RESIDENT MAGISTRATE'S COURT

Nelson Evening Mail, Volume XIV, Issue XIV, 2 April 1879, Page 2

RESIDENT MAGISTRATE'S COURT

["Before L. Broad, Esq., R.M.] Burrell v. CaNham. Action to recover £20, balance of account for fruit; &c. Mr Bunny appeared for the plaintiff, and Mr Pitt for the defendant. The evidence of defendant had been taken at Auckland, and Mr Pitt vow submitted that it was evident the contract, if any, had been made with the old firm of Burrell and Moller, and not with John Burrell, and asked that the plaintiff be nonsuited. Mr Bunny asked the Court to amend the plaint and summons under Section 80 of the H.M Act, 1867. His Worship said: The plaintiff, John Burrell, seeks to recover in 'hia individual right. It is objected that the contract was made with a firm of which he was then a member, and that the other partner ought to have been joined. This is admitted, but the Court is asked to amend the plaint and summons by adding the other name. Section 80 of the Resident Magistrates Act, 1867, is identical with Section 57 of the 19 and 20 Vie, c 108, and does not give the Court power to substitute one plaintiff for another, which such an amendment would amount to. In the case cf Mills v. Scott 8 L.R.Q B. p. 496, where the County Judge had struck out the name of '■ J. M., the luspect'or appointed by the local authority," and substituted "the local authority for, &c," the Court of Queen's Bench decided that the amendment was rightly made because it was merely an amendment of the description of the plaintiff, and was not a substitution of one plaintiff for another. Under the English County Court, and the New Zealand District Court Rules, there is provision for adding the name of a plaintiff who has not been joined, but he must consent, and, failing that, judgment of nonsuit is to be entered. There are no rules under the R. M. Act 1867, and, as before remarked, Section 80 does not enable the Court to make an amendment of this description. As defendant's counsel has urged, his defence to an action by John Burrell is, that he made no contract with him, but his defence to an action by Burrell and Moller may be, aud in all probability will be, very different. Plaintiff nonsuited with costs.