RESIDENT MAGISTRATE'S COURT, LAWRENCE.

Tuapeka Times, Volume VII, Issue 417, 16 December 1874, Page 2

RESIDENT MAGISTRATE'S COURT, LAWRENCE.

(Before E. H. Carew, Esq., R.M. ) Mokday, 14th December. A temporary fransferof the night license of } i J. Q. Gardner to William K'avanugh, of the Manuka Fliit Hotel, v. a& applidd : f or. An'ap-- ' plication for a permanent transfer was also- • lodged. Mr. M'Coy for the applicant. Granted. An application by William Kavanagh for a billiard license was also grante.l. Tighe, v. Sly. — This case was withdrawn by Mr. Copland, the parties having arrived at a settlement. Houston v. Tanslcy. — No appearanco ; case struck out. Houston v. Noble. — No appearance ; case struck out. Houston v. jJTJNickte.— No appearance; case struck out. Walker land Gascoigne r. Armstrong. — Claim of £11 Bs. 10d., for goods supplied &n<l

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delivered. Mr. Walker being absent, an adjournment to Friday noxt was granted. Mr. M'Coy for plaintiffs. Smith v. Tully. -Claim of £3 9s. for goods ■old and delivered. Judgmentf or the amount claimed, and costs of Court, 12s. Mark v. Best.— Claim of £50, balance due on transfer of share in the Gabriels Gully Quartz Mining Commny (Registered.) Thi 8 case was resumed. Mr. M'Coy for plaintiff ; Mr. Copland for defendant. Mr. Copland addressed the Court for the defence. Ho contended that as the document of transfer stated the consideration to be £250, and as that had been paid, the plaintiff could not succeed. It was not open to him to say that tho conßideration was, in fact, larger ; and as that was the law, there was no consideration for the second agreement by which the defendant undertook to pay £50 out of the first dividend. Further, so far as any method could be discerned in the management of the Company, the dividend (so called) was wholly bad, as the Company had not paid its debts, and there could be no dividend, except out of profits. It was stated that the shareholders had advanced money, and that the Company afterwards said this was*hot a debt, but subscribed capital. Whatever the Company might say, it was a debt, and could not be released except by discharge. The so called dividend therefore was not one, and even if Mr. Best had received the money as such he might be sued for it. .Mr. Copland quoted Mr. Smith's contracts and mercantile law. Mr. Squires was then called to produce documents, and give evidence of the transactions of tne Company. Mr. Best also gave evidence. Mr. M'Coy, in answer to tfiS' first contentions of the defendant, quoted the case of Clifford v. Tun-ill 14. L.J. Which shows that where there is one consideration stated in a deed, proof may be given of any other consideration which did take place, and which is not in contradiction to the instrument ; and that it is not in contradiction to the instrument to prove a larger consideration than that which is stated ; as regarded the second contention there was no doubt that the dividend was a good one, but were it not so, the defendant had received the money which he would not have done had it been a dividend, but repayment of a loan, as in this case, it would have gone direct to Mark. It was not competent to accept all the advantages of a position, and to repudiate it when the disadvantages were to bo considered, in other words to blow hot and cold allegans contraria non esi audirudus. If as suggested Besb wrongfully received the money as a dividend, it would bo incompetent to plead his own wrong. Nor was he in a position to complain, as he was a consenting party to all that was done, and volenti non fit ingoria. His Worship said he would give judgment on Monday next. A temporary transfer of the Commercial Hotel was granted from Alexander Armstrong to John Nicoll Storry.