SUPREME COURT.

Globe, Volume V, Issue 545, 17 March 1876, Page 3

SUPREME COURT.

SITTINGS IN CHAMBERS. Thursday, March 16. (Before his Honor Mr Justice Johnston.) RE WILL OF SARAH BOGGIS, DECEASED. Mr Wynn Williams applied in this case for probate to William Cuddon and A, Johnston as executors named therein. His Honor made the order. RE DEED OF ASSIGNMENT OF HIBBERD AND COWAN. Mr A. Thompson applied for leave to register copy of deed of assignment herein instead of original, the original being filed in the office of the Supreme Court. His Honor made the order as prayed, SITTINGS IN BANCO. RE WRIT OF HABEAS CORPUS AND RE B. C. KENT. In this case a writ of Habeas Corpus had been obtained by Mr Thomas, counsel for William Kent, calling on Mary Elizabeth Kent to bring before the Court the infant son of the said William Kent for the purpose of bis being delivered over to the custody of his father. The affidavit of William Kent went to show that he married his present wife in 1863, and that the infant, the cause of the present suit, was born in 1866. For some three years, with the exception of a short period in 1875, he was living apart from his wife. In June, 1875, he brought away his son for the purpose of educating him, and he lived with him in Christchurch up till the 27th January, 1876, when he was taken away from his father. On February Ist the father went to Timaru, where he found the child, but he was held by main force by his wife and some other persons until the child was removed. In his affidavit the father states that it was necessary his son should be re-delivered into his possession, in order that he might be properly educated and brought up in the Protestant faith, as his wife belonged to the Roman Catholic faith, and would, he feared, bring up and educate his son in the tenets of that faith. The writ of habeas corpus thereupon issued, Mr Cowlishaw, for Mr Thomas, appeared for the father. Mr A. Thompson for the mother. Mr Thompson now applied for an adjournment of the case to enable him to file further affidavits in reply. His Honor declined to allow of any further adjournment. The case had now stood over for several weeks for the convenience of Mrs Kent, and unless it were now proceeded with he should cut the Gordian knot by making an order for banding over the child to the custody of the father. The affidavits filed in the case are very voluminous on beth sides. That of Mrs Kent states that at the time of her marriage to Kent, his children, by his first wife, wore wholly neglected, and permitted to wander about the streets, and were not proviled with sufficient food and clothing. That at the time of her marriage Kent and his family wore all members of the Roman Catholic Church, and that he had frequently informed her that he was firmly established in the tenets of that Church, and that it was his desire that any child or children born of their marriage should be. brought up in the faith of the Roman Catholic Church. That Kent had not for many 3 ears attended any place of public worship, and had returned himself in the census as of no religion. That from the birth of the said infant, Kent had evinced towards him feelings of dislike, and had treated him with harshness and unkindness. That from the time of his marriage up to the present time Kent had neg’ected his wife and children, and left them destitute of food and clothing while able to provide, for them, and that from April, 1873, to May, 1875, Kent deserted her and his family, never contributing towards their support, leaving her to support the younger children by his first marriage, and also the infant, the subject of these proceedings. That on his return Kent took away the younger children by his first wife and the infant aforesaid against her will, and also sold all her furniture and effects. That she believed that Kent did not remove the said infant for the purpose of educating him, but for the purpose of causing her pain. That while the said infant was with Kent in Christchurch she was informed that he was utterly uncared for, and in the most miserable and indigent condition, and was also treated by the said Kent and the woman with whom he resided with the utmost barbarity, and that she requested his aunt to take him away from his father and send him to her at Timaru, which was done, and that when he arrived he was in a most loathsome condition, being without clothes, and very dirty. That the said infant has always evinced symptoms of great fear of Kent, and that the state of his health was such that he required to be treated with the greatest care and tenderness, and that she believed if he was given up to his father the consequence would be that be would die from ill treatment and neglect, or that he would grow up as a vagrant. Affidavits in support of these statements were filed from E. M. Turner, M, A. Bidmead, and H. B. Kent. The answering affidavit filed by Kent denied thathehad ever neglected hischildren, or failed to provide them with food and clothing, and a good education. For the past twelve years he had never belonged in any way to the Church cf Rome, and had determined from what he had seen therein that no more of his children should be brought up in that faith. He had frequently attended churches of various Protestant denominations, though he had not formally joined any one. He entirely denied having treated the said infant, or any of his children, with harshness or unkindness, or having deserted or failed to maintain his wife and family. When he left them in 1873 he left a fourroomed cottage, well furnished, with two acres of land, part of which was in cultivation as a market garden, six tons of hay, six head of cattle, two goats, and a number of fowls, ducks, &c ; that his two sons, who were living with his wife, were receiving wages in the aggregate over £1 103

per week, and that he was never applied to for help during his absence. The reason why he had brought his children to Christchurch, including the the said infant, was to have them educated, and that the said infant had always been sent both to day and Sunday school. That the said infant always seemed fond of him, and never wished to go away, and he verily believed if he were not handed over to him he would suffer both physically and morally, and lose what little knowledge he had attained, as his wife would not permit him to go to school. In support of this affidavit there were affidavits from Mrs Laine, a daughter by the first wife, denying the cruelty to his first wife and children ; from Mrs Flindell and Mr Sopp, the schoolmaster of St Luke’s school, who spoke of the boy’s progress at the school, and as to the health and tidiness of the infant, and his fear of his mother, and from Mesdames Flindell, O’Keefe, Leake, and Ansley as to his health and general good appearance while with his father in Christchurch. Mrs Kent now appeared In obedience to the writ, and produced the child, entering into a long explanation of the circumstances of the case. His Honor said that the affidavits filed by Mrs Kent did not show a prim a facie case for retaining the custody of the child, and were contradicted by the affidavits of independent witnesses. There was no doubt whatever that the father by law was eutitled to the custody of the child unless the Court saw that the child would be morally contaminated, or was in danger of life or person. The affidavits of Mrs Kent stated that the child had been ill-treated and neglected by his father, but there was ample evidence that this was greatly exaggerated. Even if the Court were to rely on the affidavits of Mrs Kent—evidently exaggerated and possibly false—it could not give the mother the custody of the child. The Court was not to judge of sentimental matters as to whether the mother or father deserved most sympathy ; all it had to do was to see whether the father was not a fit and proper person to have the custody of his children. This the affidavits before the Court did not sufficiently establish : hence the Court had no alternative but to order the child to be given up to the custody of his father. His Honor then calling on the father to stand forward, said the order would be made to give him over custody of the child, hoping that he would see that, the child was properly educated and cared for. No case had been made out by the mother to deprive the father of the right to the custody of the child, to which he was entitled by law. He trusted that he would allow the mother to see the child occasionally ; and if he did not and she came to the Court, an order might be made under Mr Justice Talfourd’s Act for all reasonable access being allowed to her child by her husband. He now made an order that the child should be handed over to the custody of the father.' Mrs Kent said that she would not care so much so long as the child was brought up in the faith she belonged to. His Honor said this was a matter quite outside the jurisdiction or province of the Court. The law of England and of her colonies, in its anxietj to preserve the liberty of conscience, did not interfere with the right of any one to choose any form of faith they might think fit. Mr Kent had been a Protestant, had then become a Roman Catholic, and his children had been baptised in that faith, but he had now declared himself a Protestant, and wished to have his child brought up in that faith. This he had a perfect right to do if he thought proper, and the law could in no way interfere with him. After reading the affidavits and hearing Mrs Kent, the order would be that the custody of the child be given to his father. Order accordingly, Mr Cowlishaw said that the father was quite willing to allow the mother access at all reasonable times to the child; even to allow her to take him away for a day or two at a time, provided she gave an undertaking to return the child. GILMOUR y BRUCE. Mr O’Neill applied for an order for leave to amend the last count of the declaration herein. His Honor made the order. On the application of Mr Cowlishaw, his Honor made an order in this case directing the issue of a concurrent writ of fi. fa. by the Sheriff of Timaru. GOTTERMEYER V. HAUCK. In this case the defendant had obtained a rule nisi calling on plaintiff to show cause why a new trial should not be had or a verdict entered for defendant on the grounds—(l)That the verdict was against the weight of evidence; (2) That the case was one in which j the maxim of caveat emptor would applv Mr J. B. Gresson appeared in support of { the rule. < Mr A. Thompson against the rule. The case was argued at last banco sitewgd. | His Honor now delivered judgment aa i follows :—At the argument in thin case rayattention was not sufficiently call' d to the | form of the rule, one alternative bring that | the plaintiff should show cause why the verdict should not be set aside, and instead thereof a verdict entered for the defendant. But this form of rule appears inappropriate to the circumstances of the case, inasmuch as there is no general verdict entered for the plaintiff, but there are only the findings of the jury on the special issues laid before them. Still, I think it may be convenient to deal with the case as if the application had been to enter judgment for the defendant on the grounds relied upon in the rule, viz, that the plaintiff had equal knowledge, or equal means of acquiring knowledge. as to the truth or falsehood of the fact which the jury found had been represented by the defendant. I propose, however, to consider first, the question of the propriety of granting a new trial on the ground that the verdict was against the weight of evidence, This ground for a new trial is one respecting which it is not easy to lay down any very definite rules which should govern the Court in the exercise of the power which it possesses of directing that a case should be submitted to a second jury. The language, however, which is used by Tindal, C.J., in Mellin v Taylor, 3 Bing. N,C. 111, indicates the considerations to which the Court ought to give weight in such cases. He says he cannot conceive how the benefit of trial by jury can be in any way impaired by cautious and prudent application of this corrective, but, on the contrary, that without some power of this nature the trial by jury would in some cases be productive of injustice, and the institution itself would suffer in the estimation of the public. He further intimates the opinion of himself and the other members of the Court, that in every case in

which there is no objection to a verdict except that in the opinion of the Court it is against the weight of evidence, the Court ought to exercise, not merely a cautious, but a strict and sure judgment, before they send the case to a second jury. In the same case, the same distinguished judge alludes to the practice, which has prevailed from the earliest time at which new trials have been granted, of obtaining the report of the judge who presided at the first trial as to whether he was satisfied with the verdict or not. Now, as under the existing constitution of this Court and its practice, defendant had to apply for a new trial to the same judge who presided at the trial, I felt it my duty to state, on granting the rule nisi, that I was not satisfied with the verdict. Unless I had been obliged to make that report I should not have felt justified in granting the rule nisi for a new trial upon this ground. But I by no means think it would be the duty of the Court to grant a new trial solely or mainly on the ground that the judge who presided was not, at the time of the trial, or at the time of making his report, satisfied that the verdict was a correct one, although that might be a proper matter for consideration in forming a judgment on subject. I think that such a report is only a desirable preliminary to the discussion of the question before the Court in Banco ; nay, I am of opinion that, even supposing the judge who tried the case was not yet satisfied, after hearing the argument upon the rule, that the verdict was a correct one, yet a new trial ought not to be granted on that ground only, if, upon any fairly suggestible construction of the tacts, the verdict of the jury could be vindicated. In order to make this ruie absolute I think it would be necessary for the Court to see its way clearly and dittinctly to the conclusion that the verdict of the jury must have been wrong, for I feel the force of the language of Tindal, C.J., when he intimated, in “ Belcher v Prittie ” (10 Bing., 414), that the Court ought not to take away from the party a right which he has acquired from the mouth of the jury, unless there be a moral certainty, or a degree of clearness approaching to it, that the jury have done wrong Coming therefore to review the evidence for the purpose of discovering whether the finding of the jury can be supported, it seems to me evident that had the pleadings and issues been amended so as to raise the question whether the defendant did not represent, that the laud which she was offering for sale to the plaintiffs contained springs of water (not specifying particular springs), whereas in truth and in fact it did not, and she knew that it did not, or recklessly and without reasonable grounds made the representation that it did, the evidence would have fully justified the jury in coming to a conclusion against the defendant. For, although she did not admit that she had made any special representation with regard to the springs on the particular section about to be sold, she herself did acknowledge that on the repeated inquiries of the plaintiffs she had stated that there were springs all over the sections. The case as it stood on the pleadings and issues raised the question whether certain specified and ascertained springs, which as a matter of fact are not within the section sold, and which the defendant admits she knew not to be within the section sold, were represented by her to Gottermeyer as being contained within that section. Gottermeyer distinctly affirmed that she had pointed out those springs as being within the section ; the defendant distinctly denied that statement. The plaintiff was not corroborated as to this specific statement by any witness ; one of the witnesses called on behalf of the plaintiffs not only failed to support the plaintiff (Qottermeyer’s) statement, but gave evidence of statements made by the defendant at the time at variance with that evidence. And, moreover, the plaintiff Schclka, who took part in the transaction and went to the ground with the defendant, was not called. In summing up to the jury I deemed it my duty to call their attention to the conflict of evidence and to the circumstances to which I have now alluded, in order to enable them to determine to which side they would give credit. Now, as the credibility of witnesses is a matter of fact peculiarly proper for the consideration of a jury, I think that the Court ought not to grant a new trial, even if all the members of it (there being several) were of opinion that they individually could not have come to the same conclusion on that point as the jury did. I think therefore that although I may still entertain doubts whether I myself should have felt justified in finding the verdict which the jury did find upon the second issue as it stands, yet on full consideration of the evidence, and after hearing the argument, I am not in a position to say that the verdict was so dearly wrong as to make it incumbent upon me to send the case down for another trial. The next question in the case is, whether the maxim “ caveat emptor" applies to it. In order to test the application )f the authorities cited in support of the affirmative, it is necessary to consider upon the findings of the jury and the evidence, vhat was the nature of the representation round to be false within the defendant’s knowledge. It was not a representation with respect to the character, quality, or incidents of a particular piece or section of ground already ascertained and contemplated by both parties as the subject of their negotiation. It appears that the plaintiffs were negotiating for the purchase of a section of ground belonging to defendant, which she undertook to point out to them, although she did not pretend to define very accurately its boundaries. . Knowing, however, that the plaintiffs were desirous of purchasing ground on which there was water necessary or useful for the purposes of their occupation, and knowing, as the jury have found by their verdict, that certain particular springs which she pointed out to one of the plaintiffs were not within the section which she proposed to sell and did sell to them, she did in the opinion of the jury falsely and fraudulently,, and for the purpose of inducing the plaintiffs to purchase the said section, represent that those particular springs were within that section ; and the jury further find that it was by this representation that the plaintiffs were induced to enter into the contract. Now it is said that the doctrine of caveat emptor applies under such circumstances : but for] the purpose of testing whether it does, it becomes necessary to consider what steps a vigilant purchaser would have required to take in order to discover the falsity of the defendant’s representations. For that purpose it would have been necessary that some competent person should examine the description in the occupation license for the section, the Government map, and the land itself. Now this is a very different kind of exercise of vigilance from

that which seems necessary according to the authorities to mate the doctrine of caveat emptor applicable. Can it be said that the falsity of this representation was a matter of sense, or an obvious matter, such as the defects in subjects of sale, whether real or personal, to which the doctrine has been applied. In the case of Dyer v Hargreaves (10 Yes. 505), which was relied upon on behalf of the defendant, the specific performance of an agreement for the sale of an estate was decreed, but with compensation for the deficiency in value in respect of defects which a minute examination might have discovered; and, although it was held that compensation could not be recovered in respect of a variance in the description of the property, which alleged that it lay within a ring fence, that distinction was based upon the fact that under the circumstances the purchaser must have actually known at the time that it was not within a ring fence. The case which waschiefly relied upon by the plaintiffs was the case of Dobell v Stevens, 3 B. and C.,623, which was affirmed and commented upon in Attwood ▼ Small, 6 C, and F., 395 and 444, in which case a false representation by the vendor to the purchaser of a public house, with respect to the amount of business done, and the quantity of beer drawn during a certain period, was held to be sufficient ground of action, although there were books in the house which the purchaser might have had access to if he chose, and which would have shewn the falsity of the representation. Lord Brougham, in commenting upon this case in his judgment in Attwood v Small, lays great stress upon the circumstance that Lord Tenterden in directing the jury pointed out that the purchaser had entered into the contract, and paid the purchase money, on the faith of the representation, saying that attempts to overreach would not avail to support an action unless the representations were the very ground on which the transaction took place. Now, Gottermeyer’s evidence, which the jury appears to have believed, shews that, but for the representation about the particular springs, he would not have entered into the contract ; and the jury find that it was by such representation that he was induced to do so. The authorities seem to shew that if the purchaser, instead of relying upon the truth of the representation, had made further inquiries for bimself, and had then entered into the contract, he might not have been in a position to take advantage of the false representation. But Ido not think that any of the cases illustrating the doctrine of caveat emptor, goes so far as to make it applicable under such circumstances as those of the present case. lam therefore of opinion that the rule, even if it were correctly framed, must be discharged on both grounds. Rule discharged with costs.