DISTRICT COURT, CLYDE.

Dunstan Times, Issue 379, 23 July 1869, Page 3

DISTRICT COURT, CLYDE.

IN BANKRUPTCY. Monday, July 1!), (Before his Honor Mr. Justice Gray.) FINAL EXAMINATION AND DISCHARGE. Samuel Grogan.—Mr. Brough moved that ike Bankrupt's certificate might be granted. Order made. John Wilson.—A similar application was made by Mr. Brough in this case, hut in consequence of its being intimated that several of the Bankrupt’s creditors intended to oppose his discharge, the examination was adjourned to the following day. Patrick Wickham.—Application by Mr. Brough for an Order of Discharge adjourned Ml Tuesday. M ‘Donald.—Similar application also adjourned to Tuesday. APPEAL PROM WARDEN’S COURT. Connelau and others, appellants, v. the Mayor and Council of Cromwell, Respondents. —This was an appeal from a decision of Mr. Vincent Pyke, which was adjourned from the sitting of the District Court in Mavlast, for the purpose of enabling the appellants to obtain the evidence of Mr. H. A. Stratford. Mr. Brough appeared as ■Counsel for the appellants, and Mr. Badger «s a'ent for the respondents. Mr. Stratford’s evidence, as to an endorsement on a ■certain certificate dated in 1865, was token, and the hearing was then adj aimed until the. following day, when, after hearing Mr. Brough and Mr. Badger, his Honor reserved his : ecision.

Grant v. Siedeberg.—This was an action brought to recover the sum of £ ; >4 18s. od., being £52 for the enlargement of the defendant’s dredge, to which an accident occnred some few weeks ago and £2 18s. sd. for sundry (roods supplied by the plaintiff in

connexion therewith. The ofenlant, for whom Mr. Bailey appeared, pleaded a set off, to the amount of £B7 18s. 41, for damages sustained by the defo dant, in consequence of the breaking away of the Todge, which it was allege 1 had heen caused by the work done hy the plaintiff having been carelessly and improperly executed, and the defendant claimed to recover the excess.

The defendant olecto * to have the case tried by a jury. Mr. Brough, Solicitor for the plaintiff, said that he was prepared to prove the various items specified in the particulars of the plaintiffs demand, but if, as he understood, there was no intention on the part of the defendant to dispute their correctness. an.l that the set off only was relied on, it would save time if the amount, viz., £54 13s. 5d., were admitted. Mr. Bailey, as agent for the defendant, said that he did not dispute the items in the plaintiffs account, nor the prices charged, and that he would admit the plaintiff’s claim, subject” to the set off Mr. Brough then pointed out that the set off being in the nature of unliquidated damages, could not be allowed, and that he objected to the set off on that ground. In this case there is no mutual debt, the plaintiff’s claim, which arose out of a simple contract, being admitted by the. defendant, a set off in the nature of damages, the amount of which cannot ho ascertained by the parties withouttheintervention of a jury,is inadmissible Mr. Brough added that he would consent to the defendant’s written statement of defence, being amended, and that under the plea of ‘ never indebted” the defendant might give evi ienee to show that the work charged for was improperly executed by the plaintiff Hi? Honor remarked that the objection raised hy Mr. Brough must bo supports 1 and that the set off could not he allowed.

After some discussion as to whether the defendant would consent to a verdict for the amount admitted, and bring a cross action for damages alleged to have been sustained, or tender evidence with the view of reducing the plaintiff’s demand, he elected to adopt the latter course, and the statement of defence was amended accord-

ingly. The defendant then proceeded to give evidence to show that the work charged for had been carelessly executed, and that some portion of the materials supplied were of bad quality, and that iu consequence thereof the dredge had sprung a leak, broken away from her moor- | ings, and become a wreck, and that she was now lying in such a position that she could not be moved cither up or down the river and that the defen ant had thereby sustained a loss of some hundred of pounds. Mr. Brough then called William Grant, who deposed that the whole of the work had been done in accordance with the defendant’s instructions, and to a great extent, under Siede'mrg’s own persona 1 superintendence, that he (Grant) had, on various occasions, oliered suggestions to the defendant, as to the work in quesstion, but that he was persistent in having his own ideas carried out. Thgfconone occasion the defendant complUTed of his using too many bolts and the defendant had, when the enlargement of the dredge was completed, expressed his entire satisfaction with it. Mr. Grant’s evidence was corroborated by other witnesses. Mr. Brough addressed the jury for the plaintiff an' Mr. Bailey replied on behalf of the defen‘ant. His Honor after going carefully through the evi once, explaied to the jury the points on which their verdict was required. After a short adjournment the jury found a verdict for the plaintiff for the full amount claimed, viz., £54 18s. sd. Costs, 18 14s. The above case was not concluded till 9 o’clock in the evening, and the Court was then a. journcdtill the following day at 10 o’clock a.m. Tuesday, July 20. IN BANKRUrtCY. Patrick Wickham—Adjourned applica>sf'tioii tor order of discharge. Mr. Brough appeared in support of the

application and Mr, Bailey, instructed by creditors opposed. Some delay was caused by no affidavits. in proof of debt having been filed.

Mr. Bailey stated that the grounds of opposition were those set on in sub-sections 2 and 4, of section 120, of the “Bankruptcy Act, 1067,” viz., 1. That within two months before adjudication, he (the bankrupt) had fraudulently, and in contemplation of Bankruptcy, and not under pressure from any of his creditors, and with intent to give an undue preference, made away with mortgaged or charged part of his property, 2. That having known his inability to meet bis engagements with his creditors ho, without reasonable excuse, delayed the filing of a declaration of Insolvency. Mr Bailey examined the Bankrupt at some length, but nothing was elicited which tended to support the application for the suspension of the final order of discharge. The hearing was then formally adjourned till Wednesday morning, for the production of a “Gazette” notice when the order was made as prayed.

Malcolm M ‘Donald.—Mr. Brough applied in this case for a similar order. The opposition was withdrawn, and the hearing adjourned till the following morning, when final order of discharge was granted. John Wilson.—Adjourned application for order of discharge. This application was also opposed by Mr. Bailey, on behalf of creditors, on the ground that tho Bankrupt had, within three mouths before adjudication, contracted debts without any expectation of .being able to pay them, Mr. Bailey examined tho Bankrupt, and Mr.Brough was heard in support of the final order which was granted. July 22. Doherty v. Atkins.—Special rase, stated by Mr Warden Pyke, was reserved tor the pinion of the Dis’rittCourt. This was an action brought under Section ,2 of the Got! Fields Act, 1866 to recover damages for tho non-p erformanoe of a contract alleged to have been entered into by the defendant for the construction of a mining cradle for the plaintiffs at an agreed price of £lO. such era lie to be delivered comnleto with all necessary iron work, excepting the “ spear head ” of the pump.

And I found that such a contract had boon entered into—that it was a verbal contract only that it had not heen performed hy the eoteudant, and that the defendant refused to perform it. For the defence, it was urged that the said contract was not binding on defendant it not havingjbeen made in writing and no mo ney having been r aid. nor any tender of payment having been made by the plaintiffs.

For the plaintiffs, it w.is contended that bissmueh as the contract included certain iron work it was a contract for work and materials, ami therefore not subject to the conditions of the Statute of Frauds.

It was further argued that the OSth Section of the Goldfields Act, 1860, conferred on the Warden equitable powers enabling him to “ give mob judgment as shall be just without regard to any rule of law, or the practice of any Court of Law or Equity and that therefore such Warden was not bound by the Statute of Frauds, when dealing with mining contracts. I held that tiro said contract was for a certain ariich—to wit, a cradle, and therefore within the scope of the provisions of the Statute of Frauds and of the extending Statute commonly known as Lord Tontordens Act, ami that such contract was in. valid, the con oitions of those Statutes not having been complied with.

I also hel 1 that, when exercising the powers conferred by the 72nd section of the “Goldfields’ Act, 1806,” the Warden is bound strictly to adhere to the written law.

On the application of plaintiffs Counsel I reserved judgment in order to obtain the opinion of the District Court on the following points, which are now submitted, mam el v:

I. Was the nature of the Contract such as lo bring it within or to exempt it from the provisions of tire Statute of Frauds and Lord Tenterden’s Act?

2. Is the Warden bound by the provisions of those Statutes, when dealing with mining contracts? VINCENT PYKE, Warden. This case was argued on Wednesday last by Mr. Brough, as counsel for the plaintiff, and by Mr. Bailey for the defendant. His Honor reserved his opinion until Thursday, when he gave the following decision;— As to question 1., The contract was within the Statute of Frauds. As to question 2., I think the CGth section of the “Goldfields Act, I860,” enables the Warden, if he thinks fit, to di speuse with the requirements of the Statute of Frauds. Taking into consideration tne Bth Section of the “Goldfields’Act Amendment Act, 1857,” and Mr. Justice Richmond’s decision, in Pearson .appellant and Clark respondent, (see Johnson’s N.Z. Justice of the Peace, p. 385, note,) I think rules of evidence fall within the moaning of the words “Rules of Law” in the 60th section. But I will add that I think the Warden will use a right discretion in dispensing with the Rules of evidence prescribed by the Statute, only when the oral evidence is of the clearest character.