DISTRICT COURT.

South Canterbury Times, Volume XV, Issue 2064, 4 November 1879, Page 2

DISTRICT COURT.

Timaku —Monday. (Before His Honor Judge Ward). CIVIL CASES. Evans v. Gibson. —Claim, £134 16 Bd, for storage of grain. Mr Joynt appeared for the plaintiff, and Mr Hammcrsley for the defendant. The opening of counsel shewed that the cause of action arose originally from a matter which had been arbitrated upon. The particulars were that in March, 1878, the defendant—Gibson—made an agreement with the plaintiff to supply him with a certain amount of wheat, the value of which amounted to £l6Ol 14s sjd, as per sample submitted, clause to this effect being inserted in the deed of agreement of purchase. Delivery of the wheat was taken by Evans, but finding a portion of the same not up to sample standard, he declined to receive it; this balance remaining stored in his grain-shed for some months. Gibson then instituted proceedings in the Supreme Court for the sum of £530 4s 3|d, the value of the grain refused —Evans having paid £lO7l 10s 2d to him for that accepted by him. This claim was ultimately referred to arbitration, the award given in that matter being to the effect that the plaintiff, Gibson, was not entitled to the amount sued for. Costs were awarded with the arbitrators decision. The grain, however, was permitted to remain for some time in the store owned by the defendant—the plaintiff in the present action—but was ultimately removed on an order from Gibson, presented by Mr Henry Green. The plaintiff now sought to recover the amount of £134 16s Bd, for storage of the grain. The defendant admitted indebtedness in the sum of £3O storage,incurred after the arbitration, but held that the decision by the arbitrators was a bar to any claim for storage previous thereto, the matters decided being “ all in deference between the parties.” Mr Joynt called the plaintiff, and proceeded to elicit evidence relative to the original agreement which had been made for the delivery of the grain. Mr Hammersley objected to the original agreement being imported into the case, as did the plaintiff’s claim hinge upon that, the question of liability had been closed by the decision given by the arbitrators. Mr Joynt. replied that the question of storage was not contained in the award. His Honor asked if any part of the present claim was due on the original contract ? • Mr Hammcrsley replied in the affirmative. Mr Joynt contended that the claim, or any part thereof could not have been incurred in connection with that submitted to arbitration, as until the award had been given it was impossible to say that the present defendant was liable for storage gad therefore it was

an utter impossibility that a claim not incurred should be placed before the arihltrators.

Mr- Haraersley argued that the original agreement or anything affected thereby was out of the jurisdiction of the Court.

Mr Joynt invited Mr Hammerslcy to exhaust himself on the argument, following which he would reply to his learned friend.

Mr Hamersley quoted the case of of Cavanagh v. Sack in support of his objection. Mr Joynt replied by referring to “ Russell on Awards,” 1878, quoting judgment in Rees v. Walton, page 258, part 2, chapter 5, Section 4. He also referred to the case of Creswick v. Harrison, page 271, in the same authority and to Law Reports No- 5, Appeal case, in support of his previous remarks.

Mr Hamersley said his learned friend’s theory that the storage of the grain could not be included in the abitration was upset in the decision in the case of Dunn v, Murray, given by Cheif Justice Lord Tentirton and reported in Bradwell and Creswell. He also quoted East’s Law Reports No. 15, page 212, Smith v. Johnson, and the case of Dykens v. Jay, contained in Bingham on Awards, page 519, in which Chief Justice Tyndall held that a claim similar to the present one was merely a mild form of applying for an attachment and therefore discharged the rule with costs.

Mr Joynt in reply to Mr Hamersley, quoted the New Zealand Jurist, in which a report is given of a decision in the Dunedin Supreme Court setting aside the adjudiction in the case of Cavanagh v. Sack, quoted by Mr Hammersley. His Honer reserved his decision upon the point in question till Monday next. The evidence of the plaintiff John Mce and James Granger was heard on behalf of the plaintiff and that of defenhaving been taken the decision of the court was reserved. Henry Holloway v. Davies—Claim £2OO. Mr Hamersley for the plaintiff and Mr Knubley for the defence. This was reserved for judgment upon argument upon the question if the amount of a mortgage affected on certain agricultural produce by the defendant, should have been specified in the sale note in order to validate the contract. George v. Kimber —Claim £lol6s 2d. Mr Knubley for the plaintiff and Mr White for the defendant. The evidence of plaintiff was taken and the case was then adjourned till to-day. IN BANEEUPTCY. An order of discharge to Thomas Farrant was granted on the application of Mr Austin. An application for a similar order was made by MrEeid in re W. and J. Milne Mr White opposing on behalf of the creditors, His Honor adjourned the application as there was no trustee in the estate and a meeting of creditors to consider the application had not been held.