SUPREME COURT.

Otago Daily Times, Issue 8077, 12 January 1888, Page 3

SUPREME COURT.

ago CIVIL SITTINGS. ;er- Wedxesdat, January 11. Dr (Before his Honor Mr Justice Williams.) ird, M'KISJfOX V. THE OTAGO DOCK TRUST. Dr Fitchett appeared for the plaintiff, and Mr J. F. M. Fraser for the defendant trust. , c Dr Fitohett stated that it had been arranged iou t'la. t tlle case sno"'d stand over nntil the next .jj e I eitting of the court. j er _ Ordered to stand over accordingly. ASHCROFT AX.I POjIPANY (LIMITED) V. . I R. B. DEXNISTON. g Action by bill writ; on alleged bill of exll ,. change for the amount of £5B 16s. Mr A. S. Adams appeared for the plaintiff he company, and Mr Mouat for the defendant. ln" Mr Adams, in opening the case for the ~r _ plaintiff company, said that the bill of exae change had been drawn by the defendant on the r'a Tjuiuru Hilling Company (Limited) in favour of the plaintiff, and that acceptance bad been ne refused by the Timaru Company. The stately ruent of defence, the learned counsel submitted, i e . admitted all the formal matters, which otherii- wise it would have been necessary to prove, or The defence was substantially that the bill had 111 been giveu for the accommodation of the JK plaintiff. Mr Mouat interposed the remark that there t, I was no bill of exchange in question, and that r- j unless his Honor decided that the instrument in question was a bill, it would be unfair that it should go forth to the public that a bill of exlf chunge given by the defendant had been dis- ' 1- honoured. l d Mr Adams said that the defence was that the 1 it bill or instrument had been given for the nc- i ■t I eonimodation of the plaintiff, and not for value. ' The bi!l_ and affidavits and certificate of in- ' corporation, which he put in, he maintained es- £ c j tablished a prima facie case, and that it would * i be for the "defendant to prove want of con- c 1 sideration. a 1 Mr Mouat raised as a preliminary objection ': t I that the stamp was insufficiently cancelled. The r 3 Stamp Act showed that it was necessary to put 1 the date as well as the name on the stamp, and c' 3 there was no date on the instrument itself. c I His Honor said that ie appeared on the face J1 ■ of the instrument that the stamp must have been 2 i I affixed at the time of the execution of the in- 6' I strument. a I Mr Adams said that the act required that tho ° date and initials should bo put on the stamp, or sl that the stamp should be cancelled in such a S I way as to show that it was cancelled when the s' I bill was signed. tl I His Honor :l hould think that is the com- fl I mon sense of it. g' I Mr Mouat contended that there was nothing to I to show that the company had refused payment. ' a I None but the directors would have power to c I refuse to accept the bill. ni j His Honor (bought that would be the case iv to lan action against the corcpany; but if a man an drew on the company and the bill was presented Pr lat tho company's usual place of business to tho su. I person in charge of the business, and that per- st> I son refused to have anything to do with the bill, ta: I that would be sufficieut prima facie evidence as sts against the drawer of the bill that acceptance of had been refused. thi Mr Mouat submitted that on tho merits of COl the case there was a good defence, aud after '^ stating the facts urged several contentions on en' thopaitof tho defendant—the principal being we that the instrument in question had been given A ' | for the convenience of the plaintiff, that it was 's l not a bill of exchange, and that it had not been Wi given for valuable considerations. cci For the defendant, C. S. Allen and R. B. Driini>ton were callnj j.inl ixmi.iued ; and Jlr ...

tJa-s. A»hiTntt, vbo in a tin ndiy way had !>• en roiim-ne '• in tniug 'v m ttli' the matter in dispute on beb/ill' of Ms nephew, Edgar Anheroft, inauujji g i(in-i;;orol the plaintiff company, gave evidence"f.r the plaintiff company. Counsel having b i.-n heard, His Honor gave judgment as follows :—" The first and most important point in this case is whether the document sued on comes within the statutory definition of a bill of exchange. Now the Bills of Exchange Act prescribes that ' a hill of exchange is an unconditional order iv

writing to the person to whom it is addresied to pay a sum certain in money,' and so oa. The third sub-section of the third section of the act enacts ' that au order to pay out of 'a particular fund is not unconditional within the meaning of this section '; and the third section also goes on to say that a statement of the transaction which gives rise to the bill is unconditional. Looking at the case of Griffin v. Weathersby, it seems to mo that the words ' amount of enclosed account assigned to me by Walter Prince' amount) to nothing more than a statemmt of a transaction which give rise to the till. As was put in the case of Griffin v. Weathersby, if the bill had been accepted unconditionally by the person u;>on whom it was drawn, there could be no question that he would be liable generally. In short, that these words do not amount to a statement of the funds out of which the bill is to be paid, but fh>w merely the justification which the drawer had for drawing the bill—namely, that the drawee owed him money. On what account he owed him the money would,in my opinion, be immaterial. That being so, has the document sued on been altered since it was executed, and if so, are the alterations of such a nature as to vitiate the bill '{ Now if the words 'on demand' had been inserted after the bill had been signed by the drawer, the case to which I referred—Cornwell v. Aldous—is a distinct authority for saying that the bill would not he in such a case vitiated, as the words do not alter or add to the ellecc ol the bill. It is therefore immaterial whether the words ' on demand ' were or were not inserted after tho bill was executed. The Icfcudaut now says that the words ' assigned to Imo by Walter l'rince' were not in the bill at I the time he signed it. That evidence is distinctly contradicted by the evidence of Mr Ashcroft ; and the affidavit of the defendant himself and the statement of defence also contradict his present statement, because in his Affidavit on which ho obtained leave to defend, and in his statement of defence, he set out the document, which he admits to have signed, verbatim, and that document includes these very words. I cannot hold, therefore, that it has been proved that these words have been inserted after the document wr.s signed. Tho next, question iv the action is whether the hill was duly presented for acceptance and pajur.nt to the drawee —the Timuru Milling Company (Limited). Now it appnnrs that it was presented at the registered otlice and presented to

the manager, and that the manager refused to accept it, and that he has written on it: ' Re-

ferre-l to maker.—Timaru Milling Company; J. B. Rutland, manager.' The company therefore have not only refused by implication to accept the bill, but there his'be-n a diiect refusal

by the person who has :o be the manager of the company

bien sworn . The Com-

panics Act authorises bills of r-xchango to be accepted on belnlf of joint stock companies by any person who is expressly or impliediy authorised to do so on behalf of the company. Now, it would be piaetically impossible for persons to know precisely who wero the persons authorised to accept a bill of exchange, and it seems to mo that it would be quite sufficient if the person who was actually managing the company's aifairs \v«s culled upon lo accept, and that his refusal to accept would be sufficient evidence of refusal to accept by tin* compuny. I hold, !hf-roforf,that the document sued on is a bill of i.xouange, that it has been duly presented for iu-wpi ance, and that acceptance has been refused. Tii..- dr«wtr, therefore, of tin- bill of i-xr-haiigu iliable, unless it be the case that there was no consideration for the bill. Now, Ido not see how it is possible, in the face of (lit- documentary evidence, to say that there wa.-. no consideration for the bill. Even if we put aside altogether, as Ihe defendant asks us to put aside, this letter of 23th October, which was read over to him and which he signed—if we put that aside altogether, we still have the fact of the bill, and of the endorsement upon the bill signed by Mr Ashcroft. The endorsement states :—' Received on account of this bill (the bill for £150) from 8.8. Denniston, tho guarantee, cheque for £37 8s Id, and order of the Timaru Milling Company for £50 6s lid.' The order, therefore, was given on account of a bill in respect of which Mr Denniston himsilf admits there was liability to the extent of some £93. How in the face of that it could be said that the older was given without consideration, I for my part cannot see. If the order is in fact a bill of exchange, as I have no doubt it is, and if there was valuable consideration for it, then it is not open for the person liable upon it to say,' Oh, this was not a bill of exchange at all.' I confess I can see no equities at all which the defendant has. If the Tiimiru company have money of his in their hands, there is no reason why he should not now get it. The reason why the Timaru company did not pay the- bill is uerfeclly obvious from the correspondence—nanrely, that they had a claim in respect of a turbine, which the defendant in this letter of 2Sth October had stated he would settle for with them, and which matter has not

yet been settled. For these reasons I am of opinion that the plaintiff is entitled to recover. Judgment accordingly for the amount claimed, with costF, disbursements, and witnesses' expenseii."

Mr Mouat asked that leave to appeal should be reserved. The court rose at 0 p.m.

The regular meeting of the Enterprise Lodge, No. 111, was held last night in Clark's Hail. Ths lodga was opened in due form, and the usual routine business was gone through. The balance sheet was read and adopted. The voting fordistrict president resulted iv a uuamimous vote for P.A. Bro. Shelton. The voting was as follows :— P.A. Bro. Shelton, 27 ;P. A.Bro. Bryant, 6. For

district representative, P.A. Bro. Mathieson received 23 votes, and P.A. Bra. Roughtou, 9 votes. Owing to no nomination having been

received by the lodge the previous night, it was ruled that the lodge could not ballot for Bro. Cormick. The following were elected officebearers for the ensuing half-year :—A.D., Bro. G. Capstick; V.A., Bro. J.Bond; Eeeretary, Bro. G. Stokes (re-elected); treasurer, Bro. James Quirk; 1.G., Bro. Hamilton; 0.G., Bro. Reid; A.O.B's, Bros. J. C. Burmau and Adair; V.A.B's Bros. Baker and Alexander.

A Caiid.—A clergyman will send free of charge, n prescription far the cure of all those who suffer from the errors and indiscretions of -youth, nervous debility, physical exhaustion, and eaily dee.iy. This (jrrat remedy was discovered by a missionary in Old

enclosing s'iamp lor reply, to Key. Joseph Holmes', Bloomsbury Mansions, Bloomsbury square, London, Km/laud. Mention tin's pnpiir.

—Jr. the year 1873 pig-iron was about 120s, and copper was £108 per ton in the yeai 1872. From these great eminences iron )ms No Good Phkachixg.—No man can do a j;ood job of work, prencli a good sermon, try a lawsuit well, doctor a patient, or write n good article when he feels miserable and dull, with sluggish brain and unstrung nerves, and none thoukl make the attempt in such a condition when it can be so easily and cheaply removed by a little of Dr Soule's American Hop Bitters. Bee other eolufliu.—Albany limes. 29