The Courts.

New Zealand Mail, Issue 1030, 27 November 1891, Page 16

The Courts.

- SUPREME COURT. DEPUTY official assignee of j. g. ; KINROSS V. T. J. STEELE. (Judgment of Prendergast, C.J ) I think the Resident Magistrate was in error in nonsuiting the plaintiff. Apparently the reason given for the nonsuit was that the Resident Magistrate was of opinion that, the claim being made by one representing the estate of a bankrupt for a payment of a charge upon a partnership asset and for which the representative was sued jointly with the other partner, and as the Resident Magistrate’s Court could not take an account of the partnership dealings, it had no jurisdiction to entertain this claim. Probably, the view, more correctly stated, would be that such a payment does not create a debt or claim or demand within the meaning of The Resident Magistrate’s Court Act. If the payment does not do so then the Magistrate was right ; the authority relied upon of Saddler v Nixon or Hiuxman in 3. L.J. Q.B. 101. does not apply—there the partnership was still existing, and the principle of that decision is that in such a case a payment by one partner of a partnership debt does not create a debt against the other partners or any claim for contribution at law, but only right to have the account so paid out of the partnership assets or taken into account on taking the partnership accounts. Upon the bankruptcy of one partner the Official Assignee does not become a partner with the other non-bankrupt* partner —his right is only like that of an execution creditor to have the share of the balance upon taking the accounts. By the bankruptcy the partnership is at an end, and the non-bankrupt partner is entitled to get in the assets and discharge thereout the partnership liabilities and, as stated in Bindley on Partncrßhip, p. 669 (Edn. stli), unless there be some misconduct on the part of the solvent partners, the assignee has no right to interfere in the winding up or management of the partnership business. This being so the reasoning of the decision in Saddler I v Nixon does not apply. The plaintiff and the defendant are not partners, the liability arose after the dissolution. I « think therefore the judgment of the Magistrate’s Court ought to be giveu for the plaintiff for the amount claimed.

CIVIL SITTINGS. E. P. WILSON v. T. K. MACDONALD. The case of Wilson v. Macdonald was commenced in the Supreme Court on Fiiiay afternoon, before his Honour the Chief Justice. Mr Jellicoe appeared for the plaintiff and Mr Hawkins for the defendant. The plaintiff, Mr Edward Powley Wilson, of Idol lane, London, colonial agent, sued Thomas Kennedy Macdonald, auctioneer, Wellington, for the sum of £l6O 6s 3d, alleged to be due for commission on goods sold, and for moneys paid at defendant’s request to a man named Egan, the inventor of a submarine boat, who had gone to the plaintiff accredited by the defendant, and received certain moneys from him. Bills drawn on the defendant by plaintiff, and which were subsequently dishonoured, were included inj the claim. For the defence it was contended that all accounts of the expenditure had been refused, and that in most of the casaa no vouchers for payment had been presented. A set-off was also pleaded of £-56 8s 7d. The examination of the defendant was concluded on Monday, and he was subsequently crossexamined at some length. Mr Hawkins read a large number of letters which had passed between plaintiff and defendant in reference to a torpedo motor invented by a man named Egan (formerly of Wellington), in which both parties had a monetary interest and pecuniary advances in respect of which formed the bulk of the claim. This correspondence was rather amusing. Plaintiff’s earlier letters were very sanguine in toDe. Egan had assured him that there was every prospect of a profitable sale of the invention to the British Admiralty. Then, as that august body made no move, he averred that he had seen dir William Jervois and Admiral Fairfax, who were favourably impressed with bis invention ; also that the head of a largo engineering firm at Leeds had made an offer for an interest in it, and had said if it bore out Egan’s representations it was worth far more than £100,009, and that possibly the Russian Government would purchase it. The later letters from Wilson were in marked contrast. Advances to Egan were stopped ; Egan was stated to be “ furious the writer expressed his opinion that Egan’s reputed interviews with Sir William Jervois and Admiral Fairfax were pure fiction and invention, and its author was denounced in forcible terms. An alleged intention on Egan’s part to proceed to Russia was not carried out; a subsequently projected trip to France was undertaken, but events showed that its purpose was amorous rather than warlike. It was a honeymoon trip, but disaster to Egan followed in its train, for he was prosecuted at the Old Bailey for bigamy. The hearing of the case was resumed before the Chief Justice on Tuesday afternoon. Mr Jellicoe again appeared for the plaintiff, and Mr Hawkins for the defendant. The tedium of the proceedings was partly relieved by occasional mild passages at arms between Messrs Jellicoe and T. K. Macdonald, while the latter was under examination. At the close of the defendant’s evidence Mr Jellicoe applied for a nonsuit in respect of defendant’s contra (claim of £157 against the plaintiff? The Chief Justice said hp would

consider the two claims together. Mr Jellicoe then proceeded to argue that the defendant was estopped from making his contra claim, and that plaintiff was not called upon to answer a claim for an account until a demand had been male for such aceouut. His Honor rulod that there was a case to answer upou the couuter’ claim. Mr Jellicoe then addressed himself to the case. The case was . resumed and concluded on Wednesday afternoon. To the claim there was a set-off amounting to £l3O 3s 9rt, and there was also a counter claim of £299 ISs 3d on accouut of advances made to Egan, inventor of the uusucces-ful torpedo motor. His Honour the Chief Justice, after entering into the details of the claim and set-off, gave judgment for Wilson for £B2 5s Bd, with costs on the lowest scale, and £5 5s extra in rospect of the counter claim, upon which judgment went for Wilson. His Honour decline'll to grant Mr Jellicoe the certificate which is required to ensure extra costs when a case exteuds beyond one day’s hearing, as ho did not think ho ought to enoourage such an enquiry into vouchers, &c., as they had had. iSuch work ought to be done out of Court, and fixed Mr Jellieoe’s oosts at £7 7c.

The sittings of the Supreme Court in the Wellington judicial district for the year 1592 have been fixed as follows :—Criminal sittings Monday. 7th March; Monday, 30th. May;' Monday, 29th August; and Monday, 2Sbh November. Civil witting* (to commence) —Monday, Sth February , Monday, 7th March ; Monday, 30th May ; Monday, 29th August ; Monday, 2Sth November.

The civil sittings of the Supreme Court wore opened on Monday morniug before His Honor the Chief Justice, and the oause list having been called over, dates were fixed for hearing various cases as follows :—Nikorimu te Haunga v. Stuart and others, action to cancel a certificate of title, 16th Deo.; Braddick v. Braddiok, divoroe, 9th Doe. ; Chew v. Aplin, action for possession of land, 10th Dec. ; Attorney-General v. New Zealand Railway Commissioners, action to restrain defendants from using Pitt and Cook streets, Palmerston North, for station purposes, 17th Dec.; Evisou v. Thornton and another, claim £6OO damages, for alleged libel. 14th Dec. The following cases were allowed to stand over :—Pahoro v. Pirioi, liigley v. Stevens, Blatchford v. Duncan, Loveerove and others v. Thompson and others, Hunt and others v. Cleland, Baillie and others v. Fabian. In this latter case, Mr Skerrett, for defendant, said hie client was prepared to make an offer, and if were refused the case would go on. The case of George Albert Tapper, the Palmerston bankrupt, was before the Chief Justice on Friday, Mr Jellicoe, for the bankrupt, moved for an order compelling the Clerk of the Court to issue a subpoena for the examination of the District Judge in defence of certain indiotable charges preferred against the bankrupt for misdemeanour, tilß preliminary investigation of which is fixed to come on before the District Judge instead of Justices of the Peace, as i 3 usual in indictable cases. The Chief Jnstice expressed an opinion that it is undesirable, that such charges shonld be hea>-d by the District Court, and that the proper tribunal was the Magistrate’s Court, and he suggested that the application should stand over to see what course the Distriot Judge takes when the oharges come up and the objection is taken. This was acquiesced in, and the motion adjourned.

In the Supreme Court on Monday, before the Chief Justice, Mr Gray, on behalf of the defendants in the case of Pahoro v. Richmond and Richmond, moved for judgment to be entered up in term 3 of the award made by Sir Robert Stout as arbitrator. The action had been brought to recover £IOOO damages for alleged negligence, and had been referred to arbitration. Sir Robert Stout decided that the plaintiff was not entitled to pay anything, and directed him to pay full costs. According to the Arbitration Act of 1890 the award of an arbitrator is equivalent to the verdiot of a jury, hence the motion. Mr Jelliooe (for plaintiff) raised the objection that no grounds were set forth in the motion, and after some consideration His Honour adjourned the matter till Saturday morning, with leave to amend the notice of motion.

Tuesday, November 24. (Before His Honor the Chief Justice and a jury of four.) A SINGULAR CASE WITH AN ABRUPT TERMINATION. HIS HONOR CONDEMNS THE CRIMINAL LAW ADMINISTRATION. “ VICIOUS IN THE EXTREME.” His Honor tho Chief Justice sat on Tuesday morning to hear the case of William Henry Waekrow v. Robert Tait and John Priest, wherein £2OO damages were olaimed for alleged false imprisonment. Mr Bunny appeared for the plaintiff and Mr Gully for the defendants. In opening the case, Mr Bunny explained that the parties to the action reside within a stone’s throw of one another in the Waikanae Valley, where the defendants conjointly hold a lease of 200 acres of land from the plaintiff. The present proceedings had arisen in consequence of the action of the defendants having on the sth October last had the plaintiff arrested on a charge of stealing from a neighbouring sawmill, belonging to Messrs Machattie and Whiteman, three planks of red pine. The charge was duly beard at the Lower Hutt Court, and dismissed. Subsequently plaintiff instituted the present action for malioious prosecution, claiming £2OO as damages. The learned gentleman explained at some length the history of the case, and stated that he would show that the charge of larceny brought against the plaintiff was the outcome of vindictive feelings on the part of the defendants, engendered by some angry words between the parties through alleged trespassing of the cattle of the one party and the horses ®£ the other on each other’s land. William Henry Waekrow, the plaintiff, u

young man of some 25 years of age, was the • first witness. He said be lived in the Akatarewaha Valley, about 10 miles from the Upper Hutt, and defendants lived most of their time in a whare within 50 yards, as they were building a bridge in tho vicinity. The sawmill was a mile distant, and a tram line from it passed his place. On Wednesday evening, before the Monday on which he was arrested, he was passing tho place where defendants were building the bridge for the Highway Board, when Tait, accosting him, asked how he came to take three planks from their works. Witness replied that they were hi 3 own. Tait rejoined that if he had not seen them in front of witness’ house he would have gone for the polios. Witness then said he would go down to the mill and see Messrs Macbattie and 'Whiteman in order to ascertain who was to have the planks. He had previously told Tait that he had got the planks from Machattie and Whiteman. Hia brothers, Fritz and August, wore present and heard this conversation. He beard no more, about' the planks till Monday afternoon, when Constable

McKinnon came up to the bush where witness was working on his father’s land, and told him Priest had taken oat a warrant for his arrest, on a charge of larceny of the timber. The constable took him away to the Upper Hutt, and looked him up in a cell, where he remained from 6 p.m. till about S p.m., when Mr Macbattie, of the mill, bailed him out. On the following morning ho appeared at the Lower Hutt Court, where the charge of larceny preferred against him by defendants was gone into and dismissed. For some time prior to this affair there had been trouble between Priest and himself.

Firstly, on account of defendants’ cattle trespassing on Mr Larsen’s unfenced property, adjoining where plaintiff’s horses were running, and thereby enabling the horses to get through to defendants’ land ; secondly, on account of a demand by Priest for rent for the house occupied by plaintiff ; and thirdly, because of plaintiff’s action in splitting posts on defendants’ section for the puipose of fencing, from whioh proceeding he was stopped by Priest. Plaintiff consulted his solicitor and resumed the splitting of the posts, and Priest again interfered and put a stop to it. This was two months before the arrest. Witness and his youngest brother August owned 420 acres of land. 201-acres of this were bought not long ago subject to a lease held by defendants, which would expire in February next. Witness, however, built a oottage upon this leasehold to reside in, in order to carry on busbfalliog, a condition being that he and his brother should not do anything which would interfere with defendants’ dairy farming operations, to which some 70 of the 204 acres were devoted.

Cross-examined, the witness said that after Mr Maohattie had said he might have the planks he saw them lyiDg by defendants’ works at the bridge, and early on a Monday morning before defendants arrived to start work he went there and removed them.

August Julius Waekrow corroborated his brother’s account of the conversation with Tait at the bridge. Geo. Machattie and Francis Whiteman testified as to the planks having been asked for by and promised to plaintiff, and Constable McKinnon gave evidence as to arresting plaintiff on warrant issued upon an informati on sworn to by Priest.

Philip Davis, Justice of the Peace, stated that he issued the warrant upon which plaintiff was arrested, Priest having come .to him and sworn an information for the purpose. He tried to dissuade Priest, but without avail, from Instituting proceedings in the matter, pointing out to him that the Wackrows bore the aharacter of honest, well conducted young fellows. At this stage Mr Gully rose and intimated that he had proposed a settlement of the case which his learned friend had aocopted. He might say at once that it was one of those unfortunate oases which arose in great part through defect in the administration of the criminal law. There was a notable want of proper supervision in the institution of criminal proceedings. Bo far as this particular case was concerned, there was no donbt the information was laid under a misapprehension of. Wackrow’s action, which was caused by the manner in which he removed the timber. Under the circumstances he had proposed to settle the case by consenting to judgment being given for plaintiff for £3O without costs. To this proposal his learned friend had assentei.

The jury, direoted by hia Honor, accordingly returned a verdijfc for £3O without coats. \

His Honor said : I think the plaintiff has shown considerable moderation. Iu saying this 1 am not at all expressing any opinion that he should have exacted more. It may be, of course, simply through ignorance or stupidity on the part of the defendants that they took the aotion they did, or it may be worse ; but it is undoubtedly one of those things which illustrate the misapplication of a state of things which may be quite satisfactory in England, but which is certainly not satisfactory in a place like New Zealand. In England there are a large number of educated gentlemen who are conversant with the administration of the criminal law so far as it has to be administered by inferior tribunals—persons who from their childhood really are indoctrinated with the principles which ought to be acted upon and which ought to guide them. They are, too, in most cases advised and served by competent clerks of the Bench, and a system of that kind can therefore work well in England. But to apply it to New Zealand is entirely absurd. In the first place, the Justices of the Peace here are a different class of people, not having the knowledge and experience of the justices in England ; and then instead of having competent clerks of the Bench to advise and guide them, in the country districts there are policemen, who not only have not the requisite knowledge, but their very office unfits them for the position. There is net doubt about it that the system is vicious in tbo extreme.

Wednesday, November 25. (Before His Honor the Chief Justioe.) ROBT. PRICE EDWARDS V. F. IRELAND AND CO. Argument of special case. The parties to the action are residents of Palmerston North, plaintiff being a builder, and defendants storekeepers. The questions involved took their rise in the fire which oocnrred in the township in September last. According to the statement of claim a contract was entered into in July that plaintiff should build certain additions to defendantsstore, in the Square,in accordance withplans and specifications, the contract price being £762 Bs, and subject to certain terms and conditions, amongst others (1) That all materials to be used in the work after being placed on ohe site of the said building should be tnnaidered the property of the defendants ; (2) that the plaintiff should be paid for his work and materials monthly on the architect’s certificate and at the rato of 77 per cent on the value of the work performed ; and (3) that any damage which might arise to any of the work by fire, the same being caused by tho carrying out of the work, should be made good by the plaintiff. From July 11th to September 12th the plaintiff proceeded with his oon-

tract, expending thereon labour to the value of £sl 4s 6d, and had delivered building materials to the value of A. 250, when both works and materials were destroyed by accidental fire. This fire rendered tho contract impossible of performance, for it swept out of existence the building to which the additions were to be made, and as neither builder, architect, nor defendants had insured the new work or materials, the question naturally arose who was to bo saddled with the loss. Two monthly progress payments had accrued at

the time, but the money had not been paid, as the architect had not furnished the requisite certificate. On this ground the plaintiff claimed £232. The statement of claim further alleged that on the 29th September the defendants repudiated, and determined the contract, and refused to allow the plaintiff to complete it, while the architect had neglected and refused to estimate the value of the work and ■material, and to give any certificate for any payment. As an alternative cause of action, the plaintiff claimed that everything had been done to entitle him to receive the architect’s certificate for payment of the two monthly instalments under the contract, and that the architect in neglecting, and refusing to estimate the value of plaintiff’s work and materials, and to give any certificate for any payment, had so neglected in fraudulent collusion with, and by tho procurement of the defendants. In respect of this alternative, the plaintiffs claimed £3OO damages. As a second cause of action the plaintiff claimed £lO6 12s 8d for work done and materials provided by the plaintiff for the defendants at their request subsequent to the fire.

In reply, the defendants pleaded that the contract was subject to a condition that no material delivered as the site of the works should be removed except with the architect’s written permission, and also to the implied condition that certain buildings and portions of buildings should continue to exist during the performance of the contract and to the express condition that new work should be added thereto ; that the defendants would permit the use of material from certain other buildings, and that tne plaintiff should maintain the works for two months after completion. The defendants also pleaded that the plaintiff had never produced the architect’s certificate, and that as the fire had supervened and destroyed both work and materials, they were not aware what their value might have been. They denied that any monthly payment was due by them, and claimed that production of the architect’s certificate was a condition precedent to the right of the plaintiff to bring the action. In consequence of the fire performance of the contract by the plaintiff was impossible, and defendants therefore pleaded that at law they were excused from performance on their part. The reply to the alternative claim, defendants denied that the architect bad acted in fraudulent collusion ■With them in neglecting or refusing to give any certificate for payment. As to the second cause of aotiou, defendants admitted that by a separate and independent contract made subsequent to the fire they were indebted to the plaintiff in the anm of £lO6 12s Sd for the erection of temporary premises, but pleaded as a set-off to this that plaintiff owed them £219 14s 9d for goods supplied. This formed the subject of a counter claim.

Mr Jellicoe recited the short facta in opening his case, and then said that the two questions to bo determined were Whether under the circumstances the plaintiff waa/in law entitled to recover from the defendants anything in respect of the work performed and materials supplied under the contract ; (2) whether under the circumstances the defendants were in law excused from performance of the contract on their contention, He based his case practically on the contract and the construction he asked His Honor to place on it. He submitted that the proper construction to be placed upon the contract was that the parties agreed that the contract work so far as it was completed from time to time and existing on the ground should be regarded as sold to the defendants, and that the materials as soon as they reached the building site shonld vest in the defendants, and the subsequent additions to the property as the parts were prepared thus vested in the proprietor and became his property. Authorities were cited in support of this view.

As the learned gentleman proceeded to develop his argument it became apparent from remarks made by counsel en the other side, that there was a misunderstanding as to the facts which were to be admitted, the point being as to the Indispensability of the architect’s certificate. Mr Jeilicoe held that if the Court determined the liability of the defendants there would he no question about the architect’s certificate. The other Bide wished to say that because the plaintiff had not received any certificate he was not entitled to raise the action. His Honor considered it useless arguing a

special case upon misunderstandings. He presumed that neither party to the contract insured the woik or materials. Mr Brown said that the defendants were going to insure as soon as they made the first progress payment. The fire, however, occurred, and there was nothing to insure. His Honor remarked that the proper thing- -was. to insure at the outset for the advantage of both builder and employer. The argument was then adjourned sine die, to allow counsel time to agree as to the facts.

(press association. ) Dunedin, November 24. At the Supreme Court" to-day Alex MoNaugbton claimed £2OO damages from Timothy Kates, for alleged slander in calling him a thief. Justice "Williams gave a verdict for £5 and costs, and said if the case had stopped at an angry interview, when the accusation of dishonesty was made in the presence of two school boys, the damages would have been nominal, but as an apologv was declined, and justification pleaded, judgment was given for an amount that -would carry costs. Dunedin, November 25. In the Supreme Court to-day the liquidators of the Victoria Quartz Mining Co., sued William Kerr to recover calls payable by defendant, which calls were made beforo the Company was wound up, and in respect of which his shares had been forfeited. Mr Justice Williams held that when a share was forfeited for non.paymeut of calls, that call was irrecoverable in Victoria, but such was not the case here, as Section 65 recognised for certain purpoees the continuous existence oE a liability in respect of the call, notwithstanding that the share had been forfeited, such liability being additional to that recognised by Section 54. Judgment was therefore for the liquidators, and costs on the lowest scale. Sir R. Stout intimated that defendant would appeal. Auckland, November 25.

In tho case Lovett v. the Auckland Hospital Board, for alleged unskilful treatment by the Medical Superintendent, Mr Justice Conolly gave judgment to-day for plaintiff for £250 and costs, holding the Board responsible. His Honour’s remarks also appeared to indicate that the medical superintendent, against whom an action was discontinued, was also liable. A settlement was arrived at between the Estates Company in relation to the East Coast Settlement Company’s lands. The Natives have properties to the value af £70,000 transferred to them. They assert a claim to the assets o! the Company with all their other titles in settlement of the land. No further call is to be made on the European shareholders, but they have lost all their meney. The land they retain will recoup the asset company the whole of tho money advanced by the Bank, with interest, so that they lose nothing.

CRIMINAL SITTINGS. The Criminal Sessions of the Supreme Conrt open on Monday next. So far the following cases appear upon the calendar : Chas. Ogier, forgery and ottering ; Arthur Robinson, robbery with violence ; Murdoch McKenzie, forgery (three charges); John Reginald alias A. C. Crawford, forgery (five charges) ; James Conlon, larceny ; Samuel Timmins, assault with intent to ravish ; Harry Percy Fisher alias Gilbert, false pretences ; Henry Walters alias Dutch Harry, housebreaking ; Wm. H. Powell and Frank Rogers, false pretences ; John Brazil and James Quinn, . larceny from the person ; Chas. Stewart Seager alias Alfred Blyth, larceny from a dwelling; Herbert Ayers, breaking and entering ; Geo. Howe, larceny from -the person ; Alfred Richards alias Samuel Henry Richards and John Howard, larceny from a dwelling. (PRESS ASSOCIATION.) Christchurch, November 23. The criminal sessions of the Supreme Court opened this morning, before Judge !'’enniston, whose charge was very brief. He only said that, though the calendar was large in number, there were no eases of im. portance calliugfor special remark?. Frederick Danes, charged with forgery of two cheques, while acting secretary to the School Committee, pleaded guilty, and was sentenced to twelve months on each charge." James William Jacxson, charged with uttering counterfeit coin, pleaded he had the coins gilded, but did not intend to defraud. Hib Honour said he would take the plea as that of not guilty. In another similar case he pleaded guilty. His Honor said there was another charge on the calendar against him, but he would defer hearing it till that was disposed of by the Grand Jury. Matthew Grainger, indicted on several charges of forging and uttering promissory noteß, pleaded guilty. He was sentenced to 18 montha on each charge, tho sentences to ran concurrently. Later.

John William Jackson was sentenced to twelve months on two charges of utteriDg counterfeit coin, the two sentences to bs concurrent ; also twelve months for larceDy of a watch chain and locket, stolen from Jamei Thompson, traveller, from Dunedin. Daisy Dale and Elizabeth Thompson, charged with robbing Thomas Heatley of £25 in a brothel, were acquitted. The case against joe Dicks, for absconding when a bankrupt, is fixed for to-morrow, and the perjury cise for Wednesday. Only one indictment was thrown out by jury, who found true bills in all the other cases on the calendar. Christchurch, November 24, In the Supreme Court, Joe Dicks, indicted for having within four months of having been declared bankrupt attempted to leave the Colony with intent to defraud his eredi. tors, pleaded not guilty. The prisoner, who was proprietor of the Waltham Arms Hotel, sold out, and having converted the proceeds of the sale, left for Dunedin, but was arrested at Oamaru and brought back. The evidence was, so far, a repetition of that given in the lower Court. Later. The Supreme Court was occupied nearly all day in hearing a charge against Joe Dioka

of absconding from his bankruptcy. Subsequently, the jury returned a verdict of rot guilty on both counts, and the prisoner was discharged. The only other case was that against Joseph Capstiok, an old offender, charged with attempting to steal the goods of Alexander Scott, from the residence of George Stokes. -He was found guilty, and sentenced to 12 months’ imprisonment. Christchurch, November 25.

James McCrenor, tried for stealing two horses atMetbven, at the Supreme Court this afternoon was acquitted. Two cases to-morrow will conolude the criminal, sessions. Joseph Flynn, charged with perjury in connection with the recent smuggling case at .Lyttelton, was discharged. Roman Jorgensen pleaded guilty to larceny, and was sentenced to four years. Tho prisoner has spent the last 17 years continuously in gaol.