SUPREME COURT.

Press, Volume XLVI, Issue 7355, 6 July 1889, Page 3

SUPREME COURT.

SITTINGS AT NISI PBIUS

Friday, July 5.

Before hie Honor Mr Justice Deunlston.) CHRISTCHTTRCH FINANCE COMPANY, LTD- > (APPELLANT), V. THOS. DOKANT AND SON (RESPONDENTS). His Honor delivered judgment in this case as follows:—This is an appeal from a judgment in the Resident Magistrate's Court on an interpleader summons, in which the now appellant seeks to recover goods taken in execution by the respondents. The appellant claims under a bill of sale given by the execution debtor; the respondents impeach cbe bill of sale. By the bill of sale the consideration is stated as £100 lent by the grantee, which sura, with further advances, law costs connected with preparing the security, interest at the race of 10 percent., and a commission of 2h per cent on every quarterly renewal, is made payable on demand in writing, and there is a right to take possession upon default of such payment on demand or on default in any of the covenants, or if the grantor shall in the opinion of the grantee be likely to become bankrupt, and in certain other contingencies. At the time of giving this bill of sale the grantor gave the grantee a promissory note at three months for £113, making up the said sum of £100, commission on such sum for three months, £2 10s ; legal expenses, £8 7s. It is further stated in the case that the appellant's manager told the grantor that the promissory note was an accommodation till taken for the purpose of enabling the appellant to discount it if it chose, and that the grantor understood it was for the appellants* benefit, that the appellant never claimed payment of its promissory note, and claimed under the bill of sale, and not under the promissory note, but that if the promissory note was paid it was not likely the appellant would enforce the bill of sale. There is a further •statement that just before the execution of the bill of sale the appellants' manager verbally agreed with the grantor that so long as he paid the bill of sale and carried out the covenants and agreements therein, he was not to be called upon to pay the principal monies. The case has been stated by the parties, and they appear to have been fencing a good deal with each other in stating it, each party endeavoring to get certain admissions made from his point of view of the law. I have no doubt that the Magistrate could have stated the conclusions of fact on which he founded his decision much more definitely and emphatically. It is however, plain, looking at the identity in amounts, and especially at the provision in the bill of sale for such quarterly renewals, that in one sense the two incidents, the giving the bill of sale and the making the promissory note, constitute but one transaction. It. seems to be within the words of Conn sell v The London and Westminster Loan and Discount Company, Limited, 192, 8.D., 512 (at page 515) —"Now a bill of sale is the contract of the parties reduced into writing. That contract may be contained in two documents or only in one. Whether the contract is contained in two documents or only in one must be a question of fact. Having regard to the identity of the tlgures and dates in the two documents in question here, and to the fact that beyond doubt both documents relate to the same transaction, I come to the conclusion that the parties have reduced their contract into writing, contained both in the bill of sale and the promissory note. I cannot doubt that there was but one contract between the parties contained in the t*vo documents. Now one of the documents has been registered aud the other has not. It is necessary to consider whether the unregistered has any effect upon the registered document." That seems to be the further question to be decided here. The promissory note was, in that case, held to be a defeasance of the bill of sale. There was, however, in that case a stipulation in the promissory note that in* case of default in the payment of any of the monthly instalments (which coincided with the monthly instalments under the bill of sale), the whole of the sum should become due and payable. Of course the effect of this was under certain possibilities to accelerate the times and mannerof payment provided under the bill of sale, and so to defeat the stringent provisions of the English Bills of Sale Act, 1882. It is this condition which is insisted on in the argument, and a similar condition was the basis of Simpson and wife v Charing Cross Bank, 34 W.R., SCB, on which Counsell v the London and Westminster Loan and Discount Company (Limited) was decided at the trial and in the Divisional Court; and although not directly so stated in the judgment of the Court of Appeal, I think it must have governed the decision. Now there is no such proviso in the present case. The note is given as the case states, and as I think may reasonably be accepted, not as a means of limiting or qualifying the bill of sale, but as a means of enabling the appellants to finance. The bill of sale contemplates further advances, and is enforceable on demand. The note is for three months, and for a fixed sum. I do not attach any great weight to the proviso in the bill of sale preserving the separate rights and remedies under the bill of sale and any promissory note, and providing that no such note or other security should operate as a defeasance. If the legaleffect of the note is to create a defeasance, such effect will not be prevented by the declaration of the parties. It may, however, be looked at as throwing light on their intention. Upon the whole, therefore, though with very great doubt and hesitation, I think the promissory note does not operate as a defeasance within the meaning of the statute. I have, however, further to consider the effect of the verbal agreement before mentioned as being made between the appellant and the grantor. It is very difficult to understand what such an agreement means. Read literally, it must be taken to be a promise of an indefinite loan so long as the grantor paid interest, &c. This can hardly be the meaning of the agreement. I think, however, it must at least be taken to amount to an undertaking by appellant not to make demand during the currency of the promissory note. But for the judgment of the Chief Judge in Bankruptcy in ex parte Southam —In re Southam, L.R. 17 Eg. 578—1 should have doubted whether such a parol stipulation could have been treated as a defeasance or condition, and I think such doubt would be supported by the opinion of Jessel, M.R., in ex parte Popplewell— in re Storey, L.R., 21 Ch. div., page 73 (at page 81). But accepting the decision in ex parte Southam in re Southam as a correct statement of the law (and it has been cited as an authority since its date in 1874, I think that this case is within it, and that I must hold the agreement to be a defeasance or condition within the statute. The decision I have come to on this point renders it unnecessary for mc to determine whether the schedule contains a sufficient inventory of the chattels intended to be assigned and seized by the judgment creditor. I may, however, say that whilst I should myself have thought that " one horse and buggy " was a sufficient inventory in a case where a man possessed only one horse and buggy, I should have felt very much pressed byjthe suggestion of Lord Esber, M.R., in Witt t Banner, 20 Q. 8., div. 114 (at page 118); that the question of what in any individual case is a sufficient inventory is a question of fact, and therefore to be decided by the Magistrate without appeal. As I have already said, I have arrived at these conclusions with great hesitation. The language of the judgments in Counsell v the London and Westminster Loan and Discount Company, Limited, taken literally, seems, to mc to go beyond the contention of counsel, beyond the necessities of the decision on the particular facts in the case, and the previous decisions on the Act. It is only by applying it to the special facts of the case that I nave been able in my mind to arrive at what seems to mc the principle of the decision. The appeal will be dismissed, with £7 7s costs. PATTERSON V BENBOW. His Honor Mr Justice Denniston delivered judgment in the case Patterson v Benbow as follows:—The plaintiff propounds what he alleges to be the will of Thomas Wadswortb, deceased. Alfred John Wadsworth, the son of the deceased, denies that the document so propounded was duly executed. The document is admitted to be in the handwriting of the testator, and is written in a series of paragraphs, completely filling up the upper Hall of a sheet of foolscap. The last paragraph, written like the rest of the document, right across the paper, is the attestation clause, and is iv the words, " Signed by Thomas Wadsworth the testator as and for his last will and testament in the presence of us who in his presence and at his request and in the presence of each other have hereunto subscribed our names as witnesses." The document is not signed except by the testator having written his name in the attestation clause, but there is no doubt that this is a sufficient signature, if so intended (Smith v Smith, L.R. 1, Pγ. 143). The signatures of the two attesting witnesses are written on the second half of the paper. There is a substantial agreement, except as to one

J fact, between the two witnesses as to n what took place when their signatures were written. Both agree that they were asked by the testator if they were willing to witness his wilL that they consented, that they went into an hotel and that the testator produced the document before mentioned, that they then signed it and the testator pat it back in his pocket. The conflict between them is as to whether the writing on the document was concealed from the witnesses. The witness Walden swears positively that it lay open on the table, and that he could and did see the writing. The witness Sullivan is equally positive that the upper half of the paper was folded back so that nothing but the blank half was visible. I am satisfied that Sullivan's is the correct account of the transaction. Both witnesses agree that before or immediately after producing this document the testator intimated his wish that they should not know the contents of his will. Sullivan says that after he had signed the testator said " It's not necessary for you to see the purport of the will. Walden, on his examination on commission says—" As we were walking up the passage he said ' you don't want to see the purport of it, do you f I said ' No, not particular, I'll take your word for it.' " And in his affidavit to ground the application for probate, he sajs in paragraph 2 —*Tnat the said Thomas Wadsworth, at the time he produced his said will as mentioned in paragraph 1 hereof, said I want you to sign your name, Harry; it is only to my will. You don't want to see the purport of it. Put your name here as a witness." All this points conclusively to the nut uncommon desire of the testator to conceal the contents of the will. The words are consistent with a wish merely not to read the will, a ceremony sometimes thought necessary by uneducated testators, but they are more consistent with the desire to keep the witnesses from seeing it. Now the will is very short, and written in a large plain hand. It would be easy for a witness to read it almost at a glance if it lay open before him while sign ing his name. The natural way to avoid this would be to fold back the sheet, as Sullivan says was the case; and there is in fact a distinct crease in the paper, on which it has been folded backward, a little below the centre, and exactly coincident with the bottom of the last line of writing on the upper half. Moreover the signatures of the witnesses are about two inches below the writing, and a very unlikely position if written with the document open before them, just what might be expected if the witnesses were signing almost at random on what was to them a blank piece of paper. Mr Gresson argued that the presumption was in favor of due execution, and that there being oath against oath the non-execution was not proved. I do not think this is the inference to be drawn from the cases cited. I think it amounts to no more than this—that where there is a formal attestation clause, then in the absence of any evidence otherwise, as where the witnesses are dead or where the witnesses have no memory or even one inconsistent with common sense, the Court will presume that the proper steps have been taken. The rule seems to mc well illustrated in the quotation from Blake v Knight, 3 Curt. 547: in Wright v Sanderson, 9 Pr. D, 152—" When the regestcß do not confirm the impressions of the witnesses the Court must look at the circumstances of the case, as it is always at liberty to do." There is certainly no presumption here that Wadsworth knew the nice distinctions depending on whether the witnesses did or could see his signature, and I have already stated my opinion that the circumstances confirm the impression of the witness Sullivan. Although I think the witnesses did not see the writing, I think it is sufficiently proved that the writing was there and in its present form when they signed. In Cooper v Bocket, also cited in. Wright v Sanderson, the Court presumed that the testator signed before the witnesses in opposition to their evidence, and it seems impossible to conclude that the testator asked the witnesses to attest as his will a blank sheet of paper, and that he afterwards filled up the space above the crease or fold with the free, bold, aid uncramped writing before the Court. I find, therefore, these facts— That the document existed in its present form before the witnesses signed; that they signed as attesting witnesses what the testator told them was his will; and that up to and at the time of signing they neither saw nor had an opportunity of seeing the document or the testator's signature to it. What, then, is the legal result of these facts ? On this point* I have had the advantage of a very full and able argument, and a large number of cases have been citea and commented upon. I do not think it necessary tor mc to examine these in detail, because I think this case is concluded by the judgment of the Court of Appeal in Blake v Blake (7 Pr. D. 102). It was there laid down by all the judges in the most express terms that when the witnesses do not see the testator sign, then, to constitute a proper acknowledgment of the signature it is necessary, although the witnesses need not see the will, that thpy should either see or have an opportunity of seeing the signature of the testator, who must then in their presence say something equivalent to "That is my signature." It is true that in that case it was not proved to the satisfaction of the Court that the intending testatrix to the, will declared the document to be her will, and Mr Gresson invites mc on that ground, should I think i the judgment inconsistent with the preI vious cases, to disregard it. This I could have no right to do. A deliberate statement of the law by the Court of Appeal, even if it goes beyond what is necessary for deciding the particular case, is of course binding on mc. But, if I may say so without presumption, I entirely agree with the judgment as expressing, not only the result of previous cases, but also the common - sense understanding of what acknowledging a signature should mean. I must, therefore, pronounce against the document. The costs of all parties, including the costs incurred by Attwood, the original plaintiff, as between solicitor and client, will be paid out of the estate. MORLING V "WARD AND CO. AND OTHERS. The hearing of this case was resumed. Mr Joynt for plaintiff, Mr Harper, with him Mr Martin, for Ward and Co.; Mr Slater for the defendant Sopp, and Mr Stringer for Mrs Hadfleld. T. w. Maude, cross-examined by Mr Stringer, stated—The first he knew about the deed of settlement for Mrs Hadfleld was on the 28th March, 1884. He did not know whether Mr Byrne was acting for Mrs Hadfield or not. He handed the documents to Sheppard to give to Mrs Hadfleld. Did not know that Mrs Hadfleld, being a trustee, was not in a' position to purchase the City Hotel. The witness was examined at length upon the transactions that took place in the matter. John Cox Sopp, one of the defendants, examined by Mr Slater, said he had been on friendly terms with the Sheppard family for about seventeen years. About March, 1884, Mrs Morling drove to his place, and asked him to become a trustee. He agreed to do so on the condition that whatever he did was to be with her consent and approbation. He thought then that Mrs Morling was a co-trustee. Saw Mrs Morling, Mrs Hadfield, and the late Mrs Sheppard in reference to the transferring of shares. There was a general conversation about the affairs of the family. Mrs Morling agreed that the shares should be transferred as interim security for the family taking the City Hotel. Nothing was said about absolute or collateral security. - For temporary accommodation it was promised that the shares should be paid up oat of the takings of the City Hotel, and that on their maturing the amount should be invested for the purposes of the trust. The late Mrs Sheppard was a daughter of the late Mr Hadneld. After the conversation the deed was signed at the City Hotel. There was no solicitor present. Mr Sheppard gave instructions, and he also witnessed the deed. The shares were transferred to Mrs Hadfield. Had no communication with Ward and Co., and bad not induced Mrs Hadfield to transfer the shares. Had occasionally inquired about the instalments on the shares, and Sheppard had assured him. that they were paid, up. He heard about two and a-half years ago that the shares were transferred to Ward and Co. Took no steps to obtain security, but spoke to Sheppard, who assured him that the matter would come right between the family. Did not speak to Mrs Hadfield. Signed the beer covenant at Mr Siieppard's request. About a year ago witness endeavored to obtain security from Sheppard or Mrs Hadfield. Mrs Morling was getting dissatisfied with the way matters were going, but neither took advice. They found, however, that everything was tied up, aud the Hadfield trustees refused to release anything till all claims had been met. In 188S they tried to gfct auother trustee, and Mr Joynt promised be would act. Mr Joynt said that they could recover from Ward and Co., and Ward and Co. could recover from Mrs Hadfield.

Cross-examined by Mr Joynt—Would swear that he (Mr Joynt) said he could recover from Ward and Co., and Ward and Co. from Mrs Hadfleld* Mr Joynt said he would not charge a commission, lie was to endeavor to get a bill of sale

over the stock in the City Hotel and a transfer of Sheppard's interest in the Hadfield estate and some life policies. Sheppard would not give a second mortgage. Cross examined by Mr Stringer—Signed the transfer of the shares in the Building Society Office. Believed he signed the beer covenant in the City HoteL Never read the covenant. Thomas B. Craig, examined by Mr Stringer, said he was accountant for the Hadfield trust. He remembered the sale of the City Hotel in ISS4. Moriing's trustees were its first purchasers, through Mr Sheppard, their agent. Witness opened an account in the name of the purchasers. He believed Sheppard was the real purchaser, and that the money was found by his sister. Took stock for Sheppard with a view of obtaining his position. Sheppard gave witness to understand that Mrs Hadfield had become security for him to Ward and Co. for £700, and Mrs Morling, his sister, for £1000. This concluded the evidence in the case, and it was adjourned siiie die for argument.