RESIDENT MAGISTRATE'S COURT.

Evening Star, Issue 3200, 23 May 1873, Page 2

RESIDENT MAGISTRATE'S COURT.

Friday, May 23. (Before I. N. Watt, Esq., R.M.) CIVIL CASES. Reeves v. Fish.—llls Worship gave judgment in this case as follows “In this case objection was taken to a certain agreement being received in evidence because it was not stamped. I have come to thc.conclusion that it was not necessary to stamp it, because it was, from its nature, impossible to ascertain or compute whether the • value amounted to the sum of L2O or not, I iind, then, that on the 10th June, 1860, six of the creditors of one John M'Cubbin (amongst whom were the present plaintiff and the two defendants) entered into an agreement to pay their proportions of the expenses connected with an investigation into the affairs of the estate. Mr Stewart was employed for the purpose, and his account for his services amounted to LlO 14s 2d, for which amount he sued the three persons to the present suit as co-defendants, but only Mr Reeves, the present plaintiff, was served, and Mr Stewart recovered from him the whole amount, with 42s costs. He now seeks to recover from Mr Kish, his late co-defendant, in the like manner, the sum of L 8 10s lOd, being two-thirds of the amount of debt and costs in the former action. No explanation, so far as I am aware, was offered, either at the former trial or at the present, why only three of the six co-partners were sued in the first instance, nor have I any explanation why only two out of the remaining five should have been sued in the present instance ; save that in the former action judgment was given only against the parties to the present action. It is argued on the part of the defence that, although a plaintiff may recover the whole of his claim against a partnership from any one of the partners, that partner can only recover from each of the others the proport’on for which he is properly liable, and with this I agree. lam also of opinion that the former judgment of this Court had not the effect of fixing the proportion or contribution due from-each of the then defendants, and that I must turn to the agreement to ascertain it. There is nothing in the agreement from which I can gather whether the interest in the estate of one or more of the parties w. s greater than that of the others. 1 must, therefore, assume that they are all equally liable, share and share alike. 1 iind, therefore, that the defendant, Mr Fish, is indebted to the plaintiff for one sixth of LlO I4s 2d, the amount of Mr Stewart’s account. I also think, the plaintiff is, upon the facts, equitably entitle i to one sixth of the costs of the former action ; but as the two together amount to threepence less than the amount paid into Court, judgment will be for that amiunt, L2 11s; plaintiff, as he is required by 44th section of the Act, paying costs incurred subsequent to the, payment into Court.” The following is the document referred to in his Worship’s judgment:— “ Dunedin, June 10, 1809.—We, the undersigned creditors in the estate of John M’Cubbin, hereby agree to pay our proportion of the expense connected with the investigation of Mr F. Hassell's bill of sale, and generally the affairs of the estate, with a view of obtaining a dividend for the unsecured creditors, —H. S. Fish and Son, J. M'Lean and Co., John Griffon, R. Wilsoir and Go., Maurice Joel, Beeves and Co.” Jones v. Collins.—His Worship gave judgment herein as follows:—“In this case I cannot find any authority for allowing interest on a simple lOC, where no notice of intention to charge it has been given, aud where it was not implied or contemplated at the time the lOC was given. Judgment for plaintiff for Ll9 12s, with costs, L2 45.” Wilson v. M‘Kay. His Worship gate judgment as follows “This is a claim for loss sustained by reason of uou-delivery of 2UO lambs, bought by the plaintiff from the defendant, and for expenses incurred in the matter. This case hinges upon the interpretation of a very loosely written agreement or document. For the plaintiff, it is contended that he purchased from the defendant the right to pick 200 lambs out of the defendant’s flock, ‘if approved,’ paying for the same 6s 6d each, delivery to bo given and taken when required, but within three mouths. For the defendant, it is contended that he sold the right to pick out of 200 lambs only, any number of which the plaintiff should approve. The words ‘the pick of 200,’ might, with propriety, be read either way, but for the words ‘if approved’ which follow them, and to which, if the interpretation of the defendant be correct, I can assign no meaning ; for without them the plaintiff would have been able to pick any number from 1 to 199, as he might please. But if the interpretation of the plaintiff be correct, they (taken with the evidence of the plaintiff) become perfectly intelligible : he says they were put in because he had never seen the flock, and his conduct appears to have been perfectly consistent with this view of the case, for he sent Wingfield, his servant, three days after to inspect them, and he (Wingfield) thereupon did approve of them, and the bargain was so far complete. As to what took place on the second visit of Wingfield to the flock, the evidence is very conflicting ; but interpreting it most favorably for the defendant, it cannot be taken to have annulled the written contract. The flock approved of consisted of ‘close upon ’ 200 lambs, and out if these, I think. plaintiff was entitled to pick 200, whereas the defendant only offered to him, to use his own words, the pick of ‘more than 200,’ and there is no evidence to show, whether these were or were not any portion of the flock approved of. I am of opinion that the defendant has failed to complete hia contract, that the plaintiff is entitled to damages, and after much consideration, that the amount claimed is fair and reasonable. Judgment for the plaintiff for L2l with costs.”

Kincaid and M‘Queen v. Nichol. —Mr Holmes appeared for the plaintiffs, and Mr Anderson for the defendant. Plaintiffs’ counsel applied for a non-suit without costs, on the ground that the wrong party had been sued. Alter some argnpient, the case was adjourned until the 6th June, the question of costs being reserved. Barr v. Mitchell.—A claim for L2I la 9d, balance of account due. Judgment, by default, for Ll4 5s and costs. Hart v. Murray.—Mr Stout for the defendant. In this case the plaintiff complained that defendant wilfully and negligently allowed water to come on to plaintiff’s premises, thereby injuring his goods to the amount of Lls, which sum plaintiff now sought to recover,—Reuben Hart carried on a fancy goods shop in liattray street, adjoining the defendant's premises. On or about the 4th January, he found the water coming into his shop. Mr Murray saw the damage that -was done. The water came from a tank on defendant’s premises. Mr Murray promised to come in and see what goods were damaged. He did not come. The goods produced were not damaged before the water came into the shop.—James Nimon, Inspector of Nuisances, proved having seen the water coming into plaintiff’s premises.—Several witnesses were called, who proved to having seen water coming into plaintiff’s shop. (Left sitting.)