SUPREME COURT.

Evening Star, Issue 3866, 15 July 1875, Page 2

SUPREME COURT.

IN BANCO,

Wednesday, Jolt 14. (Before Mr Justice Johnston.) HERBERT V. THOMSOX AND OTHERS. Mr Macassey referred to the letters to the Chief Commissioner of the Waste Land Board, and to the Executive, also to the advertisement in the * Daily Times f of the 6th, and contended that there was quite sufficient notice given to the defendant. To show that they were aware of the injunction of the Court, he referred to their action at the meeting on Ihe 6th, when they took steps to countermand the telegram of the Chief Commissioner. He submitted there was enough here to call upon defendants to discharge themselves by exculpatory affidavits. Mr Bastings, in his affidavit, did not pre lend that he had not seen the notice or letters—he said he did not " know ;" but it was quite sufficient for the purposes of the cr.se that he had heard. Messrs Bastings and Clark well knew the injunction order had been made; the Chief Commissioner and Mr Reid knew ot it, and they met together at a meeting of the Board to deal with the difficulty caused by the Chief Commissioner in sending th*e telegram. Messrs Clark and Bastings must have had sufficient knowledge at all events to cause them to make an inquiry. There was quite enough disclostd to charge the defendants with knowledge, and they had not in their answering affidavits sufficiently discharged themselves. He also submitted that if there were any real doubt regarding the knowledge of Messrs Clark and Bastings, that doubt could be settled by personal examination. That would remove any distinction between the two defendants and Mr Reid, and for the purpose of the application they all practically sailed in the saiuc boat. It was said on the part of Mr Reid that even he had not sufficient notice, but he (Mr Macassey) submitted that the letter of the sth July put that beyond all doubt. Regarding Mr Reid's affidavit, he contended that the practice of any Court would not sanction so ex traordinary a document. If Mr Reid had, aided by the legal advice which he no doubt secured at an early moment, had gone to the Court offices, he would have found there not only the declaration alluded to, but also all the materials alluded to. Mr Barton : Perhaps his advice was to walk the other way. Mr Macassey : If Mr Reid walks the other way he must take the consequencis. His action was, in effect, saying, "I shall shelter myself under the plea that I was not served by a special notice, and so avoid plunging into the gulf before me." That he (Mr Macassey) submitted was a course no Court would allow. Mr Reid stood as much committed as if he had seen every document, and if he made no further inquiry he must take the consequences. Ths very object of the notice was to eause the person who received such to put himself in the position of having to make cer tain inquiry. Notice even implied that the party was affected by all the consequences implied by law as the result of notice, though there might have been no actual knowledge. Granted that Mr Reid had no actual knowledge, there was sufficient in the shape of notice to require Mr Reid to prosecute inquiries and .to ascertain the order of the Judge. Having declined to act conclusively and prudently, he could not now take shelter under the flimsy plea that the declaration was not served. On the laßt point, violation of the order, he submitted that there was a breach of the order, and in respect of that he asked his Honor to look to the case made in the plaintiff's declaration. It was quite true that the declaration had not been served on Mr Reid. He (Mr Macassey) would go back to the ground he had already cleared, and urged that :Mr Reid had sufficient notice for him to inquire. Mr Stout had contended that the plaintiff had no equity, except the pretended pasturage chim : but he had three equities. There was the right to a return of a portion of the assessment paid by way of rental on the lands in the lease; there was the right not to be dispossessed until payment of compensation for the land; and plaintiff could not be divested of his rights until paid for improvements. The learned counsel then commented upon what he called the very antiquated cases from Peere Williams, which, strange to relate, were treated aB doubtful by the gentleman who re futed them.

Mr Stout: They are approved by Lord Chancellor Eldon in a case in 16 Vesey. His Honor : You had better distinguish the caseß, Mr ivlacassey, rather than doubt them. Mr Macassey then nroceeded to distinguish them, lie also remarked that the defendants had offered a futile remedy, which would send them chasing all oxer the country and back again to the Waste. Land Board to protest. His Honor Baid that defendants' counsel hnd only said that a number of remedies were open to th'! plaintiff, and there were also others open to him. He (the learned judge) could not presume that the Board would sell the land which was in dispute here because they received applications. Mr Maoassey said it must be assumed that, in launching the proceedings, the Board was not acting as if it thought its sales on deferred payments were about to prove futile. They must, on the 6th July, when they received applications, have intended to sell and dispose of the land. They now denied such intention. The form of notice Berved on Mr Keid was impugned as not giving him sufficient notice. But it was idle to say that. He must have known that the plaintiff was attacking the action of the Board to protect his run. He did not say the defendant had acted intentionally disrespectfully, but he did say that under the pretence of legal advice they had shown that they were determined to proceed in spite of the injunction, aHd to tako their own way, notwithstanding the plaintiff's claims.

Messrs Cook and Haggitfc on b<?haK of the plaintiff were also heard. His Honor asked Mr Macassey if he had any objection to the motion for disallowing the in junction being heard before he gave judgment. Messrs Barton and Stout aked that his Honor would fix Saturday to hear that motion. The Board had only thirty days, and they would aßk his Honor to hear the case, and decide it, so as not to make their proceedings tutile in case they succeeded. His Honor agreed to take the motion on Saturday, and it was decided that judgment in this case ahould stand reserved until after the hearing of the other motion.

CIVIL SITTINGS.

Thursday, July 15. (Before His Honor Judge Johnston and a Common Jury.) Wm. Fricker v. Mary Fricker and Edward Fkickkr.—Claim, L4OO, balance of account due. Plaintiff, in his deelaratioa, alleged that he entered into partnership in business with defendants in 1858, and so continued till March 26, 1874, when the co-partnertshi p terminated. It was agreed that plaintiti's share in the property should be determined by valuation, and that he BUould sell his portion of the property to defendants. The valuation was made, and thefollowingdocument signed by Wm. Fricker, and his mother, Mary Fricker, was drawn up on March 26 : " This is to certify that I have this day withdrawn from all connection with Mrs nnd Edward Fricker, for the sum of L 847 18s." Of this amount iho defendants had paid L 447 18s, leaving the balance sued for. Mr MaoasHey appeared for plaintiff, and Mr Stout for defendant*.

For the defence it was alleged that then was no partnership, and that Mrs Mary Flicker was induced to make or sign the alleged memorandum iu writing and the alleged agreement of Bale, and to pay the sum of L 447 18s, by the plaintiff's threatening to burn down or tear down her dwelling-house, ;»nd that the amount was paid in fear tbat his threats would be carried Jinto execution. The sum was obtained by fraud. John Johnson, farmer, living at Awamoko, said that he knew the defendant, Airs Fricker, a widow, and William and Edward Fri«ker, her sons. Plaintiff (Edward) lived at Oamaru, and the defendant (William) lived at Awamoko. Some time iu March, 1874, Mrs Fricker asked him to try and make pi ace between herself and her son William. She represented that she could get no peace, and she wanted to get lid of him, and asked him to value licr property so that a settlement might be come to between them. With Mr Macaulay, another settler, he valued the movables. Witness acted on behalf of William, and Macaulay for Mrs Fricker. The document produced showed that Mra Fricker afreed to give William L 847 18s on withdrawing her interest in the property, and the signatures of plaintiff and bis mother we--e witnessed by witness and Macaulay. Witn'Bs wrote out a cheque for L3OO, Mary Flicker signed it. and witness handed it to Win. Fricker. Edward Fricker was not present. James Macaulay also gave evidence referring to the arrangement come to between the Friokeis. It was understood that William should have one-third of the valuation on withdrawing from the partnership, and Mrs Fricker agreed to add LIOO as mon>y due to hiin from his uncle. Witness drew up the document, and was instructed by Mrs Flicker to divide the valuation into three parts. William Christie, manager of the National Bank at Oamaru, produced a cheque tor L3OO, signed by Mrs Fricker, and paid into the credit of William Fricker, who then had an account in the Bank. The oheque was paid into William Flicker's account in March, 1874. In May of the same year Mrs Fricker paid LIOO into William's account. She never complained of the first cheque being debited to her.

Edward Flicker said that the letter produced was written by him on behalf of his mother to hs brother William, dated July 14, 1874> It ran thus: "Dear Son, —I am in receipt of your note asking for cash, but am sorry to say I cannot comply with your request this week, for I, or we, have not got the money. Ido not understand when you say not to forget to send down the feather-bed, but if you remember rightly when I told you that when you got married I •would give you a feather-bed. you told me to keep it. You said no, ana of course you meant it. Should I give it to \ou I would be giving you my living. I can always make a shilling with it when I am short, and moreover, if I gave you it (the feather-bed) I do not know where to get another, for none of my Bons will give me one half of what they have got. I havo only a few pounds in the house, which is all I can send you if you really want it, for I cannot draw money on the wheat till it is all down, or I must give a month's ciedit. In haste, pro Mrs Mary rMcker, Edward Fricksr. P.S.—I must wi*h you goodnight, as I am going to bed, after a hard day's work." Plaintiff, after beiug married again, wrote asking for the featherbed, as he was short of furniture, and requesting the remittance of the LSO aßke J f r.

His Honor: Then he had contracted another partnership. By Mr Stout: There had been no partnership between his mother, William, and himself in the farm at Awamoko. lie never authorised his mother to enter into an agreement for the division of the property, and knew nothing about the division till after the document was signed.—He-examined : After learning what had been done, witne?s told his mother that he should have been present v. ben the division wnß made, and said that he declined to sign it as it was not a just award. He paid hi* brother William, on behalf of lm mother, L 47 18s some time after.

Win. Flicker, the plaintiff, who described himself as " nothing particular," stated that in March last year he received a cheque for L3OO from his mother, on account of his share in the disposal of the farm. Ho had further received LIOO and L 47 18s from her. She had promised to pay him the balance—L4oo ; but he had not received it. There had been no unpleasantness between himself and hiß mother till lately—till he demanded justice and the payment of L4OO. Himself, Edward, and hib mother were considered the principals in the farm; they managed it and did the werk. By Mr Stout: He never asked his brother Edward for money; and never thought any money was due to him from his brother. His mother always had the handling of the money, and she frequently gave her children money. He had been the worse of diink on different o»c.asions since leceiving the different amountß stated, and his mother had often told him that she would not give him money on account of his conduct. He never wrote the letter produced, nor signed it. His Honor : Then who has forg«.d the signature ; it is signed with your name? Witness could not say ; it might possibly be his handwriting. The other document produced was in his handwriting. His Honor: Then point me out the difference between theße two signatures. Witness : Well, I can't see any difference, only one is written better than the other. I never threatened to burn down niy mother's house nor to assault her. This was plaintiff's case.

Mr Stout submitted that plaintiff must be nonsuited on his own testimony. There was no cise to answer, and plaintiff himself had shown there was no partnership. His Honor said there was no case of partnership proved. But might there not be a statement of accounts?

Mr Stout said that, so far as the defendant Edward Flicker was concerned, at all events nothing was proved ; and consequently being a misjoinder plaincilf could not recover. Edward had proved conclusively that he never authorised his mother to pay any claim for him. Seoondly, he contended that, as against Mrs Pricker, nothing was shown. Before the claim could be supported some consideration must be »hown; and ilie consideration here alleged is that defendant and others worked for her. It was, however, proved that she had distributed the whole yropeity of which Bhe was possessed amongst her children. Mr Macassey declined to accept a nonsuit, inasmuch as defendants had put two affirmative pleas on the declaration—viz., that plaintiff had been guilty of all kinds of nial-treat-inent towards his mother, had threatened to burn her house down, and had committed frauds. He claimed that the case should go before the jury on its issues. His Honor failed to ?ee what case there was to go before a jury.

Mr St"ut aoUed if Mr Macassey ppraisted iu having the case pent before the' jury that his Honor would direct for a verdict for the defendants. There being no affirmative plea on the records by Edward Pricker was a complete answer to Mr Macassey's contentions. His Honor directed the jury that there was an insufficient case to go before them, and nonsuited the plaintiff, reserving to Mr Macasaey leave to have the motion set aside. [Left sitting.]