CIVIL SITTINGS.

Star (Christchurch), Issue 5803, 22 February 1897, Page 3

CIVIL SITTINGS.

The civil sittings were then opened before his Honor alone. PROFFITT V. PARKER AND ANOTHER. In this case, which was a claim for .£SOO damages, Mr Beswick asked that i£ should stand over. This was agreed to by the other side. bice v. flack. Mr Stringer obtained permission for this case to stand over sine die for the purpose of taking accounts. QUILL V. WHITTLE. This case was ordered to be removed into the Banco list. FLEMING V. ARENAS. Mr Eussell, for plaintiff, in this case stated that in 1881, the then trustees in the Arenas estate sold a farm at Arowhenua for .£3OOO, and that this sum was transferred to Mr Arenas. Between four and five years afterwards a new trustee was appointed, and before Mr Arenas's departure for Melbourne he executed a mortgage to the trustees, which, plaintiff contended, was an illegal action, ,as trustees of moneys had no power to lend to the extent of more than 50 per cent on the value of the security. In addition to this a further amount of .£525 had been lent to Mr Arenas on further improvements to the property known as the Cafe de Paris. The estate was now in the hands of the Public Trustee.

His Honor : Was not the Public Trustee the proper person to have brought the action ?

Mr Eussell had exhausted all means to join the Public Trustee in the action, and asked that the Court would now join him •as a co-plaintiff. Mr Loughrey, for defendant, objected to this course at this stage, and quoted authorities in support of his objection. He also claimed that the present plaintiff was not a competent party to bring the action. His Honor elected to hear the evidence and decide the legal points afterwards. Evidence was given by A. H. Bosworth, ledger-keeper of the Bank of New Zealand, as to the manipulation of Mr Arenas' banking account. Mr T. S. Weston was called, but declined to give any information, as he had acted professionally for Mr Arenas in the matter. Frank Fletcher deposed that, as one of the trustees in the estate, he had agreed to the sale of the farm at Orari, as it was not bringing in good returns, on account of being let to bad tenants, and partly because Mr Arenas wished to increase the Cafe de Paris. In cross-examination by Mr Lougnrey, witness said that he was satisfied that the further advance of .£SOO to Arenas was a good investment, especially as he had spent a large sum in adding to the hotel, and had also secured a further term of ten years to his ground lease. S. Johnston, who had acted as trustee m the estate during Mr Arenas's absence in Melbourne, also gave evidence. J J. M. Hamilton, Public Trustee, produced the various documents and securities in the estate, for which he was the a^ent The value of the security was said to be ample, especially if the goodwill of the house were taken into account, and he was advised that a much larger sum could be obtained for the security than the amount of the mortgage. He had been assured that £6000 could be got for it at once He considered it wise m the interest of the estate to allow the mortgages to remain until the end of the term, which ended in March, 1599. E. C. J. Stevens, A. Appleby, H. b. .Brown and H. O. D. Meares gave evidence. _ Mr Loughrey, in opening for the defence, contended that after the evidence given by the agent of the Public Trustee he had no case to answer. He would call evidence to show that the security, under the circumstances, was a good one. It was the business of the Public Trustee to guard this estate for the benefit of the legatees, and if he were satisfied with the security he could see no reason why matters should be disturbed. Ho called James Shand, who deposed that tor

thirty-three years he had had experience in valuing hotels. He knew the Cafe, and thought it would be quite safe to lend .£3500 for five years on the lease, and he could arrange for such a loan at once, if required. The hotel could be readily leased for between.£7ooand .£BOO per year, and he thought could be sold for about .£6OOO, with certain trade considerations.

John Eoss, husband of the youngest daughter of Mr Arenas, depossd that he was not in favour of disturbing the present mortgage.

C. Cuff, city valuer, said the value of the ground and buildings of the Cafe was .£7500.

C. J. Marshall considered the annual letting value of the Cafe was .£7OO. .

Mr Eusaell then addressed the Court on the law points, quoting authorities in support of his case.

Mr Loughrey having replied, His Honor, said that he was satisfied that in the first instance there had been a technical breach of trust, the money having been lent without security, or upon security which was not of a proper class. He would allow the matter to stand over to see if some arrangement could be come to between the parties.

Mr Russell obtained leave to mention the matter in chambers on Friday.