SUPREME COURT.

Otago Witness, Issue 2118, 27 September 1894, Page 14

SUPREME COURT.

CIVIL SITTINGS. Thursday, September 20. (Before his Honor Mr Justice Williams.) JONES V. JONES. Claim for £926 10s 8d and interest. Mr Sim (instructed by Mr W. F. Inder) appeared for the plaintiff, and Mr Haggitt (with him Mr Woodhouse) far the defendant. The hearing of this case was resumed, when the defendant, whose examination in chief was heard on the prerious day, was cross-examined by Mr Sim. Alexander Batbgate. solicitor, who then gave evidence, stated that he acted for Mrs Evans 21 years ago in applying for letters of administration on account of her first husband. He saw the defendant about the matter, and prepared the necessary papers. He saw Mrs Evans several times subsequently in his office. Griffith Jones was also in his office once or twice.' He. remembered the occasion when the money was obtained from the Union Bank. The defendant and witness went to the bank to draw the money, leaving Mrs Evans and Griffith Jones in the street. Mrs Evans being required at the bank was subsequently called in, and the money was paid to the defendant across the counter. Afterwards they all went to witness's office and the money was handed over to Mrs Evans, who, after paying certain accounts, carried away the balance of the money in a bag. J. Maitland Jones, William Williams, and Thos. Morgan also gave evidence for the defence. Mr Haggitt then intimated that he would like his friend to say upon what basis he founded his claim that defendant was a trustee. Mr Sim said that he relied on the facts disclosed in the evidence, and should submit on those facts that, as a question of law, there was a trust. Mr Haggitt said it eeemedto him that the question of trustee or no trustee depended- on what took place in Mr Bathgate's office. If the money was handed over by defendant to Mrs Evans the trust thereupon came to an end, and any further transactions between the parties were merely tkese of debtor and creditor. Mr Sim replied that what defendant said to plaintiff was : " You are not fit to take care of the money 5 I'll look after it for you," and ho wfis prepared to argue that a trust was created. — — ' - Jflrifi».inoved..ftr judgment for £805.1

MrlHajrgitt then addressed the court and riviewed the evidence at some length, submitting that the testimony in favour of the defendant's story was much stronger than that given on behalf of the plaintiff. Mr Sim having replied, His Honor gave judgment. In doing so he said where persons who knew their rights chose to rest upon them for a period of 20 years without taking proceedings, then, although the Statute of Limitations might not apply by reason of its being suggested that the defendant was a trustee, yet every precaution should be made that could reasonably be made against persons who so delayed. It was essential that if there was such a delay, which was explained by no sufficient cause, that the plaintiffs should make out a coherent story in every particular, and that their evidence should be such as completely to satisfy the court that their claim was a just one. That certainly •\yas not the case here. He was not satisfied -with the evidence which had been brought forward on the part of the plaintiffs. On the contrary, a great part of that evidence he_ distinctly disbelieved. The position of the plaintiff, Catherine Jones, was not, as had been suggested, that of a wom&n who could not speak English, who had nobody to protect her, and who had. to deal with a brother who did understand business. Ituseemed to him that the brother really knew very little more about business than his sister did ; and at anyrate his sitter had the advantage of the of her present husband, who was as capable a man as the defendant was. Then the two plaintiffs distinctly said that they never went to Mr ■Bathgate's office, and that they went directly from the bank to Rtohr's. That was absolutely contradicted by Mr Bathgate, who said there where one or two interviews, and spoke of the particular interview at which he saw the money handed over to Mrs Evans. Mr Bathgate was an independent witness, and he had particular reason for remembering that interview. The evidence of the two plaintiffs was contradicted in a material particular by an independent witness, and the | evidence as to the capacity of Mrs * Evans Ito speak English was Also contradicted by )Mr Bathgate, and her evidence as to that was further contradicted by the documents which had been put in. Further than that his Honor was satisfied from the demeanour of Mrs Jones when she was asked About her relations with her > late husband that she was not stating the truth. Then it appeared also that although at different times the plaintiff Griffith Jones had been in very considerable difficulties, yet this claim had never been pressed, and itad been allowed to lie over until the other day. The excuse for not pressing it was, to his Honor's mind, absolutely unreasonable. As he had said, if a claim web made at thit distance of time, it was necessary that it should be supported by evidence which was absolutelyconvincing ; but, to tay the least of it, that evidence was quite absent. He was entirely satisfied that the only reasonable conclusion to come to, and the verdict which a jury would have been justified in giving if there had been a jury trying the case, was a verdict for the defendant. Judgment for the defendant, with costs as per scale on the amount claimed.

Friday, September 21. muir. v. muir. A suit for the interpretation of the will of the late Amelia Muir, of Dunedin, widow. Mr Fraser appeared for the plaintiff, Frederick Joseph Muir ; Mr F. R. Chapman for the dpfendants—Sydney Nimmo Muir, Thomas M. B. Muir, and Henry Samuel Fitzherbert — the trustees under the will ; and Mr Calvert for Frederick Bailey Muir and Florence Amelia Muir, beneficiaries under the will. This case, which was adjourned from Tuesday last, was called on, when Mr Fraser said he had considered the plaintiff's position in the matter, and in view of his Honor's decision that the plaintiff must make his election whether he claimed under or against the wi.'l, he failed to see how plaintiff could benefit by claiming a decree for redemption. That being so, it would be watting the time of the court to go on with the case. He had advised the plaintiff to that effect, and plaintiff acquiesced in his decision. The only point that remained to consider was this : that inasmuch as the suit was practically one for the interpretation of a eomewhat obscure will, whether or n«t the plaintiff was entitled to ljiiainßta^f_Rpj&Biaji6e_oßiLof_the jgehgral .estate^.

The confusion as to the policies being first treated as the property of the plaintiff, and then as the absolute property of the testatrix, had arisen owing to the action ot the testatrix herself in making the will. That being so, he thought plaintiff was entitled to costs. * His Honor : I don't quite see that, Mr Fraaer. If the plaintiff had laid all the facts before counsel — the facts connected both with the land and the policies — there would have been no suit at all, and he had no business to bring the suit without having taken care to lay the facts before counsel.

Mr Fraser remarked that sometimes a litigant was dissatisfied with counsel. He did not suppose the other side asked for costs.

Mr Chapman : We may for convenience ask for ccsts.

His Honor gave judgment for the defendants with costs as if £500 were claimed ; second counsel ; disbursementn and witne-ses' expenses to be fixed by registrar '; leave to defendants other than trustees to apply to have costs, &c. out of the estate.

DIVORCE AND MATRIMONIAL CAUSES. Thursday, September 20. (Before his Honor Mr Justice Williams.) EDMONDS V. EDMONDS.' A wife's petition for dissolution of marriage. Mr Sim appeared in support of the petition. The respondent did not appea-, and was unrepresented by counsel. The petition set forth that on the 2nd October 1879 Thomas David Edmonds and Frances Sarah Ross were married at Christchurch ; that they afterwards lived in various places in New Zealand and in Melbourne and Sydney ; that two children had been born of the marriage — namely, a girl now aged 13 and a boy aged eight years ; that after the marriage Edmonds was guilty of habitual drunkenness, and treated his wife with great unkindness and cruelty, and frequently assaulted her with violence ; that on one occasion, in 'January 1888. he knocked her down and stamped upon her; that by reason of her husband's illtreatment petitioner was on divers occasions compelled to leave him and seek theprotection of her friends, finally leaving him in 1890 ; and that in 1892 the respondent committed adultery In New South Wales. Petitioner asked for divorce 'and the custody of the children. Evidence was given by the petitioner (Frances Sarah Edmonds) and Frances Ross and Frank Ross, mother and brother respectively of the petitioner It appeared that after petitioner left her husband in Sydney she secured an engagement with Brough andßouclcault.and subsequently travelled with Mr Milne's Company to India, proceeding thence to England, and arrivicg in this colony in July last. His Honor said the adultery and cruelty had been proved and the petitioner had taken proceedings as quickly as possible after she dis-, covered the fact of the adultery. A decree nisi would be granted, to be made absolute in three months, respondent to pay costs.

IN BANKRUPTCY. Friday, September 21. (Before his Honor Mr Justice Williams.) RE HENRY BENJAMIN. Motion for order of discharge. Mr Fraser, who appeared for Mr Harrington; instructed by Messrs Duncan and MacGregor, said the official assignee objected to any payment being made to one creditor. His Honor : What position does Mr Harrington take up 1 If it is the bankrupt's money the assignee ie entitled to it, but I understand that arrangements were to be made Bomehow to do justice to a man who had been exceptionally wronged. That, however, would, of course, have to be done without interfering with any rights that the law gives to the official assignee. Mr Fraser : If the assignee knew nothing about it there would be an end to the matter ; but, unfortunately, my client published the fact of his arrangement with Mr Benjamin. My position is that I withdraw my consent and oppose the dis charge His Honor : I understand that the terms of the arrangement before me do not involve any payments before discharge. Mr Fraser: It involves a preference of one creditor; The arrangement i£ made fesfoj&.ih.e _dißchare%

JHis Honor: There is no money in hanS I, understand. The Assignee (Mr O. C. Graham) : Not iff my hands His Honor : Nor in Mr Benjamin s hands. The arrangement is simply that at some future tima after his discharge he will pay Mr Harrington d sum of money that he practically robbed him of. If there was money in hand I could understand your position. If the bankrupt is discharged it 13 quite competent for him to do jußtice to. one creditor afterwards. The Assignee said there was nothing in tho arrangement he could contest. Mr Fraser said he held a settlementin hia hands on Mr Harrington's letter. The Assigned said there was another matter to which he wished to refer. He had a proof of debt in the estate of Richard James Palmer, a young spendthrift, and he also had a claim from Benjamin, in which he said Palmer was indebted to him in the sum of £77 15s for a dishonoured promissory, note. If Palmer was indebted to Benjamin, and the estate would pay 20s in thd pound, the money would belong to him (the assignee). His Honor observed that tho assignee had a right to inquire into the transaction fully. Mr Fraier (to the assignee) : Benjamin's discharge does not affect your right to claim that money. His Honor said as the money vested in Ben? jaruin before be got his discharge, if it was Ben" jamin's the assignee would be entitled to it although he got his discharge. Mr Fraser : I quite undertake that his discharge will not affect this question. His Honor : I don t see that it could. Mr Eraser said Mr Graham had got the money in his pocket and he could keep it. He 'also observed that Mr Benjamin's discharge had beeii susnended for five years. His Honor : If justice was done to Harrington in such a way that the rights of the other creditora would not be interfered with then the five years! suspension would be a sufficient punishment.-^ Discharge granted.

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