SUPREME COURT.—IN BANCO.

Evening Star, Issue 7747, 19 October 1888, Page 2

SUPREME COURT.—IN BANCO.

Wednesday, October 17.

(Before His Honor Mr Justice Williams.) Matheson v. Aitkev. —Argument herein wast concluded at 5 p.m., and His Honor gave judgment as follows :—" With respect to the defences of infancy and of the statute of limitations, of which due notice was given in the Court below, but upon which the Magistrate did not decide, deeming it unnecessary to dq so, it is clear that this Court, having the materials before it, can decide the points of law which those defences raise. That is settled by the authority of Chaplin and Knight, fln the question of Infancy it appears clear that the promissory note was given by Mrs Aitken, then Miss Cameron, when she was an infant, and the case of Williamson and Watt shews that the promissory note of an infant, even for necessaries, is void. That seems also - from Bylls on Bills to be the law in America and France. The plaintiff therefore could not recover in respect to that' promissory note or the interest claimed upon it. With reßpect to the statute of limitations, J think also it is clear that if the wife could avail herself of the statute the husband could. It would be altogether unreasonable to suppose that a husband's liability should continue in respect toja wife's debt, when the liability of his wife herself was extinguished by lapse of time. So far, therefore, as time is alleged in respect to the first item in the particulars of claim, the defence on that ground is sustained. That, therefore, affects a sum of LSO, and -I think, taking into consideration the fact that in respect to |the particulars of claim the Magistrate has decided that "LI a week and not 25s a week is a reasonable charge for board and lodging, the sum of about LSO is left in question, and that LSO was incurred by the defendant's wife some years before he married her. The claim that is set up against the defendant is made under section IS of the Married \yoman's Property Act, 1884, and is only sustainable against him if it be proved that he has acquired or become' entitled to property from . or through his wife, and, of course, only to the extent of the Jiroperty so acquired. The plaintiff, thereore, has to prove to the satisfaction of the Magistrate, as the judge of fact, that the defendant did so acquire property through his wife to the amount of the debt sued for. Now it is not because this Court may be of opinion that the Magistrate might have oome to a different conclusion, or even because this Court might' consider that under the circumstances it would have been more reasonable that the Magistrate should have come to 'a different conclusion, that the decision of the Magistrate on a question of fact should be over-ruled. It is only if it appear clearly that from any view of the facts the Magistrate's decision cannot be sustained that his decision could be reversed, for the appeal is on matter of law only and not on matter of fact, and it is only when from any view of the facts there is only one proper inference that this Court can interfere, because in that case the question is not one of fact, but of law only. Now I think that in the present oase the Magistrate was justified in taking the view that he did, that the husband did not acquire property through his wife. In the first place, there is evidence from which a jury or a judge of fact might conclude that the interest of Mrs Aitken under her uncle's will had been invested on mortgage, and that it was problematical whether, that mortgage when realised would realise its nominal amount. The Magistrate probably looked at the evidence from his local knowledge, and though I do not knovf; that that can be very well imported into aiase, I am afraid it often is the case in Southland that mortgages have not realised their nominal amounts. ; That being so, we have these two documents D and E and the other communications, not with both of the executors but with one executor only, Mr D. L. Matheson. Mrs Aitken asks practically in exhibit D partly for an advance on the seourity of Mi D. L. Matheson, and partly that Mr D. L. Matheson will render himself personally liable for her husband's bills, and will meet these bills out of moneys coming to her from the estate, which, according to the same document,

have been invested on mortgage. Exhibit E is also a request to advance money on the like security, and in that she guarantees that if the mortgaged properties do not realise the amount of the mortgage she will indemnify Mr D. L. Matheson from any loss. Mr D. L. Matheson says ' the amount which the real property sold for has not yet been received, and exhibit E, dated 13th April, 1887, which was not written with reference to this action, seems to show that that is really the faot. Then the promissory notes which are referred to in exhibit D were paid by D. L. Matheson. The Magistrate finds that the promissory notes were paid by Matheson, who now holds them. If the holder pays the promissory notes there is nothing I know of to prevent him suing the maker, and the Magistrate might legitimately come to the conclusion that Aitken I was still liable on these notes. Matheson says : 'lt was iny money that was paid on Guthrie's bills. I have no fund at present I can charge these amounts to. I paid the money out of the estate, but not out of Miss Cameron's share.' If that be so, the state of things is this, and this must be I suppose what the Magistrate thought was the state of things: That up to the present moment the mortgages on which Miss Cameron's share has been invested have not been realisod ; that Mr D. L. Matheson had got security over them from her, for which he held promissory notes, Aitken still remaining liable on those promissory notes. If that be so it is diffioult to see how Aitken has received the amount which he received for the discounting of these promissory notes as property belonging to his wife. If it be the case that this mortgage falls considerably short of the nominal amount, it seems to me to be quite upon the cards that he may be sued for and may possibly have to pay these promissory notes. As i say, the Magistrate might possibly have taken a different view, but there is nothing tairly to prevent him taking the view he did, if he gave full weight to the book which has been talked about, and the contents of which he has set out in the case. The capo might possibly have been better stated, but Hie only affidavit as to the fact of its being defective is an affidavit on the subject of the book, and we have all that, and what the book contained is set out. On the whole, I am of opinion that there is no sufficient reason for disturbing the Magistrate's decision. Appeal dismissed with costs, LlO 10s."