COURT OF APPEAL

Dominion, Volume 10, Issue 3057, 19 April 1917, Page 9

COURT OF APPEAL

AN AUCKLAND CASE NEWi&TRIAL GRANTED. In xUe Court of Appeal the Chief' iastice, Siv fioberfc Stout, and Thoir Kojiours _ Sir John Donniston and Ifa. Justice Chapman hoard argument yesterday afternoon upon, a motion for a. iiew trial in an Auckland case. The motion' was removed, from tho Supremo Court, and'.'was made.upon the following grounds:-^ (1) That the:judge hearing the aoiion rejected evidence tondered on behalf of the plaintiff, which ovidenco ought to havfl Been admitted—namely, evidence of persons other than the plaintiff tendered, in order to. show a sys-tematic-course of dealing on tho part of the defendant similar to his dealing with the plaintiff. : ,(2) That the Judge improperly withdrew the caso from the jury on the ground thai; the plaintiff's evidence disclosed ao case for the defendant to answer. The statement of claim.set out: That oil or about October, 1915, in answer to a ; ii advertisement inserted in tlie "New Zealand Herald," the plaintiff, John Frederick Parkor, applied to the defendant, Joseph, Wachneiy for a loan of £2000 upoi the security of his farm at Gordonton; that in response to tho application the defendant informed" the plaintiff that before he, the defendant, could advanoe any monoy to the plaintiff it would bo necessary that a valuation of tho plaintiff's land by Messrs. Moffatt and Ballard should be obtained, and the defendant represented to tho plaintiff that if such valuation was' satisfactory he would advance the said sum of £2000; that tho said representation was false and fraudulent, the defendant well, knowing thai; he did not intend to lend the plain'sift the said sum or any other sum. ther such valuation was satisfactory or not j that . the plaintiff procured Messrs. Moffatt and 13al ; ■j.q mako a. valuation; and paid a f eo 0 f £H ■ that the valuers v^[ ue( l the property for .tho purpose?, 0 f mortgage at the sum of an( j that such valuation report transmitted to the defend-in-i w the valuers; that the "defendant ' a ',ted to advance to the plaintiff' any such sum; as £2000, and on Docembor 21, 1915,. definitely declined to lend the plaintiff any such sum ; that acting upon the defendant's representation the plaintiff undertook certain iournoy s, expended various moneys, and lost a good deal of time. The'plaintiff therefore claimed £11 special damages, and £4.0 general damages.

At the hearing of the action in the Supreme Court, counsel for the, plain-, tiff, tendered a . witness wlio (with others) was. present, in order to provo a system omployed by tho defendant to induce persons other than the plaintiff to apply to the defendant for loans or money to them by hiiii, or for "the 'purchase of mortgages by him, and to induce, sucli persons to expend moneys in 'obtaining valuations of such, properties,, upon a representation by the. defendant that lie intended to lend moneys' or. purchase mortgages on. the basis of such valuations. This evidence the presiding Judge held to be inadmissible, and, no further ovidenco being called, he withdrew the case from the jury, and entered a judgment of nonsuit. The Court of _ 'Appeal unanimously held that the evidence tendered by the plaintiff's, counsel in the Supremo Court was admissible. An order for a fresh trial was granted. Dr. H. D. Bamford appeared for tlic plaintiff, Parker, and Mr. J. R. Reed 1 , K.C., an'd Sir. A. H: Hindmarsh for the defendant Waehner. COLD EXTRACTION COMPANY. QUESTION- OF LIABILITY 1 • The Chief Justice and Their Honours 'Sir John Denniston and Mr. Justice Cooper hoard argument upon an application by the Waihi-Paeroa Gold Extraction Company, Ltd., for a declaratory judgment determining the following question: Whether or not upon tho statement of facts agreed to by the parties, the satd company 1 was liable under section 17 of the Waihou and Ohinemuri Rivers Improvement Act, 1910/ to contribute towards the moneys or levy mentioned in the said section. The company further applied for such other declaration or order as in the circumstances might bo just. The matter was ono removed-from tho Supremo Court. Dr. H. D. Bamford appeared for the company, and . Mr. J. W. Salmond, K.C., for tho Attorney-General. The Court adjourned before the hearing of the case was conoluded.