RESIDENT MAGISTRATE’S COURT.

Evening Star, Issue 3141, 14 March 1873, Page 2

RESIDENT MAGISTRATE’S COURT.

Tins Day. (Before A. C. Strode, Esq., R.M.) CIVIL CASES. Guthrie v. Dearden, claim L2B 5s 6d, on promissory note. Mr Stout for plaintiff. Judgment by default for amount claimed with costs. M'Gill v, Kincaid and M‘Queen.—ln this case, plaintiff set foi th that, on the 23rd of August, 1872, defendants wronfully converted to their own use a five-head quartz crushing battery, wherefore he claimed I 100 damage?. Mr Haggitt, for plaintiff, and Mr Holmes for the defendants. Witnesses in the. were ordered outside the Court. Peter M'Gill, plaintiff, said he obtained a judgment against one Dyer, at the R. M. Court, at Tokomairiro, in 1872, before Dyer filed a deed of arrangement in the Bankruptcy Court. He opposed the complete execution of that deed, and in consequence of what came out at the examination in the Supreme Court, he saw both the defendants. He asked Mr Kincaid if he had any machinery belonging to Mr i'yer, and the defendant said they had, arid added that it had been made to his order, and was almost complete. He then stated that it was very probable that he would seize it, Mr Kincaid then referred him to Mr M‘Queen, saying he knew more about it. He subsequently met Mr M ‘Queen, and told him that he intended seizing the machinery. Mr M ‘Queen then a?ked, in the event of such being done, would he object to having one of his own men appointed bailiff, as he did not like to have strangers on the premises. He replied in the affirmative, and the following day caused a distress warrant to be issued for execution. He saw defendants on one occasion before the sale. A short time afterwards a sale of quartz-crushing machheiy, under the warrant, took place at defendants’ foundry. HepnrchasedthemachineryforL6o. Soon after, he went to the foundry to take away the machinery, and was ordered by deft ndants’ clerk not to touch it. The clerk thin said that on that day he had signed a paper acknowledging that the machinery belonged to M‘Daren. and Co. He had not yet got possession of the machine, and considered it was worth about L 250. He understood that defendants had received live quarter sections at the Water of Leith in payment for it. Cross-examined : He heard Mr Harris warned intending purchasers that the machine was the property of M'La-enand Co. Witness had been informed the machine was made under written contract. John Hughes gave evidence as to the seizure and sale of the machine, and the refusal of the defendants to give delivery after the sale. Mr Holmes submitted the defendants were entitled to a nonsuit, on the ground of the defectiveness of the particulars of demand, the evidence of Dyer’s right, title, and interest, which were what was sold, being of the vaguest possible kind, and that the action being for conversion, there should be specific goods, which they were not, as some which the plaintiff claimed were not even in existence. Furthermore, that the claim was made in virtue of a contract which vested no interest whatever in the purchase until delivery was completed. In this case delivery was not completed, and no action for conversion could be sustained under such circumstances. His Worship decided that there was a case to answer. For tiie defendants it was contended by counsel that the machinery was actually the property of M'Larep and Co.; that the machinery, when seized, was hot complete, and had not been delivered to Dyerthat all plaintiff could purchase at the sale, was the right to receive the machinery when completed, and that plaintiff therefore could not maintain an action for conversion. It would be proved that M‘Laren and Co. had paid LIBO on the machinery. It was therefore contended that at most defendants would b,e forced to pay the expenses plaintiff was put to in connection with the seizure and sale.—James Kincaid, one of the defendants, said be remembered plaintiff coming to the foundry apd asking if Dyer had paid for the machinery in money, or if they were to he paid in land. He replied, in land, providing the title was right. Plaintiff then said Dyer owed him money, and that if he could find out that Dyer was paying for the machinery in cash, he would arrest it in the shop. He referred plaintiit to M‘Queen for further explanation. He also told plaintiff that M'Gill bad sold the battery to M‘Laren and Co.

(Left sitting.)