SUPREME COURT.

South Canterbury Times, Issue 2261, 16 June 1880, Page 2

SUPREME COURT.

[Before His Honor Judge Johnston.]

Tuesday, June 16

CIVIL CASES,

National Bunk v. Macintosh—Claim, £2OOO.

At the conclusion of the plaintiff’s case, Mr Stout obtained leave to move in Banco on the 22nd inst. for a nonsuit on the ground that although the guarantee was given as security for advances, no advances had been made, King’s account being in a slightly better state at the time of his tiling than when the guarantee was given. Air Stout then addressed the jury, maintaining that his client had been induced to sign the guarantee through misrepresentations. lie called, the defant, John Macintosh, who said lie was a farmer, and that early in April King called at Ids place and said that Mr Stephens wanted to see him. lie called on King in conseipienee, and they both visited the Bank, and witness asked Mr Stephens did he want to see him ? lie said, “ Yes ; you had better give Mr King a guarantee instead of the bills.” Witness replied that he should like to sec some security before he thought of doing such a thing, adding that if he gave a guarantee the Bank might forclose on it and make witness pay. Stevens said “No, there is not the slightest fear of that,” and that witness would be <iuite safe in signing the document. Mr King afterwards wrote out the letter which had been read, and pinned it to the guarantee and witness signed it. If he had known that King was at the time owing the Bank upwards of £7OOO he would not have signed the guarantee. Put implicit trust in Mr Stephens. By Mr Harper —Witness had signed a guarantee on a previous occasion. It was for £OOO. Beeollected accepting three bills for King, two for £SOO, and one for £4OO. Had no idea of the state of King’s account, but trusted King and the Bank. The first enquiries witness made about King’s account was when he gave the £2OOO guarantee. Was on intimate terms with King. 'Witness thought that in giving the £2OOO guarantee he was to be exonerated from paying the previous guarantee for£Goo, and also the bills. John King was examined but his evidence was unimportant. He said he was present when the guarantee was signed, but he did not recollect whether Macintosh asked any questions except whether it could be reduced by £250 a quarter. Stephens looked at witness and lie said he might do it. Macintosh and Stephens conversed together, and witness stood apart so that they might be free to discuss his affairs.

His Honor, in summing up, said Ike twelve issues had been narrowed down to two questions —first, whether the term “ advances ” in the guarantee referx’cd to the past, or was intended to signify “ advances beyond the existing debt ” and second, whether the defendant had been induced by the false representations of Hr Stephens to sign the guarantee. The first question was reserved for another court. With reference to the second, His Honor said that lie did not see that the defendant’s position was made anything worse, but on the contrary, rather better, by his signing the second guarantee, as he received a promise that as far as Mr Stephen’s authority went he should not be pressed for the money, as ho would in a short lime have been, had he not signed it. The issues (given below) were placed before the jury, and they retired at about seven o’clock. They returned at 8.10 to askjf “ false and fraudulent representations,” in the first of the issues could be altered to “ misrepresentations."

His Honor answered no. If they disbelieved Stephens he must have presented a false aud fraudulent statement, and therefore they must believe Macintosh. The jury might find whether it was false within Stephens’ knowledge, and if they found that it was so, they must find whether it was solely on account of Stephens’ misrepresentations that the guarantee was given. The jury then retired again, aud at 10.10 returned with findings as follows :

Was tlic defendant induced to sign, and did he sign an agreement in writing or guarantee, through the false and fraudulent representations of the plaintiff through its agent, James Stephens, of Timaru, in the colony of New Zealand P—The defendant was induced to sign the guarantee by a represention which was false, but was not false to the knowledge of the plaintiff. Were the representations if any made by the said James Stephens to the said defendant false and fraudulent and calculated to mislead? —False not to the knowledge of plain till; but calculated to mislead.

Was it not solely owing to the misrepresentations made by the said James Stephens, that the defendant was induced to sign the said guarantee, and not by reason of any former guarantee or bills in the possession of the plaintiff being destroyed P —Not solely on the representations of the plaintiff but partly on account of the destruction of the bills.

At the time of the signing of the said guarantee, was the defendant liable to the plaintiff on a guarantee for £GOO and also three bills of exchange for the sums of £4OO £SOO and £SOO drawn by John King and accepted by the defendant and held by the plaintiff p—No evidence that the defendant was liable on the old guarantee for £OOO.

The substance of the next issue was— Did the plaintiff, concurrently witli the making and signing of: the guarantee of £2OOO, and as part of the consideration to the defendant therefore cancel and destroy a then existing guarantee of £OOO and also the three bills above men-

tioiied, and discharge the defendant from ins liabilities thereunder? —No.

Did the defendant before or at the time of repudiating his liability under the latter guarantee sued upon in this action, pay or discharge, or offer to pay or discharge, and was he ready and willing to discharge either in whole or in part the liabilities which he was under to the plaintiff on account of the said John King immediately before the making and signing of the guarantee sued upon ?—No. It was arranged between the counsel that Mr Harper should move for verdict to be entered up at the next sitting in banco. Mr Stout intimated that ho would move for leave to enter a nonsuit, pursuant to leave reserved, and also that he would move for a new trial on the ground that the lindings wore inconsistent.

The Court adjourned at 11 p.tn