SUPREME COURT.

Lyttelton Times, Volume LXXX, Issue 10215, 8 December 1893, Page 3

SUPREME COURT.

CIVIL SITTINGS. Thursday, Dec. 7. (Before bis Honor Mr Justice Denuiaton.) CARDEN AND ANOTHER V. OII.LETT AND ANOTHER. Qeorgo Carden and Dolabere Pritchett Blaine, the executors of Henry Blaine, deceased, were tho plaintiffs, and the Kev Hugh Hodgson Qillett, of Wadenhoo Kectory, Northampton, England, and W. Aitfcon; of Winslow, Canterbury, New Zealand, farmer, defendants. Mr Fisher for plaintiffs, and Mr Stringer for the defendant Qillett, the defendant Aitkan nob being represented. This waa an action wherein tho plaintiffs sought a decree giving them a lien upon certain lancla included in a mortgage for £llOO. The statement of claim set forth (2) , that in July, 1890, Henry Blaine, of Surrey, England, entrusted tba sum of £6OOO to the firm of Harper and Co. for investment upon mortgages of freehold lands in the Colony (3) giving Leonard Harper, George Harper and Henry Alan I Soobt, members of tho firm of Harper and Co-, power of attorney, jointly and severally, on Oct, 25, 1880. (‘1) Tho £6OOO •was lent by the firm to T. H. Green, of Christchurch upon the security of certain freehold lands mortgaged by him to Blaine. On Jan. 10,1864, tho money was repaid by Green to Harper and Go. on account of Blaine, find the mortgage was released. (5) Oa July 1,1881, £3OOO, part of tb© same moneys, was advanced by the firm on account of Blatoo to Henry William Packer, and oa Deo. 14, 1886, Pucker gave Blaine and one Tom JpfEcoat a memorandum of mortgage (No, 23126) over certain lands in tho Canterbury district to saouro £5500 on Feb. 1, 1887,' an d interest thereon. (6) On Fob. 1, 1887. Packer reuaid to Harper md Co. £250 on account of the loam, thus rcduoing’tho advance to £2750. (7) The mortgage 22126 contained a declaration that the aum of £3500 was advanced by and belonged to 'Blaine cud Jeffcoat in equal shares. (9) This wag executed by' George i Harper as the' attorney tor Packer. (10) £llOO, part of tba said £6OOO, was .'.ont by Harpar and Co. to Henry Dalton, of Ashburton, farmer, oa Jane 00,1884, upon the security of r. memorandum of mortgage, 38323, dated Juno 30, 18S4, given by Duiltou to Blaine over Kami .Sectiona 16740 »nd 16869.0 f 156 acres in Canterbury, to secure tho repayment of the £llOO cn August 1, 1887, with interest thereon. (12) Blaine died in England oa Oct. 3, 1883, having- previously made a will and appointed his wife and the plaintiffs executrix and executors. (13) This will was proven and probate granted on Nov. 17. 1886, and the mortgages transferred. (16) The plaintiffs, oa March 17, 1887. constituted George Harper and Thomas William Maude to collect and receive moneys in connection ■with the estate of Blaine, and to sell any mortgaged lands and to transfer any mortgages and to give releases, &c. (19) The defendant Gilletfc, oc. Muy 1,1878, appointed Leonard Harper and Philip Hsinmor, who were then in partnership with each Other, attorneys, to represent him and act in the matter of certain moneys entrusted to them for investment with full powers, and after the death of Hanmer, the firm of Harper and Co. continued to act as agents for defendant in the investment of the said moneys. (20) .in Juno, 1888, tho firm received r'r . m Gil into £4300 for investment upon mortgage of freehold lends. (21) In nn account dated March 30, Isß9, the firm represented to Gillett ' that it had advanced oa June 9, 1883, £llOO of the said money to W. Aitkan upon mortgage at £7 pet coat per annum, r.tul had on August 1, 1888, advanced £2750 of tho said money to : Packtr upon u'orcg.v.'/ v (33) There’ accounts contained fako and tcaquuleut representations, as tho firm did not adtanoo any of the money to Packer on;

, Aitken; but the moneys were appropriated Iby the firm to their own use. (23) The , firm o£ Harper and Company rendered halfyearly accounts to the defendant Gillett up to Sept. 23, 1892, and in every such account they credited him with £96 Sa for six months’ interest on the alleged loan received from Packer, and £3S 10a for six months’ interest on tho said alleged loan received from William Aitken. (24) The firm were creditors of Packer for a very largo sum, and acted as his general agents and managed all his affairs and retained the said £2750 for their own use by merely piecing tho sum to tho credit of Packer in their books, thus reducing tho amount of bis indebtedness to tho firm. (23) The firm rendered half-yearly accounts to Blaine up to tho time of bis death, and afterwards to tho plaintiffs up to Sopt. 23, 1593, crediting the half-yearly interest on tho £llOO ivs received from the mortgagor, Henry Dalton. (26) On May 28,1859. the firm rendered to tho plaintiffs an account representing that they had received in February, 1859, from Packer, £750 on account of tho advance, end they

mitted the £730 by Bank draft to the plaintiffs. (27) On Oot. 3, 1889, the firm rendered an account showing a- further sum of £SOO received on August 1, 1889, from Packer, repayment on account of the said advance, and remitted it to plaintiffs, and on March 25, 1891, the firm rendered an account showing that on August 8, 1890, they had received £ISOO, being the balance of tho principal moneys, and the sum was remitted by the firm to tho plaintiffs. (28) The interest was shown in the half-yearly accounts, as if received from Packer up to August 8,1890, and'was paid by the firm to the plaintiffs. (29) The amounts so alleged to have been received from H. W. Packer were advanced by the firm on his account and debited to him in hia account current with the firm, thus increasing tho amount of hia indebtedness to them which at tho time amounted to £20,000 or thereabout#. (30) On Dec. 24, 1830, the firm was indebted to tho defendant Gillett to the extent of £6OOO, and being also the attorneys and agents of Gillott under tho power of attorney given by the plaintiffs to George Harper and T. W. Maude, purported to sell and transfer the Linas included in the mortgage unto Aitken, the alleged consideration of tho alleged sale and transfer being £1209. (81.) Aitken did not pay the purchase money to the plaintiff or to the firm on account of the plaintiffs and the same had never bean paid by any parson to them. (33.) The firm procured Aitken to execute a memorandum of mortgage over the Rural Sections 16740 and 16869 to the defendants to secure tho payment of £llOO on August 1,1893, with interest at the rate of £9 per cent par annum, reducible to £7 upon punctual payment. (33) The defendant Gillett did not advance tho said sum to Aitken nor pay the same to the plaintiffs, but tho transaction in so 'far as' it related to the new mortgage by William Aitken to Gillett consisted in merely debit and credit entries in the books of the firm, and the alleged sale and transfer of the said land was fraudulently contrived and carried out by the firm to conceal their misappropriation of tho moneys of Gillett. (34) On June 22, 1893, in consideration of an alleged sum of £3750, paid by the defendant to tho plaintiffs. all the estate and interest of the plaintiffs as executors of Henry Blaine in tho said mortgage was transferred to the defendant. (35) The transfer was executed by George Harper, as the attorney of the plaintiffs, and was executed for the purpose of making good the previous misappropriation of the defendant’s money by the firm. (36) The firm acted as the agents of the defendant, end had fnll knowledge of all the matters aforesaid. (37) The plaintiffs therefore claimed that it may bo decreed that they havo a lien upon the lands included in tho mortgage 18325 for the said sum of £1209, being the amount of the purchase money agreed to he paid by Aitken for the same, and still remaining, unpaid with interest thereon at the rata of £7 per cent, from August 1, 2892, up to the present time, and that if necessary that the. lands may bo sold and the proceeds of the sale be paid to the plaintiffs, or that the alleged sale and transfer to Aitken and tho mortgage by Aitken to Gillett may bo declared fraudulent and void as against the plaintiffs, and may be set aside and cancelled, or that the plaintiffs may be declared entitled to the mortgage given by Aitken to defendant Gillett to secure £llOO and interest, and that the defendant should be decreed to transfer tho same to the plaintiffs, and pay to the plaintiffs all interest received hy him (tho defendant) for and in respect of the mortgage debt of £llOO.

The statement of defence of the defendant Gillett (1) admitted the statements in paragraphs 1 to 21 inclusive, and 23 to 28 inclusive. (2) As to the statements in paragraphs 22,81,32 and S 3, the defendant said that Harper and Co,, as agents and attorneys for tho plaintiffs, and in exercise of the power of sale contained in tho memorandum of mortgage 18325, sold the property included therein to tho defendant Aitken for £1209. (8) In order to enable Aitken to complete his purchase the firm, as agents and attorneys for tho defendant, advanced Aitken £llOO out of moneys then held by the firm belonging to the defendant and waiting for investment. Solely in order to secure tho repayment thereof with interest Aitken executed tho memorandum of mortgage mentioned in paragraph 32. (4) The .advance of £llOO was a genuine and land, fide advance to Aitken by Gillett through the firm, and tho defendant was entitled to the full benefit and advantage of tho mortgage. (5) Tho £1209 being tbo purchase money of the property, was paid by Aitken and was received by tho firm as agents of tho plaintiffs. (6) The amounts referred to in paragraph 29 of the statement of claim were advanced by the firm on behalf of the defendant out of moneys then held by them belonging to the defendant, and waiting for investment. (7) On tho date mentioned in paragraph 30, the firm had £2150 in hand belonging to the defendant, and had invested other money belonging to the defendant, and for which they held securities as follows:—To Grfkins £3OO, to Aitkon £llOO, to Packer £2750, and to George Roberta £IOOO. (8) As to the statements in paragraphs 34 and 35, tha firm, for and on behalf of the defendant, actually advanced to Packer £2750. (9) The defendant denied that he had knowledge of any matters except so far as tho same were admitted, and further said that tbo irm also acted as agents of the plaintiffs, and the plaintiffs had equal knowledge with the defendant of all matters set forth or referred to in tho deforfoe. (10) The defendant craved leave to refer to the various deads and documents mentioned in tho statements 0? claim and defence, and to the books of account of the firm of Harper nnd Go. (11) Tho defendant denied that the plaintiffs were entitled to the relief claimed. His Honor said he took the bulk of the statement of claim to be more a matter of evidence relative to the transactions between the parties than pleading.

Mr Fisher assented. The various documents, memoranda of mortgages, &e., were put in and proved. Evidence was given by Mr Greenwood, Official Assignee, and Alexander Millar, formerly accountant with Harper and Go., as to the facts alleged in the statement of claim. Mr Stringer cross-examined the witness Millar at length, and argued some of the points, putting in correspondence that had passed from Harper and Co. to some of their clients. Mr Fisher said ho would have to call another witness upon the points raised in this corro-pondoncc. This would necessitate an adjournment. After hearing counsel further, his Honor said it was evident that ultimately the case would find its way into the Appeal Court, aud it would, ho fancied, be almost aa we n for the parties to taka it there without further delay. It was a very complicated matter, and, unfortunately, the law in 'different parts of New ’■'.oduml a polled differently on c?rsain ~1 lui points involved. With the engagements he had ho could not possibly give judgment until fifties tho vacation. How-,

ovar, ho would hear Mr Fisher farther on Wednesday next. Tho Court then rose. LAW NOTICES—THIS DAT, m CHAMBERS. (Before his Honor Mr Justice Denniaton.) Re Lunatics Act, and re Thomas Fannett. —Order for taxation. Mr Cowliahaw. Bo Companies Act, and re Simpson and Williams, Limited, Motion to amend share register. Mr Cowlishaw. Re W. Breach, deceased. —For probate Mr Spaokman. Bo E. Woodham, deceased.—For letters of administration. Mr Widdowaon. [Per Press Association.! AUCKLAND, Dec. 7. In the breach of promise case, Eachel M’Grogor against James Dowling, of Opotiki, claim £2OO, a verdict was given by consent for £2O damages for tho plaintiff and coats on the lowest scale. DUNEDIN, Dec. 7. At the Supremo Court Frederick Tofleld, charged with arson, and William Eeid, charged with unlawfully wounding, were acquitted. There is only another case to be tried.