The Courts.

New Zealand Mail, Issue 421, 6 March 1880, Page 9

The Courts.

DISTRICT COURT.

Friday, February 27. (Before his Honor Judge Mansford.) COLONIAL. BANK V. HUTCHISON.

Mr. Gordon Allan for plaintiff, Mr. Travers for defendant.

This was an action by the Colonial Bank against Mr. W. Hutchison, as endorser of a promissory note for LI3C 2s. 9d. The note had been drawn by Mr. David Everest in favor of Mr. Port, who then endorsed it without recourse. The note was then endorsed by Mr. Hutchison, and then again by Mr. Port to the bank. The defence was that the note was a renewal of another given by Mr. Everest, of which Mr. Hutchison was the endorser (Mr. Port also being an endorser), and that defendant bad got no consideration for the note. Further, that by a mortgage given by Mr. Port to the bank to secure the repayment of money due by him to the bank, time was given to him to pay, and in that way defendant was discharged from his liability a 3 endorser. After some short argument between the learned counsel as to whether it was necessary for Mr. Allan to call any evidence to prove the bill, and Mr. Travers having intimated that he would ask for judgment for defendant if his learned friend did not do so

Mr. R. M. Brown, accountant of the Colonial Bank, was called, and proved the bill. It had not been paid by Mr. Everest, and notice of dishonor had been given to the endorsers. For the defence, Mr. Hutchison deposed that he had held a conversation with Mr. Burton, the former manager of the bank, with reference to the notes, and Mr. Burton thoroughly understood the circumstances under which he (defendant) became a party to them. When the bills were renewed he bad not been informed of the existence of the securities given by Mr. Port to the bank. The renewal was given by Mr. Everest and Mr. Port, and endorsed by witness for Mr. Everest. By Mr. Allan : The first note of all was given by Mr. Everest to Captain Thomas, and was endorsed by witness out of friendship. This was after witness bad contested the Hutt election. The endorsement was not for services rendered. Mr. Port’s name was added afterwards. The bill became due, and was renewed. Witness got no consideration for it whatever. Mr. Allan desired the defence to call Mr. Port, but as Mr. Travers did not do so Mr. Allan proposed to call the witness on his side. This was objected to by Mr. Travers, a d some argument ensued, but his Honor ultimately decided to hear Mr. Port. The evidence of Mr. Port was to the effect that he had endorsed the note to the bank, but he did not remember whether Mr. Hutchison or Mr. Everest gave it to him. Mr. Everest was the principal and Mr. Hutchison was his surety. The bill was in renewal of another.

Mr. Allan contended that Mr. Hutchison was not shown to be a surety for Mr. Port at all. On the contrary Mr. Port was really the surety for Mr. Hutchison and Mr. Everest, and therefore the question of discharge to a surety by giving time to a principal did not arise. Assuming it could be proved that Mr. Hutchison was a surety for Mr. Port, no discharge could be to Mr. Hutchison, for by the deed of mortgage given to the bank all rights with regard to bills of exchange were reserved. He mentioned the authorities to his- Honor which he had previously cited in the Resident Magistrate’s Court upon a similar action. His Honor reserved judgment. There was a second action to recover on a promissory note of £lO5, but the evidence of the previous case was taken as being applicable to it, and judgment was also reserved. E. H. HUNT V. BANK OF NEW ZE LAND. Mr. Edwards for plaintiff ; Mr. Stafford for defendant. Jury : Messrs. J. J. Lovell, J. Rose, A. Sample, and J. Vivian. This was an action in which plaintiff sought to recover from the Bank of New Zealand the sum of £77 45., under the following circumstances, which were detailed by Mr. Edwards : —ln September, 1878, some property was put up for sale by order of Mr. Gilligan, Mr. R. J. Duncan being the auctioneer. The property was being sold in sections, for the purpose of forming the Wardell township, the payment to be by four quarterly instalments, and as there was not at the time a good title to the property, one of the conditions of the sale was that the instalments were to be paid into a special account in the Bank of New Zealand, the title to be procured before the last payment became due. Plaintiff was a purchaser at the sale, and had paid in his money, but no title was forthcoming, and application bad been made to the executors of the late Mr. Gilligan (Messrs. W. T. L Travers and R. J. Duncan) for a title, but without success. Mr. Stafford said that the case involved a most intricate question of title- which that Court could not be called upon to deal with. Mr. Edwards said the question before the Court was not whether the vendors had a good title. They had never given any title at all, and did not produce any. His Honor ruled the question of title did not arise. Mr. Edwards'called

E, H. Hunt, who deposed that he remembered going to a sale by auction of Mr. Gilligan’s land on September 19, 1878. He purchased some land there. Mr. Travers was there, and made a statement to the effect that the title was not complete, but it would be before the four instalments were all paid. He also said that in the event of a good title not being ready at the end of the year the money would be returned, and that it would be deposited in the Bank of New Zealand in the meantime. Witness had brought an action against Messrs. Travers and

Duncan to recover the money he had paid. Witness, with Mr. Edward*, had held an interview with Mr. Travers concerning the action, and Mr. Travers had said in reply to Mr. Edwards that he had no wish to keep witness out of his money, and he would, if he liked, over to the bank and see about it. The action was subsequently withdrawn. Mr. Cutten, of the firm of Moorhouse and Co., deposed to having seen Mr. Travers several times concerning the title. He saw him on September 19, 1879. Witness said he had gone to settle the matter, and wanted to see the title. Mr. Travers said he had none, and produced no documents whatever. By Mr. Stafford : Mr. Travers told witness that he con'd net produce a title, because one of the native grantees of the property died, and there was some difficulty about it. Robert W. Kane, accountant at the Bank of New Zealand, produced copies of the account in the bank to the credit of the Wardell township fund. There was about £740 to credit. By Mr. Stafford : The manager only was authorised to draw out the money. The bank had no control over the money. The account was opened at the request of Mr. Gilligan. Mr. Edwards depo ed that, in February, 1879, he was requested by plaintiff to ascertain if the money had been lodged in the bank in accordance with the conditions. Witness found that it had been, and paid into the trust account £25 12s. for Mr. Hunt. With reference to the action brought against Messrs. Travers and Duncan, Mr. Travers had promised witness that if he would put off the action he would see the manager of the bank about it. He had no defence to the action. He, however, was always too busy to go to the manager with witness.

This was the case for the plaintiff. Mr. Stafford asked for a nonsuit, as there was no contract before the Court. There was no'evidence to show that the bank had acepted the position of a stakeholder in this m itter, and a third party could not be made responsible by agency. The action had been brought against the wrong parties. If any, it was the manager, and not the bank, who was the stakeholder. Moreover, no evidence had been brought forward to show that any demand had been made upon the stakeholder, and he contended that this was necessary. Mr. Edwards having replied,

His Honor ruled that Mr. Stafford’s objections were fatal, and nonsuited the plaintiff upon the grounds raised. The jury was then discharged. The Court then rose.