APPLICATION FOR WRIT OF ATTACHMENT.

New Zealand Herald, Volume XXVII, Issue 8292, 26 June 1890, Page 3

APPLICATION FOR WRIT OF ATTACHMENT.

THE DEFENDANT A SOLICITOR.

THE MOTION DISMISSED.

At a banco sitting of the Supreme Court, yesterday, before Judge Conolly, an application was made that a writ of attachment should be issued against Thomas Mace Humphreys, a solicitor. Mr. Jackson Palmer appeared on behalf of the plaintiff, Henry Meyer, whilst the defendant appeared in person to oppose the application.

Mr. Palmer read the affidavits. That of the plaintiff set out that whilst he was in custody, having been arrested for an offence, he gave defendant, who was acting as his solicitor, an order to receive £250 that was coming to him (Meyer) from England, and deducting any money due for costs, etc., should keep the balance in trust for the defendant. When the plaintiff was released from imprisonment he went to Humphreys, who gave him 20 sovereigns, and afterwards £5, and refused to pay him any more. Judgment was given against Humphreys in an action brought by Meyer in the Supreme Court, when he was ordered to pay a certain sum to the plaintiff. Ho had paid £19, but there remained owing £46 16s. Defendant replied in his affidavit that he gave Meyer when the latter was released from custody, £20, and the plaintiff then made an appointment to meet him two days afterwards, but instead of that he sent for £5 (which defendant gave him), and Meyer then served a writ on the following day. Defendant had paid away various sums on account of the plaintiff, and his (Humphreys') London agent was now acting for Meyer, and the promissory note for the amount claimed, £46 16s, was held by another person than the plaintiff. Since tho date of the judgment which Meyer obtained, Humphreys had acted as his solicitor, bat he had not received any payment for his services. Air. Palmer pointed out that this was an affidavit against the defendant in his position as a trustee and his position as a solicitor. He claimed that it was a breach of trust, incurred by means of fraud. Defendant had prevented criminal proceedings against himself by making out a bill of costs with a fraudulent intention. Mi - . Palmer urged that the Bankruptcy Act or the Imprisonment for Debt Abolition Act did not protect the defendant, and quoted a number of authorities in support of his contention. He maintained that His Honor had a summary jurisdiction, which was not curtailed in the slightest by the Law Practitioners Act. He moved that the writ of attachment should issue.

Mr. Humphreys pointed out that as he was charged with a breach of trust he was practically to answer a quasi - criminal charge, and therefore the evidence should be very clear to warrant the issue of the writ. He maintained that all the trust moneys had been accounted for, and he repeated that the promissory note was held by another party, Mrs. Houlihan, and not the plaintiff, though the latter, in answering the affidavit, had contradicted this. At the meeting in bankruptcy of his (defendant's) creditors, Meyer put in a claim for £1 12s only. He was acting as Meyer's solicitor at the present time. Defendant most strenuously urged that he had not done anything but what was honourable and straightforward in his dealings with Meyer. His Honor, in giving judgment, said that this motion must be dismissed. He did not repudiate what he had laid down in the summing up to the jury in the case Humphreys v. Rao, that the moment the balance was ascertained, it became trust money in his hands. If Mr. Meyer had thought fit to demand immediate payment in cash and had been refused, he would then have been in a good position to take the step which he was now attempting to take ; but instead lie had come to an arrangement with Mr. Humphreys by which ho took a certain sum in cash and two bills. Although taking bills for the debt was not an extinguishment of the debt, it materially altered its character, and from that time the relationship between the plaintiff and defendant with respect to the balance of the debt, was the ordinary relationship between parties who held bills as an acknowledgment, and promise to pay a debt. He had therefore no very great difficulty in deciding whether the non-payment of that money amounted to a breach of trust, or whether it made any difference as between plaintiff and defendant that that money was owing as part of a judgment debt. Meyer had nob put himself in a position to claim that from this . Court, which should only be granted under very extraordinary circumstances, and therefore the motion was dismissed.

Costs, five guineas, were allowed to the defendant.