SUPREME COURT.

Poverty Bay Herald, Volume XXX, Issue 9847, 14 September 1903, Page 3

SUPREME COURT.

81-ANNUAL SITTINGS. (Before His Honor Mr Justice Cooper.) CIVIL BUSINESS. ALLEGED LIBEL. The civil sittings of .the Supreme Court commenced at 10 this morning before his Honor Mr Justice Cooper, the first case being that of Annie Taylor, nurse, v. William Fuller Acland Hood, sheepfarmer, claim of £400 for damages for alleged false and malicious publication, and nursing fees, £3. Mr W. D. Lysnar appeared for plaintiff, and Mr DeLautour, with Mr Nolan, for defendant. The following jury was empanelled : — Jas. Dalryinple (foreman), W. G. Muclaurin, W. Bell and Augustus Sawyer. Challenged by plaintiff : W. A. Heany, W. H. Chrisp, John Colley, C. A. Sheriff. Challenged by defendant : W. Hamon, Hugh Heeny, S. Liddle. Mr DeLautour said an amended statement of claim had been served on Saturday, and no opportunity had been afforded of answering it. It seemed to him it set up a new cause of action. Mr DeLautour said the original claim was set upon a demand for special damage, upon which defendants' pleas had been framed. Now that claim was abandoned and there was a claim for general | damage. His Honor asked if Mr DeLautour wanted time to answer it? Mr DeLautour" argued that it was not competent for plaintiff to set up a new cause of action. His Honor thought it hardly came within the definition of a new cause of action, but Mr DeLautour would have the right to time to file defence. Mr DeLautour could appropriate his defence to the amended statement of claim, but if he thought he was prejudiced lie was entitled to ask for an adjournment. Mr Lysnar submitted there was no , change of the position to warrant an adjournment. He had simply left out the words "special damage." " i His Honor said the rules were very clear. It was not possible at the last moment to compel defendant to go on. Mr DeLautour insisted upon his claim for an adjournment. I His Honor said the case would have to ! be adjourned till the next sitting of the Supreme Court. The jury having been empanelled he could not let them go. Mr Lysnar asked his Honor if the amendment really did embarrass plaintiff. His Honor said Jie thought it did. Why was it filed at the very last moment? Mr Lysnar said that special damage was a very troublesome tiling, and they thought best to abandon it. He would be prepared to abandon the amendment. Mr DeLautonr did not see his way to consent to that. If his friend was embarrassed after having had this writ on issue for eight months, how much more was he at having to answer a new claim at the last moment. Mr Lysnar asked for an adjournment for a few days. His Honor said it would- be a most improper thing to let the jury go after they had been sworn. Mr Lysnar said plaintiff was anxious to have the case disposed of. He would be willing to abandon the jury and have the case tried by his Honor. His Honor said m these cases of libel he did not care to take 1 the responsibility. Of course, he would hare had to -take it alone if Mr Lysnar had given notice. All judges were reluctant to try cases of this sort without a jury. He asked Mr DeLautour if he was prepared to take an adjournment till Wednesday. • Mr DeLautour said he was reluctant to abandon his rights. His Honor, after considering the pleadings, said he certainly thought that as the cause of , action had been recast and new innuendos alleged defendant' was quite within his rights m asking for time. Mr Lysnar said then it was a question of what was a reasonable time. His Honor 'said he was entitled to Reven days. It would be impossible for him to take the case at this sitting. Mr Lysnar bad given notice for a jury, and he waR inclined to think that that notice must carry. Mr Lysnar said Mr DeLautour should have mentioned his objection before the jury was empanelled. His Honor: I think the whole difficulty, Mr Lysnar, has arisen, through your filing a statement of claim at the iast moment on Saturday. Mr Lysnar said he would be willing to abandon the innuendo. His, Honor said that would practically amount to an abandonment of the claim. Mr Lysnar said it was within his rights to" put m an amended statement of claim -even now. Supposing lie put m one similar to the original claim. He could do it at once. His Honor said it could be done by consent. He was willing to adjourn the case for half an hour. Mr. DeLautour said lie was not impressed with the question of urgency. The case had been oefore the Court at last sitting, and it was over two years since the alleged defamation took place. The circumstances were very exceptional. He had consulted with Mr Nolan, who did not think he was justified m relinquishing any right. Mr Lysnar expressed his willingness to abandon his alternative statement of claim excepting the letter. His Honor thought it would be very inadvisable to do so. Mr Lysnar asked for an adjournment of the case for half an hour to confer with his friends. His Honor said he would be agreeable to do that. He would suggest that if possible the matter should be arranged so as to prevent it coming before the . Court. Mr Lysnar said that if the libel was withdrawn there might be some hope of that. His Honor: I understand from the pleadings that it has been withdrawn, but that you want damages. ; Mr Lysnar : No, your Honor ; we have never been able to get them to withdraw it. . \ Mr DeLautour: We had better not discuss it m Court. The Court was adjourned till twelve o'clock. On resuming at noon, m reply to his Honor, Mr Lysnar announced that an adjournment of the case for six months had been agreed to by the parties, and the question of costs remained with his Honor. Mr Lysnar desired the question of costs to remain m. their former position, and he would ask his Honor to fix costs low if lie thought they should be allowed. His Honor thought the fairest way would be to reserve .costs until the disposal of the action. ' * Mr. DeLaulour stated defendant's counsel had no objection to the general costs being m that position, but they would ask his Honor for the special costs of the day. They were brought there,' and tlieir'ffierid was hot ready to go on. Mr Lysnar said he had already notice from counsel for the defendant that it was intended»to ask for an adjournment. Mr Nolan: I beg your pardon. I got a peremptory note from my friend that he intended to go on, although Dr. Hughes was absent. I never asked ov suggested an adjournment. His Honor thought costs could stand over till next sitting. Prima facie, of course, defendant was entitled to the costs of tile day, but to leave the question over would not prejudice either party. In all probability lie would be taking the next sitting himself. Mr DeLautour considered the amount of costs should be fixed. . His Honor fixed the amount of special costs for the day at £5-ss, as defendant's costs, the question as to whether plaintiff should pay those costs to be settled at the trial of the action unless plaritiff discontinues her claim, m which event the £5 5s to be added to the costs of continuance. "It will be made clear at tbe trial, "remarked his Honor, "whether defendant should have gone on with the case. On the face of it plaintiff should pay the costs, and if plaintiff discontinues the action stye will have to pay them." Mr Lysnar : There is no chance of that, your Honor. His' Honor said he was sorry the parties should be afflicted with expense, and he equally regretted that . no arrangements, could be mode by which the Court would not be troubled with it later on. PRICE v. DeIAjTOUR. Jumes Emanuel Culo Price ;Mr W. L. Rees) ,v. Edw:ud Lionel DeLautour (Mr Nolan mid Mr DeLautour). The Court, was asked by plaintiff— {l) that plaintiff* be declared to be entitled to half the timber rights on Waihora D, and m contracts with William Moms and James Orr, and m leasehold interests m Houauuituku 2; (2) that defendant account to plaintiff for all moneys received thereon ; (5) tliat defendant be. ordered to assign one equal half si tare m all the said rights, interests and properties. His Honor, having allowed several imma.u.M'iuJ alterations m the statement of claim, Mi* Rees, m opening, said ' the question was a. simple one as to whether a partnersliip or quasi-partnership existed between the plaintiff and defendant m certain timber riglits. He went on to quote the statement of claim. The facts were that defendant and plaintiff agreed to purchase the Waihoru. D block, about three miles from Karuka. Each was to have a half of the value of the timber. Defendant liad ■to borrow half of tlie money to pay. for the fee sLnple of the land, but the timber rights were to be vested equally m plaintiff and himself. Other timber rights on land adjoining were acquired. Across tlie creek from the Waihora D block was theHoumatuku No. 2 block, which was valuable timber country, and tlia plaintiff and defendant agreed to obtain the leas© of the land ami the timber rights also. . They arrange] with a. Nuthrsi named Pomiu-o Hursfall, who had incompleted leases of the timber and land, to take them over, and on August 15th, 1902, an ugreement to purchase Horsfall's interest was entered iuto m defendant's

office. Defendant and plaintiff agreed also, though not m writing, to obtain other interests m the timber rights, Horsfall promising to endeavor to get signatures. It was arranged that defendant DeLautour should proceed to Dannevirke to make arrangements regarding a sawmill. It was arranged with one King, deceased, to place his sawmilling plant at; Karaka. Defendant denied any agreement, and applied for a lease m the Native Land Court to get a lease m his own name, omitting Mr Price's name. The transfers also were taken m. defendant's name alone, and nothing was mentioned of defendant, who did not know pf this for some time. Plaintiff supplied most of the money to carry on the transactions, and m perfect good faith left everything to defendant. Having detailed the transactions between the parties further, Mr Rees stated that the parties from whom the leases were obtained considered that the assignments were made with the consent of both parties.