SUPREME COURT.

Gisborne Times, Volume XIX, Issue 1596, 7 November 1905, Page 2

SUPREME COURT.

DUNLOPS v. LYBNAR.

At the Sup- etno Court yesterday several judgments in connection with oases heard at the last civil sitffogs by Mr Justice Edwards wore given, boiDg read by Mr W. A. Barton, Registrar. The judgment in the case of Dunlops versus Lysner occupied thirty-two pages of cloßoiy typed foolscap, going minutely ioto the doia.ls of the tvidence and the bearings thereof oo tbo transactions between the two parties. His Honor said it must be declared that the transfer of the mortgage 8833 oc< * the registration thereof wera vetoed; that Mrs Dunlop must have sujh consequential relief as would give to her the full benefit of that mortgage as a seourity for the Bum of £7OO, and all ioterest which had accrued due under that mortgage since the eiecn- _ tion ot the transfer to defendant. It did not dearly appear what the present state of the title was. The fee simple of the laud appeared to be vested in defendant, shbject to a mortgage fiorn Dunlop to the Rev. S. Williams, tho pr.ncipal secured by which appeared to have been roducod by £4OO. If this was the state of the title plaintiff, Mrs Dunlop, would obtain a full relief to which she was entitled by the deolaration to which he had referred and by the farther declaration that the mortgage 8833 was and remained a good seourity for tha purposes of securing to Mrs Dunlop the principal sum of £7OO, with interest at 6 per cent, from April 21, 1898, accordiog to the tenor of the said mortgage, and by directing that the District Land Registrar should cancel all entries and memorials whereby it has been made to appear that the mortgage hai been transferred to defondant or that the mortgage had been released or had merged. His Honor lesereed further consideration with respect to the claim of Mrs Dunlop, with liberty to either party to applyWifch respect to the claim of James Charles Dunlop, His Honor said he had already held that the transfer of the equity of redemption was intended to be a security. There was another ground on which defendant could not be allowed to seti up an absolute transfer. It had been held m an English case that in deeds between aitorneyjjand olient they should state the consideration truly. Tho consideration in the present case, said His Honor, was not the payment of £SO, but the total amount of costs then owing by Dunlop to defendant, and all costs which might thereafter become owiDg, and that the transfer was not intended to be anything but a security. There waß confirmatory evidence that such was the case in certain subsequent correspondence between.Dunlop and defendant, which made it quite clear that plaintiff claimed the right to redeem. Defendant endeavored to make it a point against plaintiff that he had not included this property in his sohedule of assets in his bank-. ruptoy, but that was explained by the evidence of the Deputy Official Assignee, from which it appeared that when Dunlop was making op hie schedule he mentioned that the Kelvin property had been transferred to defendant on aooonnt of costs, and that the transfer was understood to be a mortgage ; and that ho also aaid that he did not think it likely that tbe properly if Bold would leave any margin for the creditors. . . The notion taken by Dunlop in making the communication to the Assignee was the more significant as at that time no dispute had arisen between the parties. Defendant Bet up, in answer to the claim, that plaintiff was bound by ! -.ches and acquiescence, the grounds relied upon being that defendant had, to the knowledge of Dunlop, expended considerable sums of money in improving the property, and that he had been in possession as owner since April, 1899, without interference. The properly was at the time the transfer was signed under lease to Mrs Hollywood. Early in 1899 defendant professed to re-enter upon the property to determine the lease. Defendant expended considerable sums on the property, most of which appeared to be in the nature of . expense for repairs. Dunlop admitted he knew defendant was making alterations, which he eaid he thought were the reverse of improvements. He was adjudged bankrupt in December, 1899. There was plainly no laches or acquiescence to bar him olaiming prior to his bankruptcy He now sued as trustee for his creditors Defendant could not rely upon any laohes between the time of the bankruptcy and tha date of his appointment as trustee. Defendant knew he was merely a morl. gagee in possession. If he wished io obtain an absolute title he should have bargained with tbe Assignee for a release of bis claims upon it, more especially as the documents under which he held it represented him to be tbe absolute owner. If tbe security taken for Duolop bad been, &s it might have been, and ought to have been, iu the form of a mortgage the right to redeem could not have been barred by anything that had taken place since defendant entered into possession. His Honor eaid he had not been shown any authority that iu a case where a mortgage was taken in the form of an absolute transfer the right to redeem was barred by any- S thing short of the Statute of Limitations To uphold this defence as against Dunlop a trustee for bis creditors would be toallowde fondant to take advantage of his own wrong.* In his opinion, Dunlop’s claim was not barred and must be upheld.... Dunlop’s claim that the defendant agreed to oon* duet the ease for out-out-pooket coats bad not been established, and His Honor thought the security was taken for all costs. It was, however, olear law that a solicitor could not take security for future costs or for moneys advanced for [ the purpose of a oause. His Honor said it must be declared that the transfer No. 10692- from Dunlop was executed by way-’ of security only, for the purpose of scouring payment to dafendant of his lawful costs, and that Dunlop was entitled to redeem the property upon payment of what (if anything) should upon the taking of accounts appear to be due to defendant in respeot of costs up to August 10,1898. An account must be taken of suoh costs and oharges, also of the rents and profits received by defendant, and he must be charged with an oooupatioa rent for the period of his oooupation of the property. There must be inquiry as to what buildings had been removed, and defendant charged with the valae of such buildings. All just allowance must be made. The minutes of the decree would be settled in' Chambers, and His Honor reserved for argument tbe question of whether any allowance ought to be made defendant for permanent improvements to the property. Either party would have liberty to apply to the Court. Defendant was ordered to pay costs as upon a sum of £1250 up to the date of the deorce. His Honor certified for an allowaooe of 15 guineas for eaoh of the three extra days and for seoond oounsei 8 guineas. He reserved the oosts of working out tho deoree. It might be necessary to amend the statement of claim, includ- -.... ing the prayer, to aoo-"tfl with the facts. The case was one ip whioh he thought it proper to allow any neoessary amendmoots, even at -aie stage, Mr E. J. Chrisp, who appeared for defendant, notioo of appeal. Mr W. L. Rees received judgment for plaintiffs.

| THE FACTORIES AOT. the case of Robert Robb and James ; Robb v. R. Bullon, Inspector of Factories an appoal from the decision of Mr W. A Barton, S.M., Mr Justioe Edwards dis' | missed the appeal. He pointed oui that tho p onuses oooupied by Messrs Robb was a faotory within the meaning of theu Aot, BDd required registration, although® outßide labor was not employed It was not necessary to show that two or moru persons were employed. Registration of the premises was required for the proteo. tion of the public, as well as for tho employees. The statute was not designed for the protection of workers alone, although that no doubt enteied largely into the design. Ihe provisions of eeet'ons 42, 44. and 48 for example, were designed for the production of the public, aud not merely for the protection of the, persons etaployed. The appeal was dismissed with oosts jgs ss.

A WILL CASE. Judgment was delivered in the oase of Jane Miunio Adorns aud another v Annie Elizabeth Adams and others, Mr Stock appearing for the t usteea, who asked for an interpretation of the will of the late Mr Thomas Adams. The matters referred 001 W«« lo the parties