for bis discharge. The bankruptcy was declared fiuished. BANKRUPTCIES CLOSED. I On the application of the Official Assignee, ’ the following bankruptcies were declared closed :—Jacob Gidall, John Stuart Reid, Robert Rising, and Reuben A. Ingram. Bankrupts to apply for discharge at next sitting. ADMISSION OF PROOF OF CLAIM. Boyd Thomson ex parte Alex. B. Thomson —This was an application by Boyd Thomson to have hia proof ot claim admitted, in order that he might participate in the estate of * is brother, A. B. Thomson, late a grocer in Wellington. Mr Jellicoe appeared on behalf J of applicant ; Mr W. T. L- Travers opposed on behalf of the Official Assignee. Mr Jellicoe submitted that various sums of money, amounting to L-195, had been advanced by Boyd Thomson, of Auckland, to his brother, to enable him to carry on business, Applicant had obtained judgment in the Supreme Court, and now asked that his claim, together with co3ts of the action, be admitted. Counsel submitted that although the claim had not been contested in the Supreme Court, the judgment there obtained wa3 prima facie evidence of the debt. Mr Travers contended that the transactions between the brothers, as shown by the manner in which cheques had been drawn, were such as to indicate some partnership arrangement or collusion between them. H:s Honor said there were suspicioue circumstances in the case. Boyd Thomson had not given a straightforward account as to the bank book, and the whole matter was overclouded with suspicion, but, as they were unable to countervail the evidence of the applicant, he must allow the proof for £195. Mr Jellicoe’s application for the costs incurred was refu?ed. Re Waring Taylor.—Mr Jellicoe asked that the proof of claim of Jonas Arundel be admitted in this estate. The Official Assignee explained that the application was made on his advice, to enable him to wind up the estate. Application granted. Re R. S. Waterhouse.—Mr Travers, on behalf of the Official Assignee, stated that a guE3EQQUB had been issued at the instance of a Home firm through Mr Stafford, calling upon the Official Assignee to pay out of his own pocket the amount of claims put forwarded against the above estate, which had been been closed. The Official Assignee said no proof had been tendered, and he had no knowledge of any goods being supplied to the bankrupt. He had written to the firm to supply a statement of accounts, but this had not been done. The firm was not now represented, and His Honor directed the to be struck out, granting £2 2s costs. counsel’s costs. Ou the application of the Official Aeaignee, special orders for costs were issued against the estates of James Sim, G. Ingles, J. J. lomitb, J. H. Wallace and Co., and A. A. Taylor. The Court was then adjourned to Saturday next. DIVORCE SITTINGS. Monday, June 14. (Before his Honor Mr Justice Richmond and a jury of twelve, of whom Mr A. N. Campbell was chosen foreman ) WRIGHT V. WRIGHT. This was a suit in which the petitioner Mary Jane Wright prayed for a judicial separation , from her husband, Henry Clarke Wright, on the ground of adultery, alleged to have been committed during the months of August, September, and October, 1885, with Mary Keely at Wellington. Mr Jellicoe appeared for petitioner, Mr Bell for respondeat. The charge of adultery was admitted by respoa-

dent, but a counter charge of adultery was brought against petitioner, said to have been committed at Newtown with one Frank Parkes. A deed of separation existing between the parties was urged as a bar to the preeent proceedings. Mr Bell called Mrs Riley, who deposed that she was the wife of Joseph Riley, landlord of the Post Office Hotel. In October last she came over from Melbourne In the same steamer as Mrs Wright. Witness stayed over at Dunedin and telegraphed to Wellington to Mrs Wright, who had gone on in the steamer, to procure rooms for her, Mrs Wright did so. taking rooms at the Newtown Hotel, kept by Mr S. Parkes, where she herself was stopping. Frank Parkes, son of the landlord, was staying at the hotel when witness was there, bat witness afterward left and went on to Napier. While Ftaying at the hotel Frank Parkes* bedroom was opposite witness’ bedroom, and Mrs Wright’s adjoined hers, on the left. Witness was often in Mrs Wright’a bedroom, and Mrs Wright freqently went into witnesss’. Saw Mrs Wright in F. Parkes’ room when he was ill. Saw her coming out. That was the only occasion ou which she saw Mr Wright in his room. . , At thi3 stage Mr Bell said that as the jury was only required to try that ispue, he' was willing that they should be discharged, as he did not wish to proceed further with it. The jury was then discharged by direction of his Honor. Mr Bell then applied for an adjournment for fourteen days, to enable him to call Mr Edwards, who was a material witness, and who was at present in Napier in connection with another case. Mr Jellicoe objected to an adjournment, and required that Mr Bell should file an affidavit that Mr Edwards was a material witness. After farther argument, during which Mr Bell strongly protested against being required to file an affidavit, Mr Jellicoe stated that respondent had written to petitioner’s brother to the effect that he would clear out if the case was proceeded with. Hia Honor said that introduced a fresh element into the case. He would adjourn the case until the next day at 10.30. Mr Bell could file his affidavit by 3 o’clock, and Mr Jellicoe could answer it if necessary by another affidavit filed at 10 the following morning (Tuesday). The case could then come before him at 10.30. The Court was then formally adjourned accordingly. Tuesday, June 15. (Before His Honor Mr Justice Richmond)* FARDON V. FARDON AND FLECTHER. This was a suit in whieh John Fardon, an employe at the Petone Railway Workshops, prayed for a dissolution of his marriage with Josephine Fardon, on the ground of adultery committed by his wife with the co-respondent, a railway guard at Feilding. Mr Filzherbertappeared for the petitioner ; Mr Gully for the co respondent. Mr Fitzherbert applied for an adjournment to enable him to procure two material female witnesses from Wanganui. Mr Gully opposed the application. fcThe witnesses ought to have known months ago when their presence was required. Mr Fitzherbert said the adultery occurred at Waitara, but the co-respondent lived at Fox ton. His Honor said the case ought to have been heard at Wanganui, which was the middle point between the two places. Mr Gully said be was instructed to push the case on. His Honor said if the case was adjourned petitioner must pay the costs of the day. What adjournment wai required? Mr Fitzherbert : This day fortnight. He desired the costs to be fixed as his client was a poor man. His Honor adjourned the hearing of the case until July 1, fixing the costs at £5 ss. WRIGHT V. WRIGHT. Mr Jellicoe said affidavits had been filed by couuael as had been agreed upon. Mr Bell said he had filed a statement that Mr Edwards, who was in Napier, was a material witness, but it had not carried the point a single step further. The affidavit was to the effect that Mr Edwards was not aware that the issue to the jury would fail. Mr Edwards’ business in Napier was of such a peculiar character that he waa unable to employ local counsel to appear for him. His Honor agreed that there were special grouuds for Mr Edwards’ attendance at Napier, but an affidavit had been required, and he had nothing to do with professional courtesy in such matters. Mr Bell hoped that he knew what was due to the Court aud to himself better thau to make a complaint as to hia Honor’s decision as to the affidavit. Mr Jellicoe submitted it was not impossible for Mr Edwards to give his evidence on affidavit. Having regard to the interests of the parties he represented, he thought no adjournment should be granted. He had stated yesterday that petitioner’s brother had received a letter stating that if the proceedings were persisted in respondent would clear out.

In answer to His Honor Mr Bell said a fortnight’s adjournment would be required. A shorter term might prove misleading, as there was a question of connivance to be settled before the case went on.

Mr Jellicoe asked that if the adjournment were granted it should only he on terms. He would remind the Court that the jury had decided against the respondent. There was no security as to cos<s. He undei'stood the costs would be about £35, Mi Belt asked if his Honor would force on the case if the money cou ( d not be got. Hia Honor said he was prepared to have the petitioner called and examined by Mr Bell as to the connivance. Respondent had made one allegation which had failed. Considering the position of the respondent, he ought to pay the £35 into Court to show his bona fides. After further argument, his Honor decided to grant an adjournment to the 24th instant, provided respondent paid into Court £35 by S o’eiock that day. Mr Jellicoe asked that the children should not be taken out of the jurisdiction of the Court, His Honor directed that the children should not be removed from Wellington. The Court was then adjourned till Thursday at 10 o’clock.

IN BANCO. Wednesday, June 16 (Before hi 3 Honor Mr JuFtice Richmond). BURROW V. WILLIS. This was an appeal from a decision of the Resident Magistrate and a Juetice of the Peace, sitting at Carterton. The appellants, Burrow and Beard, sued the respondent for £lB 15s for rent, or in the alternative, by an amendment made at the hearing, for use and occupation. On the 26th IMarch, 1885, an agreement was signed by Burrow and Willis, whereby Burrow agreed to lease to Willis for a term of five years, at a rental of £75. with a purchasing clame of £1300.. “All that piece or parcel of land, containing 109 acres (or thereabouts), situate White’s Line, Carterton, and bemg sections No. It was also agreed that Willis would at all times have sufficient stock on the property to cover any rent due. The agreement had been prepared by one Wood, as agent for both parties, Barrow and Willis, who were the only parties to the transaction at that time. On the 3rd April, Willis entered into possession of certain lands pointed out by Burrow as the land leased. Messrs Beard and Gray being applied to to prepare a lease, informed • Wiliis that the land belonged to Beard, and not to Burrow, -who was not in a position to execute a lease. Beard claimed tbe rent, and warned W[illis not to pay it to Burrow. Willis then gave up possession of the land, aud the action was brought. The Resident Magistrate held that the agreement was void for ambiguity, in not sufficiently describing the land, and that the juo tertii set up by Beard prevented the Court, in default of evidence, from recoguis ng the title of the plaintiffs. Mr Bell for the appellants : Beard never refused to complete the agreement ; be onlv warned WUlte not to pay Burrow till matters were arranged between them. There was an equity in Burrow, and it was not competent to Willis to deny his title. Even if the plaintiffs cannot claim rent, they can claim for rent and occupation. Hanrner v. Blight (24 W.R. 34 *). The case most like the present is Hickman v. Machin (4 H. and N. 716)- Suppose Willis bad occupied for two years before receiving Beard’d notice : could he still lefuse to pay anything ? Even in case of eviction by title, paramount occupation must be paid for. Morton v. Woods (L.R., 4 QB. 293). The tenant could not say his landlord had no title till eviction by title paramount. The landlord had tbe same rights under this agreement as under a lease. V7alsh v, Lonsdale (21 Uh., Div. 9). (Mr Justice Richmond : I cannot allow any proposition so extensive. As between the parties the rights may be the same, but not as regards third parties. The question of law and equity does not merge legal and equitable rights.) The words of the Master of the Rolls are very wide. (Mr Justice Richmond : Yes, they are too wide. The opinion of even the most eminent Judges, mmt be taken secundum subjectum materiam.) Morris v Montague (N.Z.L.R., 2 S.C.) There Ib an estoppel by the agreement, followed by possession. The agreement bad some effect, and would formerly have amounted to a tenancy from year to year. Burrow bad a right by estoppel, as tbe person who gave possession of the lands to Willis, and if there is no estoppel he can claim for use and occupation. There can be no jus tertii in the setting up such a claim. (Mr Justice Richmond : No, that cannot . be supported. (Rennie v Robineon (l Bine., 147) ; Selby v Brown (7 Q 8., 620). Tfc is not nece3?ary there should, be a written contract to support the c’aim for occupation. Mr Travers for the respondent : The plaintiffs cannot recover. Where. an agreement goes off through a defect of tilde, tbe landlord cannot claim even for use and occupation. Winterbottom v Ingham ; Rumbell v Wright (1 C. and P., 589) ; Hearn v Tomlin (Peake, 253). The occupation was not beneficial. There was no privity between Willis and Beard, and possession was abandoned as soon as it Was found Burrow could not give a title. Marquis of Camden v Batilebury (5 C. 8., N.S., 888). It i 3 not a case of estoppel. If three months had expired and Beard bad not questioned the title, Willis conld not have denied Burrow’s title. As Willis promptly gave up possession, he cannot be charged for the occupation. Mr Bell in reply. Mr Justice Richmond : It appears to me that this case may be decided upon simple principles without entering upon some of the very difficult grounds which have been opened by Mr Bell’s argument, to which I have attentively listened. In this case the Magistrate has found that Wood was the agent for both parties. As agent for Burrow I find him distinctly confessing in his letter of the 16th May that Burrow had no power to lease the farm at Tauherenikau. That appears to me to take the case quite out of the authority of tbe cases upon estoppel. Here we have the agent of the landlord confessing that bis principal, Barrow, had no power to lease. On that, is appears to me, it was open undoubtedly to the defendant to repudiate the agreement. Mr Beard, from whom the actual title seems to have beeD, by his letter of the 12th May, does not by any means intimate that he was prepared to confirm Barrow’s agreement, even if it was open to him. to do so. He leaves it quite uncertain what course he proposed to take or what terms he would be prepared to give, but leaves them for future discusßian. Beard and Gray Bay, “ Mr , Burrow has not yet done anything in the matter, and we have, therefore, written to him to do so by the 26th instant, as otherwise Mr Beard will have to protect his Interests and taka the land.” That certainly means nothing more nor less than that he intends to assume possession. He goes on to say ]Mr Beard will be prepared to come to any reasonable terms with you for you to keep tbe land,’ still leavmg the matter entirely open as to what those terms would be. Under these circumstances I have not a particle of doubt that it was open to Willis to repudiate the agreement, the other party being confessedly unable to fulfil the agreement, aud Beard not offering to adopt it, even if he had a right to Jo so. Then some further correspondence takes place, and there is a letter of May 2l in the same uncertain terms, in which Beard says—“ Hatters will be arranged between Mr Burrow and myself, bo that youc tenancy will jnot be interfered with.” But that again falls ysry short of an adoption by Beard of Burrow’s contract. But it. was not open, to him to do so. Willis repudiated, and, having repudiated, I think the case falls within the authority of the case of Winterbottom v. , Inobam. No doubt it was a leasehold interest io°thi£ case, but that make? co difference.

He went in expecting to have a lease for five years, together with a purchasing clause, for £ISOO. ‘Within a few weeks of entering he is told tbii agreement cannot be carried into sfftci, the landlord having no title. I think it would be unjust to imply against him any contract to pay for that short and probably unprofitable occupation for a few weeks. The law fixes no liability, and the law ia. that respect is enfrely equitable. To my mind it is plain that there is not aright in Burrow, who himself, through his agent, has disaffirmed his title to claim on the footing of use and occupation ; neither can I imply a contract in favor of Mr Beard which entitles him to recover. I must give the costs of this appeal. The Magistrate gives no costs billow. I shall not interfere with the judgment on that question. But the respondent is entitled to the costs of the appeal, which mast be fixed at £lO 103. BURT V ROSS. This was a motion to set aside the judgment in this action, which was entered for the plaintiff, and to enter judgment for the defendant, pursuant to leave reserved at the trial, on the ground that the facts proved and found afc the trial entitle the defendant to. judgment, or in the alternative for a new trial, on the grounds that the fiuilings of the jury are defi-ctive and are against tbe weight of evideuce. The issues and the findings were—1. Did the defendant, by her agentp, use any violence to the plaintiff, E. A. Burt ? Yes. 2 Did the defendant, by her agents, assault the plaintiff, A. Burt? Yes. 3. Did the defendant, by her agents, in expelling the plaintiff use any unnecessary violence ? No, no violence was used beyond what was necessary to obtain possession. Damages for the assault were a33ees-d at £5, and for the damage for furniture £5. Mr Travers for the defendant. The re-entry vested the pos r ession in the defendant, and from that lime tbe plaintiffs were trespassers, and the defendant had a right to use any force necessary to eject them. Davidson v Wilson, 11 Q. 8., 890 ; Newton v Ilar’and, 1 M. & Gr. 644 ; Cole on Ejectment, 71. Mr Jellicoe for the plaintiffs ; The entry was not complete on the 2nd ; it was only complete on the 4th. Assuming the defendant had a right of re entry, she had no right to re-enter in such a manner as to amount to a breach of the peace. Beg. v Spencer, 1 Jui\, N.S., C.A. 24. The defendant’s entry was unlawful by 5 Ric. 11., cap. 8 ; Rewuon v Harland (übi sup) ; Hilary v Gay, 6 C. &P„ 284 ; Beddall v Maitland, 18 Ch. Div. 174 ; Harvey v Bridges, 14 M. & W. 437 ; Eduick v.Hawkes, 18 Ch. Div. 199. But the defendant had no right of entry. She could not justify by her lease alone to which she was a party, but had to rely on the assignment of the other lessors to her. Notice of the assignment was not given to the plaintiff before the right of entry accrued, and the. defendant could not therefore re-enter. Muliory’s Cas., 5 Rep. ; Francis’ case, 8 Rep. ; Scaltoek v Harston, 1 C.P.D. 106, and no demand was made for payment of the rent. Samuel v Dunn, 1 N.Z. Jur , N.S. 136. Mr Travers in reply ; Woodfall on" Landlord and Tenant, 293 ; Hotley v Scott, Lofft 319 ; Barney v. Adams, 2 Cr. & J. 232 ; Barker v Goldsmith, 2 Or. &J. 674. Judgment was reserved.