RESIDENT MAGISTRATE’S COURT.

Evening Star, Volume VIII, Issue 2389, 28 November 1870, Page 2

RESIDENT MAGISTRATE’S COURT.

Tuts Day. (Before A. C. Strode, Esq., R.M.) JUDGMENT, Geary v. Stevenson,—His Worship gave judgment in this case this morning as follows :—I have given every consideration to the evidence adduced in this case, and have arrived at the conclusion that the imputation of fraud cast upon the defendant cannot be sustained. It must be remembered that the transaction took place in the year 1840, and it was not till November, ISC3 (fourteen years after) that the conversation occurred between Mr Howorth and the defendant, upon which occasion doubts were expressed by Stevenson as to the ownership of the section of land in question. Ho seems t > have said to Air Howorth at that time “ I have had several transactions ■with Alillor, Sonic of them respecting other sections of land, but I cannot say whether I have sold this particular section, No. 43, or not, but if .Millar will produce any writing signed by me, I will execute a conveyance.’’ He appears further to have told Mr Howorth that ho had been absent from the Colony for some time, and that duribg his absence some of his papers were either lost or burnt. Mr Howorth goes on to say that Stevenson in conversation with him about this matter would never positively deny that he had sold the section, thus showing that doubts existed in his mind at that time as to whether he had parted with the laud or not. Ho says in effect to Air Howorth, 1 have no recollection of the circumstance at this distance of time, but if I have signed any document by which I have parted with this land, then that document should bo in the bands of your client,if you shew me that I have done so, I will at once complete the title.” In 1864, according to the evidence of Mr Howorth, Stereuson’s conduct appears, I think, still to he consistent with honest intentions ; for about a year having gone by after challenging Miller to produce any document signed by him, and, none having been forthcoming, he naturally becomes more confirmed in his belief that uo document had ever been signed by him, and therefore tells Mr Howorth that section 43 is his, and that he had not parted with it. 1 do not think that upon this evidence a fraudulent intent on the part of the defendant could possibly be made out, but simply forgetfulness of a circumstance which occurred

very many years before, and the non-pro-duction of the document it was alleged he had signc 1 being strongly court matory of his impressions. With regard to the question as to what amount is recoverable m m the defendant upon the presumption of an entire absence of fraud on the part of Stevenson, I am of opinion that the plaintiff is entitled to have returned to him by the defendant the 20 shown by the conveyance to have been paid as consideration money for the land, that amount having clearly been paid under a mistake of facts. In Milner v. Duncan, G, Barnwell and Cress well, 071, Mr Justice Bayley lays this down as the rule of law—lf a party pay money under a mistake of the law, lie cannot recover it back ; but if be pay money under a mistake of the real facts, and no laches are imputable to him in respect of his omitting to avail himself of the means of knowledge within his power, he may recover back such money. Again, in a note to the case of Chatfield v.* Paxton and East, 471, Mr J. Ashurst says that “where a payment has been made, not with full knowledge of the facts, but only under a blind suspicion of the case, and it is found to have been paid unjustly, the party paying may recover it back acain.” Upon this subject then the law appears to be—l. That money obtained by compulsion of law bona fide, and without taking an undue advantage of the situation of the person paying it, is not recoverable. 2. That money paid with full knowledge of the facts is not recoverable if there be nothing unconscientious in the retaining of it. 3. That money paid in ignorance of the facts is recoverable provided there have been no laches in the party paying it. Laches, in the sense of a mere omission to take advantage of means of knowledge within the reach of the person paying the money, is not sufficient to disentitle him to recover it back. 1 am of opinion that the payment of L2O in this case comes within the last-ment : oned class of cases, and therefore judgment will be for the plaintiff—l/ 20, together with coats. CHARGE OF OBTAINING GOODS FRAUDULENTLY.

Howard y. Farquharson.—This was a charge of obtaining goods with intent to defraud. Mr Barton for the informant; Mr Howorth for the defendant. The evidence of Mr G. 11, Howard was similar to that i which he gave on the last occasion. The case was simply that the defendant went tc Mr Howard’s shop, and asked for one ounce of biniodide of mercury for Mr Larnach, saying . at the same time, “ Make out the bill, and I will get you the money.” The account was m ule out two or three mornings afterwards, but he (the witness) never received the money, and in consequence of what Mr Larnach’s groom said, he took out a summons. In cross-examination by Mr Howorth, the witness said “anybody would know, from the nature of the medicine, that it was not for Mr Lamach’s leg.”—William Larnach did not authorise the defendant to buy ointment for his horse, nor had he ever anything to do with him by way of employing him. Farquharson had spoken to him about doing i something to his horse, but he gave him no encouragement.—For the defence, P. Peton, groom to Mr Larnach, said he saw defendant in a blacksmith’s shop, when ho told him the horse had thrown out a bog spavin, and he thought Mr Larnach would have him fired. The price mentioned was LI Is. The defendant, from what was said, might reasonably have expected the horse would be fired,—T. Hammond, farrier, said he shod Mr Larnach’s horse, and detailed the conversation in much the same way as the groom. He said he thought Farquharson would be as good a man as could be got to do it.—His Worship said the evidence for the defence failed entirely to supply a reason why the defendant should have gone to the shop on the occasion referred to, and make the representations he did—for in the first place he know his credit was stopped. It seemed a most extraordinary proceeding for any veterinary surgeon or other professional man to get medicine for a horse or man before he was employed in a case. It would not do to pass over such things lightly, but he (the Magistrate) had no desire to deal harshly in the matter, and he thought the requirements of the case wouLi be met by the defendant being imprisoned three days. Sentence accordingly. Annie Hamilton v. Catherine Mason.— This was a case in which a girl sought to recover some dresses which she had left in a brothel from which she had run away three weeks ago. It appeared that the arrangement on which the girl consented to *live with Mrs Masou was that the latter should receive all the money obtained by her, on condition of her finding her m clothes. The defendant denied the charg •, and claimed the clothes as her own, on the ground of having paid for them.—His Worship considered there was doubt as to whom the dresses belonged, Judgment therefore for the defendant. The following judgments by default were given in favor of the plaintiffs, with costs:— Pavelioh v. Andrews, L 5 4s ; West v. Dickenson, L 5. Three cases were dismissed for non-appear-ance.