LAW REPORTS.

Dominion, Volume 5, Issue 1290, 20 November 1911, Page 3

LAW REPORTS.

SUPREME COURT. "IMPUDENT EXPLANATION." JUDGE'S STRONG COMMENT. A SALE OF CHAFF. Somo strong comments were made by the Chief Justice (Sir Robert Stout) on Saturday morning, when delivering liis reserved judgment in an appeal ease, which had been heard by him about a week ago. Ihe parties to the action wero Corry and Co., grain merchants, of Blenheim', appellants, and S. liowo and Sons, Ltd., grain merchants, of Wellington, respondents. Mr. A. W. Blair appeared for the appellants, and Air. A. Gray for tho respondents. In the original action, tried at Blenheim last, year, Corry and Co. sued Kowe and Sons to recover tho sum of <£75 10s, i'd., mado up ot various items for secondhand sacks, for 275 sacks of chaff alleged to havo been sold and delivered to Rowe and Sons in 'April, 1908, for interest, and tor expenses. as a witness in an action between Rowo and Sons and the Union Steam Ship Company. Kowe and Sons counterclaimed to recover from Corry and Company costs and expenses incurred in the action; against tho Union Company (which, action,-it was alleged, was taken at tho instigation of Corrv and Company), and in the subsequent appeal in the Supreme Court, and for ireight paid on the chaff,.which the Union Companv successfully proved had not been shipped by Corry and Company under the description alleged. • The magistrate (Mr. R. S. Florance, b.M.) gave judgment for Kowe and Sons on both claim and counterclaim, and judgment was entered for .£9l. It was from this decision that Corry and Company had appealed to tho Supremo Court. A- great deal of the evidence before the Court \ras in the shape of correspond- J ence between tho parties. His Honour, after reviewing this correspondence, said: "It is clear from the correspondence that the appellant represented to the respondents, and so induced them to sue the Union Steam . Ship Company, that the chaff marked.'A,' 275 sacks, had been shipped. Mr.. Blair contends that this was an innocent misrepresentation, and that before , the respondents could recover they must show that the appellant made the representation knowing it was'untrue, or recklessly, without earing whether it was true or false. I assume that this is necessary to. be proved, and, in mv opinion, it was proved. There are two letters sent to tho. respondents by the appellant which can be explained on no other supposition than that he knew chaff 'A' was never shipped, but it was P.P. that was shipped." His Honour, after referring to these letters, said that in this suit,'appellants evidence contradicted the evidence he had given in the case of Howe v. Union Steam Ship Company. "One or other statement was false," remarked the (earned Judge, "and this was his explanation " 'I say at the time I gave that evidence I believed it was right. I was thinking of a prior dealing with Eowe and Sons of Smith's chaff; I would romember better to-day than then. I ' do not admit chaff 'A'- was the samo as chaff 'P.P.' It was probably both marks. I say it was not Smith's chaff but Murray's. I had no records with me to help my memory then—l had to hurry up.'

"A more impudent 1 explanation, considering his letters already quoted, it would be difficult to find in any case. I am of opinion there was a fraudulent misrepresentation, and that the appeal on both matters must be dismissed, with JCIO costs and disbursements." Mr. Blair said lie would like to refer to the question of costs of the appeal in the previous case. His Honour replied he could ,not,.help that.'" If 'people chose to send others to law on fraudulent misrepresentation, they niust' pay for it.' Mr. Blair: Tour Honour 1 has found mora than tho magistrate. His Honour: I don't care what the magistrate found. I've been through the whole of the correspondence. Mr. Blair: Will your Honour give leave to appeal? Hi 3 Honour: No. I'll do-nothing of tho sort. The only leave I feel disposed to givo is leave to prosecute for perjury. WHERE ARE THEY? MISSING NEXT OF KIN. DEATH PRESUMED. Mr. J. W. Macdonald, solicitor for the Public Trustee, submitted a report to the Chief Justice (Sir Robert Stout) on Saturday in connection with the estate of Thos. Bourke Mitchell, farmer, late of Belfast, Canterbury, who died in July, 1902. At the time of: his death, deceased was a widower, 62 years of age, and left no children. His brother-in-law, Wm. Bourke, of Marshlands, farmer, made a statutory declaration as the next of kin of the deceased, in which he stated that ho had known Mitchell from childhood, and that his (Mitchell's) father was married twice. By his first marriage, according to this declaration, he had a son, William, and by his second marriage three sons, Matthew, John, and Thomas, and two daughters, Mary, now Mitchell, of the United Stales, and Ellen, now Bourke, wifo of Wm. Bourke. The case originally came before the Court on April 29 last, when there was a petition in respect of the share of the son John, who had not been heard of since 1880, and the son William. ' These shares amounted to .£2OO each, exclusive of accumulated interest. The brother Matthew, writing to tho Public Trustee from Ireland, denied the existence of tho first marriage and the issuo thereof (his supposed half-brother William), and enclosed a certificate from the Rev Maurice C. Power, of Etnly, Ireland, bearing on the declaration mado by Wm. Bourke. Following on this, tho solicitor to the Public Trust Office wrote to the Rev. M. C. Power, in order to clear up the mystery of the: missing half-brother. A reply came to hand that he had searched all registries and made inquiry of the old people of the country, but nothing could be discovered of this marriage. On re-ceipt-of this letter, Mr. Bourke adhered to his former statements, and stated he had last seen William in 1848, and had heard that he had subsequently enlisted for the Crimean W r ar, and was heard of no more. Search had been made for tho missing, brother John in New South Wales, but no trace of him could be found. The estato had been distributed long ago, but the two shares in question had been reserved pending inquiry. The evidence in support of the petition was very long.

On that occasion his Honour adjourned the petition. for six months, and in the meantime directed that in respect of John Mitchell two advertisements be inserted in the "Catholic Times," Sydney, at intervals of a week, and if no such paper is in existence, then in tho "Sydney Morning Herald." In respect of Win. Mitchell, two advertisements at similar intervals be published ill some paper published in Limerick. The question of a final order could bo considered at the exniration of six months. The advertisements were duly inserted, and tho matter came before the learned Judge again 011 Saturday. No word of 'the missing brothers had been obtained, and his Ifhuoiir made an order presuming the death intestate of both brothers. AN ABSENT SON. LAST HEARD OF IN 1803. In tho Supreme Court on Saturday tho Chief Justico (Sir Robert Stout) heard an application by the Public Trustee relative to the share of Albert Francis Langdon in the estato of his father, Thomas Langdon. butcher, late of Christchurch, who d-ed '.m May IS, 1901. Deceased directed his rsUto to be divided among his eight omldivn. With the exception of. Albert Francis Langdon. all have received their share. This son has not l>ecii seen by members of Hi" family since ISS.i, but was ! heard of in IS9S in Cympie, Queensland. | Inquiries bv the Public Trustee through the Australian police proved .fruitless, as l did inquiries'throiifh the vnrints' tlwt.'i J registrars in tho Commonwealth. The | son was never' known to have < married.

Mr. J. W. Miieilouiild npiieiii ril fur I lie Public Tru.slco on Saturday, nml submitted evidence to the Court in support of the above. Ilk Honour made nil order prrsuuiiii* death.

NEPHEW CANNOT DE FOUND. MAY UK IN CANADA. Another mutter dnilt with liy (lie Chief Justice was an application roiirerning n missing nephew of 'J'lionia-< (locidniuu. laic of llillgi'iive, Ofago, labourer, ili'eeaseil. of whoso estate the Public Trustee was administrator. Deceased died on December 2'J, ItlllT, and bis estate liccaiue diviv iblo. between his sister, .Mrs. (I. Scabrook, 52 Sherwood Villa, Watford. IlerlKni;land, and a nephew, (Icorgc .M'Carlhy. Tho nephew cannot: be found. His aunt iliMii'toil advertisements iwiiiirinc hii whereabouts in all the English papers circulatinsr in Ihe colonies', and, lliese proving fruitlcfs, she requested (he Public. Trustee to apply (o the Court for dirertions as to tho disposal of the missing nephew's share, it was thought he might possibly be in Canada. Mr. J. W. M'Donald appeared for the Public Trustee, and submitted tho evidence forwarded from England. His Honour, the Chief Justico (Sir Jiobert Stout), directed advertisements to issue in Torouto and Montreal papers, and, in tlio meantime, adjourned the application for six months.