SUPREME COURT, INVERCARGILL.

Western Star, Issue 1573, 24 June 1891, Page 2

SUPREME COURT, INVERCARGILL.

(Before His Honor Justice William). Friday, 19tei June. (Prom Tnvercargill Papers.) J. I'INN V. WALLACE COtfNLT COUNCIL. The jury returned at 4.10 p.m. with the following answers to the issues : 1. Did the accident to the plaintiff happen through the culvert not being in a reasonably pafe condition for public use ? —Yes. 2. Did the County Council, before the accident, know that the culvert was not in a reasonably safe condition for public use ?—Are of opinion that the Council ought to have known. 3. Did the County Council or its officers and servants, bofore the accident, fcak"» reasonable care to make themselves acquainted with the condition of tho culvert and to ascertain whether it was in n reasonably safe condition for public use, or whether it rrquirod repair ?—No. 4. What damages, if anv, is tbo plaintiff entitled to recover? — £BIO.

i Judgment for plaintiff accordingly, with I costs as per scale, disbursements and wifc--1 nosses' expanses to bo fixed by tho Registrar ; allowance for second counsel, and £ls 15s for second day. Saturday, 20tii June. ]'. ayson v. a. a. mo'giubox and c. wood. Tliis was a claim for the return of certain sheep or their value, £445; £390 as damage* for their allrged wrongful detention; and CSOO damages on account of the loss plaintiff had suffered in trade and reputation through i ho action of the defendants. The statement of claim set forth that on the 14th May tho plaintiff, who is a farmer airl cattle dealer, placed in the hands of defondants, who are auctioneers, 890 sheep, which they were to soil in conjunction with Mr T. Green. Plaintiff appointed the defendants to act as his agents for that purpose, and the sheop passe 1 into their possession in that cap-city. At this tirao tho plaintiff owed the defendants about £32G. The sheop wero not sold, aud were left, in defendants' yards ponding an offer which might be received for them. The plaintiff alleged that the defendants then, in order to obtain posof the shoep, by secret and fraudulent device, employpd one Jamo3 McCaw to purchase tho sheop for them in his own name, aud to pretend that he was the real purchaser; that plaintiff sold them in that belief; that when ho discovered McOaw was aoting for the defendants ho rofused to carry out tho alleged contract, Bnd had never ratified it. The statement of defence denied that any fraudulent device bad been employed, and alleged that the plaintiff owed tho defendants £l5O over aud above the amount stated by hira ; that the sheep were sold personally by the plaintiff, through defendants' introduction, to James MeOaw, at 9s 6d per head; I hat on the 15th May the plaintiff made an agreoment with the defendants in connection with the sheep : and that he had not suffered thi'ough defendants' action. Bvidonce having been givpn and legal argument at some length having been entered into, the jury returned a verdict for the plaintiff—finding that ho was eutitled to the value of 890 sheep, which thev estimated as worth 9s 6d each (£427 15a) and to damages, assessed under ono general head, amounting to £125.

J. C. ELLIS V. JAMBS ASHBUUY. Motion to resiund order giving leave to is3ae writs without sorvioo on the defendant in two actions in which the plaintiff claims £4OIO 9s 5d and £1415 4s lid respectively. Sir R Stout appeared in support of the motion, and Mr Harvey, with him Mr Eattriy, to oppose, it was in the following terms: —(l) That the order made heroin on the 18th day of February, 1891, giviog the plaintiff leave to issue a writ herein and proceed thoreon without service on the defendant may be rescinded. (2) In the alternative that the defendant may have leave to file a statement of defence herein, and that the trial of this action mar bo postponed pending an application by the defendant for a commission to have his ovidenco taken in England. (3) That such further or other adjournment may be made herein as to the Court shall seem proper. (4) That an order may be nude as to the costs of this motion, The gionnds upon which the Court was moved woro that the order of fcho 18th February should not have been made; that do contract was over made or eotere 1 into by the defendants: aud upon the further grounds disclosed in the affidavits of the defendant and J, J. Zimmor.

i I Sir Robort Stout, bavitig given particulars i of the various promissory notes on which I the plaintifi'is suing, read the affidavits tiled 1 | by the plaintiff and his solicitor (Mr Harvey) upon hearing which tho order giving loavoto dispense with service of writ was granted. Those stated, inter alia, that when the notes were signed, J. J. Ziinmer was the defend. ' aat's agent in New Zeiland and afterwards i became his geueral attorney, and that tho notes were signed by him in'the defondaut's name, and that they were presonted on the due dates and dishonoured. A. second filed by Mr Harvey stated that the j defendant's principal place of business was j in London and that he was a British subj tot. i in support of tho motion to set aiide tho I order affidavits datod 15th April, LS9I, and j 11th and 19th of June, 1891, were tiled by the I defendant and J. J. Ziinmer, and these wore followed by answering affidavits from Mr Carr, manager of the Bank of Australia, .Mr Uarvoy, the plaiutiff, and ,1. 0 Ellis —Sir U. Stout now submitted that no oral authority had boon given to J. J. Ziiumor to sign tho promissory notos sued on ; that there was no evidence that ho signed any othor than those given to J. C. Ellis; that j no written authority was ever given to Mr i Ziinuier to sign any promissory notes ; and that no authority to sign promissory notos I was givon in the power of attornoy referred to in the affidavits. The charter of Mr Zimmer's authority and agency was the power of attorney; in that there was no authority to sign promissory notes, and oouosel submitted that the Court oould not go outside of that aDd that tbo order giving leave to dispense with service ought tborofore to ba set aside. He further submitted that the plaintiff in his answering affidavits had attomptod to sot up Homothing which was in contradiction of the case thoy first presonted to tho Court, on which tho ordor was ina.lp, and he held that the Court ought to proceed in dealing with that first as it would with

any other application made ex parte. Learned counsel then roforred to the defendant's affidavit', from which ho said the Court could see the reason for the present suit proceeding in the way that it had. There was a lawsuit pending in London between the defendant and Mr J. C. Ellis, the plaintiff's brother, in connection with tho salo of the Merrivale Estate, and the fact that all the other promissory notes given by the defendant had been included by the defendant in that action was strong evidence that he was not aware of tho existence of those now sued on. Counsel presumed that the attorn pt to got judgment in the prosent case was in order if possible to have the proceedings transferred to London and worry the defendant there because he was worrying tho plaintiffs brother. Sir Robert Stout next dealt with tho affidavit received from the dofendant, who stated that but for the accident of his late agent being in Invorcargill ho might never have heard of the proceedings t->ken by the plaintiff in tho matter of dispensing with service of writ. He also explained that the promissory notos wore given under circumstances set out in his counterclaim agninst the plaintiff's brother, and that thpy had not been signed by his authority. The affidavit filed by J. J. Zimraer, which counsel characterised as frank, honest, and straight-forward, was also read, at which stage, the Court, it being then G. 15 p.m., adjourned till Monday.

Monday, 22nd June. KIiEACH or PROMISE CASE. Kate Veronica Cross v. James Leslie Theodore Howell. The statement. of claim set forth that plaintiff is an infant, and sups by her guardian Alexander Cross ; that in July, 1889, she and defendant agreed to marry; chat plaintiff had given birth to a child, of which defendant is tho father; that on the 17th. December, 1890, plaintiff and defendant agreed to marry one another on tho 22nd D?cember; that plaintiff had always been ready and marry the defendant; and that defendant refused to marry the plaintiff on the 220 d day of December, 1899, or at any subsequent time ; wherefore the plaintiff prays judgment for £2003. Mr T. M. Macdonald appeared for plaintiff. There was no appearance of dofondant, who was unrepresented by counsel. His Honor: There is no defence filed, and no appearance of defendant, so that it is merely a matter of assessing damages. Mr Macdonald: That's all, your Honor. Learned counsel oponod the case at length on behalf of plaintiff, and then called Kate Veronica Cross who deposed that she was tho daughter of Al"x. Cross. Sho had known defendant for five or six years. Their acquaintance became very close, and dofendant offered her marriage in 1889, and thpy becime engaged. After the engagement defendant seduced her. It was only on the ground of his promise that she permitted him to do so. In Septeinbor last she suspected hor condition, and spoke to defendant about it. When shr> told him he advised hor to sob a doctor, and stated that if sho was in the family way he would marry hor at once. After seeing a doctor, she spoke to her mother about hor suspicions, and, ultimately, in Decomber, 1890, thero was no longer any floubt. On the 15tb Deoember she saw defendant—who wa-i in the habit of visiting her at her fatlior's place in tho capacity of an acoopted suitor —in tbo presence of hor mother. Her mother told defendant there must bo no delay in his ni3rryiug her. Defendant answered : "Of course; the sooner the hotter," and added that he would go straight away aud see hor father, which he afterwards did. On Wednesday, Dccenbcr 17, she saw defendant again, and Monday, tho 22nd, wns fixed as tho day for tho marriage. On Thursday, December IS, she and her mother saw dofendant at his office, and told him that hnr father would agree to tbo marriage on condition that h ' signed a deod making ovpi- half the money ha was entitled to to witness. Dofondant consented. On the night of tho same day arrangements wore mode as to the hour for the marriage. Ho said ho had soph the minister—the Rev. Mr Fcrsruson—and that he would be round sh'irp on Monday at two o'clock, as they wero to start that afternoon for Riverton for a trip. On Satindav, the 20tb, sho again saw dofenant at a quarter to one o'clock, when he gave her tiie Registrar's marriage certificate. He said he was going to start for Riverton that afternoon tn soo his mother, but ho would return not later than twelve that night, and that she was to wait np for him, to let her know what arrangements ho hid made with his mother. He did not como that night, and she had not seen him since in New Zealand. ' On Monday all arrangements wore mado for tho wedding, and at two o'clock all tbo guests wore assembled at hor mother's housp, but defendant did not appear. On the following Saturday (Dec. 27) sho and her father went to Melbourne. They s:iw Howell on Jan. 5. He told hor that he thought ho would marry her, and would seo her in the morning; She had not seen him since, but hor father had received a letter from him. Sho had had a child, of whom defendant was the fathor. Wbilo ho was courting her he said that all his family would share in his f ither's property when the younaest came of ago, and that ho would receivo £4OOO more or los?. Sho had been vary much attached to Itini.

Alexander Gross, father of the plaintiff, deposed that defendant had been coming to hia plaeo for tho last five years. Witness looked upon him as a very steady lad—the bost in tho family. Ho wag now *i3 years of ago. Ha had visited witness' house in Ricerton, and was looked npou as an accepted 3uitor. On Monday, Dae. 15, defondunt cairn to him and said ho (witness) knew ho was very fond of hia daughter, and asked if ho would consent to the marriage Witness asked him what hi* prospocts wore. He replied that his present income was about £3 per week, and that his mother would assist him; and also, that he would bo entitled to about £4OOO under his father's will. Witness told him that he had bettor wait, that thero need be no hurry about the marriage, but defendant said ho would like to be married at ouce. Ho gavo no reason. Witness told him he would see him on the following Wednesday morning and give him an answer. Tho same evening he learnt the state of matters. Howell came us arranged on tho Wcdnosday, and witness told him that, undor the circumstances, he would oonscut to tho marriage to presorve big daughter's honour, on condition that ho

settled half the money coming to him or her family, if any. Defendant agreed, and signol a lottor to thafc effect (letter produced). Nothing was said at the time about his daughter's Condition—he wan ho annoyed thafc he thought it host not to mention it. In pursuance of the lottor a dead of settlement was prepared at Mr McDonald's office under defendant's instructions. Monday the 23ud December was fixed for the wedding. On Friday the 10th he saw defendant, who asked witness if he would come to tho Registrar's office to sign his coii3enfc to his daughter's marriage Witness told him he would | £0 with him on Saturday morning. Defendant came at 10 o'clock tint day. Witness told him th.it ho was busy ]o iking over tho draft of tho deed of settlement, but to coins in at twelve and he would be with him. Ho also told defendant that there was no hurry, as Monday morning would do. Defendant said ho w.»s in a hurry, th it he w.iuted it at one". Wit lies*! wool, with him at 13, and gave his consent. Defend n.<t got the I ammo and paid for it. That was the 1 isfc witness saw of him in tho colony. (Ja the Uondav, ul, two o'clock-.

everything was arrauged for the marriage' the wedding breakfast was set, and the guests invited, but there was no appearance of dofendant. ilis family were, very much embarrassed by the painful position in which they were placed. The Bluff brain to catch the Melbourne steamer left Itivercargill at half past two, or about two hours after defendant got tho liosn.«o for tho marriago. The following Saturday witness went to Melbourne with his daughter for tha purpose of seeing Howell. lie mot him on Monday, January 5, and asked him what ho meant by his conduct. Defendant admitted that he

had made a blackguard of himself, and said ho supposod ho would have to pay for it. Witness explained that his only reason for havjug ootne to Melbourne was to prcteot

his daughter's honour. He told him that, under Dresent circumstances, he should csirry out his promise of marriage, and, that if he could not keep his wife he (witness) would maintain both her and her child till dofendant was in a position to do so. He told defendant that it was very hard lines upon him to havo to do that, but that to protect his daughter he would have to do it. Dofondant gave no definite answer then but said he wni'd like to consult his brother and that ho would call again the following morning to see witness at his hotol. He did not come, but sent tho following letter:—'Dear Mr Cross—After due consideration I have come to tho conclusion that I cannot marry your daughter. You are quite at liberty to take any proceedings you may think fit." Defendant was in a situation in Molbourne. Mr Macdonald, in reply to His Honor, said he had no proof as to defendant's position besides his own admissioDS, but ho was prepared to admit that the amount coming to him under his father's will was not £4003, but botween £2OOO and £2500. His Honor, addrpssiug tho jury, said they had heard the evidence, and all they had to do was to settle tho damages. The facts were admitted—that there had been a breaoh of promise, and that plaintiff had been seduced. Tho plaintiff claimed £2OOO. Tbev had the full right to take tho whole circumstances —and they were exceedingly bad -into consideration. Tho breach of prowas of a flagrant and gross kind, but though large damages were jus.ifiablo, they ha 1 o take into consideration the position of the defendant, and his capaoity to pay the dam iges. If he were a rich man, whose promis i had been broken, tho plaintiff would hav • lost a good position in life. Of course it \v u better for a woman to marry a man witli monoy than on 9 without, aud if a mu'i of money broke his promise ho should pay more because the loss to the woman was greater. The defondant in this case was a yo» "4 man, 23 years of age, in a situation in Mo'l.'ouruo and had property worth from £2 : ).l to £2500 which ho would come into in th:c; or four years time. The jury ought to loo ; c at the whole circumstances, and give sui:!i damages as would compensaio the plaintiff for the grievous wrong she had suffered, but, at the same time, ic would not be reasonabio to givo a verdict for more than the defendant coul I reasona'-ly be etpected to pay. Tho jury, after about seven minutes' retirement, returned into court with a verdict for plaintiff for £1250. Judgment was entered up accordingly by His Honour, the costs to be paid by defendant.

ELLIS v. AsnmißY. The above case was continued, by. Sir R* Stout resuming his address which he had opened in support of the motion on Saturday. Mr Harvey followed, opposiog the motion. After lengthy legal argument His Honor said the precipe term of the order could be settled next morning. Tuesday, 23kd June. ELLIS V. ASHIiUKY. Tho following order was proposed by defendant's counsel:—l. Order to stand. 2. Leave to file defence in two weeks. 3. L'avo to apply for Commission. 4. If notice of appeal given and security for costs stay of proceedings save filing of clofeuce and issue of commission granted till further order. 5. Filing defonce and applying for commission by consent to be deeraod no waiver of notice of appoal against first part of order. G. If defence not tiled defendant to be deomod to havo been served with writ of summons and statement of claim. The order proposed by plaintiff's counsel was as follows :—l. Order for leave to proceed without service in both actions to stand. 2. Leave given dofondant to filo defence in both actions within two weeks. 3. Lsave to apply for commission to examine defendant in London. 4. If notice of appeal given and security for costs found to the satisfaction of the Registrar at Invorcargill within the time limited by the rules stay of proceedings save filing of defences and issue of commission granted till farther order. 5. Filing cf defence and applying for commission by consent to be deemed no waiver of notice of appeal against first part of order. 6. If defences not file 1 within time limited, defendant to be denned to havo been duly served with the writ of summons and statement of claim in both actions, and plaintiff to be entitled to proceed to obtain judgment by default. 7. If the defendant, having obtained a commission, does not promptly'submit himself for examination in London, and return the commission within five months to this Court, plaintiff may apply to the Court for judgment. 8. Costs to be costs in the causo. Hi 3 Honour said when tho commission was applied for the Court would impose tern.B securing the prompt return of the commission, and plaintiff would then be heard thereon. Meantime he deleted olause 7, and inserted as clause 7 a eUu <e—Costs to be costs in the cause.

W. REED, SEN-U. AND JLW'K. Y. NIGHTCAPS COAL COMPANY Claim, £SOO damages, for the alleged Hooding of fio plaintiffs' mine by the action of defendants. Mr Macalister appeared for plaintiffs o-jd Sir Robert Stout, with him Mr Rattray, for the defence. The case was heard beforo a special jurv, consisting of Messrs F. Woodward (foreman), R. P. Maogoun, Robert Wesney and A. Baldey. At tho outset, Sir Robort Stout took exception to the statement of cluim, holding that the damage;!, instead of being iumned, should bavo been devided to show how much each of the plaintiffs, tho father an I son claimed. There wero two torts charged, honce the damages must bo severally assessed. Mr Macaliater said tho aotion was brought by Win. Reed, colliery proprietor, of tba A'i«htcaps, and svith him was joined hia sod. Their statement of claim set forth that Win. R'leJ, the youagor, wa< tho o.vn >r .if saction 1, block 3. Morley Village, and that Wm. Hoed, the elder, was in oyoupation. The defendants carried on mining on section 3 block a, Morley, owned by Johu Bin-el], ami it was alleged that, on the 2j;h May, thov by their agents and servants had removed a drain and thus diverted tho water from the Waiiio stre.itn on section 1 with tho result that the plaintiffs' mine w,is flooded, preventing him from working at it or getting coal

from it. At tho lowest ostimate the quantity of coal pbiutiffs had lost was 500 tons, besides suffering other damage, wherefore they claim cCSOO. Tho defendants, in tboir pload. ings, doniod all tho material allegations, and said that if tho plaintiffs' laud was flooded, as alloged it was caused by their own negligence. Mr Maoalisfcer, in explanation of the circumstance--, said Wut. Rood, the older, had formerly been in the employ of defendants, but wishing to do something for himself in ruin- " ing, he pnrohasod son.e land about five years ago, and had since carried ou for himself Mr Rood was the only person in the Night caps competing against tho company and ha hid been selling coal equal in quality to tho company's in luvercargill at » lower piieo than tho defendants charged. There were circumstances lea ling up to this case which would show vindictivoness on the part of the company.

It would bo proved that defendants had hist far more coal than we.s set forth iu the statement of claim, and that it would bo in. practicable to pump the water out. Tho plaintitfs had therefore bean compelled tu open up a new pit, which would cake thorn fully threo mouths, and it woulj bo two or fhtve years to get it in tho same workiu" order ;is the mine that had boou flooded by defendants' action. It \yould bo shown that tho cutting of the dam was not done bv defendants for tho purpo.se of miniug. There soem'id to bo no rtjasou whatever for it, and there was no alleged objeot in viow. Ho thought he would bo ablo to prove to the jury, however, that tho defendants had wilfully flooded the plaintiffs out, with tho objojt of prevonting tUem oarring on mining und soiling coal in opposition to tho Company. Evidence was given in suDporfcof Counsel's opening remarks, by John H. Treaeder, and J. Hay authorised surveyors and J. G. Clare chief draughtsman in the survey office, when m court adjom-Dtid for lumjb,,