SUPREME COURT. YESTERDAY. The Evening Post. THURSDAY, DECEMBER 21, 1865.

Evening Post, Issue 272, 21 December 1865, Page 2

SUPREME COURT. YESTERDAY.

The Evening Post. THURSDAY, DECEMBER 21, 1865.

DUNCAN AND OTHERS V. TORNBtFLL AND OTHERS. The following is in continuation of what appeared in yesterday's paper : — After the Attorney- General had concluded an able address to the jury, the learned counsel on both sides agreed to an issue to be put to the jury previous to any other, viz. whether or not the interview between Mr' Turnbull, Mr. Owen, Mr. Duncan, and Capt. Mundle, in the cabin of the Rangatira, took place before or after the agreement had been made for the chartering of the vessel. Mr. Hart having addressed the jury on behalf of his clients, Hit Honor summed up, and the jury retired, and after an absence of a quarter of an hour expressed their opinion that the meeting in the cabin was subsequent to the arrangement made between the charterers and the N.Z.S.N. Company. His Honor then directed the jury to return a verdict for the plaintiffs— damages, £275 and interest from the date upon which the bill became due. The Court then adjourned at half-past six until this day, at ten o'clock. THIS DAY. Ilia Honor Mr. Justice Johnston took bis seat on the bench at ten o'clock. WAnBORTON ¦V. PHARAZYN. Messrs. Buckley and Borlase for plaintiff, and Mr. Izard for defendant. The following gentlemen were sworn as a special jury to try the case :—: — John Johnston, foreman ; Messrs. Battersbee, \t. Hunter, W. Hiukson, Ledger, Ludlaru, Mills, G. Moore, A. F. Stuart, E. Pearce, E. Tate, John Yule. Mr. Buckley opened the pleadings. This was a case wherein the plaintiff sought that the defendant should enter up satisfaction of a judgment taken out against him by the defendant in the year 1860. Mr. Borlase, on behalf of plaintiff, said that

in the year 1860 Mr. Warburton was indebted to Mr. Pharazyn the sum of £1741 17s Bd, and at that time went to the South with goods, in hopes of being enabled to dispose of them well. In his absence an execution was put in, and, the shop being bare, the Sheriff made a, return of nulla bona, when an allegation was made that the goods were removed fraudulently from the premises. The money due had been paid by plaintiff, but in consequence of a misunderstanding between Mrs. Watburton and defendant, the latter refused to give a release from judgment. Mr. Lipman Levy, in Mr. Warburton's absence, undertook to make an arrangement by which instalments were to be paid and an extension of time granted by defendant, but he afterwards i denied there whs any understanding between thorn. The following witnesses were called :—: — Thomas K. Warburton, plaintiff, examined: Judgment was entered against him on sth January, 1860, by defendant, for £1,741 17s Bil, and execution issued against his goods for that amount ; he did not conceal any of them, they were visible to every one ; the value of them was between £400 and J6500 ; they were seized and sold by the Sheriff, the proceeds going to satisfy an execution at the suit of Mr Rhodes, who had obtained judgment prior to Mr Pharazyn ; he had since discharged this judgment ; defendant entered into an arrangement with him through his agent Lipman Levy ; [document produced, and proved by witness as the agreement shewn him by Mr Levy, in Mr Pharazyn's handwriting. It is—" £1525, amount of orer- , due bills, without interest ; £50 law charges, paid by C. J. Pharazyn ; total, £1575, minus £514, leaving a balance of £1061. I agree to take Mr Levy's acceptance without interest for £500, and Mr Warburton's for £561, at two years, on condition that the acceptances given be registered, and take precedure of Rhodes' judgment."] Witness did not know whether Jvlr Levy gave the defendant a bill for £500 or not ; witness drew a bill on Mr Levy tor £500, which he accepted, and handed over to the defendant ; the £560 he paid by instalments. After the payment of the last instalment, applied to Mr Pharazyn ior a release. Cross- examined — Shortly after th« levy by the Sheriff on uiy goods, commenced business again ; that is, Mri. Warburton did so ; the goods were bought in in Captain Rhodes' name, by agreement with him at the Sheriff's sale ; the Sheriff was selling, under Captain Khodes' execution, my property, and the goods were bought in ; had no otiier goods when recommencing business, at the time ; had other creditors, but Mr Levy settled their claims at a composition of fifteen shillings in the pound ; one of the creditor* settled with was Mr Turnbull; Mr Levy volunteered to see Mr Pharazyn about his debts in a friendly manner, and did not ask how he was to be re-couped $ had repaid Mr. Levy his £500 bill, and given him £50 ; on arriving in Otago sent a power of attorney to his wife, who conducted all subsequent transactions with Mr. Pharazyn ; when Mr. Levy kindly settled with his creditors, had no money to do so himself. Mrs. Warburton, wife of last witness, examined — When making the last payment to Mr. Pharazyn, on Bth December, she said, "There's the last of your money— l'm very thankful for it ;" they shook hands, and witness asked if any interest was due, as if so she would pay it ; he made no reply. Cross-examined by Mr. Izard — Had no conversation with Mr. Pharazyn about the goods that were in the shop at the time of the execution ; he did not then say anything about Mr. Warburton— that he ought to apologize to him ; witness did not say that I s lie had secreted the goods, as her children could not starve ; does not recollect using this expression at any other time ; was positive she never did ; recollected the execution coming into her shop, but did not know what goods were then in it ; asked the bailiffs If they were going to take her children's clothes, and on learning that they were, she desired her children to put on all the clothing they could, or it would be taken away ; there were no goods removed from the shop except in the ordinary course of business -, did not know of goods having been removed wholesale ; the sheriff cleared out i all under the execution, leaving nothing but baTe walls ; no alterations had been made in the house since she got it ; there was a cubboard under the staircase, which was not nailed up at the time of the sale, and remains in its original state ; it did not contain any of her husband's goods at the time alluded to. Charles Bunnythorn Borlase deposed that

he was acting as solicitor for the plaintiff in this case in December, 1864, and that he applied to Mr. Pharazyn to release a judgment of £1741 17s 8d entered up against his client in 1860, and that he refused to do so. Mr. Warburton was recalled, and being examined on his former oath, said — I instructed Mr. Borlase to apply for the release of the judgment in December, 1864. This closed the case for the plaintiff. The learned counsel for the defence then addressed the jury on behalf of his client, and said that the agreement entered into by Mr. Pharazyn with reference to accepting £1000 instead of the original debt due to him by the plaintiff, had been only so entered into upon the distinct understanding that he was insolvent. He then called Mr. Pharazyn. The case was not concluded when we went to press.