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THE COURTS.—TO-DAY., Issue 7938, 20 June 1889
SUPREME COURT—CIVIL SITTINGS.
(Before His Honor Mr Justice Williams and a speoial jury of twelve.)
Bank op New Zealand v. Wiisos, Taine, and Co.—ln this ease the bank claims L 2.507 los 1 Id, due on an overdraft and on bills. There is also a cross-action in which the defendants claim from the m.nk LIO.OOO damages for injury to their credit through the bank's having dishonored their cheques for wool bought while their wool account was iu funds. The two actions were, for the sake of convenience, heard as one.
Mr Haggitt, with him Mr F. R, Chapman, appeared for the bank ; Sir R. Stout, with him Mr J. Macgregor, for Wilson, Taine, and Co.
The witness Andrew Ferguson Mackay, in the "course of his cross-examination by Sir R. Stout, said that on December 18 Taine himself reduced the limit of the firm's indebtedness from L 2.000 to L 1.850. If he had previously sworn that the limit ia January and February was L 2.000 it was because he was confused by counsel's crossexamination. He had during the present examination said some new things—things that he had not sworn at the Invercargill hearing. All the limit the firm asked for on opening the account was L3OO, and he thought they came and asked for further advances. They spoke so hopefully of their wool sales that he did not mind their getting a little more than the L3OO. The reason he honored the firm's cheques after the wool sales to the 7th of February was that he believed their statements about the wool account to be true—that after the sales the account would be to the bank's satisfaction. He thought that when all the wool money came in they would be able to reduce their account. It was not true, as stated by Messrs Wilson and Taine, that the arrangement was that a No. 3 account was to be opened, an advance made upon it, the wool cheques paid in to it, the firm's wool clients paid for their wool, and the balance paid in to No. 1 account, Witness drew the pen through the words "wool account" against Messrs Wilson, Taine, and Co.'s No. 3 account in the bank'e ledger, because there was nothing in the arrangement on the subject. Witness thought the words were struck out on or before the 13th February. He thought they were struck out before the letter of the 13th was written.
Re-examined by Mr Haggitt: The first time witness knew the words "wool account" were in the ledger was when he struck them out. The reason he struck them out was that they formed no part of the opening of the account. It was not true that he waited till Whittingham Bros.' and Instone's cheque came in to "collar" it before he stopped the payment of Wilson, Taine, and Co.'s cheques. John Neil M'Callum Campbell, ledgerkeeper in the Bank of New Zealand at : Invercargill, stated that the first he knew of the opening of Wilson, Taine, and Co.'s No. 3 account was that Taine, who had evidently been seeing the manager, remarked to him that he was opening a No. 3 or wool account. When he made these remarks witness thought he was paying into the account, and not being very busy he supposed a,t the time he headed up a page in the ledger to
save time when the credit would come up from the toller. Witness had at that time not received any instructions from Mackay about the new No. 3 account. The manager told him either that afternoon or on the next day that there was a cheque of Wilson, Taine, and Co.'s for L3OO on the No. 3 account to be paid. This cheque came in one or two days afterwards, and it was paid and entered under the head of the account. It Wis possible for Mackay to have looked at the account without witness's knowledge, but so far a 9 witness knew he did not look at it until he struck out the words "wool account." Witness was present when Mackay struck out the words. Witness believed fiat to have been dono on or before the 13th February, and thought he stated so in his former evidence, but was not sure as to the exact date. Witness struck out the words " wool account" in the copy of the account furnished to Wilson, Taine, and Co. The words "wool account" appeared on two pages of the ledger, and witness struck them out of the Becond page. He could not tell the date that he headed up the second page of the ledger, but it might have been any day before the first page was filled. To Sir R. Stout: The copy of the account furnished to Wilson, Taine, and Co. was not concluded until the transactions of the 13th February were completed. After he had made the copy account out ho might have left it on the accountant's desk. If he had said in April that he had left the copy account on the accountant's desk he would not contradict it now. He did not remember if the lines were ruled though the words "wool account" while tho espy acconnt was lying on the accountant's desk. Witness received' no instructions from Mackay with regard to opening the No. 3 account further than that a cheque would be presented for L3OO. This concluded the case for the bank.
Mr Haggitt, in addressing the jury, said that they would have gathered the nature of the case, and that the main question for thsm to consider was whether tho agreement nude between Wilnon, Taine, and Co. and the bank waß such as the defendants alleged itwas, or whether, on the other hand, it Ttaa such aa the bank alleged. There was involved a distinct question of the credibility of the witnesses on the one side pr the other, aud in considering this question it was most important for them to note the respective positions of the parties at the time the agreement was made. Counsel would submit that if at the time defendants' ordinary account was in credit, or was even in no more than a state that was satisfactory to the bank, there would be no difficulty in understanding the bank's being willing to make such an arrangement as defendants alleged was made ; but the fact was that at the time the bank was utterly dissatisfied with the position of defendant's account, as was shown by the correspondence that had been read, so that it was altogether improbable that the bank would make any such arrangement. The bank was seeking to better the condition of defendants' account, and yet defendants alleged that the bank entered into an arrangement the only result of which could bo to make the condition of the account worse ! The first element for the jury to consider was, then, whother under the circumstances the bank wa3 likely to make such an arrangement. Then in considering the credibility of the parties their respective conduct must havo a very considerable effect on the mindß of the inry in determining the amount of credence to be attached to their evidenoe. They muat consider whether the defendants had dealt in a fair, open, and above-board manner. The arrangement whatever it was—was made practically between Taine and Mackay, and the question as to what it was therefore rested between those two gentlemen. In negotiating for the opening of the No. 3 account, counsel submitted, both Wilson and Taine were guilty of misrepresentations to the banker, which induced the latter to open the account; if the firm had stated the actual facts of their position, aa they should have done, the account would never have been openod. He would ask the jury to consider also the balancesheet submitted by the defendants to tho bank on December 7or 8. When a banker askß a constituent for an account of the position of his affairs he expects to got an accurate and true one—one on whioh he can rely. He is certainly entitled to something more than that which the defendants furnished in this instance. Their balancesheet showed that they had a credit balance of L 2,472 over and above all liabilities ; but in making up that statement they had taken credit for cash and bills, amounting to L 750, paid in that verv day. They also put down in the balance-sheet, in order to swell tho assets side, such trifles aa office furniture, safe, etc., which they valued at LSO. They set down their liability to tho bank at L 2,908 and their outside liability at L2OO ; hut they omitted to include a liability of L 2.000 on a covenant entered into in connection with one Gnacott, and their only excuse wa3 that the bank knew of this liability ! That was their only exeuse for omitting such a liability from a balance-sheet professing to show their true position. Sir Robert Stout replied, and His Honor gummed up. The jury had retired and were considering their verdict aa we went to press. RESIDENT MAGISTRATE'S COURT, (3efore Messrs I. Green and W. Wright, J.P.a.) James Kirk v. Thomas Robertson.— Claim, LI Is, on a judgment summons. Mr Stamper appeared for the plaintiff. Defendant, who did not appear, was ordered to pay the amount claimed within seven days; failing payment two days' imprisonment. Abraham Posnanski v. E. Wilde.—Claim, Ll4 0s Gd, on a judgment summons.—Defendant ordered to pay amount claimed in weekly instalments of 10s, in default fourteen days' imprisonment. Denniston and others (assignees of .the book debts of Mercer Bros.) v. Joseph Smith.—Claim, LB, for goods supplied. Mr Finch appeared for plaintiffs, for whom judgment was given for the amount claimed. Same v. John Edwards (Hindon).—Claim, L 4 63 lOd. Mr Finch for plaintiffs.-Judg-ment by default. Same v. J. M'Askill (Gore).-Claim, Ll2 33 Bd. Mr Finch for plaintiff?.—Judgment by default. Same v. Allan Cowan.—Claim, LI 7s Id. Mr Finch for plaintiffs.—Judgment by default.
National Bank of New Zealand v. George Jenour and C. J. Fosberg.—Claim, LIS 2s, on a dishonored promissory note. Mr Thornton appeared for the plaintiff company ; Mr S. Solomon for defendants. After plaintiffs case had been stated, Mr Solomon submitted that the Court had no jurisdiction, and that, should they give judgment for the plaintiff company, the judgment could be upset in the Supreme Court. He oited the 19th section of the Resident Magistrates Act in support of hiß statement, because the cause of action arose in Cromwell, and the bill was given in Cromwell.—The Bench decided that they had the necessary jurisdiction, and gave judgment for the plaintiff company for the amount claimed, with costs.
CITY POLICE COURT.
(Before E. H. Carew, Esq., R.M.)
Neglected Children.— JuUa Dunn (ten years and fivo months) and John Dunn (seven years and three months) were brought before the Court as having no means of subsistence, the father being dead and the mother in indigent circumstances.—The mother said that *he had been receiving 7? 6d per week from the Institution, but this was stopped a fortnight ago. Had the allowance been continued she could have kept the children.—His Worship said he thought that as a matter of economy it would be better for the Benevolent Trustees to deal with the case. However, the matter would be allowed to stand over until nejet Thursday. The Morxi>t.to> t Tramway Case.— V. R. Eunson v. Robert Dkktion was struck out at Mr flalliwell's request, there being no appearance of the parties. MAIKTEKANCK.—Bright v. Briyht was adjourned to the 27th inst. Stealing Beer. Bote Greenfield was charged with stealing a bottle of beer, value Is, the property of Catherine Crawford.—Aocused pleaded guilty, but said that she was sorry for it, and if let off would sign the pledge.—Sergeant-major Bevin said that tbe beer was taken from Mrs
Crawford's store at the Northeast Valley Accused was arrested at Oamaru.—Captain Spiers, of the Salvation Army, said that accused was showing every sign of reformamation, and if the Court would hand her over to the Army they would receive her into the Home.—His Worship said that tho suggestion was a good one, aud accused would be discharged on tho understanding that she would come up for sentence when called on.
THE COURTS.—TO-DAY., Issue 7938, 20 June 1889
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