SUPREME COURT.

Gisborne Times, Volume V, Issue 98, 4 May 1901, Page 3

SUPREME COURT.

MATEROA v. FINN,

The case of Materoa v. Finn was brought to a termination yesterday. His Honor reserving judgment. Mr Rees, on behalf of the plaintiff, addressed the Court at considerable "length. He contended that the evidence proved that the defendant Finn was in December, 1886, acting for Kataraina. He held that there had been a breach of trust, and what in law was called “ legal fraud.” There was no contention that there was a conspiracy entered into between Finn and Bennett. It was sufficient for him to prove that the deeds of 1886 and 1888 were made with Finn’s full knowledge and approval. It was evident that Finn agreed with Turton as to what was done. Finn knew all the circumstances. He submitted that the second transfer was simply a sheet of waste-paper. All the property Kataraina had in tho land she had divested herself of, excepting in so far as the trust deed of" December, 1886, gave her a resulting right. There was never a re-transfer of the land to Kataraina, and, therefore, the second transfer was utterly valueless. It was a very unfortunate thing for the Court—having to determine large interests—that a certain deed should have been lost, and that

there was no draft or copy of the socalled deed of revocation. He contended that the absence of this deed or a draft of it was fatal to the defence.

His Honor : This is a most remarkable difference. It did not strike me so much yesterday. Under the deed of trust it is provided that Bennett may sell the land, reserving throe acres for Kataraina, which three acres was to be selected by Kataraina. If that was left out, it is a very material alteration. If that declaration of trust was not expressly revoked, then it appears that the whole transfer has been irregular. It seems certain that there was a deed—what was called a deed of revocation —signed by Kataraina. But there is the absence of that deed; and there seems to be the whole pinch of the case. Yet I am obliged to rely on the evidence of Mr Finn—and he cannot avoid being tinged with bias in liis own favor —and Mr Bennett, whose evidence is very vague. It does not seem as if he ever took tho trouble to read the deeds, or that he knows anything about them. Mr Rees dealt at considerable length with the deeds, and the relations of the parties. He asked if it was to be permitted that a solicitor shall be entitled to receive property, as had been done in this case, without his bill of costs being fixed, or even rendered '? Was such solicitor to be allowed quietly to take that property as against his own client ? The conveyance from Bennett to Finn was, he contended, a legal fraud. His Honor: Can you now make a money claim against Bennett ? Y T ou claim' the whole of the purchase money Finn has received.

Mr Rees : We claim against both of them. We claim that Finn ought to have paid the 42875 to Bennett, and Bennett ought to have received it from him and paid Finn’s costs. In any case, even should His Honor read the law and facts against plaintiffs, he submitted that plaintiffs should not be ordered to pay the costs.

Judgment was reserved. JENNINGS v. ERSKINE.

This case was called on yesterday afternoon, being-® claim for £l5O damages for alleged wrongful arrest. Mr W. L. Rees appeared for tho plaintiff, and Mr R. N. Jones for the defendant. For the defence, Mr Jones raised the point that no notice had boen given, and, therefore, the action must fail on the ground that the month’s notice required by law had not been given. _lt was agreed to take the argument first, Mr Rees saying that if His Honor upheld the contention it would be useless going on with the case. He admitted that the

month’s notice had not been given, and His Honor said that it would then be for Mr Jones to lead off with the argument in favor of his contention.

Mr Jones specially quoted the case of Wyett v. Kitto, and claimed that there was no alternative to giving the month’s notice in such a case.

Mr Rees admitted that the section would apply to an officer of the Court, whom it was meant to protect, and not to the case of a private individual. His Honor : You say that it is the issuing of the summons that is complained of?

Mr Rees: Not the issuing of the summons, but the filing of the affidavit. After further argument by Mr Rees, His Honor said he must hold that the section applied equally to a person seeking to avail himself of the Act as to an officer of the Court. In this case the defendant had sought to avail himself of the powers of the Act by applying for a warrant of arrest. He had satisfied the Magistrate that his application was bona fide and that he had cause of action, and the writ of arrest was issued. He could see no distinction between the two cases, and he would have to decide this action in favor of the defendant. He did not like de-' ciding a case apart from the merits, but' he was bound by the strict letter of the law. Costs on the lowest scale would be allowed.

The following is the section upon which the case turned : —Magistrate’s Court Act, 1893, Section 189 : “ All proceedings against any person for anything done in pursuance of this Act shall be commenced within three months after the act committed and not afterwards, and notice in writing of any such action and of the cause thereof shall be given to the defendant one month at least before the commencement of the action. A plaintiff shall not recover in such action if tender of sufficient amends shall have been made before such action be brought and if, after action brought, a sufficient sum of money shall have been paid into Court with costs.” The statement of claim' alleged that on sth January, 1901, defendant, J. Erskine, issued a summons for £8 3s 6d against plaintiff, Jennings, and in the same proceedings, maliciously, and without reasonable and probable cause, caused and procured to be issued a writ of arrest under the Magistrate’s Court Act, and had the plaintiff arrested and held to bail; that the plaintiff had thereby suffered in mind, body andreputation, and he claimed £l5O damages. The statement of defence denied that the proceedings had been taken maliciously and without reasonable and probable cause, but the defendant Erskine having probable cause for believing that plaintiff was about to leave New Zealand, and to evade payment of the sum claimed, made an application upon affidavit to the Magistrate for the writ of arrest, and the Magistrate being satisfied issued such writ and held the plantiff to bail. That the defendant had reasonable and probable cause for taking such proceedings against the plaintiff, and in doing so acted without malice in the bona i fide belief that the plaintiff was about to

leave the colony, That the claim came on for hearing, and judgment was given for defendant Erskine for the amount claimed and costs. That Mrs Erskine, in anything she may have done, only acted as the agent of her husband. That the plaintiff had not been damaged, and the defendants pleaded that notice of the action had not been given as required by “ The Magistrate’s Court Act, 1893,” one month before action brought. How does a man get in a funk, And take himself right off to bunk, Just when a pain with symptoms vague, Will make him think he’s caught the plague. How often does a cough or cold Make cowards of the brave and bold, Until they find the remedy sure— W. E. Woods’ Great Peppermint Cure.