IMPORTANT LAW SUIT

Gisborne Standard and Cook County Gazette, Volume II, Issue 285, 11 April 1889, Page 2

IMPORTANT LAW SUIT

£60,000 DAMAGES. The case of A. McDonald v. Bank of New South Wales was called on at the Supreme Court on Tuesday morning, before Chief Justice Prendergast and a special jury of 12. Mr C. D. Bennett was appointed foreman of the jury. Mr Braesey appeared for the plaintiff and Messrs Fisher (of Christohuroh) and DeLautour for the defendant Bank. Mr Brassey, in opening the ease, explained that there were three causes of action, and £20,000 was olainied on eaoh. The first claim was for breach of agreement. The Bank of New South Wales had been acting as the plaintiff’s bankers, and their manager at Napier, Mr Ulick Burke, had on 3rd April, 1886, written a letter to the plaintiff, in which he undertook, on behalf of the Bank, to give McDonald six months’ notice before exercising the powers of sale given by a mortgage which the latter had executed. McDonald was then purchasing native lands, and it was necessary that he should not be liable to be called on at a moment’s notice to find the principal. Burke had died, and notwithstanding the letter, McDonald had been called on to find the money in 24 hours’ notice, and the Bank had taken possession of all the plaintiff's property, selling off some of his stock. The second claim was that the Bank, for their own purposes, had caused McDonald to be adjudicated a lunatic, when he was only temporarily ill, and had trustees appointed to take charge of his estate.

The third cause of action alleged that the Bank had agreed to give McDonald a credit up to £50,000, and before he had reached his limit had dishonored the plaintiff’s cheques. At the conclusion of Mr Brassey’s onening, a legal argument took place an to whether the plaintiff had any right of action with reference to the first cause. Mr Fisher contending that the letter from Burke only had reference to the exercise of the powers of sale. The Bank had not sold, although they had entered into possession. Mr Brassey submitted that the taking possession was a breach of the letter, but His Honor said he could not go beyond the plain words ot the letter, which anticipated a sale. Mr Brassey then said the defendant Bank had sold property under a subsequent mortgage, which was part of the same transaction.

His Honor thought he could not stretch the letter to cover subsequent mortgages. Mr Brassey could, however, go on with his case, and Mr Fisher would have the right of objecting to any evidence that was irrelevant. Mr Fisher then mentioned with regard to the lunacy, that the order adjudicating McDonald a lunatic was not rescinded, except so far as discharging the trustees (Messrs Mattheweon and McKenzie), His Honor said they had not set that up as a defence, except to plead the plaintiff’s disability to sue. After some more argument. Mr Brassey called the plaintiff, who gave evidence. Mr DeLantour was also called, and the Court was adjourned then till yesterday morning. On the Court resuming on Wednesday, Mr Brassey rose and said that he was glad to say that they would take up no more of the time of the Court and jury, as the parties had come to a satisfactory arrangement. He would ask that judgment be entered for defendant Bank with costs.

Mr Fisher applied for a certificate for a special jury and also for second counsel, which were granted. Costs were also granted on the highest scale. Mr Brassey also consented to judgment being entered up tor the Bank on a claim mads by them for £29,000 overdraft, In reply to His Honor, Mr Brassey did not require a note to be taken of the terms, but they were satisfactory to all parties. The amount of costs in eaoh case will, we understand, be £3OO and disbursements. The following are the terms ot the agreement McDonald to consent to judgment going for the defendant in hie action against the Bank of Now South Wales with costs, and to consent to judgment for the sum claimed with costs in the action by the Bank against himself for the amount of his overdraft, Mr McDonald to transfer to the Bank the equity ot redemption in respect to all properties held by the Bank under mortgage. McDonald to go home to England to sea if he can raise money to pay off the Bank. The Bank to find him money for a return passage and £lOO for his expenses to be paid him on board ship. These moneys with all costs to bs charged against the securities held by the Bank. McDonald to be entitled to have his properties rc-oonvayed to him provided ho pays the Bank the whole of its olaim at any limo buloro the let Jaauaty, —, ’