R.M. COURT.

Wairarapa Daily Times, Volume VI, Issue 1854, 2 December 1884, Page 2

R.M. COURT.

MASTERTON-MONDAY,

■: - (Before H. 8. Wajideli, R.M.) Lowes 4 lorns v A. Fraser, (oontinned.)

Angus Eraser, sworn, said he agreed with Mr Lowes to purchase the horse Dainty Davie for £BS, who said he thought its age was 13 or 15 years. About a fortnight after he heard the horse was 16 years old. He saw Mr Lowes and told him that l)e could not take the horse on account of its age. Mr Lowes told him he would have to take it as Mr Hammond held them responsible, but if Mr Hammond would let him off the bargain they wouid do so To Mr Bunny; He believed Dainty Davie had been in the district before, but he had never seen him, He had enquired of MrR. Cockburn about the horse before he went to Mr Lowes, and in .consequence of. what ho heard he wrote tq Ifr about it, to enquire the price he wanted fpr it. He afterwards saw Lowes <fc lorns and authorised Mr lorns to telegraph to Mr Hammond that he would accept the horse at £BS. ■ He also agreed to pay Lowes & lorns their charge for commission. The horse was sold to Mr McEwen and he had.given a bill to Mr MeEwen of £BO in settlement ofa claim Mr McEwen had against him for blacksmithing, etc, He had no interest in the horsp. He told Mr lorns that he could not take the horse, as he could not find the money. He had tele-, graphed to Mr Boag to enquire the age pf the horse andhad not the answer' when be-toR lorns that he could not find the money for the horse,,

This concluded the defence, Mr Beard said the oase must fail on. the ground, that plaintiffs were acting as agents for Mr. Hammond, and not defendant, and if they were agents for defendant they, had execeeded the terms of their authority by accepting the delivery of the horse after-its repudiation, and the words" wo will pay you" can only be road as part of the arrange-

ment made with defendant, not as .incusing a personal liability -on the par:tof'the defendant; Mr Freeth drew the attentionof. the Court that'ifthese letters were ; 'put in jisj.pjffr of'the contract they: would, require to be'stamped. '-,':..- ~ M.r Bunny 'argued' that it was too late ''on tb.e part "of the Clerk of the" Court to put in that claim, at any rajle a general letter .-ot -memorandum .'in writing was not such a document as required stamping"••"'•".'*."l ,-/.• . His Worship jield with Mr. Bunny. He said the point-raised .was that the plaintiffs had exceeded ■ their..duty by accepting delivery .of the horse instead of repudiating the .liability to Mr j|ajn.inpnd. ! ;::HeJ";would ' consider 'whether the .words "'we will pay you" bound them to'carry out the arrangements and justified them iipcting as they did. '■-. I--" /J" The., further '. dealing ra(fcl-the.case, was held over till Monday 'December Bth. V: •- William Sellar v Walter Rapp. (adjourned from November 19th), Plaihtiff claimed to recover £9O" as Official Assignee in the estate of Hugh Millar, under section 78 of the Bankruptcy Act 1883. Mr Beard put in proofs of.-the former bankruptcy of Hugh. Millar in Chfistchiirch. Mr;' Bunny objected to these documents being put in-there-being""no proofs of their being in order. • •His"Worship ruled their:admissibility. Mr, Beard, for defendant, asked'that the plaintiff.be non-suited on the ground thai at the tin.e this actioiT'was brought Millar was inc.ap.tble of-filing again, he being an undischarged, bankrupt all the property that might be in his possession' at the. tiine~6f big second bankruptcy was the property it the Trustee appointed under- firat bankruptcy and not the property of the plaintiff. In support ofthis he quoted section 58 of the Debtors "and Creditors Act 1876. There was another matter also in the- evidence that had come before the Cpurfc, It had appeared that the sum qf £55 was paid to defendant by Hugh MUhw and the sum of £25 was paid by Millar's brother, and the receipt given to him, Thero was positiveevidence to show that Mr Rapp declined to take the money from Hugh Millar, and therefore that sum could not be recovered. He also drew attention .to the proviso in section 78 of the Act of 1883 that a, bom fide transaction where valuable consideration was gjvefl was lawful. He argued that his client was a payee who had given valuable consideration for tho money he received, ; - Mr Bunny said it would be wrong if a trustee by tacilly and silently allow? ing a bankrupt to start in business.again could como down and seijie on his assets to the detriment of all his second lot of creditors., The property in'this second case was. yested in the Assignee for the benefit -of, the whole creditors, aad the whole statement put forward by the defence was that the plaintiff was not entitled to tho monejjf but that the Trustee of the first bank* ruptcy was the one entitled to it, butif that was the case the first lot of creditors could take the whole assets until they got 20s in the £.

Mr Bunny, in answer to the Court, said he had never heard of two bankruptcies .running concurrently, but he contended that under any and every circumstances the Public Assignee was the Trustee in whom these monies should be vested.. He submitted that the right to sue by the Official Assignee was not affected by the fact of the debtor being an undischarged bankrupt at the tjpie of (lis second failure, the first trustee having tacitly allowed him' to trade. J. further proof 4hat no yulpable consideration had been given, and. the pay : ment made in good faith was thai the amount of money paid to defendant by Millar was considerably in excess of what was owing to defendant's.firm, the bills owing by Millar not having matured.

Judgment was reserved till Mo'uday next.