SUPREME COURT

Gisborne Times, Volume IX, Issue 874, 25 April 1903, Page 3

SUPREME COURT

lIACKETT V. HAMON AND SMITI JUDGMENT FOR luE PLAINTIFF (Before [Tin Honor Mr Justice Conoliy.)

id. Ac the Supreme Coins yo.-tordey after i,l ntj'jii li a Honor .Mr Jurftiei; Conoli.y g.ivr .... judi'mcm. in tilt; cyme of (Juckflt v. ilanni 4. it 'I b.'iiitii. cluiu) for v.iiue of goods alii. ioged to bavo been illegally W:izei und void, id umuuming to X2b, ami the u:m of XJOb of 'i.t to'o.-jpas-:, uiiii JC7O sp; ciai dumug Mr \y. f„ ft'.-Ks appe o| tor the plaini, tifl. and Mr Xoi.i'i for defenduut-;. !. fu delivering judgment ills Honor said I 'act in tills action tile plaintiff claimed g first to recover toe sum of Xdo, value of o b'oods sciz il ami sold under lj.il of salt ; 1, secondly, XIOO for trespassing in seizing , M'c amc, and X7U special damages, also , (mat tne proniisso.y notes given tor X’i 1 , 70s ami XNJ, u-i'd I,lie I,ill of sale be brought into tin; Court and cancelled, iliac i pence, dings in tin; hi. M. Court be stayed. , Incident,lily si verai other i(uestiu'is iiad been mis.'ii w.ucii it might i/e convenient ‘ ) u'iCide. ft.was admitted (bat tlicpiaiiiidf Hack, U enipioyud Siubus to collect ins book debts, but it was alleged and sworn to !,y ilaekoH 1 lint no statement of accounts bad ever been rendered or any money paid, i.;, tun connection White, 'v;in was a cierk oi Stubbs, mated that he j made, out an account about the end of ('diucii, winch, although imperfect, now,ai tiial jf.-i.ckeU was in credit aimut ■Mi. V/hiic ai.-.o stated that Uaekett had always access to tile account in tin; book, and knew who had pad auu who had not. diniro was evidence by the hooks that fJackctt was paid a sum of X'd on November 10, and also other evidence that XZe was paid 011 tile otii December into his ' account at the bank. Therefore ho was of opinion that tin; statement that Stubbs never rendered an account or paid ilackutt .any portion 0: the moneys collected was not supported by the evidence White i 1 ltd given Jus evidence in a fair and intelligent manner, and moreover lie was a disinterested witness. As a matter of fact the question had little bearing on the < ease, but if the action had been against ! Stubbs ho would have been obliged to answer it in his favor. Another allegation in the statement of claim was that Hiuuon was in partnership with Stubbs. The only evidence of this was the statement said to have been made by Ham on him <olf to iiackett when he said that Stubbs

and L2OOU of his money, and all that ho nu t to show lor it was a bundle of premie sory notes ; also that he , Hamon) had had a lot of trouble with Stubbs. Continuing, Ins Honor said that that to his mind was -ome evidence of a partnership, and it was very singular that Hamon was not called to ifeny that ho was a pari tun-. On trie* contrary no one was called who knew which way the fact was excepting Stubbs, upon whose evidence, iu.- reasons tube hereafter staled, ho put very little value. White and Die bank manager were only under the impression that Hamon was not a partner. ft was contended by Hamon that even if iie did make the statement alleged uniL that fil'd not constitute a partner Ad • Counsel for the defendants cited the Partnership Act of 1891, but

that act did not to Ilis Honor’s mind decide this. Ho was of opinion that the evidence that Hamon was a partner was not strong enough unless supported. At some length His Honor reviewed the ovideuce in regard to the first promissory note given by Hackctt, remarking that Stubbs induced Hackctt to give him this note tu pay a sum of £9 Ids duo to McKinley, and X'lU for commission in connection with the sale of tho Murowai Hotel on the understanding that tho amount of the promissory note was to bo repaid out of monies collected or to be collected. When the bill become due Stubbs had to retire it. For this all that Hackctt got was Stubus’s bid, which was never paid, and was nothing more than waste paper. Passing on, His Honor said that it was inconsistent with reason to suppose that Haokett would take u bill due to him and as lire same time give a bill to defendant!;, dial being one that should have been previously paid by Stubbs. It would scan that in tho hands of these money lenders Hacketc could be induced to sign anything. To these proceedings the defendants woro parties, and it would be most inequitable that they should ho in a position to profit by it. But the gravest charge against the nefendants was in connection with the bill of sale given in August and tho p.n. for £2 5 given at tho same time, which had been renewed for £2l 10s. 'Tho evidence of plaintiffs was ail to the .-amo effect, and

impressed him as being truthful. Mrs Hackctt, who, like her brother-in-law, had a weakness for dabbling in bills, owed Williams and Kettle i£3o on a promissory notu due on August 9sh. Her husband owed her AMO, and he went to Stubbs to try and get it. Ho was told that if he could get a bill backed by the brother he could get £25. Hackctt expressed disinclination to ask his brother, because he had backedaprevious bill which ho (L. Hackctt) had promised to destroy, but which was still incxistance. Tho matter was arranged and the promissory note signed, but instead of tho bill of sale being made out to Thomas Hackctt it was made out to Stubbs, and Mrs Hackctt signed it. She had

sworn iLmt if sho had known that the bill of sale was to Stubbs and not to her brother sho would uot have signed it. Against the evidence of the three llucketta he had that of Stubbs, but he was very unfavorably impressed with the manner in which Stubbs gave his evidence. In the witness-box Stubbs was most offensive, and only quietened down when be reminded him that ho might have to answer the serious charge of fraud. He did not consider that Dunlop’s evidence assisted the defendants nor did away with the imputation of fraud by Stubbs. Mr Dunlop was called in from the street to witness the deed, and Stubbs represented to him that it was a bill of sale from Mrs Hackett for money advanced to her. In Stubbs’ own evidence lie did not suggest the advance was made, to Mrs Hackett but to Hackett. Mr Dunlop, of course, suspected no fraud, and on reading the bill of sale through would tind it in accordance with Stubbs’ statement to him, which, by the way, was not in Mrs Hacketi's presence. He believed Mr Dunlop when lie said that the blli of sale was read over. Continuing. Honor said that on the whole ho was of opinion that a gross frapd was committed b,y Stubbs in obtaining the bill of sale and the promissory note that accompanied it, and seeing that he hud no title to the chattels, he could certainly give none. After referring to the notice sent by Messrs flees and Sous to the defendants before the chattels were seized, His Honor concluded : Tlie judgment of the. Court will be for the value of tho goods seized and sold, jG2S, and for the trespass j£so. No special damage has been proved, ami therefore nothing can he allowed under that head. Tho promissory notes for AdO and A’d-t 10s, and any renewals of the smile, and tho bili of sale dated August dOih, liHld, are ordered to be brought ihtO Court to be cancelled, and proceedings in the Magistrate’s Court in respect of any of the said bills are ordered to bo stayed. Costs on the lowest scale will be allowed, with one extra day Al 5. Mr Nolan asked that execution might be stayed until after tho next Court of Appeal sittings. His Honor : Certainly not. Mr Nolan :I am only asking.the Court to do what is in. its power. At any rate I should liko time to look into the matter and see whether I shall advise defendants | to appeal or not._

His Honor : There must bo some more grounds shown before I shall grant your application. I do not see why I should stay execution when tho defendants were warned by Mr Bees of the illegality of their action. I do not think they are entitled to any indulgence whatever. The defendants just stood by and took their chance of Stubbs pulling them through. I will make no order to stay execution. The Court then rose.