SUPREME COURT.

Dominion, Volume 5, Issue 1362, 13 February 1912, Page 3

SUPREME COURT.

jj MORTGAGED TE MOMI SHARES, 3 ~~~~~ I WHAT WAS THE VALUE? 'i A rather involved action was that j- which came before the Chief Justice (Sir * Hobsrt Stout) in the Supreme Court yesii terday, wherein Fleming Ross, account- \ ant, of Wellington, proceeded against Jame3 Drj-idale, sawmiller, of Xircnlia, I to recuver .£SOO damages alleged to lmvo 3 been sustained, and release on memoranB uiim of mortgage. £ Mr. A. B. Atkinson, with him Mr. E. g| C. Levvey, appeared for Ross, aud Mr. 3 E. Page for Urysdale. 5] It was irt out in the statement of S. claim that, on Juno 18, 1907, Fleming (i Ross, being indebted to James Drysdalp i; in the sum of JE3OO, rnurtgaged to"l)rys- £ dale certain shares in tho To Momi Land 6 Company, Ltd., and ■ duly delivered to I him the agreement to mortgage, together A with the certiucato of tho shares. Subscfi juently it was agrorxl ljetween the parties f that in hcu of this agreement, Eoy « should givp to Drysdalo a second mortgage I over certain land at Island Bay to secure I m s ! i m ! and that the defendant $ Iu 0 • •' shoul(I execute a release of I the original agreement and return it to I Ross, along with certificate of the shares. I On August 21, 1908, Boss executed a % memorandum of mortgago of the land I \° Drpdale, and registered it and ins formed Drysdalp thereof. Further, Ross & offered to hand over tho memorandum U of mortgago to Dn-sdale in exchange for S t' lo agreomoat and the share certificate i Dvysdale , hoivever, refused to release the i agreement or hand over tho certificate, h ?, Koss a c =°«lingly refused to deliver v the memorandum of mortgage. Drvsdale ,s has since repeatedly boon requested to '< execute and deliver a release either of the y memorandum of mortgage of (lie land or I o. the agreement to mortgage tlic share ■£ Imt he has relused-to do so. \l the time 'A (if IJoss-s offer and rcf|ii.;st the Te .Momi j3 bud shares were readily saleable, and % \ °« c , Oll '/I •■""' would have- sold the same if ll lie had been free to do so and tlms U relieved himself from all futni'e liabili § Hie sharp* have now depredated in value I >J not ess than JXm, and Ross still con. 3 dimes liable lor future calls to tin'l amount of JMM. He, therefore, a«k«l I judgment Jor (1) a release of tho niemor. jS ntidiim ,ol mortgage and delivery of it I U , ) or, :n the alternative, a release of $ the agreement to mortgage, and (3) .£SOO m damages. in defence, Drysdale gave a general iliMiia! fo tho allocations made by l( 0S s and declared that the second niortga"<> win dr.v.vn up tho result of repealed rif/iifl.*b by .Dry-dale for further cnlliireu\l security. Jloreover, it was contended that, if it had been ni-rceil that Drysdale should excfiite a rclea.-e of the mont to inortgogp held bv him. aud retuxn it and tbe shn.re certificati> to Ross, snth acrcemciit lad bcea waijed lj Eos'j

action in requesting Drysdalo to pay the To Mnmi calls, and by'llrvsdnlp's ncliiui in iicccili ig lo thai, ie:|ui ; s|. A counter-claim was filed In renner lhi> ilobt of .I'.'IOO, wilh unpaid interest nt (i per cent, from June 18, I'.IIIH Evidence, was called in support of plaintiff s case, after which Mr. l'ago raised io following non-suit pmuls: (I) Thai the action, being an application in equilablo jurisdiction lo release ireurilies. should luivo been brought imiiiedinlelv. inslead of which there had been a delay ot over Iwo years: (i!> that, under Scclioii ■ of (he slnliilo of frauds, the ngrcemenl, being an agreement in regiud lo laud should h,,ve Iwn in wriling and signed. Mis Honour reserved decision mi Iliese points, and adjourned Ilie ea-e until " p.m. to-diiy. QUESTION. IN REGARD TO BANKRITTCV. A question, having refcrenco to tho bankruptcy of Teresa Uriggs, < as raised before the Chief Justice (Sir Robert htoufi in (he Supreme Court \csterdav, when J. n. and C. J. S. llarcourt, creditors, applied to liavo vKtal in them certain properly in the Jfarlljoroiigh district belonging (o (he hankrupt. r , i' , ii Dalziell appeared for ,T. B. and nn' ■$' , 11 ". rt ' 01Irt . - Mr - M. Myers for tho Official Assignee, and Mr. E.'.l. Fitzgihbon lor Teresa Briggs, who objected to the application. Thoro were certain properties en which tho bankrupt, had borrowed monev from J. JJ. and C. .1. S. llarcouri, .nil in a ormer action, tho Chief Jusliee decided hat the OfheiaJ Assignee was within his light in disclaiming these, and tlso that them" "° sln,1(li "B '" vp K aril t0 Vesterday after Mr. Myers had briefly explained the position Miat (ho Official look up in (lie mailer. Mr. ritzgibboii stated (hat (he property in question (a hotel) had improved' in value since the election, and would ieali<Hj morn than .enough (o pay Ifarcourts. ' Mr. Dalziell said his clients would be prepared to wait a monlli or two for a settlement and would even take a little less than they were entitled to. Jlis Honour remarked that they should not have b take less. He suggested an adm"d" m t0 onal,lc arr ''>iigf>nients to be Subsequently t!, O following order was agreed to, subject to Mr. Fi( z gibbo..'s consulting his client, who is at Ilokitika:ihe disclaimer to be upheld, subject to an allowance of a month for payment of the amount duo to Harcourts. when they w 11 assign to leresa Briggs or her nominee.