SUPREME COURT.—CIRCUIT SITTINGS.

New Zealand Times, Volume XXXIII, Issue 5496, 7 November 1878, Page 3

SUPREME COURT.—CIRCUIT SITTINGS.

Wednesday, November 6. (Before His Honor Mr. Justice Gillies and a common jury). The Court reopened at 10 o'clock. TATLOE V. SIM. For plaintiff—Mr. Ollivier (with him Mr, Fitzgerald). For defendant—Mr. Gordon Allan (with him Mr. Fjtzherbert). In this case Francis Taylor and Janet Taylor, his wife, were plaintiffs, and James Sim defendant. The action was one for the recovery of four sums of money, amounting in all to £632 10s, besides £SO special damage on account of expenses incurred by the plaintiffs. It appeared from the declaration that on the 15th of June, 1876, the plaintiff, Janet Taylor, then Janet Short, of Ohiro, widow, rnade’aud executed, at the request of the defendant, and as surety for him, a certain deed of mortgage conveying and assuring to George Thomas, of Wellington, five acres or thereabouts of freehold land belonging to the said Janet Short, as security for the repayment by the defendant of certain moneys then due and owing by him to the said George Thomas. On the 19th July, 1876, at the request of the defendant, the plaintiff Janet Taylor executed a certain other deed of mortgage as security for the repayment of £2OO then owing to James McDowell by the defendant. On or about the 15th September, 1877, the plaintiff, Janet Taylor, then Janet Short, became the wife of Francis Taylor. The defendant made default in the repayment of the monies owing by him to the said George Thomas and James McDowell, and the property mortgaged by Janet Short was sold and disposed of for tho sum of £SOO. The defendant was to indemnify the plaintiff, and hold her harmless against any loss on account of the mortgages given for his accommodation, but tho property was sold and wholly lost to the plaintiff, and hence tho action. Mr. Fitzgerald opened the pleadings. , Mr. Ollivier stated the plaintiff's case. The female plaintiff had formerly resided at Ohiro, but on the death of her husband, she was left with five children, and public sympathy being excited, five acres of land were bought for her at Johnsonvillo. Her father, the defendant, was then a storekeeper and sheep farmer at Johnsonvillo. Ho got into difficulties, and hoping to tide over them, he induced his daughter to execute two mortgages over her property to George Thomas and James McDowell, for £SOO and £2OO respectively, lie also borrowed from his daughter two sums 6f'mdney,"£ia and £4O. At the tinio of getting his daughter to execute tho deeds of mortgage, the defendant assured her. that her property would be held perfectly safe, and that she would not suffer any loss; but when the mortgagors insisted on being paid the monies duo to them by tho defendant, he instructed the auctioneer to put up- his daughter 1 s five acres first, and the land realised £SOO. Then some land held by tho defendant was pat up, and fetched £7BO. The result of tho sale left this unhappy contrast—that while tho widowed daughter was loft penniless, the defendant was ppmparatt/ely >vell off ; he was clear from any anxiety about his debts; they wore disposed of, and ho had quite sufficient, far more than sufficient, to enable him to start again ; ho had far moro than many honest settlers began with, and

turned into a fortune within a few years* -The result of the whole transaction was that tho daughter was entirely, deprived of her, property, and hence the action was brought; Evidence was led by Mr. Ollivier. in support of tho declaration and his statement of the plaintiff's case to the jury. The defence to the action was that the defendant had never agreed to indemnify his daughter. There was no such covenant in tho deed, and they could not‘go behind it to show that such and such a thing ought to have been done which was not done. If. there had been any implied contract or intention on the part of tho defendant to treat this as his debt, and hia debt alone, and he was'getting hia daughter to become security for the payment of the money,—such a covenant as that would have been put in the deed. In hia address to the jury Mr. Gordon'Allan contended that there was nothing whatever to show that the defendant intended to cheat or mislead hia daughter in the matter. On the contrary, he had been most kind towards her and her children, had given them a home, and had made this land over to her on her paying off a small mortgage that existed upon it. Humanity revolted at tho idea that the father intended to cheat or mislead his daughter, and to get her property as security for his own private debt, and.then refuse to pay it. There was no written testimony of any promise to indemnify,|and the case would never have been heazd of had it not been for.’tho second husband. He submitted, therefore, that the plaiutiff 'a husband had not made out his case, and was not entitled to a verdict. Mr, Ollivier having replied, His Honor summed up. The jury returned a verdict for the plaintiffs for £SOO, with interest from the date of sale. . : , Tho Court then adjourned indefinitely.