SUPREME COURT—IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5500, 12 November 1878, Page 3

SUPREME COURT—IN BANCO.

4$ ♦ Thursday, November 7. Before Mr. Justice Gillies. HOLT AND ANR. V, WEBB. Mr* Samuel, who appeared on behalf of the plaintiff, explained that this was an action brought by plaintiffs, the proprietors of the Press Agency, to restrain the defendant, the proprietor of the Poverty Bay Standard, from publishing in his newspaper Brens Agency telegrams from Europe and other places. A demurrer to the declaration had been filed, raising the question on the common law of copyright in New Zealand, and the plaintiffs w-re advised that the matter was of sufficient difficulty and of sufficient importance to them to render it advisable that it should be decided in the Court of Appeal. He therefore moved that the demurrer be removed into the Court of Appeal, mentioning that the other side consented, and producing an order to that effect which had been signed by both parties. His Honor : I shall make the order, although I don’t think there is any necessity for it, because I don't see that there U very much difficulty, though it may bo a case of considerable importance. It would have been as well if it had gone before a Judge of the Supreme Court first before it went to thp Court of Appeal, Mr. Samuel : X may mention, your Honor, there have been several similar actions commenced, and in one or two instances demurrers have been lodged, but owing to tbe bankruptcy of the defendants these cases have never come before the Court. The plaintiffs have been long anxi us to obtain the ;issistance of the Courts, Most of the influential papers depend upon the plaintiffs for the supplying news of this character, but from time to time the smaller papers are republishing this news without having a license to do so. For some time past the plaintiffs have been looking forward to getting a decision from some competent tribunal, to loi the public know that their rights mu-*t not bo infringed with impunity. Therefore it may bo proper to have it decided in the Court of Appeal. Order made as prayed. HENDERSON (CREDITORS’ TRUSTEE Or) V. HENDERSON AND OTHERS. Mr. Bell moved for a decree in this case, and stated the circumstances. The declaration averred that on the 38th December, 1873, the defendant, John Henderson, was the registered proprietor of certain lauds at Wanganui. On the 12th January, 1874, hemortgaeed the # land to the Wanganui and liangilikei Land and Building Society, to secure the sum of £6OO, and interest thereon. On the 4tfa September, 1877, ho the said John Henderson executed a memorandum of transfer, whereby he purported and pretended to transfer to on© Amelia Sellman, of Christchurch, spinster, all bis estate and interest in the said laud, subject to tbo mortgage, At and some

time before the date of the execu ion of the ransfer one of the defendants, Bo*wcl Robert Middleton, had been a servant in the employ of Hemler-on, and at the time of the execution of the transfer, pretended t * act as thagent ot Amelia Seilman at Wan. anui, and also pretended that he was mi’horisrd *y the said Amelia 3 diman to purchase from Henderson the land in.qnirstnm. On the i 6 h of Novem er 1877, Henderson filed a declaration ot insolvency, and on the 2 ;th of that month plain tiff was elected trustee of the estate, and accepted the office. On the 25th January, 1878, the building society, in exercise of pmvt-r given them under the mort -age, sold the land by auction, when it realised £3Ol 14s. sd. in excess of the amount then due to the society; and the society had since retained the excess. Plaintiff alleged that the whole of the transaction between Henderson and Sellmau was fraudulent and void, that no Much person as Amelia Sellmau existed, that the name wa* concocted by Henderson aud Middleton for the purpose of transferring the laud beyond the reach of Henderson’s creditors* and that no consideration waa ever received by Henderson in respect of the transaction. Since the building society sold, Middleton had produced and shown to tho society what purports to be a power of attorney executed by Amelia Sellman, and purporting to authorise Middleton to not for her aud to receive the excess moneys held by the society, which lie has demanded. This document the plaintiffs allege to he a forgery concocted by Middleton, aud never written by Amelia Sellmau, but by Middle ton or some agent of hia in collusion with him. Plaintiff had applied to the building society, but they would not pay him the money, and he wa* afraid unless restrained they would pay it over to Middleton, therefore he prayed the Court to decree that the transactions between Henderson, Sellraan, and Middleton wer.t void, and that the building society should pay over to him. To this declaration the building soci-ty pleaded that they had the money, aud were ready aud willing to pay it to whom the Court decreed. 'The other defendants did not plead. Mr. Bell said these were the facts ou which the Court was asked to proceed. He had been quite unable to find auy case like it, where the Court was called upon to decide on th© interests of a person who might be in existence but who it was alleged had no existence. His Honor remarked she had not been made a party to the suit. Mr. Bell : No, your Honor. We don’t admit her existence. We canuot serve her, and there is no process by which we can get a judgment against a person whom we swear has no existence. If we had made her a party we should have admitted her existence. Then we could not have served her, and could not have proved she was not in the colouy and so obviated the necessity of service. His Honor ; It is an awkward thing for a Court simply upon the allegation of a party that they believe there is no such person ns this woman—without their showing d’sHnctly and particularly the grouuds for that belief—to take the course you desire. Mr. Bell : This woman has never been seen in Wanganui, and we can find no trace of her iu Christchurch or Dunedin. The only person seen is Middleton, the person authorised to draw the money. His Honor; He has done everything for her. Mr. Bell : Yes; and curiously enough, though it does not app-ar on the record, the p >wer of attorney under which Middleton acts was executed iu Dunedin, and purports to have been signed before Charles Thomson, a com : mission agent That man cannot be traced. Of course it is impossible to prove a negative but that is what under the vircamstances we are practically compelled to do. His Honor : Is there no process by which you can get these persons before the Court. Mr. Bell: We have had Henderson and Middleton before the Bankruptcy Court, and they swear up to the documents. We can bring under the notice of this Court the exam iuation of these two, perhaps ; hut they do not seem to know anything of the woman. It is said that a person named Buchanan, who passed through Wanganui, negotiated the sale to Amelia Bellman, but no money seems to have passed except £25, which is alleged to have been paid to Henderson, but I don’t believe it. However, neither before nor since then has Buchanan been seen. His Honor : Is the transfer registered ? Mr. Bell : Ye=. Some further conversation followed, in which his Honor suggested that plaintiff should place affidavits before the Court 'stating that the police hid made enquiries iu Dunedin and Christchurch, aud had been unable to find her. Mr. Bell was quite willing to strengthen his case in every way possible. Ic was impossible to make her a party to the suit, because to admit her existence was to admit that plaintiff had no claim. If such a person as Amelia Bellman was in existence no doubt she had a right to the money. His Honor : These two men have never sworn she existed ? Mr. Bril : No, they carefully avoided that. His Honor : Is the deed of transfer properly prepared. Mr. Bell: Oh, yes ; it is engrossed by some clerk, but we cannot trace him. It is a very ingenious document. His Honor suggested that as the census was taken in March ahd this power of attorney was signed in the some mouth it might be ascertained by means of the census papeis whether theie was at that time any Amelia Sellman in Dunedin Mr. Bell was obliged for the hint. He should follow it up. If it had been possible he would have indicted these men for fraud, but there were technical difficulties in tho way. He hoped the civil action would have helped him in getting evidence of fraud, but they ha » very cleverly-declined to plead, and it was almost impossible to get at them. It was their failure to plead that had thrown him on his beamends as it were. After some discussion with Mr. Chapman, who represented the building society, and contended the society should not be amerced in any costs in connection with the case, His Honor ordered the matter to stand over for a few days. The Court then rose. ,