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DISTRICT COURT, GISBORNE.

Yesterday. [Before His Honor Judge Seth Smith.] Mullooly v, Jury. His Honor delivered the following judgment in the case of Mullooly v. Jury:— This is an action brought to recover th* sum of £165 2s 6d, being the balance alleged to be due from the defendant to the plaintiff on an account containing a large number of items, chiefly consisting of goods sold to defendant, and sums of money lent and advanced. The gross amount sued for is £3OO 2s fid, but this alleged to nejreduoed to a sum within the jurisdiction of this Court by two payments of £ll7 and £lB respectively. It seems to me that the ultimate decision in this case depends upon the question whether these payments, for which credit is given in the particulars, were or were not in fact payments made by the defendant. As to the item of £lB it is admitted by the plaintiff that it was paid to him not by the defendant but by the Government, whose agent the defendant was for certain purposes at least. The amount represents the value of food supplied by the plaintiff to certain Natives with whom the Government had entered into negotiations for the purchase of land on the East Coast; and the Government have recognised and discharged their liability to the plaintiff in that respect. As to the other item, viz., £ll7, the evidence is conflicting. The goods and sums of money in respect of which the payment was made were supplied and advanced to the Natives for the most part upon orders in writing signed by defendant, and plaintiff’s contention is that upon these orders defendant has made and intended to make himself personally liable. The plaintiff says that the defendant undertook to repay him out of monies that would be coming into his hands from the Government, in order to pay the Natives for their respective interest in the land, and that before paying to each Native the amount due to him, the defendant would deduct the amount for which plaintiff had given credit, and pay what was so deducted over to the plaintiff. And in support of this the plaintiff alleges in his evidence that the sum of £ll7 was paid by the defendant in a lump sum, the payment having been made in the plaintiff’s own house, and no Natives being present at the time. The defendant gives a different account of the transaction. He denies that in giving the orders he intended in any way to render himself personally liable. He alleges that these orders were given by him at the plaintiff’s request for the purpose of identifying these Natives to whom money would in all probability be coming from the Government and to whom therefore the plaintiff might safely give credit. He also says that when the money came into his hands for distribution among the Natives, he gave notice of the fact to the plaintiff, and that at the time when the money was paid over the plaintiff was present with his books, and as each Native received his share, the plaintiff demanded payment from those whose names appeared in his books, and in many cases, though not in all, received payment. I do not know that it is necessary for me to go through all the points of detail in the evidence which have led me to the conclusion at which I have arrived in estimating the probable truth of these two conflicting statements. If I must accept the plaintiff’s evidence on this point, it would still not be conclusive that the plaintiff was entitled to recover the amount claimed. It would then be necessary for me to consider the other points that have been raised on behalf of the defendant. If the defendant's evidence were true, there would be an end of the matter, for it is clear, on that supposition, that the sum of £ll7 was not paid by the defendant on account of the alleged debt, and therefore could not be relied upon by the plaintiff for the purpose of bringing his claim within the jurisdiction. Looking at all the circumstances of the ease I have come to the conclusion that th* defendant's statement is the more probable, and I feel strongly confirmed in that conclusion by the fact omitted on both sides, that a commission of 10 per cent, was agreed upon and actually paid by the plaintiff to the defendant tn respect of these very transactions which form the subject matter of these actions.

I am of opinion, therefore, that the original alleged debt being beyond the jurisdiction of this Court, and the payment relied on being of such a kind as not to reduce the amount within the jurisdiction, the cause must be struck out, with costs, £lO.

Permanent link to this item
Hononga pūmau ki tēnei tūemi

https://paperspast.natlib.govt.nz/newspapers/PBS18830125.2.8

Bibliographic details
Ngā taipitopito pukapuka

Poverty Bay Standard, Volume XI, Issue 1258, 25 January 1883, Page 2

Word count
Tapeke kupu
802

DISTRICT COURT, GISBORNE. Poverty Bay Standard, Volume XI, Issue 1258, 25 January 1883, Page 2

DISTRICT COURT, GISBORNE. Poverty Bay Standard, Volume XI, Issue 1258, 25 January 1883, Page 2

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