THE COURTS.

New Zealand Mail, Issue 852, 29 June 1888, Page 22

THE COURTS.

SUPREME COURT.

Monday, June 25. (Before the Chief Justice.) BENNETT AND OTHERS V. BUNNY. This was an action to recover the sum of LSOO, being the amount of. an insurance policy, brought by Thomas Bennett, captain of the Carterton Rifles, on behalf of himself and other trustees of the corps, against A. R. Bunny, solicitor, of Masterton. The statement of claim set forth that on the 20th August, 1887, the defendant was engaged to complete the purchase of the Town Hall at Carterton for the plaintiffs, and to insure the building on their behalf for the sum of LSOO. The purchase was completed and the defendant insured the building for LSOO in his own name and not in the name of the trustees, as directed. The building was burned down in Februsry last, and subsequently the defendant proved the loss, and recovered the sum of L 465 in full settlement from the New Zealand Insurance Company. The defendant, in his pleadings, stated that the purchase of the building was transacted on September 22 last by two cheques, one of L 122 10s, given by the trustees, and the other of L 282 10s, given as an advance to the trustees by Mr E. J. Riddiford, of the Lower Hutt. Before the purchase was completed, however, Mr Riddiford objected to his cheque being cashed, and the defendant, in order to settle the difficulty, gave a cheque of his own to Riddiford, and in consequence he claimed a lien upon the policy moneys in respect thereto. ... Mr Jellicoe appeared for plaintiffs, and Messrs Gully and C. Bunny for defendant. Mr Jellicoe moved that the defence'and a counter claim of L 290 should be struck out, as they were irregular, and he intimated that-the defending counsel did not intend to argue the matter. He further stated that the defendants were prepared to agree to a judgment for £465 and cost 3 according to scale. . .; Mr Gully consented to this, and his Honor entered up judgment for the sum mentioned.

Mr Gully then moved that execution should be stayed as to the sum of L3OO, pending an action which the defendant intends to bring against the trustees with regard to the counter claim. Mr Jellicoe said he would offer no objection, providing the sum of L3OO was deposited in the joint names of Mr Gully and himself.

An order staying execution was made by his Honor, and he also ordered that the sum of L3OO should be deposited by Messrs Gully and Jellicoe. BROUGHTON V. DONNELLY. This was an action brought by William Muhunga Broughton, sheepfarmer, of Omahu, Hawkes Bay district, who claimed judgment for the issue of probate of the will of the late Native chief Renata Kawepo, who died at Hastings in April last. The plaintiff alleged that the late chief duly made his last will and testament on the 12th January, 1887, appointing him as sole executor thereof.. The said will was signed and witnessed by Robert Vickerman (bank manager), J. H. Spencer (Native interpreter), John Gemmell, Arthur Pickering (clerk of the- Resident Magistrate’s Court at Hastings), and Thomas Bishop (stock agent). The defendants, Airini Donnelly, . wife of George Prior Donnelly, of Omahu, and a number of her relatives alleged that the

will drawn up on the 12th January was not properly translated and explained to Renata Kawepo, or that he understood the meaning and effect thereof ; that the said will was not the last will and testament of Renata Kawepo, but had been revoked by a subsequent testamentary disposition that on the 12th April Renata Kawepo, being then of sound mind, made and executed his last will, in which he bequeathed the whole of his property to the defendant and her relations ; that the said will was witnessed by Te Teira Fraldtai, and Te Roera Tareliar The defendants put in a counter-claim that letters of administration of the estate and effects of the said Renata Kawepo with the will of the 12th April should be granted to her. In reply to this counter-claim, the plaintiff filed a statement to the effect that the said document of the 12th April was not a will, inasmuch as it was not properly re gistered, and it had been framed and written by the persons named therein who were to ‘take the bounty thereunder; and, further, that if such document was executed by Renata Kawepo, such execution was obtained by the undue influence of the defendant. The will states the property of the deceased to be worth from L 50,000 to LIOO,OOO. Messrs Chapman (Wellington), Carlile and McLean (Napier) appeared for the plantiffs, and Messrs Bell (Wellington) andCornford (Napier) for the defendants. J. P. Hamlin and J. Gemmell were the only witnesses called for the plaintiff. . Mr Chapman opened the case for the defence at considerable length. He said that the defendant was the grandniece of the deceased chief, and that until the time of her marriage she had lived with him on the most affectionate terms, but as the marriage was disapproved by .Renata, it was the cause of his being cool To her. They were reconciled again, but frequently had little ‘ ‘ tiffs. ” He stated that the plaintiff was also distantly related to Renata, and he lived on very friendly terms with him. Eventually she decided not to oppose her granduncle any more, and this gave him great pleasure, and he restored her to favor. In April last he was taken ill, and she installed herself as nurse, much to the old chief’s pleasure. On April 6 Renata told her that he intended to make a will in her xavor. Some days after this, when Renata was much worse, he asked Mrs Donnelly if she had written the will, and she replied “No,” and that she was waiting for him to tell her to do it. He said “Do it now.” Witnesses were sent for, and she read the will. Renata took a pen in his hand to sign, but he said he could not. He (Mr Chapman) said they would show from the attitude that Renata was in that he could not write, more especially as he had not perfect mastery over his hand in consequence of an old wound. Mrs Donnelly then wrote his name, and Renata made his mark. That was the history of the execution of the will. They would bring evidence to show to his Honor’s satisfaction that the words in the second will had a definite meaning, and that they expressed Renata’s feelings as he had expressed them in his lifetime. They would also call evidence to prove that when he made this will his mind was sound and his head clear. He then called . > -

Airini Donnelly, the defendant, whose examination had not concluded when the Court rose.

The case was adjourned until next day.

The case was continued in the Supreme Court on Tuesday. The examination of the defendant was continued, and she was also cross-examined at considerable length by Mr H. D. Bell. The cross* examination of the witness with regard to the execution of the second will, which the defence allege the deceased chief made in favor of the defendant, and which revoked his former will, was postponed until next morning, as Mr Bell desired that the'whole of the Evidence as to the execution of the document should be given on the same day. P. S. McLean, solicitor, of Napier, also gave evidence on behalf of the defence. Messrs •H. D. Bell and Cornford represented the plaintiff, and Messrs Chapman, McLean, and Carlile appeared for the defendants. The will case, Broughton v Donnelly and others, was continued in the Supreme Court on Wednesday before the Chief Justice. The cross-examination of the principal defendant (Airini Donnelly) as to the execution of the second will by Renata Kawepo was resumed by Mr H. D. Bell. During the luncheon adjournment the defendant, at the request of Mr Bell, was submitted to the test of showing how she had written the will at the deceased chief’s bedside. The test was made in the Sheriff’s room. The witness seated herself on the floor, and a book, pen and piece of notepaper similar to those she states were used, being produaed, she described how she had written and signed.the will, and how Renata put his mark it. Further evidence as to the execution of the document tvas given by Te Teira and Te Roera, who signed it. The case was further adjourned until next morning.

DIVORCE COURT. ® Saturday, June 23. (Before the Chief .Justice.) : ... WILKINSON V. WILKINSON. This was a petition by Fanny Ingram Wilkinson for a dissolution of her marriage with Ernest Culvert Wilkinson on the ground of desertion and adultery. The petitioner was represented by Mr Jellicoe. There was no appearance of the respondent. ■ .. ,i' ■; > • , J IA The petitioner stated that she was married in April, 1879, at St. Peter’s Church, Wellington, her-husband being then a clerk in the Government Buildings. Atovtf mwths after they

Wl. oupi Recei twelve . was senten for embezzlen. the sentence. At i heavily and he frequei*.*, ne witness, threatening on: one.. . ~i to kill her. Eventually she returned to her mother in Wellington, but her husband earnestly requested her to return, and she did so. She was schoolmistress at Wai-nui-o-mata when he ivas released from prison, and he lived with her again. After a while, however, he left her as he said he wished to find a home for her ; but he never returned. Am order for the support of her children was made against him by Mr Wardell, R.M. Robert Staveley, clerk-to Mr Jellicoe, deposed that he had served the citation upon the respondent, and the latter-had admitted the allegations with regard to his adultery ! with two women named Nellie Collins and Ethel Grey. Chief Detective Browne gave evidence as to the arrest of the respondent for refusing to comply with an order of the Court, made against him for the support of his children.

In reply to his Honor, Mr Jellicoe stated the information respecting the respondent’s adultery had been obtained through solicitors. His Honor granted a decree nisi. ■jgj MOELLER V. MOELLER. This was a petition by Louisa Moeller for a dissolution of her marriage with Arthur Moeller, on the ground of desertion and adultery. Mr Jellicoe appeared for the petitioner. The respondent was not present, neither was he represented by counsel. ;; The petitioner stated tliat she was married on the 26th of February, 1886, by the Registrar at Wellington. The was married on a Saturday; and she lived with her husband at the Hutt until the following Monday, after Which she returned to her mother’s and lie went back to his. It was understood that he was to get a home for her. About a month after he went to New York to his uncle. Witmess was a. tailoress, and she earned her living by working at her trade. Some time after he had gone, she went to Melbourne where her sister' was. She returned last February, and she then saw her husband, who had returned from America. She asked him if he would get her a home and alter his ways, but he made no. reply. Next day she saw him with a woman named Elsie Vickers, with whom he was cohabiting. Witness asked him how it nas he had kept with her, and he replied that he would not hear anything about her, as she had been good to him.: - A -

To his Honor : The marriage was performed without the consent of his parents. When he left for America the understanding was that he would send for her in about six months’ time. He did not write to her from New York, and she had not written to him. About a month after he left for America she went to Feilding, where she took a situation in a bar. His parents knew where she was going, and they did not express disapproval. They made no offer to maintain her. She returned to Wellington about five months after, and the respondent's brother gave her money to pay her passage to Melbourne. She remained in Melbourne about thirteen months. Her mother followed her there, as she was ill with a fever. She returned to Wellington because she heard that her husband was here. It. was not arranged between herself and her husband’s people that he should go to New York, and that in two years she should endeavor to get a divorce.

Grace Harper deposed that the woman Elsie Vickers had been living with witness for some time. The respondent frequently visited Elsie, Vickers. He was at the house to see her. on the provious evening. This was all the evidence. , His H onor asked Mr Jellicoe how was he to know that all. this had not been arranged. Mr Jellicoe said he did not know that it had.

His Honor thought ic had a suspicious appearance, to say the least of it. He had examined the petitioner on that point, however, and she had denied it. He did not see that he could refuse the decree. His Honor accordingly granted a decree nisi. SOUFFLOT y. SOUFFLOT. This was a petition by the wife, Isabella Soufflot, for a dissolution of her marriage with Henry Soufflot on the ground of cruelty and adultery. The petitioner was represented by Mr Jellicoe. The respondent did not appear and was not not represented by counsel.' - i The petitioner deposed that she was married in Marton on November 3rd, 1883, and that after the marriage they went to Aramoho, near Wanganui, where her husband was employed as stockman. Her husband, who was a very violent man, had threatened to kill her. She had left her home because he had told her to go. There were two children by the marriage. Mary Hopkins, a widow, deposed that she had been employed as general servant on Mr Smith’s farm at Aramoho, where the respondent was working. She had a child in September. She declined to say whether the respondent was the father of it. She had told Mrs McGregor who the father was.

His Honor did not think Mr Jellicoo should press the question, and he said it was a pity to drag the witness there and put su<?U a cjuvs&vH tv h^r,

• ‘Mr Jellicoe said he had no other way of getting the evidence. • No .other witnesses were examined; His Honor granted a decree nisi;

. " ‘ . IN BANCO. , Thursday, June 21. (Before their Honors the Chief Justice, and Mr Justice Richmond. COLES V. BAKER.

The plaintiff sued the defendant for a balance due on a building contract, including extras. The defence was that the amount claimed for extras was excessive. The defendant also counter-claimed for time penalties, due in consequence of the work not being finished at the time specified in the contract. The jury found that the delay in the completion of the contract was duo to the improper interference of the .defendant, and that the plaintiffs were entitled to an addition of six weeks for the completion of the work, in consequence of extras haying been ordered. They found a verdict for the plaintiff. The defendant now moved for a new trial, on the ground that the verdict was against the weight of evidence, and that the Judge misdirected the jury. Mr Skerrett, for the plaintiff: The contract provides a time for completing' the works, and also., provides for extras. Under these circumstances the work- ineluding extras, must be completed within the time. Walker v. the London and North Western Railway Co., 1 C.P.D. 520; Ware v. Lyttelton Harbor Board, N-Z.L.R. IS. U. 191; Thornhill V. Neals, 8 C.B.N.S. 831 ; Holme v. Guppy, 3 M. &W- 387. The damages ought to be reduced by the amount of the time penalties. Mr Brown objected that the plaintiff was travelling beyond his notice of motion. No misdirection is complained of ,on the special point. (Mr Justice Richmond : It does appear that no direction was given on the point, or asked for.) Mr Skerrett: The jury must have wrongly assumed that the defendant had no right to enter. The verdict was against the weight of evidence. The evidence showed thati for. days the tradesmen were refusing t© work beoause their wages were not paid. It was suggested that the architect had promised the contractor progress payments, but in fact there were no progress payments due. The verdict is also wrong for another reason —it ought to have taken the architect’s certificate as conclusive evidence of the value of the extras. Dowling v Board of Lands and Works, 3 V.R., L. 123 : Liney Rees, cited S.M., L.C.,: 7th ed. 11; Ranger v G.W. Railway C0.,,5 H.L., Cas. 71; West v Secretary of India, 11 W.R. 261. Mr Brown for the plaintiff: The time penalties were waived by the giving of orders for extras after the date fixed for completion. He was stopped on this point. The verdict was supported by the evidence, ‘ There was no evidence from which the jury could have assessed the deductions. Mr Skerrett . replied. Judgment was reserved. . LAH MAN V. PHCENIX COMPANY. The Court gave judgment in this case for the plaintiff, holding that the fact that the jury gave less than the plaintiff claimed is not to be looked on as conclusive proof that a wilfully excessive claim was made. That the excess in the claim was attributable to the fact that the plaintiff did not himself manage the business. That though the form of claim was probably drawn with the intention of having the property insured, the goods lost and goods damaged and the goods all separately set out, that was not the effect of the form. Judgment for the plaintiff, with LlO 10s coats. ;