THE COURTS-TO-DAY.

Evening Star, Issue 6261, 10 April 1883, Page 2

THE COURTS-TO-DAY.

SUPREME COURT.-CIVIL SITTINGS.

(Before Mr Justice Williams.) National Bank op New Zealand v, David Bacon and George Turnbull.-= Claim, L 287 18s, on a dishonored promissory note. Mr Stout appeared for plaintiffs; Mr Denniston for defendants. George Francis Gee, bill-clerk at the National Bank, stated : I have seen the promissory note produced, for L 287 18s. It ib dated May 1 of last year, is drawn by DnHlson and Conyers, and is accepted by D. Bacon and G. Turnbull. Mr Bacon is a customer of the Bank, and I know his signature j I also know Mr Turnbull's signature. The bill was discounted, and the proceeds were placed to the credit of Davidson and Conyers. Mr Denniston : When does this bill first appear in the Bank's books? Will,you show me the entry ? Mr Stout urged that this evidence was not admissible. It could only be in support of the second plea. His Honor: I think, Mr Stout, the second plea being on the record, and not having been objected to, I am bound to hear and admit the evidence on the assumption at present that the plea not having been objected to is a good plea; though, in giving judgment, if the plea is not a good plea in law, the evidence given in support of it would be completely worthless. • Mr Denniston said that his point was this: That the bill was taken by the Bank and afterwards by Mr Stuart, with the full belief that it was the bill of the Dunedin, Peninsula, and Ocean Beach Railway Company. His Honor; I think if that defence is a good defence in law the evidence would be admissable. lam not prepared to say it is a good defence at present. Witness continued: The entry first appears in the register of bills discounted. The maker is treated as the Dunedin, Peninsula, and Ocean Beach Railway Company. I took it to be a renewal of a previous bill. I treated the Peninsula and Ocean Beach Company as the parties to the bill all through. The bill was discounted for Davidson and Conyers. To Mr Stout i The previous bill was paid on April 29 by Davidson and Conyers's cheque. J. R. Sinclair, solicitor: The signatures to the bill produced are those of D. Bacon and George Turnbull, the defendants in this action. Jam legi}l adviser to tW plaintiffs, and sent the letters produged to the Railway Company and to defendants respectively, demanding payment of the dishonored bill. An interval of three days elapsed between the sending of the two letters. Mr Stout; You had gained more light during the three days f Witness: Yes.

Mr Denniston opened the case for the defence by submitting that the stamping of the note with, the Company's stamp was sufficient to bind the Company and make it liable instead of the defendants, His case was that the plajntiflGs had at different times a number of bills current accepted by the Dunedin, Peninsula, and Ooean Beach Railway Company, but ultimately they all concentred Jn the promjfqsory note now in dispute, which was givf}Q as a renewal of the bill which expired on April 30. The note was drawn and accepted by two directors of the Company, Messrs Bacon and Turnbull, for and on behalf of the Company and under its sea}. the previous oill was coming due the secretary to the Company, Mj; Spring, accompanied by a member of Bayjdson and Conyers's firm, went to the Bank and asked Mr Stuart if he would renew—they stating as an inducement that the prospects of the Company were looking more favorable. Mr Stuart agreed, and Mr Spring subsequently drew up' the promissory note, but unfortunately by a mistake, and without receiving instructions so to do, he inserted the words "for and op behalf of the directors of the Company." He then took the note to Bacon and Turnbull fdr their signatures, and, having obtained them, it was nanded over to the Bank. It was not pretended by anyone for a moment that the liability was to be changed from the Company to the directors, to substitute two solvent persons for one almost insolvent .Company; but it' now naturally suited the Bank to take advantage of the blunder, and sue Bacon and Turnbull instead of the Company. John Patrick" Spring stated: I am secretary to the Dunedin, Peninsula, and Ocean Beach Railway Company. The directors in April of last year were Messrs Bacon, Turnbull, Maolean, Hooken, Hodgkins, Burt, /and M'Farlane. ■ I remember the bill of exchange* for L 287 15s being cunent," T saw Davidson and Cpnyerß, or their head clerk,'shortly befote : the bill became due, and I went with one of them to the Bank, where we saw Mr Stuart. J meiitiohed Jk> him that the 'jjrospeots; of t|w -Comjwy^wcjejim^

proving, that if he would renew the bill I thought it would be met in due course. He sai4'# would be ; ali right, and I went away toad drew vn? the new bill. I drew it, however, in tb* form of a promissory note, happening to have one of the forms in the office. I sent it to Messrs Bacon and Turnbull to get their signatures to i%«s directors of the above Company. It waa purely accidental that I put in the words "on behalf of the directors of the Company "; I received no instructions to do so. The note was handed to Davidson and Conyers. Some time after the note was dishonored I had some conversations with Mr Stuart about the Company's paying the amount of the note, and he said the Bank would probably accept something less than the full amount. -,-..■ To Mr Stout: Mr Palmer, of Davidson and Co., did not go the Bank with me when I interviewed Mr Stuart. My minute-book will show that Bacon and Turnbull were elected directors. I cannot swear'that they held sufficient shares and had attended sufficient meetings to qualify them to retain the position of directors. The seal of the Com-, pany is affixed to the note, but it is very faint, and scarcely distinguishable. My minute - book shows all the transactions of the Company. Two of the directors retire annually, and the two who retired in November, 1881, were Messrs Hodgkins and M'Farlane. Messrs Bacon and Turnbull attended a meeting of directors held in March, 1882. The seal was affixed to the note on April 27, but there was no meeting of directors at the time, I could not say if I affixed the seal before or after Mr Turnbull signed it. To Mr Denniston: I had authority from the directors to give bills on behalf of the Company. James Davidson stated: I am a member of the firm of Davidson and Conyers. I had last year a bill current accepted by the Peninsula and Ocean Beach Railway Company. It was given me in payment for work done and goods supplied. When they wished to renew the bul in April last I accompanied Mr Spring to the Bank, When Mr Stuart agreed to renew the bill. When the renewed bill was handed to us I did not notice the altered form of the bill.

George Turnbull stated: At the date mentioned I was acting as a director of the Company, and I signed the note produced. I did not intend when doing so to take the liability upon myself. I did not notice the altered form of the renewal.

David Bacon gave similar evidence. Mr Stout submitted that the evidence for the defence did not touch on the question at issue at all, He contended that firstly the Company, by its articles, could not give bills for the value of goods supplied or repairs effected, but only for money borrowed. Secondly, the Joint Stock Companies Act provided how a bill should be framed to make it binding: it must be accepted and endorsed in the name of the Company. Well, this note was not so accepted, and therefore it could not bind the Company. The seal, he submitted, would not affect the matter either one way or the other. Further, the Bank's case was that the persons whose names were Bigned to this note were the persons who were liable. [Counsel cited several cases bearing on the point.] In reply, Mr Denniston said all the parties concerned had agreed that the previous bill Bhould be renewed; that the Company should, so to Bpeak, extend its liability for a further term of three months; and for the purpose of carrying out that agreement the promissory note had been prepared. Unfortunately, however, by a mistake not of defendants, but of the Company—the wording of the bill had been altered. Even then all the parties had treated the document in the same manner as the previous bill—they looked on it as a fulfilment of the agreement. How, then, could the defendants be liable ? It was clear that the note as signed was not the bill intended to be given and received, for it contained words which it was not meant to contain and which no one noticed until after it had been dishonored. He held that it was simply a renewal, and that as such it had been looked on by all parties connected with it. The defendants simply signed the note on behalf of the Company, and were not personally liable—that mußt at least bo the equitable plea. Mr Stout submitted that the note was not a substitute for the former bill, because Davidson and Conyers had given their cheques for that bill, and therefore the note was only a substitute for their oheque. Besides, if the equitable plea were good the note was of no value, and the Bank would then be in the position of having no responsible party to recover from, and would have to wipe off the L 287 as a bad debt. Hiß Honor reserved judgment. Janet Davison v. John Morrell.— Claim, LIOO, damages for the wrongful possession of certain land at St. Kilda, and for profits arising therefrom. Mr Denniston appeared for plaintiff; Mr Macgregor for defendant, who paid LI into Court. After evidence had been taken on both aides, judgment was given for plaintiff for LlO damages and LlO 4s Bd, in addition to the sum paid in, with costs.

CITY POLICE COURT, (Before E. H. Carew, Esq., R.M.) Drunkenness. Michael Cairns and Richard .Cummins were convicted and discharged. Uttering False Bank Notes.— Robert Farmer was charged with having, on the 31st ult., feloniously and wilfully offered, uttered, and put off a note purporting to be a L 5 Union Bank note, but which was a forged one. Detective Bain prosecuted, and Mr Catamore defended.—Thomas Hamlin Lusk, accountant in the Union Bank of Australia (Dunedin branch), was called.— His Worship: Are you not beginning at the wrong end of the case ?—Detective Bain: I merely wish to Rhow that the note is a forgery.—His Worship; Tho proper way would he to begin with the passing of the note, trace it to the accuseds possession, and then, if you say it is a bad one, prove it.—Detective Bain: Very good.— I Archibald McLean, grocer's assistant to A. and J. M'Farlane, Prinoes street, stated that he knew the accused. On Saturday, March 31, about 4 p.m., accused came into the shop where witness was working. This was the first time he had seen accused in the shop. Accused purchased goods to the amount of 275. He tendered in payment a document which appeared to be a 1$ note. He said nothing until he perceived that witness hesitated about taking it. He then said "It's a good one." Witness had in the course of business frequently changed L 5 notes. In general appearance this note appeared to differ from other L 5 notes on the same bank. Witness, pould. gelgct this note from a number of Union Bank notes. It was numhered 24,325 (note produced and identified). To another shopman accused repeated the remark that the note was a good one, and then remarked to witness " You know me and my address, and if anything is wrong I will make it Eight." Witness had ascertained his name from the accused while he was in the shop. He also said that his address was five doors from the Maitland Hotel in Maitland street. then gave him hip ofcange (L 3. 13s) and he left the shop, He left the goods on the understanding that they were to be sent to the house of which he had given the address, On the evening of Monday, the 2/id inst., witness accompanied Detective Bain to the accused's house. Detective Bain asked the aocused where he got the note from. He replied that he got it from James Mulligan, a friend of his, but he did not know where this friend now was. Witness had been to the accused's house previously on that day, but, finding he was out, witness went tp the where he was working. Witness told, him that he had coifle about that note which the accused had passed on Saturday. Accused replied that he would come up to the shop and make it right. About threequartera of an hour afterwards accused called at the shop and spoke to John Urie, the manager; but witness did not hear what passed. Crossresamined j Witness hesitated because the nptp appeared to be of a lighter color than usual, and the writing seemed wgrn—faded. This was the first L 5 note he had ever hesitated about taking. He did not take its number until the Monday night followiHg, When he got the note he put it into the till, and Mr Urie took possession of it.—John Urie stated that on Monday, the 2nd inst., the accused came into the shop. Witness asked him if he had got the money. He handed witness 14, and said ••Give me the note," or words to that effect. Witness said that he had not got the note, but tljat he would send round for it, • Witness asked him where he got the note from, and he replied that he knew the party, but did not know where be <was staying. Witness thereupon remarked "It's very strange; you have got, yourself into a fine mess, and were I you I would findT the man and relieve- myself? of the responsibility." He made no reply. Aocused then went away, saying- that he ! would, retura on the next night with, the

othe pound and get the note. It was witness's duty as manager to take the money out of the till at night, to count it and take a note of it, and then to hand it to Mr Thomas Brown. He did this on the night of the 31st ult. During the afternoon his attention had, been called to the note in question by the" : last witness. At that time there was no other similar note in the till. He did not then take notice of thu number, but the note appeared to have a washed-out-, looking appearance. He would know the note by its general appearance, and by the word "limited," which is different to what it is on other notes. He did not know the number of the note. He identified one of the notes out of the three produced as being the one referred to. Its number is 24,325. When he handed the money out of the till to Mr Brown he noticed that that was the only L 5 Union Bank note taken that day. Cross-examined: Though he noticed the peculiarity of the note when he looked at it, he had no idea that it was a counterfeit note. He had aever seen the accused before the 2nd inst. He did not recollect the accused and his wife coming into the shop to pay one Sheehan's account about Christmas time.—Thomas Brown, manager of Messrs M'Farlane's Princes street shop, deposed that the last witness handed him the money taken in the shop on March 31. Witness locked it up in the safe, and on the Monday morning took it to pay in at the Colonial Bank. The money included two L 5 notes— one on the Union and one on the Colonial Bank. The teller (Mr Wilson) paid particular attention to the Union Bank L 5 note, and made a remark about it. There was a conversation regarding the note, and the bank eventually kept it, but the pay-slip was altered not to include the amount of the note. Witness did not know the note, and did not remember him as a customer. He thought he could identify the note in question, as the impression in the centre seemed faint. Out of the three notes produced witness believed that numbered 24,325 was the one referred to. John Wilson, teller in the Dunedin office of the Colonial Bank, stated that on the 2nd inst. the last witness handed him money which he wished paid into the Bank. Included in the money was what on its face purported to be a L 5 note of the Union Bank. The color of the note and the feel of the paper attracted witness's attention. He examined it, and concluded that it was not a genuine note. He did not pass it as a payment into the Bank. He did not take the number at the time, and did not know it now. He recognised it out of the three notes produced. There is a striking difference between it and the other two notes. It is. numbered U24.325. Witness handed the note to the assistant accountant (Alexander Morris), and saw him give it to the accountant (Archibald M'lntoah). Cross-examined: He could not tell the note produced from one exactly similar. Re-examined : The three notes produced are each for L 5, and are on the Union Bank. Besides U24,325 their numbers are U24.470 and Q26.190. U24.470 appears not to be a genuine note; Q26.190 appears to be a genuine note. Witness had had considerable banking experience, and a large number of Union Bank notes had passed through his hands. Archibald M'lntosh, accountant in the Colonial Bank, deposed that on the 2nd inst. his attention was directed to a note whioh Mr Morris handed to him. He examined it, and it appeared to be a photographed note. The same evening he handed the note to Mr John M'Farlane. He identified the note produoed by its general appearance as the one he referred to.—John M'Farlane, of the firm of A. and J. M'Farlane, said that his firm banked with the Colonial Bank. On the afternoon of Monday, the 2nd inst., he received from the last witness the L 5 Union Bank note in question. He handed it to Detective Bain a couple of hours afterwards. He identified the note produced as the same.—Thomas H. Lusk, accountant in the Union Bank, stated that there was a branoh of the Bank at Christchurch. He had been at least eighteen years in the Bank's service. The note U24,325 produced purported to be one for L 5 issued by the Christchurch branch. It was not a genuine one. None of their notes bear the color of that one. The note U24.470 produoed of the same branch of the Union Bank was also not a genuine note, In most respects it resembles the other forgery, but the print is not so faint. The note Q26,190 is a genuine note, and is printed on firmer and tougher paper. William Rowe Frost, photographer and photo-lithographer, gave evidence that the note Q26,190 was a bank note printed in the usual manner. The note U24,325 was a photographic reproduction on plain salted paper. It is a very bad photograph. The general appearance of the note to anyone accustomed to looking at line work showed it to be a forgery. The note U24.470 was likewise a forgery produced by photography; the figures, however, have been printed. Both notes appeared to have been formed by the same lens and from the same negative.—Emily Johnston, barmaid at Watson's Hotel, High street, stated that on Saturday, March 31, the accused with another man called at the hotel. The accused asked her for two drinks, and when she supplied him he handed her a Lftnote. Witness passed the note to Mr Watson, who was in the bar at the time, and Mr Watson handed it back to the accused, saying he would not change it. The accused said that the note was a good one and that he had got it at the Government works office. Mr Watson said that he would not change notes like that. The acoused remarked that he knew where he sot the note, and that he would take it back and get it changed there. The man who was with the accused then J aid for the two drinks, and they left.— ohn Watson, hotelkeeper, gave corrobarative evidence. —The prisoner was committed for trial.

Larceny,— WiUiam Symms alias George Murphy alias WUliam Sell alias Charles Sweeney alias James John Gardner was charged with having at Christchurch, on February 17, 18852, stolen two HQQ-notes, two LSO-notes, three LIQ-notes, and three Ll -notes on the Bank of New Zealand, four L2Q-notes and one LlO-note on the Bank of New South Wales, two L 5 and two Ll-notes on the Union Bank of Australia, the property of Henry Pleißter. Detective Bain asked for a remand in this case until Thursday, to permit of the warrant being received from Christchurpb, and also to admit of a witness coming down from that place to identify the prisoner. The prisoner was arrested in Runedin a few days ago for conspiring to defraud by means of the "matchbox trick," and the police had reason to believe that he answered to the description of a person "wanted** on the charge now laid,—Mr Qatamore, for the prisoner, offering no opposition, the remand was granted,