MAGISTRATE'S COURT

Dominion, Volume 8, Issue 2298, 4 November 1914, Page 9

MAGISTRATE'S COURT

AN IMPORTANT JUDGMENT ' AFFECTING THE MORATORIUM A rather important judgment in reference to the Moratorium ' or Mortgages Extension Act was delivered byMr. W.G.'Riddel], S.M., in the Magistrate's Court yesterday morning. The case out of which it arose was one in which Walter Joseph Cresswell sued Larney Bros, for £100 and interest due oii a promissory note,. which was collateral to a mortgage. Mr. H. E. Evans appeared for plaintiff, and Mr. 0 C. Mazengarb for defendant. Defendant had not disputed owing the amount,. but submitted that as the £100 claimed by plaintiff was the same amount as was secured by means of a mortgage' from defendants 'to plaintiff, the requirements .of Section 3 of tho Mortgages Extension Aot, 1914, would have to be first complied with. ; In a preliminary review of the case the Magistrate stated that the position of the parties arose in the following way: On October 10, 1912, defendants executed a memorandum of mortgage in favour of plaintiff to $ecure the repayment on July 31, 1914,' of the principal sum of £120 and.interest. Defendants made default in payment of interest, and; plaintiff commenced an action against them in the Magistrate's Court, Wellington, on December 13, 1913, claiming £120, the principal sum due under the mortgage, and £13 6s. 9d. _ The matter was settled by the parties on February 4, 1914, the terms of the settlement, inter alia, being that defendants agreed to pay £25 in cash, and give a promissory note for £100 without interest, payable on July 31,. 1914. It fas agreed that the'mortgage would be released and. handed over on payment of £25 and the amount_ due under a promissory note. Plaintiff obtained judgment for jthe £25, and that judgment was satisfied by payment. The total amount then remaining secured by the mortgage was £100 named in a promissory note, and it was admitted by plaintiff' that the taking of the promissory note did not affect his rights against defendants under the memorandum of mortgage. ~ The presentation of the promissory note at the place fixed for payment was a demand for payment of the amount named in the note, and as that amount was iden-tical-with that due under the mortgage, such a demand was. equivalent to one for payment of the'principal sum then due under, the mortgage. "That being so," commented His Worship, "I think Section 3 of the Mortgages Extension Act, ,1914, which, inter alia, requires a 'mortgagee to obtain the leave-of the Supreme Court beforo demand of payment of the principal sum or any part of that sum secured by the mortgage, or the commencement of an action to' enforce suoh payment, applies.' The promissory note given by ■ the defendants is not, in my opinion,.an inde-. pendent security, but, by the terms of settlement, a collateral one, and if, during the' continuance of, the Mortgages Extension Act, a.mortgagee could obtain judgment against a mortgagor on a cl aim founded on a promissory ,note for the samei amount secured by his mortgage and payable.on the same date named in the mortgage, the object 'of the Mortgages Extension Act would be defeated. I think then, that plaintiff, must comply with Seotion'3 of the Act before he can succeed on the claim for £100. Plaintiff is,, however, .entitled! to judgment for £1 Bs. 10d., interest claimed, 9s. Court costs, and -is non : suited as to principal." ,

CLAIM FOR COMMISSION., / ', A claim for .commission was.heard be-, fore Mr. W.' G. Riddell, S.M:, yesterday, Eugene Anton Schwarz, commercia'l traveller, of Wellington, proceeding 'against Julian A. Lutz, indentor, of Wellington, for £190 15s. ' ; The statement of claim, laid out'that the £190 15s. was, due by the defendant on,'account as follow:— Commission due oh , sale 'of 'Benz," iBS; commission due on sale of two. large "Benz" wagons (£SO ,on eaoli), £100; commission due/on second-hand oar (£450), £22 10s. Cash had been received £28 155., leaving £178 155.due. while wages claimed, £12, made hi all £190 15s. After a partial hearing of the case it was adjourned ■to 2.15 p.m. to-day. Mr. P..W. Jackson, appeared for plaintiff and Mr. A. WBlair for defendant. ;

DEFAULT DEBTORS' LIST. Judgment was given for plaintiff by default in the following undefended civil cases:—Sharlahd and Co., Ltd.,; v. Frank M'Kinnon,' £18 10s., costs, 55.; David Milligan v. G. R. Freeman, Bs. -3d., costs 10s.; Taylor and Co.. y. Alexander McN. Proctor} £6 6a., costs 235. 6d.; City Printing Co ; . v.Wm. Hy. Hargraves, 18s. 6d., costs 35.;. John Rigg and Co. v. Richard Ridsdale, £6 45., costs 235. :"6d."j H. Price and Co., v. G. G. Goodman, £6 19s. 9d.-, costs 235. 6d.; Wellington Traders'. Agency v. Donald Green, costs only, 10s.; Whitcombe and Tombs, Ltd. A v. Jas. Kerr, 15s. 6d., costs 55.; George Parkin v. Augustas Wallace, £21 135. ; 6d„ costs£2 145.; Tanner Bros., Ltd.,; v, Jas. Edwin Percival, £29 15s. 5d., costs £2 145.; Phillip Hereford v. George Hendry,,£2 25., costs 10s.

JUDGMENT SUMMONSES.' •' J. Ferguson was ordered to pay G. Goldstein £1 lis.,by November 17, in default twenty-four hours' imprisonment ; Wm. Thos. M'Farlane was ordered to pay the C. and A. Odlin -Timber Co., Ltd., £4 17s. by November 17, in default four days', imprisonment. -,•'.■

. POLICE OASES. Mr.,D. G. A. Cooper, S.M., dealt with the police business of the: Magistrate's Court yesterday morning. A young man named Edward Kelly, a member of the Expeditionary Force, was remanded to /■November 10 on a obarge of committing a breach, of his probationary order. ■■■■■.•< The oase against Norman Payne _of being .the father of an illegitimate child was adjourned to November 10. For drunkenness, Samuel Henry. Cartor and Edward Smith were each fined 10a., or forty-eight hours' imprisonment, Two first offenders were dealt with.