DISTRICT COURT.

Thames Star, Volume VII, Issue 2501, 11 January 1877, Page 2

DISTRICT COURT.

THIS DAY. (Before His Honor F. D. Fenton, Esq., District Judge.) EE BANKS A BANKBUFT. Mr Brassey said that an application had been made in Auckland to remove the proceedings to Auckland. His client objected to the proceedings being so removed, and he asked that no order in the case be made. His Honor said he would decline to sign the order for the present. AUSTIN "V. lIPSEY. Mr Brassey for the plaintiff; Mr Macdonald for defendant.

This was an action to recover £35 for occupation of hotel and land at Paeroa.

Mr Macdonald demurred to the plaintiff proceeding with the case as it did not disclose any cause of , action. Mr Macdonald further argued the case on demurrer, saying that if the plaint was right the summons was wrong.

His Honor said he. would hear Mr Brassey on the subject. Mr Brassey then applied for an amendment of the summons. A further argument on the summons then took place, and His Honor directed that the. plaint book be sent for.

Mr Macdonald said he had another objection to take, and that was that the Court had no jurisdiction on the pleadings, in that the question involved a question of title. Mr Macdonald quoted authorities in support of his views, reading the discussion of Judge Wightmau in a similar case.

Mr Brassey thought the objection raised regarding title a most frivolous one.

Mr Macdonald and Mr Brassey here stated that they were quite willing to '-^c Mr Stoney's statement as to what lv . Alie plaint-book, and Mr Stoney was in i_ +1 Wftg description X"pu.£ir« hi *""■»'&»• in the plaint-book. , + . After further discussion the objecV 10"? of Mr Macdonald were over-ruled, ana Mr Brassey applied that the plaint be amended.

Mr Macdonald then applied for the cost of the amendment.

This question was deferred, and on the suggestion of the Judge, Francis Lipsey was called to prove that the defence set up, that the title of the land was involved, was set up in good faith.

Francis Lipsey, sworn, deposed—That he had been in possession of the Paeroa Hotel by buying out the interest Mr Austin had in the place. Mr Austin's interest ended about the end of Nov. last. He paid £100 for the interest, and had been in possession since Dec. 1875. He continued—l have paid no money to any one else, and never was asked for it. I got a letter from Mr Austin, but I forget the date. I never paid more than £100 for the place, but I have paid other money for other goods—the stock in trade. Since the purchase I have purchased other things from Mr Austin's store, and Mr Austin has become indebted to me for rent of a cottage. When I paid for the goods I paid in the whole. Among all the payments there were none other but those for goods outside the £100. Having paid for the house for the rest of Mr Austin's term, I claim it for that term. I have not paid the rent to anybody. I laughed at the idea of paying it. I resist the claim in consequence of the contract between Mr Austin and myself.

By Mr Brassey—l paid him the £100 for the good will of the business for the rest of the term. I was never aware that I had to pay rent until I got a letter from him telling me that I had to. I distinctly swear that I never paid Mr Austin any rent for the Paeroa Hotel and store. I distinctly swear this. I never told anybody that lam aware of that. I did not pay the rent, because he owed me something. I remember being in your office some days before last Court day. I remember saying that if this action was not withdrawn I would be obliged to put in a defence. I recollect having made that statement. I don't remember saying I would do it if the case was settled. I did not say that if Mr Austin allowed me the £26 that I would pay the balance, though both you and Mr Gr. 3ST. Brassey tried to make me say it. I remember you and Captain Fraser being in the back parlor ef my hotel afc Paeroa. I remember you going to Mr Austin's house. Mr j. Mackay was there also. I remember saying that Mr Austin had received money from Mr Snodgrass for rent. I said I would sue Mr Austin. I have had a settlement with Mr Austin for the goods. He did not make out an account in the book and show it to me. I went to Mr Austin's house and settled the account. I gave him a cheque for £18. I swear he did not, make out an account from a book. He did not read over any items to me. I swear there was no item of rent mentioned. I swear that I have not seen this book that lam aware of. I'll swear I did not pay him for rent. That is the cheque I gave him (produced). Mr Brassey applied to put the book in evidence, but

Mr Macdonald objected. He said the plaintiff had no right to prore his own case from his own books. His Honor ruled that the book could not be admitted in evidence. Examination continued. I gave Mr Austin the cheque without knowing what were the items of the account. I know Mr Dewar. He never brought me an account. I never remember Mr Austin giving an account though he wrote the letter I have referred to asking for rent. His Honor said he had no jurisdiction, because it was a question of title. CXABK T. WYATT. This was an action for goods sold and delivered to the amount of £55 19s lid. There was no appearance of the defendant. James Clark, sworn, deposed—l am the plaintiff in this action. I know the defendant. He is indebted to me in the sum of £55 19s lid. It is still owing. Judgment for amount claimed, and costs £5 19s.

CABPENTEB V. STONEY.

This was an action to recover £70 damages, and also that certain goods which were mentioned in the plaint should be returned to plaintiff. This case had been settled out of Court by defendant paying £20, and returning the goods. BULLOCK V. WM. HEWITT. Plaint to recover £81 and interest on dishonored cheque in favor of one Anthony deceased, and which came into the hands of plaintiff. Defendant had filed a defence as follows :—l. That he denied all material allegations. 2. That he never received notice of dishonor. 3. The cheque was not presented for payment as alleged. 4. That there were accounts between defendant and one Arthur Anthony deceased, and that the defendant and Anthony had settled all accounts, and the said Anthony gave the cheque for the defendant to the plaintiff. That the plaintiff undertook to settle all accounts between defendant and Anthony, and did so, and defendant paid all monies found to be due to Anthony to plaintiff on his (Anthony's) behalf.

There was no appearance of the defendant. ..,,..

Mr Macdonald said that he had agreed to adjourn the case because Mr Tyler had asked him to do so as he was engaged to defend a man charged with wilful murder. His client, however, objected to the adjournment.

Mr Bullock said he was the sufferer. It had been adjourned from last court day against his will, and he knew he would not get anything by the adjournment. Ajourned till next Court day. APPLICATIONS FOE WINDING- UP ORDERS.

Mr Macdonald made application to wind up the Morning Star, on the ground that it was unable to pay its debts. He presented the petition and affidavit that the petition was true.

Order made, for first meeting of creditors to take place at Messrs Macdonald and Miller's office on the 15th inst.

Mr Macdonald also made application for a winding up order for the golden Calf G.M.Co. He presented the statement of assets and liabilities. Winding up order granted.