COURT OF APPEAL.

Gisborne Times, Volume XXIII, Issue 1907, 17 October 1906, Page 3

COURT OF APPEAL.

PS ESS ASSOCIATION Wdiug'o.a, last night. The Ocu't cf Appeal in occupied with ihe case oi Baifiuc Kiuaear versus the Loan and Moteantilo Ageuay Company in connection with the aalo oi sheep in 1903, Appellant, a farmer at Kqmerou, near Woodvil'e, had 1060 sbo'p for sale, and allowed one It chatds, a stock ieulor, to inspeot tham. Appt llaot, Biehards and Draper (respondent's ngenl) cisoussed the prior, and tho former agreed to Bell for £450. Draper asked for commission for the Company, but appellant declined, as be had not taken part in promoting the bargiio. Biehards offered to draw ft cheque in pa’t payment for tho sheep, but appellant replied he did col wans the cbique tbrn, hut payment when delivery was taken. Tbe sheep were taken and sold, appellant infurmirg Draper that he h Id the Company responsible for payment. Tho sheep were sold by tho Company, and Draper wired appellant to that efftof, stating that tho ebtqae was all right. A few days later appellant left for England, but no cheque was paid into his aooouot by the Company, but tbe Company deducted from tbe proceeds of a debt owed it by Richards, and piid the balanco to tbs latter. The Company had declined to pay appellant for tho sheep, and he tbon made demand on Richards, and accepted f om him and bis wife certain morigigss to secure £487 and interest, neither of which was paid. Ap I eliant sued Richard?, but failed to recover, and then proceeded Bgainst the

Company, a’legiog tbe Company wa3 inti rested in the sale, as Richatdswas largely indebted to them, and they were aoxiota to pay themselves from tbe proceeds of tbe ea'o Tbo Chief Justice, in the Court below, held that tho promise of Draper to bo responsible for tho price of the sheep was a promise to answer for tbe debt, default, or miscarriage of the third party within aeolion 4 of tbo Stalulo cf Frauds, and was void through not being in writing.

Tho appeal is from this deeisioD. Mr Myers moved for an adjournment to enable Draper’s evidenoo, who could not bo found at tbe trial (but who has sinoe boon found) being taken, Tbe Court refused the motion that Draper’s evidence bs taken. Tho Court of Appeal dismissed tho metion to have Draper’s evidsoco taken in the case Kinnear v. N Z. Loan and Mercantile Agency Company (without calling on Dr Findlay to reply). The Court held that evidence was inadmissible at Ibis atege of the proceedings. While agreeing that the company bud done everything possible to secure the presenoo of Draper at tbe trial, and that it was tho company’s misfortune that tho witness c .uld net bo found, tbe Cjurt bold that to admit this ovideeco at this ?t ige would bo against tuo principles upen which the Couttnf Appeal should ici in -draitt ng frosts evidence on appeal. Dr Findlay, io rpsuing the cv=e for tho appellant, cunt.tiled unit the judgment of tbe Chief Justice to ior - Court below was wrong in law, end in inferences of fact which had been drawn from evidence. Aigumont was not coo [ eluded when tho Court adj ■■n-ned.