IN BANCO.

Press, Volume XXVII, Issue 3644, 14 March 1877, Page 4 (Supplement)

IN BANCO.

tfAStfi tASfcB B02*» APPEAL ACT A3TO W. KcBECSOS. APP?WdtfJT. A2TD CUT* FORD AITO OTHERS, HEfiSWTOEKXS.

Mr Garrick fq* appellant, Mt &• Harper for respondents. thi» w.9 eet down as a special case for a/?am<nt. Hlfl Honor raggeeted tbat tbfe-oaee ehoald go to the Court of Appeal, if the partie* consented, as the questions raited were -at importance. CoUDeel on bo»h wdee consented to toe <SM£ standing over, in order to determine Trhwt conree to purene

SBBCFDHTION OF LOCAL ELECTIOKB ACT, 1576. AND ELECTION FOU BIDDJO OF HABSIMSe. COUNTY OF GBET. In Kbia caw,o*nae was to b»ve been shown ■to role *iii of Jawaary 23rd, by wbich the lEUsWeot U t ietMte.of sreyn»onth wee pro. hibftedfireta »jcceediag fwaber herein. Mr G. EAfr« Mid he wai to abardon tbe role. fit tb«l wrao*w»e|B, wbo»e.4«^

time, and farther proceedings were therefore rendered unnecessary in the matter,] DEBTORS' AKD CBEDITOBS , ACT. 1871. AND BK BOBBBT HEBBEBT3ON. DEBTOB. In *«b'» case ih<-def?>.dan* u»d d'c:\ under the Dcotors' and Creditors' Act, 1875. and bis β-tate was I.qaxiafed and distributed among the proved creditors . At a msoting duly convened, tb? liquidation was declared closed, ted the debtor's discharge refaged. Tbe plaintiff (Mr Bucket!) then sued defendant for the amount rtceived by him ac dividend. Judgment was given in the Resi dent M-sgi trftte's ("oiKt for the amount of the c'ftim The defendant ob'ai'ied a Tule niti c-.l.'iog on plaintiff to show n.mse why proceedings should not be stayed, on the grcuad that the plaintiff having proved in the bankruptcy and received hie dividend, had mane hie election, and was precluded from fu'thpr proceedings.

Mr Bdoifjrd shewed cause for plaintiff. Tbe 'earned counsel contended t.hit the liquidation having been clost-d and the estate liieiiibuted and the defendant's order of rt)(ieua'-tf'e naving been refnsed, the plaintiff wse entitled to sue defendant for the biiUocf of bis claim, after giving credit for the amount of dividend. He fnrther conteiuied Hint the defendant's obj-cii n should have bten taken by appeal from the Resident Msgis-.ratsi'a j iderm-vjt, and not by rule nisi

Mr >>lrtter. contra. contended tba* plaintiff coulvl not proceed Kgainst the defendant, having prove*! under the bankruptcy aaa received his dividend.

Hii? Ht or dismissed the rale, with costs. BEGIN'A V MELLIBH—IS THEMATTEB OP AN APPEAL FBOM THE BEBIDENT MAQIS TBATES COURT. CHBIStCHURCH, BE GKORGE V. BLADE.

Mr Izird appeared for appellant

Mr George Harper for respondent. This case was an appeal from tbe decision of the Court below. On the 24th of January last, an action wae brought by S. George, as boldpr of an overdue promissory note for £20 os, xgainet the respondent Made, It appeared that the note wee made ac follows: -The payee, D. Middleton. a blank promissory rote to -Sladn, tbe The word "two" was'added the wo'de'• months the sum £20 ss" in figures, and 81« de eigm-d the same and gave it to Midd.'pton. t-übse-quently, the note was fully filled up, and endorsed to George, the holder. The noto then had the words " the Union Bank of Australia, Ashburton," added in with the printed words •' payable at" in the bottom left hand corner of the cote. At tho hearing of the case, it was coitenrfed, for the defendant, that the alteration was a material one, and the H.M gave judgment tor defendant. The plaintiff Georgs now ap pealed against that decision, aud the question was—was this addition of the words " the Union Bank of Australia, A&hburtoo," such an alteration as discharged the maker from liability on the bill 1

Mr Iz ird, on the authority of tbe case Hamley v Lovett, 18 L.T, d.s. 366 (referred to in tbe Text Books and in Fisher's Digest) contended that tha alteration, namely, the subsequent filling in of the placa at which the promissory note was payable, was not a material part of the note. It was distinctly laid down that tbe wovds " payable at" were not a part of the note at all. The facts chewed that David Middleton had the authority of the maker of the note to fill up the blank as he liked without notice, Slade having left this blank at the time the note was made. The maker evidently intended that the blank should be filled up.

His Honor—The maker eweais the contrary—that it $vaa never intended as a promissory note at all. The whole strength of your argument ie that under the circumstances he gave a general authority, and ought to have ascertained, before it became due, where it was payable. Defendant's answer to that is, that before it became due he paid the money to Middleton and Co.

Mr Izard contended farther that defendant was estopped from denying that be did make it payable at the Union Bank at Aeh» barton. Again he contended that, supposing this to be an alteration, it was immaterial. The words " payable at" were not part of the note at all, bat simply a memorandum, and treated bo in many cases for mercantile purposes. (Exon v Bnesell, 4M. and 8, 506.) If it were held that tbia was a material alteration, then he contended that the defendant was estopped from setting it up us a defence to the action.

Mr G. Harper,°for the respondent. Hub mitted that the alteration was a material alteration, and that it affected the parties to ih« hill, even to the, bona fide holder for value, and that 'his principle was laid down in I hmith'a Leading Oases, Master v Miller, Burfield v Moore, 3 B. and B ; Cowie y Halsal, 4 B. and A. It was considered a material alteration where the words " pay able at" had beea inserted where they were not originally. The maker of the note was the person who questioned the materiality. It appeared that this bill was actually presented at this particular place for payment, shewing that the maker would suffer all the inconvenience that necessarily followed in the case of a note being presented at a place where he had not provided fnods to pay it. His learned friend had not shewn any eon sent orquasi-agency on the part of Middleton to do as he liked. The facts went to shew that Middleton was the seeker of this note, and pressed the respondent to give it simply as an acknowledgement of the debt to sue upon in case he did not pay the debt He submitted that there were no facts to shew that Middleton was in the position of a quasi agent to do as he liked, and to bind his principal to what he did. He submitted generally that it was not for the holder of value in this caee to set up the defence that the alteration was not material, because in this- case it appeared the holder had pleaded it as material ; for this reason, that it was presented at the Bank at Ash burton, and the other party received notice of dishonor.

Hie Houor took tinw to consider. MITCHELL V MITCHELL. Demurrer to the plaintiff's declaration. Mr Joynt in suppoit of the demurrer. Dγ Foster contra. In this case Mrs Mitchell had presented a petition under the Divorce and Matrimonial Oanses Art, prajiog for a jadicial separation flow her husband, Mr IS. Mitchell. Two days before the date fixed for the trial the defendant, through his solicitor, offered to compromise the matter by paying £1000 to a trustee on behalf of the plaintiff, conveying certain freehold property, allowing her the household furniture, and paying all costs of the suit. This offer was accepted, and the record was withdrawn. Deeds were drawn and forwarded to defendant's solicitor and approved, bat two months afterwards, the defendant declined to carry oat the alleged contract, The action, therefore, Iβ one for epecifie performance of the contract

Mr Joynt, for defendant and In rapport of the demurrer, submitted that Mrs Mitchell, being a married woman, waa not in a position to make such an agreement as was alleged. The agreement was not one which the Court would enforce, because, in addition to the objection that Mrs Mitchell could not make such an agreement, there was no consideration alleged in the declaration. There was no undertaking that the an it in the Divorce Cottrt wae to be withdrawn. Again, notice of the appointment of a trustee was giren after the arrangement between Mr and Mrs Mitchell bad been eflroted. He submitted, on the woob-, that this was cot a contract that cou'd be recog nised by the Court as binding on the defendant, because he submitted thnt hie client wee not boond by the nego iatioDS carried on between tbe solicitor* of the parties. His Honor—eball I pnt your contention this way—that negotiations by eolicitors for tae purposes of a compromise do not neces eatilj create a contract between the parties 1 Mr Joynl—Precisely, yonr flonor, bnt that does not go iar enongb ; it ie not merely the neeotiat one between tbe solicitors, nut this document professes to be an agreement between the parties. I submit that under a<l the circumstances, tbe demurrer must be allowed. Dr Foster, for tee plaintiff understood his learned friend's contentions to be—let. That this bring a contract between a married woman on tbe one side and the husband on the 'tber, the Court woqld not enforce iti $£ B?| tetSg Wpd»h4e b| k%l foj|&*s}

2nd; that there was no consideration alleged in the declaration ; and 3d, that the choice of the trustee was too important", a part, of the ai.-reem nt >o be left unreferred to in the ashmen!. '.Vith regard to the first point hn (Dγ Foster) pubnrtted that a court of equity would dtcrea specific performance of an agreemen to execute a deed of separation where the consideration was tbe withdrawal of the record. *( Wi l ?on v Wilson, i Hone of ords C*8?8. '538) Aβ to hie leatne<i friend's second cninr, he (Dγ Foster) contended that the withdrawal of the record w a sufficient consideration ; and he sub mitu-d. also that eolicitire had sufficient aiifhority to bind their clients. Ac to the thirl point, the Court could approve the deeds, and appoint a trustee if tbat were necessary. Be had a large number of authorities to ebow tbat whether it be with or without, or even against, the direct instructions by the client, a comoromise made bona fi.de by a soliciter within the scope of his authority, was binding on his client. (*<winf< n v Swinfen. 25 L.J, c.p, 803 ; 26 LJ. c.p, 97 ; 27 L.J, Ch, 491 ; Hwii fen v Lord Chelmeford, 29 L.J. Kxch, 382 ; Fray v VW.ee, 28 L.J. q.b. 232 ; Ohown v Parratt, 32 LJ, cp, 197 ; 'Tie*'wick v Poley, 3± L. J, c.p. 189 ; Butter v Knight. 36 LJ, Rxch, 6»i ; Brady v Curran, 2 Common Law, 314 ; Berry v Mnllin, 5 Irish Equity, 363). Mr Joyut, in reply, con'euaed that the withdrawal of the record wa» not a proper consideration.

Hie Honor—l am of opinion that judgment on this demurrer should be for the plain'iff. I think that although the decla ration ia perhaps not ve»y artistically framed, it still co tains *ufßcient allegations that are expressed or that are to be implied from the documents introduced, to uphold the pTayer with which it concludes, or a portion or modification of that prayer such as it is competent for the Court to make in the exercise of its equitable jurisdiction. I think it sufficiently appears upon the face of the declaration that there existed a suit in the Divorce Court for a eeparation, that it had come to that point in t*e proceedings that an issue had b»en stated for the trial of certain questions of fact, that negotiations t>ai been entered into by tbe solicitoie, who conducted the suit on the one side and the other in the Divorce for the purpose of makiog an amicable settlement; that ie to say, for tbe purpose of establishing tbe future rclttions of these married persons without a public trial, a.:d withont the judgment of the Court under its Divores ; that the result of the negouatioDS was, tbat ttrms more or lees definite we γ-s arrived at, to be embodied in a 6ra\ of separation, aud that in pursuance of those negotiations which had terminated in an ngreemeat with respect to certain particulars, the further proceedings in the Divorce Court were stayed at the request of the defendant's solicitors by the withdrawal of the record which had been entered for trial of the facts. lam therefore of opinion tbat the undertaking amicably to arrange, and the withdrawing of the record pursuant to that undertakirg, was a sufficient consideration for an agreement by the defendant to futer into a deed.of separation ; and I think that, wbftner this be treated merely as a question of compromising a suit nnder the divorce jurisdiction or otherwise, it sufficiently appears," prima facie, that the solicitors who wrote those letters which are said to form the agreement were sufficiently authorised to bind the defendant. That being so, it necessarily results that, although there may be uome necessity for a modification of the terms, and for a modification of the decree in respect of the prayer for relief, yet that there are sufficient Jgrounds laid to enable thia Court, in the absence of sufficient-defence, to pronounce a decree for the specific performauce of the agreement created by the documents set up in the declaration. Judgment for plaintiff, with costs. Mr Joynt obtained leave to plead on payment of costs. The Court then rose.