RESIDENT MAGISTRATE'S COURT, LAWRENCE.

Tuapeka Times, Volume III, Issue 136, 15 September 1870, Page 5

RESIDENT MAGISTRATE'S COURT, LAWRENCE.

Thuusoay, September 8. (Before W. L Simpson, Esq., R. M.) M'Beath v. C. Dale.— Claim, £9 10s Id. No appearance of defendant. Verdict for amount claimed with costs. Herbert and Co., v. W. H. Barbor. — Claim, £26 9s 4d, being balance owing on dishonoured .acceptance. No appearance of defeudeut. Judgment for amount with costs. ' Monday, September 12. (Before W. L. Simpson, Esq., R.M., H. Bastings, Esq., J.P., and Alex. Stewart, Esq., J.F.) Adamson v. Nixon, (Waitahuna.) — Claim, £10 19s Id. Mr. Copland appeared for defendant. This was a case of partnership accounts. From the statements made it appeared they were in beautiful confusion, as some documents were not forthcoming, which were considered necessary for their elucidation. The case was adjourned for one week to enable the parties to furnish the necessary documents. Keir v. Morrison. — Claim, £12. Mr. M'Coy appeared for the plaintiff, and Mr. Gooday for the defendant, who pleaded not indebted. Mr. M'Coy in opening the case said that some time ago one John M'Coll let laud at Tuapeka Mouth to one Buchan on lease. Buchan resided on the land, and was an employer of labour. M'Coll sold the reversion on the lease to the defendant Morrison, and he showed anxiety to get rid of the incumberance (the lease), and treated with Buchan for its surrender. Buchan had become indebted to several persons for wages, one being the present plaintiff, James Keir. Buchau (not being able to pay Keir and others the moneys which they had honestly earned) came to an arrangement with Morrison, whereby Buchan undertook to surrender his lease to Morrison for a certain consideration, part of which was that Morrison should pay what was owing to Keir and others for wages, thus relieving Buchan of all responsibility, and taking the burden on his (Morrison's) shoulders. A cheque was given by Buchan to Keir for £12, the amount now claimed, and it was well known to Morrison that it was the amount of this cheque which he (Morrison) had to pay to Keir, who (sensibly enough) indignant at being recompensed for his labour by a piece of waste paper (as all parties knew the cheque to --be -Buchan being insolvent) uplifted his testimony against the transaction, and irmly intimated to Buchan his suspicions as -to the value of the cheque — suspicions which amounted to absolute certainties in the minds of all (that is in the minds of Keir, Buchan, and Morrison) as the sequel plainly confirmed when the cheque was duly dishonoured. Morrison being appealed to immediately Tindertook to " see that Keir was paid," on which guarantee relying, Keir took Morrison's word, knowing him to be a person of some substance ; believing him, with perhaps too blind a confidence in human nature, to be a man < who would honourably discharge his obligations. The Bench, however, must not suppose that Morrison was actuated merely by some fleeting ray of philanthrophy, for he (Morrison) actually retained moneys in his hands which were due by him to Buchan, with which to pay this and other debts, besides obtaining for himself the great advantage of holding his land clear of Buchan's lease. Subsequently a Mr. Taylor became 'the holder of the £12 cheque, being induced to take it upon information of the circumstances. He (Taylor) went immediately to Morrison and asked for the amount. Morrison replied that he " would pay, but could not do so then." The Bench would observe that promises of payment were made by Morrison to three persons,

viz., to Keir, Buchan, and to Taylor; and it, wasf upon the promise to pay, and not upon the cheque, that this suit wa, founded. The cheque was merely looke.l upon as evidence of the debt due by Buchan to Keir, and it was in that light that he (the learned counsel) was viewing it in this case. About a month later, Taylor again applied to Morrison for payment, lie again promised to pay, still, however, stating that he could not do so then. He never attempted to evade his responsibility till a still later period, when upon being again applied to by Taylor, he said that- he had paid so much money on Buchan's account that he would pay no more. Even subsequently to this he again admitted his responsibility in a qualified sort of way, asking Taylor " where the cheque was —if Herbert had got it ; if so, he would not pay it — if Taylor had it, he would ;" though, when informed that he (Taylor) had it, he did not fulfil his promise. Indeed, the cheque had on one occasion been obtained from Taylor by Morrison's book-keeper, who brought it into Lawrence for inspection, and it was afterwards returned to | Taylor — Morrison doubtless thinking that by some loophole he might escape from his promise, and he refused to pay, though he had not the excuse which the Bench would hardly consider a very valid one, either at law or in equity ; that by so refusing he would be able to injure Mr. Herbert — he wanted, in fact, to have all the advantage of his transactions with Buchan without the disadvantage of paying for it, which was blowing hot and cold with a vengeance — a pastime profitable, no doubt, to the performer, but one which this Court, in the late case of Herbert v. .North, very decidedly discountenanced. He called James Keir, the plaintiff, who deposed that up to the middle of November last he was working for Buchan, and that, on the 19th of that month, Buchan owed him about £23 for wages. This was paid by two cheques, one for £12, one for £8, and a balance of £3 was left due. The eight pound cheque was subsequently paid by Morrison, who also promised him (Keir) to pay this £12 one. Mr. Gooday objected. Unless Morrison's promise to pay was given in writing, it could not be entertained, as the statute of frauds most distinctly laid down that a person should be held answerable for the debt, default, or miscarriage of another, unless the contract so to do was entered into in writing, and he (the learned counsel) contended that as this promise was a verbal one only, the Court J could not admit it .'is evidence. Mr. M'Coy said that he intended to argue — he hoped successfully — that this promise of Morrison's was not within the statute quoted by his learned friend, ami that being outside it, no necessity existed for its being in writiug. Mr. Gooday cross-examined Keir with a view of showing that the cheque was ! sjiven for something besides wages, but this the witness denied. j W. G. Buchan deposed that at the time he gave the cheque lie held land under lease at Tuapeka Mouth ; that he was thpii in difficulties ; that M'Coll, who had granted him the lease, had sold the land to Morrison, who wanted to get rid of him (Buchan), that he (Buchan) consented to give up the lease to Morrison for a consideration, part of which was that Morrison should pay all wages then due, inclnding this and other | cheques. That the cheques were specified, though not each one individually, and that Morrison was well aware of their existance. Morrison's promise to pay was absolute, and not conditional. Morrison had paid some of the cheques — two at all events — but had recently ignored his liability as regards this and others. Andrew Taylor gave similar evidence. He had held the cheque for some time, and had frequently asked Morrison for payment. On every such occasion save the last, Morrison admitted his liability, and promised to pay. On which witness relied. On the last occasion Morrison, when asked to pay, asked who had the cheque- had Herbert got it— if Herbert had it he would not pay it, but if witness had it, he would pay it. Witness assured him that he had it, and Morrison then declined to pay. J. C. Arbnckle deposed that he had frequently heard Morrison promise to pay this amount. Mr. M'Coy asked Mr. Gooday whether he intended to call witnesses, to which Mr. Gooday replied that lie was not sure, but he would not raise the question of Mr. M'Coy's right of reply, even if he did not call witnesses. Mr. Gooday addressed the Bench for the defence: All through the evidence not one single word had been spoken which gave even a shadow of a case to the plaintiff. It was indeed the weakest case which, to his knowledge, had ever been brought into Court. The statute of frauds already quoted by him was most distinct on the pomt — that a contract, such as that relied upon by the plaintiff, must be in writing. (The learned counsel here read the clause in the Statute of Frauds already quoted.) Moreover, there was no privity of contract between Keir and Morrison. Mr. MVoy replied, arguing that this case is one that may be entertained on equitable grounds, notwithstanding the 4th sec. of 29, cap. 11., c. 3, known as the Statute of Frauds relied on by the defence, "Smith's Manual of Equity Jurisprudence," p.p. 93 and 256. But even at law it is surrounded by circumstances which remove it from the operation of the statute, " Roscoe on Evidence." (Nisi Prius), 10th cd., p. 330; " Addison's Contracts," 6th cd., p. 59 ; "Selvvyn's Dig. Nisi Prim, 3 ' 12th cd., p.p. 844 and 848 ; " Williams v. Leper ;" " Birkmyre v. Darnell," 1 Sm. L. Cas. ; "Bird v. Gammon," quoted in 1 Sm. L. Cas., p. 270 ; " Eastwood v. Kenyon." The Court reserved judgment. Ah Ching was brought before the Court on a charge of lunacy. He having been in custody for some time, and the medical certificate being to the effect that he was all right, he was discharged, hia friends to pay the expenses incurred. Ah Sing v . J. Fitzgerald.— Plaintiff charged defendant with having, on tho 37th of August last, struck and otherwise abused him. Mr. Gooday app- ared for plaintiff. The evidence oj^jlaintiff and a witness went to prove that tho defendant, on the day in question, struck the plaintiff on the face, and afterwards ■with a long-handled shovel qu the slmul-

der. For the defence, Fitzgerald stated that the Chinaman insulted h" y.rJ of eight years of pge, and that in consequence he struck the plaintiff with the back of his hand on the face. The Bauch asked if the child was present. Fitzgerald replied that she was not. The child being so young, he did not think it necessary to have her present, as she could not be sworn. The Bench remarked that that was a matter with which he had nothing to do, and was surprised that the child was not prodiu-sd. The Bench further stated that thoy would adjourn the case, so that Hie child might be produced. Mr. Gooday obj acted to an adjournment, as the defendant had ample time to produce any evidence that might be reqxiired, and asked for expenses if the Bench should grant an adjournment. At this stage Mr. Fitzgerald stepped forward and stated that rather than produce the child he would there and then stand the consequences. The Bench remarked that the child must be forthcoming. They considered it necessary for the sake of justice, that as a charge of a penal nature was made against the Chinaman, that a full investigation should take place, and the guilty punished, the costs to abide the issue. Adjourned for one week. W. A. Murray v. W. Tolcher.— Claim, £23 10s. Mr. Copland appeared for the plaintiff. The defendant furnished a setoff to the amount of £25 against plaintiff's claim; In this case the correctness of both accounts was acknowledged by plaintiff and defendant. The question then was, whether the plaintiff was liable for the set-off. The account of plaintiff was for goods furnished to defendant The defendant's set-off was for work done for the Waitahuna West Road Board, of which the plaintiff was chairman. Mr Copland contended that as chairman lu3 client was not responsible personally for the debts of the Board. The Board, and not he, was responsible, and as the claim sued for was a private affair, The defendant could not place his account againsc the Board. Tho Bench remarked that there was no evidence before them showing that the Board was properly constituted, and until they were satisfied upon that point, they would reserve judgment. They would look over the ordinances in the meantime.