SUPREME COURT.

Globe, Volume II, Issue 192, 20 January 1875, Page 2

SUPREME COURT.

SITTINGS IN CHAMBERS. Tuesday, January 19. [Before his Honor Mr Justice Gresson.] His Honor sat in the Court Chambers at 11 a.m. RE GEORGE CALEB PRICE AND ERNEST D. PRICE. Mr George Harper applied for an order fixing date of final examination. His Honor made the order, fixing Thursday, February 25th, as date of last examination. RE GEORGE HUTCHINSON. Mr George Harper applied for an order of adjudication and fixing of the first meeting of creditors. His Honor made the order, fixing Thursday, January 28th, at eleven o’clock, for the first meeting of creditors, RE WILL OF FREDERICK WILLIAM LILLY, DECEASED, Mr George Harper applied for an order for leave to issue probate to William Sansom, of Rangiora, and Henry Mahler, Leithfield, His Honor made the order as prayed. RE WILL OF JOHN GEORGE COTTON, DECEASED. Mr Garrick applied for an order for leave to issue probate to Walter Lawry, of Springston, as sole executor thereof. His Honor made the order as prayed. WILSON V. HALL AND OTHERS. Mr J. S. Williams appeared and applied for a decree in this case. Mr Wynn Williams consented. His Honor made the order. PATERSON V MANDEVILLE AND RANGIORA ROAD BOARD. Mr Joynt appeared to show cause to rule nisi, of December 22nd. After argument, the case stood over until Friday. RE MIDDLETON AND MCQUADE, Mr Joynt appeared to show cause to a rule nisi, why an order of adjudication should not be made herein. Mr Garrick appeared for the debtors. After argument, the case stood until Chamber sittings on Friday next. RE JOSEPH HERDMAN ANDREWS. In this case, Mr Garrick, for the provisional trustee, had obtained a rule nisi, returnable at this Chamber sitting, calling upon Mr J. B. Banks to show cause why his proof of debt on the estate should not be expunged or amended. Mr Thomas for Mr Banks now appeared to show cause. Messrs Andrews and Walton were examined, and ultimately the further hearing of the case was adjourned until January 25th, at 11 o’clock. HKNTT V. HOLT. In this case his Honor delivered judgment as follows; This was a demurrer to a declaration by the plaintiffs, as creditors of one George Hutchinson. The declaration states that Hutchinson being indebted to the plaintiffs and divers other creditors, proposed to pay to each of his creditors a composition of tea shillings in the pound, and that the plaintiffs and the other creditors agree to accept such composition upon the terms agreed to by Hutchinson, that the same should be paid to the said creditors respectively, immediately after the separate execution of, or assent in writing by the said creditors to a deed of arrangement made by Hutchinson under the Bankruptcy Act, 1867, and that such dividend should, immediately upon or after such assent, be paid by the defendant as the manager [of the Bank of New Zealand at Christchurch, to the said creditors. That the defendant being the manager of the said Bank at Christchurch, and well knowing the premises, and intending it to be believed by the plaintiffs and other creditors of the said Hutchinson, that, immediately upon their execution of or assent to the said deed of arrangement, the said composition of.ten shillings in the £ would be paid,,falsely and fraudulently represented to the plaintiffs and the other creditors, that the said Hutchinson had made satisfactory arrangements with the said bank at Christchurch for payment of the same composition, that the said Bank held moneys on account of the said Hutchinson available for payment of the said composition, and that the same would be payable by the same Bank to the plaintiff’s and the said creditors severally, immediately upon or after the execution of or assent to the said deed by the said creditors respectively. That the representations and promise in the last paragraph mentioned were made orally and in writing—signed by the defendant. The declaration then purports to set forth copies of certain letters which passed between the defendant and Messrs Hanmer and Harper, solicitors, acting as the agents and solicitors of the defendants and of the said' Hutchinson in the matter of the said arrangement, The only one of these letters that appears to me to be at ail material is one of the 10th June in the following terms “ June 10,1874. “ Hanmer and Harper may draw upon Bank of New Zealand for dividends payable in accordance with statements of accounts ai shown, and pay same to creditors of O. H. Hutchinson, being satisfied that deed fully assented to. n The declaration then proceeds to abate, that Messrs Hanmer and Harper, acting under the instructions of, and as agents for, the defendant, communicated the defendants* said representation and promise to Hutchinson’s creditors resident in Otago, and upon receiving a notification from them that they would assent to the proposed composition, were satisfied that the deed of arrangement would be executed by the necessary statutory

proportion in number and amount, and gave notice thereof to the defendant. That influenced by, and relying upon, the said representations of the defendant, the plaintiffs assented in writing to and became bound by the deed of arrangement, made under the Bankruptcy Act, 1867, by Hutchinson, for the benefit of his creditors, whereby he agreed to pay them a composition of 10s in the £ upon the amount of their respective debts. That the representations so made by the defendant were made with the intent that the plaintiffs and the other creditors should execute or assent to and 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 said representations, paid the said composition to a large number of the creditors of the said Hutchinson, yet immediately after the plaintiffs’ execution of or assent to the said deed, the defendant repudiated his said engagement, and declined to pay to the plaintiffs the composition, and the same has not, nor has any part thereof been paid to the said plaintiffs by the said Hutchinson, or by any person whatsoever. That at the time of the said representations made by the defendant the plaintiffs had taken legal proceedings agaiusb the said Hutchinson to enforce payment of their demands against him. as the defendant well knew; and, but for such representation, the plaintiffs might and would have obtained judgment and enforced payment of their entire demand; whereas, in consequence of relying on defendant’s said representations, the plaintiffs purposely refrained from prosecuting the said legal proceedings to final judgment, or taking active measures against Hutchinson to enforce payment of their entire demand, and so, in consequence of the defendant’s said false and fraudulent representations, sustained great damage. It appears doubtful from the declaration whether the action is intended to be for misrepresentation or for breach of contract. In either case a great deal of irrelevant matter has been introduced. If it be intended as a declaration for breach of contract, the promise to answer for the debt of Hutchinson must be assumed to be that contained in the letter of 10th June, 1874. I cannot see otherwise what was the pleader’s object in setting out that letter, which if he relied upon it as a part of his right of action he would have been bound to set out under rule 76 of our general rules of procedure. From this letter it appears that the composition was only to be paid upon Hanmer and Harper being satisfied that the deed was fully assented to: but there is no allegation that the deed was ever assented to to the satisfaction of Hanmer and Harper, it is only alleged that they were satisfied it would be assented to: so that it does not appear that the condition precedent to the payment of the dividend ever was performed. It was contended that if the declaration was for misrepresentation, the case came within Lord Tenterden’s Act, and that the representation was invalid for want of sufficient signature. But 1 am of opinion that that Act does not apply, inasmuch as the representation was not made to the intent that Hutchinson should obtain money, or goods, or even credit, if that be held to be the reading of the Act, which appears doubtful. Lyde v Barnard, 1 Meet, and W. 101. Treating the action as for misrepresentation, there are three misrepresentations alleged. (1) That Hutchinson had made satisfactory arrangements with the Bank for payment of the composition. (2) That the Bank held moneys on account of Hutchinson available for payment of the composition; and (3) that .such composition would be payable by the Bank to the plaintiffs and the other creditors severally, immediately upon or after the execution of or assent to the deed by the said creditors respectively. These are the representations alleged to have influenced the plaintiff in assenting to the deed. And as they together constitute the cause of action, if any one of them appear to be insufficient the declaration must fail. The third of the representations relied on is not a misrepresentation of an existing fact; and although some cases are to be found in which the misrepresentation at first sight may appear to be of a future event; on a closer examination they will be found to be grounded on statements which the Court held to be assertions of existing facts. In Benton v Great Northern Railway Company, 5 El. and 81. 860, the plaintiff having seen one of the company’s time-tables, made arrangements to leave London and proceed to Peterborough—there to catch a train advertised to leave at 7 p.m. for Hull. On arriving at Peterborough, he found that there was no such train, nor had one been running for some time previously. It was held by Lord Campbell, C. J-, and Wightman, J., that the time-table amounted to a contract on behalf of the company, and it was held by the whole Court that the circulation of the timetable amounted to a false representation that there was such a train, and that the company continuing to issue such a time-table, when they knew there was no such train, was calculated to induce the plaintiff to act as he did. In Gerhard v Bates, 2 El. and 61. 476, the misrepresentation on which the action was founded was that a certain company, called the Iberian Silver Lead Ore Company, would yield a minimum annual dividend of 33 per cent per share; and it is there stated by counsel in argument, that in every case where an action for false representation has succeeded, the representation has been of some existing fact, not of a future fact. To this, Brie J. replies, “a representation that a mine will yield so much, is a representation of its present State,” thereby impliedly admitting that there could be no false misrepresentation except of an existing fact. In Cornyn’s Digest, vol. i., p. 354 (Action for Deceit, A. II) it is laid down, that a “ warranty to do a thing in future does not bind without deed, for it sounds in covenant;” and in criminal pleading it is necessary to support an indictment for false pretences, that the pretence should be of an existing fact. 1 am of opinion, therefore, that the. third representation is insufficient to ground an action, and as it appears inseparable from the ether misrepresentations, that the declaration is bad in substance. It was also contended on the part of the defendant that the declaration was bad for want of an averment specifically negativing the representations. In Oxenham v. Smyth, 31 L. J. Ex. 110, which was an action for misrepresentation of authority, the declaration was held bad for not expressly negativing such authority. It was argued by counsel in support of the declaration that the averment that the representations were made falsely and fraudulently was sufficient. It is not necessary for the reasons already stated to give any express decision upon this point. It is, howtrer, an'almost invariable practice in decla-

rations for misrepresentation to negative the representations specifically, and it is consistent with the statements in this declaration that the defendant at the time he made the representation was guilty of no moral fraud, which, after much conflict of authority, has been now settled to be a necessary ingredient in an action of this nature. I must therefore allow the demurrer. Demurrer with costs. RE B, S. SEYMOUR.

In this case, which was an adjournment from the Bankruptcy Sittings, his Honor made the final orjler of discharge.

The court then rose.