COURT-OF APPEAL.

New Zealand Times, Volume XXIX, Issue 4265, 20 November 1874, Page 3

COURT-OF APPEAL.

Thursday, November 19. (Before Sir G. A. Arney, Chief Justice ; Mr. Justice Johnston, Mr. Justice Richmond, Mr. Justice Gresson, and Mr. Justice Chapman.) BURNS V. THE OTAGO AND SOUTHLAND INVESTMENT COMPANY. Mr. George Cook appeared for the appellant; Mr. James Smith and Mr. Stout for the respondents. This was an appeal from the decision of Mr. Justice Chapman,' who dismissed an action brought by the appellant (plaintiff in the Court below) for specific relief. .The facta out of which the action arose are shortly these : Sometime ago Mr. Arthur John Burns, nephew of Mr. Gilbert Burns (the appellant), was in Great Britain making arrangements for starting the Mosgiel Woollen Factory. He required a loan of £3OOO, for which amount he made application to the Otago and Southland Investment Company. They agreed to lend him the money on his handing to them a bill drawn by Gilbert Burns, accepted by him, and endorsed to them, and also promising to execute a mortgage to secure the £3OOO, which was to ,be for five years. The bill was for nine in->hths, and if the manager of the company in Dune'din was dissatisfied with the securities, that is, with the land proposed to be mortgaged, the bill was to be paid when due. Some dispute arose between Mr. Arthur Burns and the company, they asserting that they were dissatisfied with' the security, and demanding that Mr. Arthur Burns should complete the mortgage.' This he refused to do, which refusal forms the ground of another action to come before the Court of Appeal. The bill became due on the 3rd October, 1871', and in February, 1872, Mr. Gilbert Burns, the drawer of the bill, tendered to the company the £3OOO, and demanded that the bill should be delivered to him. The company refused to accept the money or to deliver up the bill, and thereupon the suit was brought to compel the company to deliver up the bill to him upon his paying to them the £3OOO, less costs of Buit. He also prayed for "further or other relief." The defendants by their plea admitted that they had possession of the bill ; that the money had been tendered, and that they had refused to take it. They asserted that they had never held Mr. Gilbert Burns liable since the maturity of the bill, and that therefore he was not entitled to possession of the bill, or to pay the money. The plea also stated that the bill was part of the agreement between Mr. Arthur Burns and themselves, and that they would be prejudiced if they had to deliver it up. There were of course other pleadings, and ultimately the case went for trial before a jury, who gave the following answer to the issues placed before them : That " s ""'*» there had been a presentment of the bill, but that no notice of dishonor had been given to \lr. Gilbert Burns, and that the company had eased to hold him liable. The plaintiff then for a decree still demanding the delivery of the bill, or that some memorandum should be put upon it to show that he was no longer liable under it. In the Supreme Court, Otago, the action was dismissed, and leave given to appeal. Mr. Cook, in arguing the case for the appellant, handed in a paper containing fourteen reasons why the judgment should be declared erroneous. These reasons, summarised, were as follows :—l. That the plea was bad, as it did not state the defendants had ceased to hold the plaintiff liable. 2. That there should have been a complete renunciation of the defendants' claim against the plaintiff before the action being brought. 3. That the mere want of notice of dishonor did not discharge the drawer, 4. That there had been waiver by Mr. Gilbert Burns on the notice of dishonor, and that this waiver was not negative. 5. That at any rate the plaintiff wa3 entitled to his costs up to plea pleaded. 6. That even though the plaintiff was discharged at law, still he had the right to the delivery of the bill. 7. That if he were not entitled to the delivery of the bill, he was entitled to have the words "without recourse," or other similar words, written upon it; the final clause being a prayer for " further or other relief." In support of these reasons, Mr. Cook argued that the plea was bad because the word "since," as used in one of the paragraphs, fixed a definite time, in confirmation of which he referred to rule 49. There was no reference to the waiver also which was alleged in the declaration, and he contended that there might be sufficient cause to excuse the want of notice of dishonor, citing the North Staffordshire Loan and Discount Company v. Wythe, 2F. and F., 563. Then, if it came to the knowledge of Mr. Gilbert Burns that there had been negotiations between Mr. Arthur Bums and the company the notice surely would be dispensed with. The Chief Justice : Can we now proceed by conjecture ? Are we not bound by the facts found by the jury ? Mr. Cook : I am only showing the badness of-the plea, and that there may be facts, so far as the plea is concerned, which would make the appellant liable even though there had been no notice of dishonor. The word " since" is not enough, as no time is fixed. It should have been "ceased and has ever ceased." Mr. Justice Richmond : Does not the plea mean " ever since maturity V Mr. Justice Chapman: Does not " since" mean after maturity 1" Mr. Justice Johnston : Yes, not an indefinite period, but a certain point of time. This Court held, and the Privy Council upheld, a Bimilar interpretation in construing the word " when" in the case McLean v. Macandrew. Mr. Cook : This is only a narrow point as to the question of costs. Still the rules require specific pleading. (Utile 49 and "Chitty on Pleading," 272.) This question of time is a material averment, and should have been pleaded, because time is the sole gist of the matter. Jfoden v. Johnston, 16 Q. 8., 218. In equity pleading more strictness is required than on this plea (Lewis's "Equity Draftsman," p. 88), as the waiver of notice to plead should have shown complete renunciation. ("Bylea on Bills," 10th edition, p. 196). The plea of waiver in Bullen and Leake, 458, is in a different form. The words there are by express renunciation. The plea of release is also more specific in Bullen and Leake, 565 566, Foster v. Dawbar. He did not demur to the plea, as he could take advantage of a defect in the plea on motion for decree. (1, " Daniel's Chancery Practice," 652). Mr. Smith : We admit that advantage can be taken of badness of pleading on motion for decree. Mr. Cook still contended that he had the right to have the bill given up, or if not given up, to have the words sans record, or similar words written over it. The Court had full power to order documents to be given up. ("Storey's Equity Jurisprudence," section 700.) Mr. Smith : We admit the jurisdiction. Mr. Cook, to show that the courts had sometimes interfered, referred to Hawkshaw v. Perkins, 2 Swanson, 554. Mr. Justice Chapman : In that case all the parties were exonerated. Here, Mr. Arthur Burns is still liable. Mr. Cook said it was not on that principle the case was decided. It was a case of principal and surety. Eyre against Everett, 2 Russell, 382, supported his contention ; also, Lisle v. Eidley, 3 Anstruther, 649 ; Small v. Ciirrie, 5 De Gex ; McNaughton v. Gordon, 141, also reported in 23 Law Journal, ch. 746. The surety had the right to discharge the obligation, or at all events to have a memo, endorsed on it that he was no longer liable. Bromley v. Holland, 2 Swanson, 158. The following authorities were cited as dealing with waiver on notice of dishonor—" Broom's Maxims," sth edition, 699, 702, Eaby v. Gilbert, 30 L.J., Ex. ; Woods v. Dean, 32 L.J., Q.B. 1 ; Cordery v. Colville, 32 L.J., C.P. 210 ; Kilbee v. Pochssen, 18 C. 8., N.S., 687 ; and as to costs, Dobson v. Espie, 26 L.J., Ex. 240. The learned counsel next contended that the learned Judge in the Court below was wrong in saying that all the cases cited in that Court were cages on. t>ie delivery of instruments between parties to the suit; and further, as to costs, he was compelled to go on after plea, because of the large number of immaterial questions which were raised by the plea and had to be answered by the jury—Ford v. tho Earl of Chesterfield, 16 Beaven 516; Durham v. C'rakal, 32 L.J., Ch., 11l ; Thomson v. Hud-

son, 34 Beaven 107; Smith v. Colman, 7 Jurist, 1053 ; Allan v. Davis, 20 L.J., Ch., 44. These cases showed that when plaintiff got the specific relief asked, he became entitled to costs. As to the costs of the interlocutory motion, Mr. Cook cited "Daniels' Chancery Practice," 1347, 1351, and " Chitty on Bills, 10th edition, 451. Mr. Smith said the case really lay ma nutshell. The action was founded on the old Chancery writ of Quia Timad. In all the cases cited, except Small and Currie, the rights of plaintiff and defendant in the suit were alone concerned. In the case of Small and Currie the interference of a court of law had been invoked. Mr. Gilbert Bums had a good and valuable defence for all time, as the noticeof dishonor and the affirmative of proof of notice of dishonor lay on the company. Mr. Gilbert Bums could not, then, be damnified by not being put in possession of the bill. The learned counsel then referred to Mr. Cook's objections to the plea, and contended that the paragraph upon which the verbal criticism had been based was simply a deduction or statement of the law from the facts previously stated in the plea. The thirteenth paragraph of the plea did not purport to set up any new Act, but simply to draw conclusions of law from previous facts. At this stage of the case the Court adjourned till next morning at eleven o'clock. j