SUPREME COURT.

Star (Christchurch), Issue 9911, 28 July 1910, Page 3

SUPREME COURT.

IN BANCO. Thtjksd.VV, .JULY 28

(Before his Honor Mr Justice Sim.) A sitting of the Supreme Court in Banco was held this morning, before his Honor Mr Justice Sim. ORDER FOR REMOVAL.

Mr Johanson moved for an order to remove the case of John Mullan v. V. G. Grace and others to the Court of Appeal. His Honor made the order for removal, as requested. FAMILY PROTECTION ACT.

Jane Mortlock brought an action against T. H. Mortlock and others, under the Family Protection Act, claiming adequate provision for the maintenance of the plaintiff* who is a widow. Mr Cassidy appeared for the plaintiff and Mr Gresson for tho defendant.

Mr Cassidy atatod that the' plaintiff was married to the testator in September, 1879. The testator was then a widower with six children, and the plaintiff was .a widow with three children. The plaintiff had not been intentionally omitted from the will, and not named in it. Tho will provided for specific legacies amounting to £IO2O to the children of tho testator's first wife, and it loft the residue to tlie present applicant. The whole property, according to the accounts filed, was valued at £6OB. Mr Cassidy said that his client was surprised when it was found that the sum was so email. ■There had been expectations in regard to , properties in Scotland, but those apparently were not well founded. The estate had for some' time paid the plaintiff's rent of 9s a week, but the payment later on was stopped. He did not ask for a lump sum, but for reasonable provision for plaintiff's maintenances. , Mr Gresson said that the executors had given Mrs Mortlock the whole income of tho estate, which was only 10s a week, but objected to paying the capital, which should be guarded, because of the plaintiff's intemperance. Evidence was given by the plaintiff that she was married to the testator in 1879. Her first husband, Gohps, died in 1876. Site was married by the Rev j.j.. B. Cocks in St Saviour's, Sydenham. She thought that she should have 15s or £1 a week at least from the estate. Evidence was given by Thomas Samuel Mortlock, one of the trustees, who stated that the total income from the estate was £35 a year. His Honor said that in the circumstances lie did not feel justified in making an order for more than 15s fi week. The question of costs would stand over. AN INSURANCE CASE. In the case the Farmers' Co-operative Association of New Zealand v. James Holme, an appeal made against the decision of a, magistrate., Mr G. Harper, with Mr Johanson, appeared for the appellant, and Mr \V. Shaw for the respondent. Mr Harper stated that Holme brought the original action in order to recover the sum of £l5O from tho Association, which conducted an insurance office. The respondent had let a house to a man named Green, and it was destroyed by fire. According to the insurance policy, the place was insured as a dwelling-house, but Holme stated that it had been let to Green as a dwelling-house. Later it was ascertained that tho place had been used as a lolly-shop, and that the manufacture of lollies had been carried on in it. The policy provided that an insurance ceased unless the insurer obtained the sanction of the company to a change' in tSie nature of the occupation, if the change increased the risk of loss or damage by fire. It was submitted that the company would not have renewed the policy on the basis of.a risk on a dwelling-nouse if it had known that the manufacture of lollies was being carried on. lii rebuttal, no evidence was brought to show that the premises were not used for manufacturing lollies. £hero was ample evidence to show that the place was insured as a dwelling-house, and that sugar was seen boiling by the neighbours, and that lollies were placed out on the verandah. He submitted that the magistrate was wrong in assuming that his client must show that there had been a fresh alteration during the month after tho original policy expired i>nd that he was entitled to -zo hack to tho conditions of the old policy, if it was shown that the conditions in tho premises had been altered. Tlio appeal. he submitted, should bo allowed. His Honor suggested that the claim should have been submitted to arbitration, which was precedent to any right of action.

Mr Johansen en id that the point had not been taken in the lower Court. He asked if the case could now be referred to arbitration. His Honor said that he could not authorise such action. Mr Johansen said that there had been a point-blank objection to the claim.

Mr Shaw, for the respondent, submitted that there was 110 evidence to satisfy the Court that tho appellants had discharged the onus thrown, on them to show that the nature of the occupation of the house had been changed so that the risk had been increased. The house had been insured as a dwelling-house, and occupied as euc.h. No boiler had been placed in' tho house after it had been insured, and there was no evidence to show that sweets had been habitually manufactured in the house. The evidence on the point was unsatisfactory and at most only showed a casual use. Hie risk had not been increased. There was no evidence to show that there had been any sweets manufactured between the last payment of the premium of tho policy and the firo. His Honor raised tho point that the policy had. been assigned to the Bank of Australasia and there was nothing to show that it had been'transferred back. It- was decided, with the consent ot the parties, to order a new trial before a Magistrate. The question of costs was reserved.

To-morrow morning, at 10.30, his Honor will bear the case Simes v. Burley, a claim for £92 10s.