LAW REPORTS.

Dominion, Volume 1, Issue 121, 14 February 1908, Page 4

LAW REPORTS.

SUPREME COURT,

CIVIL SITTINGS

'midland railway company case.

The Civil Sittings won? resumed yesterday morning, His Honour Mr. Justieo Chapman taking his seat at 10.30 o'clock.

The case Ada Smith v. tho National Bank of New Zealand was again mentioned. Tho action 'involved tho question as to whether tho English debenture-holders in the,/ Midland Railway Company could claim tho proceeds of the sale of a certain block of land oil the West Coast of tho South Island, also tho question as to whether a oertain compromise entered into under an order of tho Court between the Bank and the debentureholders could bo sustained. . Mr. H. D. Bell, K.C., (with him Mr. Pstlor), appeared on behalf of. the plaintiff, Mr. Tripp for the defendant Bank, and Mr. Skcrrett, Iv.C. (with him Mr. Dalzie|l), for thfc Receiver. . . Mr. Bell intimated that-the parties had agreed to therterms of.a settlement, and on' his motion .'judgment was entered accord-, ingly: - .■■■-■ ' '~ v ;-\ v . GREYTOWN CASE. DISCIMRGE.OF A •JIbRTGAGE WANTED. .- Tho case, sot dowii'for hearing, was. that of Arthur CharlfS'.l'Vast. and;others-v. John Judd, 'a clajm for .-specificperformance in. connection with the discharge,of a.-mortgage. •; Tho statement'of claim set forth that, on November 1, 1904, /\Villiam Parker, of, Carterton, baker, burrowed from the defendant £700, the loan being secured upon a piece of land containing 110 acres, benig part of the Tupaehauha Block, and a memorandum of mortgage was prepared by Henry Stratton Izard, then a solicitor of (Greytpwij, acting for the defendant, and signed by William Parker in favour of the dofeudaut. Parker, on May 21, 1906, entered into an agreement with Arthur Charles- Feast ,one of the plaintiffs, for the sale of a property consisting of a baker's shop for the sum of £1300, aiid the agreement was prepared jiy .Henry, Strutton'. Izard. Parker, being desirous of utilising portion of .tho purchase money in tho discharge of tho mortgage, on or before May 21, 1900, applied to Izard, acting on behalf of defendant,- to . accept payment of . tho loan secured by the mortgage; before the. due.date, Before tho completion of the sale and purchaso of the shop, anil before the repayment by Parker of the loan, viz,, on May Ul, IUO6, Parker died. Shortly aftor his death, Izard, acting on .behalf of, and as tho agent' for, defendant ,informed tho : plaintift'ii,' as; trustees, that tho defendant would accept repayment of the principal, and 1 plaintiffs agreed to repay the loan. On Jun.e 2G, 1906, Feast, as a part 'payment of thß purchase monoy for the shop, and also, as ia paj'mont ori behalf of, and at tho request of, the trustees of Parker, in reduction of tho.mortgage paid to Izard, acting as the authorised agent of the' trustees ancf of the defendant, the sum of £500.. On July 81,, 1806, Arthur Charles Feast paid to Izard a further sum of £800 to complete tho-purchase of tho shop, on the : understanding that the-balanco of tho amount owing on the -mortgage was to bu paid out of it, and Izard; acting as the authorised agent of and for defendant, accepted the'sum of £200, the remainder being reeoived by Izard as tho agent ,of the trustees, and Izard forthwith handed to the plaintiffs as trustees, for ; Parker his bhequ.o .for, £600, retaining the sum of £700 as tho agent of and acting for tho dofondant in -discharge of tho mortgage. IVhereforo plaintiffs plaimed (1) that the" defendant bo ordered forthwith to oxecuto in favour of tho plaintiffs a proper- tlischargo of, tho 1 mortgago. ' i Tho statoment of. defence, sot forth, inter alia,-that Izard w.as notjactingy and had no' . authority .to act, on the dofendant, nor to accept , tho moneys iron 'behalf of defendant in dischargo of tlie,:-.mortgage or-, otherwise.

Mr. Sksrrett, K.C.; with him Mr. Lucltio (instructod by ilr. T. E. Maunsoll, of Carterton), - appeared:'on- : behalf Of • plaintiff,, and .Mr. Bell, K.C., with him Mr. Ostler (instructed by . Mr. R. Wi- Tato, of Greytown), for the defendant.. -.. "

, Mr. -Skerrett,: in opening .tho caso', submitted tlint the enso',-rested upon tho detorminatipn of- two,, questions:—(l) Izard authority from Judd to accept payment of principal £700 prior to its duo date? (2) Did Izard, in 'fact,, receive tho sum of £700 as the agent; or solicitor of Judd? Tho .only question of fact turned on tho first question. ,lt waa incontrovertible, that the monoy -was received by Izard as agent for Judd, and the question was who-, tlier ho had authority .to receive it: It was necessary not pnly t<?' establish that Izardhad authority to recoive tho,principal when due, but that he had authority to ; .receive this, .particular sum prior to ■ its duo dato. Henry Stratton'lzard (sworn) stated thatfor some years lie was practising as a soli-citor-at Greytown aiid Carterton. Tho fondant, John Judd, was. one of his clients. Witness: became' baukrjipt in December, 1906.: Wh'oii: ho had' an investment ivhich ho know would suit Judd, ho would place the particulars before. him, and. in cases whero. the investment was accopted, witness drew up tho deeds.. In every case in ivhich ho drow up the deeds lie . received the interest on Judd's behalf. On soveral occasions wit-ness-"also received tho principal. Out of moneys so received'he .made investments for. Judd with his consent. One of these rehit edto tho loaii of £700 to William Parker, upon a farm property. Parker, prior to his death,' asked him' whether hie' would ascertain if Judd would agree to have tho loan repaid before the ,duo dato.' As : Judd had no investment offering lie said ho would require a premium..' Parker said if ho had to. pay a preniiurii lie would not bother. Subsequently Parker again asked him to interview Judd on the matter. Judd was agreeablo to .the.repayment,.but witness could not remember the ' terms. Parker then became too ill to attend to the matter. The question as to who would reoeivo-the principal did not come up for consideration. In the ordinary course no-would receive tho money. Oil May 21, 1906, Parker sold to Arthur Clias. Feast a property ■ consisting ,of a bnker'3, shop for £1300. Upon receipt .of tho monoy £700. was-'put aside to repay mortgage'moneys due to JuddL and witness handed his cheque for tlie diffei'ence, £600, to" Parker's executors,'/ Witness had acted for Parker on several occasions. After Parker's dentil, witness acted for tho executors and for Feast in connection with the property. > Tho'money due to . Judd was never paid to him, and ho was never' informed of its receipt. It went into witness's trust account.

To Mr. Ilell : He had received money without haying first a releaso signed by Judd. In one instance he received £150 from a Mr. Johnston, and Judd 'signed tlio release tho first time..they met afterwards. At tlio date of his bankruptcy thero was only a few pounds to tlio credit of his trust account. Ho could not say what becaino of tlio moneys placed to that account. • It seemed to him that in each case'ho had special authority from Judd. Aftor Parker died, Judd asked him when ho-would -get tlio money,' and, as tlio money had really not boon paid at that tinie, wituoss told•■him so. During .his examination by tlio Official Assignee ho stated that ho had only general quthorit-y from Judd, but aftei' thinking the matter over since ho felt suro that he hud special authority. Witness prepared his own list of creditors, the work occupying four or livp days. He put- Feast in as an unsecured 'creditor* As soon as he put the list in he saw that ho had nude a mistake:' At that time he did not suggest that tlio money had been lost to Jnutl. Witness was awarp that he was not exclusively Judd's'solicitoiv He did not suggest that ho over informed Judd of the payment in question, or asked hj m to sign a release.... Witness did not remember Judd and his daughter calling at his houso shortly before the bankruptcy in' reference to the matter. Did not remember saying to Mr. Tate that he had 110 specific authority to rcceivp Jtidd's nioney.' Witness remembered James Judd having a conversation with him during thb bankruptcy proceedings, did not recollect asaurinc Him that Ju'dd

had lost only £500, but that was on another matter altogether. Arthur Charles Feast, baker, Carterton, and one of tho trustees in Mr. Parker's estate, gave evidence. When tho hit® Mr. Parker was soiling the shop to him ho said ho wanted the money in cash as ho had arranged with Izard to pay off mortgngo moneys duo to Judd. l'arker died tho samo day. Izard called a meeting of tho trustees at- his. ollice. During the proceedings Izard said: '.'Aro you aware that Parker arranged to pay olf tho mortgugo duo to Judd?" At a subsequent dato witness paid tho balance duo on the property, £801), by cheque. Izard then said: "I will give you trustees back £000. That will oomplrto tho £700 ir.ortgago.money to .Judd, The first timo I seo Judd I will Vet him to sign the release." Win. Richard Parker, son of Wm. Parker (deceased), and one of the trustees, gave cor-: •roborative evidence.

' Thos. E. Maunscll, of Carterton, solicitor for the plaintiffs, deposed that Izard had said that there would, 'perhaps, bo delay in paying the money, owing to Parker's'death, but he would get it as soon as the eat-ato was wound up. ' ■ This concluded tho case for the plaintiffs. Mr. Bell moved for a non-suit, but asked Hi 3 Honour to reserve consideration of' tho matter until after the evidence for tho defence had beeir given. > Opening for tno defencc, Mr. Bell said that tho evidence for tho defence would ho to the effect' that defohdant had given no authority to Izard. to receivo the mortgage moneys, and that, if anything, lie had only agreed with him to accept payment prior to tho duo . dato' of the mortgage upon certain conditions. Tho contention on behalf of tho defendants would bo that tho receipts given by Izard for tho money :paid were-given by him (Izard) as solicitor for the plaintiffs themselves, and were not;receipts given by Izard in his character of agent of tho defendant. ;

Jolip Judd, the defendant,; who is a farmer at Grey town, gavo evidence! Ho lent £700 to the late Mr. Parker-tihrough Izard. Prior to Parksjr's Izardlsaw him with reference to tho payment .before due dato of tho amount owing by-'hini to defendant. Izard said that Parker : had sold a - business and ■wanted to discbargo -the j mortgage, and was willing to give six months' interest in ad-vance-to sijcure the discharge. Witness said ho did not wish to stand in Parker's way. Oir a l 'subsequent occasion, witness said to Izard that ho had not heard, fropi Parker, and Izard replied that he was not likely to as'Parker was dead. Witness had 110 further conversation with Izard i about tho matter until the time of his bankruptcy. On a later occasion when witness referred to Izard's bankruptcy, Izard said tliat,the amount had beon put down to Feast. and that it had nothing to do with him (defendant). "When mortgages fell duo,, he released them aud got his solicitor, to pay tho money into the bank to his credit.

Robert W. Tate, Groytown, solicitor for' the /defendant, said that; ho asked izard if he had any specific authority to receive the £700 on behalf of 'the defendant. Izard replied: "I had no . specific hut I had 'general authority to act for- Judd as his solicitor." Witness had prepared mortgages totalling £4500 for defendant, and Izard had prepared mortgages for / him aggregating £2800.. . /.

James Judd, farmer, Greytown, son of tho defendant, deposed that Izard after his bankruptcy assured liini that' 'defendant had lost only. £500, and that was not money, lent to" Parker.; ' /' '■

Louisa' Wood, daughter] of., tho .defendant, gav'o evidence that Izafcl, , after his: bankruptcy, told defendant that ho had put tho amount in question down to Feast, and defendant would not bo tlio loser.

This' closed tlio ease for, tho defendant; ■After hearing' argument! on behalf of tho defendant tho. Court adjourned until ' tliifi morning.