SUPREME COURT.—IN" BANCO.

Otago Daily Times, Issue 912, 22 November 1864, Page 4

SUPREME COURT.—IN" BANCO.

MONDAY, November 21sr.

(Before Mr Justice Richmond and Mr Justice

Chapman ) Their Honors took their seats shortly after tea o'clock. A complicated dispute as to a station AND SnEKP. Httsselt, v. Munro and others —Wr Bartoa and Mr James Smith appeared tor the plaintiff; and Mr J m»s Prendergnst for the defendants^ Carey and Giiles • On the llth October, on hearing Mr Barton, for the plainiff, Mr Justice Richmond granted an order for a writ of injunction on the defendants, and a writ was issued on the 13th. It was addressed to John Munro, of Melbourne, merchant,, and John Randall Carey, Alfred Willi-m Gilles, and Louis Brig-gs Gilles, of Invercareill, auctioneers, trading under the firm of Carey and (Jilles their servants, ice. It set forth that James Ure Russell, of Dipion Bush station, Southland, had brought >an action against the defendants named, whereia he complained that Munro had agreed to soil him the Dipton fush Station and 12,670 sheep, with oth«*r beasts and improvements, and hud taken as part, payment therefor, two bills datid the 2 th July. 18G4. one at six. months, on the Union Bank, Melbourne, for 1.1000, and the other at three months, on the Oriental Bank, Melbourne, for L 4010; that byway of further payment., Carey and (ii'les had taken three bills, dated 20th July, all on the Oriental Bank, one at four months, for L 4200, and two at five montfm, for L 230!) and L2iso 14s2d respectively; that the station and stock had not bren asigned to him. free from encumbrances according; to the terms of the agreement; that Carey and Giiles held,, or professed to bold, a bill of sale on the sheep and stock, dated the 9th June last, given by Munro j. and that Carey and Gil'us bad tlir-atentd to put the bill into torce Wherefore, C;irey and Gilles were commanded to absolutely desist from commencing- or prosecuting any action, ?c, uuon the hillsof exchange, to refrain from parting with, &c.,. the said bills, or any of then', and to refrain from makingany seizure or f ale, or exercising any other powers nnrier the bill of «»le.

<'n behalf of Corey and Gilles notice had been, given t»move to rescind the order, and to dissolve the injunction as restraining1 them from commencing any nc'ion or making1 a seizure, or on the following erounds: I. That the (said orner and the said writ ot pjuncti n, in so far as they relate to the prosecution of acy action upon the said bills of exchange; and ihe siizure and sale of the sheep, are absolute and perpetual in their term% and should have been made and issued only after notice to th> defendants. 11. That the declaration is defective anddemmurahleunon the grounds thif. Alexander Ogg, J. H. DodgshuD, and Willjam Cameron persons therein named,, are not pariien to the swt; 2 that there is no allegation in the said declaration, negativing: the registration of the said bill of sale; 3, that ihe declaration, improperly joins money demands not sanctioned by Rule 445. with a claim fo;1 specific relief; and, 4, that the declaration is mv tifarious both as regard-3 th j parties to the suit a^id the relief sought. 111. *nd upon the grounds disclosed the several iiffiiavits of the said J. R. Carey Win, Kussell. Duncan M'Bae, and A. W. Gillea sworn nnd fi'ed therein.

Mr Prfiiderpasr now moved the Court, in accordance, with notice.

Mr Barton (af er r'isfiis'ion) was allowed to» read an affidavit by th« plaintiff, setting forth that he was in'ormed by his wife, by letter, tbat on the 7th November, Oarey and Giiles took possession of the station ami sheop, and served a notice addressed to Munio. deman-ing payment of LlO 669 as due uuon bills of exchange, togetherwith interest at twelve per cent, and statingl that unless payment was made within a month, they wou'd s*ll the shrep uiider their bill of sale, whereby 14,i00 sheep were transferred to them by wny of rnprttrxcre, to cover moneys due and advances that might be ma 'c ; that the bailiff had given notice thai be would sell nn the 7th December; nnd that he (the plaintifi) believed that this would be done, in contempt of the injunction of the Court to the contrary. Mr Barton submitted that whether sending a bailiff into possession was or was not. a contempt, the servingl of the notice was crtainiy so ; and th t the motion for injunction ought not, under the. circumstances,tobe heard.

Mr Justice Ghapman thought that the affidavit should hn- c set out the letter of the wife and a copy of the notice. '<"o charge a pir'y with contempt upon such an i.ffiJavit would be going very tar.

Mr Barton saiil that the proper materials had been sent for. He though* there was ground enough for saying that the defendants should not now be heard.

•ir Justice Richmond held that the motion should he henrd. Was there any authority for the iproposition that; the Court might refuse to hear nn app ication for dis-o!ving an irjunetioD, upon less tvi ence than woul 1 he sufficient upon which to ha-e an application tor committal for contempt, ?

Mr Barton cold not say that there waa.

Mr Prenrlergast npplied for the dissolution of the injunction, on the ground that the writ was. in part at least, abolute in its terms, which it should not be.

The application w?s overruled; and an amendment ol the writ (wbich, in the particular objected to, followed tht! it e>). was allowed.

Air Prendergast addresso1 the Court in support of the motion,, rending virious affidavits, &c. By the agreement netwen Munro and the plaintiff, all the bills given we<e to- bear the name of Cameron; but 'his had not been carried out. Munro was to have security over the !ea«e of the run and all th« sheep to lr> sold, for the payment of a'l the bills; but there was a certain power of renewal within a period of IB'months. The pi lintiff in "is affidavit, set forth that a sealed letter was Given to him iy Munro, for presentation t) Carry and Gillss,. who were thereuuon to give him prnssssion; that he pre« nted the let'er on the 23'h July, and took delivery oa (he 7th August, when he gave Carey and Gilles the bills for 14200 and L2300j and that up to that t me, be hail not. heard anything of a debt by Munro to Cavey and Gillea, orof the litter holding a bili of sale. The receipt, for the two hills was given by C-irey and (Jilles as " agents f"r John M unro." The affidavit set out the bill of s\te. By it., Munro undertook to take care of the sh"ep. so lona as the security to Carey and Gilles hail to continue ; Munro was not to remove any of the sheep without ths cmssa.t in writing1 of Carey and Qille*, and if any were otherwise remove'!, Cirey and (-Ji.lles u.ight seize them when'soev-T they might ba fimtid. 'I'he bill of sale wa-s executed by Duncan Mvßie, as attorney for Munro, in the. pre-enc of Wiliiara Kuasel'l, solicitor, Invercar<rill. The plaintiffs affidavit further s:t forth, that tUe purchase by himself from Munm. of the leass and the sb.eep, was finally arrange.! with Carey and GiU.es on the 17lh August; that he then paid thr ; remainder of the bills of exebaago, anij JW'iVid a receipt ALSO,

as for Ll!3 515 in the whole; that afterwards he went wiih Ctrey to the ohVe of Mr hussell; thtwhe then heiird tor the flrot time (fora Mr Russell) tlmt Carey and Hilies held a bill of sale over the •sheep : that Mi1 C.troy :it ones undertook that the encumbrance shonl I be lemovei ; whereupon he ami ' larey gave Mr -us.su 1 instructions to prepare such rloimm nts as were necessary to complete the Hgr»r>me r. between Muniv> and himself (the pltiint'ff) Further, the p'uintiif stated that Mr Kussell inforine i him that t'l* lease of the station ba:l never been legally transferred from Alexinder Ogg, the lessee, and lit; (the plaintifl) wasi-i pos; e3s'on under the ogeement of the 20th Jury, ami in no other w«y ; ibar. after the 17th Augii-t, he frmu time to time employed Carey and Gilles to sell sheep oft the station, and that they did sell 9W) or thereabouts, the proceeds of which (ilGOl) or theieahouis) he diected them to pay to his credit into the liiuiic ot OtnjfO, at Inverciiruill, iufo;min!»-1' em that he intended to forward the money to Mslb.<unie. l>) meet the L4OOO bill, due on ihe 23 <l October; and that Shortly after this, hs received *» letter from Carey and Gilli!-, d;>t;d ths :i:d September, fn tha f. letter, an exp'a'iatifn w.-is given wliy Ha'ey and Gilles declin-d, pro (cm, to pay the proceeds of the sale of t.be 9M sheep to the [;l-.i»!iff\-> credit. The plaintiff's agreement, (thi-y said) wns not yet thorouohiy completed ; beanies, they hid tola the plaintiff that they held n hill of sale over the sheep, by which all removed must, pass through, their ha»ds as-agents, none heing ro uovable without their consent in writim: ; and their claim was not, >vt settled by Munrn, but they hoped and apprehended this would not be inconvenient to the plaintiff, a- they expected n letter hy the course of post, which wnul<l no doubt rectify the whole matter Cont.inuiig his affidavit, the plaintiff stated that Carey and G lies ius'iitea upon their right to retxiu ihe proceeds of the sale of the 900 shnep towards th« liquidation of their advances to Munio, amounting to L63ot>, or thereabouts ; that Carey and Gilit-s had prevented tis carrying out th». advantageous aale of other portions of the sheep ; that having made a sale of 100 she-, p, Carey and Gil es had compelled him to pay over to them the proceed*, under a threat of seizing the sheep so cod ; that the consequence had been that the I 4000 hill was not !inet in Melbournp, and the plaintiff had had ti send other bills to Muriro; thaf. Uwrey and Gilles ought not to be allowed to set up the bill of sale, after inducing him to pay them the three bills of exchange, but that tliey ought to pay to him, or into the Court, the proceeds i' their hands, so that they might be applied towards the L4OCO bill; that. Munro hal ■written to Carey and Gilles a le'.ter which had been shown to him (the plaintiff), stating that he (Munro) should be un-ible fr> renew the hills he held without assistance, which Carey and Gilles had refused to give; that Carey and Giles still ■Leld Ihe bills given to them; that Dorlgshun and Cameron had become parties to the bills in faith that the agreement with Munro would be fairly carried out by Mm sigents. Whereforf, the plaintiff prayed that Carey and Gilles mii>lit be compelled to answer the several premises set forth ; that in ciss any of the bills hftd bi-en negotiated, and were now in (lie bunds oi hona fide holders for valuP, wihout notice, tho sheep and station might he sold, an.l the proceeds be paid into Court, to he applied, in thft fist inftutiee, to the payment of the bills for which the sureties were liable, and in payment of the expenses, and tint the balance, if any. should be paid to the defendants in acoroaiiee with 'heirßeveral rights; that Carey and Gilles might be decreed to pay such compensation to the plaintiff, for losse* from the non-sale of sheep, as the Court might think fit; and that in the meantime some proper person might be appointed as receiver, and the unnegotiated bills of exchange he de ivereri up to him. This affidavit, ho (Mr Prederjrast.) submitted ■went vo further than the declaration; and nothing tppeare'l in that declaration to show that the plcinlift was at all induced to enter into the agreement with Munro. by anyihing which it was alkged the other defendants did. The case did Dot tall wiihiu any of tho«e cases m which one party had been induced, by a third party standing by and concealing alleged rights, to enter into a contact, or to deal in any particular manner to his prejudice There was no allegation that ■when, ou the 17th Aueust, the plaintiff, according to his affidavit first heard of' a considerable debt :by Munro. and of a bill of sale over the sheep, he expressed grent surprise, or that he asked to have the bills of exchange given back and an end put to the arrangement for sule. In the case for the plaintiff, two quite Hstinct matters, if not three, wre being' mixed up and confounded. j'iVo bills W!-re given to Munro in Melbourne- Clearly, there was no pdvity of the other defendants with respect to those nil's, and they ougH not t» have been made a party to any proceeding with respect to them. Mr Justice Chapman: You say that you have nothing to do with inequitableennuuet of Munro, in Melbourne, which led to lihe plaintiff parting with LSOOO vrr rth of bills.

Mr Prendergast -. Quite so. As to the other bills, the case was really not different; for it was evident that the three' defendants were quite as anxious to protect themselves as against Munro, as the/ were to protect thunselves in r- ference to the claims to possession of the sheep and station on the part of tlie plain tiffJ|A.3 iv the proceeds of the sale of 900 sheep, (We engagement of,the three defendants was an ordinary one ; and any relief should hive been sought in a distinct form. It might well have been by an action at law ; but if prayed In equity, there shou'd certainly have been an independent bill. During the whole currency of the different bills, the run and sheep -were to continue to be a security to Munro. How, then, could the plaintiff allege as damage, consequent upon anything ilono by Carey aud Gillea, that he feud not been able to convert the ■lease of the run, or the sheep, or any part of them It was admitted that, although the plaintiff gave instructions to liussell, the solicitor, to prepare deeds, &c, none hud been prepared ; and it must therefore be assumed that up to that time Munro had no security. The proceeds of the sale of the 900 slvep were directed to be paid " into the Hank of Otago," so that it appeared that thu plaintiff was dealing ■with the property as his own, apart from the still •■existing' riiiht of Munroe. There was enough on the documents to lead to the interenc ■ that negotiations were going on betweru Carey and Gilles and Munro, by which the plaintiff's bids were to go towards the satisfaction' of the claim of the former —that the two matters were to be settled almost concurrently. The allegations in the affidavit with respect to l>odgsh»n and Cameron entitled Oarcy and Gilles to a dissolution of the injunction. It rel'ef was wanted for Dodgshun and Cameron, they should have been made parlies to the bill ; if such relief was not asked, the matter had no right to be mentioned. Even if, on behalf of Carey aud Gillep, evidence to outweigh that of the plaintiff could not be produced, yet if the Court could be satisfied that ths plaintiff had not, in the declaration, orin his affidavit, fairly and fully stated the facts, that would still entitle Carey aud Gilles to the discharge of the rule. There was an affi Javir. by the plaintiff, filed in support of the declaration, for at' the time the defendants had not replied, in which he stated th'it after the delivery of the sheep by Carey and Gilles, be consulted Carey ■with respect to the sale of 400 of them to one Gilmore ; aud that, with Carey's consent, he did sell them, and drove them to another station, over which Car-y and Giles did not pretend to have a>y cantrol. Very likely this •was so. Carey and Gilles might have consented to this sale ; and it was only a reason why they should afterwards the more stringently assert their rights. In another affilivir, which was filed in unswer to that <>f Carey and Gilles, the plaintiff contridicted, iv a material poiat, his first affidavit, and showed that he waa not in bo disidvantageous apo.'ition as he had pretended to the Court, and that he did know of the bill of sale, before the payment of one of the bill*. We hold over the remainder of Mr Prenderfrast's address, at the conclusion of which the Court rose.

A patent has been taken out by Mr Tlhoinas Boyle, lighting and ventilating engineer, tor a simple plan of ventilation by means of holes inserted at the top and hottorn of; window-saßhes, the upper for the escape of foul and heated air, and the lower for the ingress of\fresh and cool .air from without. 5111 PACKAGES IEA,