MAGISTRATES COURT.

Nelson Evening Mail, Volume VII, Issue 284, 28 November 1872, Page 2

MAGISTRATES COURT.

(Before J. Sharp, H. E, Curtis, and R. Pollock £sqs., J.J.P.) Yesterday. Levi James was charged with indecently assaulting Mary Ann Burbusb, a woman of unsound mind, wife of Robert Burbush of Waimea South. Prisoner was committed for trial, bail being allowed himself in £, 100, and two sureties £50 each. Catherine Plummer, charged by William Astle with using threatening and abusive language, was fined ss. and costs 14s. William Lewis, charged by William May with using profane and obscene language in a public thoroughfare, was fined ss. and costs 9s. Jones v. Millano. A compMnt was lodged against defendant that he was the owner of a bull dog which rushed out at the horse of the informant on the Haven-road, thereby endangering his life and limbs. Fined 10s and co3ts, H Z. N. Cldrke, William May, Emanuel liyder, Mrs Stewart, and Mungo Syme were sued for the amount of education rate due by them. Judgment in each case was given for the plaintiff with ds. costs. Harley Brothers v. The Wellington Brewery Company. The evidence was taken before the Resident Magistrate on Monday in this action, which was brought upon a bill of exchange drawn by the plaintiffs and accepted by defendants. The case for the former was that the defendants had ordered a parcel of hops and twenty-five bushels of malt to be shipped by the steamer Taranaki They were not ready for that vessel, but were shipped a few days afterwards by another steamer, the Rangitoto. The bill upon which the action was brought was accepted on presentation, but it was alleged by the defendants that on opening the malt it was found lo be usel- ss for brewing first-class beer, being slack, and made from inferior barley. The defendants thereupon at once protested the bill, and sent plaintiffs notice that they declined to complete the contract, and ultimately the malt and hops were sold by auction at Wellington, on account of whom it might concern. The following judgment was delivered yesterday by the Resident Magistrate : — This, is an action to recover the amount of a bill of exchange for £88 10s 2d, of which planting are the drawers, and defendants the acceptors. For the defendants it has been contended *' that the contract, being an executory one, the purchaser mignt either refuse to receive, or might return the article as soon as he detected its deficiency in quality, provided he had done nothing more in the interim than was necessary to give it a fair trial (jChitty on Contracts, 424; Street v. Blay, 2 B. and Aid., 456); that the contract was an entire one, there having been one order, one invoice, and one bill for both hops and malt, so that upon failure of part, the defendants had a right to reject the whole. (Levy v. Green,-28 L.J., Q. 8., 319.) Further, that having once shown a right to reject the whole and repudiate the contract, the consideration for which the' iblll was given wholly failed; and further, that even if the order was one that could be severed, then the consideration failed for so much. of tbe order the defendants had properly repudiated', namely, the price of the malt, which was an 'ascertained account, and which would so operate as a defence pro ianto." But the case of Street; v. Bray was an action for the price and not upon the security. So again, in the case of Poulton v.Lattimore, 9j B and C. 259, the action was for the;,price, no billor promissory note, having been given. v ;I do not think it ..has/ been/ proved: thatTlthereV" was ' a failure^ •'■ of .Vany ' Vpait , '.of . the contract, and that tbe defendants had therefore a right to reject ,' ;thec: • There, is; : sufficient

evidence that the malt was placed on board the steamer here in good condition and of fair /marketable quality, nnd tbat is plaintiffs were bound to do, and I think tfre^fects I that ihe defendants paid tbe freight, carted^tbe I goods away to their own premises, and accepted ' tbe bill are sufficient evidence of acceptaace to Baiisfy the statute. It has been ruled that when goods are to be delivered at a distance from the vendor, and no charge is made by . him for the carriage, tbey ; become the property of the purchaser as soon as they are sent off. And if the vt- ndor is authorised to select tbe goods and forward them to the purchaser, tbe selection by the vendor, and the delivery of the goods to the carrier, to he conveyed to the purcbaser. will have tho effect of transferring th« ownership and risk to .such purchaser, provided there is a binding contract in writing, and the selection is made according to theorders given (Fragano v. Long, 4 AB and C 221, and Browne v. Hare 29 L. JEx 6) It was endeavored to shuw for the defendants that the right to possession of the goods was conditional ou the acceptance of the bill.^ Had this been so, and the action one for the price, ie might have made a considerable difference,, but on Ihe facts as given ia evidence. I think th' 1 defendants have failed to prove, and the plaintiff* have flatly denied, that there was any such condition, nor do I think it material to this action whether there was or aot. It seems clear that where a bill of exchange or promissory note has been given for goods: the vendee has no defence even/vp tanto to an. action upon the bill on the grouun that the. goods. are of an inferior qua'ity. He may defend the action on the bill in toto, if brought by the vendor, where there has been a total failure of consideration in consequence of the goods being of no value, provided he, the vendee, has repudiated the contract. If there has been (and that is not proved to my satisfaction) a partial failure of consideration, that might have afforded a defence pro' f ditto if the action had been for the price, but it is otherwise in cases where a bill has been given for the price, an instrument of that kind being in its nature entire, and the only remedy, therefore, is by cross action. {Morgan v. Richardson, 1 Camp. 40 n., and Pye v. Gwynne, 2 Camp 34-6.) The judgment is, therefore, for the plaintiffs ibr £85 10s. 2d., and interest at the rate of eight per cent, per annum from 3rd September last, and £7 17s. costs.