RESIDENT MAGISTRATE'S COURT.

Temuka Leader, Issue 2156, 29 January 1891, Page 3

RESIDENT MAGISTRATE'S COURT.

Geralbine— Tuesday, Jan. 27, 1891

[Before C. A. Wray, Esq., R.M.] CBTIL CASES. 1 N. Dunlop and Co. v. H. P. Jones —Claim £lB 16s 3d. Mr '£. Wilson Smith for plaintiff. N. Dunlop, of the Irm pf Dunlop and Co., Geraldine, gave evidence as to having a branch business at Hilton, of which Thos. Twigg was manager. On the branch being closed Twigg took over the book debts under an arrangement. There was no assignment. A a far as witness knew the account was perfectly correct, and he had received no money on it except £2 by an order on Messrs Moody and Ziesler. Defendant had never disputed the account.

In reply to the defendant, witness said he was positive he had received no money from him at the time he received the order on Moody and Ziesler.

In reply to the Bench, witness said defendant may have done t> little blacksmithing work at Hilton, but that account would be settled by Mr Twigg. Any contras were taken off when the account was rendered, and defendant had made no objection to the account till he was summoned. He had always promised to pay when he could. Thos. Twigg deposed to supplying the goods. Any payments by cash or by contra were credited in the bill. Defendant had never objected to the account till he was summoned.

In reply to the Bench, witness said the store at Hilton was closed about Sept. 12, 1887. The matter had been allowed to stand over so long because defendant had promised to pay the amount as soon as he could. The goods had been supplied by witness or his wife, and defendant had never objected to the account. H. P. Jones, defendant, sworn, said the account had never been rendered to him since the store closed till be got the summons. He objected to a number of items, one of which he specified. He contended that he paid Dunlop £2 in cash the day he gave him the order on Moody and Ziesler, but this had not been credited. Had got no receipt for it at the time. Had asked Dunlop then for a statement as to how they stood, as he (Jones) had a contra against Dunlop for blacksmithing. Dunlop had said there was only a trifle between them, if anything, and on this assurance had not pushed for a statement.

Annie Jones, wife of defendant, deposed to being present when Jones handed Dunlop the order on Moody and Ziesler. She was certain £2 were also paid to Dunlop. Two orders were handed to him and two one pound notes.

N. Dunlop, recalled, was positive be had not received the order. There was only one order given. T. Twigg explained the item taken exception to by defendant. His Worship it was a pity the matter had not been gone into at the time. A long period had now elapsed. The evidence of Mrs Jones showed that her memory was not quite clear as to the £2, as she swore positively that two orders were given, when in reality there was only one. Judgment for plaintiff for the amount claimed and costs. P. Kyan v. J. Mabin—Claim £l4 14s 6d,"for 31 lambs at 9s 6d.

Mr Hay for plaintiff. The sum of £l3 19a was paid into Court, and the dispute was as to whether the lambs were sold at 9s or 9a 6d each.

P. Evan, plaintiff, said that Mabin called about the lambs, and agreed to give 9s 6d each for the pick. He picked out 31, and when they went to the house to get the cheque Mabin wrote out one for 9s per head. Plaintiff refused to take this, as, he said, the sele was at 9s 6d per head. Defendant said he would not give 9s 6d, and told plaintiff he could take his lambs back. Plaintift went after the sheep, but when he brought them back defendant refused to let him have the lambs back.

0, G. Breadley, storekeeper and butcher, Hilton, gave evidence as to the value of the lambs, which he considered were worth 9s 6d each.

J. Mabin, defendant, sworn, said he agreed with Ryan on the 7th inst. to take the lambs at 9s per head. He went for them on the 15th, and when he tendered a cheque at 9s per head plaintiff refused to take it, as, he said, the sale was at 9s 6d per head. Witness refused to let Ryan have the lambs back when he wished to take them, because he (witness) had booked them at freezing works, and was liable to a fine of 10s per head if he did not deliver them.

Mr Yerity, who knew the lambs, considered they were worth about 8s 9d or 9s at the time. Based his calculation on the price given for lambs at the time. When Ryan refused to take the cheque at 9s Mabin said in an offhand manner he could take the lambs back, but afterwards refused to let him do so. His Worship said there was evidently a misunderstanding between the parties, one believing he was selling them at 9a 6d and the other that he was buying them for 9s. He considered that when the misunderstanding became apparent, and plaintiff was willing to tafce back his lambs, defendant had the option to either let him to do or himself to pay the 9s 6d. i Jndgtnent for the amount claimed, I with costs and solicitor's fee, less the

amount paid into Court, would be given. A. Bates v. G. Borrell—Claim £l2, for the return of a chestnut filly taken from plaintiff. and 30s for loss sustained through the seizure. Mr Hay for plaintiff and Mr White for defendant. All witnesses were ordered out of court. The case occupied an hour or two. Mr Hay said the facts of the case were as follow: —Mr John Scobbie, Kakahu Bush, had a chestnut filly which he wished to chsp for a horse that would go in harness, and went to see Bates with the view of making a chop. On the following Sunday morning Borrell came to him and said he had heard that he wanted a horse to go in harness, and that he (Borrell) had brought one that he thought would suit him. Scobbie knew nothing about horses, but had a look at the animal. It was put into the trap and was driven a short distance down the | road, appearing to go all right. The \ two had a discussion as to the amount to be given to boot, and finally it was agreed that Scobbie should give 10a along.with the filly. Scebbie wanted a trial before concluding the matter. The arrangement was finally made that Berreli was to take away Scobbie's filly and leave the mare, Scobbie to pay the 10s between them and to have a trial of the mare, and if she suited him they were to exchange receipts, Upon Scobbie putting the mare in harness, and trying her he was very much dissatisfied, and the following week took her back to Wigley's station, where Borrell was working and returned her, and took back his chestnut filly. He then went to Bates to make a chop, and took in exchange Bates's trap horse and gave Bates £4 to boot. Borrell, holding that Scobbie had no right to a trial, went and seized the filly and had had her since. The question was whether there had been an actual sale by which the title to the horse passed to Borrell or not.

A. H. Bates, laborer, Geraldine, deposed to the chop between him and Scobbie, whereby he became possessed of the filly and £4 to boot, in exchange for his trap mare. Borrell and a young man named Angus McKay had come to a friend's house where he was at the Kakahu Bush, and taken away the horse in spite of witness, Borrell claiming the horse as his. Witness had had to give his other horse double work since the filly had been taken, and had reduced it more than the 30s claimed, At the time of seizure Borrell had offered to take £3 to square the matter. Plaintiff refused the offer. He afterwards saw Sobbie, and told him of what had taken place, and told him he would have to see about it. He offered to give Scobbie 30s towards the £3 asked for by Borrell. He and Bcobbie afterwards waited on Borrell and asked him if he would stand to his offer, as they did not wish to go to law. Borrell decided to see it out,

John Scobbie, farmer, Kakahu Bush, deposed to Borrell coming with the mare, and offering to sell or chop her. They tried her, and she appeared to go fairly well. Borrell said she was 9 or 10 years eld, not more than ten. The mare travelled at a fairly good pace for the distance they tried her, and Borrell said she would keep up that pace to Timara. It was decided that he should have a trial of the mare, and if she suited he was to give his filly and 10s to boot for her. The arrangement was made at the house, where witness said he would give Borrell the 10s and his filly now, and if the mare suited him they would exchange receipts. He was perfectly sure this was the agreement. When he tried the mare he had to make three Btages of the journey to Timaru, feeding twice on the road. He came back the next day, when it took him six and three-quarter hours to do the journey, not counting stoppages. In addition to this she could not eat her oats, but after getting them into her mouth had to drop them again. Judges of horses said Bhe must be at least 17 yearfl old, and perhaps 27. He took her to Wigley'e, where Borrell was shearing. Saw his own filly there in the paddock, caught it, and sent it home by his son, and at dinner-time told Borrell he had brought the mare back. Borrell warned him not to take the filly, but he told him be had already done so, Afterwards chopped the filly with Bates, as stated by Bates. Mr White subjected witness to a long cross-examination with a view to showing that it was an absolute sale, and that the paying the 10s and allowing his filly to go away was proof positive of this. Witness firmly maintained that he only paid the money because he happened to have it by him, and the buying of the mare was subject to a trial. He was positive that they l agreed to exchange receipts if the mare suited him.

Mrs Scabbie, wife of the previou ß witness, and his daughter both gave evidence as to Borrell bringing the mare to the house and its being run in the trap, its inability to eat its oats, and the trip to Timaru. They had both been in and out of the room when the arrangement was made that Scobbie should take the mare if it suited him, and both swore to a distinct recollection of hearing Scobbie say that if the mare BUited him they would exchange receipts. Both were decidedly of opinion that the mare was only bought subject to proving j satisfactory after a trial,

For the defence Mr White held that there had been an absolute sale on the day the mare was first tried. Scobbie had been satisfied with the trial, and had then and there taken possession of the mare and handed over the filly with 10s to boot. He called The defendant, Geo. Borroll, who reiterated the evidence re his going to the house, trying the mare, and arranging the price, and getting the filly and the 10s. He contended that it was an absolute sale at the time, and denied that there was any agreement for a further trial or for the parties to exchange receipts if the mare suited Scobbie. To the best of his belief the mare was nine or ten years of age. He bought her as being of that age from Thos. Lee. Witness explained how Scobbie had gone to Wigley's station, taken the filly, and left the mare, telling witness about it about two hours afterwards. He also gave an account of his taking McKay with him and seizing the mare from Bates Had considered it was an absolute sale, and that the filly was his property. Was absolutely certain that nothing was said at any time about exchanging receipts or a further trial, or Scobbie taking the mare if she suited him.

William Taggart, a farmer at the Kakahu, deposed to seeing Scobbie riding the filly, when he told witness he had chopped it away to Borrell and got it back again from him. Angus McKay deposed to going with Borrell to Scobbie'a house, when Borrell demanded the filly back again and expressed his intention of taking it wherever he might see it, There was nothing said then about receipts being exchanged. Borrell asked him if the deal was not a fair and square one, and reminded him that the 10s had been paid. Scobbie said it did not matter if £SO bad been paid. The only objection Scobbie made to the mare then was that she could not eat her oats.

James Taylor, laborer, Birorn,Jsaid he had been present at the interview between Borrell and Scobbie at Wigley's about the exchange of horses Scobbie wanted Borrell to take £3 to square it. He refused. Witness asked if it was a fair deal between them and he said it was. He said he had given 10s with his horse. Heard nothing about receipts being exchanged. John Aitken gave similar evidence. There were six men there at the time of the interview.

His Worship said the whole question was whether there was an unconditional sale or not. The evidence was very contradictory, and he must judge by the surrounding ciroum stances. It seemed to him a money payment was made, and then and there the horses were exchanged, one maa took his horse and the other was left with Scobbie. It appeared to him there was a complete transaction, and Borrell was entitled to the filly. Judgment would be for him with costs. Solicitor's fee, and witnesses expenses were allowed. PEOHIBITIOK. On the application of the police a prohibition order was granted against H P Jones, the order to have effect in all three districts. This being all the bu»iness the Court rose.