MAGISTRATE'S COURT.

Dominion, Volume 3, Issue 887, 5 August 1910, Page 3

MAGISTRATE'S COURT.

'. (Beforo.Mr. W. B. Haselden, S.M.) mo'ney.lending and the law. ' . an important judgment. '■" Reserved judgment was given yesterday in the caso ot'O. W. Tanner, solicitor ana registered money-lender, v. Francis Jane Hare and Ernest G. K. Hare, her son. William Geo. Somerville, solicitor, ' and '.son-in-law. of Mrs. Hare, and now bankrupt, was not joined as a defendant. i This was an. action (said the magistrate) to recover, J3IOO alkjfed by pluintilf to be due under a memorandum of mortgage from .tho defendants and \V. G. Soinervillu. . Somervillu had borrowed money from Tanner, and was in arrear with both principal and interest; he was - the third mortgagee of a property at Kelburnc, over which Tanner held a second mortgage. Somerville had sub-mortgaged his third mortgage to a Mrs. ■■ Butler. Tanner sold the property through the Registrar, and bought it in for less than was owing to him, thus rendering Somerville's third mortgago valueless, , .ami ol course depriving Sonierville's mortgagee, Mrs. Butler, of hor security. For obvious reasons Somervillu was anxious to retain or acquire an interest in tho property, so that he might at least appear to have something to offer as security to his creditor, Mrs. Butler. • Tanner and Somerville met, ' and arranged that Mrs. Hare and hor soon (who together held a mortgage of .£I2OO over some land at Island Bay) should join with Sonicrvillo in purchasing tho ICelburne property, subject to tho first mortgage of .£BSO, for £200. ■ The real value of the property was : under .£BSO, but Somerville's object was to have something to represent Mrs. Butlor's mortgage. It was also' arranged that Tanner should advance £100 in caeh to Somerville, and should receive as security a . mortgage from the Hares over their mortgage of £1200, and' Somerville should join in tho mortgage. It was bleo agreed between Tanner and Somorvillo that the security should be for £332 and further and "all monevs to become due by William ,G. Somerville to Tanner on any account whatever." l Tanner did not see Mrs. Hare, but stated that ho assumed that .Somerville was acting as her solicitor. ■ His Worship went on lu say that tho covenant as regarded Somerville s indebtedness should have warned Tanner against acting on thin assumption. The mortgage and the agreement lor purchase wero prepared in Tanner's office, and were signed by Somorvillo and young Hare in the presenco of Mr. Tanner's - clerk. Mrs. Hare signed tho mortgago and agreement in Somerville's office. Tho attestation clause recited that the mortgago wns signed "by Frances Jane Hare, she being blind, the memorandum or mortgage having been First carefully read over and explained to her." During the hearing of the case, however, Mrs. Hare, stated that she did not understand . at that time that she wae mortgaging her

property, or agreeiug to buy any property. She said that she asked wnatsne was signing, and was told that it ' was for nor own benefit," and that Somerville told her that it was a matter of signing for JEIOO, to securo a property at Ay a Street, Pctone, that was to. be sold, She also said that she never received a shilling from either Tanner or Somerville, and, further, she iliil not Uuow that she was guaranteeing Sonierville's debt. His Worship was of opinion that tho case' ought to be moved into tho Supreme Court. The caso was one of considerable importance both to the legal profession, and to tho public. The Moneylenders' Act, 1908, had not had mucii judicial interpretation, and a difficult question arose in this case. Defendauts counsel contended: (1) That under the' Money-Lenders' Act; 1908, the plaintiff could not recover, as the transaction was not carried out at the plaintiff's registered address, and at no other address. Gadd v. Provincial Union Bank. 1909. 2 K.B. 353, (2) Plaintiff, while admitting that ho was a registered money-lender, did not prove that he had a resistcred . office...' ■ ' (3) That the transaction was harsh and unconscionable, and should be reopened under Section 3 of the Money- . Lenders' Act, and that the mortgage and agreement to purchase should.be set aside. The case of Gadd ,v. Provincial Union Bank mentioned, was a remarkable one. It was founded on the Money-Lenders' Act, 1900, Section 2 (which was identical with our Statute, Section 4) and decided that whero (in the case of a loan by registered money-lenders) tho transaction was entirely carried out in the house of the borrower, it was illegal, and void. It did not actually decide that the. money lent was not recoverable, but only that the bill of sale given to secure the payment wus void. Our Money-Lenders' Act provided a penalty, for a breach of the Act, as to carrying on business, but did not say that the moneys actually advanced outside the. registered address were not recoverable, but in the caso of Bonnard v; Dott, 1900, 1 ch., at page 745, the Master of tho Rolls said that, whero the money-lender was not registered, he could not compel the borrower to return tho money lent. He (his Worship) did not think that the fact that the transaction was not entirely, but only partially, carried out elsewhere than at the registered address of the money-lender, distinguishes the cases. Ho thought that tho mortgage on which the plaintiff sued was void as being in contravention of tho MoneyLenders' Act, and that the action founded therein must foil. If it should be ultimately held that this caso could-be distinguished from Gadd v. tho Provincial Union Bank it might bo convenient for him to say that (as regards the present defendants) the transaction was harsh arid unconscionable, and tho account should be reopened and the mortgage, and agreement set aside. . It seemed to him—though he did hot attribute' to tho plaintiff, fraud, or sinister moti%'e—that he had not realised his responsibility as a solicitor of tho Supreme .Court, or his voluntarily undertaken liabilities as a money-lender. It was contended for the plaintiff that inasmuch as the interest charged on tho mortgage did' not exceed 10 per cent., the plaintiff did not enter • into tho transaction qua money-lender, but qua solicitor. His Worship did not think this contention could be. sustained. Although the defendants were willing to have judgment'.entered for .£IOO and interest, provided the mortgage and agreement were set aside, ho did not feel'able' to follow this course. The difficulty was 'pointed out in tho judgment of Mr. Justice Bucklev in the caso of -the Victorian D. Syndicate v. Dott 2 ch., 1905, page 024, and approved in tho caso of Bonnard v.. Dott. 1 ch., 190G, page 720. In conclusion his Worship gave -judgment for, defendants with costs as -per scale, which totalled £G 15s. fid., and allowed plaintiff to appeal on lodging a security of .£lo.' '.Mr. W. H. D. Bell appeared for plaintiff and Mr. D. M. Findlay for defendants. A counter claim for ,£IOO in connectionwith the I. case, was allowed to stand, over until.the appeal is heard. ' INTERESTING COMMISSION CASE. Reserved judgment was given in . tho case of Fanning arid Company, iand and estate, agents,'versus Charlotte Margaret M'Donald,. for ..£43 .155., commission alleged, to *be duo to plaintiffs' as defendant's agents in procuring a buyer for her property. The caso. for plaintiffs was that they were entrusted with defendant's property to sell, but not as sole agents. They found a prospective buyer in a Mr, G; A. Radford, who, offered, soveral sinus for the property, none. of. which were accepted by Mrs. M'Uonald. Defendant subsequently-reduced', the."price ■• from JCIBOO .to'.- £1750, i and Radford "offered; to give that sum on June fi last, but was informed by defendant's son. that a Mr. Taylor had practically ■ purchased tho property. Plaintiffs'. claimed that they had a buyer willing to give defendant's price prior to her selling to Mr. Taylor, and they . therefore claimed commission at ,2i' per cent., 0n'..£1750, the sum for which the property was sold, and which their client was willing to pay. For tho defence, it had been contended I hat plaintiffs were not entitled to commission unless they actually completed n sale. Tho property was sold to a private buyer, prior to the time at which plaintiff's client agreed to, givo the price asked by defendants.- ; His Worship, in giving judgment, said that, on tho facts admitted, and proved, ho did • not think : that plaintiffs .were entitled to, recovor. Ho knew no authority for the, proposition that, under the, circumstances, tho. plaintiffs • could recover ■' commission. , on a ■ quantum meruit. Judgment would be for defendants with costs. Security for appeal was fixed at .£lO. . • 'Mr. Young appeared for tho-plaintiffs, and Mr. Blair for defendants. CLAIM AGAINST HOTEL LICENSEE. John Stevens claimed from John Sholley, late licensee of the Foresters' Arms Hotel, £S 3s. 6d., medical expenses,- and •610 for loss of employment and general damages. through negligence on tho part ol defendant, in. failing to keep his . back premises in a sanitary condition, whereby plaintiff contracted typnoid, fever. Mr. Jackson appeared for plaintiff,, and Mr. Herdman for defendant. Evidence was given by Johu Stevens, Ut. Mackin, Archibald Gray (Sanitary Inspector for the Public Health Department), Karl Albert Schauor (Chief. Inspector for Public Health), Charles Edward RotUerum, and Nora Stevens. Mr. Herdman asked for a nonsuit on tho following points:—There must be proof that(l) the house was infected; (2) that defendant knew it to be affected; (3) a positive act on tho part of defendant which resulted in plaintiff contracting' the disease. In non-suiting plaintiff, his Worship said, that there was no evidence' to prove that he had contracted the illness while in defendant's employment. CLAIM FOR 1 TIMBER. The Evans Bay Timber,' Company (Mr. Dunn) sued F. W. Venn, of Shannon, for the sum of M 17s. 7d;, alleged to bfi due on timber supplied.' Judgment was given for the plaintiff company for £1 12s. 7d., with 6s. costs. ■THE UNDEFENDED LIST. Plaintiffs were awarded judgment in the following undefended cases:—Barber and Co. v. Mrs. A. Stewart, ,£3 4s. Id., costs 135.: Kirkcaldie and Stains, Ltd., v. Mrs. J. Breen, £2 17s. 6d., costs lfis.; Nellie O'Halloran v. Henry' Adams, .£(! Ss.Sd., costs ,£1 3s. 6d.; Wairarapa Farmers' Cooperative Association, 'Ltd.,-. v.. Gcorgo Ward, 65., costs 55.; Public Trustee/, v. Binny Hamilton Somervail, £7 155., costs £1 3s. 6d.; A. J. Bloxam v. Kenneth H. Harrc, £1, costs 55.; Hudson's Fireproof Wall Company, Ltd., v. Charles William i Blackbourn, .£4O Is., costs £2 145.;. John I Norton v. J. E. Slattery, ,£25 4s. 4d„ costs £2 145.; New . Zealand Times Company, Ltd., v. James Kirkwood, .£l, costs 55.; Hirst and Co. v. Frederick W. Sturges, £8 18s. 2d„ costs £1 3s. Gd.; Sargood, Son, and Ewen, Ltd., v. Morris Flynn, £0' 14s. 3d., costs £1 3s. Gd.; Castlo Tea Company v. Frederick M: Mahcr, .£l7 18s., costs ,£1 10s. Gd.; Robert Forbes Weir Johnston v. Leonard Price,' £$ 10s., costs £1 3s. Gd. , JUDGMENT SUMMONS. In the judgment summons caso, George and Stokes, Ltd., v. J. Dawson, a claim i for £5 19s. 3d., defendant was ordered

to pay forthwith, in default five days' imprisonment, warrant to be suspended so long as'7s. Gd. weekly is paid, first pay-' ment to be made on August 11. . POLICE CASES. (Before Mr. W. G. Riddell, S.M.) A first-offending inobriato was convicted and discharged. Samuel Jackson Binning, charged with insobriotv, was convicted and fined 10s., in default 21 ■ hours' imprisonment. On similar charges, Alexander Eadit, was remanded to August II for curative treatment, and .lolin OBnen was'liiicd 10s., in default 18 hours imprison incut. On a. 'further charge of obtaining liquor while prohibited, the same accused was lined JOs., 111 i )I! lt 7 fl " s ' s ' imprisonment. Alexander Clark was charged with insobriety,' with procuring liquor while a prohibition order was in force against him, and- with entering licensed premises during' the currency of a'prohibition order. On the first charge he was convicted and discharged, on tho second charge ho was declared a habitual drunkard and ordered to be sent to Pukatoa Island for one year, and on the last charge ho was convicted and discharged. For disorderly conduct while in a state of intoxication, John Kinley was convicted and fined 205., in default seven days imprisonment. For using improper languago in Tinakon Road, and assaulting Constablo Stevens, John Johns was fined £i, in default 21 days' imprisonment, on the first charge, and was sentenced to 11 days' imprisonment on tho second. lor travelling on the s.s. Moeraki from Sydney to Wellington without paying his fare, Daniel Sullivan was convicted and ordered to pay £i (tho amount of tho fare) to tho IJ.S.S. Co., in default 21 days' imprisonment. ' William Childs Hart was charged with stealing a bicycle, at Martinborough, valued at £5 10s., tho property of John Jolly. Accused pleaded guilty, and, on the application of Chief-Detective Broberg, was remanded for sentence till August 10, owing to the bicycle not having been recovered. A young man named William .' Inniss was charged with using improper language while driving a delivery van along Cambridge Terrace. Accused Vas represented by Mr. T. Young, and pleaded not guilty. After hearing evidence, his Worship convicted and fined accused .£3, in default 11 days' imprisonment. Poets, Parsons, Peors, and Princes, AH'have got corns, sad to state; Watch each ono as oft ho winces When his trouble doth relate. But as soon as they're told the best of cures PROGANDRA at onco relief secures. BARRACLOUGH'S PROGANDRA ■ FOR CORNS, Is. Friendly society'and savings bank • doposits amounted at the end of 1908 tu ,£445,821,8-19, and depositors to 32,079,000. In tho Post Office Savings Bank the number of depositors wis 11,018,251, and tho amount deposited was .£181,277,199.