RESIDENT MAGISTRATE'S COURT, CAMBRIDGE. Saturday.-(Before Mr H. W. Northcroft, R.M,) Hewitt v, Kincaid (continued.)

Waikato Times, Volume XXVII, Issue 2228, 19 October 1886, Page 3

RESIDENT MAGISTRA TE'S COURT, CAMBRIDGE. Saturday. -(Before Mr H. W. Northcroft, R.M,) Hewitt v, Kincaid (conti nued.)

Thk Court resumed at 9 a.m. Mr Dyer opened the case for the defence by calling the defendant, Wm. Kincaid, storekeeper, who deposed he wag the defendant, lie had rented premises from Mr Hewitt at a rental of 30s, and for which no agreement was made. Witness wanted to give up the premises because the accommodation was not sufficient. Mr Clements told him he would lease his premises to witness and give him more room, providing a memorandum of lease was made out. This was done and signpd by both paities. He did not intend at the time to keep two stores on ; his business did not warrant it. On the afternoon of the 19th July he was drinking very .heavily. He only had a slight recollection of what took place at Mr Wbitaker's office. Ne\t day when he went down to the shop some of his hands said to him that he had made a fool of himself the day before, lie did not know what they meant. That morning he called on Mr Hewitt to see him. Hewitt then told him he had taken a fresh lease. Witness did not understand him. On another occasion he was standing at the door of his shop and Mr Whitakev came to him and said, '* Are you going; to keep on two stores." Witness replied, 4< No, I have no use for them." He had on the 22nd July sent a key, cheque, and notice giving up possession on the 31st August. Did not think he wasliable for the agreement, being drunk when he signed. Cross-examined by Mr Whitakcr : He asked Mi- Hewitt to put up a lean to, but Mr Hewitt said something, in fact made a miserable attempt to get out of answering definitely. Witness could not say how many different interviews took place. He was thoroughly sober when he signed Clements' agreement. He could not remember anything that took place in the afternoon. He could not lemember having an argument over the costs. Re-examined by Mr Dyer : It was a painful thing to admit, but the plain truth was, he was drunk all tho afternoon. By the Court: The signature on the deed would not pass at the bank. Some of his signatures were materially different, but they would pa*s. He did not remember going to Hewitt's. Andrew G. Macara, manager of the Colonial Bank was then called to testify as to tho signature. The gist of this witnesses' evidence was that he had had great experience in signatures, and, looking at a lot of signatures, he was quite sure that the signature on the deed was quite unlike j the tndiuary one. Archibald Clements deposed : Some time ago defendant was in treaty for some piomises of his, as those he was in were insufficient for storage purposes. On tho morning of the 19th July, Kincaid went to witness and said, " Come ovei to the shop and let us arrange about the sheds to be erected. Hewitt wants me to go with him, but he is too late." After deciding on the plans, they went to the hotel and drew up an agreement which was signed by both. (This witness was also examined as to tho signature, and he said the one on the disputed deed was unlike the ordinary one.) Thomas Kyan, carter, deposed : H » remembered talking to Mi Clements about the store Kincaid had taken hum Mr

Clements. He also asked Mr Hewitt how it WcU ho was losing Kme.ud trom hut cornor. iiewitt said tio did not think so. i Thos. U. Lewis, itvninongcr, deposed : On the morning of the 19th July he went dovva town to Kineaid to try and Hue him. Kiucaid was with Mr Clements ut the time, and said lie would see him in the afternoon. When lie went to nee Kincuid ,111 the afternoon he could not find him. He went up and down the stieet, und on going to Hewitt's ho saw Kincaid sitting on ii sota, helplessly drunk. Mr Mastei.s was there Hitting near in in. Witno»s shook Kmcaid and said, "This won't do^ you had better go home." He then loft him. While standing in the street he saw Hewitt take him to the front room. (This witness was also examined on the signature, and he said the one on tlie deed was different from any lie had ever seen.) James Masters, licensed native interpreter, deposed : He was with Kineaid trom 2 p.m. to (i p.m. They woio going about from hotel to hotel. In all, while out walking, they stopped at four different hotels to tako "nips." He was with Kincaid when Lewis came in. Kineaid was at the time not sober — lar fiom it. Witness saw Kmcaid go over with Hewitt. Kinc.ud requested witness to go over and see his shop shut. Witness did so. When Kmcaid went over to Mr Wlntakei's office Hewitt's arm was linked with that of Kincaid's. Next day defendant told witness he did not remember telling him to shut up the shop. Cross-examined by Mr Whitaker: When Kincaid came back lie had a job to sit down. When they went out. for a walk they stopped to have " nips" at four dttieient places. Witness had whiskey — voiy good whisky, witness particularly remembered that ; one hotel kept the bent. Witness did not know what defendant had. What was drank had no effect on witness, so he could say what happened. It took two and a-haif bottles to knock him over, Ernest Allen, storekeeper's assistant, deposed that about 5 p.m. he saw Kincaid, Hewitt, and Mr Whitaker go into Mr Whitaker's office, Kincaid staggering drunk, but walking without suppoit. Cross-examined by Mr Whitaker : Kincaid was staggering about. [Witness here practically explained how.] John A. Goodfellow, .storekeeper's assistant, deposed that on the afternoon of the ll)th July he went to Kincaid with a mcv sago from Oxford, but Kinc.ud \vas so drunk he could not take it. On the 30th August ho left a key and letter at Mr Hewitt's. The key was returned in a registered letter, and witness was asked to take delivery by the letter-carrier, but he refused to do so. liaiigihana Patene, a native, deposed that on the 19th July he took Kincaid home. The reason he took him home was that lie could not ro homo by him->elf, being diunk. Witness had almost to carry him. When they got home they saw (Joodfellow, who had come from O\iord. (ioodtellow had ft letter, which R.xngi had to take tor hnii, Kincaid's hands being engaged holding on to the fence. This concluded the evidence in the c.i'-e. It was 1 o'clock, but his Worship decided to he.ir counsel befoie lie adjoin tied. Mr Dyer said one of the chief tt.ings he had to place before the couit was the f.ict that thejwituebses on his side vveiene.uly till disinterested witnesses, while tho»e on the other side were all three mteie^ted ones, the other one (Mr Gerring) being only summoned for the purpose ot testifying t<> the signature. It was a known axiom of civil law that a man when diunk w.u not accountable for his actions, and could entoi into an agreement, it beimj supposed he could not be of an .igieemir mind when in liquor. (Mr Dyet thi>n read evtiacts from several authorities). While he admitted that it was wiong for a man to get drunk, ho thought it w.is doubly wrong tor a man to take a mean advantage of him while in that btnte. Again, A-h.it wore they to conclude from the tact that Hewitt was in such a hvuiy to get the deed drawn up. It would seem that the man having.been got tight, the lessor was anxious to hold him while he was in that state. Mr Whitaker would not detain the Court long, as he did not think he could do much more than leave the case in the hands of the Court. The evidence on either side flatly contradicted that of the other. In the defendant's evidence he says he was thoroughly sober at 11 a.m. and he was thoroughly drunk at 1 p.m., and yet he could not tell them where he was and where he went to ; he could not tell them anything about that day. Again the witness (Allen) said he saw him (the learned counsel) with Hewitt and Kincaid when, as a matter of fact, he was iu>ule the office the whole of the time. His learned friend referred at great length to the fact th.it hm (Mr Whit.iker's) clerk went back .md opened up the office. All he could say was that he had frequently done business after hours. His Worship: After hearing the ea^e I have con^e to the conclusion chat it would be better for us to wait for a iittlo wlul >. I am going away soon for a ->h<»rt vacation, and when T come back I will deliver judgment. Tim is the first cue of the kind that has ever come before me, and I will take some time to consider judgment, as this will naturally form a precedent, Mr Whitaker: I think your Worship quite right, as the case is an extieniely delicate one, requiting much thought. Mr Dyer: I am of the same opinion, Your Worship. Judgment was deferred till the 10th December.