SUPREME COURT.

Evening Star, Issue 3800, 29 April 1875, Page 2

SUPREME COURT.

IN BANCO. Thursday, Atril 29. (Before his Honor Chief Justice Prendeigast) Barton v. Dalghty and others.—This was an action for specific relief. Mr Macassey. with him Mr Stout, moved for an injunction on the part of George Elliot Barton, plaintiff, to restrain defendants—Dalgety, Nichols, and Co., and Coleman Burke—from putting in suit certain bills of exchange for which plaintiff is liable as drawer and endorser; and also to restrain Dalgety, r Nichols, and Go., from putting in suit certain bills of exchange for which the other defendant—Coleman Burke—is liable as drawer and endorser. Mr Macassey said the application was made without notice having been given, ns the case was very urgent-one of the bills in question falling due to-morrow—and it was absolutely necessary that something be done to stav the hand of Dalgety and Co. r His Honor thought it was not the practice to grant such applications ex parte, -• , Mr Macassey thought the circumstances of the case would enable him to move, as from the disclosures that would be made in his opening the case his Honor would see. that.-it was veiy urgent. He would first summarise the tacts, and afterwards submit the legal propbsitions which he would offer as grounds for the granting of the application of plaintiff. The declaration disclosed that about July, 1871, Colemau Burke, brewer, became seriously in* yolved and embarrassed, and found it necessary to compound with his creditors.. This he did by paying 3s 4d in the pound—in cash for all claim a under L2O, and for. , the remainder by bills, at three, six, nine, and,twelve.,months, each bill representing LOd in the pound. Dalgety and Co. advanced him the money to pay the cash debts—only LOO—and endorsed hj's bills for the remainder, amounting to L 4.265 ds y,l. An agreement was entered into between Burke and Dalgety & Co., by which the former was to pay 10 per cent, on the sum total of the composition, 5 per cent commission on other advances, and also, as would be seen, farther commission. Well, Mr Little was installed by Dalgety and Co. as bookkeeper at Burke’s and everything the latter required .in hie: busi* ness had to be purchased of or through- their house—they charging commission—all cash -received m the course of Burke’s business, had to be paid over to them, and they baid his wages. The result, was that ifo S could be more shackled or fettered ) than ♦w w ,V ose Position was reduced^» that of a traveller or salesman at L 5 per week Burke executed a mortgage to; them, with hj avowed object of protecting , them responsibility nfiho bills, abdthifc'deShsS|ed

the bulk o i his property ; Burke also binding himself to withdraw the bills on maturity. Dalgety and Co. adding a memo, to the agreement by which the deed applied to all advances made by them. Three years later, the position of the parties was very materially changed : in May, 1874, the L 4,000 odd had swollen to the portentous sum of about L 12.000. In these circumstances the idea suggested itself to Dalgety and Co. that it was timo Burke’s account was transferred to other hands, and they accordingly wrote to him that, “as his position had so much improved, he would have little difficulty m transferring his account,” at the same time pointing out_ some advantages that would accrue to him through saving him their commission. The letter proposed that Burke should borrow L 5,000, get in L 2.000 of his trade debts, obtain an overdraft of L 3,000, and pay them the L 5,000, 1.2,000, and L 2.000 of the money obtained from the (bank —leaving a balance of L 2,000 due to them. This last he was to pay by four bills of LSOO each. Their statement made it appear that Burke was then liable to them in the sum of LII,OOO. Burke managed to get theamountreducedtoL9,soo, but experienced _ more difficulty than Dalgety and Co. had anticipated in transferring his account. Eventually he applied to plaintiff, Barton, and their negotiations resulted in Burke mortgaging some of his property to the Trust and Loan Company for L 4,500, which he paid to Dalgety and Co., Barton* endorsing bills for the remaining L 5,000. In return for this, Burke agreed to pay Barton interest on this and all advances he might make, and give him a security over his property charged by the Trust and Loan Co., and his stock in trade; also giving him the right to become a paitner in the brewery on paying L 7,500. Dalgety and Co. released to Barton the securities they held, on receiving the L 4,500 in cash, and It was understood that Burke had paid °ff- Barton subsequently inquired liabihtes for Burke for a sum of L 4,600, besides holding two bills for L 1,700, and a Aet of bills for interest. The bills for L 1,700 were not met when due, and that amount was increased to L 2,200. The agreement; was that Burke was to pay into the Bank to a “ number 2 a’ccount,” all trade bills and securit es received by him till these bills were met, but it was discovered that instead of thisßurke was paying his receipts to Dalgety and Co. who, by some means, still held a claim of L 2,600 on Burke. These were the facts, briefly put, and the learned counsel said it would be seen that Burke had, in violation of his agreement, refused to pay in one farthing to meet the bills lor L 1,700, and yet had since paid into the Union Bank amounts to the credit of N. Dixon, manager for Dalgety and Co. Plaintiff _ concluded he had grounds of complaint against Dalgety and Go., because they induced him, by a statement of facts not fully disclosed to take over Burke’s securities—allowing him, to take a leap in the dark; and against Burke for not meeting the bills when due and for paying Dalgety and Co. moneys since his agreement. Plaintiff therefore asked that Dalgety and Co. be restrained from applying any further payments Burke may make in’ liquidation of the old account; from suing Burke, or taking proceedings with a. view of having him declared a bankrupt in respect of his liabilities to them ; and to have Burke, restrained from dealing with the property, the subject of the agreement between himself and Barton. Application granted.