SUPREME COURT. HOBITIKA.

Inangahua Times, Volume X, Issue 1538, 22 April 1885, Page 2

SUPREME COURT. HOBITIKA.

(Before His } ! onor'M r J u«tipe Wiiaiams. ) j? '.\jS*£y, ' A^ril 17th 188ft. jKwi&fow^ir V3»enh ak XNDBow*fitf. ' . $hj|j>wa«a sucfenons to plaintiff to ajifw cans? why tlfc proceedings shonl3 aot bi'; stayed, of tho jarrmMid that plaintiff had brought his action against defendants, vho are Justices of th« Peace wsident at Reef ton, »i«ftr« th« eonvictian against him had been quash*!, ari provided hj statnti*. Mr Pmkiss, with him Mr Lynch, for defendants, in support of application. Mr Guinness for plaintiff After argument, the Jnuge londe the order on the summons staying thi> proceedings and ordered each party to pay his own costs. WYNDIIAM V. M'LKLLAv AND AKOTHie. 'This was an action for the improper exercise of a mortgage on some mining pcoparty, alleged to hare beta raid

without demand being made, and pray* ing that accounts might be taken < between the parties ; also claiming ; £100 damages for unlawful sale. : Henry Lucas, clerk of the Warden's \ Court, Reef ton, said — I produce a i mortgage from William Wyndham to i M'Lellan Brothers. The 'mortgage i was signed on the 18fch August, 1881, , and registerd on 23rd Septeml»er 1881. The property mentioned in the naort- ] gage had been transferred by M'Lellan brothers to Peter Byrne. This trans fer was registered d* the 19th January, 1888 ; the property now stood in the name of Peter Byrne. William Wytidham a miner residing at Black water, said— l am the plaintiff in this action ; I recollect signing * morgage ; I owed defendants £90 10s 6d ; .1 remained in possession of the property till 4th of Noveml>er, 1882 ; I was 'working eu my property from January to June, 1882 in constriction of a new race, and improved the claim and tail race ; I consider the valne of my work during that time to be £75 ; I also paid £80 for work on the property ; I also bad one man for one week employed, and two. men for three weeks ; I got goods from M'Lennan's since I signed the bill of sale ; 1 got a partial account in 1882 from defendants, for £180 odd ;I saw John M 'Leu nan, and objected to the account Neither of plaintiffs made any demand on me, either verbally or in writing under the mortgage : I never knew anything about a sale till the two defendants took possession over a month after the sale ; I was not on the property. Two •r three parties have been working at the claim since ; I valued the propo ty at over £600, when defendants took possession. ; I was making £8 to £8 a. week, and had been making as much as £20 per week ; I was present at ! Reef ton' when William M'Lennan at ! the Raefton District Court, swore the ] property belonged to defendants, was j worth £5 a week ; I never admitted that I owed defendants £130 16s 7<l, or any other snni ; J believe I only owe defendants for the amouqt of written orders 1 gave to some men ; I know j how much I have paid defendants since \ Deceml>er, 1880 when I wa* clear with them ; when 1 took the bill of sale to M'Lellan 's store thn amount was blank. I asked William M'Lellan the amount of my indebtedness, so as to till in the amount. He said he knew nothing about the books, that his brother was in Greyraouth, and that I could put in any amount and be wonld ntakf advances, but not to that amount I never could ascertain my true indebtedness at the time I gave the bill of sale. Since December, 1880, 1 have paid sums of £6, £23 5s sd, £18, £50, £4 14s, £18 10, 7d, and £12 7s 9d. Some of these item! were paid in cash and some in gold dnst ; wages in the district are £3 a week. To Mr Lynch: One of thn defendants ga\e evidence in the Warden's Court. There ws* no person present except •forja M*L»lU>i and me, when Joliri gave me the account for £131 : William. M'Lellan and William Woods were not present ; neither of the-defen-dants asked me for a settlement befor* •giving me the account. Defendants did not stop my supplies until after 1 get the bill from them. 1 don't remember William M'Lellan making me an Offer to realise the mortgage if I paid him £100 ; I did not go to Reef ton to Iwrrow £100 off Mr John Dawson ; I asked Mr Dawson to Wck a bill ; I would have paid the amount I honestly owed defendants. I met William M'Lellan that ni^ht at Dawson's hotel ; I told him if he wonld wait till ten i •'clock next morning 1 would pay him what I owed him. I arranged to pay the next evening. Neither of the MoLellans told me that the powers of the mortgage would be exercised. I never tendered any mouey to defen dants. I told then dozens «f times that if they gave my account I wonld pay them. I was working in th«* claim when I got rhe bill from defendants for £101. In September 18*2 my earnings were from £6 to £8 a week ; I have a wife and family. The money went in k««pinu my family and in horse hire and other expenses. I gave the, order produced to Teague for some good 3 from the defendants ; they did not supply them. Teague brought back a mesaag« to say defendants were coming up to me ; I however went tp them when we had some words and .had no dealings since. John M'Lellan, one of the defandants, said— l gave no message by a man named T*ague that I was coming up to plaintiff's ; I pradnce my ledger ; In December, 1880,' there was nothing due. to me by plaintiff. Up to the Bth July, 1881, tho amount of good* oh. tained. from us by plaintiff whs £17 Is 9d ; on the' day the bill of sale was given, plaintiff owed us, £22 9*l Id ; I make the whole 1 account £lj3i ; I se«m Jcjjave supplied plaintiff up to October 80, 1883:; his: account lh«n came to something over £6Q; 1b 7d ; besides this I supplied one Richard Teague with gootis to the amount of £78 16s 4d; praintiff told as* to give THagae,^h4t<rtr«r!h* wanted while he was in plaintiffts : employ. I only produce one wsitt&n order from Wyndham to supply Tesfeue ; I only had one ; Teague has paid as iM» money, and wo never sent him any account ; sometimes Teague ordered the goods and sometimes plaintiff ordered them for him. the commencement of Teaguo'saceount lin my book is debited to Wyndbam ; ! that is page 67 ; that is the only page ; Wyndam said he would pay for any ortfers we produced that he had gi /en to Teagne ; the bills were rendered to plaintiff in September, 1882; I told him I wonld take £>0O; I heard plaintiff say he paid £23 5s 5d in gold ; I hare credited him £22 5s 6d on May 16, it should be May 15. 1881 ; one pound was taken off for nvdioiae ; the amount £28 cask was paid i.i October, 1883 ; I will met swear I did

y- ! receive £6 cash, thronfh it is scratched* i I out of my »>ook. We had it sold by ( public auction ;we had instructed Mr Bj!*n« to buy the property for us if tbe>e wa* no bid l»eyond a certain amount ;]I told plaiutitf I would not see the propeity go at a loss ; I old the claim to another patty on 15th Janfiary, 1884. Exairocd by Mr Lynch, witness said he did not recollect the amount for which the mortg ige wa* given; did mo*think he had charged L4 S ) too uneli t ■ the plaintiff ; did not recollect any particulars of hi* dealings with th»plaintiff. His Honor said the witness Whs no doubt a very regp*etal»le man, Imt he did not seem *oknow his own business The Conrt adjounrrd at five p. iu. until tern a.m. next (thi*) day. MUI.VAT T. MDI.VAT. ■ This was a petition by the husband, for a divorce from his wife, Elizabeth Mulvay, on the greund »f the adnltery of respondent with one M'Laren, deceased. Mr Jones appeared for the petitioner ; the respondent did not appear. Peter Mnivay sworn said — I am a miner living at Repfron ; I am the husband of Elisti»--'h Mnivay; I wag married in February, 1862, nt Tok<>mariroro Otago, l.y th» R-v. Mr Todd. The witnesses were Alexander Adams and James Sutherland. After marriage we lived at Manuherika ; from there I came to the West Coast and took a firm at Ahaura ; I lived with my wife ; I had j five children by her ; I went to Hoki tika and from there removed »o Nelson, where I was four years ; 1 ivceived i a letter at Nelson, from a friend, tha^ my | wife had a child ; I knew it was impossible to l>e my child ; when I left Ahanra I T h:id a farm and *t<>i> ; mv estate xr«\n worth £SOO or L9OO. Wiie- I l,.ft I J jmve a power of attorney to ray w'fe. i I was sfiven to understand that ray wife itf ansen od .-»ll my property to M'La.en : when I lefr Nelson I had no mooey or property I cam •to Reef ton, and was occupied in quarts miniug ; I did not ■ commeuop pmceedin** earlier for ; want of ir,o sey. I 3!>oke to Mr j Guinness. nui.th-ittiiiif>th n p!-oceedin^s ; were too co t!y for me ; I tlu>n spoke to Mr Jonns, Hut then the money was too mnch for me to pay. I have not y»*t paid for Uigsp proc-edi^jrs ; I have been giving i-ils, R)ia» of which I could not take up ; since 1877 I have never | been in a position to realise money. I Since I lefr. N<>l#on I have nover \ spoken to, respo »dent I have taken these proceedings simply on account of h*>i< misconduct, and my desiro to get rid of her, not to assist her in getting : married to someone else ; I have in no way condoned the office since the adultery. The property I left my wife when I went to Nelson, woui.l !i*ve been ample to support her and my young family. The depositions of Harriet R^s proved that respondent was livincr with Alexander M'Larfn, while petitioner was away, and that she gave birth to a male rhild in July, 1874, which she admitted was M'Laren'a. ; The Cfinrt adjourned at one mifcil two p.m. On resuming, Hi* Honor said though the evidence was very meager, the petitioner was entitled to a decree. He had left his wife sufficient weans, and his delay in proceeding was ov ing to want of fnudg. Order made for a degree nui to be made abinlote either after three or sit months as the G >urt would Bul«eqnently direct . \