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WAIRARAPA DISTRICT COURT.

QUARTERLY SESSION. CLAIM RESPECTING A RACEHORSE. The quarterly session of the Wairarapa District Court opened at Masterton yesterday before His Honor District Judge Haselden. John F. Fen wick, farmer, Featherston, sued Augustus C. Nitz, botelkeeper, of Tauherenikau, for the return of a racehorse, "Sen Sim," or in the alternative for the value of the horse, set down at £250, also £SO for damages sustained by defendant's action in wrongfully detaining the horse.

The statement of chim alleged (1) that defendant waß in wrongful possession of the racehorse Sen Sim, valued at £250; (2) that defendant, without right or title, detained the said horse and refused to deliver it to plaintiff; (3) that the detention of the said horse had caused the plaintiff considerable loss, as the horse had lost training and proper feed in the meantime, and plaintiff had lost the racing of thj horse since that date. Plaintiff therefore claimed the possession of the horse, or its value. £250, and £SO damages for wrongful detention of the horse.

Mr C. A. Pownall appeared for plaintiff, and Mr Blair (of Messrs Skerrett nnd Wylie, Wellington) for defendant.

The case was taken before the following jury:—A. R. Sclanders (foreman), C. H. Owen, G. Green, L. A. Harris.

Mr Pownall in opening, said the case in short was that the former owner of the horse was a Mr Kenneth McKenzie, who died at Tauherenikau in November of last year, and left Sen Sim and another filly, McKenzie ' had little means, and plaintiff frequently assisted him with money in his racing transactions. Finally, about £2OO was so advanced to McKenize, and in other ways plaintiff had assisted him. Finally a verbal arrangement was made whereby it was agreed that if Fenwick advanced a sum sufficient to make up the total advances to £250, plaintiff was to have the horse. It would be set up that plaintiff had paid £230, and a receipt was given by McKenzie for the £250, the £2O being subsequently paid to McKenzie. Plaintiff did not take charge of the hors; after paying this money, and when McKenizs died the horse was in defend ant's stable at Tauherenikau. Plain tiff, in view of no will being left by McKenzie, obtained an order from the Public Trustee for tha delivery of the horse to himself, but he was met by defendant with a claim for lien in respect of board and stabling, totalling £BO up to the date of tha commencement of the action, a claim increasing day by day. Plaintiff repudiated any liability in respect of the lien, and claimed that as he was the owner of the horse he was entitled to possession of the animal against all the world. It would be contended that the lien, in any case, was i.ot more than r. "2W pounds, probably nine or tei,, and not anywhere within the amount claimed by defendant. Counsel thought that the ownership of the horse was in little ■doubt, it was chiefly a question respecting the reality and amount of the lien. Defendant set up fraud in addition to the lien, but as this was an affirmative defence plaintiff would not have to prove the contrary until defendant's side of the cas? was heard. On the one hand, the case was: Did the plaintiff concoct the present claim because McKenzie was dead, and did defendant, under peculiar circumstances wiiich the evidence wjuld disclose, have a propar agreement with McKenzie to support the alleged lien. Counsel then read in support of the statements he had adduced. A remarkable feature of the case was that a letter defendant had written to the Public Tiustee stated that defondant had settled with McKenzie for all claims down to October Ist, 1908, and that a lien had accrued since that date amounting to £9, on payment of which the horses of McKenzie in defendant's possession would be delivered to the Public Trustee. Yet after that latter had been written defendant now claimed £B6, a claim which it would be difficult for defendant to succeed on in view of the facts. Counsel called William Boyce Chennells., Public Trustee agent, at Masterton. Witness said McKenzie died intestate. No letters of administration were taken out. Mr Fenwick interviewed witness in respect of the horse Sen Sim, after which witness gave plaintiff an authority (producd) to procure the horse from defendant. On December sth witness wrote to the trainer, Mullens, asking that the horse Sen Sim be given to plaintiff, and that another horse be forwarded to witness. Defendant replied to the letter by his solititor, Mr J. W. Card, as follows: "I act for Mr A. C. Nitz in this matter and have advised him to refuse to deliver either of the horses or any of the goods and chattels of deceased until his account is paid. Mr Nitz had a settlement with deceased up to October Ist for which he will claim against the estate. From that date up to the date the horses and goods are taken sway he claims rent of room and stables in respect of each horse and boy in charge at the rate of 20s per week as agreed, and if not paid forthwith a distress warrant will be issued under the 'Distress Act,' and the horses sold. Without prejudice to the position my client will deliver each horse on payment of the amount due since Ist October at 20s per week. The amount due up to the 3rd instant is £9 on each. I am, of course, prepared to accept an absolute undertaking that the amount will be paid, but under the circumstances I cannot take any promise conditional on the estate realising the amount. My client's position is now secure to this amount, and must remain so." By Mr Blair: The estate is actually insolvent, and Sen Sim is the main asset in the estate. J. W. Card, solicitor, stated that he acted with authority when he forwarded the letter quoted above. By Mr Pownall: Mrs Nitz told witness tha McKenzie had given her a promissory note for the amount due to her down to October, the note not being payable until January, 1909. Mr Blair here mentioned that the amount of the note was £7O. By His Honor: The giving of the

note was what was meant by "a settlement" in the letter.

John F. Fenwick, plaintiff, of Kaiwaewae, said he claimed the horse as a purchase from McKenzie. Witness produced a receipt for £SO, balance of £250 due in respect to the horse. When the receipt, produced, was given, McKenzie owed witness £IBO, and witness made up the balance of £3O by a payment at Masterton, made some time after the receipt was given Witness considered the horse then worth about £2OO, though he .would not take less now than the horse had cost him. Witness left the horse wath McKenzie until the Jatter's death for training purposes purely. Alter McKenzie's death (about four days) witness spoke to defendant about the horse, stating that the horse was his and he wished to get it. Defendant replied that when witness paid defendant £94 which McKenzie owed defendant, the horse would be delivered up. Witness replied that hi would not pay this amount, as he was not responsible for McKenzie's debts, and he had already paid enough for the horse. Defendant also declined to deliver up the horse after witness produced the authority from the Public Trustee.

James Cress, IL-ensee of the Empire Hotel at Masterton, considered that in August last Sen Sim would be worth about £2OO, and perhaps the same now.

Evidence was also given by Joseph Hayward, formerly proprietor of the Tauherenikau Hotel. Mr Blair, in opening for the defence, said that it was not for defendant to prove that the horse was owned by plaintiff, and this, he submitted, plaintiff himself had not succeeded in doing. Counsel laid stress on the fact that it was not until McKenzie was dead that any ownership of the horse by plaintiff was ever raised. Evidence of statements made by McKenzie himselt regarding the horse since the alleged purchase by plaintiff, and the jury also had to consider the fact that McKenzie had, since the alleged sale, entered the horsa for the Fielding races. Defendant was merely one of several creditors, and he was perfectly entitled, as an innkeeper, to his lien for board and lodging', and for other matters. It was contended by defendant that Sen Sim was worth £4OO, and if it were sold it would be a great benefit to the estate. The question for the jury, so far as the defendant was concerned, waa—did McKenzie awe defendant £B3 at the time of his death, and did defendant have a lien over the horse for that amount, and for the amount of expanses since McKenzie's death in connection with the horse.

Thos. Ingley, farmer, of Morison's Bush, said he received a letter from McKenzie enclosing two receipts for horses and requesting a 1 an. Witness returned the receipts to McKenzie.

Arthur Burt, saddler, of Featherston. said he also was approached by McKenzie in the same manner as the previous witness had been. David Mullin and Thos. Ross ako gave evidence as to the valua of Sen Sim.

August Charles Nitz, defendant, said McKenzie had stayed at witness' hotel for eighteen months. The arrangements made for board were that McKenzie was to pay £1 a week for himself, and 18s a week for each of the two stable boys. Witness produced hie ledger containing an entry of McKenzie's liability, compiled since McKenzie's death. Early in October McKenzie gave witness a promissory note, due in January, for money owing to witness for a cnnsidarable ti:ne. The arrangement was that the p.n. was to be paid when it became due, or before that time if McKenzie had a win. Witness detailed various transactions between himself and McKenzie to show how the amounts due under the p.n. and since it was given were made up. The jury, after a short retirement, found that plaintiff was a bona fide purchaser of the horse, and awarded him £5 damages for detention. Legal argument on the question of the lien will be taken to-day. CLAIM ON A FIRE POLICY. The next case taken was one in which James Foley, baker, of Eketahuna, sued the Victoria Insurance Company for £IOO in respect of a fire policy issued by the defendant Company. The statement of claim set out that on November 23rd, 1908, the defendant Company executed a policy of fire insurance over stock-in-trade and chattels belonging to plaintiff in and upon a bakehouse situated in Main street, Eketahuna. On 27th November (four days later) the said stock-in-trade and chattels were destroyed by fire, plaintiff's total loss being £l5O 6s Bd. The defendant had not paid the amount due under the policy, and plaintiff claimed the amount due thereon.

Mr P. L. Rollings appeared for the plaintiff and Mr M. Myers, of Wellington, for the defendant.

The case was beard before a jury composed of C. Graham (foreman), J. Arthur, J. Stempa and M. Moriarty. James Foley, plaintiff, said he first saw Mr Walsh, an agent of the defendant Company, on the 18th November, who came over and made the usual inspection for valuation, etc. Witness was asked at what he estimated the value of the goods to be insured, and the reply was £IBO. A policy was then issued for £IOO. The bakehouse at the time of the fire contained all witness' Christmas cakes. Witness estimated his loss at £156, and official proof of loss being prepared by Mr Blair, the Company's agent, which made the loss appear £7B, the reason being that Mr Blair would not admit certain articles to be included in the claim. Regarding the Auckland fire, witness said it was untrue that he was interested in property burnt there in 1900.

Witness resided at North Shore. Auckland, about that time. He could not account for the allegation made by the defendant Company in that respect. Nothing was said to witness by Mr Blair about this allegation prior to the action. Blair said witness would have to compromise with the Company for £7O or he would get nothing. By Mr Myers: Do you say you were not interested in any property burnt in Auckland in February or March, 1900. Witness: N". Mr Myers: Were you not interested in a business in Wakefield street, Auckland? Witness: No,

Mr Myers: I wish to warn you. I ask again were you in January, February or March, carrying on business either alone or in partnership in Wakefield street, Auckland?

Witness: No. Mr Myers: Do you know a man named George Christie? Witness: Yes. Mr Myers: Were you in partnership with him?

Witness: No. Mr Myers: Do you know a man named O'Callaghan?

Witness: Yes. Mr Myers: Were you in partnership with him?

Witness: No.

Mr Myers called in a person, named Palmer, and witness questioned, said he did not know him. Detective Madden was then called, and witness said he did not know him.

Mr Myers: Do you know your own signature?

Witness: Yes,

Mr Myers produced a blue document signed James Foley, and asked witness if it was witness' signature.

Witness attempted to open the document, apparently to see what its contents were, but Mr Myers sternly forbade it, His Honor supporting Mr Myers. Witness, after a long scrutiny, emphatically denied that it was his signature.

After alleging that it was a faked signature, and after Mr Hollings had objected to the course adopted by opposing counsel, witness again said that he did not sign the document.

Mr Myers: Mr Foley, if aMr Boyes swears that that is your signature signed in his presence is that false? Witness: It is false.

Mr Myers then produced another document signed James Foley, and witness swore that that signature also was not his.

His Honor: Mr Foley, I do not wish to browbeat you, but the position is very serious if you deny a signature which is actually yours, and is intended by you to be a signature. Witness: I stand here and say that that is not my aienature. Mr Myers: Mr Foley, those papers produced are a proposal and receipt for fire policy insurance made with the Australian Alliance Insurance Company in Auckland in 1900. Witness: I was working at North Shore at that|time.

Mr Myers: Are you aware that in February, 1900, a business in Wakelin street, Auckland—a bakehouse premises—owned by Foley and O'Callaghan, was destroyed by fire? Witness: No.

Mr Myers: Did you not go to the. agent of the Australian Alliance Insurance Company and endeavour to get insurance moneys from the Company? Witness: No. Continuing, witness said it was not true that he knew a Mr Palmer, agent of the Australian Alliance Company. He said he had never been insured before the Eketahuna fire, and Detective Madden had not visited him and inquired concerning the Auckland lire. Witness said he had never seen Detecti«e Maddern in his life. Witness said he only worked for O'Callaghan for a week. He worked for a man named McGarry at North Shore for a week previously. Mr Myers, in asking whether witness had worked previously, was told by witness to "find out." Mr Boilings rose and dissociatpd himself from wicness' tactics, His Honnr remarking that the witness was adopting a more than prejudicial attitude, and warning witness to be more respectful. Witness denied that he told Detective Madden that he was the iast to leave the premises before the Auckland fire. He denied that he and 0' Callaghah were adjudicited bankrupt in June, 1900. Pressed by His Honor, witness finally admitted that he and O'Callaghan were adjudged j bankrupt in the month mentioned, I but denied that it was as partners.

Mr Hollings admitted that the Gazette showed that it was a joint bankruptcy, and said probably witness did not understand the question. Witness, continuing under crossexainination, denied that he was cross-examined by the Deputy Official Assignee, or that he attended bankrutptcy meetings. He could not say whether he was an undischarged bankrupt or not. He was unable to state whether the Australian Alliance Insurance Company paid anything to the D.O.A. in connection with the bankrupt estate of Foley and O'Callaghan. If Mr Dorney said that on the Saturday previous to the fire he refused the risk over the Eketahuna premises he would be telling a falsehood. Witness said he signed the proof of loss over the Eketahuna fire prepared by Mr Blair, agent for the defendant Company. He denied that Mr Blair asked him if he had ever been de clined previously by a fire company, or that Mr Blair asked whether his Company's agents were the first to be approached for the insurance. It was also untrue that Blair asked whether witness had previously been burned out.

By Mr Hollings:'Witness thought he had insured the whole stock-in-trade under the policy. Witness was not adjudicated bankrupt on his own petition. The facts about the Auckland bankruptcy were that Christie had obtained goods in witness' name, and the creditors thought witness had money and joined him in the bankruptcy. The fire in Auckland occurred after witness had left. He had no interest in the business whatever.

Mr Hollings then submitted the documents produced by Mr Myers, which witness had denied contained his signature, and asked witness to state truthfully whether they contained his signature or not. Witness finally admitted that one was signed bv him. Witness was then given the other document to scrutinise carefully, but he denied that that one was signed by him. Florence Beatrice Foley, wife of plaintiff, said that she remembered Mr Dorney visiting her husband the Wednesday previous to the fire. Peter Christensen, labourer, Eketahuna, stated that he was in the yard at the bakehouse on the Wednesday previous to the fire and saw Dorney there. Maurice Knight, formerly nightwatchman at Eketahuna, said he rem inhered the occasion of the Eketa-

hiina fire. Witness roused plaintiff,. who was apparently asleep. Mr Myers, in opening for the defendants, said that insurance companies should pay their losses over fires, and as a rule did so. but m the present case the defendant Company would not be doing its duty by the commercial community, or by itself, if it paid the present claim. Counsel laid stress on the manner in which plaintiff had given his evidence, particularly in regard to his first denial and ultimate acknowledgment of his signature to the previous fire insurance proposal. Evidence would be called to show that plaintiff was the Foley referred to by counsel in regard to the Auckland fire, and that in all the Auckland transactions hinted at by counsel in cross-ex-amination, Foley and plaintiff were one and the same person. Counsel contended that it was positively absurd for plaintiff to stand in the box and deny this fact, and personally he was not going to shirk the duty imposed upon him to prove that plaintiff had uttered a pack of falsehoods in the box. It would be shown by evidence that plaintiff had never said a word to the defendant Company's agents about his conversation with the Dorney's. Counsel hoped that enough had been disclosed to show that instead of the Company looking for excuses to avoid its liability, it had done its duty to the community in refusing to pay. Charles Egdar Palmer, manager of the Australian Alliance Insurance Company in Auckland in February and March, 1900, said he recognised plaintiff as being a person with whom he had met in connection with a fire in Wakefield street, Auckland, in February, 1900. The business was in respect of the document produced (which plaintiff had denied he signed). A shop in Wakefield street had been burnt owned by Foley and O'Callagban. Witness and the plaintiff adjusted the claim in respect of the loss by the fire. A second fire occurred on the premises about three weeks after the first firr. Witness saw plaintiff several times before the second fire ocurred, over. a matter connected with the first fire. Foley was surprised when told that the bakehouse only was insured under the policy, as the fire had occurred in the front premises. Witness became suspicious, and posted a cancellation of the policy en the very night of the second fire, when the bakehouse was burnt. After the second fire witness again sav Foley (plaintiff) and discussed the matter of insurance, and the outcome was that nothing was paid in respect of this fire to plaintiff. Foley claimed on the policy on behalf of himself and his partner. By Mr Hollings: Witness was absolutely sure plaintiff and the 'Foley he was speaking of wera cne and the same person. He did r.ot know plaintiff had a brother narred John.

William Maddern. ex-police detective, said he identified plaintiff in the streets of, Masterton yesten'ay as a man named James Foley, who was in partnership with his driver, named O'Calhghan, in a bakery bu-uness in Witness investigated two fires in Auckland in February and March, 1900, on the premises of the firm. Foley himstjf toll witness he did not know how the fire occurred. Witness was told b; Foley that his loss was £l. r 0 ? but witnes* coull not see from the premises that the loss could exceed £43. Fv 1-jy- told witness that his d.bt3 at the ti.'iie were about £9, wh. reas witness au'ertained them to be about £SO. Witness identified

Foley yesterday without bcit.g informed who he was.

By Mr Hollings: Witness recimmended an inquiry into the Auckland fire, as the damage was chiefly by water, and it was plainly evident how small the bss was Witness reported then that if Foley received his full insurance he would make over £IOO on the fire.

William Dorney, of Eketahuna. said witness had asked the amount of the premium on a fire policy for £IOO, witness* father having the Norwich Ur>ion Agency. Witness said he would send his father to plaintiff on the Friday prior to the fire.

Mr Hollings here stated that after the evidence as to the Auckland fire he could not expect to get a favourable verdict from the jury. Counsel would ask for a nonsuit.

His Honor said he agreed with counsel's wisdom in adopting such a course, and granted the nonsuit, with costs.

His Honor, before the case concluded, said that he had been considering whether in the fulfilment of his duty, he should not say something in regard to the manner in which plaintiff had given his evidence. He had dec'ded not to do so, although there were questions of public interest involved, and the purity of the administration of justice, and the manufacture of evidence. It was essentially a case in which, if further steps were to be taken, it should be by the parties interested. His Honor was not blind to what had occurred, and therefore he would say no more.

Mr Hollings then said on behalf of himself and Mr Prendeville, for whom he was acting, that they wished to entirely dissociate themselves from their clients' attitude in the matter.

The Judge said that that was a very proper disclaimer, and His Honor wished to say chat nothing whatever had been done by Mr Hollings during the course of the tryingproceedings to which His Honor could take exception. Mr Hillings' action might possibly tide plaintiff over a serious difficulty.

Permanent link to this item
Hononga pūmau ki tēnei tūemi

https://paperspast.natlib.govt.nz/newspapers/WAG19090226.2.15

Bibliographic details
Ngā taipitopito pukapuka

Wairarapa Age, Volume XXXII, Issue 3124, 26 February 1909, Page 5

Word count
Tapeke kupu
3,916

WAIRARAPA DISTRICT COURT. Wairarapa Age, Volume XXXII, Issue 3124, 26 February 1909, Page 5

WAIRARAPA DISTRICT COURT. Wairarapa Age, Volume XXXII, Issue 3124, 26 February 1909, Page 5

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