A Cross Action.

Waikato Times, Volume XVII, Issue 1439, 22 September 1881, Page 3

A Cross Action.

William Peacock was then charged with striking Gordon over the head with a thick btick on Friday night. The plaintiff deposed that Peacock came to his house and asked for a man named Greaves, who, he said, had taken his money, tobacco, and knife. When he saw witness he charged him with the theft, and struck him on the head with a stick, and knocked him down. When he got up he was about to strike Peacock, when his wife prevented him. He did not give this version of the occurrence to Constable Mnir.iy, simply liccau.se he did not wish to make things unplea&aiit. He did not remember telling the constable that Greaves and Peacock had been fighting and he had turned them out. He w as sober. Margaret Gordon, sworn, corioborated the above in most particulars, though she differed as to details. She -.aid her husband was neither chunk nor -sober. She swore IVacock got the walks on his face from falling on some firewood when she pushed him out ot the house. Hugh McNally, sworn, collaborated the exidenceol Guidon m pait. He said Peacock stuuk plaintiff a hard blow on the h'liiplo with a small ti-tiee .stick, about tin uo ifct long and two inches tlnough. (Laughte^, He would swear that only Mis Goidou wont outMtlo to piiA ii]) Peacock after he fell. Hemy Tiiitiam wa<- called by the Bench and lepuited w hat he had befoie stated as to seeing Margaret Gordon and McNally lifting Peacock up. fins concluded the e.isc. The Bench dismissed the use as against Bmtt nn both cliaige", and lined the other tlueo defendants SO.! eaih and costo; hi default, to go to giolfor seven day-. Oil the second cliaige they lined MeNally 10s and 7s costs, or in default, seven days. The ehaige, against Peacock wis dismissed. Mrs Gordon asked for time to paj the fine Tliej had no money. The, Resident Magistiate was of opinion that if tln;y could get money to buy dunk they could pay their fine. He thought it was a monstrous thing for a woman, who appeared at the Court only a few days before as proseeutrix in a ca^o of lape, to appear now ehaiged with drunkenness and disorderly conduct. Civil Cases. Brainier r. Scott.— Claim, £."> 1.5s (id. Judgment foi full amount and costs ; Muller*. Fa^toc— Claim, £2 JK Judgment for amount and costs. DISTRICT COURT, HA MILTON Tuesimt.— [Before His Honor Distiict .Judge Macdonald.] In Bankruptcy. /// x' Charles Walnutt. Mr Vf. M. Hay for the bankiii])l, applied for an order of discharge, which was granted. In )t George Mason. Mr Hay made a similar application in this cabe, which was also granted. Mr Hay then made an application for an order for solicitor's costs out of the estate of Chas. Walluutt. Granted. Civil Case. McGarrigle v. Kingsloy.— Claim, £29 0s 6d, amount of a judgment summons. Ordered to pay £5 per month, in default three months imprisonment. Action on a Bond. Wm. Gumming v. Thomas Dawson, .John Runciinan. and R. W. Hammond, claim, £100. This was an action brought on a bond to secure the performance by the defendant, Dawson, of certain covenants set out in the lease of the Royal Hotel from dimming to Dawson. Mr Hay appeared for plaintiff, 1 Mr O'Neill for Capt. Dawson, Mr Cooper for Mr Hammond, and Mr Jas llussel for Mr Bunciman. The declaration set out the material points of the bonds and the conditions and alleged breaches of a continuing covenant to repair, and of a covenant to paint every two years. The defence was (1) that the particulars were insufficient; (2) that the Court had no jurisdiction owing to non-abandonment of excess ; (3) that the defendant, Dawson, was was evicted by the plaintiff and prevented from doing repairs, and thereby released. Defendant 'Dawson pleaded a separate defence, that (1) the action should be restrained as. against him owing to his having filed a declaration of insolvency ; (2)' that he had performed all the covenants ; (3) noi/cjt faction ; (4) denial of all material allegations. Mr O'Neill made application upon the grounds set forth in his, defence. His~Eton6r said an application for restraining the action against Dawson would have had more, foree 1 had the bankrupt received his discharge. ' Mr Russell raised 1 the'point of jurisdiction. His Ho;ior said he : would reserve the question, as without saying by had uo

jurisdiction he had grave doubts about it. Mr ,Hay ( said that rule 38 of the Court rules showed, that His Honor had jurisdiction upon theface of it. Whatever His Honor or any other lawyer might think of the rule, he did not' think that the Court •would take 'it upon -itself to decide that this rule was ultra vires If so, the whole of the rules might be decided to be ultra ■vires, and the Court, suitors, and counsel would have a very free time. He had his own' opinion upon the rule, but felt bound to bring the action upon the rule as it stood. ' Mr Russell complained that the particulars was not explicit enough, and the defendants were prejudiced thereby. He quoted rule 38, which stated that in cases under 8 and 9 William 111., Cap. 11., the plaintiff was bound to deliver particulars of the breaches of covenant upon which he relied. He had not done so, but merely enumerated the covenants which had been broken. Mr, Hay thought the particulars were all that were required by the rule, which did not state what particulars were to be given, and he had given all of which the case was capable at the time of action brought. He had set out the covenants, of the lease which he alleged were broken, verbatim, and alleged that they were not peufornied, fulfilled 1 , .and- kept according to the leaVe, wherefore he claimed £100. The particulars of demand arid .defence had been submitted to counsel in Auckland, who had given an opinion as 1 to their I sufficiency. A long discussion then ensued between the Court and Mr Hay, the former taking the view that the particulars were insufficient, the latter arguing that it he set out fully the covenants in the lease and alleged the breach of them in every particular, though not giving specific items, those particulars were sufficient, defendants having to perform the covenants as sot out in the lease. Mr Russell asked for an adjournment with costs against the plaintiff. Mr Hay deoliupd to accede to this, unless compelled by the Court, upon the ground th.it the point of jurisdiction ought to be settled first. He did not think lie would be right in accepting an adjournment which might put his client to great expense and trouble afterwards on appeal, bnti would elect to take a nonsuit. Nonsuited, with costs, £26 12s Gd, the question of defendant. Dawson's costs, £5 os, being reserved. Civil Case. A. Graham r. T. Welle, chairman of the Cambridge Town Boaid. Claim, for extras to works in Victoria and Lake streets, Cambridge Mr Dyer appeared for plaintiff, and Mr Beale for the Board. The defenco was that the Board, by its Engineer, had not authorised the Avork. Evidence was led in support of this, and plaintiff was nonsuited, with costs. In Bankruptcy. Li re Thomas Uawson. Mr O'Neill, for the bankrupt, made an application for an order of discharge, and Mr Hay. for Mr Cumming, opposing creditor, opposed the application. Assets, £So 4 5s ; liabilities, £1739. The Trustee's report recommended the discharge, and stated that he had not been able to recover any of the assets except between £2 and £3. The ground of opposition was reckless trading and extravagant expenditure, and the opposing creditor desired also to examine the bankrupt as to his property in Ireland. The debtor was then put into the witness box, and examined by Mr O'Neill. He deposed that he had given up all his property to the Trustee. Cioss-e\amined by MrH-iy : He&taited busmen in the Royal Hotel on May lGtli. IS7G, without capital or any legular source of income. Was solvent, but all In-, debts wore not p.iul. Got stock and fuinilmc on bilU. His Honor said lie did not think much could ho made out of the plea of reckless ti tiding if the other auditors were satisfied, but the plea of e\tra\agant expendituic would bo a good one if established. Mr Hay said he had no desire toimpnte any moi.il fiaud oi intentional misconduct, lie then proceeded to examine the debtor as to the whole of the items, unit/ton, of the expenditure during the time he had been in business. His Honor thought the accounts should ha\ c been examined before, at the creditors' meeting. It could hardly be expected that the Court would audit four years' accounts. Mr Hay s.ud lie had not been instructed till after the creditors' meeting. He pointed out that the Act authorised him to examine the bankrupt as to his property and affairs, and although it would take a considerable time he felt it his duty. At tins stage of the proceedings, an abstract of the receipts and expenditure for the w hole term of the debtor's occupancy ot the hotel was put in, which showed that the expenditure exceeded the leceipts by i'o.lOO, while the liabilities were only -€1739 His Honor asked Mr O'Neill for an explanation, which could not be given, and the Court adjourned for half-an-hour to enable the tiustec and an accountant to furnish explanations. On resuming, Mr O'Neill stated that only a partial explanation could be given. It appeared that the debtor was in the habit of getting bills renewed, making an entry ot' the payment of the bill but not of money received to meet them m ith. Mr Hay thought the theory an ingenious one, but in a case of such importance a full explanation was required. The Court then adjourned till 7.30 a.m. yesteulay morning.