SUPREME COURT

Taranaki Daily News, Volume LIV, Issue 305, 21 June 1912, Page 7

SUPREME COURT

SESSIONS CONCLUDED. 'An undefended divorce case, Grace Hetherington v. Frank William Hetherington was heard at the Supreme Court yestcTday morning before his Honor Mr. Justice Edwards. The grounds for divorce were that the respondent, who made no appearance, is an habitual drunkard, and has been habitually guilty of cruelty towards the petitioner. Mr. Quilliam appeared for the petitioner, who said there were three children of the marriage, which took place at New Plymouth on February 7, 1906. Subsequently the parties removed to the Auckland district, where the wife soon discovered that her husband was addicted to drink. From July, 1907, to the present time respondent, it was alleged, 'had been an habitual drunkard. In February, 1909, a prohiibtion order was taken out against him at Cambridge. He was then farming some miles out of that town.

Petitioner gave evidence of the illtreatment of respondent to her when he was inebriated, and stated that as a result she became ill. Consequently she left him and came to live with her parents at New Plymouth. Subsequently she rejoined him, but as his conduct did not mend, she again went to live with her parents. In May, 1911, he was arrested for drunkenness, and had to be remanded for medical treatment. Later on lie was committed to the inberiates' home at Papatoa for twelve months. He remained there for only two months, however, being released at the instigation of his mother, who cabled out from England to the Justice Department, Hetherington then went to England, where he was an inmate first of one drunkards' intsitute and then another. In February, 1912, respondent returned to Jfew Zealand and came to New Plymouth. Since then, however, according to petitioner, his drinkiug habits had in no way improved; in fact, he seemed to be worse. Hetherington at present had a farm about twelve miles out of New Plymouth.

Evidence in support of the petition was given by petitioner's father. His Honor granted a decree nisi, to be made absolute in three months, petitioner to have the custody of the three children. Costs were allowed on the higher scale. IN BANKRUPTCY. Alf. Ellison appeared in support of his application for a discharge from bankruptcy, which was opposed by Mr. J. E. Wilson, on behalf of two creditors. Mr. C. H. Weston appeared for the bankrupt. Mr. Wilson intimated that he was instructed to oppose the discharge unless it was made conditional upon the bankrupt consenting to a judgment for part (say 10s in the £) of his indebtedness. Bankrupt was a single man, well able to earn his living, and was in a position to discharge at any rate part of his liabilities. The debts were proved at £203.

Cross-examined by Mr. Wilson, bankrupt said he filed bis petition in September, 1911. Since then he had been laboring, earning 10s a day when he worked. He did not work wet and dry. ' According to Mr. Weston, it was a case of a pure misfortune. In September, 1909, the bankrupt did not owe one penny, and, together with a mate, took on a contract to shift a flaxmill. His mate deserted him, and when bankrupt had nearly finished the re-erection of the building it was destroyed by a land-slip. Consequently he got into financial difficulties. Mr. Weston concluded by asking for an unconditional discharge. In disagreeing with this request, his HonoT remarked that it was a question as to who should bear the misfortune, the man himself or his creditors. In this case he held that at least a portion of it should be borne by the bankrupt. His Honor accordingly made an order for discharge, to take effect upon bankrupt having paid to the Official Assignee such sums as would amount to 7s 8d in the £ on the proved debts, and all costs and charges in connection with the bankruptcy.

THAT AUTOMOBILE. JUDGMENT FOR THE DEFENDANT. THE SECOND CASE WITHDRAWN. The concluding stages were taken in the involved civil action in which Robert H. Wallath proceeded against Henry Weston with a claim for £2BO, for repayment of money alleged to have been paid for the purchase of a motor car. Mr. A. R. Standish appeared for the plaintiff, and Mr. Skerret, K.C., and with him Mr. J. C. Nicholson, for the defendant.

COUNSELS' ADDRESSES. In his address on behalf of the defendant, Mr. Skerrett, K.C., contended, that the relationship between Gunson and Weston was that of mortgagee and mortgagor, and not that of principal and agent. His Honor here interrupted counsel with the remark that he was satisfied that it could not be contended that Weston was owner. He had, in fact, merely advanced money in respect of which he had held some form of security. Proceeding, Mr. Skerrett pointed out that there was no evidence of any holding out of commission to G-unson on the part of Weston, and, further, that the onus Tested upon Wallath to prove a bona fide sale. The whole surrounding circumstances, contended counsel, showed plainly enough that Wallath's evidence could not be relied upon. Stress was laid by counsel on the absence of any receipts for the large cash payments alleged to have been made by Wallath to Gunson and of the unsatisfactory condition of the alleged private letter. Mr. Skerrett also contended that Wallath must have known, or must have seriously suspected, that the car which ho alleged he had purchased was the car sold to Mav. Counsel also commented upon Wallath's statements to May and his ; conduct in receiving part of the pur- ' chase money of the sale to May. It was further contended by Mr. Skerrett that the transaction with Gunson was a fraud effected by Gunson for his own purposes and not intended to carry out any authority given to him by Weston, and therefore Gunson's act in selling the car more than once did not hind Weston even if an agency were proved. Lastly, Mr. Skerrett held that the agency, if any, ceased when the car was sold to Father Bergin. AN ABRUPT TERMINATION. At the outset of his address, counsel for the plaintiff (Mr. Standish) raised | the question as to whether Weston was not stopped from denying ownership, or at any rate responsibility, for Gunson's action, by reason of the letters sent by the defendant to Gunson on February 2, 1911, in which he stated that he was placing the cars in his hands for sale, the commission to be arranged later.

!V,h Honor interjected that Gunson knew that the letter was, in effect, not - bona fide, to which Mr. Standish re- ( joined: "If your Honor holds that, I have I nothing more to say." [' Summing up, his Honor stated that he j had no doubt in giving judgment for the i defendant, and, proceeding, he outlined his reasons. It was, he said, quite clear that it was quite idle to contend that the defendant was at any time owner of the motor cars. His only relationship to the car which was the subject of the action was that he was willing to asgiet Gunson —a connection of his wife's—by advancing moneys to enable him to import the cars, upon terms which would afford him (Weston) some sort of security for his loan. The letter written by W. Weston on behalf of his uncle on February 2 "was no doubt a foolish document. It had been prepared by a. lay? man who was not nearly so clever as he imagined, and had led to some embarrassment, no doubt. Nevertheless, it did not alter the relation between the two parties, Weston and Gunson. If it had been suggested that if the letter had been showu to Wallath. the position might have been different, but there was no evidence to show that the document had been shown to Wallath. As regards Wallath, his Honor commented that his evidence was so exceedingly 'unsatisfactory in many points' that he did not think any jury could consider that any fact was established by his evidence and his evidence alone. The extraordinary serins of transactions between Gunson and Wallath must throw doubt on everything that occurred between them. "In a word, - ' remarked his Honor, "Wallath takes everything! It is inconceivable to me that, long before the latter stage of the transactions had been arrived at, Wallath would not have seen that it was necessary to call in the assistance of a lawyer. . . I find that plaintiff has completely failed to prove his case. Costs will be allowed according to scale." THE SECOND MOTOR CASE. SETTLED OUT OF COURT. When the second motor case of Edwin May v. Henry Weston, involving a claim for £419 4s lid damages for alleged breach of warranty in respect to the motor-car which has already been the subject of one action, was called, Mr. Skerrett, K.C., who, with Mr. Nichol- ' son, appeared for the defendant, announced'that a settlement had been' ar- ; rived . at. In this case, he explained, i the circumstances were quite different. 1 In Mr. May's case there was a complete absence of any suspicious circumstances or any circumstances reflecting in the slightest degree on the perfect honesty of Mr. May. There was no doubt that Mr. May purchased the car in the belief that he had a title to it. He (Mr. Skerrett) had advised Mr. Weston that under strict law he was under no liability to Mr. May. Mr. Weston's personal inclination, however, was that he ought not to hold any money which he had Teceived through Gunson from Mr. May. because it was money obtained by a fraud. He therefore offered to return —and had always been ready to do so—to Mr. May every sixpence which went to his credit out of the receipts from Mr. May. He did' this, not through fear of any "action at law, but because he had no desire to profit, even indirectly, by fraud. He considered this was the fair, just, and honest thing to do. Mr. Skerrett concluded that his friend was ! willing to fall in with the suggested settlement. Mr. A. IT. Johnstone, who, with Mr. Frank Wilson, appeared for the plaintiff, signified his consent to the arrangement, and His Honor commented that it was a very proper settlement. He doubted, even though Mr. May could have succeeded, if it could be beyond the amount Mr. Weston was willing to pay. He had no doubt that Mr. May and Mr. Weston had both been absolutely honest throughout the whole transaction. They had been deceived by a particularly dai* ing and ingenious individual, and' all due respect to New\ Plymouth—which w»s not as big as London—it was curious that the perpetrator of the fraud had not been found out before he left for other climes.