SUPREME COURT.

Evening Star, Volume IX, Issue 2683, 22 September 1871, Page 2

SUPREME COURT.

NISI PRIUS, This Day. (Bcforc n Mr Justiee Chapman and a Common Jury.) Larnach and Another v. Bird.— Mr Bat ton, -with whom was Mr Stewart, appeared for the plaintiffs, Messrs W. J. M, Larnaoli and C. M‘Queen, trustees in the estate of Edward M'Clashau; and Mr Smith for the defendant, Charles E. Bird, now of Christchurch. The declaration stated that on April 15, 1865, the defendant accepted a hill for LSOO, which was payable to M‘Glaslian, avho having sought the protection of the Bankruptcy Court some time afterwards, endorsed it over to the plaintiffs, trustees m his'estate. The defendant, by his pleas, alleged that the bill was given for the purchase of certain cattle sold to him by M'Glashan ; that after the sale was effected, an agreement was made between them by which gave up all claim to the bill, agreeing to cancel it; that instead of carrying out that arrangement ho kept the bill and endorsed it over to the plaintiffs, who took it with a knowledge of the facts ; and further, that when enclors- d over to them it was lung overdue It was further averred that the defendant had become bankrupt since these transactions, and the deed of arrangement was set up as a bar to the proceedings. The facts stated shortly are: —ln December, 1864, Bird, in conjunction with one Spooner, who afterwards avent out of the concern, purchased from M'Glashan cattle to the amount of L 5610, which was paid by bills guaranteed by Wright, Robertson, and Co. Bird subsequently experiencing considerable difficulty in disposing of the cattle, wrote to 1 M'Glashan on April 6, 1865, informing him of his inability to meet his hills, and offering to pay 509 op condition of being released from his obligationsj M'Glashan to take back the cattle. This offer was declined, hut, ultimately, after considerable negotiation, the patties agreed to abandon the old transaction and enter into a new one. Bird was to pay M'Glashan LIOOO—LSOO cash, which he did, and LSOO by hill, and M'Clashan was to reduce the price of the cattle then on Wright, Hobertson, and Co.’s hands, by LIOOO, making the purchase money L4GIO, which amount was ultimately paid. The LSOO bill remained utdiqui a ed ; and the present action is to recover the amount of it. The defence was that there was a verbal arrangement between the parties that the LSQO bill should be cancelled. The jury ]pid been absent a little more than an hour, when the foreman returned and asked if they were to give a verdict according to law or equity, and was informed by his Honor that he did not think they knew anything about the one or the other, reminding them that their simple duty was to give a verdict according to the evidence. On the jury retiring, Mr Barton submitted tjje evidence for the defence having failed to

support the pleas, the jury should have been directed to find for the plaintiffs. His Honor said he thought there was a little evidence, and declined to then give the direction asked for, but gave plaintiffs’ counsel leave to move that the verdict be entered for the plaintiffs on the ground that there was no evidence to go to the jury in support of the pleas. A few minutes before three o’clock the jury returned, finding for the plaintiff in the sum of LotK), without interest. Wilson v. Gilmour Bros. —Mr Macassey (iii.-tructcd by Mr Harris) for the plain lilt'; Mr Barton for the defendants. This was a c'aim for L 14.3 10s balance due on a contract; and the defendants paid L 3 5s into court. On the 4th of January Last, plaintiff, who is proprietor of the Otago foundry, Dunedin, agreed with the defendants, who arc proprietors of a Hour mill at Lake Hayes in the Wakatip district, for the construction of the necessary machinery for the mill for L395—L100 to be paid at the time, and the balance on the completion of the work ; the machinery to be finished in two months from the date of the contract. it was nee ssary that plaintiff should be furnished with a plan of the locality, and one of the defendant’s promised that he should have it in i aediately on the latter’s return to-the district, but it was late iu February before it was received, and the consequence was that the construct! tion of the machinery was delayed. It was subsequently finished, the principal portions of it b-mg conveyed to Lake Hayes by a carter named Wylie, as suggested by the defendants ; but the remaining portion was sent up by a carter employed by the plaintiffs. Each party now charges the other with the delay that was occasioned. In March, when the plaintiffs called upon the defendants to complete the payment of the contract money, the latter asked for a renewal of their LIUO b 11, which was about to fall due ; and this being refused, they charged plaintiffs with failing to carry out their contract in the stipulated time, whereby they had suffered losses through their mill not being in working order, and refused to pay the L2OO. Hence the present action. (Left Sitting.)