DISTRICT COURT.

Hawke's Bay Times, Volume II, Issue 38, 20 March 1862, Page 3

DISTRICT COURT.

Wednesday, March 19. (Before J. Curling, Esq., Judge.) This Court sat yesterday for the despatch

of civil business. There were 12 causes on the list, ouly 2 of which were defended ; the rest of the cases being either settled out of Court or arranged before hearing. A jury was summoned for the last case, being the first required in any civil case tried in the province.

Reardon v. Woryan was an action brought to recover £26 7s. due on the defendant’s acceptance. The defendant confessed the debt, but disputed the costs, which, however, were ordered to be paid by him. Reynolds v. Douglass, an action for .£2l, also due on defendant’s acceptance, was settled out of Court.

Same v. McKenzie was also an action on an acceptance for £27 25., and judgment was given for the amount claimed and costs, payable by instalments. Davern v. Blair Richardson was a plaint brought to compel specific performance of an agreement to purchase a piece of laud, and was arranged between the parties. Newton v. Wilkinson was an action of debt for £79 6s. 3d. The defendant confessed the claim.

Newton another v. Wilkinson. This debt, £GI IGs. 5J., was also confessed. Same v. Villers was an action for £72 2s. 7d., which the defendant admitted to be due.

Charlton another v. Me.NalU / was an action for the value of a horse, and was referred.

Mr. Allen appeared for the plaintiffs in each of the above cases.

J. A. Smith v. Topping was an action of debt for .£9B. Defendant confessed. Mr. Wilson appeared for plaintiff. H. S. Tiffen v. Same was of a similar nature. Claim, £57 Bs., which defendant admitted. Mr. Wilson for jdaintiff. Barry v. Livingstone. Mr. Wilson, for the defendant, moved for a new trial of this cause, which was taken as undefended at the last sittings, on the ground of surprise, the defendant being unaware that the cause would then be taken. The application was supported by an affidavit of the facts and usual allegation of there being merits.

Mr. Allen, for the plaintiff, opposed the application, on the ground that there was no surprise—a term applicable only to evidence produced by one side of which the other side was ignorant, or which was unexpected. He contended that the defendants absence arose wholly from his negligence, and could not now be rectified ; and he pointed out that the plaintiff, having left left the Province and gone to Auckland, there would be considerable difficulty in granting a fresh trial here, occasioning the plaintiff the loss of time, trouble, and expense of coming down expressly. His Honor took time to consider his md"merit. Oliver v. Blair Was an action brought to recover the sum of £4l 10s., the price of an oven built by the plaintiff to a bakery belonging to the defendant. Mr. Allen or the plaintiff; Mr. B. Taylor for the defendant. The plaintiff agreed to build an oven for David Carswell, baker, the defendant’s tenant. He pulled down the old and had commenced the new one, when Carswell suspended payment, whereupon he declined to go on with the work. Carswell referred him to the defendant, and he accordingly saw Blair upon the subject in the presence of Mr. Garry, the blabksmith, when, after first hesitating, Blair, on Oliver’s declining to continue the work, told him to go on and promised to pay him. The plaintiff proved these facts, and called Garry, who corroborated his statement as to Blair’s promise to pay. In cross-examination he admitted having received £G from Carswell before the suspension. Mr. Dogherty proved having seen the oven, and that it was properly built and the charge reasonable. For the defence, Mr. Taylor submitted that the plaintiff should be non-suited for want of proof of the defendant’s liability. He argued that the liability, if it existed at all, was only that of a guarantee, and required to be in writing. Mr. Allen pointed out the difference between an original and a collateral guarantee, the latter only of which required to be in writing, and he urged that the liability set up was of the former kind. The contract sued on was not the contract with Carswell, which was determined by plaintiff, but the contract entered into with" Blair, when he instructed plaintiff to go on and promised to pay. -

The -Judge having decided that ?.ir. Taylor should proceed with his defence, he called the defendant, who admitted the main facts, but denied that he had ever agreed to pay ; he had only stated lie would do so if Carswell did not ; but in cross-examination lie

admitted that Oliver distinctly refused to go on with the work unless he, Blair, agreed to pay him for it. His Honor took time to consider.