MAGISTRATE'S COURT.

Wairarapa Age, Volume XXIX, Issue 8231, 7 September 1906, Page 6

MAGISTRATE'S COURT.

MASTERTOr—THURSDAY.

(Before Mr W. P. James, 8.M.)

Alleged False Pretences.—John , Byron Hamilton was charged with false pretences in that he did, on August 29th, present a cheque for £l(s 8s sd, purporting to be drawn by J. D. Fauiknor, sawmiller, of Kniporora, to Mr A. W. 'Jhapman, or- Mossrs Krahagen and Chapman, in payment of a deposit on a suit of olotnes. Accused was uudefeuded. Evidence waa given by Messrs A. W. Chapman, B. E. Hastings, L. b. Wright, G. McGnrry, N. M. Neilso.'i and Constable Grey, of Eketahuun. Accused was committed to thd Wellington {Supreme Court for pi ntence. Judgment by Default.—Judgment by default waß giveu for plaintiffs in tiio following cases—Timothy Clancy v. Patrick Woleh, claim for £7 and CO its 29a (id. Charles MoCullnch v. Robert Campbell, claim for £6 and costs 22s Gd. William Butemenfc v. I'luience McCurdy, claim for 15s and 5s coats. William Butoniont v. Flora Joyce, claim for £3 7a Grl and 5s costs. Failiug to Destroy Rabbits Arthur Naylor wes charged, on the information of Inspector Jeukiusou. with having failed to comply with a notice served on him to take stops to destroy rabbits on his property in the Kaiwliata District. Accused was fined £5 and costp. A. H. Kitto and U. Bird (Mr H. C. Robinson) v. Robert Lyttle (Mr P.. Boilings), a claim for £-", an amount alleged to have been agreed upon for the purchase of shop fitt- ' mga. Plaintiffs were non-suited with costs £2 2a,

DWYER AND DWYER v. BUNNY

Mr James gave judgment in this case aa follows —Tbe plaintiffs ?u this case allege that the holdß a [deed of settlement, dated December 22nd, 1904, whereby the plaintiff Thomas Dwyer settled on his wife iu consideration of marriage certain land and buildings in Bannister Street and furniture and chattels therein; thai, the defendant wrongfully refuses to deliver np the said deed to plaintiffs on the ground that he hBS a lien for costs £lO 10s thereon. Tbe plaintiffs deny that they owe any ooste thereon upon the grounds disclosed in an aotion between tbe same parties. The elaintiffs therefore seek recovery of the said deed. By the deed of settlement the property mentioned therein was conveyed to M. C. O'Oonnell as Trustee for Mrs Dwyer. I do not thiub the plaintiffs can succeed in their aotion. The trustee was, and is, the only person entitled to the deed, and he would be the proper person to demand it, and even then the defendant would have a lien for his costs and would be justified in retaining possession agamat anyone until his costs were paid. Plaintiffs claim it under the conveyance and appointmqnt of Juno Ist 1906. Under that deed T. J. Dwyer claims to be the owner of the land, the subject of tbe settlement, and therefore entitled to the possesion of all the title deeds relating to it, but even if that deed is valid, which I very muoh doubt, the Trustee ought still to retain possession of the deed of settlement, because ic is something more than a conveyance of the land oomprised in it. It is an expression of the trusts which were created concerning the land, and it also contains the trusts upon whicn the Trustee .holds tbe furniture and chattels, it will be noticed that the assignment of chattels (22-12-04) refers to the trusts of the other deed. How then are these trusts to be ascertained except by reference to that other deed? It is clearly the duty of the Trustee to keep possession of both trust deeds, aud if he wants to convey the land he should not part with ,tbe settlement, but should merely enter into a covenant with the purchaser for its production. Even if 'Dwyer were entitled to the deed defendant did not know of the existence of this last conveyanoe until it was produced in Court, and he was justified on that ground, also, in refusing to give the settlement up. But the claim of lien is an abnolute answer to every demand. Judgment will be for defendant.

DWYER AND DWYER v. BUNNY

ACTION FOR DAMAGES

In this case judgment was Riven by Mr James as follows—The plaintiffs in tneir bill of parfciclars say:— That the defendant was instructed on or about February 12th, 1903, to effect a marriage settlement by tho plaintiff Ihomas Joseph Dwyer on his said wife of certain lands and buildings in Bannister Street, Masterton, and the furniture and chattels therein; that the defendant, as solicitor, acting for the iilaintiffs, was guilty of negligence and did not exercise the professional skill required of him in drawing and registering the said settlement inasmuch as —a. He neglected to search the title to the said lands and wrongfully and erroneously included b piece of land that the said Thomas Joseph Dywer had sold to one Johnson, prior to the eaid agreement and deed of settlement whereby the plaintiffs were put to considerable expGDEo iu rectifying Johnson's title, b. He negleoted to obtain execution of the deed of settlement by all parties and register the same as against the laud until December, 1904, although ibo agreement for settlement wnia made iu February, 1903, and in the meuntime the plaintiff, Thomas Joseph Dwyer, paid off an existing mortgage and effected a now one in favour of one John Fraser, which, through such neglect of the defendant, waa registered subsequent to the deed of settlement and thereby caused the plaintiffs the expense of a conveyance beck under the settlement to the plaintiff, Thomas Dwyer. o. That the settlement was executed by the plaintiff, T. J. Dwyer, upon marriage, viz., on or about the 17th day of February, 1903, and therefore was falsely dated by the defendant and as regards the chattels nbould bava been registered by the

defendant within 21 days of the exe cation of the deed by the plaintiff, T. J. Dwyer, to render it available to the plaintiffs under the chattels Transfer Acts, wherefore plaintiffs seek to recover by wai of damage the sum of £SO. In this case 1 think the defendant is entitled to judgment. He was instructed to effect a settlement of the whole of lot 21, containing one rood, more or less, subject to a mortgage to Mr Cock burn for £3OO. The agreement of the 12th February, 1903, says so, and Dwyer admits it was read over to him. The defendant was referred by Dwyer to Mr Beard, Cuckburn's solicitor and he got information from Mr LSeard's olerk, which confirms defendant's account of the instructions and he proceeded to put. it into the agreement which Dwyer signed after it was read over to him. Defendant later on sees the deeds themselves, and they agree with the instructions and the signed agreement. It wonld been bettor no doubt as things turned oat if defendant had searolied the title before he drew the deed of settlement, but having got the express instructions from Dwyer, as shown by the agreement, and having inspected Dwyer's title in the hands of his mortgage he waa justified in assuming that there had been no change in the title. Clearly it was the client's duty to inform the solicitor of any change. Dwyer says he did tell Bunny of the sale to Johnson. Bunny says Dwyer did not. 1 am inclined to believe Bunny's statement. If Dwyer had told Bnnny at anj time, why did he not again mention it when he is asked to sign and does sign a conveyance, on trust, of the whole of lot 21, which is expressed to be subject to a mortgage to Oockburn for £3OO. Why does he not say be has already conveyed part of the lot to Johnson, that he has paid off Oockburn, and that there is a mortgage to Eraser for £4OO not £3OO, and why, also, when he borrowed from Fraser did he not tell Mr Pownall he had agreed to settle the land on hie wife. The delay, I am satisfied from the evidence, was the fault of Dwyer and nut of defendant. It was Fuggested that defendant might have prepared ab solute assignments to the wife forthwith, and that the intervention of a trustee was unnecessary. No doubt a man can opnvey to hie wife without the intervention of ; a trustee, but it is usual and proper 'to have a trustee for the protection of a wife, and in this case defendant properly advised such a coarse, and he made proper provisions in the settlement in case of ohildren or no children. Johnson's original conveyance of 16th February, 1903, completed and perfected Johqson's title, and the settlement of 22nd Decemher, 1904, waa absolutely in operative so far as it purported to affect the land which had already been conveyed to him. His conveyance was already registered, and so he got priority—see section 50 of The Deeds F.egistration Act, 1868, i and Holland v. Oliver, N.Z.Ii.R., 1 S.C., 157. It was absolutely unnecessary to Confirm Johnson in bis title, which was already complete, and it was absurd, in deed of confirmation, to talk of releasing JohnBon's land from the trust of the settlement which oould not possibly affect it. If anything was required at all a simple declaration (made by Dwyer, O'Connell, Bunny or a solicitor's olerk) to the effect that the settlement had erroneously included the strip in question, would have been quite sufficient to make the mistake plain lo anyone searching the title. Then 1 do not understand the conveyance from O'Connell and Mrs Dwyer back to Dwyer, exoept upon the supposition that Dwyer wanted to get rid of the settlement, or believed it was, as he said, extinot. Defendant, it seems to me, made a reasonable offer in his letter of 25th July, 1905, that O'Connell should give Fraser security and that offer ought to have teen aocepted. As to the damages for non-registration of the chattel instrument, this claim is hbsurd. Defendant was still waiting for instractions to complete, and in any case the ohattels were never interfered with, and there is no sugges tion of there having been any losa or damage. There has beeD an unfortunate series of mistakes, no doubt, but I think they are attributable to Dwyer and uot to defendant. Judgment will be for defendant.