RESIDENT MAGISTRATE'S COURT.

Daily Telegraph (Napier), Issue 3676, 26 April 1883, Page 2

RESIDENT MAGISTRATE'S COURT.

This Day. (Before Captain Preece, R.M.) JUDGMENT. His Worship delivered judgment in tho civil case, Colledge v. Benjamin, the evidence hi which was taken on Tuesday. The R.M., having reviewed the evidence in the case at some length, also the arguments of counsel, proceeded to point out that the deed of arrangement executed by the defendant -when he compounded with his creditors contained a covenant that, under certain, conditions, no creditor in the estate should be entitled to sue, and that all debts proveable in bankruptcy should be deemed debts for the purposes of that com.--< position. The language of section 143. of the Debtors and Creditors Act must be read strictly, and it was there laid down that '' from and after such declaration the deed shall be binding in all respects on all creditors of the arranging dabtor, and shall not be liable to bo disturbed or impeached at law or in equity by reason of any prior or subsequent act of bankruptcy, or on account of anything being contained therein or omitted therefrom, or on any other account Avhatevcr." The Court was " satisfied that the defendant omitted the debt from his schedule without fraud, and that he was released from any obligation under section 187G of the Debtors and Creditors Act. It was, however, possible that there might be a third party liable, and if so the plaintiff had his remedy under section 159 of the Act. The case must be non-suited, with defendant's solicitor's fee £2 2s. Mr McLean said he would like to point out that thero was no covenant not to sue. Mr Cornford objected to his learned friend addressing the Court after judgment had been given. Mr McLean explained that, in making the remark as to there being no covenant, he had no ulterior object in view. The matter was then allowed to drop. THE "BLUE OUM CASE." The evidence in the adjourned case, Wallace v. Harker, being a claim of £1S for gum trees sold and delivered, was resumed. Mr Lascelles, with Mr Cornford, appeared for the plaintiff, aud Mr McLean for the defendant. Mr Lascelles said the only point to bo decided in the case now was the question warranty, and as a pica of failure of warranty had been set up hy the defendant, it was now for tho plaintiff to establish a rebutter. The evidence that it was intended to produce would be (1) to the effect that no such warrant j- as that stated by the defendant ever existed, and (2) that there was no failure of -warranty on the plaintiff's part. He (Mr Lascelles) would point out that all warranties must be interpreted in a reasonable and proper way. Suppose, for instance, a man gave a warranty that a horse would go quietly in harness, it was implied that the horse should bo properly treated and put in proper harness—not harness that fitted it badly, or that chafed or otherwise irritated it. In the same way, if a man gave a guarantee with a certain article of food, it could not be considered a breach of warranty if tho person to whom it was sold rendered the food useless hy improperly dressing or cooking it. A man had no right to say that he was served with bad mutton or beef if he failed to treat it in a proper manner, and thereby spoiled it. Now, he (Mr Lascelles) held that these trees that were supplied to the defendant had no chance of growing after the way in Avhich they had been *- treated ; indeed, had they groAA-n it would have been a greater miracle than avus their death. The AA'holc thing rested on the evidence of experts, and on the former occasion Avhen the case ay.-is before the Court Mr Burton, a man of considerable experience in tree planting, had said that if A a tree of the height the trees sold to tho defendant Avcrc stated to be was put in Avithout proper supports on a lull such as that where these Avcrc planted it woidd in Avet Aveathcr Avork the ground around it into a puddle of mud and kill itself. Another of the defendant's Avitncsscs (Mr Margoliouth) avu.s unable to say hoAV long the trees Avere out of the ground before they were planted. A young tree, one of a lot similar to those in dispute, Avoidd be produced in Court, and it Avould serve to slioav lioav the trees grcAv, even Avithout' Aery much care, as cattle had found their Avay into and trampled over the place Avhere it aviis brought from. It Avould be shoAvn to the Court that the trees Averc perfectly capable of growing if treated Avith anything like ordinary fairness. For the defendant to release himself from liability ho AAWild require to prove in the Avord of tho ltnv that all things necessary Avere done to ensure tho growth of the trees. Neil Wallace, tho plaintiff, Avas then called and examined by Mr Lascelles on the question of the alleged Avarranty, as were also several other Avitnesses with respect to the proper method of planting trees. The ease Avas still proceeding AA r hcu Aye Avent to press.