WEDNESDAY, MARCH 4th, 1868.

Marlborough Express, Volume III, Issue 106, 7 March 1868, Page 7

WEDNESDAY, MARCH 4th, 1868.

BROWN AND SUTHERLAND V. B. BOM FORD. MIC" Nelson appeared for the plaintiff, and Mr. Moffitt for defendants, Mr. Moffitt: By counsel of my friend, it is agreed that a set-off should he taken as served. The action is for £3 7s 4d, and there is a set-off of £7 6s XOd. in case of an appeal being wanted, it is agreed that £7 be the issue. The £7 6s lOd was the amount of an order given by James Gray upon Brown and Sutherland, in whose employment he had been. Immediately after Mr. Romford’s receiving the order, the plaintiff (Mr. Sutherland) came into his shop. Defendant presented the order, and asked if it would be right. Mr. Sutherland gave him to understand that he had money enough of Gray’s in his hands to take it up. The law was that if an order was presented, it should either be accepted in writing or refused. In a legal point of view, defendant could not maintain this set-off; but if the Court made out that the defendant had a good claim in justice, and such a claim as the Court might exercise a discretion under the Act, its decision would hold good. The plaintiff had agreed to accept the order, and as he held Gray’s money as wages, be was bound by law to detain the amount in his hands. By the Resident Magistrate’s Act, the Court was not bound to decide on point of law, but so as the decision was. consistent with equity and good conscience. If so, this case must be in favour of the defendants.. There was nothing to show the plaintiffs were deceived, and the defendant relied on Sutherland’s word, which he was in duty bound to keep. The Magistrate was not bound to look into law for the subject before him ; but so long as the decree was in accordance with good conscience, it would be maintained. If persons in business go from their word, no understanding could exist between them. Relying upon Sutherland’s word, his client had not asked his signature to the order. Sutherland stated he had £lO of Gray’s in his hands. If he led Mr. Bom ford to believe he would pay, whilst he did not intend to do it; he did him a great injustice, and perhaps injury. Mr. Moffitt: The subject did not include a point of daw. It was not a case coming under the Act.

Mr. Bomford ; lam a storekeeper, resicitng^iv r ~Eilenheim. A person named Gray was in the employ of Brown and Sutherland in. the month of December

lust. On the 24th, an order was drawn by him on the firm of Brown and Sutherland, for an amount due to ms for goods supplied, I presented the order in about twenty minutes after to Sutherland, who said, “ Oh yes, all right; there are £lO due to him.” I never thought it necessary to have his signature, thinking I was deal* ing with a straightforward man A week after [ asked him when he would pay the order. He said he would not pay it all. He never repudiated the first position he held in the matter. F have been unable to recover that amount from Gray, by accepting plaintiffs promise at the time, My wife was present when he made it. Mr. Nelson : It is an established principle of law that one party cannot be u guarantee for another, except in writing. The Magistrate ; I must give in to law. Ft is a principle of law that it can’t be laid aside. It is laid down in law that these documents be signed. If Mr. Sutherland admitted the document, it might be different. Mr. Nelson : Mr. Sutherland would have paid if he had had money in his hands to do so. The man was only a fortnight in their employ. I consider myself wrong to go further into the case. I would not let the document go in. I repudiate it altogether. The Magistrate : I don’t see that an equity claim applies at all, when it is so clearly defined by the Merchants Act. It is very desirable that the rule should be carried out, and if Mr. Bomford had asked Mr. Sutherland to sign the order, it would have been the proper thing. One Magistrate might decide in these matters from conscience, and another by law, which would utterly stultify Court proceedings. It is better for mercantile men themselves that they should follow a more regular course of action. Mr. Nelson: I apply for costs, your Worship, for two witnesses. Mr. Moffitt : I oppose the application, and hold that any person summoned as a witness may get expenses, but no other. These were not subpoenaed. The Magistrate : I am not aware of any exception from costs. It holds the same as if witnesses had got a subpoena. Whether witnesses w'eie material to a case is a different matter. * Mr. Moffitt: The clause defines that any person who shall be summoned and who shall appear, shall gain expenses. The Magistrate : That clause cannot decide if the witness is not essential, for •then he is entitled to no costs. Mr. Moffitt: We can’t over-ride the Act. It stated shall be summonsed and shall appear The Magistrate : Suppose in this or any case, a dozen witnesses had been subpoenaed, would it not be for the Bench to consider whether those witnesses were essential, and therefore whether they should be paid or not. A clause said that costs should be apportioned as the Bench saw fit. He did not see that the witnesses in in this case were necessary at all. The document was a witness in itself. The document was so evident in itself as not being worth the paper it was written on, and the stamp was only thrown away. Judgment for plaintiff, with lls Court fees, and £1 Is professional costs, jv\ RICHARD BUTT V. JOSEPH CLARK. Judgment for plaintiff, with costs. .JLi RICHARD, BUTT V. WILLIAM CLARK. A Mr. Moffitt appeared for plaintiff. Defendant considered the amount excessive. The claim was for £3 16s, for passage of his wife, child, and luggage from Wellingion.- He believed 30s. was the usual charge for an adult. The Magistrate: It is not usual to charge for a child of four or five months. Mr, Moffitt, in consideration of his not being in a position to substantiate the-b| propriety of the charges, would consent to accept 3*Us, and costs £1 Is 6d. Defendant assenting, judgment was given accordingly;