"JUDGMENT BY CONFESSION."

Pukekohe & Waiuku Times, Volume 7, Issue 359, 12 March 1918, Page 2

"JUDGMENT BY CONFESSION."

Question of Procedure

Interesting Decision* j» Mr Wyvern Wilson, 8.M., at the | Pukekohe Court last Thursday gave : his reserved decision in the case mentioned at the previous Court in which he was called upon to determine whether "a confession" of y debt by a defendant precluded '" further actfon on the part of a plaintiff or whether a claim could nevertheless be amended. , *~ In the action at issue James v Devereaux,now of Glenbrook and * late of Patumahoe, was the plaintiff and he had originally dinned the . sum of £.50 from the Joseph Henry, *! Patumahoe, in respect of a (two-fifths) of deferred payments for* *< milk made by the New Zealand/ Dairy Association to defendant JfK whom plaintiff had up to the wi of ; last season been milking on shaist. i In the alternative plaintiff had asked * that defendant should file an account of all payments made by the Dairy Association to him and sought judgment for whatever sum might be found due to him (plaintiff). When the matter was argued a fortnight previously Mr A. Hanna the plaintiff and in asking for tuft % judgment to be set aside or for leave >* to amend the claim ptated that since \ the commencement of the action the | plaintiff had found that the sum of I ■ £95, instead of £SO, was due to him. V Mr Hanna also submitted that no judgment existed until the same had Tj| been entered up by the Court despite any " confession •'' or payment Mr J. Q. Haddow, for the defendant, urged that a judgment was the natural sequel to a "confession," adding that the defendant had paid ** the £SO in good faith although he * considered he had a good answer to the claim. -^

In his decision as given on Thursday the Magistrate said the facts were unusual. The defendant had lodged in the Court a confession of a claim for £SO and £2 costs and applied to the Clerk of the Court to enter judgment thereunder. The . Clerk declined to do so as the con- ' 1 taiion had not been accepted by the p aintiff. The defendant thereupon paid into Court the sum of £52. The plaintiff in the first part of his motion asked for the judgment to be set aside but he (the Magistrate) did not think there was any necessity for that. Under section 100 of the Magistrate's Court Act judgment might be entered up and signed by the Clerk of the G>urt upon the application of the plaintiff anduponthe lodging of a written confession given by the defendant. There did not appear to be any other provision for judgment to be entered except by the Court at the hearing. In that case there was no such judgment existing and therefore the plaintiff's motion to set it aside was superfluous. In considering the motion to amend the claim and the effectthereon of the payment made into uourt it was necessary to examine the plaintiff's claim and to ascertain the nature of the action. He considered that the plaintiff intended to claim on two causes of action alternatively, viz, (a) damages for breach of contract, (b) an account to be taken and judgment for such amount as might be found to be the ,' contract. He (the \Ma]?fcifflJe) * thought that where a pl«jtijf menced an action in claimed relief on two causes of action, one of which was other than a claim for a certain sum, he had a right for the case to go to the Court for its decision as to which was the appropriate relief, if any. The case of Nicholls v. Bvans, Law Reports 22, chap. 93, was authority for the ruling that payment into Court did not dispose of an action for account. The payment into Court not having disposed of the action the plaintiff was entitled to go to trial and might ask leave to amend his pleadings He (His Worship) accordingly granted plaintiff leave to amend, plaintiff to pay defendant's costs of the motion (£2 2s) and the hearing to be adjourned to the 21st inst.

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