SUPREME COURT.

New Zealand Spectator and Cook's Strait Guardian, Volume VII, Issue 590, 29 March 1851, Page 2

SUPREME COURT.

— _ Civil Sittings, Before Mr. Justice Chapman > and a Special Jury. ’ { March 24iZt, 1851.

Vincent v. Badcock. 881 ..IfestaS This was an action brought by W, g y cent against W. Badcock to set aside s '‘ S \ veyauce of property in C Ghuzneo-street, on the ground ol fraud. King conducted (he plaintiff’s case, iq r was engaged for the defence.- ’ The plaintiff, who kept the Te Arn p.,.i having got into difficulties had i/iiWS the hotel to Mr. J. Johnston one ditors for 20, but this negotiation^’Br failed he subsequently offered to sell d lC ?w|l perty to Mr. Loxley, another creditor, hit-F sum equal to £445. On the 21st the defendant, on the part of the Odd FelhtP' who held a mortgage on the property, a notice on the plaintiff, and it was allemf ® subsequently offered to purchase the po S house alone for £450. In the Draft ofcJ veyance which was brought and read defendant to the brother of the plaintiff held a Power of Attorney to act for bul *TI was alleged that he omitted all mention property in Ghuznee-street which was ioAH ded in the Conveyance afterwards the plaintiff, who therefore brought sent action. The trial lasted two half, and twenty witnesses were establish the plaintiff’s case. The witness on the part of the plaintiff wasJoJfP. Vincent his brother, who swore that thepUsH tiff told him he (plaintiff) was going to disjsW of the Te Aro Hotel to Badcock for that on the 27tb December defendant readoHra 1 ; witness in the presence of Constable and Jlnßj Vincent the draft of the Conveyance,andibitT - there was no allusion in it to the propertyiiKftii Ghuznee-street ; if there had been be sbralSfe have either taken it to his brother or torarH| up. Witness approved the draft in he was carrying out his brother’s instrttclicosH who had given him a Power of Atmvj vBS act for him. On the night of the same defendant, after a few minutes previous versation with plaintiff in a separate room? \ laid a large sheet on the table which be sriS was a deed, and said to plaintiff “ Come Viil||l| cent, you’d bsttsr sign, thsrs’s no time to los?.ifiil Plaintiff took the pen and exclaimed, pose it’s all right to which defendanti'J S plied that it had already been read to and Constable. Plaintiff then signed, Constable and Jones witnessed the deelp- / Possession was given to defendant thefe!||| after the deed was executed. Three or days after the sth January witness heardßil||M cock was trying to sell the Ghuznee-strsig property and told his brother, who “ Then he’s selling me.” .Witness deoi’li having said to any other persons tbatheh®|B sold all his brother’s property to Badcoclg|| Another witness (Burgess Sayer) a officer, who arrested plaintiff, in bis C[C ' ! ]|||' examination stated that on taking the to gaol on the 14th January he called at Aro Hotel and stopped there a short that Vincent saw Badcock, they shook ba°ii||j and Vincent said he (Badcock) had norably and requested him to take two [fegj tures and keep them for his sake. The defendant’s examination before tSg Judge, which was at great length and contained many contradictory statements, also put in and read. When the Court and Jury Wednesday morning the foreman, M r * mond, said he was requested by the ask the Court whether what they had termine was, whether the plaintiff's s>g nai 'gh to the deed was obtained by the fraud defendant ? because, if so, he was state that the jury had made up their on the verdict they ought to give without waiting to hear evidence for tbs fendant. ' ® .Mr, Justice Chapman said it tvas tti J tainly competent to them to stop the case, TJ not hear evidence for the defence, bu thought he should state to them briefly they had to determine. There was no « r jg dence that Mr. Vincent, the plaintiff, person of weak intellect; on the con(raty>JH seemed to be in full possession of his J® tics. It must be presumed in that he intended to contract iti the shown by his deed. . But if fraud co» !fl || shown it would be cornpotent to the find it. One circumstance was the a* g inadequacy of consideration. ' In soine ° -continental Courts there was a ruin dia 3

the consideration money was only one-half the value fraud was presumed. This was, he believed, the rule in Scotland. But the law of England recognised no such rule, and if a sane man chose to sell his property at less than one-half, and there was no fraud, he might do so. But inadequacy of consideration raised suspicion—whether there was inadequacy would be one of l the points he should put. Then, as to the mode in which the plaintiff was induced to execute the deed; — there was no duty cast on the defendant to read the deed, or to advise or insist that plaintiff should employ a lawyer. In one sort of instruments, such as warrants of attorney and Cognovits, the Legislature had stepped in and eaid both parties shall have a lawyer: but in the case of deeds for the conveyance of proSperty, the Legislature made no such requireggnent, but left both parties to their own vigiHfance aud discretion. Thus, then, the point i|Kto determine was whether the plaintiff when conveyed away his property was in such a Hstate of mind, produced by means of the acts B&md conduct of the defendant, as to make him a free agent, and that the acts of the deMfendant were such as ordinary prudence and Iwwigilfthcn would not guard against. Neither Klaw nor equity could attempt to regulate moral tonduct. A man might go through the world detested for his dishonesty, inySbpd for his “ frauds,” in the loose and popu■|®r sense, and still keep on what is vulgarly Spilled “ the right side of the law”. Where ilone the Courts can interfere is, where the . feceitful conduct of one party was such as a ijlltian in the full possession of his senses could 'iftot guard against by the exercise of ordinary ■Hljgilance.

F A conversation of some length here took ilace between Mr. King, for the plaintiff, and he Judge, the former contending that the khole facts and circumstances of the case ihewed such fraud and deceit operating on the hind of plaintiff as to show that the Ghuzneeirreet property was surreptitiously introduced nto the deed and the signature then obtained >y acts calculated to produce even terror in he mind of Vincent. Mr. Justice Chapman laid it was his intention to put the whole evilence as to fraud to the jury not withdrawing iny part, but that he felt that it was quite imlossible to contend against the conviction of he jury. Mr. King assented to this course, md after some few words as to the way the question should be put, his Honor told them hat when a person in full possession of his Senses executed a deed, it must be presumed ie knew what he was about, and that he intended to part with that which the deed expressed. That that presumption might be rebutted by proof of fraud, and if they thought She Ghuznee-street property was fraudulently introduced and the signature obtained by gseans that a man in the full possession of his faculties could not guard against by the ordinary exercise of his judgment, they might pud the fraud. But if they thought upon the frhole of the evidence there was no such fraud, they might so find it—notwithstanding

■™Sny impression of theirs as to the deceitful pnduct of the defendant. The foreman. Mr. Raymond, then gave the B|||ollowing verdict:—“ The jury having given the evidence which has been brought forthe most careful consideration, and also jjgMyery weight to his Honor’s remarks, cannot Mlßi'd any proof of fraud on the part of the defendant, although they would wish to add that Ilgßiey cannot find words strong enough to ex-’-^B ress their sense of the dishonesty of both the efendantand plaintiff*throughout the whole f* atter * er^*ct therefore for the defendant.” '■.at Mr. Justice Chapman expressed his conjj3j|[urrence with the verdict. There was, in fact, icifp such case of fraud as would let in the inH|Hjhference of .a Court of Equity. He also ’■•oncurred in the.animadversions of the jury con^uct °f both parties. No one who heard the case could fail to come to the yßonclusion that it was a deliberate scheme to . : aiefraud (in a popular sense) the creditors. ; sto the defendant (who was present in ||®ourt) his conduct throughout was marked by f ■hshonesty and deceit, and he would leave that a disgraced man. gHE Bethune & Hunter v. Biass. The case of Bethune and another v. Biass P ost P one( l on affidavit by defendant to next sittings of the Court, the defendant [®ayin g the costs of the day.