SUPREME COURT.-CIVIL SITTINGS.

Daily Telegraph (Napier), Issue 3720, 18 June 1883, Page 2

SUPREME COURT.-CIVIL SITTINGS.

Saturday, June 1G

(Before His Honor Chief JusticoProndergast) NEWTON V. BURKE (continued). Tho ovidonco of Mr J. AY. Carlile was to tho effect that ho had prepared tho deeds re-conveying to Mr NcAvton tho property ia

his ostate, and convoying to the defendant the property in plaintiff's interest in Mr Sutherland's estate. Mr Newton said he was perfectly satisfied to tako £1500 for the mortgage. Tho transfer of tho property to Mr Newton was made before the transfer . of tho mortgage to Mr Burke. The issues in the case were then amended as folloAAvs: — 1. Did the plaintiff, in or about the month of February, 1881, propose to John Smylio M'Doavoll Thompson and the defendant, AVilliam Ulick Burke, acting as trustees, and to tlie creditors of the plaintiff, that the said trustees should re-convey and transfer to the plaintiff all the residue of his estate then remaining unsold, in confederation of the payment of five shillings in tho £1 P—Admitted. 2. AVere divers creditors of the plaintiff willing that such proposal should be accepted ?—Admitted. 3. AVas the defendant aAvaro of tho lastmentioned fact ? —Admitted.

4. Did the sum of £2686 10s 7d duo to the plaintiff from Sutherland, of Mohaka, sheepfarmer, form one of the unrealised assets of tho plaintiff's estate at the time of such proposal ? —Admitted. 5. Was such debt of £2686 10s 2d, together Avith interest thereon secured by a deed of mortgage on certain leasehold property of the said John Sutherland, subject to a prior mortgage thereon to the NeAV Zealand Loan and'Mcrcantilo Agency Company ? —Admitted. 6. AVas the property comprised in tho said deeds of mortgage a good and sufficient security for the moneys then OAving nndcr and by virtue of the said deeds of mortgage '< 7. Did the said defendant, AVilliam Ulick Burke, as such trustee as aforesaid, and acting as agent for and on behalf of certain creditors of the plaintiff residing beyond tho limits of the colony of Noav Zealand, refuse to accept the plaintiff's said proposal or to execute any re-lease and reassignment to tho plaintiff of his said estate unless the plaintiff Avould mako some arrangement with the defendant in regard to the mortgage ? 8. Did the defendant, on the plaintiff's refusal to make such arrangement as aforesaid, threaten to dispose of the residue of the plaintiff's estate by auction and press the plaintiff to sell the said mortgage security to him for the sum of £1500 ? 9. AVas the plaintiff compelled to agree to transfer the said mortgage security to the defendant for the sum of £1500 to induce him to such proposal as aforesaid ? 10. Did the said John Smylie M'Dowoll Thompson and the other creditors of the plaintiff know of the agreement for tho sale of the said mortgage security and of the transfer thereof to the defendant ?

11. Did the defendant subsequently bocomo the purchaser of the property comprised in tho said mortgage security at a price exceeding in amount tho whole of the moneys then OAving on the said mortgage security and on the prior mortgage to tho Now Zealand Loan and Mercantile Agency Company ? 12. Did the defendant retain, or was he allowed on account as between himself and the said first mortgagee, the whole or a large portion of the moneys then OAving on the said second mortgage security ? 13. AVhat sum, if any, is the plaintiff entitled to recover from the defondant ? The following supplementary issues wero added: — Ga. Was £1500 a fair price to give for the debt and mortgage ? 9a. Did defendant, on or about the 12th day of February, ISB2, join Avith his cotrustee, John Smylio M'Doavcll Thompson, in re-conveying and re-leasing to the plaintiff, with the consent of the creditors, all the residue of the plaintiff's estate then remaining unsold ? 9b. Did the plaintiff transfer to the defendant tho above-mentioned mortgago security and the principal sum secured thereby then due, or to accrue due in respect thereof, and tho full benefit of the covenants therein contained, expressed or implied ? 9c. Did the defendant pay to the plaintiff tho sum of £1500 as and for the purchase money for the same P 9d. AVere such conveyances and transfers made in pursuance of the agreement in the eleventh paragraph of the declaration mentioned ? Counsel having addressed tho jury, His Honor summed up. By consent of counsel on either side the tAvo main issues Avere first submitted to the jury. After a retirement of about an hour the jury returned the folloAving answers: — 7,_No further than Sutherland's interests wore concerned. B.—No. 9.—No. 6a.—Yes. 6d.—No. His Honor said he would like to thoroughly understand tho answer to issue No. 7. Did tho jury mean to say that tho defendant had only stipulated that Sutherland's interests should be protected ? Tho foreman (Mr Nelson) replied in the affirmative.

It was then arranged that tho issue should be answered by a direct negative. His Honor: It would _bo as avcll to arrange as to how the verdict is to be taken. Do you intend to make any further application to the Court on the findings of the jury, Mr Lascelles ? Mr Lascelles: No, your Honor. Tho verdict is virtually for the defendant. Mr Travers: I suppose my learned friond does not wish the other issues to go to the jury. Mr Lascelles; No. The Court then rose.