SUPREME COURT.

Globe, Volume I, Issue 62, 12 August 1874, Page 3

SUPREME COURT.

SITTINGS IN CHAMBERS,

P. 11/ {Tuesday',) August 11. (Before His Honor Mr Justice Gresson.) . His H/jnpr sq# in the Court Chambers, at 11 a.m. ;. ii [BE CHARLES WHEELER MOUNTFORT. ' The bankrupt in person, applied for an order, fixing date of last examination. . r His Hbnoi* made trie brder, fixing Thursday, 10th September! for last examination. RE JOSEPH' HERDMAN'ANDREWS. l Mr Slater applied for an order of adjudication, and fixirjg '.of first meeting creditors. His Honor made the order, fixing Thursv -,{ day/ August ■SOth, at .11# x)'clopk, for first meeting of creditors. j-rryi PAGASSET; V. WARD AND. ANOTHER. ■, -" *' 'Mr 'Garrick applied that his 'motion for an order directing the Registrar to review the taxation of the plaintiff's disbursements herein should stand over. *£a jorirned: accordingly. ' ■ ; ' - ■■••.■

RE JONATHAN KINGDON. '! | Mr; 'Gariick applied for an '.order! for the examination of certain witnesses in this case on Thursday next, in Bankruptcy. ■ ... His Honor made the order. RE JOHN TETLEY. Mr Garrick, for Mr Williams, applied for an order of adjudication, and fixing of first meeting of creditor's. His Honor made.the order, fixing the first meeting of creditors for Wednesday, the l'Oth August, at half-past 11 o'clock. BANK OF NEW ZEALAND V BELCHEK AND, ANOTHER. His Honor gave judgment in this case as follows : This was, a.demurrer to the replication: The declaration is upon a promissory note made by the defendants to the plaintiff in the terms following : .." Kaiapoi, 4th Oct., 1870. )YA /"On demand we promise to pay to the Bank of New Zealand or order the sum.of £IOO0 -sterling, value received. " Belcher & Fairweather. " Payable at Bank of New Zealand, Kaiapoi." To this declaration the defendants pleaded

that after the' making and signing of the ■ promissory • note, .the defendants by deed 'dated'the 12th October, 1870, made between , the defendants of the first part, the mayor . and councillors of Kaiapoi of the second part, and the plaintiff of the third part, conveyed and assured to the plaintiff certain hereditaments therein mentioned by way of mortgage for the purpose of securing .the, payment by the defendants to the plaintiff of the inoneys 'secured by the said promis-

sory note. That in the said deed was implied by virtue, of the provisions of the Oonveyanc- ''•' ing Ordinance a covenant by the defendants • as. mortgagors that they would pay the principal money and interest thereby secured after the rate and at the times therein mentioned. . ..The replication sets out the material parts of the'deed of mortgage, which recites that the Bank had lately discounted for the defendants several bills of exchange, and had made to them certain advances of money, and as their bankers, might thereafter advance and pay to them or on their account divers sums of money in honoring, their, drafts, or in discounting or paying bills of exchange or promissory notes given, drawn, accepted, or endorsed by them or otherwise, and for the purpose of securing to the Bank the said advances and all such sum and sums of money as should at any time thereafter be due to i ta them from the said defendants, in respect of any sum or sums so advanced as aforesaid, or upon account current, balance of account or otherwise howsoever, with interest for the Bame as thereinafter mentioned ; the defenI ''.dants had. given to' the said Bank their promissory note bearing date the 4th day of .October, instant for the sum of £IOOO, payable to the said Bank or order upon demand, and that as a further security for the paymeat, of the said promissory note and sums of money, it had been agreed that, the defendants should enter into the mortgage thereinafter appearing, the said . deed conveyed and assigned the freehold

: and leasehold premises respectively therein described to the Bank, to hold subject to on" payment by the defendants -' on demand for that purpose made by the Bank as well of the said sum of £IOOO secured by the said promissory note, as also of such sum and sums of money as should for ! sie time being be due to the Bank from the

defendants for or in respect of any moneys which should or might be thereafter advanced and paid by the Bank to the said defendants or on their account or by their direction, or in honoring their drafts, or in paying any bills of exchange or promissory notes which should have been given, drawn, accepted, or endorsed by them the said defendants, or upon account current balance of account, or for insuring or repairing all or any buildings on the said parcels of land, or for rent, or on any other account whatsoever, together with interest for the same after the rate of £lO per centum per annum, to be computed from paying the same together with all bank charges usual with such advances and together with the costs of the said deed of mortgage. And it was thereby declared that all covenants, powers, and provisoes by the said Conveyancing Ordinance directed to be implied in conveyances of land by way of mortgage should be implied in the said deed. The question to be determined upon this demurrer is whether the promissory note sued upon was merged in the said deed of mortgage subsequently executed. _ Although several cases were cited by Council upon the argument none was referred to, nor have I been able to find any precisely similar to the present. It is laid down as settled law, that there can be no merger unless the two instruments are "coextensive," but I have not found any . definition of the term as used in Courts of law. It would seem that it is not applied according to its ordinary meaning " having equal extent," but that it means the securities must be between the same parties, and that the security of the lower nature must not be for a larger amount than that covered by the higher security. In the present case the parties to the promissory note and mortgage deed are the same, and although the amounts secured are not identical, the sum advanced upon the security of the promissory note is contained in and purports to be expressly covered by the deed. The time for payment under both securities moreover is the same, viz., " upon demand," and therefore, but for the intention that there should be no merger plainly appearing upon the face of the deed, I think the general rule would apply, that the lower security should merge in the higher. Price v Moulton 10 C.B. 561. But I have not found any case which decides that merger will take place, notwithstanding an intention clearly expressed to the contrary, and there are several decisions to the contrary.—Twoprnnv v Young, 3 Barn, and Cr., 208 ; Ex parte Penuell, 2 Mont. D. & D. G., 273; Ex parte Whitbread ib., 418 ; Boaler v Mayor, 34 L.J.C.P, 230, in which last case Keating, J., points out that Price v Moulton is not an authority for the proposition that there must be a merger irrespective of the intention of the parties, and that Willcs J., by by whom that case was argued, declined to contend that there would have been a merger if .there had been in the deed an.expressed intention to the contrary. Upon the whole, therefore, I am*of opinion that the replication is good, and that the demurrer must be overruled. Demurrer over-ruled, with costs. Leave to appeal.