CIVIL SITTINGS.

Otago Witness, Issue 2894, 25 August 1909, Page 30

CIVIL SITTINGS.

Pbiday, Avovrt 13. (Before his Honor Mr Justice Williams.)

MILLER V

L.»FFET ASD OTHERS,

Writ for £o4- 10s, on a dishonouied promissory note.

Mr "Hay appeared for plaintiff, William Miller, of Dunedin. money-lender ; Mr Callan for the defendants, Edward O'Rourke and Pitr'ck Nolan, exeoutors of the will of the late Daniel o"Rourkj. John Laffey, who is also an executor of the will, app°arod in person.

William Miller, plaintiff, said he knew the defendant Laffey, also the deceased, Dar.iel OKourke. Th bill piociuced bore the signatuies of Laffey. and Daniel O'Rourko. Witness caw Loth p<;rt>e> The bill \va^ duly presented at witness's office and paid Daniel O'Rourl.e <lw<l some tla.vs before the bill became due. When the bill v.as dishonoured witness gave notice o£ dishonour to Latfey and to the solicitois for the trustees of Daniel O'Rourke.

To Mr Callan .- The original loan that began the transaction was £100. Laffey asked for the loan, saying that O'Rourke would en-dorse the bill and become surety for it. The bill was renewed four or five times. The bills ware always made out in tiie same form

John Laffey, defendant, said he asked Daniel O'Rourke if he would endoree_ a bill for witness if witness could get it discounted, and on O'Ronrke agreeing the loan was negotiated. At the last renewal witness, who was about to go to Cromwell, said it was not likely he would be able to pay, and O'Rourke remarked tEat he would not renew again, as he would pay the money himself Messrs Callan and Hay argued the legal points. His Honor gave judgment as follows: — I do not see any reason why the plaintiff should not recover a-gainst the executors of Daniel O'Rourke. It is admitted that

Daniel O'Rourke was a surety for Laffey. He joined with Laffey in making a joint and several promissory note. A few days before the promissory note- became duo Daniel O'Rourko died. Then, when the promissory note became due, it is admitted that Daniel O'Rourke, or his representatives, became liable as surety on the promissory note. That being so, in order that the defendants may succeed it must appear that since the promissory note became due Miller has lost the remedy against Daniel O'Rourke as surety, which, when the promissory note became <Tue, it is admitted he had. The only way in which it could be suggested he lost it was tha-t there was a delay in suing for thres months. In order to show tha-t that delay involved a loss of Miller's rights it must appear that there was an implied agreement by Miller that if he- did not pud on the promissory note within a. reasonable time after it became due O'Rourko as surety should be released. I can find no evidence whatever of any such agreement. There is no express agreemsnt. and I can find no evidence whatever of any implied agreement. In order to release the surety it must appear that thers was a binding agreement to give time to the principal debtor. No such agreement has been proved! Further, I think that in this last bill O'Rourke was something more than a. surety. The last bill was a. renewal of a previous bill. When the previous bill became due there was a liability from O'Rourke to Miller to pay at the due date of the last bill. The effect of taking the new bill was, therefore, to give O'Rourke time for payment. There was, therefore, direct consideration passed from Miller to O'Rourke. Miller forbore to exeicise the rights which he had against O'Rourke in consideration of O'Rourke becoming a party to a new bill. I think, therefore, the plaintiff is entitled to recover against the defendant 13 , the executors of Daniel O'Rourke, and al-o against Laffey. the amount of the bill, £64 10s, with interest thereon at 5 per cent, fiom th 3 due date of the bill — the 16th of January last. — to judgment. Cc^ts on the Jo\\c?t scale; disbursements and witnesses' expenses to be fixed by (h^ registrar.