SUPREME COURT.

Globe, Volume VIII, Issue 966, 31 July 1877, Page 2

SUPREME COURT.

SITTINGS AT* NISI PRIUS.

Monday, July 30. (Bfore his Honor Mr Justice Williams and a Special Jury.) CAMPBELL V. MCCONNELL. The following is a report of the proceedings of the Court after we went to press yesterday : A.W. O'Niell, cross-examined by Mr Joynt— On the Friday I took instructions from Mr Mackay as to his will, and made an appointment with him for Saturday at eleven o'clock to execute. He said nothing at that time about meeting Dr Campbell on the Saturday. I wrote a fresh codical on the fly leaf, and it was executed about an hour after I arrived at the house. I thought Mackay was very excited and I delayed executing the codical. There was a coat at the foot of the bed, and he shouted out to it to get away. He said "Get away: get out of that," and made a motion towards it as if to drive it away. I thought it would not. do to have the codical signed until this had passed over, which it did, and he afterwards smiled and said he had taken it for a man. Mackay appeared to be in an excited state, but his mind was perfectly clear. He complained of not having been able to sleep the night before. I considered he was weak and excited during the whole time I was there. His hand shook somewhat in signing his name to the codicil. The document produced is the codicil. [Codicil put in.] He did not mention Dr Campbell's name with respect to a gift he intended to make to him. He did not lead me to believe that there was anything else unsettled as regarded his temporal affairs. Dr Campbell, as I understood him, asked me on the Monday to advise him on the matter. I declined to do so until I had consulted my partner, as it was an important matter. He said he had been to the Bank to present the cheque, and that he had told them the maker was dead and they declined to pay him. The cheque was endorsed " signature unlike." Re-examined by Mr Harper—At the time of his signing the codicil Mackay knew that he was signing a codicil and I read it over to him. Edward Ballinger—l am clerk in the Bank of New Zealand, Christchurch. Robert Mackay had an account at the Bank of New Zealand during the year ending August, 1876. The document produced is a receipt for money lodged by Mackay with us. I believe the Bank have this money still in their hands. It has been paid over to Mr M'Connell and Mr Todd, I believe. I paid it over under the accountant's authority. Cross-examined by Mr Joynt—The cheque produced was presented at, our Bank for payment. I know that by the endorsement.

Thomas Bell Hay—l am a duly qualified medical practitioner. I knew one Robert Mackay. I saw him on the 4th and sth Angusi last at Miss Patrick's houso. Dr. Campbell was with me at the time. I was taken by Dr Campbell to see the deceased. It was about three o'clock in the afternoon of Saturday. He was suffering from pericarditis, and was very weak and ill, mvable to lie down, he was propped up by pillows. He had also congestion of the lungs. At the time I saw him he was sensible. My conversation with him had reference to his condition. I was there not more than ten minutes. Cross-examined by Mr Joynt—He was weaker on the Saturday than on the Friday, which was the only appreciable change. The disease had been of very long standing, and the action of the heart was quick and irregular. It is not usual in this disease that patients should suffer from delusions. Defective circulation which would result in brain congestion is a principal element in the disease. Alexander Buck gave evidence as to the declaration of value of the property of the deceased as sworn to by the executors under the will. This was done to calculate the duty payable on it. James Hogg gave evidence ae to having

reti *ea the promissory note produced. It had been paid by the Union Bank and debited to his account. Cross-examined by Mr Joynt—l knew the deceased Mackay for eleven or twelve years previous to his death. We were on very good terms as friends. I remember when he was suffering from his last illness. I called to see him several times. He seemed very glad to see me and asked me why I did not go oftener. The last twice that I saw him before his death I had long conversations with him. He spoke of Dr. Campbell several times. The last time I saw him we had a long conversation. Mackay told me for one thing that he had no faith in him this time at all. He said that he wanted to get another doctor; I told him I didn't think he would get another doctor to come unless he spoke to Dr. Campbell before he did it. He complaired of the bed he was lying on, and said that Dr. Campbell had got him an air bed which had cost him (Mackay) nine or ten pounds, and that the doctor had given it to some one else and he could not get it. On each occasion he spoke to me about having lost confidence in Dr. Campbell, and expressed a wish to get another doctor. He was dissatisfied at the way things were going. I went to try to see him some time after my last visit, but was unable to get in. "We were refused admittance by Miss Patrick and a nurse. Miss Patrick said she had orders from the doctor that no one should see liim. This closed the plaintiff r s case. For the defence Mr Joynt called the following evidence:— Robert Russell —I formerly kept the White Swan Hotel. I knew Robert Mackay for for nearly twelve years. He was on very friendly terms with me up to the time of his death. I went to see him during his last illness. I was not admitted on every occasion. There was nothing but friendship between himself and me on the occasion of my visits. I remember the Thursday prior to his death. I had a conversation with him for a little when the doctor came in and ordered me out. He was talking about his illness, and that he was not getting right treated, that he was getting worse and was fretting. We were not long in conversation —about five or ten minutes. Whilst we were talking Dr. Campbell came in. He said that was no place for me, the room was close, and I had better clear out, and that I should see him no more. The doctor said it in a sulky manner. I went away, and went back again twice on the Friday, but Miss Patrick refused me admittance. I went on the Saturday, about half-past three o'clock. I rapped at the door, and the doctor came. He said I should not see him. I then said if I could not see him I would go away and bring another doctor and pay for it myself. I made to go away to the cab, when Dr Campbell said " You may come in if you don't speak to him." Dr Campbell went in with me. Mackay asked for a drink, and the doctor gave him some brandy. Dr Campbell then said, "Russell, this is not as good brandy as I should like to give him." When Mackay got the brandy he started up, and seemed to me to be out of his mind like. He said, " What's those three loads of flour doing here ?" Dr Campbell said, "Oh, they're passing by." There was nothing to be seen where he was lying and he could not have seen anything at all. Dr Campbell said to me, " You'd better shake hands with him and leave him," and I did so. He was then staring with his arms stretched out us though he was out of his mind. There could not be a harder man out than Mackay —he was a very honest man but hard—there could not be a harder. I never knew him to give money away. He was very hard at making a bargain. He came from the North of Ireland where |they know all about hardness. Mackay was always pleased to see us and asked when we would be back.

Cross-examined by Mr Harper —I did not know that Mackay had left me a legacy under his first will. This is the first time I have heard of it. I never knew until now that he had left me one hundred pounds. I have a sister, Martha Eussell. I know that Mackay left her a legacy. Some said that it was five hundred and some two hundred and fifty pounds. I never knew that Mackay had revoked a legacy to me. This is the first time I have heard this. He never told me what he had left me. I knew from my sister that the legacy to her had been increased. Re-examined by Mr Joynt—lt was long after Mackay's death that my sister told me how much her legacy was. John G-allen —I reside in Christchurch, and am a cattle dealer. I knew Robert Mackay for six or seven years. "We were on friendly terms. I went to see him nearly every day after his arrival at Miss Patrick's until the ! last week. On the Monday before his death I saw Mackay. I called again on the Saturday and saw Dr. Campbell and Miss Patrick, who both refused to let me sec him. If I did not go over to see him, Mackay would send for me. He was always glad. On the Monday before his death lie seemed all right, but at other times he seemed to be in a very curious way. He talked very foolish things. Mackay was a shrowd man, and a very hard man too. He never gave anything away when he was sober. He drove a very hard bargain always. He has spoken to me about Dr. Campbell more than once or twice. He said he had no faith in him, and wanted to bring another one, but did not like to do so lest Dp Campbell would be angry. I told him to tell the doctor and ask him if" he should get another and see what lie would say. When I came next time he said he had asked the doctor to write for another doctor, and that he was very angry. Dr. Campbell said lie could see through him as if lie was a looking-glass ; that he had no call for another doctor. On the Monday Mackay was very much better, and asked me to take him away out of Miss Patrick's, because they were, ho believed, killing him by inches. 1 told him he must have patience and wait. Cross-examined by Mr Harper—l should not think that Mackay was the man to give away £SOO without some little consideration. He was a hard man at a bargain. Edward Johnston, examined by Mr Loughnan—l am a farmer living at the Orari. I knew Robert Mackay, and have done so. for some fifteen or sixteen years. We were working together in Christchurch as carters. We were in partnership for four ov five years. He was an hard sort ofia honorable man. He did not spend money freely. I never saw him give away money or make presents. Ho was very fond of money. Julia Johnston — X am wife of the last witness, and reside at the Orari. I knew Robert Mackay for eleven years. We were on friendly terms. He was mates with my husband for some timo. Since then we have continued friends. I was in Christchurch on the Friday before Mr Mackay died, and called at Miss Patrick'B house to see him. It was about eleven o'clock in the forenoon. I knocked at the door, and Mies Patrick came.

I asked hor if there was a gentleman hying there named Mackay, and she said " Yes.' I asked her if I could see him, and she said " No, you cannot, he's not in a fit state to be een." The doctor, she said, would not allow anybody in. Miss Patrick asked me to wait a few minutes till the doctor cumi', and then perhaps he would let me in. I waited some time, and at last he came. I did not speak to him till after he had seen the patient, and was coming out. I asked Dr Campbell if I could see Mr Mackay, and he said " No, you cannot." I told him that I came from beyond Timaru, and that I should like to see him before I went back. He replied—" I don't care mj dear woman, if you'd come from America you could not see him." I said it was very hard, and he said " I cannot help it at all." This concluded the case. John G-allen, recalled by the Court—l lent money to Mackay. Shortly after he came down he gave me'a cheque to pay to.some man of whom he had bought poas. Mr Joynt said he would ask his Honor to adjourn now (4.15 p.m.). He wished to consider the evidence, and also to add someissues which was rendered necessary by the evidence which had come out. The issues would require to be very carefully framed, and therefore he felt that it would be necessary to adjourn. There would be an issue whether the plaintiff was the medical adviser of the deceased at the time of the gift being made ; also, whether the testator was of sound and possessed mind at the time of the said gift being made. It would also be necessary to have some issue as regarded the cheque, and therefore he would have to frame an issue raising the points as to whether the plaintiff filled up the cheque, and also whether he presented the said cheque for payment at the Bank. His Honor said that the evidence was that the deposit receipt and the promissory note was given to Campbell to pay into Mackay's bank —the Bank of New Zealand. The cheque not having been paid, the deposit receipt and bill, Mackay's interest and dominion over them was not terminated, and the case failed, he thought, there. Mr Harper pointed out that the pleadings only raised the point as to the deposit receipt and bill, and had nothing to do with the cheque. The deposit receipt and bill were to be paid into the Bank to provide funds to meet the cheque. So far as he had read the evidence, he did not think it bore the construction put on it by his Honor. He might say that they had no objection to the proposed issues as suggested. His Honor said that perbaps it would be as well for an issue to be framed so as to give the jury an opportunity of saying what was the intention of the plaintiff; whether Campbell was to act as an agent of Mackay or not. Mr Joynt said he would prove an issue to that point. Mr Harper said he might direct his Honor's attention to a very late case which had been decided as regarded Donatio mo-Us causa, that was Boss v. Pierce, 36 L.T., p. 438, Chancery. His Honor said he would accede to Mr Joynt's request and adjourn till 10 a.m. next day. The Court adjoimied till 10 a.m. this day. Tuesday, July 31st. The Court resinned at 10 a.m. The bearing of the case was resumed. Mr Joynt having brought up his proposed new issues. Mr Duncan said he elected to lie nonsuited. Mr Joynt contended (hat his learned friend could not do this. They were entitled to have the finding of the jury on the various issues, in order that they might afterwards come to the Court for a decree thereupon. In this, as on ordinary cases for money, the jury were entitled to find. His Honor —But supposing, Mr Joynt, there was only one issue, and the plaintiff brought in sufficient evidence to support it, could he not elect to be non-suited and have it tried over again ? Mr Joynt—Probably, your Honor, this may be so. His Honor —But, Mr Joynt, cannot a case be withdrawn from the jury on the ground of insufficient evidence, as in the case of an action at common law ? Mr Joynt— Yea, your Honor, I have no doubt it could be done. I may say I have had considerable difficulty in fixing a case which will go on all-fours with this. His Honor —Mr Duncan, you must take a non-suit, on all the issues and not some of them. Mr Duncan—Yes, your Honor. Mr Joynt—l shall apply, your Honor, for a non-suit on all the issues ; those framed at the time of the trial as well as those settled at the time of settlement. I should like all the issues to stand on the record, so that my learned friend may proceed on all the points raised to the jury. Mr Duncan —I object. I have a perfect right to apply for a non-suit at any time. Mr Joynt—Certainly, but I submit that the position is this, that your Honor giving me leave to amend my issues last night, it must be taken that my issues were before the jury before my learned friend elected to be nonsuited. An order is dated from the time it is granted, and not from when it was taken out, and so with these issues ; they must be taken to have been settled yesterday. His Honor—But they have to be approved by the Court and consented to by the other side. Mr Joynt—But, your Honor, the order to amend was given yesterday. Hence I have a right to see that the whole case should go to the jury, and that the record embraces all the questions which woidd have been submitted had the case gone to the jury. His Honor—But it was not settled what the issues were to bo. There was only a general leave to amend by inserting fresh issues. Does not the non-suit stop all proceedings. Mr Joynt—Yes, your Honor, as far as theh- proceedings go ; but I now apply that the issues found in accordance with your Honor's leave shall be incorporated. His Honor —But, Mr Joynt, don't you think it will be better to allow the non-suit, reserving leave to move for a rule to shew cause why a verdict should not be entered for the defendant on the ground that there was no evidence of donatio mortis causa. Mr Joynt—lt may be, your Honor, but I want the issue as to the cheque put on the record. Mr Duncan —T contend, your Honor, that my having elected to be non-suited there is an end of the altogether. His Honor—l shall, rule, Mr Joynt, that the amended issues cannot be inserted, as they would have to bo consented to by the other 6ido and by the Court. Hence Tdo not think they are before the jury. I shall enter a nonBuit, and the jury may be discharged. The Court then adjourned sine die *