SUPREME COURT.

Evening Star, Issue 4105, 24 April 1876, Page 2

SUPREME COURT.

IN BANKRUPTCY.

Monday, April 24. (Before Mr Justice Williams.)

Re John Gardner.-— Mr Joyce Applied for bankrupt’s discharge, but at the trustee’s request first examined bankrupt. John Gardner said lie was a butcher. ~ Tii July last he went into partnership with one Roddick in a slaughtering business at thfc' North East Valley, which partnership lasted until February. Witness put no money ihto, the business, but in February the assets of: the firm amounted to L 750,. which, L4OO being deducted for working expenses, showed a net profit of L 350. The partnership came to an end at that time, but witness could not get a settlement from Roddick. Witness had tiled a declaration of insolvency in Decern-. her.' In January the firm possessed four horses, two carts, a waggon, and fifty pigs; > The statement of assets and liabilities pro-

duced was given him by Roddick, but xrtotit were omitted several items, including the returns for fat sold. This statement showed assets estimated at only L 415, instead of L 750. During the partnership witness received only LIOO from Roddick, and he considered that half the profit made by the firm was due to his estate.—Mr Joyce the trustee offered no opposition to bankmpt’s discharge, but merely wished him and other witnesses examined.-—William Hill, butcher, stated that he drew up the produced, statement of assets and liabilities ah Roddick’s request, .the latter supplying him with the necessary information.

James Reddick, slaughterman, said he never entered into partnership with Gardner. Witness had a good deal of pro* perty in July last, including a waggon, twelve horses, and harness; and in December he had three or four carts, four or fivfr horses, a waggon, and about fifty pigs.. Since July he had sold about LUO wortn of fat, not more. He did not instruct TT*l| to make up an account between himnnlf and Gardner. The statement produced wa& drawn up by Hill from witness’s books. Witness instructed TTill to do so, but it wS& because he had never balanced his bnnlrwy and wanted to see how his expenses n.r>d liabilities stood. Had paid Gardner a littlw over L 10 0; . but 1 had no books in Court, though ordered to produce them. Gardner was never a partner of, but merely- worked! for witness ; he paid the former no fixed rates

of wages per week, because no arrangement; had been come to from the first. Witness pa'ld Gardner the LIOO because he required montjy. The business was in a mortgagee's hiypds 'fee. fore witness went into it, and he was not aware that Gardner previously carried it on. There was never any mention of a partnership between them, but once in conversation Gardner said he would go in how witness liked—on wages, on equal shares in the profits, or on a percentage. Nothing, however, was decided upon. Witness was the principal manager of the business; f Gardner acted as foreman in the yard. Witn ess was I not sure if he ever consulted Gatdm er as to the conduct of the business, but usecf to give his orders and they had to be done.. JHe considered Gardner was fully paid, or ev en overpaid, as he had never put m a claim.. Gardner never claimed partnership till 3? ebruary, when he told witness he should lea- ve the yard as he could not make enough m one y there, and had something better in view. The statement of assets produced was djawn up before this, and witness would swear it was not made up for the purpose of settling with Gardner. The latter got this statement from witness by false pretences—he to witness’s house and asked to look at the paper for a few minutes, but never returned it. Witness had a leasehold, which ha would sell for Lloo.—John Vezey, butcher* said he was in company with Gardner and Roddick in the Empire Hotel in July las t, when they were talking about going into business in the slaughteryard, which used t» belong to Gardner and had been sold off bj r witness. Witness told them they would dc > well if they went in together, and that hw would give them the killing for his shop. Witness was led to believe they were psrto' ners, and in his books opened his account) with them as “Gardner and Co.” Roddick, however made out the accounts against wit--ness for killing in the name of “ Roddick: and Co.”—His Honor granted bankrupt's* discharge. Re James Hartstonge. —Mr Stout moved! for bankrupt’s discharge ; Mr E. Cook: opposed, submitting that bankrupt had. brought himself within sub-sections 2, 3, and 4of section 12 of the Act,—His Honor saidL bankrupt’s conduct had not been not altogethe,. 3* satisfactory, but it was perhaps unnecessary to suspend the certificate, as the case had. been for a long time before the Court. FinaL discharge granted. Re Edward Towsey. This case was* struck off the list, there being no appearance* on either side.-

Re James Ward Cotton. —Mr Stout; applied for bankrupt’s discharge; Mr E. Cook, opposed.—Bankrupt was examined at great length by Mr Cook as to the disposition of his property, his pecuniary relations with, his sons, and matters connected with a bilL cf sale given to Messrs Marshall and Copeland over the Peacock Hotel. Bankrupt: said he had been insolvent twice before, the* last time being seven years ago. His accounts were made up on filing nis schedule by Messrs Wood and Yaldwin, or some such, firm, who refused to give up his books until he paid them L 25. He had lost a lot of money* through keeping a racehorse called Wildboy, who never won anything for him though hewas a good horse. —After Mr Stout had addressed the Court and Mr Cook had his Honor said he could not allow a man tO go free who had let in his Creditors for Ll,ooo* and been insolvent twice before. However, his case had been before the Court for nine! months, so his discharge would be suspended, for six months only. The following applications for final orders of discharge were adjourned >—Alexander Souter, Charles Higgins, Edward Christopher George, and Edward Thomas Wing, Hughes v, Shand. —ln this case hit Honor delivered judgment as follows

.This is a rule to show cause why the verdict for the plaintiff should not he set aside and a nonsuit entered on the ground that there was no oorrobora*“TS evidence of the alleged promise of marriage sufficient to satisfy the statute. The statute-—the Evidence Farther Amendment Act 1875—makes the parties to an action for breach of promise of marriage competent witnesses, but pro* Tides that no plaintiff in any snob action recover a verdict, “ unless his or her testimony 1 shall be corroborated by some other material ovi-' dense in support of such promise." It will be observed that the statute does not only reenire a. general corroboration of the plaintiffV testimony*, bat it is to be corroborated by a particular n«doorf r evidence, vis., by material evidence in support of! the promise. I think the clear of* this is, that there must be «<+ - testimony of the plaintiff evidence of acts done and admissions made by the defendant in connection with the alleged promise; not' perhaps snfflccient in themselves to prove the promise, bat *5S>-

derlng it highly probable that a promise mu made. This w the utmost that is decided by the eases of Wilson v. Godfrey (26 L. J., n.s., 481), and Hickey ▼. Campion (20 W. 8., 752). I doubt if the mere fact tnat a defendant was not called, or that when called he denied the pro nise. and on crossexamination, not on the question of the promise but on collateral matters, gave shuffling answers so ns to throw a general discredit on his testimony and to irive a corresponding credit to the testimony of the plaintiff, would amount to material evidence in support of the promise. If, however, there is other evidence to satisfy the statute then these facte would bo rightly considered by the jury in estimating the value of conflicting testimony. In the present case the corroborative evidence relied on by the plaintiff is that of Mr and Mrs Grant as to the demeanor of the parties, and the statement by Mr Grant of his three conversations with the defendant. I think the evidence as to demeanor may be nut aside as too slight to satisfy the statute, and that the plaintiff’s ease must stand or fall on Mr Grant's statements of these conversations. I think the result of the first conver-ation may be fairly stated thus:—That the defendant is taxed with a promise, tnat he does not deny it nor admit it, but insists that he won’t bo compelled to marry the plaintiff, against his will. At the same time, by promising to come down the next week when told he had better settle it at once he admits that there is something between him and the plaintiff that requires to be settled. On the second occasion, when be was asked by Mr Grant what he was going to do with Miss Hughes, the defendant answered that he did not want to marry her at once, and also that he was miserable the way he was, and that he had come u'own with the intention of marrying her, as Mr Gi.'snt understood, in November, bnt she had said some* things about h : m to a person who had told his friends. Mr Giant told him further that he had promised VO marry at a certain time, and the defendant excused .himself by saying he was so busy with his harvest dirties that he had not time then. It was on this occtwion that Mr Grant teld him that Miss Hughes was likely to bring an action. Miss Hughes herself had seated that the promise had been made in November, and that the defendant had then said that he would .make arrangements for the marriage to come off as ’soon as possible. If Mr Giant’s statement of this second conversation is true, and lor the present purpose it must be considered as true in every particular, the statements of the defendant amount to little short of a direct admission by him of a promise to marry. Any one hearing Mr Grant's statement of the second conversation would naturally aud reasonably infer the existence of such a promise, and althongh the admissions of the defendant may not amount of themselves to oosoluto proof of the promise, yet it appears to me that they are very material evidence in support of it lor the purpose of •corroborating the plaintiff’s testimony, and are sufficient to satisfy the statute. The .rule will be discharged, with costs. Mr Stout intimated his client’s intention to take - tie case to the Court of Appeal. Bird \ r , the National Bank.— Mr Smith moved, on * variety of grounds, and obtained a rule nisi for a new trial herein.

Briggs (appellant) and Conn (respondent). —ln this case, >is Honor delivered judgment aa follows In this case I think the determination of the Resident Magistrate wasf cor r ect in law. Bye-law Wo, 3 of the City Council prescribes "that any person guilty of any of the foli.owmg offences, onussions, or neglects within th£ City of Dunedin shall, on being convicted of any such offence, neglect, or omission, he Wahl® to pay any penalty not exceeding Lo. A num* her of matters to which the above section applies are then specified, and among them “obstructing any footpath or carriage road, whether by .allowing any cart or animal to remain across snch footpath or carriage road, or by placing goods thereon or otherwise. The effect of the bye-law is clearly to include under the head either of offences, omissions, or neglects, all the matters set oat, and to attach the penalty to -them. The appellant was convicted of obstructing a foothpath by leaving his horse and cart standing on a crossing over the footpath while he was loading the cart, and if a crossing is port: of a. I'ootpath within the meaning of Bye-law No. 3 was rightly convicted I have no doubt at all that a or oesing is par of the footpath. By regulation 15, pai*t 12, persons are prohibited from driving or or Tiding over footways except by crossings; andl b v Regulation 16 provision is mode for crossing's being made over the footpath by owner.* of land abutting on the footway if no access to their land can be hod for horses and vehicles in any othior way- The footway itself is not interfered with, ex.?epi that a tight of passing over it with vehicles at ostein specified places is given to the owners of the land adjoining. Tie crossing itself is across the footpath, and anyone allowing a vehicle to remaiif on a crossing necessarily allows it to remain across* the footway. The appeal will be dismissed with cost s*