COURT OF APPEAL.

Gisborne Times, Volume XXIII, Issue 1799, 3 July 1906, Page 2

COURT OF APPEAL.

LYSNAR V. DUNLOP.

(Per Press Aettooiatios.) 1 Wellington, last tilt. Tbo Court of Appeal, consisting;! tbe , Chief Justice, Justice Edwards, andjualicu f. 41Chapman, eat this morning io hjr the 1 oase William Douglas -kroner v.famee ' Charles Dunlop and bis wife. a--from the deoision of Mr Justice Edwards delivered at Gisborne on the 6th November laet. . V , ' Thp email number of judges sitting ‘B accounted for by the fact that Mr Juttico DonDiston is too ill to sit, and Mr Juitioff Cooper was in 1898 counsel in the proceedings out of which this oase arose, and also a witness in this case. Tbe faots of the osee, as found in the Court below, were tbe following .•-—Appel'* lant, Mr Lyeoa-, a sohoitor in Gisborne, had been retained by respondent in 1897 to conduct certain litigation in the Supremo Couit. Respondent was financially embarrassed, and was unable to find funds for tho disbursements incurred by the appellant in litigation, and he therefore got his wife to enter into a written agreement to guarantee, a 6um of £l5O to appellant On tbo day before the t ial of ooe of tbe actions in wbioh appellant bad been retained be refused to . proceed with the oase unless he received certain moneys in payment of costs iacurred by him. Respondent could not . find the money required, but be had town /{ property iu Gisborne on whieh there was a first mortgage to-the Rev. Arohdeecon Williams for £I3OO, and a second mort* - gage to bis wife for £7OO. Ho proposed to give this property, subject to tbe first - mortgage only, as security for tbe costs inourred by appellant, and tbe transfer of tbe property, Bnbject to tbe two mort* gages, was signed by respondent, con- I eideration in the transfer purporting to be given, while at tbe same time respondent’s wife in a brief guareniee previously given by her, released a seoond mortgage she held over tbs property. Appellant was not satisfied with this form of security, and Bbortly afterwards be induced respon- . dent’s wife to cancel the release of bee ‘ mortgage, and to transfer the mortgage to him. The consideration on that transfer -.4 purported to be £2OO, thongh no money was paid, so that appellant obtained on abßolnto transfer of tbe property, snbjest. only to tbe first mortgage, for the nominal consideration of £250, but really for the v.espouses inourred by appellant in the > conduct cf the litigation. Respondent and bis wife alleged in the Court below; that this transfer, elthongb absolute-far form, was really a mortgage of their interest in tbe property to secure the money inourred by appellants as costs, and that on payment of thoeo costs they were entitled to redeem. They alleged further that they had been indnoed to enter into the security in that form by appellant whom they trusted as their legal adviser, and without independent advioe. Appellant alleged that he bad openly purchased the property ; that the translation had been perfectly bona fide, and that he bad urged respondents to get independent advioe, but that they thoroughly understood the Dature of tbe transaction. Tbe Judge in the Court be* low found substantially for respondents, and deoreed that aooounts be taken and the property given up to respondents. Ibe matter was somewhat complicated through the fact that respondent had shortly after the date of tho transfer bocome bankrupt. Owing to this foot certain legal defences were raised bv annel, iSd' D ,bB oonr ‘ bolow ' bqt wo * re °™ r * Mr Hoeking and Dr. Findlay appeared - ' for appellant, and Mr Sksrrett and Dr. > 13 <mfo*n for respondents, * < I r " pp ° F<J 'be ease for appeilant, and st-ied that .-ince t b o appellant had obtained the prope.ty in qaest.on it -fl bad been mortgaged by him, and i a cas. respondent was successful ihe deorna in hi-favor would have to be modified Mr Ho kino then gave a short statement of the facts as given above. Before proceeding with the ap poa | i n , thecase.Lysnar v. Dunlop and another A Mr Hoekmg, on behalf of appellant, argued on a preliminary motion for the adffloa of fresh evidence. Among the documen , tary evidence put in the Court below was a diary of appellant, containing entries relating to the transaction in dispute. The nf°fh 6 "V- 6 Cou ' t } 3910w fouad that one of the entries was not made at the time it purported to have been made, and had been made smoe for the purpose of bolst'er'jß , 8 o , as6, This was a motion to admit inter alia an affidavit of a law clerk y u of a PP® l,ant t 0 that tho entry had been made about the time it was purported to have been made. Mr Skerrett, on fcphalf of resnnndnnio objeoted to the admission of thAafijdavit' 1 sidA 1 tb Anh b6 f*? 08 • ° f Br K a “Pnt on-both Bid=B, tbe Cblif Jastics said that the Court COa * pr ? teat 6<ve a dooision as to Whether (he evidenoe was admissible but that later on, if thp Court though t pre! : i : • oonsUl/nt A-.l f - lhe tran6a °‘ion, and was l fraud oould not m tho oses was oonsistenfwith*th? 1 ?™ 0 ® omco of apnellanf u,„ ; n ,a ° *aooicßpondem.PPEeßp’ D b d * ‘j a ‘ Of business man. and n Was a abrewd Gisborne, and understand 58 m 5 robaQ i ia nature of tbe transactionA- Perfeo,, J the into. He wasTAL he *' aß faring ohcasQ fo coQfcosfc a n a ?' capa^*e of being end did conteet an i' B a “ ' dence showed. The Onn®! 10111 “SJ&e eyi- 1 consideration the f ao ? simplo swain who bad" beA f b n aot "v man of great o rintellig fno .° A o '; in b J 8 \JSHe was a man of vcrv iuu Renees, as proved by the ! 3 °^ raoter > bad conducted. or 0 aw jaits be Mr Hoskinr had «-,» . i argument who the Conr! n^° his pm. to 10 30 tomorrow moS^T d ®‘ *