Court of Appeal.

Southland Times, Issue 13061, 8 November 1894, Page 3

Court of Appeal.

(By Telegraph.) Wellington, Nov. 7. Yesterday the case of Carden v. Gillett was argued. This case is an appeal from Mr Justice Denniston in another case arising out of Harper and Co.’s bankruptcy. In June 1888 Messrs G. Harper and Thomas Maude were attorneys for the plaintiffs, who are executors of Henry Blaine, late of Surbiton, Surrey, England, deceased, and Mr L. Harper was attorney for the defendant, the Rev. H.H. Gillett of Northampton, England. Harper and .Co. had previously invested money for the plaintiffs, one of the plaintiff’s securities being a mortgage from one Dftlton for LI 100. Dalton made default and in June, 1888, the property comprised in his mortgage was sold to one Aitken by Harper and C®. under the power of attorney from plaintiffs. In exercise of the power of sale in the mortgage the price was L 1209, LI 100 to remain on mortgage, but no mortgage for the LllOO was executed at the time. About the same time Harper and Co. received L 4500 from the defendant Gillett for investment and paid it into their account, which was then overdrawn to the extent of L 24,000. Afterwards they transferred Dalton’s land to Aitken, and took a mortgage from Aitken to Gillett to secure LI 100, crediting the plaintiffs and debiting Gillett with the LllOO in their books, but no money passing, they failed to remit the LllOO to plaintiffs. Harper and Co. having afterwards become bankrupt plaintiffs brought this action claiming a lien for the LllOO or the lands transferred to Aitken under power of sale in their mortgage, and that the mortgage to defendant should either be declared null and void as against them or ordered to be transferred to them. Mr Justice Denniston, however, held that they were not entitled to any of the relief claimed. From this decision the plaintiffs appeal. Messrs Bell and Fisher appeared for appellants, Mr Stringer for respondents. {The court, after hearing argument, reserved its decision.