APPEAL ALLOWED.

Hokitika Guardian, 20 October 1927, Page 4

APPEAL ALLOWED.

A GISBOKXK CASK. WEWLTXGTOX, Oct. 18. The Appeal Court delivered judgment to-day in the ease of W. I). Lysnar v. Dorothy Valentino Bttrnard, wife of Leonard Thomas Burnard, of Gisborne,

1 solicitor. Air Justice Reed, in reading (lie judgment, said that the Court, after consideration, came to the conclusion that whether a man was the principal debtor or surety was a question of fact, and that all business was transacted with G. H. T.ysnnr. not AV. D. Lysnnr. and that tho appellant was not consulted on the most important question of extension of time to his brother. The Court considered that Bennett’s knowledge of appellant’s suretyship on-

ly must he attributed to Burnard. Barnard's knowledge should also lie attiihuted to his client, who was his wife. The Court also thought that respondent took the transfer of the hill of sale subject to equities arising upon it. If a loss arose, it fell on him,

whose duty it was to make inquiries. Appellant was not called upon to give Mrs Barnard any notice of his real position, because of the relationship of dealing between Barnard and Bennett. Appellant was entitled to he discharged from his liabilities, as he was not eonsalted when G. H. T.ysnnr was given further time. The appeal was allowed with costs

on tlie highest scale. Tn March, 1927, re.sjxindont claimed against appellant and his brother the sum of £3461 13s 9(1, and interest, alleged to be the balance due bv them upon an instrument bv way of securitv over chattels, of which respondent is

registered as the transferee from the original grantee. The facts are that a firm named Bennett and Sherratt .supplied goods to G. H. Lysnar upon his promissory notes, endorsed hv W. I>. Lysnar. W. I). Lysnar received no value for his endorsements, hut was purely an accommodation party to the notes, and this was known to C. TL I Bennett, a member of the firm, who! upon the subsequent dissolution of the firm, became the holder in due course I of the notes. On October 26th. 1026, ! the notes being overdue. Bennett commenced two actions in the Supreme Court against both defendants, claiming moneys due under these notes. Bennett’s solicitors were Messrs Burnard and Bull. Burnard being the husband of the nlaintiff. These actions never

came to trial, hut mere compromised by defendants joining in executing the bill of sale over certain chattejs owned by W. D. Lysnar, ta secure a sum of £6280 with interest, to Bennett. Nu*

melons complicated transactions ,sul>- | sequently took place, with the result that in December, 1926, the amount claimed was alleged to he fine. On the day before the hearing G. H. Lysnar confessed judgment of £33:15 13s 9d with interest, but appellant defended on the ground that he was, to the knowledge of respondent, a surety only, and that a time to pay had been given to his brother, and the contract .materially varied without appellant’s ('Onsent, he was thereby discharged from any liability under it. Mr Justice Ostler heard the action, and gave judgment in favour of Mrs Burnard against both defendants, for the full amount claimed. The appeal is against this judgment.