RESIDENT MAGISTRATE’S COURT.

Evening Star, Volume VIII, Issue 2277, 24 August 1870, Page 2

RESIDENT MAGISTRATE’S COURT.

Tins Day. (Before A, C. Strode, Esq,, R.M.) Civil Cases. Stamper V, Halliday.—At the request of the plaintiff, as the defendant did not appear, the case was adjourned to Friday. JUDGMENT. Brown, Ewing, and Co.’',' v. VanNorden. — The plaintiffs sued the defendant for L 8 ss, being the price of a suit of clothes made by the plaintiffs to the order of defendant, but which, according to the contention of the defendant, he is not liable for, as the clothes do not tit him, and otherwise werenot made according to contract. It Was contended for the plaintiffs that the clothes in question -were made in accordance with the instructions of the defendant; but that if the Court arrived at the conclusion that the clothes did not precisely fit the defendant, it was competent to give judgment for the value of them in their present state. This contention no doubt is correct with regard to a certain class of contracts ; but 1 am decidedly of opinion that it could not properly be applied to any contract of a similar nature to the one under cou-ideration, In a cpnlract to make a suit of clothes, it is of course implied that the clothes will fit the person ordering them, and that the labor and ma-

terials expended will be of service to the person charged. That if a tailor incurs trouble and expense which is useless to his customer, he cannot make it a subject of remuneration ; the meaning of which is, a reward for useful labor. Again, in the case of a suit of clothes that do not fit, it may possibly happen that the entting-out is of so faulty a character as to render it impossible by alteration to make them thoroughly answer the purpose designed. The contract is one which must be completely carried out before the price can be recovered. The simple question, according to my idea, in such cases as the present, is— were the clothes made in accordance with instructions of the defendant, and do they fit him? The answer as to fit, in the presept ease, must assuredly be in the negative. Acting, therefore, upon the principle very clearly laid down in Hill y, Featlicrstonhaugh (7 Bingham, 560), that in order to apportion payment the work must be examined as to how it has answered. Judgment must go for defendant. Judgment for defendant, with costs. Neiven and Cunningham v. W. Roberts.— A claim for L 4 7 s for balance of account fpf horse sboeijug. The case was postponed tq enable tljo j jauitiff to supply particulars of the account.

Wilson and Birch y. Robert Walker. L 5 10s for balance of account op a dishonored promissory note, Mr Stamper for the defendant. Tire amount of the note was admitted, but it was affirmed

that the son of the defendant had been released from the amount of the debt, as the plaintiffs were parties to a composition. It appe red that the younger Walker was about to file a declaration of insolvency, and to prevent that the father gave a note of liana for the amount, and that at the request of the latter, the plaintiffs signed a composition deed entered into with his creditors. The defendant iu big evidence said that his son had entered into an arrangement with his creditors, every one of whom agreed to accept a certain composition, except Messrs Wilson and Birch, to whom he gave a promissory note at three mouthy for the amount of the debt in consideration of the plaintiffs’ signing the deed of composition. The younger Walker said that his father had made the arrangement without his knowledge. His Worship was of opinion that the amount

could not be recovered under the cirouimstances, as it was contrary to the policy of the law. It was expressely laid down that no advantage should be given by arrangement between a creditor and a debtor, or even a third person, as it would be a fraud on the policy of the law. Judgment for the defendant.

Allen v. D. Tricky.—L7Jis Bd, for goods supplied. Judgment by 'default for the plaintiff. John Welsh v. A. Sinclair and others.— L 7. Mr M'Keay for the plaintiff. Mr Harris on behalf of Mr Stewart for the defendant. The contract was very specific, and provided for burning, clearing, and fencing about two acres of ground for the sum of Ll3 16s. But in consequence of a mistake in the wording of the agreement, instead of the lump sum of Ll3 IGs, it was intended to have been Ll3 16s per acre. No advantage was sought to be taken of the mistake, and the defendants claimed to be paid for I jj acre of ground. The sum was paid without examination, but on measurement it was found there were only one’ acre and 24 perches ; and further, that the work was not done in a workmanlike manner. 'l'he plaintiff sought to recover the amount paid in excess, and a further sum for damage sustained. Mr arris took an objection that the agreement was not stampad according to the provisions of the Stamp Act. Mr M'Keay pointed out that the agreement on the face of it required no stamp, as it purported to be <or work under L2O in value. His Worship ruled in favor of Mr M'Keay’s views. Evidence was given to shew that the work was improperly done, and one witness said it would cost more than the original contract to put it into order. For the defence it was stated that no complaint had been made by the plaintiff of the contract not having been fulfilled, and that the defendants, claimed payment for a larger area than that paid for, and that they were not parties to the survey made for the plaintiff. It was also stated in evidence that, although the contract was finished In January, no complaint was made until April; that the plaintiff refused to go and survey the work with the defendants, and they were never asked for the amount claimed until a summons was served last Monday. His Worship considered that the evidence, with regard to the manner in which the contract was fulfilled was in favor of the defendants, but that as a competent surveyor had measured the ground, the plaintiff was entitled to have the money returned, which was overpaid, Mr Harris maintained that the plaintiff should pay the costs. His Worship ordered each party to pay half costs. [Left sitting.]