Sheath v. Blythe.

Daily Telegraph (Napier), Issue 6135, 29 April 1891, Page 3

Sheath v. Blythe.

The following is the full text of Mr Jusf"\ tice Edwards's judgment in the above appeal case:— . , This was an appeal from a decision of Captain Preece, R.M., Napier. The appellant is a solicitor, and the respondent employed him in the preparation of a mortgage from a native, Hapuku, to himself. The appellant had a lien upon the native's title deed, and to enable the mortgage to be given as a first charge it was arranged that, to release the hen, the respondent should pay off _ th S- amount owing to the appellant, adding it to the amount to be secured by the mortgage to himself- This waß accordingly done, and the * mortgage executed. When the *_ mortgage came bofore the Trust Commissioner he refused hia certificate on the ground that it provided for farther advances, and that he had to be satisfied that the whole consideration h_ been actually paid. It was decided to take counsel's opinion as to the advisability of appealing against this decieion but in doing so the time for appealing was allowed to pass. The respondent then brought this action against the appellant to recover the sum paid to discharge his hen, and the M igistrate gave judgment for the respondent on the grounds mentioned in tho iudVment of this Court reported below. Mr Chapman, for the appelant, was stopped by His Honor, who, af ;er hearing Mr Gully for the respondent, delivered judgment as follows ■—I have no doubt whatever about the matter The respondent based his claim in the Court below on two grounds, the first that of negligence ; the second, ttet of failure of consideration. I am unabie to see anything in the statement of claim or in tho findings of the Magistrate to justify me in concluding that the appellant ever contracted to give a valid mortgage lam gatisfied, looking at the whoha tacts, that Sere was no such contract. That being so , T do not think I ought to remit the case for the Masristrate to find something which would be inconsistent with what he has already found. If there were any ambiguity 1 should, of course, remit, but I think that •{here U none. Mr Gully relies upon the second paragraph in the particulars of claim Xh toads as follows :-" That it was arranged and agreed upon between the plaintiff, 8 defendant, and the said James GrmSa_ and the said Te One Hapuku, that the said Te One Hapuku should execute _ favor of the plaintiff a mortgage over the share, estate and interest of the said Te One Hapuku _ the Koparakore Block to secure the sums of money owing by the said To One Hapuku „ the plaintiff, the defendant and the said James Grindell, and that the plaintiff should nay the-defendant and the said James Grindell the sums owing by the said _ One Hapuku to them respectively and on the plaintiff being secured under the said mort- , _. K e " Then there is also the clause in the Le m which the Magistrate states that the respondent agreed to pay the sum of £73 os 6d'to the appellant on a mortgage over the interest of the said Te One Hapuku being executed to secure the respondent. It is aaid that these paragraphs together amount to an allegation by respondent and a bind, V in* by the Magistrate of a contract oy the '-appellant to procure a valid mortgage I am unable to agree. I think that if there was any contract it was a °on jraot to net a proper mortgage executed. This the fppellant did. Owing to a misconception of the Magistrate acting in another capacity the Trust Commissioner a certificate was not given. If an appeal had been properly prosecuted the certificate would Lye been allowed The appeal was not prosecuted, and .the mortgage is valueless. All that may forma ground for an action . against the appellant for negligence, but IL that I cannot deal with now On that m point the Magistrate has decided against V the respondent. He has entered a nonsuit, and there is no cross appeal The action might have been presented on the pound..either of fradulent misrepresenta- __ or of negligence and the respondent might possibly have been able to __ a judgment on either of thesegrounds tat to cannot hold it upon the present around. Before the mortgage was executed : KS necessary to take steps to have he li«m natisfied The consideration was quite dearifthegivingupof the lien. _ The lien was glen up and the mortgage .18 actually in the possession of the respondent. If the loss has occurred to the respondent in consequence of any breach of dX by the appellant, then it is satisfactory toSe that it is still open to the respondent to proceed again on that ground He has _oK been non-suited, and he may go before the Magistrate again on thatjpoin when he may possibly convince him, or if ne_W there will further be open to him aproper y appealtothisCourt. The appeal I is allowed with costß £i 7s.