NISI PRIUS SITTINGS.

Tuapeka Times, Volume V, Issue 247, 24 October 1872, Page 5

NISI PRIUS SITTINGS.

{Before Mr Justice Chapman.) October 15.

The' case of the Bank of New Zealand v. Larnach was, by cjnsent, adjourned to December 2.

Mr Smith applied that the caae of Aitken v. Pritchard, which stood (irst on the list of special jury caaes, might be postponed until after ->' utter v. Pritchard, as it was alleged the latter involved a question of title, which it was intended to raise also in the rirstraentioned aokion, which Is one for malicious prosecution ; and that the defendants in Nutter v. Hritchard was likely to be preju. diced by that matter being, so discussed. After argument, , His Honor said he had power to do this. If iv the case of Aitkeh v. Pritchard c Uateral questions were raised not necessary to a decision in it, but which might prejudice the defendant in Nutter v. Pritchard, he had power to stop the case and postpone it. • H any circumstances of that kind arose he could postpone the case. Mr Smith thought that course was very inconvenient ; and was only resorted to in extreme <.ases. His Honor said the practice was not unfrequeut. He was, however, under a strong impression that the trial of Aitken v. Pritchard could in no way prejudice the question or questions raised in Nutter v. Pritchard, and therefore thought he ought not to grant the application. (ULLOX V. CAMEBON AND ANOTHER. Mr St'ont for the plaintiff, Kobert Gallon ; Mr Taylor^ with him Mr Catomore, for the defendants, Alexauder Cameron and John M'lntosh. The declaration stated that on May 26, 1869, plaintiff demised by deed to the defendants a piece of land at Lovell's Flat for coal-mining purposes ; that the latter worked it, and retained possession until the expiration of the term of lease, but that they retained possession thereafter to tbe plaiutiff s loss, whereby be claimed L2OO damages. The defendants, by their pleas, denied that they had executed the deed^ or that .they \ either worked the mine or retained possession of it after the expiration of their tenancy ; and further, that they obtained permission from the plaintiff to remain on the land for twenty-one days, to enable them to remove buildings, &c. ; Tbe facts shortly stated are these :— ln ! terms of the lease, defendants entered into ! possession and worked the coal mine, and at the end of their tenancy Gallon called for tenders for leasing it, because there was a clause in the lease by which he was to give ' defendants a preference over other applicants. , feut defendants' tender was so much lower than, the highest one sent in, that he refused j „t,o re-let it to them. Defendants refused to give up possession, and worked the mine for < two days after- tjbte expiration of the lease, compelling Gallon to sue out a writ in the SupremV Court, \yhich having been 'done, they ceased work and gaye vi up possession. •For the plaintii? merely nojEainal damages were asked. " ; 1 he jury feund for the plaintiffs— damages LI 10s fid, ljeing the amount of royalty- due to Gallon on the coals aaised by the^ defendant's during the time they held possession of the mine beyond their lease. BIUDGE V. MA.OLARN. „ This is an action for slander, damaged being claimed at L5OO. Mr Maeassey, for plaintiff; Mr Stout for defendant. The alleged slander was that the defendant had told Sergeant Smith, at Arrow town, ttjajb "Bridge had killed a white steer of mine at ISeej»'s yard, ten or twelve days ago, and I have been Joldh.e cut. up the hide." Defendant denied -malioe by hijj pleas ; said he merely stated that he heard " midge had . » hide in his possession with, a hand cut out ; '< and in evidence denied that he ever said plaintiff killed his steer, it was .proved that the steer which Bridge killed was his own property. The jury found for the plaintiff— damages, L 25. * ' • October 16. AITKEN V. PRITOHABD. Mr Maeassey, with whom was Mr F. R. Chapman, for the plaintiff. William Aitken ; and Mr James Smith; with whom was Mr

tout, for tbe defendant, Edward Pritchard. The damages are olaimed at LSOO.

The case for the plaintiff, as stated by Mr Macassey, was in effect as follows :— The circumstances of the caao data from kSaturda), June I. At that time the plaintiff was in the employ of the late John Roddam, who was the' ptoprietor of two teams and a number of horses. <m thafc day Aitken was , on the point of starting for Nasebj' with a load of merchandise, and it was important to observe that on that day Fritchanl saw him in charge r>f his team, but had no couvers ition with him. Of the nine horses in the team driven by Aitken, two did nr«t belong to Rnddam. On the following Friday, Juno 7, \itken had got as far as Pigroot, and on the afternoon of that day, Pritchard, who was accompanied by a mm named Ha*ueß, who figured prominently in the subsequent proceedings, and a bailiff named Hrovvn, drove up. A conversation of a remarkable and significant character, took place between Pritchard and Aitken. Pritchard spoke first, and said, " You will be surprised to see me here." Aitken replied, "No, I have seen you here before." Pritchard : "I have come to take possession of Roddani's property, which I have purchased from him. " Aitken s*" Now, you do surprise me." The subject was enlarged upon, and subsequently Priteuard told Aitken that .on May 31, the day, before Aitken left T)unedin, he ha>l purchased from Roddam the team driven by Aitken and the other belonging to him (lloddam). Aitken at once said 4 Why did you not tell me of this -pur chase when you saw me in Dunedin on June 1." Pritcbard's reply was "The con tract had not then been completed." Th bill of sale was produced, whereripon Aitkerr " I can't recognise this as an order fp,, delivery." Some further conversation todk' Jace, during which Pritchard "admitted tha he knew Roddam was coasider^bly indebted to Aitken ; but when they separated Pritchard did not know whether Aitken was prepared to give up possession or not. On the following day Aitken decided to hand over his waybill to Pritchard, and in doing so intimated his intention of going to Dunedin to see Roddam, at the same time" telling Pritchard that some of the horses" in the team did not belong to Roddam, aud. asking him to take care of them. In the course of further conversation, during which Haynes was present, Pritchard said to the latter " If you cannot get on without the other horses, wait till Aitken comes up from town." Now Pritchard was at this time cognisant of the fact of Roddam having left the Colony, which he did not tell Aitken, who learned it on his arrival in Dunedin on June 8, and that Roddam had sailed in the Rangitoto for Melbourne without settling his creditors' claims. On Juoe 9, Roddam committed suicide on board the steamer, while she was at the Bluff, and on the J following day the announcement of his death appeared in both of the Dunedin papers - a circumstance that was well known t > Prit- J chard, as would appear hereafter. On the | arrival of Aitken in town he conferred with some of Roddam's creditors, and the result was that Messrs Macassey and Holmes, acting for them, wrote on the 11th to fritchard informing him that the creditors pro posed taking proceedings against him for the purpose of setting aside the deed made by fioddam in his favor, on the ground that at the time of making it, he was not legally competent to bind himself, and cautioning him against parting with any of. the horses. On June 10, it was plain he knew of the creditors' intention to attempt to impeach the tiansaction, yet on that day he telegraphed to Haynes that an attempt would be made to obtain possession of the property by force, and commanding him to resist that attempt by force also. Aitken, acting under instructions from the creditors, proceeded to Pigroot, and a couple of miles this side of Naseby took possession of the team, and drove it iuto Naseby,'j placing i in the stables of one Packman, one ot the horses which belonged to himself,- anit ths others .in hiorseweH's staples. Haynes was thoroughly aware of Aitken's proceedings, for he informed Pritchard of them by telegraph, and there was no attempt at concealment. On June 12, Havnes preferred an information before Mr H. W. KobinsOn, R.M., Naseby, charging Aitken with stealing the horses. On the part of the plaintiff it would be contended that' Pritchard was the instigator of the criminal proceedings, as would appear by a number of ttlegrams that would be put in evidence On June 12, Haynes telegraphed to Pritchard, informing him of the seizure of the horses by Aitken, and asking to know what he was to do ; whereupon Pritchard on the following day telegraphed back to Haynes that he was to give the person who took them in charge. On the 14th, Haynes telegraphed back that Aitken had been arrest' d for taking the horses from him, which was the only way of securing them ; and Pritcbard replied " You have done right ; messenger on the road with instructions and deed of sale to produce before the magistrate, also writs to serve, notwithstanding the arrest." Aitken was dragged out of his bed between midnight and 2 a. m. on the 14th, and locked up until he obtained bail At the trial. Pritchard, who had retained Mr Howlatt, the only legal practitioner in .Naseby, and brought up Mr Stout with him, pressed tor a commitment j but, although only two witnesses were called by Aitken to prove the state of Roddam's mind at tbe time he executed the bill of sale the magistrate dismissed the information, he being of opinion that Aitken ha-j simply acted in the exercise of a supposed right, and without any felonious intent. If the case rested on tfio«e facts alone, there could not be a shadow of doubt that the proc ceedings taken by Pritchad against Aitken were taken "wrongfully, maliciously, and recklessly." But he (Mr Macassey) intended to invite tbe jury's attention to circumstances of a peculiarly strange character, which it , would be contended clearly showed that Pritchard's object was to stifle enquiry into his own claim to the property. Roddam was a carrier, but for months previous to his death had not been engaged in driving his teams. Aitken drove one, and one CCarr r michael the other. For' months he had lived in town, and up- till the night of June' 6 slept ' at the White Horse Hotel. But that evening he did not sleep there ; but was secreted in the premises of Mr Scott, of the Hoyal George Stables. At midnight on that day; or at all events befoi-e two o'clock the next moi niag, Pritchard went.ta the watchman on Bell Tower, and told him to be sure and rouse early Mr Joseph 'Mills— who appeared^ to be always called on upon delicate matters — whom he required to go to Port Chal- r mers on particular business. But Mr Mills was before the watchman ; and hours before daybreak got a buggy, went to the Royal George Stables, put Roddam into it, and. drove him down to Port Chalmers. It was not even daybreak when they arrived. A strange and suspicions circumstance was that Roddam was secreted at Fort Chalmers, and waß not seen from the time he arrived there till be was put on board the Kaogitoto.' Rnddam started on the afternoon of June 7 ; Pritchard remained in town till that moment, although his bill of sale wa3 executed on May 31. Why did he wait until Roddara went away before asserting his rights? Aitken' saw him in June 1", yet he said nothing on the subject of his purchase. But the moment the unfortunate Koddam was on board the Rangitoto— the moment he was perfectly sure jthat his own arrangements were complete and would not miscarry, off lie started f or figroot to take possession. The

jury, as business men, knew "that if a bill c s'lle remained unregistered and the grantor gave a second security of his property, the prior security was of no possible value. Why then was the bill of sale, executed on May 31, n*.t registered till June 15? Was not the object to keep the transaction completely in the dark, so that Roddam's creditors should not have the chsnce of securing the property. His lawyers (Messrs >tont and Sievwright) dared not take upon themselves the responsibility of delaying the registration ; therefore, it was to be assumed that in doing so, they acted under his instructions. But there we c other cirouma.'aucea which were peculiar. Pritchard's bill <if sale recited that the consideration to j Roddam was L 450. An affidavit had been made by Mr Reid, Mr Stout's clerk) th»ti the deetl was executed by Rod dam on May 31 ; but it would be shown on the evidence of Mr Nasmith, of the Bank of New South Wales, that on June 4, four days afterwards, Pritchard asked for a drafc payable to Roddam for L3OO, and drew a cheque for L 350. Koddain received a draft for L 297— the L3OO, less exchange— on June 5. a day before he left fqr Melbourne. Nasmith would also prove that the whole of the transaction with the Bank was conducted by Pntc «ard, and that Roddam had nothing bo do with it. It would be farthrr proved by medical and other testimony, that on the • lay Roddam executed the deed* .he was suffering from delirium tremetus; that he was in Court's Otago Hotel that afternoon, and showed unmistakeably liis deranged mental condition —which fact it would ,be. contended was" known to Pritchard, in whose company he was. If the facts that had Been Ortrratetl were proved, the only question for *r,he -jury wouM be to assess damages j.and^ be called upon them to give substantial damages. October 18. . . „ To-day the defendant's case was closed. j The jury found the first and second issues in favor of the defendant, and the third and fourth in favor of the plaintiff— damages, L5O. October 19. NUTTER V. PRIICIIARD. Nutter, Curator of Intestate Estates, lnvercargill, as administrator of the estate of. John Roddam, deceased ; v. Pritchard. Mr Macassey, with him Mr Chapman, for the plaintiff ; Mr Smith, with him Mr Stout and Mr Shaw, for the defendant. This was an action brought to set aside a bill of sale under which the defendant claimed to have purchased from Roddam certain waggons, teams, and g^ar, on the ground that Kocldam was insane at the time at which it was executed The defence shortly stated was, that if Roddam was then insane, defendant was not aware of the fact. It was stated in evidence that the claims of creditors against Roddam's estate were LBBO odd ; that Pritchard was a creditor for L9O ; and that the property of Roddam, the subject of the action, had been realised by Pritchard, who obtained about. LBOO for it.