MAGISTRATE'S COURT.

Star (Christchurch), Issue 5581, 31 March 1886, Page 3

MAGISTRATE'S COURT.

(Before R. Beetharu, Esq., R.M., and R. Westenra, Esq.) Alleged Embezzlement. — Henry Clements was charged, on the information of Francis Innes, brewer, hia former employer, with appropriating to his own use 255, received on behalf of his employer in three sums, between Oct. 3 and Dec. 20 List. Mr Kippenberger appeared for the prosecutor, who, he said, had been under the impression that tho police would take up the case, but they had not. MrWeston appeared for the defendant, who had previously left for Wellington, and had returned voluntarily without receiving the summons.

Previous to these proceedings Mr Innea had been Bued by Clements for wages, and judgment given against him by default. He had since obtained a re-hearing of the case on condition that he paid Clements' travelling expenses. Mr Kippenberger said he had as yet no instructions in the criminal action, and it was arranged that both cases should be adjourned to April 6, the criminal case to be heard first. Defendant was allowed to go without any recognisances being demanded. dVIL CASEB. A Nice Point under the Land Transfer Act.— The case of Miss Hicks v. G. B. Williams, waaaclaim for JBI7 10s for interest under a mortgage. Mr Martin for plaintiff ; Mr Greßson for defendant. In opening this case, Mr Martin said that the case was peculiar, involving a question of law j under the Land Transfer Act, which had ; never before been tried in the Colony. There was no dispute as to the facts of the case, which were as follows : — C. F. Barker mortgaged certain land to ; Carruthers under tho' Land Transfer Act. Carruthers died, leaving this mortgage to Hioks (the present plaintiff) by his will. Previous to Carruthers' death, Barker sold the land comprised in the mortgage to Williams, the defendant, and the land wa3 transferred to Williams subject to the ; mortgage. Carruthers made an arrangement with Williams to take a less rate of interest than that secured by the mortgage ; deed, and this action was now brought for half a year's interest at the reduced rate. Mr Martin said that under the old law a mortgagee could not sue the purchaser of an equity of redemption because the land did not pass to the purchaser. A mortgage under the old law actually transferred the land to the mortgagee, but under the Land Transfer Act it was ! not so — a mortgage did not operate as a j transfer of the land to the mortgagee. So | in the present case when Barker mortgaged, ] the real estate remained with him, and ; when he sold to Williams, Williamß got the real estate, and the mortgage still operated as a charge of s* much money upon the land. The money secured by deed was, he argued, in j exactly the same position a3 if Barker had i guaranteed a rent charge or an annuity ; upon the land to Carruthers. If so, the mortgage operated as a charge upon the land, and no doubt, apart from any question of covenant between Barker and Williams, the hitter was liable. Wherever the land is debtor, the holder^ of the land may ? be sued because the land is vested in him. i He cited in support of his argument | Thomas v. Sylvester, 42 L.J., Q. 8., 237, i approved in Christie v. Barker, 52 L.J., i Q. 8., 537; Booth v. Smith 47 J.P., 759. ! The Land Transfer Act, .sections 52 and 63 I Mr Gresson, in reply, took it that the ; I only question wa3 whether Now Zealand ' law so altered the English law as to make the transferee of the land liable under the mortgage a 8 he would be for a rent charge. He contended that a rent cbarge or annuity was something issuing from the land itself, and differed from a mortgage, which was a deed for money borrowed upon the security of the land. Our Land Transfer Act was taken from the Victorian Act, and the sections Mr Martin referred to were included in the latter Act. A case decided in Victoria (Australian Deposit and Mortgage Bank v. Lord, 2 Victorian L.R- 81) was on all fourß with this case, and notwithstanding that there was a section in the ( Victoria^ Act ( 110 ) much stronger than j arj - of outb as to the passing of all obliga- j tionß of the transferor to the transferee, this case showed that the purchaser of an equity of redemption is not liable either for principal or interest to the original mortgagee. The Judges held on appeal that to make one man liable for another man's debts would be absurd, and was not the intention of an Act made to facilitate the transfer of land. Learned counsel argued that it would clearly be an injustice to make the purchaser of the land ; .liable for the payment of money borrowed by the Beller upon the security of the land. Mr Beetham said, that suppose the mortgagee took the hind and it did not realise the amount of the mortgage, would the purchaser from the j mortgagor be liable for the difference? Mr Martin contgnd^ Absurd. Mr Martin ■■ admitted that perhaps the Legislature had not intended the Act should operate as he was contending it did, but he believed it '< did so operate. His Worship reserved his decision.