SUPREME COURT.

Gisborne Standard and Cook County Gazette, Volume IV, Issue 576, 28 February 1891, Page 2

SUPREME COURT.

[Before His Honor Mr Justice Conolly.]

THURSDAY.

AN IMPORTANT CASE.

The case Harawera Pahura v. White and Brown (Tokomaru) was resumed on Thursday morning. Mr Bees for plaintiff, Mr DeLautour for defendants.

Mr DeLautour said the alternative claim put in made tbe case assume the shape of one arising out of a wrong in a bargain. Plaintiff pleaded that be was unable to complete his contract. All they would have to decide in assessing damage was to consider the value of tbe labor from some time in December to January 10th.—His Honor said he would tell the jury that for the purposes of this case they should treat tho grass seed as the property of the plain-, tiff—not his labor only, but tho value of the property destroyed.—Mr DeLautour zaid of course his remarks would be subject to any modifications made by His Honor. He would contend, as a point of law, that plaintiff could only claim for the actual labor, which they would have little difficulty in assessing. The fire, he continued, on the defendants' place, was a slow one. All the witnesses agreed that the fire came from the direction of Wallace’s, over the hill, and they would prove that Wallace’s fire was out on Wednesday. The day was a very hot one, and the fire had come from an open track on the hill. When the natives took the contract they knew that the bush had to be burnt, and the fact that they did not attempt to put out the fire during the previous days showed that they did not fear it. Their defence would be that the fire which caused the destruction of the grass seed in no way arose from any action on behalf of the defendants.

A map of the locality, prepared by Mr O’Ryan, was produced. Messrs White, Goldsmith, Stee'.e, Hewetson, Hori White and Horomana were called for the defence. Goldsmith lighted the fire a day previous to that arranged between the two stations, on account of the fine day. Tbe evidence went in the direction of showing that the fire was all out on Wallace’s side of the ridge, while Hori White said he saw logs still smouldering in the middle of the clearing, His Honor then submitted the following issues: Was the grass seed destroyed by fire kindled by defendants’ servants? or was it destroyed by inevitable accident ? and the amount of damage, if any. Mr DeLautour said the issues put before them were very plain—did Joe Mulligan light the fire which had destroyed tbe grass seed ? The alternative would be that the fire was caused by an accident. Steele bad lighted a firo, but bis evidence was clear that the fire ha had lighted was out before he left. As to the fire which destroyed ths seed there was no evidence bayond that it came from the bill at Wallaoa’s, but on the othar hand they had evidence showing that everything was safe on Wednesday so far as the fire lighted by Mulligan was concerned. Mr Steele told them that the men who were on the top of the hill on the Saturday saw the fire going from the grass. They had also the evidence of Hori Wbiti, who had been over the block, and no fire remained but some burning logs in the middle of the clearing. Il the green cocksfoot stood the beat cf the fire on the Tuesday, what likelihood was there that it would catch from sparks on the Saturday ? They had no evidence that tbe fire was the outcome of that started by Mulligan, but they had evidence against that view, as well as probabilities. If, however, they did give a verdict, which be bad no fear they would, the damages must be confined to the labor oh the plaintiff’s own plot. Mr Rees said fifteen witnesses had been examined, and he submitted to the jury that the evidence of all, on either side, showed that the fire that burnt the grass seed was that fire which Jos Mulligan lighted. He went on to analyse tho evidence. With regard to the question of damages he said he was bound by His Honor’s ruling that plaintiff was confined to his own eighth. That would bo a much worse thing for the defendants and others so concerned, meaning that there must in each oases ba a multiplicity of actions. He estimated Harawera's own share at about £53. As to the loss sustained by the defendants themselves, there was no doubt about that, but that was of on concern to the natives. It was not only common sense but common honesty that the natives should be compensated for their own loss. If the defence made an ad iHiseracqrdiam appeal, he would reply that it was their own faults. It the first arrangement made with Mr Steele had been carried out there would have been a better burn and no loss—that would have been different to sending a young half-oaste along with a box of matches. He asked them whether it would be just that while the natives would have to pay the defendants for their food yet they were not to get paid for their labor ?

, His Honor asked them te dismiss altogether from their mind such extraneous > things as that either party ought te succeed because it was a very hard case with 1 them—the jurymen must confine them . selves to the merits of the case. .. He then went qn to analyse tbe evidence,| summed up strpngly in favor of plaintiffs, and directed that if the jury were convinced as to the liability of defendants damages must be only for the plaintiff's own eighth, which he estimated at about £4O, making allowance for bags that were not full. Though it seemed a startling proposition, the law appeared to ba that a map firing his bush mqst be watchful of every smouldering log lost it cause damage to the property of other people. In 25 minutes the jury returned with a verdict for plaintiff, assessing the damage on .account of his eighth share nt £39 6a. Costs were awarded on the lowest scale, nod the expenses of those witnesses that had been examined, DIVOBOE. Thomas Harris v. Agnes Harris (respondent) and William Frederick Jones (corespondent) ; Mr Rees for petitioner. There was no appearance of either the respondent or the co respondent. The following jury were empanelled J. White, F. Clayton, C. A- Brown (foreman), and James uookrey. Mr Rees said they Would see by the admissions that theia could be no doubt as to tbe facts of the case. The questions to be submitted were whether the respondent committed adultery before March, 1890; whether . eh'a had committed adultery with 00-respon-‘ii? 11 n.. .it.;,,,, admitted on the pleadings. His Honor said that would not he sufficient; evidence must ba called.] The other clauses related to the conduct of the petitioner; whether he had been guilty of condoning adultery, neglecting his wife, or being guilty of cruelty. The eighth clause was as to the damages the corespondent should pay. He did not know the position of the co-respondent, but the conduct and the relationship were such that he would ask for £250 damages. Both parties bad previously been represented by counsel, but had since instructed their oounaal not to appear, so all he had to do was to prove the case. Mrs Harris had given birth to a child in September, 1890.

Thomae Harris, petitioner, deposed that he was married on December 25, 1870, in Gloucestershire, England. There wets ten children by his wife, the eldest being uearlv twenty and the youngest four, He went to England qn the 2?od of August, 1889, leaving bis wife In Charge pf the household. There was no ill feeling between him aqd'feil! wife then, and they bad regularly corresponded by every mail but one during his absence. He returned to the colony on March 17,1890. He was not ;n New Zealand during the interval meniioned. When he returned ho bad reason to believe his wife had been unfaithful. Qn bis return he lived with her from March to the end of April, Some time in April his suspicions were aroused by her conduct, Jones was living about a hundred yards from petitioner's place; tbe latter left home one evening to go to a paddock,and on bis return he found his wife absent, He enquired from the children as to where ehe was gone; they did not know, and feeling suspicious he want out to the back of the premises. The moon was shining; he stool against the fence for u little time, and beard the manuka scrub shgke. Directly afterwards ho saw his wife coming towards homo,

He asked her where she had been, and she replied that sbe was taking an evening walk. He told her of his suspicions; they had some words over it, and on the following morning she packed up her box aud left the house. He had not cohabited with her since that time. He had several times since tried to reason with her. He asked her if she could not lead a better life than she was leading. She could not make him any answer. He told her if she would promise to be a good, faithful, and trustworthy wife, he would take her back again. She had not with his knowledge or connivance committed adultery with Jones. She told him she could not make the promise to be faithful. It was not true that he had wilfully separated from her. He went to England on account of his health, and to bring out bis eldest daughter, who was then in England. He left plenty of provision for the household during bis absence, and his wife and children had wanted for no reasonable thing. He had on no occasion been guilty of cruelty towards her, or of making threats. Up to the time of his suspicions being aroused, he and his wife had lived very comfortably; he had not been guilty of neglect or wilful misconduct. His wife’s conduct had caused a division in tho household, and very much unhappiness. When young Jones, the corespondent, came to be of age, he would be entitled to £3OO. Petitioner was 22 when be married, and bis wife was between 17 and 18. Her maiden name was Agnes Nancy Browning.

To His Honor : There was no one with his wife when she came back on the night mentioned, and be had no proof of adultery until after his wife had left the house ; she left of her own accord. His wife managed the farm daring his absence and employed labor for it—Jones was so employed, aud had been there before petitioner left for England. Jones had been firing in the house up to the night petitioner returned. When he left for England he dismissed Jones, and his wife took him back again during his absence, without the husband's consent.

Mrs Hill deposed that Mrs Harris had been living near her place for six months or more. Had seen Jones backwards and forwards about the house.

Mr Greenwood, Regatrar of Births, gave evidence as to an illegitimate female child being registered by Mrs Harris as born 13th September, 1890, the name of the father not being given. The mother's age was given as 37.

Mr Rees said that was all the evidence he proposed to call. His Honor: Then you have called no evidence at all except the admissions. Mr Rees said the child could not possibly ba conceived before petitioner left the colony.

His Honor said the evidence was very slight, although there had no doubt been adultery, He was very doubtful about ths ease, The husband said ba would take her back it she would promise to lead a better lite.

Mr Rees said there was evidence ot adultery and her desertion from home.

His Honor said the desertion might mean nothing in the case ; from tbs evidence she might have been leading a good life ever since she left her husband,

Mr Rees said it was sufficient to prove there had been adultery—it did not matter whether there was adultery or not afterwards. His Honor said it tbe adultery were aondoned that would not be sufficient to uphold the application—tbara was no evidence ot adultery after the husband's return. However, ha would leave tbe question to the jury. When they had to consider the severance of ths most solemn bonds of matrimony, the evidence should be conclusive. Thera could be no doubt that in the absence of the busband in England tho wife had committed adultery as shown by her own admission, On tbe husbanu’s return he had lived with her tor a certain time, while he said he had suspicions. No particular reasons were given why he should have suspicions. They lived as man and wife for six weeks, and then he says that she comes home through the manuka; there was no one with her, but he attaoks her as being unfaithful. They had some words, and the following morning she packed up and left. Petitioner bad seen her since and offered to take her back, if she would lead a better lite. In her pleadings she denied any adultery since the husbandls return, but said be condoned what offence there had been by living with her since the period, trod accused him of cruelty aqd neglect. He denied that he took her back wl'h the knowledge of adultery. If he took her back as his wife, knowing she had committed adultery, that offence was past and forgiven. He said he had suspicions, and she made the admission. Both respondents had at the commencement of the proceedings been represented by counsel, but now were not so represented. Tips might mean that they thought a defence could not be main-

tained, or it might be want of means—he was unable to say. It was clear by tbe child that adultery had been committed during the busband’s absence. The jury must answer lh the negative to the questions whether there was evidence of subsequent adultery, and whether the husband had connived at it; theye was qlso no evidence as to cruelty or neglect, but the material point was whether the husband had condoned the offence—whether on his return he lived with her, knowing the offence, and thus condoned it. If they found there was no condonation then they would have to consider the question of damages. A woman old enough to be mother of the young man, with children of her own nearly as old as him, went with him after twenty years of married lite. That Jones was seen sometimes going to the house was no evidence whatever. The material question tor them to decide was whether or not there had been condonation. The jury returned at 25 minutes to six with a verdict for the applicant, but without damages: . . . ■ j ~ His Honor : Well, tbe jury having negatived the question of condonation, which is the material point, they mast have a decree nisi, No costs were allowed. YESTERDAY. BEES AND OTHERS V, TBBCIVAL T.ABKEB, claim £1,349 10s fid on an assigned bill ot costs, Mr Cooper for plaintiff, Mr DeLautour tor defendant. The following jury were empanelled Messrs Price, Walker, Arnaboldi, Whinray, Hennessy, Stuckey, Currie, Boe, Henry Lewis, Hsatie, Law, and Westrup (foreman). A nutnoer of jurors ware ohalv ienged on either side, for plaintiff ; Messrs Curtain, A. Hanaan, E. Ohiisp; tor the defence: Messrs Crawford, Hubble, Doyle, and A. Boland, Mr Cooper said in reference to a ooqnterqlaitn made on deljt alleged to have been dM by Ward and Cresswell, it gave nothing that BOUla be— milimtu.a w—•—j—r. The countgr.olaitn was tor two promissory notes of £260, and tor £7O 10s Mr Barker said he had paid to Ward tor a purpose to which it was not applied, and they also set up the non-payment of » dividend of 2a 6d io tbe bankrupt estate. His Honor said it amounted to this, according to that, Ward had committed a gross fraud,' Mr Cooper said that would be so, but the defendant sought to make a personal liability against Rees and Day and Ratcliffe. He would deal with the pleading upon the bans of the original action,

His Honor ruled that the counter-claim was not admissable to be tried with the original action, Mr DeLautour saying he had no objection to the counts being tried. He agreed it would not be convenient to try them togat-hsk'. In opening bis case Mr Cooper said the suit was made by Reas and Day and Ratcliffe, the latter being joined jn the action o> tfie Receiver appointed ia Ward and Qraagwell’s estate, Tbe bulk of the claim was for bills of tew costs incurred in the case of tbe Makauri block (Messrs Ward and Cresswell being Mr Barker's solicitors), and which were assigned to Messrs Bsas and Day. He submitted that to say the defendant was not indebted to Meesrs Rees and Day was no defence, and it was uo answer to the action to say that the firm of Ward and Cresswell was dissolved.

Mr DeLautour said there was no allegation of work done.

His Honor said if no work was done by Ward and Cresswell, it would bathe assignmoot of a bogus claim. ’ Mr Cooper then opened the case at some length. W. I>, Rees deposed ; Was one of tho plainlifts in this action. Know Mr Ward, and also

Mr Cresiwe:). Both gentlemen were rolicitoni cf that CoU't, aud were partners in Gisborne during 1887. He hal appeared in the esse Locke v. Kahutia, and Mr Barker was one of the defendants in that case. Mr Ward appeared for Mr Barker. The suit commenced in 1884, and came to a conclusion in 1890; it had been going on for ten years before that, and was finally settled by an amicable arrangement. Mr Ward bad acted from tbe commencement to the close in that action tor tbe firm ; that was during the partnership, prom 29th June, 1886, till near the end of the case Mr Ward was acting under instructions from Mr Barker, but Mr DeLactour was also assisting Mr Ward. Had examined the bill of costs that he was suing on—he helped Mr Ward to draw it up. Was present at all enquiries before the Registrar; Mr Ward was generally present. Looking at the bill of costs, he considered the work bad been done by Mr Ward. From his knowledge of the action he considered that all the dates of the meetings at the Registrar’s ollies were correct, as they were actually taken from tbe Court records, Mr Ward’s own diaries and books hiving ben burnt. The settlement of tbe Makauri case was that the plaintiffs should be paid all their claims out of the grants of the dead owners, and that tbe original owners should get their laud by paying the plain ill’s costs, which were estimated at £4OOO. The arrangement made in regard to the defendant's costs was that each person should pay his own costs. The estate was apportioned amongst each defendant, with the exception of the plaintiff's share, which was purchased by Captain Tucker. The litigation, he thought, killed Mr Locke; the estate was worth about £60,000 or £70,000. Mr Barker got, or claimed, 8 or 9 full shares out of 50, being about a sixth of the estate. There were still three shares in dispute between Captain Tucker, Mr Barker, and the natives. Captain Tucker got judgment against Wi Brown for £BO, in fact he got a verdict in each case against Brown. Mr Ward had applied on several occasions that his claim should be paid out of tbe property, but they all opposed, considering that each client should pay bis own solicitor.

By Mr DeLautour: Mr Ward had made an application before the Chief Justice at Wellington and Gisborne, and also before the Registrar, that the cost should be paid of the property. The last application was made on the sth November 1889. He was not certain whether Mr Balcombe Brown was present on that cccaaion. He did not know that Mr Brown was acting for Mr Barker. At least twice Mr Barker came into his office with Mr Ward, but there were also other persons present. The proposal to settle emanated from him ; he did all he could to get the parties to agree to some division. The plans of the proposed division were always open for any person to see them, He did not recollect what shares Mr Barker was interested in at tho commencement of the proceedings. He did not know that Hardy’s two shares fell to Me Barker as mortgagee, nor did he remember on what date Mr Barker acquired Wi Brown’s shares. He could not say whether Tucker’s action against Wi Brown was in regard to Makauri—there were three blocks in Makauri. but he did not know that Mr Barker claimed the laud. Did not know that Mr Barker was not in possession of Wi Brown's share in Makauri. So far as ha could remember Mr DeLautour consented to the final arrangrneuta, on behariof Mr Barker—theeoiioltora might have signed their consent. West e. through the Registrar's minute book tor the purpose of assisting Mr Ward ia drawing up hia bill of oasts. (Book produced.) On September 20. b, in the names of the parties who appeared and reported, he did not see Mr Ward's name, but Mr DeLautour was stated as having appeared for Mr Barker. It was meniioned that Mr Ward was unavoidably absent in Napier, and could not attend on that date, Mr Ward was also engaged tor several other persons interested in Makauri. On August 24th Mr Ward's name was amongst those present, but it did not say for whom he was appearing. On September 26thit stated that Mr DeLautour entered a consent on behalf of Mr Barker. He did not know how tne other items were made up, such as attendances. When he took the assignments ha was awara that Mr Ratcliffe had been appointed. Ratcliffe was not a party to the assignment' of tbe Ward and Cresswell costa. Some of the defendants did not take an active pact in the motion that went to the Supreme Court, There was a long interval of time, exclusive of the time that he was absent in England, before anything was done in tha Makauri ease. Mr Cresswell's admission as solicitor was in December 1884, and he was for a long time before that in Mr Ward's employuckut. Remembered Ward's bankruptcy and was aware bf the deed of composition that took the estate out of bankruptcy. Had been engaged professionally by Mr Ward in th* Karamu matter. Was aware that Ward had an arrangement with Mr Barker to carry on the Karamu case. Money was not advanced through Ward and Oresewelf by Mr Barker to help him (witness) to carry on the case'. He did ncl recollect a bill for £lOO in favqf of 3Yard and Cresswell and endorsed by Barker being discounted by blip (witness), He only lately knew that Ward had given an assignment to Barker on behalf ot these proxies. Mr Barker would never pay the counsel fees until be got a promissory note, He (witness) never paid the promissory note that he. gave Barker, and understood that Barker kept it only as a check upon Ward, Ba examined by Mr Cooper; Qn September 1889 his son L. Rees was Working for Ward, In regard to the appeal Mt Barker was one of the active parties. Mr Barker succeeded in the Supreme Court, but tailed in the Couit of Appeal. Preotioelly nothing was don* afttf the ease had gone to the Appeal Cout{, E. ff. Ward, solicitor, deposed; In 1884, Mr Barker was a client of his in the Makauri action, which commenced in the latter end ot that year. All hie books had been destroyed by Are m 1888. He hM consulted Mr Barker before he took Crenwell as a partner. During the time of partnership Mr Barker had coMakad Mr Cresswell ,-i he was always iq and out of the office when in town. He had prepared sundry deeds during the partnership, which had Ward and CresevieH on the back of them. On the 18th Nov., 1885, it was entered in the mlnutelOuk 61 the Makauri suit that Cresswell had appeared for Barker; His name was still on the record in regard to the Karamu ma*t**( He mace up the bill Ot ooets (produced), getting the information from documents in the Court, papers he got from Wellington, and references from Mr Rees’ old diaries and from his general knowledge of tho whol* transaction. He did th* work he charge* for in the bill of costs at Mr Barker's retainer. Tne mh covered a portion of the time during which he was partner with Hr Oenwelh The second account waa in regard |0 Coleman (trustees in Reed's Eitate) » Clark. He did the work charged for by Mr Barker. Tha next account was on action Wi Brown v, Barker; he also appeared io that oats, and in othet suits. He paid £8 10s to Mr Bierwright, and othsr charges ware debited against him; There was also a - sufs Tceksr v. Wi Brown in respect to the Makauri and Taruberu, which property Mr Barker claimed. Mr Barker claimed tbe tend through conveyance from Brown and J. R. Hurray. W{ Brown instructed him to defend the action, Mr Barker being present when the inettuciions

were given, Mr Barker agreed to pay all hte costs out of the property. Thar* vu no payment made on account of those ooets. Hq had to fibarge the costs to Wi Brown, but' if ha did hot pay them Mr Barker indemnified them. The plaintiff got a judgment, Ha’ could not eey who paid lbs judgment or the amount of the costs, In the account marked B, they were tho costs in the Makauri action, A portion of the work was done during the p>rtnerehip. and the remainder afterwards. Mr Cresewell acted With bins with Mr Barker's concurrence. Thors was a great deal more work done than waa actually charged for. He charged £l6O for the brief (produced) which occupied iq argument at Wellington 5| daye. Witness handed Mr Devine the brief for argument, for which be charged him (witness) £900; he was anwerable to Mr Devine for the £2OO. He attended at Wellington on Mr Barker’s behalf, although Mr Devine argued the matter; he could not say bow long he was absent in Wellington. The deeds produced were authorised to be prepared by Ward and Cresswell, with Me Barker’s authority.

Mr DeLaatour : We only raise the ques t on of retainer as there has been so much time allowed to lapse before the accounts were produced. WitneFs continued : The costs claimed for had never been paid either to him or the firm.

By Mr DeLautour: In the matter Tucker v. Brown, claim £177, he had claimed on Brown for that amount, and proved in his bankiupt estate for that sum. Mr Barker •gn ed to pay the costs out of the property if he ( ot possession, but Tucker succeeded in bis Bition and got possession of the land. Ihe bat date on the bill was 1886. Ho bad com nenced doing business with Mr Barker 14 years ago. Was notin the habit cf regularly Bending in accounts to Mr Barker. They settled up on some occasions during that time on the rendered bills, and sometimes by mutual consent. In 1886 the firm bad a settlement with Mr Barker. He could hardly remember what it was for, but he was certain it was not in regard to the Makauri bill. When Cresswell entered into partnership with him he did not do so on equal terms. . He could not produce the deed of partnership, as it had been burnt. The arrangement was that he was to receive f, Cresswell and bis brother was to receive £3 a week during his life. It was arranged that Cresswell should receive a share out ot the back accounts that were due; he did not reserve any actions for himself when lhat arrangement was made. [Mr Ward was questioned at great length with regard to the bills and receipts, but we cannot afford space for anything like the whole of it and it will not bear condensing. At one point His Honor was very severe on the witness, saying he was wilfully trying to deceive the jury, and he would be committed if he was not careful.] After counsel had done with the witness His Honor asked a series of questions. Witness, said the making up of the accounts had been begun 18 months ago, and had been completed after the assignment. His Honor: On 13th September, 1886, you gave a receipt for all costs due in regard to Parker and Barker. Did you inform Mr Bees of that ?—No.

His Honor : Did you never inform Mr Bees you bad given a receipt in full in July, 1887?—No. Nor that you had given one in 1888 !—No. la reply to further questions the witness could not explain away the receipts. His Honor : At the end of September, 1886, yon gave Barker an 1.0. U. for £586, while you say in fact he owed you several hundreds, according to these accounts ? — (No answer.) Can you explain P—No, your Honor. Witness, in reply to His Honor, said it was always admitted by Barker that there were accounts outstanding in favor of witness. His bankruptcy was in March 1887- -- _ .

His Honor : Did you return Mr Barker U a creditor ?—He proved for £72o.—Did you pnt him down as owing yon any money ?—No. Mr Cooper said it was not the firm of Ward and Oresewel! that went bankrupt. The Court adjourned until ten this morning.