Evening Post, Volume LXXX, Issue 30, 4 August 1910, Page 8
CLAIM OF A MONEY-LENDER. AN IMPORTANT JUDGMENT. * Sitting in civil jurisdiction, Mr. W. It. Haselden, S.M., gave reserved judgment at the Magistrate's Court to-day in, the civil action,, brought by Cyril William Tanner, "solicitor, and registered money-lender, of Wellington, against Frances Jane Hare and Ernest Gilbert Kimberley Hare, a claim for £100 as balance of principal money alleged to be due by defendants to plaintiff under the provisions of a mortgage executed by defendants i» favour ■ <* Tanner. Defendants counter-claimed £10,0 "damages and costs of the action. ' POINTS IN-JHE CASE. Sge. Somerville had;sub.mortgaged Ins StaTtJhi, hus- rendering Somer f mmmm to. ft ".. A, bung Wmd, th. M» . «," nn dd n m of mortgage h.vmg been fin* ■ Serstand that she I. lMrtfS«mgJ>« ' SS5 rt MJKS»JS. I XS.^ sold She said she never received a Sfflinß from eithar Tanner or :>oraerviUe She did not know she was guaranteeing SomervilWs «*-*£££ Isked her to do so. She s*id »° m er vme did not act as her solicitor but he asked her to sign "so as. £ Setlhj 'money, as he was pushed. She agreed to sign a paper -in order that faomer villemight get.filOO to clear a pr£ nertv " She did not know who was to End 'the £100. Defendant's counsel Emitted that the sum of £100 claimed ST«p«d6d in buying a P'°Pf Mrs. H*re's name, and that Mrs. Jlaie was liable for ita payment, and on de iendanfs behalf offered payment of this riSrta. His^ Worship strongly i urged t>ie parties, he said, to remove the case into th« Supreme Court, but each alleged difficulties. MONEYLENDERS ACT. The magistrate was of opinion that the case ought to be moved into the Supreme Court, as that court had jurisdiction in questions arising m the case not possessed by magistrates, and the case was one of considerable importance, both to the legal profession and to the public generally, i The Moneylenders Act, 1908, had not had much judicial interpretation, and a difficult • question arose in the case. His Worship traversed the contentions of plain- I tiffs counsel, as follows : (1) That under the Money-Lenders Act; 1908, the plain- | tiff could not recover, as the transaction was not carried out at the plaintiffs registered address; (2) That plaintiff, while admitting that he was a registered money lender, did not prove bhat he had a registered office, aud (3) That the transaction was harsh" and unconscion•. able and should be reopened and that the mortgage and "agreement to purchase should be set aside. The case of Gadd v. Provincial Union Bank, 2 X.8., said his Worship, was a remarkable one founded on the Moneylenders Act, 1900, which decides that where in the case of a loan by registered money lenders in the way of their business the transaction was entirely carried out in the house of the borrower, it was illegal and' consequently void. It did not actually decide that the money lent was not recoverable, but only that the bill of sale given to secuTb the payment was void, and that the defendants could not act thereon. His Worship thought that the mortgage on which the plaintiff sued was void, ' as being in contravention of the Money- 1 lenders Act, and that the action founded thereon must fail. •If it should be.. ultimately held that the case could be distinguished from Gadd v. Provincial Bank it might be convenient for him to say that as regarded the present defendants the transaction was, in his opinion, harsh and unconscionable, and the account should be reopened and the mortgage and agreement set aside. , It seemed to him (though he did not attribute to the plaintiff fraud or sinister motive) that he had not realised his responsibility as a solicitor of the Supreme Court or his voluntarily undertaking liabilities as a money-lender. It was contended for the plaintiff that inasmuch as th~ interest charged on*'the mortgage did -iot exceed 10 per cent, the plaintill , uid not enter into the transaction qi, v money-lender, but qua solicitor. His "W'oiship did not' think the contention could be sustained. Although defendants were willing to have judgments e.itcut?d for £100 and interest, provided th • mortgage and agreement were set aside, but he did not feel able to follow this course. Judgment was accordingly eaiered for defendants, with costs as p•) scale. Leave to appeal was gi anted ~ th. plaintiff, security being fixed in the sum of £10. The counter-claim was allowed to Stand over. Mr. W. H. D. Bell appeared for the plaintiff at the hearing, Mr. D. M. Findlay, for defendants.
On Tuesday ne^t the Rev. B. Hutson Ofcrill lecture on "The Church and tho "jabour Party."