SUPREME COURT.

Dominion, Volume 1, Issue 2631, 5 August 1908, Page 2

SUPREME COURT.

CIVIL SITTINGS. AFTERMATH OF. THE ELLIOTT FRAUDS. JAMES J. AMES v. ELIZABETH MILSOM. CLAIM FOR RETURN OF MONEYS. The. hearing of the case between James John Ames, accountant at tho City Council offices (plaintiff), and Elizabeth Milsom, face specialist_ (defendant), was continued before Mr. Justice Chapman yesterday. Plaintiff claimed from defendant £370 and interest being the amount- of deposit paid to Albert Clarerfce Elliott in connection with the purchase of'a property in Hawker Street. Tho defence to the action was that defendant did not authorise Elliott to make the contract nor had she received any moneys paid in respect of the alleged purchase. Mr. Johnston (with 1 him' Mr. Rothenburg) appeared on behalf of tho plaintiff, and Mr,. Gray for the defendant. ' DEFENDANT EXAMINED. The defendant was cross-examined at length by Mr. Johnston. She stated that she had frequently found part of tho money required for others to go into speculations negotiated by Elliott. Mr. Johnston: Is it not a fact that you lent the money to Elliott?—Witness: For a certain time, I surmose. Did you wish Elliott to be prosecuted?— Not as far as I was concerned. Is it not a fact that you were, unwilling that Elliott should.be prosecuted?— Not unwilling. v At the trial of Elliott two < persons gave evidence that they entered into negotiations with Elliott with a view to the purchase of your property?— That is so. Well, you said at the trial you didn't know of any such negotiations?—Elliott mentioned no names to me, and I had forgotten. . . Before Elliott was tried did you destroy any papers relating to business transactions between him and yourself ?—None at all. _ How much did you pay for the property m question?—£Boo. . Did you not buy to sell immediately at a profit.--No, I bought because I thought it was a good investment, and I would make 13 per cent. . How much did you tell Elliott you wanted property?—£9so. You had implicit confidence in Elliott?— Yes, I had. ' And you advanced him considerable sums of were. What instructions did you give him about the moneys ? —He told me that some of the money was to buy land and that in a certain time the land would be sold by a syndicato and I'would get my profit. Ho would givo me post-dated chpques in return for my own cheques.

H ,s : Did any of the transactions C ,9? 1 S 1 ,9. Witness: Yes, but assoon as they did_Elliott>wanted the money for other transactions.

Ilis Honour: I see that you advanced three sums ot £1000 besides blualler sums between' December 16 and February 21, and that £1300 came back to you on ■ February

Mr. Johnston: What amount of profit did you receive out of the transactions?— Witness: That would depend; Can you give details of properties into winch your money went?— One at Silverstream, but I don't who were in the syndicate which obtained the use of the £1000 which !• advanced.

Did you receive your money back?—l think l did in that instance.

Any other properties in the same position ? les; ono at- Khandallah and another which was being purchased by one-Scotland. . _ Did you : at any time arrange the rate of interest that was to be paid to you?—No, but I was told how much profit I would make.

Then you wipe, lending money.-,to Elliott all the timo?—l "suppose I"was. " "When I advanced tho money in connection with the Silverstreniri property" Elliott'-told ;: me I would- {jet a profit';b'f £300. : rwas not to' get any money back until the properties were sold. v.

His Honour: That was a very hopeful way of looking at, tilings. ... So long as-land was rising, in value at the rate of 50: per .cent; per annum I suppose it-was all right. I don't think defendant -knew the exact nature of her .dealings with Elliott.—'Witness: I did not. ■

His Honour (to Mr. Johnston): What is the purpose of this cross-examination' with reference to other properties? You are not discrediting her?— Mr. Johnston.: We are afraid that Elliott will give evidence- in sup-: port of her case,, because of the: extreme kindness shown by . her to him. Mr. Gray: You have no right to assume what any witness will say . His Honour: I don't know that there was any leniency. Certain matters came before the Court to enable it to measure the punishment which should bo imposed on Elliott.' I don't see how lie ought to be grateful to anybody.

To witness: Is this not the true position with reference to-the Silverstream property? You advanced Elliott £1000, and lie in return, ■gave you a post-dated cheque for £1300?—' Witness: That is so.

Before Ames saw you you were pressing Elliott for the return of moneys ?—Yes. Did you/ask him. about tho £370 duo to you from Ames?—lt never occurred to me. Owing to Elliott's illness, I thought that the matter was to stand over.

Did you not suspect Elliott' when he asked you to endorse Ames's choque?—Not' at all. When-lie explained matters I thought it was all right!

What commission was Elliott to get?—He said ho would not take any if I got £950 fgr the property.

■ Re-examined by Mr. Gray, defendant stated' that the moneys' which she advanced ito Elliott were for the accommodation of other people. The moneys were,- with the exception of one amount, the result of her industry ior 14 years. ELLIOTT GIVES EVIDENCE. The next witness was Albert Clarence Elliott, who was a partner in the firm of Elliott and Duncan. Mr. Gray: What was the nature of the transactions between defendant and yourself ?—I would get money from 1 defendant allegedly to loan to people from whom I would ■obtain big interest: In many .instances the transactions were genuine, and in some they were not. In most cases I would' give her a post-dated cliequo of my own for tho amount I had received from her plus tho amount I had arranged to give her for tho accommodation.

Continuing, witness stated that-he remembered defendant lending him at least two sums of £1000, and refunding to her £1300 on account of one of the transactions. Defendant had 6very confidence in him and so had'other people. He had no difficulty in getting money from defendant or anybody else. Witness had nothing to do with the sale of the property in question to defendant. Almost from the time she bought it he strongly advised her to re-sell. Her instructions "were to submit offers to her. She wanted £950

if she could get it. He could not claim to have had instructions to accept less than £950 or sign tho contract with Ames on behalf of defendant. When he sold tho property to Ames he told him that if he purchased for £900 he could re-sell within a month at an advanced figure. He told defendant when _ ho asked her to endorse tho chequo that it would be held by liihi' as agent between plaintiff and 'defendant as a guarantee of the bona fides of the parties. He nover told defendant that lie had placed the cheque to his account.' Ho was in such financial straits that directly ho had tho handling of the chequo ho could not for anything resist the temptation.of using it. lie had tided over so many difficulties,and was so optimistic that he thought lie would bo able to tide over that one. His intention was actually to sell tho house to plaintiff and actually to get a transfer mado out by tho -'Stli and pay over to defendant the amount dim to her. COUNSEL'S ADDRESSES. Mr. Johnston, on behalf of tho plaintiff, submitted that tho endorsement of-the cheque was an approval of an expressed contract, and was also'a ratification of tho contract. Plaintiff was an innocent-party and ho would, for the moment, assume tha.t doI'endnnt was in the same position. The question then arose: Where two innocent persons suffered by the fraud of, a third, which.

flI,V?I to ,P art,llG Penalty? Ho contended n'rc 1 rt Kuist ilold that i(i w » s the Wrt^\hm1 y '. f ?i r th ° defendant, said that the itv to (If H at merely, had authors nht intr afc 950 ' and that 119 sil« ® utl 'onscd to make a contract for aL. Judgment should, he contended bo en Ml Against _ plaintiff on the ground'that » m the following matters:— (1; i" nanding over the whole of the purSSV° whom he had already property. a 6 e »t a re-sale of th£ to ( render P thn i "l' i ' t int ° the ; Power. of Elliott -tesas&y •"««*. (4) In''Hot* taking care thof-

JUDGMENT RESERVED. Hn H „ is t onoi ;r intimated that he would take mo to consider his judgment. CLAIM ON PROMISSORY NOTE. AMICABLY SETTLED. .: Tho case of Alexander Dunn, solicitor, Welingtou v. Thomas P. Lyons, caterer, Weiniigton, was mentioned before Mr. Justice Cooper yesterday. '■ :• Y, • Mr. Neilson appeared on behalf* of the Plaintiff, and Mr. Bunny for tho defendant. ■ iiiis was a claim for £100 and. interest on o promissory, notes; It was' announced by counsel for the plaintiff that the action had been settled on the following terms:—Jiulgiiient should be ontered by consent for tho plaintiff for the full amount of the claim.together with the. interest. and costs; tho. amount of the judgment to bo paid at tho rato of £10 per month; : . QUESTIONS UNDER- A WILL. .. Certaiiv matters under the will of the late Donald Manson, of Palmerston'-North, were considered by Mr. Justice Cooper yesterday. ihe parties were Hugh Mackenzie, professor/at Victoria College, and Ertiost-T. D. iiell, solicitor (the trustees under the will),' v. John Donald Manson, of' Auckland, and others. Questions involved in the summons were whether certain mortgage tax and. certain other expenses were to be paid out of the testator's residuary estate, or whether they were to be paid out of the capital/or income> of a certain fund of £6000 left under tho will to certain of the testator's relatives. •

- An order, was made that the only commission to be charged against the £8000 shall be whatever percentage is fixed by the order: to be paid to,the trustee upon income; the income of the £8000 to bear that percentage; the percentage allowed for realisatioa is; to be paid out of the residuary estate; costs of tho parties to the summons to be taxed by the registrar as between solicitor and client and to como out of the residuary estate. Mr. Myers appeared on behalf of the plaintiffs (the trustees under the will), and 3lr. Tupp for A. B. Mansou (one of the defendants).'