SUPREME COURT.

New Zealand Times, Volume XL, Issue 6846, 31 March 1883, Page 3

SUPREME COURT.

IN BANCO. (Before his Honor Mr Justice Richmond) Thorsdat, March 29. DANIEL V. GRIFFITHS AND OTHERS.

This case, which was adjourned on the 16th January last, again came on for argument. At the last sitting of the Court Mr Bell, for the plaiotiff, moved for a decree, Mr Ollivier, for the defendants, had not finished hia argument against the motion when the cate was adjourned till after the vacation. Mr Ollivier now resumed hia argument. Penal interest should not be given. There is an entire absence of anything likemoral turpitude. (Mr Justice Richmond : S'> far as I know the facts of the case. I am inclined to agree with you.) Then I need only direct my attention to a point ol pleading. The plaintiff is moving for decree without the decision or even the denial of a question of fact, viz., that Ur. Mueller and wife brought without notice. This would affect the relief which the Court would grant, and Griffiths must be taken to have established that fact, or at least not to have it established against him. Griffiths and Barleyman may avail themselves of this defence, as they have an interest in it. The defendants, Mueller and wife, should not have been joined till after decree. Direct relief is not sought against them. Reg. Gen. 234. Supposing tho lands had been out up and sold to hundreds of purchasers, it would be monstrous that they should be j inei as defendants in the first instance. York Building. Company v. Mackenzie (8 Bro. 3 Cas., 42). Mr Bell, in reply, contended that the suit is properly constituted ns it stands, and that the whole decree should be made as a-ked in the notice of motion. The Muellers are, properly, parties to the suit, as being the persons hold* ing the legal estate of the land which the plaintiff seeks. The issue as to notice to tho Mnellersisan immaterial one asiegard>|Grifßths and Barleyman. As to the constitution of the suit, the contention on which I rely, and which was sipported by the judgment in tho demurrer, was that the principal, who suffered by the fraud of his agent, was the only plaiotiff. While the mortgagee was selling, and before the mortgage was released, the mortgagee would have been the only proper plaintiff Your Honor will see that the action of the defendants was not excusable and was fraudulent. (Mr Justice Richmond : Yes ; I have formed no definite opinion on that yet. A perusal of the correspondence does seem to show an industrious concealment on Mr Griffiths’ part). Alter the release, the right of action of the principal against bis agent was not defeated. But Sinclair, the mortgagor, has a right of action against tho principal, Daniel, in rem against the land, but none against Griffiths, the agent of the mortgagee. In the case of Attorney-General v. Chesterfield (18 Beav., 696), it bos been laid down that an agent is liable only to account to his principal. (Mr Justice Richmond : In this case a tort is imputed. Does act that make a difference No tort is imputed by Griffiths again-t Sinclair ; it is merely a breach of duty by the agent to his principal, Sinclair may have a right of action against Daniel for a sale at an undervalue, but that is not alleged in

this action. He can have no action for Griffiths purchase of the land while acting as agent. Sinclair can have no action against Griffiths, except in r-m, for the- value of the land. Sinclair can only have a right against Daniel as c-stui que trust. Franco v. Franco (3 Yes. Jur„ Tl>) ; May v. Selby (1 Y. and C., 235) ; Korsley v. Fawcett (XI lieav., 585) ; Peake v. I.eiiger(B, Hare, 313); A Du v. Knight(s, Hare, J 72) ; parties can be added under the Chanc-ry practices (1, Cooper temp, i,'nttenharn, 33-52) upon the hearing of the dust; Correct v. Dor-ett (8, Jur., N.S., 146) There is no difficulty making a decree that the sale is fraudulent and void at Daniel’s electb n, and that it should apply equally to the Muellers. His Honor took time to consider his judgment. Webber v. Wright. Th’s was an application for a charging order. Mr Bell for the defendant, Mr Ollivier for the plaintiff. After discussion the application was refused.