SUPREME COURT. CIVIL SESSIONS. MONDAY, SEPTEMBER 1. (Before Mr Justice Gillies.)

Te Aroha News, Volume II, Issue 66, 6 September 1884, Page 3

SUPREME COURT. CIVIL SESSIONS. MONDAY, SEPTEMBER 1. (Before Mr Justice Gillies.)

His Honor took his soat at 10 a.m. to-day. Paul Pusciie v. North British Insurance CoMrANY. — Claim £500, due on a policy of insurance.— A juiy, of whom Mr iP. G. Clayton was chosen foreman, was empannelled. —Mr Mahony appeared for the plaintiff, and Mr Theo. Cooper for defendant Company. — Mr Mahony having opened Iho case called Paul Pusche, who, on being sworn, deposed that he was a statue manufacturer, and was residing in Manukau Road until May sth last. About 14 months ago he went to the Norwich Union offico lor the purpose of effecting an insurance on property tv the extent of £550. The property was statues, moulds, and furniture. They said they would take the risk of £400— this was after a clerk from the office had gono up to the houso. The clerk remarked that it water was thrown on the goods it would spoil them. Ho subsequently visited the office and was told that the Compairy did not care about taking the risk. Witness did nothing about insuring for five months, when he went to the Colonial and niado the same proposal as ho had made to the Norwich Union. The manager asked him if he had had a firo bnfore and witness replied that ho had been burnt out before, and that he had been trying to get his property insured at the Norwich. The manager then asked him what oilice he had been insured in whon he was burnt out, and if he had been paid. Witness told him that the oifice was the New Zealand, and that that Company had paid him in full. The manager then took tho risk at £300. At this time he had three times more stock than when he went to tho Norwich. He was insured in the Colonial for five months when, owing to tho increase of stock, he went to tho North British intending to effect another policy for £350 — that was to be besides tho amount in tho Colonial. Witness was not asked if he was already insured, but ho told them of his previous fire, and of the visit he had had to the Colonial and Norwich, and his insurance in the first named. The clork then said ho would take the lisk, and witness paid him the premium, the clerk, Mr Churton, promising to come up and look at the stock. This he did two days after, and after tho visit told him ho would have to come down and see the manager of the Colonial. This witness did, when tho manager saw he could givo the whole risk to the North British. Tho Colonial policy was cancelled, and Mr Graham, (the manager of the Colonial) went with him to the South British Office, where Mr Churton said he would take the whole risk £500 on himself. Mr Churton asked him how he would have the work divided. ITo replied £200 on the statues, £200 on the moulds, and £100 on the furnitutc. Chin ton then gave him a receipt for the £3 premium which witness then paid. (Receipt put in evidence.) Churton promised to send tho polioy by post, but witness never received the policy. Witness recollected sending in a statement to the Company of his loss by the fire, which totalled £1,033. He valued the statues at £370, furniture £200. He had been doing a good business. At the time of the fire, the property was absolutely his own — no one had any claim on it. When he went for his money the Company "cast him away like a dog." He had not received a penny from the Company. He claimed to recover £500 and interest from the time the fire took place. — To Mr Cooper : When he had the conversation with Mr Churton, there was no one present. He remembered signing a paper which ho understood was a proposal. He could not read. His previous fire took place at Nelson He remembered giving evidence at the coroner's inquest on the fire at Parnell. He did not state at the inquest that he did not tell Mr Churton about the Nelson fire. The Nelson fire took place three years ago. He was then insured for £050. The New Zealand paid him in full £400, and another office £180 or £190. He started his business in Auckland nearly two years ago. He had then £100 in his pocket, and 6 or 7 tons of goods valued at £200. All the stock he had had in his possession since had been manufactured by himself and his boy. He sold a large quantity of good* during the two years — he had used about 40 casks of Plaster of Paris. The highest price he had paid per cask was 30s. He was not sure how much money he had received through the sale of his statues. It might be more than £500 and it might be less. Since he had been in Auckland he had bought some moulds and he made some himself. The list he had sent to the Company was made up from memory. His boy was 13 years of ago. During the two years, he had spent about £100 for linseed oil and wire in connection with his business. — George Kcven, clerk in the Colonial Insurance, gave evidence concerning plaintiffs connection with that Company. It wa mainly corroborative of plaintiffs testimony. — Thomas Lowrio Willcock, tea dealer, deposed that he had been frequently in the plaintiff's work-room previous to the fire. It was 30 feet long by 16 broad, and was nearly full of images. There had been a gradual increase in the stock for several months previous to the fire. He was in the work-room a day or two before the fire, and noticed that it was simply crowd fid with stock.— James Bannatyno Graham, manager of the Auckland branch of the Colonial Insurance Company gave evidence corroborative of that of Mr Keven.— Thomas Kelly, builder and plasterer, deposed to having been twice in plpintiffs workshop. The statuary at plaintiff's shop was perfect, and the moulds must have been good. There would be £7 worth of work in a mould of JOO pieces. — Mr Cooper then submitted that under clause 10 of the conditions of the Company's policy it was incumbent on the part of plaintiff to submit the claim to arbitration for the purpose of adjustment before the plaintiff had a cause of action. He quoted the House of Lords decision, Scott v. Avery. in support of his contention that the neglect to refer to arbitiation on the part of plaintiff was fatal to the case. — His Honer said that at the present stage there Mas no evidence that a difference existed between the parties, — Mr Cooper pointed out that the neglect to pay disclosed|there was a difference of opinion. — His Honor was perfectly clear that a mere neglect to pay was not evidence that a difference existed within the terms of the clause quoted. — Mr Cooper submitted that there was no cause of action until after tho adjustment by arbitration. — His Honor said that the plaintiff could not refer the matter to arbitration, because no difference was alleged. Eventually it was decided to reserve the points raised by Mr Cooper. — Mr Cooper then intimated that he did not intend to offer any defence from the reason that Mr Churton had left the colony. The Company had acted on the proposal put in, and the statement made by Mr Churton,— Mr Mahony briefly addressed the jury. — His Honor, addressed the jury in favour of plaintiff, saying that the mere refusal on the part of defendant Company did not constitute a difference that should be referenced to arbitration. He pointed out that the

plaintiff was not entitled to interest, as the Company had 60 to consider whether they would pay the policy or rebuild. — Mr Cooper here pointed out that the 60 days was 60 days from the date of adjustment — Mr Mahony said ho was quite satisfied to take a verdict for the £500. The jury then without leaving their seats returned a verdict for amount claimed. — His Honor was proceeding to give judgment for plaintiff, when Mr Cooper asked for an adjournment of the case that the points lie had raised might be argued before His Honor. — His Honor said ho did not think the action of the Company had been such as to entitle them to peculiar consideration, and ho did not think an adjournment would be fair to plaintiff. He would give judgment for plaintiff with cost in the middle scale. ArEKATERA AND OTHERS Y. E. B. WALKER and OTniiKS, — This was an action to have a memorandum of transfer declared void. —Mr Alexander appeared for the plaintiffs and Mr E. Hesketh for defendants.— His Honor remarked that one of the plaintiffs, Wirepo te Pouri, had filled a notice of discontinuance.—Mr Hay said that the plaintiff named was present, and was prepared to give evidence how this had been obtained. It amounted to duress. — Mv Hesketh submitted that the case should be at onco dismissed because of the non-compliance with the rule concerning the signing of the warrants. — Mr Hay applied for ad adjournment till tomorrow. The warrants were at Hamilton, and he expocted them to arrive hy the ovening's train. —Mr Hesketh still held that the action must fail, in consequence of non compliance with the rules. The Court hero adjourned till 2 p.m. The Court resumed at 2 p.m. His Honor quoted from a ruling of Mr Justice Johnston in the case Bank of New South Wales v. Mitchell, which went to show that under similar circumstances as in the present case the plaintiff had been nonsuited. Under the old rules, there was provision for a motion setting aside Iho writ and action depending on it. Apart frorci this objection there- was ono of the notice of discontinuance by one of the plaintiffs. — Mr Alexandor argued thet one of several plaintiffs could only give notice of discontinuance so far as our individual interests were concorned. — His Honor said thisappeared to be a joint actiou. — Mr Alexander then moved for an adjournment to-monow to await tho arrival of the warrants.— Mr Hesketh argued that the filing of the discontinuance was fatal to the action, and even if it was not, the irregularity regarding tho warrant was. — His Honor was not prepared to follow tho ruling of Mr Jvstice Johnston. He would adjourn the hearing till next sitting. In the meantime the defendant could move that the action bo set aaide on the ground of irregularity, and would give the plaintiffs an opportunity of asking if it should not be set a&ide and applying for an amendment. The co&ts of the day would be paid by plaintiffs.

WEDNESDAY, SEPTEMBER 2. Thomas Peel v. Malcolm Niccol. — This v as an action to recover £200 compensation for injury done to business, and £100 for injury done to character. — Mr Hesketh (instructed by Mr Lusk) appeared for the plaintiff, and Mr Theo. Cooper for defendant. Ihe plaintiffs case was that while he was carrying on business as a wholesale spirit dealer at Devonport he had applied to the Licensing Committee of Takapuna for a renewal of his license; and the defendant wrote a letter to the Committee reflecting on him, and accusing him of doing certain acts which rendered him liable under the Act. It accused him of supplying a single bottle of whisky, in one instance, to an intoxicated man, and that he had afterwards sent a dozen bottles of beer to the house of this man. The defendant admitted paragraphs 1 and 2. As to paragraph 3, he did not know the plaintiff had made application for the renewal of the license. He admitted he addressed a letter to the Licensing Committee at their request, but not having a copy of it, he could not say whether the extract was correct or not. He denied the allegation of the sth paragraph as to claim, and also the allegation of damage, and alleged that the letter was written without malice. The points, aye or nay, were— Was this a privileged communication, and were the words true 1 In stating the case Mr Hesketh said that tho person referred to was Mr Meed's father. He came to Mr Peel's store in his absence, and asked tho young man to allow him to sample whisky, and he was allowed to take away a bottle ; but on Mr Peel's return he sent him after Mr Niccol for the bottle. Ho refused to give it up, and Mr Peel followed him to his house and explained to Mrs Niccol how he obtained the bottle. He subsequently made the same explanation to Mr Malcolm Niccol, who apologised to him for certain expressions he had used ; yet eight) months after he sent this letter to the Committee, who adjourned their meeting to investigate it. At the adjourned meeting Mr Niccol nid not appear, and Mr Peel was put to a great deal of trouble and loss. — The defence was that the communication was privileged. The Licensing Committee was a court of justice, and tho defendant's letter was nothing more than an objection sent by a person entitled to object. The plaintiff had had notice of the objection. The defendant had not appeared to sustain his objection, and thus had abandoned it. — It was also contended by Mr Cooper that malice must be shown. — His Honor, in giving judgment, said that the defendant, as a householder, was entitled to avail himself of the power granted by the Licensing Act, and object to tho granting of a license so long as he did it in a temperate manner. The defendant appeared to have made the complaint as a matter of duty, and thi3 was clearly a caBe of qualified privilege. Plaintiff would be non-suited, with costs on the middle scale.