SUPREME COURT.—Judge’s Chambers.

Poverty Bay Standard, Volume IX, Issue 976, 7 September 1881, Page 3

SUPREME COURT.— Judge’s Chambers.

[Before Mr. Justice Gillies.J Coopeb v. Coleman and Clabke. Mb. Coopeb (Russel and Devore) for the plaintiff ; Mr. E. Hesketh(Hesketh and Richmond) for the ■defendants? This was an application for an order to the plaintiff to amend his declaration. The action was brought to recover damages for injury sustained, and also to obtain specific relief. The defendants are trustees under the will of the late Captain Bead, -of Poverty Bay, who held a mortgage over the plaintiff’s property. They demanded payment, and not being paid, foreclosed, and subsequently aold to Messrs. W. L. Rees, Wi Pere, and others. The declaration alleged that all the parties —Clarke, Coleman, Rees, and Wi Pere—were acting in collusion to deprive . him of his property, and consequently that the sale was fraudulent. They sold the land for £.25,000, and the plaintiff declared that it was worth £lOO,OOO. He said he was. in custody upon a charge of perjury at the time demand was made ; that he asked to be allowed time to obtain the means of payment, but this the defendants refused, and they hurried on the sale with the express object of depriving him of his property. He further declared that he was willing to pay the full amounf of mortgage setting off the sum he should obtain in damage, and he applied that the Court would appoint the Besi.trar to M«e»» the damages which the pla.ntiff had s M . Gained —Mr. Hesketh said the declaration should be amended on the folKg founds: (1) That it was Lharraseing; (2) that a plaintiff could K claim damage, (a. out of . an action ■aw) and specific relief at the same . (3) that the special damage could not be recovered by of its “ remoteness ; (4) that alleged was not specifically —Mr. Cooper, in support of MK s rat,ion. said : (1) The clause S s “ embarrassing was

clear; (2) that Mr. Justice Williams had decided that damages and specific relief could be obtained where the facts and the cause of action were the same, and would make both remedies consistent with justice and common sense ; (3) that the objection to the special damage clause inust be admitted , (4) that so long as the surrounding facts disclosed a fraudulent transaction, the fraud need not be specifically described. His Honor was ■of opinion that the fraud could be gathered from the surrounding facts, that the clause claiming special damage must be struck out; that there were many cases where damage and equitable relief might be the only remedies which a plaintiff could obtain against a wrong. He thought; the declaration should be amended, but he would make a general order to amend as the plaintiff might be advised.— N. Z. Herald.