SUPREME COURT.

Evening Star, Issue 3709, 12 January 1875, Page 2

SUPREME COURT.

CIVIL SESSIONS. Tuesday, January 12. (Before his Honor Mr Justice Chapman and a Special Jury.) Turnbull v. M'Kay and Gillies.— ln this case Mr Maccassey stated that a settlement was likely to be come to by arbitration, and it was therefore withdrawn. Mowat v. Bank of New Zealand.— This case was adjourned to Thursday next. Moore v. Fraser. —This case was set down for to-morrow. Hat v. Hogg and Hutton and Somerville. —This action was brought by Alexander Rennie Hay, who holds a sub-tenancy of certain land and premises in the Octagon from his father-in-law, Henry Somerville, of Auckland, against James Hogg, James Hutton, and the said Henry Somerville, to whom part of the premises had been leased, to rec over a receipt for three years* rent given by plaintiff to defendants as security for four bills of exchange for Ll5O endorsed by the latter for plaintiff’s accommodation. Messrs Macassey aud Stout appeared for plaintiff; Messrs Barton aud W. D. Stewart for defendants, who denied all the material allegations, and pleaded that the receipt for three years’ rent was given them by plaintiff as consideration for their advancing the bills, and that therefore they were entitle < to bold the premises for the term of three years —having paid the rent in advance. Mr Barton objected (as forming ground for a possible application for a new trial) to Somerville’s name being placed on the record as a defendant—he had not pleaded, his plea was not on the record, and yet he had challenged six of their jurymen. This, the learned counsel submitted, placed defendants at a great disadvantage. The real point at issue in the action was whether Hay or Somerville was the real owner of the property, and if the latter was not, in fact, a sham. Also was uot plaintiff entitled to deal with the property for a term of three years ? Counsel for plaintiff stated the case, explaining that Somerville was placed upon the record as a defendant, iu accordance with the Court of j Equity rule that all parties interested in the subject matter of an action must be so placed, but that the real question was between plaintiff and ilogg and Hutton. Mr Barton for a nonsuit, arguing at great length that counsel for plaintiff had in his address shifted the ground of the action. Mr Stewart followed, saying that counsel for plainmade out that Hay was simply an agent, acting under the authority of Somerville, and contending therefore that he could not sue. His Honor ; I cannot withdraw the issues from the jury now, but I will take a note of the application by defendants’ counsel for a nonsuit. There is something in Mr Stewart’s objection that as Hay is only an agent he cannot sue.

. -A.. R. Hay, plaintiff, stated that be was son* in-law to Henry Somerville, who owned certain land and premises in the Octagon, let to witness. Part of these witness had sub-let to Hogg and Hutton in 1870 for two years, with the option of taking another year. They occupied the premises until the end of 1874, paying rent up to the end of 1873 at tho rate of L 6 10s per week, after which it was to be L 7 per we*k, ahd this latter rate Was paid up to March hj 1874. At a previous time witness iitid drawn

on defendants two bills for L3OO each, due De- ! cember 12, 1873, and January 13, 1874, for his own accommodation, and for which he gave them a receipt for three years’ rent as security. At the time a second set of bills (the four for L 150) were drawn, defendants tore up this receipt. The new set were drawn up when the second bill became due, because witness wanted further accommodation. A similar receipt for three years’ rent as security was given, which Hogg said he was “satisfied with, but he wished it satisfied Hutton.” Witness discounted the four bills at the bank of Australasia. On going there with that object he told Mr Winter they were given for his accommodation, upon which that gentleman charged him one per cent, extra. The first bill was due in March, and witness forgot it. He therefore went to Hutton next day and told him so, and that he would see to it. Accordingly, he went there with the money, and found Hutton reading a newspaper, and the latter said, “ I’ve had nothing to do with this transaction, and I wish you would leave it open till Hogg comes home.” Witness did so. and on hearing of Hogs’s return (March 25) went to him and tendered a cheque for Ll5O. Hogg declined to take it, and referred witness to his solicitor. Witness went to Mr Macassey, and then to the Bank, where he got Ll5O in sovereigns, calculated the interest (6s) due on the bill, and tendered the amount to defendants. s Hutton and his traveller were there, and on witness saying, “ I tender this in payment of the bill; you had better count it,” Hutton said, “ There's no need to count it; I accept it as a tcnele-. ” It was, however, counted, and taken to the Bank, Hutton saying he could not accept it as payment. Cross-examined iI am not ownei of this property, on my oath. I receive the rents, and appropriate them to my use, and pay the rates. The outgoings of the property are more than the income amounts to, I gave Somerville a mortgage on this property to secure a debt of LI,OOO on another property and L3OO back interest which I owed him. This was a few months before my bankruptcy. The value of this property and that in the Cutting was at the time of my bankruptcy LI,BOO. That is what it fetched at auction. I did not agree to sell the Octagon property to Herbert, Haynes, and Co., for L 4,000. I entered into negotiations with Gillies and Street to sell it for L 4,700, and an offer of L 7,000 has since been made for it. On my solemn oath I am not the owner of the property occupied by Hogg and Hutton. I never represented to anyone that it was my property legally. [Mr Barton called upon Mr R. Gillies and Mr Daniel Haynes to produce a letter from witness to Haynes, but Mr Gillies declined to do so, although he had the document in Court, as- it was a private matter. Mr Haynes was called, but did not appear. Mr Barton appealed to his Honor, who said he could not compel Mr Gillies to produce the document. Mr Gillies then said he had no instructions to withhold the document, and he would therefore produce it.] The letter produced, signed by me, was written by me. It asks Mr Gillies to sell “my leasehold premises and the shop let to Hogg and Hutton for a term of five years, from 1875, at a rental of L 7 per week, for L 4.500,” nevertheless the property is not mine. I objected to signing such an agreement, but ray scruples were got over by it being pointed out that I was the owner of the property in the same way as Hogg and Hutton are owners of their shop. There was no agreement to give the latter a five years’ lease from 1875 ; but the letter produced is not a falsehood. It was conditional on the property being sold for L 4,500. A second letter was sent to Gillies and Street, offering to take L 4.700, but not mentioning Hogg and Hutton’s five years' lease, am) 1 received a letter in return, accepting the offer for Mr Haynes. A telegram from Somerville was tyeu receivtd, saying that he would not sell to Haynes. I know that defendants have served a writ on Somerville, to compel him to fulfil) the five or the three years’ lease, and I brought this action to do away with the latter, Defendants were to. give me their acceptances, and were to make no profit on the transaction. I never said to them, “ Well, you’ll feel quite safe, as you will have the premises for three years anyhow.” The only consideration I gave them was an allowance of 2s 2d a yard on a carpet, and this was mentioned when the four bills were drawn up, on January 12, 1874 [Account produced, dated December, 1873, showing a deduction of 2s 2d per yard on a carpet, in consideration of defendants’ backing four bills ] That refers to the first bill transaction. Only two bills were given them, and the word four must have been a mistake of mine, i said I went to Hutton the day fo lowing that on which the bill was due, but if that day was a Sunday I must have been mistaken. [Left sitting.]