COURT OF APPEAL

Dominion, Volume 11, Issue 35, 5 November 1917, Page 7

COURT OF APPEAL

CASE 0F J. R. LUNDON

MISCONDUCT PROVED

The Court of Appeal on Saturday delivered judgment in the caso of John Baphael Lundon, barrister and solicitor.. The New Zealand Law Society had applied for a rule absolute to strike Lnndon off tho rolls on the ground of professional misconduct; The allegations made against Lundon were: That he made a gross over-charge of .£IOO against a client, Joseph Fletcher, of Auckland, labourer, for his services in obtaining pre-pnynient from tho Nationnl Bank of New Zealand at Newton, a sum of i£soo, lodged by Fletcher 011 fixed deposit; and that he persistently failed to account to Fletcher and his solicitors for moneys held by him in trust 011 behalf of Fletcher.

The Chief Justice .said that tho Court had . come to the conclusion that an offence had been proved. The Court understood that counsel for Lundon wished to say something as to what con6e< tjueuce should follow that proof. Mr. A. ]Y- Blair, on behalf of Lundon, said that tho latter was suspended 011 May 2. He was suddenly and unexpectedly suspended, ns at the timo of his suspension lie was under the impression that the matter was not coming on for another fortnight. Tho sudden suspension had caused Lnndon considerable loss, and had given him a shock that had rendored him ill. Counsel submitted that if tho Court had found Lundon's oll'enco to be. tho first of the two alleged against him, tho Court should not lose sight of the 1 act that Lundon did not net upon the .bargain, inasmuch as ho did nil Fletcher's work without making a further charge. The result, as far as Fletcher -was concerned, had been the reverse of bad. His money had been preserved by Lundon's arrangement longer than it would otherwise have been preserved. Counsel submitted that the severo punishment that Lundon lind already suffered was ample for the professional misconduct of which tho Court had found him guilty. The matter was adjourned. At tho hearing, Dr. Fitchett and-Mr. A. W. Blair represented Lundon. Mr. H. F. Von Haast appeared for the Law Society.-

A WILL IN QUESTION. In (lie case of Simpson v. Bruce, questions were usked upon the interpretation of olauses in the will of Robert C. Bruce, deceased, lato of Hunterville, farmer. The parties interested were: Alexander G. Simpson, of Hunterville, farmer; Frank J?. Hockley; George J. Bruce, of Wanganui, settler; Barbara H. C. M. Bruce, of Auckland; and the AttorneyGeneral.

The plaintiffs, as executors and" trustees of the will of the lato llobert C. Bruce, had asked the Court to answer the following questions:—(l) Whether the gift in the will "of ,£SOO to the Mental Hospital at Porirua" was valid; (2) whether llio'giffc "and as to the whole of my residuary estate, I.direct my trustees lo apply tho same in their uncontrolled discretion for tho purpose of afforestation, or the making of domains or national parks in New Zealand" was valid; (3) if one or both of the gifts were declared void, who was entitled to tho subject of such sift or gifts. Tile Court answered tho first two questions in tho affirmative.

At the hearing Mr. C. P. Skerrofct, K.C., and Mr. Hussey, of Wanganui, appeared for the deceased's executors; Sir Francis 8011, K.C., and .Mr. Button, of Wanganui, for G. ,T. Bruce and B. H. 0. M. Bruce; and llin Solicilor-Gonoral, Mr. .1. W. fklmond, K.C., for tho AttorneyGeneral.'

WELLINGTON BUTCHERS AND CITY COUNCIL, A number of questions were asked in an originating summons brought by- tho Wellington Livo Stock Butchers' Association (as representing the butchers having their meat slaughtered at the Wellington Municipal Abattoir) against the Wellington City Council, 'lho Court was asked to decide whether the defendant corporation was entitled to charge ajainst revenue as pari of the annual cost of the abattoir: (a) A. sum of 2 per cent, upon the capital expended in establishing and erecting the abattoir for a renewal and depreciation fund; (b) a sum of 1 per cent, upon loan moneys forming part of snch capital sum as sinking fund for the redemption of the loa:i ut maturity; (c) a sum equal to 10 per cent, of the amount shown in the corporation. balance-sheet as expenditure for "preliminary expenses," and. which represents an advance from the corporation's district fund; (d) sums payable for extensions or additions .to the abattoir and tho cottage erected for use in conjunction therewith'; (o) the cost of constructing a drain to convey tho drainage from the abattoir or a sum payable to tho owner of the drain for tho privilege of discharging into such drain tho drainage from tho,abattoir; (f) a sum referred to in tho balance-sheet relating to the abattoir.account as "commission for sale of offal," being a- charge made by tho corporation for disposing of offal at the abattoir; (g) a sum-of ,£250 per annum charged by the corporation for a supervision tif the abattoir by the officers of other departments; (h) a sum charged l'or wages of (ripe cleaners at the abattoir, the proceeds resulting from such expenditure not being planed to the credit of tho abattoir account. The summons further asked what was (he meaning of tho words "annual cost, of the abattoir" contained in section 27 of the Act before referred to; and Whether, if tho corporation had collected fees in excess of those properly chargeable under the section such excess could be recovered from tho corporation.'

(ho hearing, Mr. C. P. Skerrett, K.C., and Mr. T. Young appeared for the plaintiffs, and Mr. J. O'Shea (City Solicitor) for the defendant corporation. The only questions answered bv the Court vcrri (a), (b), (c), (d), (e), (f). These tho Court decided against the corporation.

The question of costs was held over to tho next sittings of the Cotat.

A LAND AGENT'S COMMISSION. The Court decided an appeal brought direct from the Magistrate's Court under section 68 of the Judicature Act, J9OS. The appellants, Percy Edmund Knyvott and liobert Pratt, licensed land agents, were plaintiffs in the court below, and the respondent, Kobert Leonard Suisted, was defendant.

The action in the Magistrate's Court was brought for the recovery of a balaneo of commission on an exchange of property. On the property there were two mortgages, which were fully disclosed with the instructions to sell or exch.VJge, and throughout the transactions were allowed for. The question to be decided was whether commission was payable on the total valuo of the property, or on its valuo above tho mortgages. It was eontehded by the plaintiffs that if commission could be claimed only on the surplus above incumbrances, an agent might havo little or nothing to get on tho sale of a property heavily mortgaged. Oil tho other hand, the defendant pointed out that in such a case the seller, if he had to pay commission on the total value, without taking the mortgages into consideration, might have to pay tho agent as commission more than ho re-

ceived for liiti interest. The total valuo of tho property here sold was ,£4874, and commission at 'M'per cent, was claimed on that. Deducting the mortgages, the value would be On this, commission had already been paid. The Magistrate, Mr. .1. \V. Poynton, S.M., gave judgment for llio defendant, and against this decision tho appeal to the higher Court was'made. The Court allowed the appeal oil the merits.of the particular case.. At the hearing Sir John l'indlay, K.C., and Mr. D. R. Hoggard appeared for the appellants, and Mr. T. Young for the respondent. A SAWMILL CASE. Judgment was also delivered upon an appeal by Booth and Co., Ltd., sawmillcrs, against William Bowley, sawmill ivbrker, of Hihitahi. Tho action was heard in Hie Supremo Court by Mr. Justice Hoslcing, and a iury of twelvo from May 28 to May ''10. 'J'lie jury found a verdict for the plaintiff on the issues for J,'5(10 damages. All questions of law were reserved, and tho defendant moved to set aside the verdict and enter judgment for the defendant, or, in the alternative, to obtain a tew

trial. Mr. Justice Hosking heard the defendant's motion, aud dismissed it. Appeal was made against this judgment. •Messrs. T. Neave and AVard appeared for the appellants (defendanls in Ihe Court bolow), aud Mr. P. J. O'Kegan for the respondent (plaintiff in the Court below). The appeal was dismissed.