R. M. COURT, GISBORNE.

Poverty Bay Standard, Volume I, Issue 109, 18 April 1884, Page 2

R. M. COURT, GISBORNE.

(Before J. Booth, Esq., R.M.) YESTERDAY. REMARKABLE CASE. A. M‘DONALD, M.H.R., V. P. BARKER. Mr. Kenny continued.—The deed dated July 20th, 1878, is the deed which they sue on, corta’ning the covenant of indemnity. We acmit that that deed was executed and signed, but whatever there was to indemnify is past away, The necessity for indemnifying is gone, the right of the annuity is parted and we are no longer responsible ; inasmuch as Katarina has parted altogether, by the deed to Rees and Wi Peri, with all her interest, right, claim and demand in this annuity. Of course they try to make capital out of the dates of the deeds. They say because the trust deed bears date 22nd June, 1878, and the deed of covenance to indemnify, a subsequent one, this argument will not hold good. My answer to that is, that the insertion of the covenant of indemnity was simply a precaution against any possible contingency. I do not rest my case upon that. Your Worship will see that Katarina parted with all her claim, interest, and demand on August 2nd, 1878, as that is the date against her name in the deed, concerning this land, subsequently to the 20th July, 1878, and subsequently to the deed of indemnity upon which they rely. Therefore it cannot for a moment be seid that because that deed was dated 20th July, and this the 20th June in the same year, she parted with her right after the deed of indemnity. That deed Barker did not sign till March 1879. There was a deed that they put in, to Katarina Kahutia, dated 2nd June, 1877, covenanting to pay the annuity for Katarina’s natural life. I submit that there can be no notice taken of the deed, as it was never registered. It is one of those sinister symptoms that appear throughout all these transactions. That deed has been kept out of sight. That deed must therefore be dismissed. There are other circumstances in this case which will have, to be taken into account, that is the action taken by Mr. McDonald, who says he had to pay a sum of money, and that Barker said he would pay it to indemnify him, and that he (McDonald) had to pay it and bring the action. Now, sir, this is a partnership dispute. We have shown that this partner paid £2OO of this annuity, and for some unexplained cause that deed was never made use of, but the conveyance was made to Tucker, and from him to McDonald in his own name, and so he takes possession. Barker never got one penny, when he should have had two thirds. I say this action between partners really relates to a matter of accounts between them, and questions are. stirred up which this Court has no jurisdiction to deal with—only the Supreme Court. In the case of Katarina an action could not possibly be maintained, as there was no breach of contract, and it would have been laughed out of Court. McDonald need not have paid the money to Katarina because he knew Barker would defend the case, but he did so in spite of that knowledge. He should then have withdrawn the instructions he gave to Tucker to pay the money. The money was not due, as the annuity had been parted with. . The whole arrangement based itself on the insertion of the word “ assigns.” The first thing is that these technical expressions must be strictly construed, so as to bear out their technical meaning which the law attributes to them. It may be said that this is an argument from analogy, and that it will not apply to contracts. It is expressly held to apply to them in “ Addison on Contracts” (quoted). The use of the word “ assign” always applies a covenant which runs with land. Annuity and rent charge are practically the same thing. When this deed dated Bth June, 1878, was being prepared, did McDonald intend to be saddled with the annuity. Of course not; the assignee was saddled with it, and he got rid of the liability. In this case he assigned to Barker, who sold his interest to Rees and Wi Peri. The insertion of the word “ assign” gave Katarina an interest in the land equivalent to a mortgage upon it. A charge was created upon the land, therefore an equitable lien was also created. But Barker is free altogether, having passed his interest on to Rees and Wi Peri. This draws my attention to the memorandum of agreement dated 9th September, 1882, whereby Barker sold out to the Land Co., for £45,000, to secure which Rees and Wi Peri had to mortgage, and the land was sold by the Registrar, and bought in again by Barker, who resold it to the Company, and then this agreement was made. When this was sold it was understood that Mr. Barker was clear of everything. (He here quoted authorities to prove that the word “assigns” invariably made the covenant run with the land). I say that, by the deed of trust, Katarina, conveying all her claim in this land, parted with her right to the annuity. Now, with regard to McDonald having paid this money voluntarily, I say that by his so doing, he entirely cut away hiis right of action. If he had defended the action against Katarina, and had come to grief, then possibly he might h ive had a right of action against Barker. When Tucker paid the money he paid six months in advance. That at least would have to come off the claim. Looking at the deed Katarina is not a party to it, as McDonald does not covenant to pay her, but Tucker, and that shows that the action should not be brought by Katarina but by him. Again I say this is really a partnership affair, and for the Supreme Court to decide, McDonald’s conduct appears to be fraudulent, and he has made admissions that he has now to account for some considerable suras of money which he has never given account of, and which Barker has a right to. He is unable to get over the fact that he had paid away monies to this woman when he got the conveyance to Barker and McDonald, and which deed he never rigistered until nine months afterwards, then he gets a conveyance from Tucker to himself, and deals with this land in his own name for the future, and reaps the benefit of it. He says £2OO went to paying the annuity. Can your Worship believe anything of that kind ? For here we have £2OO. £75 and £7l, making a total of £346, paid away to this woman, for nothing. She has had all the money, and so has he, practically, and he was then the managing partner of the firm. He says everything went to pay the annuities, he must have paid £lOO to Katarina for some motive which will not bear the light of day, and he must have had something to keep quiet. I do not wish to say more than I can help against Mr. McDonald, who holds such a distinguished position, but I must say this, that if it does appear that Barker owes McDonald anything then the partnership transactions must have been very shady. I think there aro aspects in this case that will make every one regret that it should have been brought into Court. It is a matter to be deplored, and it is not the first time that McDonald’s conduct has been severely criticised in a court of law. Mr. DeLatour—With regard to the deed which my friend says was not registered, I say there can be no deed to register, as there is nothing in it to register against. My learned friend’s argument has been to attack the deed of .Time Bth, 1877, Tucker to McDonald. That deed is a security which Tucker took to secure himself, he having under his conveyance made himself liable for the payment of the £l,OOO, and by which he binds McDonald under a personal covenance with himself to carry out his obligations to Katarina. It was a precaution he took, acting as a business agent for the Natives, and they must covenant with him to carry out their covenant with Katarina. No. 1 deed expressly recites the obligation of McDonald to pay £l5O to Katarina. By the deed of 20th July, 1878, Barker agrees to pay the annuity, and by signing the deed places himself in a position that anything he can do or say, can deny nothing—he has bound himself in this deed. The answer to the deed, if there is any fraud, as is inferred, is against Barker. Ho has had his remedy since 1878. We have not heard a breath of fraud until now when Barker is asked to pay his debts, then for the first time we have the question of fraud raised. The Court is asked to disregard this deed, which absolutely binds Barker, and to take upon itself the jurisdiction of the highest Cour.', as Barker did not know what he was doing. If there is any deception Barker has his remedy, but not in this Court. Katarina’s right is a personal one arising under a covenant of the 2nd Juno, 1877, and could only get payment through McDonald, and not from Barker. (Here he argued at

length that there was no lien on the land.) Tt was agreed that every grantee, every husband, and others, should join in the trust deed, so that a perfect title might be invented through the trustees. Barker would not pay this amount as it had been accruing for years. All the other annuities he sold, and now he asks this Court to absolve him from paying this one, left unpaid. We are told that Rees and Wi Peri are liable for this debt. What contention could be more absurd in the sight of common and legal sense? There is no equitable lien on the land as has been urged. He continued his address much further, contending that if the action of Katarina had been brought she would have been successful, and that this was not only a matter of partnership accounts ; also, that everything went to show that the money was properly accounted for by McDonald. This concluded the case, and his Worship reserved his decision until next Thursday. THIS DAY. POLICE V. CHAS. KINO. The accused was charged, on the information of Sergt. Bullen, that he did on the 12th day of April, wilfully attempt to do away with his life by taking two bottles of cbloridme. On the application of Sergt. Bullen the case was remanded until Wednesday the 28rd. Bail was allowed, himself in £5O, and two sureties of £25 each. POLICE V. TAMATI HAUTAFA, Accused was charged with the forgery of a cheque for £1 10s. od., during this month, and was remanded till Thursday next. BOWMAN V. U.S.S. CO. This case had been adjourned so that his Worship could consider, before giving his decision. He now said the question was, did the tea become the property of the purchaser, when it was shipped, and he found it was so. The vendor did not send his bill of sale with the goods. The fact of Orr becoming bankrupt did not affect the matter of ownership, therefore the manager was justified in delivering the tea to the trustees. Judgment would therefore be given for the defendant with costs £3 3s. WATTS V. BAMPEY. Claim £32 6s. 3d. for goods supplied and delivered. The defendant made out that Watts was not the right plaintiff. He was managing a store for Mr. C. Evans, who owed defendant some £80; therefore, if Evans brought the case as plaintiff he could file his set-off. He disputed the account, as the items were overcharged. He owed the amount to the store, but not to the present plaintiff. He wished to see plaintiff’s authority to claim this money. The plaintiff deposed everything was charged reasonably and the account was correct. Judgment was given for the amount with costs £1 12s. COMMON AND CO. V. ARONA KAIHAU. Claim £8 Bs. 6d. No appearance of defendant. Judgment for the amount claimed, with costs.

FRYER V. HUMPHRIES. Mr. Nolan for plaintiff, and Mr. Finn for defendant. It appears that the defendant agreed to repair a carriage belonging to the plaintiff, in a certain time, which was not done, the plaintiff thereby losing considerably, by the breach of contract. The plaint iff deposed that about the 26th or 27th November, he called for tenders for the repairing of a carriage. The defendant’s was the only tender sent in. Agreed to accept the tender if if could be done by Christmas Day. Defendant promised faithfully to have it done. Told him if he could not do it by that time, he would not get it as it would be required for the holidays. The carriage was sent round, and did not return till the 26th January. He claimed for damages. To Mr. Finn—Mr. R. Cooper engaged the carriage for two days. Could not say who engaged it the other days. Have made more than £1 a day sometimes by it. Had a landau carriage; it has been used on holiday occasions. Have not had the carriage in dispute out every day since its return. Instructed the carriage was not to be taken out as an action would come of the matter. R. Cooper, W. Campbell and several other witnesses were called and examined. [Left sitting.]