SUPREME COURT.—IN BANCO.

Otago Daily Times, Issue 913, 23 November 1864, Page 5

SUPREME COURT.—IN BANCO.

(Before Mr Justice Richmond and Mr Justiec Chapman.)

COMPLICATED DISPUTK AS TO A STATION AND sum p. I

Russell v Muniio and Others.-We continue our suinuiars of the ntgument of Mr Prendergu,>t, lor the defendants, Carey and Gilles.

Mr Premiergast read the Affidavit of John Randall Carey. Ir set forth the agreement between Munro, and Carey, and Giles, and added that he was informed and believed that the bill of sale over the thetp was duly reaiatered at 'nvercargill. In the letter which the plaintiff brought to the firm of Carey and GilJes from Munro. the writer rtqups,ted that firm to give possession <©f the Dipto.i Bush Station, &c, to the plaintiff, and to forward his bills of exchange to Melbourne, on receipt of which Munio wrote that he wi.uld forward to Carey and Gil es a bank draft for the amount of his indebtedness to them. When he (Carey) gave possessiou of the station, he told the plaintiff thst Munro was largely indebted to the firm, and repeated to him the promise of Munro as contained in the sealed letter On n turni> g from the station he and the plaintiff stopped at Winton, 20 miles from Invercargill, where the remainder of the sheep were quarantined and possession was given of them. Munro's liabilities were again discussed there, and he (Carey) said that his firm held a bill of sale over the sheep. Upon his speaking of Munro's intention to dis--charge the same, the plaintiff rep itd that he believed Munro's intention was to discount his (the plaintiii's) bills in Melbourne, and s-o pay the iirm's deht It was subsequent to rhis thut the plaintiff handtd over the firs-t two bills of exchange given as to the firm ; and on the same ' day, he made a promi.-e as to the remaini> g bill, and added that he had every confidence in Munro. who probably wanted the hills to discount, When he (Cfti-ry) and the plaintiff caw and consulteri .Mr HuKtell. as their joint adviser, respecting a settlement as to the mortsace, he (Carey) mentioned that he expected the couise of post would bring a bank receipt for the amount i'up, which would rectify Ihd matter ; and it was subsequently that the plaintiff gave the bi 1 fcr L 2050 14s>2d. He (Carey) never promised immediately to remove the encumbrance held by the firm, nor were any orders given to prepare documei>ts for perfecting the sale.to the plaintiff: indeed, his (Carey's) understanding cf ihe result of the interview was that the preparation of documents' was to be held in a> eyanee til! he h;td heard irom Munro. The three bills weie sent to Momo, who could not. meet them, and they were returned. The poc eds of sheep sold tor the plaintiff were retained by the fi m : it was always the custom, in such cases, for mortgagees to retain the proceeds, ou account of principal and interest, unless there was some stipulation to the contrary 'Ihe affidavit of Mr Husseil corroborated that of Carty as to t) c interview before mentioned; and Ihe plaintiff bad fled a reply, declaring that ins tractions in writing were given to Mr Mussel), and that, if they were produced, it would he seen that his agreement with Munro wa> to be corried out in its integrity, iree from auy olaim by C <rey or his ia<tnfrs. M'Crae's. affidavit stated that when the plaintiff and Carey came to the station, for the giving and tailing possession, he overheard them conversing. He heard Carey say — " th>it the greater portion of the proceeds of the sheer) would go to pay them off;" to which the plairtiff -replied, ''he knew Munro was indebted to their firm, bur. he did not expect it would crime to so much." O" or about the 18th of August, he saw the plaintiff in Invercnrgill. The plaintiff asked him it' he had executed the mortgage to Carey nud Gilks, and wnat amount it was for; and whrn he had replied, "he had thought there was something of the kind, but he did nut i xpect ir. would come to so much." The affidavit of A. W. Gilles wns mainly corroborative of that of hi 3 partner, Carey. liut Gilles also stated that he veiily believed that on or about the 27th July, when t!:e plaintiff had just ar'ived .from Melbourne, he informed the plaintiff that "Munro was largely indebted to Carey and Gilles ; and that Munro intended to apply the plaintiff's bills to the payment of the debt. The plaintiff had told him since the giving of his evidence, that he wmld, under any circumstances, have taken possession of the station and sheep, to secure the acceptan' es for LSOOO he had given t■■> Munro. Mr Prendergust commented upon the •essential parts of the different affidavits, to show that the probabilities were in favor of the account given by anil for Carey and Gilles. They'might well put the plaintiff into possession and allow him to deal with the sheepto tome extent, seeing that they expected the bills he wns to give would enabla Munro to forward a bunk receipt for the amount of their claim, and then they would have betn in a position to give up all security over the property. The simple fact of the registration of the bill of sale, which the other :Side did not attempt to question, was a reply to anything like a charge of fraudulent concealment on the part of Can y and Gilles. Unless the -plaintiff made out a case that did not a'irnit of a doubt, the injuncton ought to be dissolved, ■ becnu-e the burden of proof lay on the plaintiff. Child v. JJovglas (5, Mac. and G. 739). At the time of i c agreement, Munro owed Carey and Gil'e* LBQOO, and the amount was now increased to over LIO.OOO. If Carey and Gilles were to be prevented from setting up the bill of sale, the plaintiff would bo at once in a position to do what ho pleased with the property. lie might turn everything into money, and set the holders of his own bills, as well as Carey and ■Gillee, at defiance, Mr Justice Richmond : I think it is clear that. he has agreed to give Munro a security over the run. Whatever relief he may seek or may get here, he must do equity. Mr Bar on : And he steles his readiness to do it, in at least two paragraphs of his affidavit. Mr Justice Richmond : If he gives security to Munro, Carey and Gilles will get the benefit of it.

Mr Justice Chapman : And, at. the same time, they may make these hills pood bills by holding, on behalf of Mnnro, the security on the station. Mr Pre-ndergnst sairi that Carey and Gilles •would pny the three bills to the order of the •Court, which might thin see its wny to making an equitable order bttwem all the parties. He (Mr Fremierpast) i-übmit.ted that the nets of Munro nnd of Carey and Gilles, in respectively taking bills frcrn the plaintiff, were totally distinct, neithi'i-set. fifle'jtiiifj the doers of the oilier ; that upon the merits tloe ii junction ought not to be affirmed; and that if the three bills were paid inlo Court by Cany and Gilhs, they ought to be allowed to set up their bill of sale. YESTERDAY. Mr Barton replied to the arguments advanced ty Mr i'lenderfrast, nr.d snid that nn the 7th of August, when the pluiutitf came into possession of tbe station, the defendant's agerits, Carey anO. ■Gilles, (rave n receipt for the bills, and in this, -and indeed throughout the whole of the written documerts, there was no mention of the hill of sale. The ai»r?rnieiitmade in Melbourne was for the sale of H,OOO f-hecp, hut when the plaintiff came over here he found thot this jiumbnr had been reduced to 12,054 sheep, with 108 fat ■■wettf-rs to be added. Up to the 17th of August, ten days after the plaintiff took possession of the station, no information was given to him as to the • existence of the bill of sale, and he was thereby HAMS AND BACON,

prove)'ted from taking such steps as would have stopped the negotiation of the bills of exchange in Melbourne. J'Uiing the interval between the sale in Melbourne and the ■ luintihV taking possession, Messrs Carey and Gilles hi.d sold ahou f 900 of the sheep, and he (Mr Barton) thought he was new entitled to demand that the proceeds of these sales should be paid into Court for the uurcose of bring applied to ttie liquidation of the L4OOO bill.

JMr Justice Chapman: Under this motion we cannot entertain the questiua of paying money into Cqurt.

Mr Justice T\ii'h;nond : Your client is not at present entitled to exercise ownership over f'is property. Are yon willing to submit, to such terms as would render this run and property available for the duo retirement of these bills of exchange when they fall due]

Mr Barton said the equity was now somewhat changed. If the parties had behaved ftiirly the property shiuild have stood to meet thes« bills, but now the plaintiff was in the position that he wts hardly able to carry out the contract in its integrity. The limit over which the bills were to run wa9 eighteen months, iiut the defendants had placed the station in such a totally altered position that the plaintiff could not make use of it for the purposes of these bills, and he was placed in a position of great difficulty (is to the LSOOO worth of bills. He hoped the Court yon d look at it in a very different light now aud would hear whit a jury had to say as to the amount of damage which the plaintiff had sustained. He would ask to be recouped the amount of that, damage. It was inequitable for Messrs t'arey and Gilles to say that they would cling to the money whii-h th>-y held from the sale of sheep, and not allow that money tn go towards the liquidation of the bills Why should they prevent Munro from renewing his bills ?

Mr Justice Chapman : The property is at present in your hands. The injunction might be continued if you consented to a cross-injunc-tion. 'I here i.-< a difficulty as to the bills being paid into Court. la the officer of the Court to give notice of dishonor, and is he to be pro-euuted for neglecting to give that notice? The Court can only deal wi'h actual money, or with a deed which is unalterable.

Mr Barton said that to his mind the great difficulty in dealing with the case Was Mr Munro'a absence from the jurisdiction of the Cou't.

Mr Prenderga=t intimated that Mr Munro was at present within the Court's jurisdiction. Mr Barton was glad to hear it, as he would be able to serve him with a process. If a receiver were appointed, he would have power to deal with the property, so long as the parties con^e tsd. The sheep must be shorn, and the plaintiff whs willing that the proceeds of the wool should be paid into Court, to abide the result of this suit, fie thought the Court should allow the receiver to sell such propeity as would meet the bills as they fell due, becaue the plaintiff was suffering severely, in consequence of having to deftnd several actions, arising u-om the dishonor of these bills.

Mr James Smith thought there was sufficient before the Court to enable it to continue the^ injunction until the hearing of the o^se. No mention had been made to the plaintiff of the bill of sale until he had tiken possession ot the stition, and this was sufficient to show that some fraud was intended. There was strong confirmatory evidence of what took place on thnt oci'aion Assuming that there was a suffi'ient prima facie case that the existence of this security was studiou>ly concealed by Carey and Gil es from the knowledge of the plaint ff, until he had (jiyen his bill for a large portion of the money; this came within the principle of estoped, as set down in tha case of Picard v Hears (6, Adolphu-i and BUN). Trie concealment of this mortgage on the part of the detei riants, did cause the plaint ft to alter his position, and there was a clear f quity in favor of the plaintiff, which entitled him to have the defendants restrained from setting up this instrument to his pre-

judice. Mr Prendergast said that if the present case came within that of Picard v. Sears, it only amounted to a case of trespass, aud there was no necessity for the plaintiff to come into that Court This gave him a right to have the injunction dissolved. Supposing1 that Mes«w drey and Gilles had induced the piainiiff to pnrt with bills to the amouiit of L7OOO, they were entitled to have the injunction dissolved at least over that amount of property in order to allow them to eive phiintift security. 'Ihj whole of the affidavits which ha 1 been produced on the defendants' side showed that there had ben a couversation between the parties by which it was understood that Mces-s Car-y and Grilles were to be paid by the monies to be obtained by the discount of the plaintiff's bills. If the plaintiff did not take the usual trade precautions under such circnmstatices, he was not vow eiitit!fd to h;ive oil the consideration of the Court. There might have been equal larihps on both fides, and one party should i>ot be more bwily dealt with than the other. The plaiutiff asksd that he should bi left in full possession of the sheep, to deal with them as he thoushr, fit, while Messrs Carey and (iilles were being kept out of a very large sum of money. He thought (he plaintiff should be restrained from deding1 with the sheep until the hearing of the case.

Judgment on the injunction was reserved until Friday. Mr Bart»n then moved his motion for the appointment of a receiver. This was the only proper mode in which the property could be r'ealt with for the protection of all parties. The plaintiff' was answerable for these LSOOO worth of bills, for which he had got somehow to provide. He asked that the Court should allow this money to be raised irom the aale of the sheep. He hoped the other sHe would have no oljaction to the appointment of a receive, as the sheep mu-^t be shorn and dipped, or the result would he the loss of the great bulk of the property. Mr Frendergast had no object on to the appointment of a leceiver. Mr Barton then proposed Mr Henderson Law, of Messrs Morrison, Law ai;d Co, as rec-iver.

Mr Prendergßst objected to this app"inment, as the gentleman named was the plaintiffs agent.

Mr Justice Chapman said tint if the pnrlies could not. agree as to the gentleman to be appointed; the matter would have to be referred to the Registrar of the Court. The ordf-r was then mnde for the nppointnient of a receiver, power to receive all monies, to pay the same into Court, to apply to ihe Court from time to time, and Mr Russell, the plaintiff, was appointed manager of the station u.der the receiver.

Mr Barton moved the motion for the payment into Court of the bilU of exchange and all monies in the hands of Messrs Carey and tfilles realised from the sale of sheep on the run in question. After ,i short argument, in the course of which the parties could not agree as to the amount said to be in the hands of the defendants, an order was made that, if the parties could not agree on this point before Friday, the matter would then come belore the Judge in Chambers. AN INTESTATE ESTATE M'Lean v. (JuaioiaN (Registrar).—Thia was a motion ior a decree in the estate of John M'Loan, deceased (which has been administered by the Kegistrar of the Court), in order to have the rights of the several claimants ascertained and fettled, and the money ordered to he piid over Mr Barton appeared for tiie plaintiff j, the irifunt children <,f the deceased; Mr Cook for tlie widow of the deceased and her second husband, Mr Hrey; Mr J. Smith for the trustees in Grej's insolvent estate ; and Mr Turton for the official administrator. Mr Barton srdd that by the order of the Court, on the 22nd February. 1861, the deputy-registrar made a certificate defining the rights of the various parties claiming on the estate, and tlmt th<? hulanee in the hands of the rfgistrar was L"22,350 18s 6£d. He asked for decree declaring th« rights according to tlie certificate. Mr Cook asked the Court to ta!<e into consideration whether the trustees ol ihe insolvent estate were entitled to the portion allotted to them; and also whether the wi'low was not entitled to a larger share. There wis no argument, but judgment was reserved. The Court ar'journed to Friday, at 11 o'clock, when judgments will be given in all the reserved cases. WITHOUT RESERVE,