SUPREME COURT.

Lyttelton Times, Volume LXI, Issue 7224, 25 April 1884, Page 3

SUPREME COURT.

OIVII. SITTINGS. Thursday. A ran, 22. (Before His Honor Mr Justice Johnston and a jury of four.) waicmr v. cimisTOiuiacH dbainaoe BOARD. Mr. Harper for plaintiff j Mr Garrick for defendants. This-case was resumed at 10.30 a.m. Mr Garrick put in- letters: From the plaintiff to the Board, dated Sopt. 10 j. from tho Board to plaintiff, Sopt. 27} and from Messrs Harper to the Board, Oct. 23. He then called tho following evidence Thomas Gordon, Secretary to the Board: Tho estimated expenditure in tho Avon District for the year 1882 was £835 5a sd, towards which a rate of 9sd in tho £ realised £Bl9 15s sd. There was a deficit of £177 13s 9d at the ond of 1882., At tho end of 1883 the deficit was £3lO Bs. The amount required was' £1641 13s 2d. Thehighest rate, |d in the £, on the capital value, equivalent to a shilling, in tho £ on the annual value, was levied, and realised £1275 3s. The Act of 1877 authorised a loan not exceeding £200,000, and tho wholeof thisjjhad been raised. Cross-examined : The district does not include St Albans Borough, and is not the same as the Avon Road Board The money witness had mentioned was spent on the whole of the Avon District. John B. Stansell: Had kept a rain record for fifteen years. The fall in July last year was 4-39 i in August, l‘74in ; in September, 4 - 42. On July 31 the fall was T3lin. On Sept. 6, T42in fell in about 12 hours. For the four months, June, July’, August, and September, 1881, it was 13-27 in jin 1882 it was 6 - 99 in } and in 1883 10‘20in. In September, 1881, the fall was l'2sin; in September, 1882, it was l - 22in; and in September, 1883, it was 4'42in. Edwin Cuthbert: The damming up at Shirley’s bridge would not extend as far as plaintiff’s land. Cross-examined: It would not affect Philpott’s land. Had not seen it in heavy flood or dammed up at all. Charles Napier Bell: The damming up would not extend very far back, but to say exactly what it would, would bo very difficult. There would be a vertical rise of three or four inches at the bridge, but it was incredible that its effects would extend to plaintiff’s land. Cross-examined: All the creeks bring down sand. Dudley’s Creek silted up very much.

Elias Gaudin: The bridge at Shirley has 10 feet water way. Cross-examined: It would not cost much to widen Preston’s drain, but the defect was further down.

John Wright, the plaintiff : Messrs Kruse, Horner and Borghiield said they would assist witness if he was a heavy loser. Had no agreement with them. They will pay their share of the carriage of this action if I require it. There is no arrangement that the cost will be borne equally. His Honor : I see nothing wrong in such an arrangement. This was the case for tho defendants.

After some discussion between his Honor and learned counsel it was agreed to make a special case for submission to the Court of Appeal, the jury now assessing the damage; the Court of Appeal to give judgment either for the defendants or for the plaintiff for the amount found by the jury. \ The jury retired to consider the verdict, and after an absence ofja quarter of an hour returned with a verdict for plaintiff of .£250. The question of costs stood over. (Before His Honir alone.) BAEKEB Yv WELD.

Mr Joynt for plaintiff; Mr Garrick for defendant.

Mr Joynt gave a history of the case, to the effect that the defendant, through his agents, Messrs Harman and Stevens, in June, 1882, agreed to lend plaintiff ,£IOOO on certain property in Little Akaloa, and did lend the money for three years from June 15, 1882, the interest being at the rate of £9 10s per cent per annum, reducible by prompt and regular payment to £7 10s per cent. At the time of making the agreement the lands were subject to a mortgage for .£7OO to Messrs C. C. Bowen and E. J. Lee, then due with interest to the amount of £3l los, and were also liable to a payment of £46 5s to the Receiver of Land Revenue. The defendant agreed to discharge these liabilities and to pay the balance to plaintiff. These negotiations on behalf of the plaintiff were carried on by Alfred Thompson, who drew the memorandum of mortgage and obtained a cheque for £IOOO from the defendant’s agent, the plaintiff executing the memorandum, of mortgage for the amount on June 15, 1882. Shortly after the execution of this, the plaintiff ascertained that the £7OO and interest had not been paid to Messrs Bowen and Lee, nor had the £46 5s been paid ,to the Receiver of Land Revenue ; he also found that defendant, by hia agents, had altered the memorandum of mortgage by inserting the words “ subject to mortgage No. 5947, excepting out of rural section 4307, the land included in transfer 18369,” and had registered the memorandum of mortgage with those words on it. Thompson was to pay the £7OO and other moneys named, and did hand to plaintiff £2OO, the balance coming to him after such payment j but as the mortgage to Messrs Bowen and Lee had not been paid off, plaintiff requested Messrs Harman and Stevens, as agents for the defendant, to pay the £7OO, &c., and on tkeir refusing to do so, he refused to execute the mortgage. He now prayed for an order to defendant to pay Messrs Bowen and Lee’s mortgage, &c., or else discharge the memorandum of mortgage for £IOOO, plaintiff offering to repay the sum of £2OO, with interest. Plaintiff also asked the Court in the meantime to restrain the defendant from dealing with the lands affected, or to give such other judgment or relief as the Court might consider him entitled to.

The statement of defence admitted the facts so far as the application to them by Alfred Thompson was concerned, and their payment to him of the JBIOOO on a memorandum of mortgage of 265 acres 1 rood and 36 perches, as stated; but pleaded that Thompson had represented the land to be free from incumbrance; that Thompson in August, 1882, absconded and left the Colony of New Zealand, after which time defendant’s agents discovered that the memorandum of mortgage had not been registered, whereupon they caused it to be registered, but that the Registrar required them to endorse it with the words—” subject to mortgage No. 5947, &o.’’; that defendant had no knowledge of the mortgage to Messrs Bowen and Lee till after Thompson had absconded, and that Thompson, as the agent for the plaintiff, out of the .fiIOOO. paid Ml 10s for interest on Bowen and Lee’s mortgage, and some other moneys. The defendant denied all the other allegations in the statement of olaim. Mr Joynt submitted that Jiho general denial was evasive, and amounted to an admission. Ho supported his contention at considerable length, citing numerous coses. Ho submitted that the other side should begin and prove his substantive allegations of fact. . , Mr Garrick submitted that the allegations, that the defendant had agreed to pay off Bowen and Leo's mortgage, was specifically denied, and plaintiff should prove it., He contended that the statement of the defence fully complied with the rules. His Honor decided that the rules did not declare that it should hot be sufficient to give a general denial. Mr Joynt opened the case forlthe plaintiff, and put in the mortgages and other documents. He then proposed' to call

evidence as to convoraatidns between plaintiff and 'Thompson.,

Mr Garrick would not object till! he heard tho nature of tho-ovidcnce..

John Bhilby Barker, farmer, Using at Little Akalba: Had signed a deed of mortSand a memorandum of mortgage'to fii Weld over which there was a prior mortgage to Bbwon and Leo. Got the money through Alfred Thompson* solicitor, Christchurch. Told Thompson he wanted to release- tho original mortgage with Harper and Co., and asked him the roto of interest. Ho said about 7 per cent. Witness said," All right,’” and asked when, the deeds would be ready. Thompson told him to call in tho next day. Galled,.and was told that his (Thompson’s)) client would not let him. have the money for loss than 7i per cent. Agreed; to this.. Nothing was said as to who the client was. On Juno 15*. called at Thompsonfs office. Two clerks were in, one read; tho deeds over-and witness signed them. Thompson came in just as they had finished.. Went into Thompson’s room, with Thompson. Tho memorandum of mortgage to Weld did not contain tho words “ subject to. mortE 5947 excepting out of E.S, 4307 the included in transfer-18369.” ; Mr Garrick s We- admit, they were mot in. . Witness;. Thompson, tlmn gave- him a cheque for £2oo* stating that he had paid £7OO to' Harper and Co* for Bowen and Lee. Mr Garrick submitted that this, would not bind tho defendant. Witness continued: Thompson said there was £.46 5s his client Requested him to pay the Land Office for over acreage. He said nothing about interest. The balance he had to take has costs out of. Thompson promised to send witness a statement of his costs very shortly, but never sent it. Nothing of a second mortgage was dreamt about! Thompson never said the mortgage to Weld was a second mortgage. The mortgage to Weld was to take the place of Bowen and Lee’s.

Cross-examined t I had known Thompson for years. He has done one or two small jobs for me, but as a rule he did not do my business. I got the money from Bowen and Lee through Thompson. He was the solicitor, but I got the money through his father, I am not aware of getting other accommodation through him. I sold some land to Macintosh, and Thompson lent him the money. My’ land was under mortgage to a client of Charles Clark. I gave Thompson instruction about Clark’s mortgage, which was over one section, the section I sold to Macintosh. I did not instruct Thompson to borrow the money, but borrowed it from him. T instructed Thompson to pay Clark’s client out of the purchase money of Macintosh. Macintosh borrowed .£2OO from Thompson to purchase this land from me. This land, mortgaged to Macintosh, was included in the land mortgaged to Lee. I believe Clark’s client was not paid off, though £250 was to ; have gone for that purpose. I told Thompson ■to pay it to Clark. I never saw Harman and Stevens at all on the subject.. Thompson did not go downstairs while I was there. I came straight away a£ter getting the .£2OO, and went straight away to Lyttelton. I gave Thompson no further instructions. He told me he- had paid the money to Lee, but said nothing about having received the money.. I said, “I was going to speak to you about; that.” He said, “ You need not mind ; my client will see that that is paid; off” I understood that the money was paid. I first heard that it was net paid; about a month afterwards, when Thompson had left. I don’t know whether or not he paid Clark .£l2 10s. He did, not tell me he had paid to the Waste Lands Board. I think I told him there were some 23 acres extra* to be paid for. That was after he had agreed to give mo the money. He said that hia client required the money to be paid out of- what I received. I did not know that Harman and Stevens had anything to do, with it. I did not know it was Weld till I saw the name on the deeds. Thompson was not authorised to carry out the whole arrangement. I was under the impression that he said he would have to satisfy the parties he was getting the money from, that the mortgage was released, before he got the money. I understood that he would get a release from Bowen and Lee, and would charge that in his costs.

Thomas Macintosh, farmer living at Little Akaloa: Remembered being with plaintiff, at Thompson’s office, in June, 1882, on occasion of the advance of £IOOO. Plaintiff asked Thompson if he had any money to lend. Thompson said he had, and asked how much was wanted. Barker said £IOOO and Macintosh (witness) wanted £250. Thompson said he could have it; Barker said he could get it at 7 per cent. Thompson said he thought he could let him have it at that. Barker described the sections, and told Thompson a 50 acre section was to be taken out because it was sold to witness. Barker spoke of commission, but Thompson said he got his commission from the other side. The witness corroborated the evidence of the plaintiff, as to the interest agreed upon ultimately being, 7| per cent. Augustus Frederick Nowell Blakiston, Receiver of Land Revenue: Produced an application from plaintiff to purchase R.S. 24132. After survey, £46 5s became due for excess of acreage. It was due on August 17, 1880, and had not been paid. Henry Cotterill, solicitor : In August, 1882, went to Messrs Harman and Stevens with plaintiff about the mortgage. It was after Thompson had disappeared. Mr Harman stated that ho knew nothing of Barker in the matter; that he paid £IOOO to Thompson to complete the mortgage.

Cross-examined: Plaintiff consulted me as to his supposed loss. He was not aware whether Thompson’s absconding might affect him. He fancied there might be a loss to him through Thompson’s absconding. I did not know whether or not Thompson had paid the money. I think Mr Harman produced the mortgages. I told him I came to enquire into the circumstances ; to find out, in fact, whether they were all right. I said I came from Barker. I went straight from Mr Harman’s to the Registry Office, where I found that the previous mortgages had not been paid off. I don’t think that I saw Mr Harman subsequently. James M. Batham, District Registrar: The mortgage 5947 was still unsatisfied, except as noted on it. The mortgage 14537 by Barker to Weld was on the register as a second mortgage. This was certified as correct by Mr Harman, and was registered on August 17,1882. It was taken out by Messrs Harman and Stevens on August 25, 1882.

Cross-examined: The mortgage 14537 is stated to be subject to mortgage 5947. It looks like Mr Allison’s writing. I don’t remember seeing either Mr Harman or Mr Allison about. the matter. The initials opposite ore Mr Harman’s. William Hoban, law clerk: In June, 1882, was clerk to Thompson. A mortgage for JBIOOO from Barker to Weld was propared in the office. Bid not think the draft was sent to any other solicitor. It might have been sent to Mr Harman. Thompson several times prepared mortgages in cases whore ho had arranged loans. . Cross-examined: I had boon in Thompson’s office about seven years. The other clerk at the time was Mr pouhleday. 1 knew Barker. Thompson has acted for Barker on more occasions than this, i have seen him there several tunes. Mr Thompson arranged a loan for £2OO tor him. The mortgage to Moore and Harper was prepared in Mr Thompson’s office by Mr Corr. I always looked upon Barker as a client, but Barker has told me he had had

business transactions with Duncan, Cotterill and Martin.

This was the case for the plaintiff. For the defence, the following evidence was given. Richard James Strachan Harman, of the firm of Harman and Stevens : Remembered Alfred Thompson, who was not solicitor for the firm of Weld generally. Defendant was a client of the firm. Very seldom lent money on Thompson’s application. Remembered his applying for .£IOOO on land at Little Akaloa, the property of plaintiff. Witness said the money should be paid on Thompson’s producing the mortgages signed. The matter was not concluded, as witness had to bo satisfied as to the value of the land. The land was to bo freehold, and the whole proposal was on the basis of a first mortgage. He know nothing of a mortgage to be paid off, until Thompson bad left, and witness went to register the mortgage. Thought it desirable to enquire about the securities that Thompson had made. The firm’s practice was to allow the solicitors who obtained loans to prepare the securities. Got the deeds from one of Thompson’s clerks. They were in his office and unregistered. The chief clerk went to register, and reported that the Registrar said they must be registered as a second mortgage. Had found that there was a prior mortgage. that the Registrar said that if they were marked as subject to the other,mortgage, and a memorandum explaining., the circumstances under which that wa? v , done, ho would register them. What waaxvquired was done, and they were registered. Witness certified to them as a. land broker. The firm gave no instructions as to the application of the £1000;, It was not agreed that Lee should be paid, off, or the Land Board be paid anything.. Did not know there was anything due for extra acreage. Looked upon Thompson as Barker’s agent all through. Cross-examined: Thompson asked mg i£ I had .£IOOO to lend. He probably, said for whom, but I have no recollection." Ifc was early in June, but I cannot say on what day. We took the valuation of David Wright in Little Akaloa, who .acted as Government valuator. I think the valuation came from Mr Thompson., I think Wright was in our office.abqut.that time, in connection with this matter;. We took no steps to satisfy ourselves, gg. to the state of the title, because we left Mr Thompson to prepare the mortgage, and took it for granted he would see. that the title was right before we advanced the money. It is not uncommon ,tp-find that properties are subject to I left everything in Thompson’s hands to complete. I instructed Mr Allison to inj sert the words “ subject to mortgage, 1 &c.,” and initialled them,. 1 was aware they converted it into a second mortgage. Barker did not know it when.l did it. Edward Cephas John Stevens, partner of the last witness : In consequence of information from Mr Harman, signed a cheque for .£IOOO, Mr Harman, being out of the office at the time., Mr- Thompson came from his room upstairs and produced a land transfer mortgage, which he opened to show witness the signature of Mr Barker; and said words to the effect: “ You see he has signed it.” Witness made a remark, to which Thompson replied: "He is upstairs now,” meaning-Mr Barker. Cross-examined I saw only the signature. I did not assume it to be a forgery. He showed me no authority from Mr Barker to receive-fjhis money; but I took it for granted that the document would acknowledge, the receipt of the money. I recognise the- signature. To the best of my recoUectiion it was a paper, not a parchment. . W'e had occasionally had similar transactions with Thompson. The cheque produced has my signature. It was payable to a number.

Hepry Allison, managing elerk to Harman and Stevens : Was present when the cheque was given. The witness corroborated the previous evidence.

Cross-examined: I gave Thompson no ‘nsti'uctions, but was present when the application was made, and when the transaction was completed;

Archibald Roger, clerk in the Union Bank: The cheque for £IOOO was paid in on June 15 by Alfred Thompson to his own credit, and debited to Messrs Harman and Stevens.

I George Sadler, clerk to Messrs Harper and Co.; Received £3llos interest on the mortgage to Bowen and Lee. It was paid on July 3, 1882, by Thompson’s cheque on account of Barker.

Arthur Appleby, accountant to Mr Charles Clark: Mr Clark was mortgagee of land at Little Akaloa. In July, 1882, Thompson paid £l2 10s on account of Barker. Henry Slater, solicitor: Was solicitor to the Trustees in Thompson’s estate. Produced cash joxxmal kept by Thompson. There was an entry of £IOOO from Harman and Stevens on June 15 "to advance you J. B. Barker.” The entry is followed by “ paid you on account of loan, J. B. Barker £200.” On July 3 there were the entries of £3l 10s to Harper and Co. for Barkex-, and of £l2 10s to Charles Clark. No other payments are entered on account of Barker. Cross-examined: Thex-e is no ledger entry of costs charged to Barker since 1878. I could find no costs ledger. There is a work book. There was a distx-ess fox- rent, and some books wore sold. Some books disappeared. This was the ease for defendant.

It was agreed that the pleadings and evidence should be considered a special case without a special case being drawn. Mr Joynt asked formally for leave to amend if necessary.

At 5 o’clock the Court adjourned till 10.30 a.m. to-morrow (Friday).