SUPREME COURT.

South Canterbury Times, Issue 2260, 15 June 1880, Page 2

SUPREME COURT.

Monday, Junk Lj

[Before His Honor Judge Johnston.]

Coll v. Quinn —Claim, £-1000damages for trespass.

Mr Berry for plaintiff; hfr Hamersley for defendant.

This ease was not concluded until between 5 and 0 o'clock yesterday evening; when counsel having addressed the jury His Honor proceeded io sum up. lie expressed regret that- the case should have come before him in the form it had ; there was a question of law to be decided which might have been made the subject of a short special ease for the Supreme Court, and had this course been adopted a great, deal of unnecessary litigation and ill feeling would hare boon avoided. With the question of law so far as it affected the title to the land, the jury had nothing to do ; thatiwould be decided elsewhere. The question for them to decide was simply one of damages for trespass. Tho jmy then retired to consider their verdict, which they returned for the plaintiff, assessing the damages at ,£2b for the first, and £i2."» for tho second trespass and the losses thereby incurred. THIS DAY. CIVIL CASKS, National Bank v. Macintosh—Claim, £2OOO. Mr Harper'ami Mr Jameson for the plaintiff; Mr Hamersley and .Mr Stout, for the defendant. . Tho facts of this case were as follows: —On April 0, .1070,John Macintosh, tho defendant, gave a guarantee to the National Bank, Timarn, for one John

King to any amount not exceeding £2OOO. In consequence of receiving this guarantee the Bank advanced various sums to King amounting in all to between two and three thousand pounds. Macintosh subsequently repudiated the guarantee which he had given, and his excuse fur doing so was that lie considered that the Bank had acted in a fraudulent manner through its manager, James Stevens, ho having told the defendant that King was 11 ah right’’and a lit and proper person to give a guarantee to, whereas he well

knew at the time he made these representations that they were false ho being perfectly well acquainted with the fact ihat John King was hopelessly insolvent and quite unable to nav any such sum as £2OOO.

James elevens, formerly manager of the National Lank, Timarn, stated that lie knew John King and also Macintosh, the defendant. King was a customer of the Bank, but Macintosh was not. Recollected a guarantee being given on April o by Macintosh, in consequence of which witness advanced certain sums to King, and continued to do so ii]) to the sth of May following. These sums amounted in the aggregate to £2.8-32, and were, in addition to an overdraft of £O,OOO existing on the day before the guarantee was given, and which overdraft was

also partly guaranteed by .Macintosh. The amounts thus advanced to King had not been paid to Macintosh in accordance with the guarantee given to the Bank. The total amount of Kang’s indebtedness to the Bank on Aiay-jih was :—Overdraft £8,171, and bills current £ IriS'l. On .April Ist King’s overdraft was £(5i25, and lie received a further sum on that same day of £I2L Is 10d. On the 2ml day of April the. Lank paid am ay to King ,21108, and on (he same clay King’s overdraft amounted to £7,!!K>. The guarantee was given on April J, and both King and .Macintosh wore present on that occasion. The witness here entered into a lengthy account of King’s connection and transaction with the Bank, and stated that on April 1 he believed that King had plenty of assets. A guarantee was given in 1878 lor £OOO. The second guarantee was given at witness’s suggestion, and in consequence of his discovery that certain bills he had discounted for King were accommodation bills. It was when King brought in the third of these bills (hat witness discovered that the bills he had been discounting were accommodation hills, and lie remarked to Mr King that he had already two bills of Macintosh's in the book, and if these bills were accommodation bills lie could not discount any more of them, but added that be would allow King to draw against the third one. The guarantee was suggested in order to get the accommodation bills out of the Bruk’s books. Witness advanced about £770 against the third bill. AVitness suggested that these throe bilks should bo wiped out, and a guarantee substituted for £2OOO. With this object witness sent for Idaeintosh. lie put no question to the witness respecting King’s financial position. A few minutes after the guarantee was signed by Macintostli the following letter, addressed to Macintosh, was signed by King : —“ Dear Hir, —I will undertake to reduce the guarantee given by you to the National Rank by at least £250 per quarter.” The three bills were destroyed by witness at the same time. AVitness told Macintosh that so long as King conducted bis transactions with the Bank in a satisfactory maimer he (Macintosh) would not be pressed for 11 1 c money, also told Macintosh that if £‘2Bo was paid per quarter lie (witness) would be satisfied. This was before the guarantee was signed. W itness had dishonored paper of Kings during the time he had an account at (ho Bank from time (o time. Was very much surprised to hear that he had became insolvent. ’ The giving of the guarantee arose in the following maimer. AVitness asked Mackintosh whether ho knew - that he held three bills of 1 1 is fur £I4OO, and also asked him whether ho would be prepared to meet these hills ;i(: maturity, lie said ‘‘no’’lie would not he able to meet them. AVitness replied that it was a matter of accommodation he would ’prefer that Macintosh's liability should take another form, as the Bank could (hen perhaps accommodate him to sum - ) extent, whereas (hey could not do this if the liability remained in the form of bills. Thcr.-upoii suggested theguarantce to him, and lie agreed to .give it. AVilness said “ I hope you thoroughly understand that as soon us yon sign the guarantee, t can, if I wish, call uponyou for the amount immediately.” lie said he distinctly understood (his, and added that lie had certain securities, but remarked that lie supposed witness would not requiie the money immediatelv. Witness replied, Certainly not, under ordinary circumstances.” lie thou signed the guarantee, and King, who was present, so far as witness remembered, said nnthing. if witness had not ght the guarantee ho would have called on Macintosh to meet the bills at maturity.

By Sir Harper—Tlio three bills that were destroyed would have matured in April, May, and June respectively. The cheque paid on A pril 3rd was paid to Kin<j on the faith of the guarantee, ns were the whole of those payments. Was not aware that King was likely to become insolvent, cither before or after the guarantee was given, although times were rather tight with him, in consequence of the general dullness. Home further evidence having been given, the case for the plaintiff closed.

Mr Stout remarked that he should move for a nonsuit. He intended to show that instead of King’s liability having increased since the giving of the guarantee it had decreased. Ho (Mr Stout) maintained that King had positively received no advance from the .Hank under the guarantee, as the Hank had been very careful not to make any such advance until funds had been paid in to meet it. air Stout, for the defence, called .Macintosh to show that a guarantee had been obtained by the wilful misrepresentations of the Manager of the National Hank. [Left sitting.]