SUPREME COURT.

Evening Star, Issue 4263, 25 October 1876, Page 2

SUPREME COURT.

CIVIL SITTINGS. Tuesday, October 24. (Before Mr Justice Williams and a Special Jury.) Clarke v. John and William Begg.—Claim, L2V3lBs 6d, for ploughing done under agreement. Evidence in this case was concluded, and at eight o'clook in the evening the jury returned a verdict for plaintiff for LIBO, with interest amounting to L1212s 9d. Wednesday, October 25. M'Kay t. the National Bank of New Zealand. —Blaim, LIO,OOO, damages for breach of agreement. Mr Macassey, with him Mr Dcnniston, appeared for plaintiff; Mr Haggitt, with him Mr stout, for defendants. Mr Macassey, in opening the case, said the evidence to be adduced would reveal to the jury what might happen to a man whose hankers felt out with him. It arose out of the dishonor by defendants of a number of bills accepted by \ laintiff and payable at the Tokomairiro branch of the National Bank. Now as long as a customer of a bank bad a balance to his account he was a creditor of the bank, and when the reverse is the ; case he is a debtor of the bank; but the law in addition lays down that a ban is under obligations to satisfy all the drafts, -bills, and cheques of a creditor when presented in due course of business. All banks with the - exception of the Ban»- of England were carried on under a system of credit, and where an agreement is made for a customer to overdraw his account within given limits a bank has no right to determine such arrangement without giving the customer fair warning. Evidence would be adduced to show that plaintiff in October, 1873, had ah overdraft of L 598 3s 9d. and that defendants had perfect confidence in him was evident from the fact that in two months' time die overdraft had increased to L 3.634. On March 4, 1874, the bank took a bill of sale over plaintiff's plant and stock; and on September 4,1875, executed a second mortgage on Louisville farm, subject to a ptior charge of L 3,000. As long as Mr lmrnach was in charge no disposition was evinced to "put the screw on" plaintiff, but subsequently a Mr Heath was sent up as manager. This gentleman told plaintiff he was instructed to " wind up all th se overdrawn accounts," but terms were come to agreeing that plaintiff's overdraft should not be increased, but that he was to go on meeting his current engagements by supplying funds to his account. This state of things went on for some time, and plaintiff sold some property at the Clutha and paid L 1.500 off the mortgage of LS.OOO, and on April 4,1875, paid into his current account LI ,380 Os 2d. Against this, bills and cheques payable amounted to L 939 lis 3d, leaving a balance available for current charges of L 449 5s lid. On tbat day, however, the bank dishonored two bills, amounting to L7O 17s, and subsequently two more, amounting to L 348 lis 6d. This was done without the slightest intimation from the bank in any way. It did not matter, said the learned counsel, who was pi-rsoually responsible for this breach of aareeinent—whether Mr Larnach, Mr Woods, or Mr Heeth—defendants were clearly liable. The consequences of the break'r.g of the agreement were of very serious detriment to plaintiif, by injuring bis credit and otherwise, and if he jury found that everything as stated was proved it was unmistakeably a cose calling fcr substantial damages. Counsel understood that plaintiff had laid his damages at L 10,000, but this was of course subject to reasonable discount by the jury. Plaintiff's property bad since heen seized, and if the jury believed his difficulties were attributable to the action taken by the bank, then fair compensation shouid be awarded.

Joseph Mackay: I im proprietor of the ' Bruce Herald' newspaper, and reside at Tokomairiro. On Octobei 83,1873,1 transferred my account from the Bank of New Zealand \o the National Bank of New Zealand. I had then au overdraft o? L 598 3s 9d, and tUis, at Mr Larnacbs (the manager of the National Bank) request I transferred also. In December of the same year the overdraft hadincreared to L 3.634. I fully explained the position of my affairs at the time. This overdraft was not covered by any security. On March 4,1874,1 gave certain securities to defendants, at the inspector's request. They were all the available deeds I had, some shares, and also a bill of sale over my plant and publisher's stock. The account remained overdrawn in August of the same year, when Mr Bavtleuian visited Tokomairiro, and I then gave a promissory note for L 3.000, subject to a previous mortgage. Previously I fried to realise on the properties but could not sell them. The then value of the property was L 6.900 or more. Messrs Woods, Kemington, and Heath succeeded each other in the management of the bank. Tiic overdraft increased u;>der Mr Heath's control to L 3.631. On December 9 I had an interview with Mr Heath. According to that gentleman's usual practice he walked up and down the room like the Emperor of Russia, swearing considerably. He said: '"ln spite of all my efforts your d— d acconut has rnn up to so much. You are the most curious mm I ever sow • always up to your old games—buying pioperty nnd giviug cheques." I replied that the bank and Mr Larnach had led me into that position. He said: " Oh ! d u Mi- Lamac I'—l'm 1 '—I'm sick and tired of hearing of Mr Larunch. Everyberly throws blame upon Mr Larnach. Let's get, to business—there's yourd d account overdrawn L7OO more since I came here." I said I could not pull up at once, having been led into bujing and improving properties by the bank. I was as anxious as the bank to realise on them. I told him I had arranged with Mx Wood to raise 1*1,500 to p»y off baif the mast-

gage om the farm, Mr Wood prefenfatfltat to put* tine itagainit my r "D—H the money, Vi^neM^Al^^^t!^^ l rotten hole, todJrish J w&Sain the Northland.' I wouldmot give a pound note for all the land in the district". I offered to rive Mr Heath seven! thousand pounds of coal fio 11 thr Beal M'Kay pit. We said tlie L 3.654 did not include L 1,300 for my dishonored promissory note, and that he had received peremptory instrnctiors not to allow ne a penny more. I must work my business with the -present .overdraft; for if he gave » penny more ne might be treated as the -others had been. Hi did not want to do anything harsh or that would affect my bnainea3 t Boloneaslpaidinßumoienttomeet my bills and cheques; and did not then overdraft till thmgs improved and.l could realise on my properties acd pay ofE J.aaid I had few debts outside the bank, and it was their interest as much as my own to maintain my credit. I weald stick by them if it took forty years to pay them off, bo long as they stuck by me. Mr Heath assured me that tie bank would give me every help, and this coneluded the niteniew. On April 7, 1875. my overdraft was L 8.439 lis Mr wells use! to manage my money matters for me, as I was travelling for a great portion of the year. In March, 1876, Mr Heath was in my stationer's shop talking with Mr Wells, and I heard, him-as- he went out say, " By-the-bye, Mr Wells, that bill is due to-day. and if s not provided for. Wfc tamlto do with it '?" Wvlls said, "You are mistaken—it is provided for," mentioning payments made a few days before. Mr Heath replied, " Oh! I forgot that—it will be all right." That bill was paid. In January of that year I Lad an interview with Mr Heath, at which the latter said my account was sluggish—there did not appear to be much doing. I replied that as I was so much from home Mr Wells had been paying wages out of cash received. Mr Heath said it would look better for all .transactions to pass through the bank, as it showed them' exactly what was doing. I accordingly instructed Mr Wells to do this. Till 4.1876, all my bills and cheques were honored by the bank, but en that day two bills were dishonored. I had no intimation of theu intention to dishonor them. One was for M'ftilp, for L 2919 5; the other, E. Wilson and Co.'s for L4O 18s. On the Bth I called on Mr Heath, and he said he did not want t» seeme. This was after Mr Wells had seen him and after a bill of O. Dickson's for L4O Is 6d had also been dishonored. Mr Heath said: "It's too late for speaking—now is the time for action. There :ire too many accounts like yours in the place,' and I mean to stop them. - You have been neglecting your business." I said, "You are the first white man who has ever said that to me. I have for the last ten days been attending the coal pit, where I am making LSO per week." He said, "JD——n the coal pit—the bank have adopted their course and intend to carry it .through. I replied thftt'they would be the losers if th y pressed me.' Mr Heath saiditwasa "d—d rotten account," and I left them. The result of the dishonoring of. these bills was that everybody thought I was going to be "white-washed" right off, and my workmen put down their " takes" and would sot do a stroke of work until they were paid. I have always been very sensitive as to my credit, and this gave me a regular knock on the head. I was refused a box of pills for family use, end I have lost every property I had. lam out of business altogether.—By Mr Haggitt: Dickson sued tor the amount of his bill, and recovered the amount. The agreement of December 9,1875, ih the one which I say is broken, and which iB the ground of this action. I have already stated the actual agreement which was mode, and all the conversation which took place. L let Mr Heath go on for a quarter of on hour. There was a difference of some L2OO between my statement of the overdraft on that date and Mr Heath's statement. lam very good at figures; I give way to no man in New Zealand at figures. I got used to Mr Heath's bad language, aB 1 have visited the lowest dens in London with. a deure to learn all I could; but I never use bad language myself. I was the writer of an article in the' Herald' animadverting on the arrival of a bank mannger ,- who knew not Jo.-eph," comparing myself to the Apostle Paul, and pulling Mr Heath to pieces in his public and private capacities. I valued the *H= raid' at that time at L 12.000, and Sir Julius Yogel once said that I must be making Lsi.OOQ a year by it. The plant and stock realised 1/770 only, but there are various wajs of selling property. I have nothing in the world except my wife and children, but I do not include them in the L 30.0001 was worth at one time. They are worth more than that themselves. Mr E. Wilson, merchant, was under examination at four o'clock.