SUPREME COURT.

Globe, Volume XXII, Issue 2072, 14 October 1880, Page 3

SUPREME COURT.

SITTINGS AT NISI PJtIUS. Wednesday, Octobeb 13. [Before hid Honor Mr Justice Johnston.] The civil sittings of the Court were resumed at 10 a.m. SAUNDERS V GODBY. In this case Albert Saunders was plaintiff and M. J. Godby of Ximaru defendant. The plaintiff sought to recover £2lO from the defendant on a dishonored promissory note made by W. F. Neilson, of which defendant was the endorser. The defendant’s plea was that the bill had been paid. For the plaintiff Mr Joynt, with him Mr Bruges. For the defendant Mr George Harpsr, with him Mr J. B. Gresson.

Mr H. P. Lance was chosen foreman of the special jury. Mr Joynt called the plaintiff, Albert Godfrey Saunders, who deposed to the fact that the defendant had endorsed a promissory note of W. F. Neilson, the plaintiff, for £2lO. The promissory note was not honored, and notice of the dishonor was given by the plaintiff to defendant, who said that he was unable to meet it, but would see Neilson and try and arrange matters. In cross - examination by Mr Harper the plaintiff was questioned very closely as to the exact date of the letter from the Bank, giving plaintiff notice of dishonor of the promissory note, and also as to the time when he forwarded notice of dishonor to the defendant. Witness went on to say that he had made a copy of the notice sent to the defendant, and had given it to his solicitors very nearly two months before the trial. The copy was made by him at the time of sending the original. He was positive that ho had sent the notices—one to Godby, tbe defendant, and one to Neilson. His solicitors issued a twelve-day writ, to which defendant put in a defence. A year’s delay occurred before any other step had been taken by his solicitors as against defendant. Mr Neilson died in April last, and after the action brought by plaintiff against Mr Delamain he urged his solicitors to go on. Witness never told defendant that he had received a certain amount on account of tbe promissory note. The transactions of witness with Neilson amounted from first to last to about £I3OO ; and he had discounted bills for him. Neilson was in the habit of paying witness sums on account. On March llth_, 1879, witness received £llO, which was pail to his credit by telegram. On the 30th March witness received another £IOO. Witness had money transactions with Neilson after the due date of the bill. They amounted in all to about £2l 10a. On March- 20th Neilson gave witness a cheque for £3OO, which he desired him not to present. Outside Delamain’s bill of £7OO, Neilson owed witness £605 10s, made up in various sums. On the Bth March he received £95, on the 11th £llO, on the 30th £IOO, and on July 10th £3OO. Giving him credit for these sums, Neilson owed witness £3OO 10s. In the case of Delamain, the jury had put this money, the £3OO paid in by Mr Gresson, as against the £7OO bill owed by him, but in the mind of witness he always put the amounts as against tbe whole general account, leaving Neilson debtor to the amount of 10s only. Witness did not remember getting a cheque for £67 19s in April, but he might have done so. He always gave notice of dishonor of promissory notes within twentyfour hours after receiving notice of the same from the Bank, because ho was told to do so by a lawyer. Witness did not know what was the meaning of the word “ arranged ” on the back of the bill, nor did he know in whose handwriting it was. A bill for£lso by Butler, with Neilson as acceptor, was paid partially by Butler giving him £95. Ho had sued Neilson for the balance, and judgment was entered up, but ho had not got any money. Witness had never been applied to directly for an account of money transactions with Neilson,

On re-examination by Mr Joynt, the witness gave the dates of the various advances made by him and the repayments by Neilson, and was also examined to show that there was no particular appropriation of any part of the credits paid to plaintiff by Neilson, all of which were on general account. Samuel Hallimore, accountant at the Union Bank of Australia, deposed as to the notice of dishonor of the bill of Godby and Neilson being issued to A. G. Saunders on the 12th March, by post. On cross-examination by Mr Harper, the witness produced the book showing the copy of the notice of dishonor sent to Saunders ; also the letter of the branch in Timaru advising the Bank of the dishonor, received on the 12th March.

This was the plaintiff’s case. Mr Harper opened the case of the defendant, and submitted that there must be a nonsuit, as there was no evidence that the bill had been presented at the National Bank at Timaru and dishonored.

Mr Joynt, in reply, pointed out that under 55th rule, if the dishonor was not denied it must be taken as admitted.

His Honor overruled Mr Harper’s objection.

Mr Harper said he intended to prove that no notice of dishonor had been sent to the defendant, as sworn to by the plaintiff. Ho then called

Michael John Qodby, the defendant, who deposed that he had endorsed a bill for one W. 11.I 1 . Neilaon for £2lO. He received no consideration for such endorsation. In the early part of June, Saunders was in Timaru, and witness saw him in the Qrosvenor Hotel. This was after the bill came due, but nothing was said about the bill. Afterwards he saw Saunders in the street, when he had been served with a suit, and told him that Neihon had said the bill was paid. Saunders took out some memoranda and read off—“ March 11th, 1879. £100; W. P. Neilaon.” Witness said that Saunders had not given him credit for this amount. On receiving the writ witness obtained leave to plead, and on a further stop being taken he put in a plea. Nothing further was done until July last, when he received a letter from plaintiff’s solicitor. Witness never received a notice of dishonor. He knew when the bill came due, and was sure that he had not received any notice of dishonor. Witness never received any letter like one produced. [Notice of dishonor put in.] Prom what witness was told ho understood that the bill was paid. Mr Joynt objected to this question. Mr Harper said he intended to prove that that the bill was provided for by Neilson. His Honor said that might be so, but Mr Harper could not ask the witness the question.

On • cross-examination by Mr Joynt, the witness stated that he had never admitted his liability on the bill. He did not think that, while understanding from Saunders that £llO should have been credited to him on the bill, that he admitted the liability of £IOO still remaining. Witness always thought the bill was paid, and knew nothing to the contrary till he was served with a writ. W. Bannatyne Oraig, clerk in the National Bank, Timaru, deposed that a cheque of W. F. Neilson for £llO to Saunders was paid on the 11th March, 1870, and on the 3rd April a cheque for £IOO was presented, drawn in favor of Saunders. The bill produced for £2lO was placed in the Bank, and witness marked it “arranged.” He did not know from whom ho received instructions.

By the Court—We put any answer on the back of bills that our clients request. The bill was not paid. Mr Neilson, 1 think, gave instructions to put the word “ arranged ” on it. The learned counsel on both sides addressed the jury at some length. His Honor briefly summed up, and the jury retired. After being absent for some little time, the foreman of the jury returned into Court and asked his Honor whether the jury could return a verdict, not being unanimous. His Honor, after consulting tne learned counsel, told the foreman that, as the law now stood, the jury must be looked up for three hours prior to a three-fourth’s verdict being taken. The foreman then retired, and the jury resumed their deliberations. After being absent for nearly an hour, the jury returned into Court with a verdict for £IOO and interest. The Court then adjourned until Friday at 10 a,m.