DISTRICT COURT.

Oamaru Mail, Volume IV, Issue 1239, 7 April 1880, Page 2

DISTRICT COURT.

THIS DAY. (Before His Honor District Judcro Ward. CIVIL CASE. Thomas Richmond v. William Aitken, —This was a claim for L 165, the of a dishonored bill of exahang^. ■'Mr; Q'Meagher appeared for the plain: tiff, and Mr. Hislop for the defence. The plaintiff sued on a dishonored biU of exchange, of whioh he was the payee and holder, The defendant pleaded that the bill was given as a renewal of a previous bill given without consideration under the following circumstances :—The defendant bought from the plaintiff a cert tain leasehold property for J4.92, the amount of certain liabilities'due it;whiqh thp plaintiff was unable to'meet'. The Property, however, tq be worth more than this sum, and an this account, after the leasehold W\B assigned, the defendant verbally stated that if lie sold it at a profit he would Bhare this profit with the plaintiff. In pursuance of this promise he afterwards gave plaintiff a bill, which was afterwards renewed, the renewed bill being the one su?s upon," The property wag fleyer gcjljl a£ a, pfqfit, and j}c> gqngideratioin that} thq promise above mentioned was given fop the bill! This promise was void as given without consideration, and the bills given in pursuance of the promise were thorp* fore also void as between tlio parties. The alsoj)leaties qflmpbsitjp^ deed uricler \ c The IJebtora and Creditors Aot. The defendant was first placed in the box, and gave ovidence to the effect mentioned above.

The plaintiff, on being oalled by Mr, Hislop, atated thnt the first bill hat! bpoii obtained front the defendant by Mr. C. §. Allen qn consideration of tha plaintift paying off his brother's overdraft at tha bank. Tho bill was obtained as the plaintiff's interest in tho property. The first bill was given after the proporty had been assigned by tho plaintiff to the defendant His interest in the property amountod tq a half of the profits that might bo derivable from tho sale of the property. Mr. Allen had expressed himself diasatisfiod with tho bargain, and obtained the bill for Ll5O and handed it to tho plaintiff, saying that he had received it from Mr. Aitken for the plaintiff's interest in the property,

The defendant, on being re-called, stated that he had promised the plaintiff that if ho sold the property at a profit he would share the profits with the plaintiff, and it was on the strength of this promise that the bQI was given. After giving the bill to Mr. Allen, he had told the plaintiff that the bill was given on the understanding that he woald pay it if the property coaid be sold at a profit of L3OO, or would pay a lesser sum if the sale of the property realised a smaller profit. The property had never been sold, and the Building Society had taken possession of it.

In reply to Mr. O'Meagher, the defendant stated that the property had been offered for sale, bat not sold. He had received an offer for the property, but that oSer did not reach the mortgage by LIOO. He had received rent from the property for aboat ten months, but he could not say exactly what the amount was. He had paid something like LGO or L7O upon the property, and had also undertaken the responsibilities connected with the property, which the plaintiff was unable to meet. The bill for Ll5O wa3

nut s»iven in discharge of any claim that the plaintiff had upon the property. He might have said to Mr. Allen that he thought he could make a profit of between L3OO or L4OO out of the property. Mr. O'Meagher said that his instructions were that a promise wa3 made to give the plaintiff half the profits prior to the assignment of the property and that it was on tht3 understanding that the deed wa3 signed. No doubt Mr. Aitken afterwards saw his way to making a larger profit and determined to give the plaintiff L 350 at once in order that he might not participate in the larger profit. Charles Stanley Allen, lately manager of the Bank of New Zealand, stated that the bills were obtained from Aitken as collateral security for the Bank for money owed by Richmond. The arrangements between the parties were not made in his presence. Both parties had interviewed him separately, and he rather thought they both came to him together, after arranging this business. He understood that there was some business between the parties with reference to the sale of some property, and he was under the impression that the bill wa3 given as payment for the property over and above the mortgage and other liabilities upon it. He knew from what they had told him that there had been a sale, and that some negotiation wa3 going on between the parties with reference to it. He did not think there was any restriction or condition attached to the bill at the time that it was brought to the bank. He understood that the bill was for the amount over and above the mortgage that the property was sold for. Aitken was at the time supposed to sell the house, and the bill was given and accepted to give him time to obtain the money to pay the balance of the money. In cross-examination by Mr. Hislop, Mr. Allan stated that he was not aware that the deed had been signed when the bill was drawn. He did not know that Richmond was to receive a certain sum conditionally upon the sale of the property. He had not gone to Aitken about the matter. Richmond had told him that he had sold the property to Aitken, and was to receive a sum of money over and above the mortgage, and he told Richmond to gi) to Aitken and get the money, a3 he wanted further security for hi 3 money owing by Richmond to the bank. The plaintiff wa3 again put into the box and examined by Mr. O'Meagher, but he appeared to be oblivious to everything connected with the case, and only with great difficulty could an intelligent answvr be obtained from him.

During his cross-examination by Mr. Hialop, he stated that ho understood that the btll was given as his share of the profit likely to be realised by the sale of the property. The arrangement he made before signing the deed was that he wa3 to receive half the profits that might be made oat of it besides what was mentioned in the deed. Before the bills were given he did not expect to receive anything until the property was sold. Mr. Alien negotiated for the bills, and he had not made any transfer or executed any deed nf release since getting the bills. He had not asked Attlsen to pay the bills until after he had Sled, and did so at a meeting of Aitken's creditors to consider the deed of arrangement. He told Aitken then that he intended proving in the estate. To Mr. O'Meagher: No arrangements had ever been made between him and Aitkin as to any definite sum to be paid fur t{ia settlement of mattere. It mast have been fixed between Allen and Aitken. He had not asked Aitken for payment of the first bill after it was dishonored. He was cat of town for the most part of the time. His Honor here remarked that the three witnesses had contradicted not only each other, but even the deed of assignment itself.

Mr. Hfslnp then addressed the Court, and pointed out that the plaintiff had admitted that he did not expect to get anythin? except half the profits of the sale of ffve property. He submitted that on the evidepce pf the plaintiff alt>ne the case mast be dismissed, as ha had failed to show that any consideration had been given for the bill. Mr. O'Meagher said he had that it had been part of the agreSmient between Aitfcen and Richmond before the deed was signed that Richmond was to ruceive half the profits on its sale. The plaintiff was in this matter placed entirely at the mercy of the defendant. He had no doabt that this bill for LISQ had been given as a final settlement of the matter, pnd to this conclusion the evidence pi Mr. Allen pointed. He had had Very "great difficulty in getting any information oat of the plaintiff. He had been led to believe that Mr. Allen would bo & very material witness, and that_ he would clearly establish the plaintiffs claim to recover. He (the learned couniol) could not shut his eyes to the fact that the plaintiff's right to sue had not been established, and he therefore preferred to tafce a non-suit. ' His Honor: You are wise, 3lr. Q'Meagher. Th» plaintiff was then non-suited with Coats, IS BANKRUPTCY.

In re Andrew Bell.—Mr. O'Meagher moved for the issue of an order directing the Trustees to show cause why they should not call a meeting of the creditors to consider the question of bankrupt's discharge. His Honor, after looking over the affidavits filed, said that the notice given to the Trustees wa3 not in proper form. It called upon the Trustees to sign a notice calling a meeting of the creditors " for the parpose of passing a resolution that the debtor be forthwith discharged." Now, it appeared to* him that the trustees, not being satisfied with the disposal of the debtor's property, could not be asked to call a meeting for the express purpose of passing such a resolution. Were he (his Honor) a creditor in an estate, and not satisfied with the disposal of the property, }ie would certainly not sign such a paticp ass that required from the trustees in this jnatter.—Mr. O'Meagher aaid this was the o3oal form of notice given in these matters. Hi 3 Honor remarked that the form was decidedly a wrong one, and that the calling of a meeting for the specific purpose of passing a resolution for the bankrupt's discharge was calculated to prejudice the creditors,—After aome furr ther argument the application was withdrawn. In re John Lewis.—Mr. O'Meagher applied for an order for tltc discharge of bankrupt—Granted. In re William Johnston.—Mr. O Meagher applied for an order for the bankrupt s discharge—Granted.

In re William Lee.—Mr. O'Meagher moved for the discharge of the bankrupt ~ln're'lMbert William Stewart—Mr. O'Meagher applied for an order for the bankrupt's discharge—Granted. In re John Brown.—Mr. Balmer applied for an order for the payment of the debtor's Solicitors out of the estate. — Order granted. In re Edward Hudson—Mr. Balmer moved for an order for the discharge of the bankrupt—Order granted. In re William Hillier—Mr. Nevrton applied for an order for the bankrupt's discharge—Order granted.