SUPREME COURT.

Press, Volume XLVIII, Issue 7922, 23 July 1891, Page 3

SUPREME COURT.

IN BANCO. Wednesday, July 22. (Before his Honor Mr Justice Denniston.) His Honor sat in banco at 11 a.m. RB WILL OF J. B. GRESSON, DECEASED. In this case the administrators in the estate of the late J. B. Gresson sought to get the construction of the Court as to the ! payment of a sum of JB2OOO life policy effected by Mr Gresson, whether it was protected under section 33 of the Life Assurance Policies Act, 1884. His Honor now gave judgment that the money was payable to the persons named in 1 the will as trustees of the residue of the estate. As to how they were to deal with it, his Honor said he did not think it necessary to determine under the summons. No order was made as to costs. The full text of the judgment appears elsewhere. | BANK OF AUSTRALASIA V REYNELL. ! In this case the plaintiffs had sued the defendant on a guarantee for J25000, alleged to have been given by the defendant to the late Mr J. B. Gresson. It was heard at i Nisi Pri us, and the jury returned what was ' substantially a verdict for the defendant, subject to the reservation of leave to plain- , tiffs to move for a new trial. ! Mr Wilding, with him Mr Stringer, now i appeared to move for a new trial; Mr George Harper,, with him Mr Martin for I the defendant and contra. Mr Wilding submitted that the admisI sion of the signature to the guarantee threw the onus of proof on the defendant as to the alteration of the guarantee for the sum proposed to be guaranteed. This being so and jno proof being offered by the defendant of j this he submitted that the verdict must be ; for the plaintiff. I His Honor complained that counsel was now raising an issue, as a matter of fact, which was not put before the jury by whom the case was tried. Mr Wilding submitted that he had a right to raise the question now, particularly as his Honor and the counsel assured the jury that it was, to a large extent, immaterial as to how they brought in their verdict, as it would have to be fought out hereafter. He had already pressed the point and should do so elsewhere. He desired to submit that it was no part of his duty to submit the issue on this point to the jury, and further, that there was no evidence on the point to go to the jury. The whole onus lay upon the defendant when the document was put in. Then he should : submit that as Gresson was not a party to the document, which was between the i defendant and the Bank, any fraud or mis- j reprepresentation on the part of Gresson could not be held to void the guarantee as agaiust the Bank. The Bank having given value, Reynell had no right to void the guarantee. Mr Gresson was a party to the transaction, but was not a party to the document itself, which was between the defendant and the Bank. He would cite cases in support of his contention on thi3 point. [The learned counsel here cited several cases. ] He further contended that the Bank not being a party to Gresson's frauds, then the document must be held as conclusive. He also contended that the circumstances in this case did not come within the range of the cases in which a man signed a document of a character which he did not intend to sign at all.

His Honor said he would put the case to Mr Wilding of a blind man who had put before him what purported to be a receipt for £5, whereas in truth it was a bill of exchange for £5000. Would that still be the bill of the blind man ?

Mr Wilding thought so. There were, 1 however, many strong authorities against the proposition. He submitted that the authorities laid it down that any person who could read and omitted to do so for , himself but took it on the word of another i person the deed was not void, though it j might be voidable up to the time when no i innocent person had suffered loss. This of I course would be if the person knew he was i signing a certain class of document, a J guarantee for instance. j His Honor said Mr Wilding's proposition, \ as he understood it, was that if a man who could read did not read a document, but took the statement of it by another person and then signed it he must take the consequences. Mr Wilding said that was his contention, j and he submitted that under the authorities he had cited the plaintiff was entitled to judgment. He submitted that the defendant having had the opportunity of reading for himself and not doing so he was bound by the misrepresentations of Gresson. The defendant was not, as his Honor could see, deceived as to the class of security he was signing. He knew he was signing a guarantee. His Honor—But he allowed Mr Gresson to read it, and he substituted important words for those which were there as regarded the sum. Mr Wilding then proposed to deal with the question of misdirection. His Honor said, on the ground of misdirection alleged, he did not rule to the jury as etated by Mr Wilding on the grounds for a new trial. This seemed to him to be a proof of tbe necessity that objections to the ruling of the judge to the jury should be in writing. His very last words to the jury were that the certificate must be taken by them as having been withdrawn from them, and that they had to decide on the question of negligence or no negligence on the part of the defendant. He therefore could not understand how now an allegation of misdirection on this very ground was made.

Mr Wilding said if this was so, he had another point to urge which he had not yet taken, viz., that the verdict was against the weight of evidence. His Honor said he had no objection if Mr Harper did not object to take a note that the ground mentioned by Mr Wilding had been allowed to be added to the other grounds in favor of a new trial. Mr Harper did not object, and the note was so taken by his Honor.

His Honor said that what he put to the jury was whether the defendant should not have read the document itself, or have obtained someone else to read it than Gresson.

Mr Wilding went on to submit that so far as the certificate was concerned it was not evidence against the plaintiff. It was no part of the guarantee.

His Honor said it was signed contemporaneously, and the Bank having entrusted Gresson with a blank form, and accepting it back unquestioned, would that not make Gresson the agent of the Bank ? Mr Wilding could not see that this was so at all. Before Reynell could avail himself of the certificate which purported that he had ■■ read the guarantee, or that it had been read to him, he had to satisfy the Court that he ; had been misled by the certificate. This he j had not done. When he signed the deed he | did not know of the existence of the certi- ! cate at all. The statement made in the certificate was that the deed had been read to him, which was not true. He had the means in his own hands of having the document read to him, but he did not do so. Was not that negligence on the part of the defendant. The Bank by the certificate desired to put the person or persons signing the deed on their guard, to see what its purport was. But he did not do so, though he had the deed in his own hands. He submitted that Gresson was in no sense the j agent of the Bank; that the certificate was merely a statement that the document had been read to him, | and was by no means calculated to put the '; manager of the Bank on enquiry. He fur- J ther submitted that Mr Reynell having j entrusted the guarantee to Mr Gresson to take to the Bank was now estopped from alleging non-liability. He also wished to point out to his Honor that there was a possibility of the jury being mistaken in the purport of his Honor's charge. His Honor said he put the matter so strongly, emphatically, and plainly to the jury, that there was not the slightest possibility of the jury being misled. Mr Stringer followed. He drew the attention of his Honor to the first point he wished to make, which was that it was never put forward by the defendant that the document was in blank when he signed it. The learned counsel then went on at some length to argue that the cases decided all laid down the law that only where the class of document to be signed was misrepresented could it be held void. He submitted tliat the selection, of the person to read the guarantee was in Mr Reynell's choice, and if the person who read it misstated the contents, the deed could not be void against the Bank. Besides, the filling

up of the document by Mr Gresson was done as the agent of the defendant, who concurred in it being done, not in words but by signing it after it had been read over to him by Mr Gresson. As to the construction of the certificate, it could not be said that the Bank by it relieved Mr Reynell from the responsibility of reading the deed. Sis Honor pointed out that the words " I have read the enclosed form of guarantee " were struck out of the certificate. Was that not sufficient to call the attention of the Bank to the fact that the defendant had not read the document.

Mr Stringer said as the certificate was drawn up by the Bank to meet the case of a joint and several guarantee, and as this was not such a case the Bank would not take notice of it.

Mr Harper submitted that what was done by Mr Gresson was to put before Mr Reynell a document which did not represent really what was intended at all. Besides he submitted that the Bank wanting to cover the overdraft, and giving Mr Gresson a guarantee form for the purpose, Mr Gresson was the agent of the Bank. This was what Mr Winter said in his evidence, and showed that the document put before Mr Reynell was a totally different one to that agreed upon, which was for the sum of £500, to make up the necessary amount to cover the overdraft. [Mr Harper then cited a large number of cases in support of his contention].

At 4.30 the Court adjourned till 11 a.m. to-day.