DISTRICT COURT.

Globe, Volume XXII, Issue 2121, 10 December 1880, Page 3

DISTRICT COURT.

OHBISTOHUBOH. Thubsday, December 9. [Before His Honor Judge Ward.] FOBD, HEWTJIT, AND KABSDEIf T CONNELLY. Mr Harper for the plaintiffs, Mr Loughnan for the defendant. His Honor gave judgment for the defendant, with costs. The judgment was as follows : " The following are the material facts in this case. At the end of July last defendant owed plaintiffs £IOO for rent. He gave them a cheque of his own for £SO, and asked them if they would take one for the same amount drawn in his favor by his tenant, Michael Yaughan, but postdated, in payment of their rent. They assented, and gave a receipt as for rent. This postdated cheque was due on the 4th of August, but was not presented till the 7th, and was then dishonored. Notice of dishonor was duly given to defendant, and ultimately this action was brought to reoover the amount of £SO from him. Yaughan having disappeared after receiving a large sum of money at about the duo date of the cheque, after arranging with the plaintiffs that the cheque should be held over, an arrangement in which it is not proved that defendant concurred. Ho knew of it on tho sth August, but probably considered that it released him from further liability. Numerous cases have been cited to show that the acceptance by the landlord of a promissory note for rent, made by the tenant, will not deprive the former of his right to distrain ; but none are precisely in point with the present case, where the oheque of a third party is received. There can be no doubt, that if defendant was merely the endorser of the oheque, he would be discharged by operation of law, time having been given to the drawer, and it certainly appears to me that when the plaintiffs accepted this cheque there was an undertaking implied between them and the defendant that the oheque should be presented at its due date. Had they so presented it, and given notice of its dishonor to defendant, he could easily have recovered the amount from Yaughan, who was then in ample funds. But, having arranged to hold the cheque until Friday, plaintiffs did not actually present it until Saturday, 7th August, and notioe of dishonor was not received by defendant until Monday. I cannot decide that they are to be relieved from the consequences of their laches, by the fact that the cheque was paid to them by defendant for rent. It seems to me that this case comes under the old rule in Smith v Wilson (authority quoted), viz., that where a note, or, as in this case, the cheque of a third party, is taken for a precedent debt, it must be intended to be taken by way of payment upon condition that it be duly paid. But if the person accepting it doth not endeavor to procure payment, and the money is lost by his default, he must—and it is reasonable that he should—bear the loss. There will consequently be judgment for the defendant with costs. OBBW V PBATT (THE QTTEEN). Mr Holmes appeared on behalf of the plaintiff; Mr Joynt for the defendant. This was a claim of £SO, damages for alleged wrongful imprisonment. Mr Holmes stated the circumstances of the case, which arose out of the tramway and cabstand difficulty, the plaintiff, a cab driver in the employ of Mr J. Dalwood, having been arrested by defendant, a sergeant of polioe, on one occasion when he (plaintiff), by way of practical protest, refused to move from the stand at the Bailway station. Mr Holmes then called witnesses in support of his case, the evidence being raiher lengthy. Mr Joynt took a formal objection to the by-law put in evidence, on the ground that it did not indicate what time it was to oome into force. His Honor took a note of the objection. Fresh evidence as to the position of the cabstand was taken, Mr Joynt eliciting it in cross-examination of Mr Waikden. At the conclusion of plaintiff's case, Mr Joynt submitted that the Court must record a nonsuit, on the ground that the position of the cabstand was not in accordance with the regulations laid down. Had it been in the position prescribed by the by-law the tram would not have crossed it, and there would consequently have been no obstruction. Council on both sides having addressed themselves to the point raised, His Honor said the cabman had evidently committed an obstruction, the constable was therefore justified in the course he adopted ; at the same time it appeared clear that the cabman had acted in accordance with what he believed to be his legal right. Mr Holmes, in reply to the Court, said he would not elect to be nonsuited. Mr Joynt then called evidenoe pro forma. Mr James Godfrey Warner proved that the cabstand was not in the position desoribed in the by-law, being in fact 9ft. too far to the west, and 9ft. too far to the north. No further evidenoe was called, His Honor gave judgment for the defendant without costs. The Court then adjourned.