RESIDENT MAGISTRATE’S COURT.

Evening Star, Issue 2912, 19 June 1872, Page 2

RESIDENT MAGISTRATE’S COURT.

Tins Day. (Before A. C. Strode, Esq., R.M.) JUDGMENT. Bank of Otago v. Gregg. This is an application for the re-hearing of a case heard in this Court bn the 6ih inst., on which occasion judgment was given for the defendant. It was contended i>y Mr Smith, as counsel for the plaintiffs, that whether the evidence of Campbell or that of Gregg given at the hearing of the case were taken as correct, the plaintiffs were equally entitled to the judgment of the Court, from the fact of the defendant having put the bill into Campbell’s hands in an incomplete : tate, with his acceptance attached, thereby becoming liable to an innocent holder for value for the ulterior consequences of his act. In support of this view Mr Smith cited Young v. Grote, 4 Bing., 253 ; Montague v. Perkins, 22 L.J., C.P., 187 ; Ingram v. Primrose, 28 L -T., C..P, 294; and Bank of Australasia v. Erwing, 1, Wyatt, Webb, and A’Beckett’s Reports (Supreme Court, Victoria). Against the application being granted, Mr M'Keay, as counsel for defendant, urged that it is absolutely essential that the place of payment in a bill must be put in by the acceptor himself or by his special authority—that in fact whatever the implied authority might he, such does not allow the place of payment to be inserted. In support of this view he cited Byles on Bills, 318 ; Burchfield v. Moore. 23 L.J., QB , 2(51; Master v. Miller, 1 Smith’s Leading Cases, 776 ; and Hanbury v. Lovett, Weekly Reporter, vol. 16, 795. Having now carefully looked into all the cases cited, I have come to the c nclusion that Burchell t. Moore is directly in point,—the essential circumstances of that case being precisely similar to the one under consideration. In that case the bill was altered in a material part without the consent or knowledge of the acceptor, by adding to the acceptance the the words “ payable at the Bull Inn Aldgatc,” and it was held by three very eminent judges, Lord Tenterden, Lord 0. J. Tindal, and Lord Lyndhurst, that such words, although they do not alter the direct liability of the acceptor, do vary the contract between others who are parties to the the bill ; therefore, that if interpolated without his consent, they may prejudice the acceptor ; that they amount to a material alteration of the bill, and that they discharge the acceptor. The case goes on to shew that the plaintiff is a bona fide holder for value, without notice of the alteration, but the bill must be considered as vitiated in the hands of a prior holder. The defendant was discharged from his liability as acceptor from the moment when the alteration of the bill had been consummated, and the instrument having ceased in point of law, to be an accepted bill, the indorsee afterwards could be in no better situation than the indorser. Again, in Master v. Miller, the date of the bill was altered whilst in the drawer’s possession, and the bill being subsequently indorsed to the plaintiffs, who were (like the present plaintiffs) bona fide indorsees for value, the judgment was that they could not recover against the acceptor ; Ashurst, J., saying “If the drawer had brought the action he could not have recovered, because he must suffer from any alteration of the bill whilst in his custody, and the same objection must hold against the plaintiffs, who derive title from him.” “Suppose,” says Abbott, C.J., in M'lntosh v. Haydon, “a bill so altered, to be indorsed to a person ignorant of the alteration; his right to sue his indorser would, as the bill appears, be complete, upon default made where the bill is payable; whereas in truth the acceptor not having in reali; y undertaken to pay there, would have committed no defau t by such non-payment. I am of opinion, therefore, that the alteration is in a material part of the bill, and the acceptor is in consequence discharged.” Burchell v. Moore appears to be a confirmation of previous decisions in M'lntosh v. Haydon, Desbrowe v. Weatherby, and other cases which were under review when the judgment in Burchell v. Moore was pronounced. Montague v. Perkins is, in my opinion, clearly distinguishable from Burchell v. Moore, the question in that case being as to the insertion of the amount of the bill by the drawer, after acceptance had been given in blank on a five-shilling stamp. It was held in that case that any amount that the stamp would cover could be inserted in the bill, and that an innocent indorsee for value could recover. I apprehend in the present case that the pi intiff’s only remedy is, a right to recover the consideration for the bill as between themselves and the persona from whom they received it. The law being to my mind so precise upon the point in question, I feel 1 have no alternative but to decline to grant the application. Rehearing refused.

Goclso v. Cornelius.—ln this case I for some time thought that Copeman v. Rose was in point, and that I had no power to commit the defendant; hut lam now satisfied, on consideration, that Mr Stewart’s con tention is right, the difference (and a very important one it is) between Copeman v. Rose and the present ease being that, in Copeman v. Rose the judgment existed before the defendant obtained his order of discharge, whereas in the present case the judgment was given after the order of discharge was in existence. lam now of opinion that defendant, not having pleaded his order of discharge at the hearing, he is in the present proceeding shut out from doing so ; and as it appeared in his examination that he had some ability to pay the debt of the plaintiff, but he was determined to take advantage of what lie considered his legal position in relation to his order of discharge, I shall mow make an order that the defendant pay the Bum of L 8 12s forthwith, together with the costs of these proceedings : in default, to be imprisoned in the common Gaol of Dunedin for the space of one calendar month. Civil Cases. Stohr v. Reeves.—L9 2s Id, claim for butcher’s meat supplied. Mr Stout for plaintiff, and Mr E. Cook for defendant. The sum of L 5 5s 9d was paid into Court, and a further sum of L 3 was pleaded as having been paid, and no credit given. Judgment for plaintiff, LI 16s 4d, in addition to the sum paid into Court, with costs,

Day v. Saints.—Ls 12s for rent. Mr Stewart for the plaintiff. The defendant, who is tenant under a lease, asked an adjournment for eight days to enable him to search for a mortgage deed. The tenancy wac proved, and judgment given for the plaintiff foa the amount with costs. Harris v. Petit.—L2o, a claim for damages for non-delivery of possession of certain lands and tenements. J. Anderson gave evidence of the reconveyance of the property to Mr Harris. The defendant entered into an explanation as to the means by which he came into possession of the premises, and expressed his willingness to deliver up the property as required His Worship said he should issue an order that the property be given np forthwith ; and that the defendant pay the cost of the proceedings, and Ll4 as damage. Htead v, Erridge.—L7 2s 3d, balance of account for draperies. Mr Stout for the plaintiff. Judgment by default for the plaintiff with costs. Dick v. Muir. —L4 ss, for work done on the Portobello road. Mr Stout for the plaintiff. The defendant is Chairman of the Portobello .Road Board. The case was adjourned to Friday, on account of the summons not having been served within the specified time.