ADJOURNED CIVIL SITTINGS, TPNBRIDGE V. HOPE.

West Coast Times, Issue 697, 18 December 1867, Page 2

ADJOURNED CIVIL SITTINGS, TPNBRIDGE V. HOPE.

Mr Harvey for plaintiff; Mr Button for defendant.

This was an action to recover L3l 103 on a dishonored chequo (L2B 2s), and on account stated. Defondant pleaded — 1. Not indebted. 2. That ho did not make the cheque. 3. No consideration. 4. That plaintiff came into possession of the cheque in uiireasonable time after tho drawing thereof. sth. That plaintiff had notice at the time the said chequo came into hia hands that defendant had received no consideration. 6th. That the said cheque did not come into the hands of the plaintiff until after presentment had been made thereof and payment refused. Robert Hope, defendant, examined by Mr Button — I signed tho cheque produced for carriage of materials that were to be brought up by railway from Geelong to my place at Ballaarat. The materials came up but were not delivered, and therefore I went to the Bank and drew out the funds, and let it bo dishonored. I gave the cheque to Binney and Broadbent. Subsequently I saw plaintiff in Hokitika, and he offered to take LlO for the cheque ; this I refused to give, as I had received no consideration.

Cross-examined — The charge of L2B 2s. was to be made by brodbent "Brothers for carriage, if the materials had been delivered to me. Very probably that sum is the charge for the whole of the carriage by railway, as well aa well 0,3 from the Baltaorat station to my place. They never refused to deliver the materials to me until I paid the cheque*. I never dishonored one cheque for the same amount and then gave another.

Mr Harvey — Now look at that cheque, sir. Is that your handwriting ?

Witness — Well, sir, it is very like my haudwriting, but I cannot swear that it is. I don't recollect.

Mr Harvey — I have a great mind to ask his Honor to commit you for perjury. His Honor — Aro the two cheques for the same amount ?

Mr Harvey — Yes, your Honor. His Honor — One' cheque is dated on the 19th August and the other on 22nd August. There is no doubt they are both in the samo handwriting.

Witness, examined by his Honor — I gave one cheque on the 19th August, and I do not know why I gave the other cheque on 22nd August. I knew the materials were at the Ballaarat station. Ido not know whether I saw them there beforo or after the 19th August.

His Honor — If yon prevaricate so, sir, I'll send you to gaol. Witness — It was after I saw the goods at tho Btation I gave the cheque dated the 19th August.

His Honor — Do you mean to swear positively that you havo no recollection of giving a second cheque ?

Witness — I swear positively I have no recollection of giving the second cheque. I tried to get possession of the goods, but could not, and therefore I stopped the payment of tho cheque. The cheques are endoreed " Broadbeufc Bros."

His Honor — Had you a partner at the time you gave tho cheques ? Witness — No, your Honor. I was then a contractor.

His Honor —Now I ask you again solemnly — Have you any recollection of giving two cheques ?

Witness — No ! I have not'the slightest recollection of having done 60. This closed defendant's case.

Mr Harvey (for plaintiff) eaid, that whilst he admitted defendant might have forgotten that he had given two cheques, yet when tho cheques were put into his hands, he (Mr Harvey) could ndt understand how defendant could deny his own hand-writing. The learned counsel then commented on the line of defence, dwelling particularly on the fact, that defendant in his pleas had denied making the cheque, and after putting the plaintiflMo the expence of adjournment, and bringing witnesses to prove the signature, admitted that he made the cheque. Mr Button said, that defendant was not responsible for that — it was entirely the act of his counsel.

Mr "Harvey submitted that consideration had been fully proved from defendant's own evidenco ; and with regard to tho othor pleas not the slightest evidence had been offered in proof thereof.

His Honor said that the cheques were made payable to bearer, and would consequently pass as cheques. The strange thing was that there were two cheques given for the same amount, and it did also seem strange that defendant should have given two cheques and not recollect having done so. There was no doubt that they were in tho same handwriting, and defendant was liable for both cheques.

Mr Harvey — I only sue „on one, your Honor.

His Honor did not think that any good defence 1 had been offered. There was no total failure of consideration such as could be set up against a bill of exchange or a cheque. If there had been a partial failure the remedy would bo a cross-action for damages, but such partial failure could not be set up against a cheque. Mr Button— Would your Honor find on the facts, for I do not exactly agree with tho law which your Honor has laid down. Mr Harvey said, that this was not a case for appeal at large— the fact was, defendant could not meet his cheque, and tho plaintiff refused to deliver the goods. His Honor gave judgment for the plaintiff for L2B 2s, with costs L 6 18s. The Court adjourned sine die.

(For remainder of JV«w see 4/A Page.J