MAGISTERIAL.

Globe, Volume XXIII, Issue 2236, 28 April 1881, Page 3

MAGISTERIAL.

CHRISTCHURCH.

Wednesday, April 27. [Before J. Nugent Wood, Esq., R.M.] Civil Cases. —Marks v Young, £SO 3s. Mr Holmes appeared for plaintiff; Mr Spackman for defendant. This was a judgin' nt summons for tho amount of a judgment obtained, £45 2s, with costs added, £5 Is. In answer to Mr Holmes, defendant said since tho judgment was obtained ho had assigned all his property for the benefit of his creditors. On another question being put by Mr Holmes, Mr Spackman said that the first answer given by defendant was sufficient, the proceedings, so far as that Court was concerned, must drop. Mr Holmes submitted that his friend had no locus standi in this matter. The proceedings now taken were under tho Imprisonment for

jjouu auks uuci zu t* uuuiur wus required to appear and personally make answer to interrogatories as to his condition, and to show cause why he should not be sent to gaol, and tho Aot said nothing about the intervention of a solicitor to prevent it. It had been decided in Victoria that a solicitor could not be allowed to interfere. Mr Spackman submitted that neither under the R.M. Courts Aot nor the Imprisonment for Debt Aot, was the debtor precluded from employing professional assistance. It would be a monstrous thing if he were to be open to examination by a learned barrister like his friend, and also the magistrate, by whom he might be led to criminate himself, without being able to protect himself by skilled advice. Mr Holmes had better produce these cases from Victoria before quoting thorn further. After some further discussion, Mr Holmes said he would waive the point, without promising not to raise it at some future time, when ho would be prepared to produce the cases he had named. The examination of Young then proceeded. He said all tho property ho had before his assignment consisted of an interest in thirty-six acres of land, which he had sold to Mr Perceval, of Perceval and Joynt, for £l7O. The property was worth a good deal more, and there was an agreement that he should receive whatever surplus over the £l7O there might be when sold by Mr Perceval, Defendant had, at one time, been possessed of a farm worth £16,000 or' £17,000. He had been in litigation concerning this farm for two years. Ho had paid to Perceval and Joynt a bill of costs on account of those legal proceedings amounting to £7BO. Part of tho money he got from Mr Perceval went towards paying that bill. He was now living in a bouse at St. Albans, the rent of which was paid by his stepson. Defendant was not earning anything himself. Plaintiff had sued him in this court and in the District Court in respect of certain furniture, for which he owed the plaintiff. While the ease was pending in tho District Court he had given a bill of sale over the furniture, which was the cause of the action, to one Allmer for £75. He got £BO from Allmer on that account. The difference from the sum named in the bill of sale was caused by accident. Allmer had been his servant man j wages at the rate of £SO a year were due him for more than eighteen months. The money was advanced by Allmer, notwithstanding the sum owing to him as wages. The bill of sale had not been negotiated to prevent Marks reaping the benefit of a judgment if he got it. In crossexamination defendant said be had been iniquitously deprived of his estate. He had borrowed large sums of money from plaintiff, for whhh he had boon charged interest at the rate of 120 per cent. His Worship—“ For a man who has been living on a lawsuit two years, and then came out of it £BOO to the bad, this does 'not seem to be too high a rate of interest.” Defendant explained that be had been losing, not living, on a lawsuit for two years. Mr Spackman, for the defendant, put in a deed of composition which had been filed in the Supreme Court on April stb. It had not been completed, but the Act said that its filing protected the debtor from any warrant or process, except writ ne exeat, issuing from the lower Court. Mr Holmes, in reply, said the Bank* ruptay Act, on which the other side relied for protection, only referred to the property and not to the person of the debtor. His client in fine sought the imprisonment of the defendant, whose conduct as to the giving of the bill of sale quite warranted those proceedings.' His Worship said he might say at once he would not make an order for imprisonment. After some discussion, an order was made adjourning the case for two months, the judgment summons to be then revived if the deed of composition has not been duly completed. Scarlett v Whitley, claim £42 15a. Mr Holmes for plaintiff, Mr Stringer for defendant. Plaintiff had been partner with defendant and a man named Dacre in the building of some houses. A disagreement bad arisen, and the partnership was dissolved, Scarlett having been

paid out, and the remaining partners undertaking to pay all accounts owing. In the currency of the partnership plaintiff had separately accepted a bill for goods for their common use on the work ; the bill fell due after the dissolution, and plaintiff had to meet it. The above was the story of plaintiff, and he now sought to recover from defendant the amount of tho bill. Mr Stringer asked for a non-suit, because tho unit was for cost of goods sold and delivered, while defendant had neither bought or received them, and secondly, Whitley and Daore should have have been joined in the suit. Mr Holmes said, either or the whole of the members of a firm might be sued for joint debts, but to satisfy Mr Stringer, he would ask for the plaint to be amended so as to make tho claim for money paid for goods, &0., and Whitley and Daere joint defendants. His Worship agreed to this. It was done, and the case went on. Tho defence was that Whitley had never consented to the dissolution, and that the settlement on dissolution had been made conditionally. Any mistakes or omissions were to be reotifled afterwards. Tho particular bill in dispute was either overlooked by or unknown to defendants. When tho work was finished it was found that there had been a loss on it of £IOO. Defendant now resisted paying the present claim on the grounds that the partnership had not been dissolved, and that plaintiff was jointly liable for the amount claimed. His Worship said the evidence obliged him to conclude that there had been a dissolution. Judgment for plaintiff, with solicitor’s fee £3 3s, costs of Court £1 ss, and expenses of two witnesses £l. Bray v Buxton, £4O 6s 6d. Mr Maude for plaintiff, Mr Button for defendant. Plaintiff’s case was that defendant, his landlord, agreed to make certain additions to a house occupied by plaintiff, for which the latter agreed to pay a stipulated increase of rent, which was, however, not to bo payable until the additions were completed. The alterations were to be mode to suit the tenant and to be

carried out under bis directions. Alterations were made, but they were not done as required by the tenant, and the workmanship and material in them was bad. Plaintiff consequently refused to take possession of the additions, which consisted of two rooms, or to pay rent for them. This had gone on for six months. The landlord (defendant) at the end of that time sued for the rent.

and the amount was paid by plaintiff into Court. Plaintiff now claimed, in the amount above stated, the rent so paid with the costs of the action added, and for damages sustained by the non-completion of the additions as per agreement. Plaintiff gave his evidence, and called his father, W. H. Bray, who produced a ground plan and models of the buildings; Mr F. Si route, architect, who produced a report as to the state of the buildings. His inspection of them occupied seven hours, and the report was proportionately elaborate and lengthy; a great many things were bad. J. Wood, a builder, corroborated the evidence as the bod materials and workmanship, saying it would cost £25 to put into good order. Mr Button, replying, said the claims for rent already paid was absurd. It was a well-known maxim in law—that any persons who paid money, which payment they believed themselves entitled to resist, could not set up any claim afterwards to it. _ By paying the rent they had admitted their liability. As for

what it would cost to put the place into the state desired by plaintiff, that was no measure of damage. If plaintiff had actually spent money in completion, then he could claim for that. As the case now stood, if damages were allowed it could only be for the inconvenience suffered, which might be fairly assessed by tho agreement. Plaintiff was to pay 10 per cent, on its cost as additional rent if the addition was made, and surely he could not expect to receive more than 10 per cent, if the addition had not been made. He called defendant who stated that the additions as agreed to by him and those now required by plaintiff were quite different. He had done what he had promised to do in a workmanlike manner. R. W. England, a builder, stated that the work was well done. Matthew Robson, the workman on the job, deposed that the work was carried out according to the plan of Mr

Bray, who wished to alter it after it had considerably advanced. Daniel Duval and Thos. Cooper and ‘John Santon, carpenters, testified to the sound and workmanlike character of tho work. [At this period, it having become too dark to see his notes, our reporter left the Court. The case was afterwards settled by a judgment for plaintiff for £6 10s and costs, £4 Us.] Hobday and Co. v W. Kirkwood, 7a 6d j judgment for plaintiff by default. Church Property Trustees v Innes, and Henry and Co. v Bressel, wore adjourned till May 4th.