SUPREME COURT.

Globe, Volume II, Issue 171, 23 December 1874, Page 2

SUPREME COURT.

SITTINGS IN CIIAM3ERS, Tuesday, December 22. (Before His Honor Mr Justice Gresson.) His Honor eat in Court Chambers at 11 a.m. RE DAVID PYNE AND WILLIAM PRICE. On the application of Mr Hawkins, the date of the last examination was fixed for January 21st. RE W. TAYLOR. The, bankrupt in person applied for an order fixing date of final examination. His Honor made the order fixing January 21st for the last examination of the bankrupt. lIENTY V. HOLT. This was an argument on demurrer. Dr Foster, with him Mr Garrick, appeared on behalf of the defendant, and iu support of the demurrer to the declaration. For the. plaintiff and contra, to the demurrer, the Attorney-General (instructed by Mr Macassey, Dunediu), with him Mr G. Harper. In this ease James Henfy, Henry Henty, James Balfour, Herbert James Henty. and Bercival Clay Neill, carrying on business under the firm of Neill and Co were plaintiffs, and Edward Brown Holt, manager of the Bank of New Zealand, at Christchurch, defendant. The declaration alleged that, being credi tors (resident iu Dunedin) to the sum of £7OO of one George Hutchinson, of Kaiapoi, the said George Hutchinson proposed to pay lo his creditors in Canterbury and Otago, a. d.ividend or composition of 10s in the £ upon the amount of their respective claims. That the plaintiffs and other creditors agree! to accept the composition thus offered upon conditions that the said divideud should be paid immediate'y upon or after the separate execution of or assent in writing by the said creditors to a deed of arrangement under the Bankruptcy Act, IS(>7, and that such dividend or composition should, immediately upon or after such assent, be paid by defendant as manager of the Bank of New Zealand at Christchurch, the said bank being at the same time largely interested, as a credifor of the said George Hutchinson, in bringing about a favorable arrangement with the general body of his creditors. That the said defendant, being the manager of the said, bank at Ohristehurch, and well knowing U e premises, and wishing it to be believed by the plaintiffs and the said other creditors of the said George Hutchinson that, immediately upon or after their execution of or assent to 'he said deed of arrangement, the said composition or dividend of ten shillings in the £1 would be paid, falsely and fraudulently represented to the plaintiffs and the other creditors as aforesaid that the said George Hutchinson had made satisfactory arrangements with the said bank at Ohristehurch aforesaid for the payment of the said composition or dividend, that the said bank held moneys on account of the said George Hutchinson, available for the payment of the said composition or dividend, and that such composition or dividend would be payable by the said bank to the plaintiff and other creditors, on execution or assent to the deed. That the representations and promise in the last paragraph mentioned were made orally, and in writing, signed by the said defendant. The following is the correspondence in the case : " 10th June, 1874. " Hanmer and Harper may draw upon Bank of New Zealand for dividends, payable in accordance with statements of accounts as shown (statement annexed), and pay same to creditors of George Hutchinson, on being satisfied that the deed fully assented to. E. H." He Hutchinson. " 19th Juno, 1871. "Dear Sir, —Kindly send me Fletcher's cheque for £75, and the sundry acceptances you hold on my account, and please; let me have a list of creditors who have signed the deed and. particulars of cheques yen have drawn for dividends. With regard to the Otago liabilities you had better let me arrange regarding them through our Dunedin manager when Mr Hutchinson goes down. " Yours, " E. B. Holt. " L. Harper, Esq, solicitor, Christchurch." "June 20th, 1871. Dear Sir, —We enclose cheque for £75, and acceptances as on other side ; also list of chccpies drawn by us on the Bank of New Zealand in favor of Hutchinson's estate, and list, ot those who have signed, Mr J. L. Wilson's draft must be re-endorsed by him when he calls on you for his divideud. ' You is, kc. •' ll,\N UK.'l & IJAUPKU. "The Manager Pane oi New Zealand." '• June S''th, 187 i. " Dear Sir, — Re Hutchinson—Referring to yon.' letter of the 19th June, kindly arrange with your Dunedin manager to pay dividends to creditors named herein. We have instructed an agent in Dunedin to make an aj - po'ntmcut with theee gentlemen to receive cheques at bank and sign the mv.osiiy piper-; on hearing Lorn us that the uiomy is ready. '* Yours, &c, " Hanwikk & Harper. : - Manager Bauk New Zealaud." "July Ist, 1871. '• Dear Sir.—We have received telegram. o from Dunedin enquiring when thedividind in Hutchinson's estate will he paid, We really think it would be advisable to close the 'matter; the aesenl and instruction-! to our ayutits a>o gone already, Will you pleiis* miilce arrangements for the p-iy-ment of the dividends through your branch there. '• Yours. &c, " Hanmer and Harper. " Manager, Pauk NZ."

"July 11th, 1874. "Dear Sir, —We have received two more telegrams from Dunedin (one from Mr Macassey, solicitor) complaining of the delay in the payment of the dividend and our not having replied to the former telegrams, asking for a settlement in a tone which'is not very pleasant to ourselves, We feel most strongly that it would be neither right or safe to delay the payment of the dividend* any longer, and that unless they are paid in accordance with the arrangements, proceedings will be taken by some of the creditors. We shall, therefore, telegraph that the cheques will be sent down by the next mail, unless you wish the payment of the dividends to be arranged in any other manner, and unless wo hear from you to the contrary we shall send the cheques as arranged formerly. " Yours. &c, " Hanmer and Habpbb. li Manager Bank of New Zci land,' "13th July, 1874. Djlu Sirs, —Your letter of the 11th nist has just come to hand, and I write at once to say that Hutchinson's matters with me are niost unsatisfactory, and with regard to dividends, I am compelled to give you notice that you arc not authorised to draw the cheques, and that if presented they will not be honored. <; In haste, yours, " E. B. Holt, " Manager." '• Messrs Hanmer and Harper." That the said Messrs Hanmer and Harper, acting under the instructions of and as agentsfor the said defendant, communicated by letters and telegrams the representation and promisi of the said defendant, to the creditors of George Hutchinson, resident in Otago, and to their solicitor, and that Messrs Hanmer and Harper, upon receiving a notification from the creditors that they would assent to the composition then proposed, were satisfied that the said deed of arrangement should be fully executed by the necessary statutory proportion in number and amount-,, and gave notice thereof to the said defend at. 'Jhat influenced by and relying on i • representations of the said defendant, tue plaintiffs assented in writing to a deed made under the Bankruptcy Act by the said George Hutchinson for the benefit of his creditors, whereby among other things George Hutchinson stipulated and agreed to pay his creditors a composition of 10s in the pound. That the representations so made by the defendant were made with the intent that the plaintiffs and other creditors should execute or assent to become bound by the said deed of arrangement. That although the defendant as manager of the bank in pursuance of his promise and in fulfilment of his representations aforesaid, paid the composition or dividend to a large number of creditors of the said George Hutchinson, yet immediately after the execution of or assent to the said deed, the said defendant repudiated his engagement and declined to pay to the plaintiffs the composition or dividend due to them, and the said dividend or composition has not nor has auy part thereof been paid by the said George Hutchinson or by any other person whatsoever. That at the time of the said representation so made by the defendant the plaintiffs had taken legal proceedings againts George Hutchinson to enforce payment of their claims upon him, as the defendant well knew, and but for the representations of the said defcudaut would and might have obtained judgment and enforced payment of their entire demand. Whereas, in consequence of relying upon the representations of the defendant the plaintiffs purposely abstained from prosecuting the said legal proceedings to final judgment or taking other active measures to enforce payment of their entire claim. That the plaintiffs have in consequence of the false and fraudulent representations of the defendant as aforesaid sustained great loss and damage, and have been seriously prejudiced and injured in respect of their claims upon the said George Hutchinson. Wherefore the plaintiffs claim* to recover from the said defendant the sum of seven hundred pounds as damages. To the declaration the defendant demurred as follows :

(i That it does not appear that the representations complained of are in writing and signed by the defeudant. "That it is not alleged and it does not appear that the representations complained of were false to the defendant's knowledge. <; That it is not alleged and it does not appear that the said Geo. Hutchinson had not made satisfactory arrangements with the said bank at Christchurch afores; id for the payment of the said composition or dividend. That the said bank did not hold monies on account of the said Geo. Hutchinson available for the payment of the said composition or dividend.

" That the representations complained of amount to an undertaking or promise to be answerable for the debt of another person and it is not alleged nor does there appear to be any agreement, memorandum, or note thereof in writing and sigued by defendant. " That it is assigned as a breach of the alleged promise and. representations on the part'of the defendant, that the defendant repudiated his said agreement, and declined to pay to the plaintiffs the composition or dividend payable to them, and the said dividend has not nor has any part thereof been paid to the plaintiffs by the said G.Hutchinson or by any other person whomsoever. Whereas it does not appear that the defendant ever promised to pay to the plamtiffs tin: said composition or dividend.

"Thatthe alleged representation that such composition or dividend would be payable by the said bank to theplaintiffs and the said creditors severally, immediately upon or after the execution of or assent to the said deed by the said creditors respectively,isuota misrepresentation of an existing fact. •'That it does not appear and it is not alleged that the said bank has not paid or declined to pay to the plaintiffs their paid dividend or composition.

" That it does not appear that all conditions were fulfilled and all times elapsed to entitle the plaintiffs to receive payment of the said dividend by the said Bank or the defendant.

•■That it appears that the defendant <r the said Bank was to be surely for the payment of the said dividend, and it does not apoear, and it is not alleged that the plaintiffs ever informed the defendant of their having assented to the said deed or requested the defendant or the said Bank to pay the said dividend.

'■ That it appears that the said deed of arrangement was made under the Bankruptcy Act, 18G7, and would operate as a stay of all executions, and it does not appear that the

lime all owed by the Bankruptcy Act for obtaining the completion of the said deed had expired, or that the plaintiffs could have enforced payment of their entire demaud, or have been in anyway hindered or delayed in their said action by the said alleged representations. " That it appears by the plaintiffs' declaration that prior to, or independently of the said alleged representations, the plaintiffs had agreed with the said George Hutchinson to accept the composition, and assent in writing to the deed of arrangement. That the letters and correspondence signed by the defendant, and set forth in the plaintiffs' declaration, do not contain any representations to the purport or effect set forth in the third paragraph of the declaration, nor do they give any authority to any one to make such representations on defendant's behalf. That it appears by the letter of June 10th, 1874, that the composition or dividend would only be paid upon the deed being fully assented to, and it does not appear, and it is not alleged that the said deed has been fully assented to, or that Messrs Hanmer and Harper were satisfied that the deed was fully assented to. That it appears that the defendant only agreed to pay certain specific liabilities of the said George Hutchinson, and it is not alleged, and does not appear, that the plaintiff's claim was included in the specified list. That it appears by the plaintiffs' declaration that the alleged authority given by the defendant to Messrs Hanmer and Harper did not extend to the creditors resident in Dunedin " To the defendant's demurrer the plaintiffs, by their solicitor, Mr Macassey, made joinder that the declaration of the plaintiff was good in substance. Mr Garrick and Dr Poster having addressed the Court at great length, the At-torney-General replied, and his Honor reserved judgment. EE LAW PRACTITIONERS' ACT AND RE WALTER LAWRY BULLER. Mr Duncan applied for the admission of Mr Walter Lawry Buller as a barrister and solicitor. His Honor said he had very much pleasure in admitting Mr Buller. RE CHARLES HARCOTJRT, DECEASED. Mr George Harper applied in this case for letters of administration to issue to Joseph riper, as a creditor of deceased. The matter stood over. RE HENRY ADOLPHUS HODGE, DECEASED. On the application of Mr George Harper probate was granted to Angelina Ho 'gc, as widow of deceased and executrix in the will named. RE WILL OP THOMAS PRICE, DECEASED. On the application of Mr Garrick probate was granted to Elizabeth Price, as widow of deceased and sole executrix. TIERNEY V. PEPPERILL. Mr Joynt applied for a provisional injunction to restrain defendant from polluting certain water near Woolston. His Honor made an order for a provisional injunction to issue. PATEB3ON V. MANDEVILLE AND RANGIORA, ROAD BOARD. Mr Joynt applied for a rule calling on Caleb Whitefoord and another to show cause why they should not be prohibited from further proceeding in respect to a certain judgment given by G. L. Mellish herein. His Honor made the order, rule returnable on January 19th. RICKMAN V. THORNE. In this case, which was an argument on demurrer, counsel on both sides agreed to a postponement until January 12th. RE MIDDLETON AND M QTJADE. Mr Jameson appeared to show cause against a debtor's summons being issued at the instance of Messrs Twentyman and Cousin. Mr Joynt appeared contra. By consent of counsel, the case was adjourned until January 12th.