SUPREME COURT.

Gisborne Times, Volume XIX, Issue 1553, 8 September 1905, Page 2

SUPREME COURT.

OIVIL CASES.

J. O. DUNLOP AND EMMA DUNLOP v. W. D. LYSNAR.

The half-yearly civil sittings of the Supreme Court opened yesterday morning before Hiß Honor JMr Justice Edwards.

The first case callod was that of J. C. Dunlop and Emma Dunlop v. W. D. Lysnar, in which MrW. L. Rees, instructed by Dr Bamford, appeared for the plaintiffs, and Dr Bind lay, instructed by Mr E. J. Chrisp, for the defendant. : There was - a large attendance in the Court during hearing of 5? the case. Tbo ploiaiiff anked as follows : (1) That tranefors by plaintiff be declared mortgages and not sales; (2) for £750 for losses of mesne profits; (ii) for £250 loss o! interest; (4) that defendant be required to render aooounts in action of James Ohas. Dunlop v. Harding and Co-operative Association ; (6) that defendant account for nsa and occupation, and to pay for wasta and damages; (6| that aooounts bo taken of moneys paid by defendant to first mortgagee, and 6 per cent be allowed to defendant ; (7) that when acoounts finally i settled, defendant, npon payment of balance due to him, re-oonvey equity of | redemption to plaintiffs free exoepr as to second mortgage to plaintiff, E. M. Donlop, and that defendant re transfer to plaintiff, E. M. Dunlop, second mortg a ß e < and pay her interest thereon at 6 per cent from September 10th, 1898, . Mr Rees in opening the case tor the plaintiff went into the detaus at that, it was for the Court to to whether the parties cam • . conclusion stated by Mr ’given the pro parties in questionwere giv as security only, whether, as thß defendant contended there was absolute sale. . nnes- , Dr Findlay said that the only q.ues tion the defence had to fpce "W , whether it was a mortgage or not The first witness called was Emma Mary Dunlop, wife of Charles Dunlop, and one of the plaintiff She was aware in the month of July 1898 th her husband was taking proceedings against the Poverty Bay Cooperative Co. and' Mr Harding. She was-then residing at Napier, and re “ e ™ be coming to Gisborne to attend the Supreme Court about July 3<Jtn. Within a day or two after her arrival, her husband and herself saw M Lysnar, who was appearing for. ner husband. They mot in Mr Lysnars office where a discussion took place m regard to the cost 3, and witness was\ asked to give a guarantee. Bhe wasf not sure that the guarantee produced/ f was the one. It was her signature. The guarantee put in was dated August 10th and was as follows Gisborne, August 10th.

W. Douglas Lysnar, Solicitor, Gisorbne. . ' Dear Sir, —I hereby band you a release of my mortgage No 8833, from J. 0 Dunlop to myself oyer certain Whataupoko property, which you are at liberty to use at any time you elect, but if you elect to register this release you must either give me a release for all law costs, for which I am liable as guarantor.for my husband J. 0. Dunlop, to you, or pay me the consideration money of £2OO mentioned in the release. —Yours truly, 11 E. M. DUNLOP. (Witness) WM. S.McCREDIE, Law Clerk, Gisborne. Witness continuing said that she thought she signed a document a day or so after her arrival at the end of July.

Mr Roes said that the guarantee was signed on August 10th, and Mr Lysnar had written to Mr Dunlop on the 11th. This put quite a different complexion on affairs.. In answer to Mr Rees witness said that she signed only one guarantee.. The guarantee produced did not fit in with her recollection of the affair. The guarantee she signed was for £2OO, a specific sum, at least so it was explained to her. The guarantee produced was for any law costs occurred or likely to occur on account of her husband. She went with. her husband on the 10th August, to sign the equity of- redemption. She re membered her husband receiving a letter from Mr Lysnar on the 9th August. The letter was handed to i her by Mr G. Lysnar, and was follows:

Gisborne, August 9th, 1898. J. 0. Dunlop, Esq., jj j “i L: "i • / Gisborne. , Dear Sir,—-Re costs, since our conversation ,to-day regarding, my costa xor your actions now pending, X have r re T nS S e^ g you ?’ I that I should take ; security for same > over your Whataupoko property, and I . am sorry to say that not see my way to do so,'as the equity over' m6rt “So to the Rev S. Williams i 8 too small.' I ihust ‘ tWore ask you toV find at once sufficient cash to cover disbursements in both actions, otherwise I must decline to proceed further with the B ame as counsels and jury fees in both cases will be considerable, and in fairness to myself I do not feel inclined 1 to pay the same, as I am already out of pocket bo a considerable amount for work already done by me for you 1 must ask you to arrange with some other person regarding your WhatauF° k ? § r 1 t ?o er - y,BO t 0 let me have at least £l5O m cash towards costs at once. —Yours truly,. * W. DOUGLAS LYSNAR. Before that letter was received she had certainly signed a guarantee, but not the one produced. ■ She could not help looking at the guarantee presentedm Court, because she was sure that the one she signed was for £2CO H.er husband and herself went to Mr Lysnar’s office on the 10th for the purpose °f signing, the transfer to which they had agreed. On the morning of the 9th she went to Mr Ferris’s °?- C9 W £ °? a i Q th ! datQ of mortgage which he had made out. She rememi ° e j 6^- meet - ng on the 9th I dlB ™ 8S1 ° g question of costs. Sf husband and herself were staying with Mr Lysnar, and the latter asked them to come to the office. Mr Lvsnar Sv P enTolh tothem thattll9 grantee f'Zli was 110 Bo od as he re- ° Q the cas6s - He told them that he wanted £l5O Tf was then they offered him "eciirifv over their Whataupoko property nnd h9 ,,r ould tale a y, Httle time to consider this. About an hour \ after they were handed the letter by V £ 8 - tated tkat ne could accept their pronosals the and tha? i haVo tl* take tL* 18 would b ! a great mis! ak9 ; f ThQ y suggested that they should ransfer to him the deeds of the Whato™ltb y r!” I=B « time fr> lS °w, COS^8 and give them 7 ay 'v Wl tness objected to the transaction because she did not want solo fw h ., ller P r °P ei 'ty, but was assured that there was no risk of this if tne cases wore a certainty ; that the transfers wore a mere matter c.l form. Witness asked that twelve months’ timo to pay the costa should at loas{j

bo given, but Mr Lysnar objected to this and suggested three months. She | refused, and wan about to leave when t Mr Dunlop suggested six months and •tothis she.agreed. Mr Lysnar’ said t that he would return the guaranty ' and give her a letter definitely s tS the agreement. She received neither ■ agreement nor letter as promised Tt was at the invitation of Mr and’M™ ; Lysnax that on the Bth August they went to stay at their house. Thev stayed at Mr Lysnar’s until the dav i they went to Napier on the 24th Once in conversation with Mr Lysnar i it was agreed that the £2OO should cover all expenses. Several times after Lysnar and ashed about the bill of , fbats, which the defendant promised to Witness was not aware of any bill of costs being rendered to her husband at any fame. She had not reefcived any bill of costs on account of her husband from Mr Lysnar. .v^ir^T 19 5 r . 116u did you first know lha Mr Lysnar intended lo hold tbs p°o porliy as his own ? , s ° Witness : I suppose it dawned .upon ms ‘/hon he wont in. Still, I supposed that ie went there as a tenant, subject to this itrangemenl, If Jf* AntfiV shon5 hon dld yon *»* hnow »at, patting the arrangement aside, he lauaod the properly as his own, not subaot to any restriction ? Witness i He made no direct notifioaion 1 to my knowledgeMr Roes: Do you remember any coraspondance between Messrs Devore and nartin and Mr Lysnar ? X 0B ; I know that Mr Lysnar ?rota to Mr Dunlop to settle with Mnssrq ffpr settle up owing to varies oiroumatahoea ; Mr Dunlop’s health as very bad for a time, and there were her reasons.

This oonoluded tho examination in chief. Dr. Findlay : Yon have had properly of oar own for many years ? Witness: I have. Dr. Findlay: And yon olaim to be a Oman that oan look after your business well as most women, if not better ? Witness : I am not good at business. Counsel : Well, we shall see'about that, im going to show that you are. Your sband and you do not sometimes agree out business matters ? Witness: Sometimes we differ. (Jounsel: You remember making a iteraenl in a previous case that your sband was not yonr agent, that you idiioted your own affairs, and consulted n only when it was necessary to do so •? Witness i Yes. Jounsel:. You have had litigation on ir own aooount ? Witness: Yes, I have had. Jounsel: Supreme’ Court litigation at »? . •• fitness: Yes, I have, loj So this is Dot the first time U jo had dealings with lawyers ? Pkjeas: No, it was not the first time, lounsel: Almost every solioitor in Gis:e has aoted for you at different es? Witness * No, not every one. unnsel: Mr Finn has acted for yon; foot he drew oat this mortgage for 0? Fitness: Mr Finn has acted for me, often.; ounsel:. Judge Jodbs has also acted you; he was, in f&ot, your standing jitor ? fitness: Yes. ounsel; And Mr DeLautour acted for in the libel action ? fitness i Yes. ounsel: So you were intimate with all e solicitors, as solicitors ? fitness: More or loss, onnsel: Therefore we may take it that ioitor’s office was no new surrounding rou when you went to see Mr Lysnar ? 'itnoss: No. 1 7 jqnsel: Now in regard to yonr visits Tapler. Were you not baok in Giso between April and the end of July 398 ? ’itneas; No; that it quite a mistake. IS not. i:L . innsel: Are you absolutely certain yoo'dld not stay at Mr Lysnar's house :o you'wont to Napier in April of I? itness: lam absolnlely oertain I did I may have stayed at his ooastal e when travelling up. the coast, lunsel: Of wliai; moneys were the igage of £7OO advanced to yonr has--1 made up ? itneas; I had some money left to me □ old lady in England, and my mother i £6OO. ::I lent in that year on that orty quite £IOOO. : jonsel: Did you have your own bank util? itness: Not then, but I have now. c Findlay: Do yon rfetnember any dision in Mr Lysnar’s office as to the lity of the mortgage for £7OO ? 'itness: No, Ido not. is Honor: Do you suggest in regard to validity of the mortgage that it was aflov £2OO on aooount of its doubtful ire ? r Findlay: No, Ido not I shall come lat later on, l answer to further questions, witness that her husband and herself and the ndant ware the only persons she ombared being present when the matter the mortgage waa discussed io Mr Bar’s office. Mr George Lysnar might e come in and rut of the offioe whilst discussion was goiDg on. ounsel: You are quite sure that you ad only; one guarantee, and that was £2OO 7 Fitness: Yes. lounsel: How then do you explain the it'enoe of this one ? Fitness: I oannot explain it. lounsel: There were only two proposed isaotions,. one that you should give a iranteo to Mr Lysnar, and the other t you should transfer this mortgage of JO to him. witness : Those were tho two tranaacis in which I was directly concerned. Jounsel S Was there not a third proml, that yon should release your mort--se, and that Mr Lysnar, should hold it eased along with the guarantee, and he lid either register the , release to the irtgage, in which caso he had to return i guarantee. Do you recollect any reaction of that kind being discussed ? Witness: No; I cannot reoolleot anyIng of the kind. - . . Oounssl: So all that you did was to |n the guarantee, and later on to sign e transfer of this mortgage ?, Witness: Yes; that is all.' Counsel: Wilt you kindly look at tms icoment. , . Dr Findlay then read a letter to Mr yanar from Mrs Dunlop, dated Augnst Hh, banding a release of her mortgage im J. 0. Dunlop to herself for the sum jJ2OO, and stating that Mr Lysnar was liberty to either register the lease ana ver her the guarantee for which she was ibie, or pay her the consideration money entionod in the lease. Counsel: That is your signature l \Vifcnes3; Yea. Counsel: And is not this what you are infusing with the guarantee for *<JUU i Counsel: Was not this letter sent to Mr iysnar in Consequence of the discussion on ho validity of the mortgage ? Witness: Ido not remember any disnssion as to the validity of the mortgage, looked upon Mr Lysnar as the trustjortby adviser of my husband. Counsel: On tbe 24th Augnst, when ou signed the transfer, you did not. get be following letter?—' ~4 11 Gisborne, Aug. 24th, 1898. ! Mrs E. M. Dunlop, Gisborne. Dear Madam,— , . , I ' “In consideration of yon having this dav signed a transfer to mo of your Mortgage, No. 8838 J. C. Duhlop to you, jver oertain Whatoupoko property for the consideration of £2OO, which I am to credit Mr Dunlop for law costs expenses, I hereby release you from your guarantee to me for Mr J. O. Dunlop’s past and future ooats,—Yours truly, W. Douglas Wm. S.MoOredie,lawolerk, Gisborne.”

'Witness : I did recoive a letter, andl take it away. It was not, however, the letter 1 expeotod. I expoctod a letter notifying me that he would give us six months creait. Counsel : Did you got a receipt for the £2OO as well? ■ . - ... - Witness \ No ; I am cettain that l dia ppt<

His Honor said that he oould not I puderstandjany woman in her sonsea sign* ,D 8 fcho dooument. Ho oonaidored that it [ was Mr Lysnar’s duty to himsolf and his profession to have told Mrs Dunlop to got ®aparato advice. If he had done this there Would hava been no neod for this litigation. Oonnsel: Were you not told by Mr Hysnar, who consulted Mr Ooopor, that tbo latter advjaod that a transfer should be made ? You remember tho arrangement arrived at when Mr Cooper was oonsuitad? Witness: lam suro that I do not romember anything of tho kind. It was entirely between Mr Lysnar and mysolf, ®nd as my husband’s solicitor I had ovory oonfidenoe in him. Counsel: Was thoro a conversation in regard to something that he oommunioalod With Mr Cooper about ?. , Witness: I should have to understand it moro clearly before I would take an affidavit about it. His Honor: That this transaction was opon to grave doubts, and should not have been entered into unless his olient was separately represented, is that not what Mr Cooper says ? Counsel replied that Mr Cooper had | advised tho oourse adopted by the defendant. After pernsing the dooument handed'to him, Hia Honor remarked, "Yes, Mr Cooper does seem to suggest the transfer instead of relying on the release of tho mortgage." The witness being olosely examined as to whether Mr George Lysnar was not present at some of the discussions ropliel that he might have oome in and ont of the office, but he, was not present whilst the matters were disoussed. Counsel: Will yon swear that Mr George Lysnar did not suggest that yon should get independent advice ? Witness: lam quite sure that he did not do so at any lime. Counsel: How many interviews did you have on-the 10th August ? Witness: Two or three. Counsel: knd yon did not hear Mr G. Lysnar .at any time ask his brother about getting independent advioe ? Witness: I swear that I did not hoar it. Counsel; Will you swear that the remark was not made ? Witness : I will not. At this stags Mr Bees asked that all ■ witnesses be asked to leave the Court* Dr Findlay said that this wpnld be manifestly-unfair, Mr Dunlop had sat alongside his wife and heard her evidence. The matter, however was entirely at his Honor’s diaoretion. , His Honor: Had I been asked at the beginning of the oaue I would have ordered other witnesses to leave the Court and allowed Mr Dunlop to remain. Dr Findlay: It is entirely unfair. A request under similar oiroumstanoes was refused by the Chief Justioe in Napier. • His Honor: If you mean that Dunlop has bad an unfair advantage over yon, and that they may square their evidence, that is no reason why- it should give another party a reason to square their evidence.

All witnesses were ordered out of the Court,

Counsel, continuing, the cross-examina-tion of the witness in regard to Mr George Lysnar asking that independent advice should be sought, remarked, " Then you will commit yourself to • oath on that score”?

Witness: Yes; I will do so; he never in my presence asked that separate advice should to taken.

Counsel: You have told us that on the :24th August, 1898, you expected another letter. When did you give up expecting it ? Witness: Well, I do not know that I did give up. I supposed that there would be a settlement some time. Counsel: Mr Lysnar took possession of the house and made extensive alterations.. You, yourself, must remember being there and observing the improvements ?

Witness : Yes; I noticed them when I returned to Gisborne the second time ; that was in June of the following year. Counsel: Did it not dawn upon you that they were treating the property as their own ? Witness : Yes ; it looked like it. Counsel: You remember telling Mrs Lysnar on one occasion that you were pleased they had secured the place for a home ?

Witness: I did not go as far as that. Counsel : How far did you go ? Witness: I eanpot say how far I went. I remember having a conversation on the subjeot, but I cannot say how far I went,. I do not thiDk these matters should be brought in here. Counsel: If Mrs Lysnar says that yon told her yon were glad they secured the place as a home would you deny it ? Witness: I cannot join in any conversation, nor can I repeat any conversation thatjiook place between ladies. Counsel: Bat if Mrs Lysnar says so will you contradict her ? Witness: Ido hot say that I can go that far. I certainly would not confirm

Counsel: But will you contradict her|? Witness : I will not take any affidavit on the subject at all. Counsel: When you called was your husband with you. Witness: No.

Counsel: Why did yon wail from the 24th August, 1898, to Ssptember, 1903 fully five years without a letter?

Witness: Our circumstances were peculiar at the time. Mr Dunlop’s health was bad and I was also forbidden to have anything to do with business affairs. We

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