THE COURTS. RESIDENT MAGISTRATE'S COURT, LAWEENCE.

Tuapeka Times, Volume V, Issue 261, 30 January 1873, Page 7

THE COURTS. RESIDENT MAGISTRATE'S COURT, LAWEENCE.

1 Extended Jurisdiction. Wednesday, 29th January. ; (Bef-.re Vincent Pylce, Esq , R.M.) Hammond v. M-Pherson. — Claim, Lll 5^5., amount uf d'sii' noved acceptance. The ovidence had Ween taken on Tuesday, tin- 21' st iivrf. ll''s Worship now trave , judt'ineut us follows : -futhijcisj pluii!tiffsold to defendant a cert tin quantity of ! oats, at an a^ned price, on September I 24rh, and on the same date gay« the ac- ! ceptance now in dispute in payment for such o.ite Defendant was to take delivery jat M 'Kay's farm, four miles distant. Six I weeks thereafter defendant sent for soma of the oats, and found them unfit for equine consumption. None of his horses would eat them, ami he sent them back to M'ivay. Pour ptais *yw. act up for the defence, v,z., not indebted, no consideration, faiiure of consideration, and non-prosent.ition of acceptance. The 6rst plea, not indebted, v at variance with defendant's own evidence, which discloses a certain ilugroo 01 indebtedness, and it must, be di=?ch ir^ed. The fourth plea, no preoentmeur, is l«id m law, since "the maker or sicc&ptor of a bill is not enKtlod to a presentment unless the- instrument; be either p vyable at or after slight, or be made payable at some particular placi-." (Smith's Mercantile Law), and the 78th section of 1 and 2, Geo. IV., distinctly prescribes that unless the word " only," or the words " not otherwise or elaewhere " are added to an acceptance, it i 3 a general acce taice, and not necessarily to be presented at any particular place. — (R-nve v Young. ) With regard to tho second and third plea 1 ?, lam of opinion that th« plea of no consideration cannot be sustained, inasmuch as defendant was to take delivery ot tne oats, and could have obtained /them had he thought fit to do so. There remains then only failur-i of consideration, as to which F have no manner of doubt that it is a good plea and a valid dfifence, if proved to the satisfaction of the court,. Undoubtedly the contract between the parties implied that the oats were sound an.l fit for horae feed. The sample produced iv court was scarcely tit for pig feed. If a contract is bad in itself, from fraud or any other cause, it is bad for all purposes, and the mere circumstance of an acceptanc3 having been given will not affect the matter. But in order to substantiate such a defence it is necessary to show that the articles .purchased were unsound at th^ time of delivery. Now when did delivery take place here ? Constructively on the day of sale, the defendant being himself charged with tha fetching of the oats from the place whero they were then. Very well ; then it became necessary to prove that at that time 1 the oats were unsound ; and this has no f , been done. Six weeks appear 10 have elapsed before the defendant fetched any of the oats, and the evidence only alleges ' that then, six weeks after the sale and constructive delivery, they were unfit for U3e. Still worse is it with regard to the sample produced in court, which was only obtained after service of summons. There j is then no evidence whatever before me as to the condition of the oats iv Septen> ber . I hold this to be fatal to the defence, and I must give judg.nent for the plaintiff. Judgment for the amount claimed, with 28a, costs of court, and L 2 2s. professional fee. Some conversation between counsel and his Worship, relative to an action for hvo.ic.hof contract, ensued. His Worship stated that ho would suspend execution if security were given for the amount of the judgment and cost 3, pending th^ decision in such an action.