BACKING A BILL

Dominion, Volume 21, Issue 8, 4 October 1927, Page 11

BACKING A BILL

GISBORNE APPEAL CASE

Arguing his own case, William Douglas Lysuar appeared before the Court of Appeal yesterday, seeking a reversal of a Gisborne decision of Mr. Justice Ostler. On the Bench were Mr. Justice Sim, Mr. Justice Herdman, Air. Justice Recd and Mr. Justice Adams. ’ln the Supreme Court at Gisborne, Dorothy Valentino Burnard had proceeded against William Douglas Lysnar and George Henry Lysnar for .£3161 and interest, which, it was alleged, was due to her as the balance upon a security over chattels which had been transferred to her. The facts, as slated, were that a firm. Bennett and Sherratt, ■ supplied goods to G. IT. Lysnar upon his promissory notes endorsed by W. D. Lysnar. The last named bad received no value for his endorsements, but was purely an accommodating party, and this was known to G. IL Bennett, a member of the firm. .1 he firm was dissolved and Bennett became the holder in duo course of (ho notes. In Octolwr. 1923, the notes became overdue and Bennett began two actions in the Supreme Court against the Lysnars. Bennett’s solicitors were Burnard ami Bull, the former being the husband ol tho plaintiff, Dorothy Valentine Bernard. These actions bad not come to trial, but were compromised by Hui defendants joining in executing a bill of sale over some chattels owned by W D. Lysnar to secure £5280, with interest, to Bennett. This was to bo paid by December 20, 1926, or instalments of .£lOOO to bo paid, in January, 1924, 1925 and 1926, in which case the balance was to bo paid in January, 1927. A first instalment of .£lOOO was paid, but the second was n .°L interest was allowed to fall into arrear. After negotiations J. 11. Lysnar paid off a mortgage for costs and paid over .£1750, of the amount owing under a bill of sale. Burnard had shown the balance due as £3165 In Decenibcr. 1926, £3461 was due, and Hus, with interest, was the basis of the claim. The day befq.ro tearing G. H. Lysnar confessed judgment for £333;,. W. D. Lysnar submitted, as a defence, that to the knowledge of the plaintiff he was a surety only between himself and bis brother, and that, as time was given to his brother, ami tho contract varied without his consent he was discharged from any further liability under it. His Honour gave judgment against both tho defendants stating that if one ol them chose to allow tho other to negotiate for both and agree to an appropriation he was hound thereby. Burnard’s evidence that he did not Know that the money was being raised on W. D. Lysnar’s guarantee being accepted by the Court. Against this decision Lysnar appealed, submitting that any knowledge possessed by Bennett must bo ascribed to Airs! Burnard. r . Air. Justice Sim: You don t seem to have raised before Air. Justice Ostler this contention which you now make that any knowledge possessed by Bennett must be ascribed to Burnard. Appellant: I am quite sure that if it had been, Your Honours would not have been troubled with the case. Mr. Justice Sim: Why didn t you I didn’t think that it came into the picture. Counsel was seated behind me, I was making notes, and without my noticing he sat down, and when I» looked up His Honour was leaving the Bench. I had no right of reply because no cases had been cited. Consequently the matter was not argued. Mr. R. Kennedy, with him Mr. H. N. Bull, of Gisborne, appeared tor Airs. Burnard. The Court reserved its decision.