KIRBY V. GIVINIAN.

Auckland Star, Volume I, Issue 123, 1 June 1870, Page 2

KIRBY V. GIVINIAN.

Mr. Desketh for plaintiff; Mr. Bussell for defendant.

This was a claim for £8 due on a promissory note. It appeared that various transactions in the lending of money had occurred between the parties. The facts of the lending of the money on the 11th of January, namely, £7, to be repaid by £8, were deposed to ; and the defence was that £7 of this had been repaid on the 18th of the same month, as per receipt produced, and the other pound forgiven on consideration of early payment. Defendant swore that certain money, borrowed on the 6th of September, had been repaid on the 23rd of December, in presence of one Eades ; and with reference to the subsequent claim, deposed : I remember Kirby's man applying to me for payment of money this year. It was not for these £8. I told him I was not indebted to Eirby. This was in Edwardes-street, in the month of March.

To Mr. Eussell: The witness that saw me pay the money came into town with me the same day. The second sum I borrowed was £7. I was to repay £8 if I kept it for the two months. He knocked off the pound because it was paid before it was due.

W. R. Eades, deposed : I am a carter residing at Onehunga. Know defendant. Eecollect being in town with the defendant in the end of December last. Know plaintiff. Saw him paid £7 by defendant on the 23rd of December last. Four pounds were in a note, and three pounds in gold. To Mr. Hesketh: Defendant asked me to go and see him pay the money. Went to Mr. Kirby's office, at tbe top of Queen-street. Defendant asked for a receipt for the money, and Mr. Kirby said it was up at the house. It was a one £4 note, and three pounds in gold. Plaintiff, examined by Mr. Heaketh, deposed : On September 2(3th I had the first dealings with defendant. I had lent him £6, to be repaid in two months. He was to pay me £7. He did so on January Blh. I then gave him a reeipt. The receipt produced was that which. I gave. That stroke was not before the Bth, when I gave it. I swear positively that the date is altered. Have seen tW last witness before. He was not present when this payment was made. Not a sbilling was paid to me by defendant on the 23rd December. Never saw a£4 bank note in Auckland. On 11th January I gave him another £7, for which he was to give me £8 I have never received this. I have twice applied by letter, and sent my man for the money. I never before to-day heard him say that he had repaid the money. To Mr Rnssell: I produce my bank book, showing the cheque given defendant. Michael O'Donnell deposed: lam in the employ of M r. Kirby, an 1 know the defendant. Mr. Kirby sent me to ask him for money lent This was on 11th March this year It was in Edwnrdes-street. He said, " Tell Mr. Kirby it is not due yet." Came back and told Mr. Kirby, who, on looking in his book, said it was not due till 14th March. Applied to defendant again in Queen-street. He said he had nothing to do with me or Mr. Kirby, that his lawyer would settle it.

To Mr. Russell : I am quite sure he did not say to me on the first occasion that he was> not due anything. Remember a dispute between them about a dog.

Mr. Beckham stated it was quite unnecessary to hear further of the case ; the date of the receipt had been evidently altered from 8 to 18, and in giving judgment for plaintiff expressed in strong terms his views of the character of the evidence given by defendant and his witness, Eades, as being wholly untruthful.

Judgment for the plaintiff. (Left sitting.)