MAGISTRATE'S COURT.

Dominion, Volume 1, Issue 293, 4 September 1908, Page 4

MAGISTRATE'S COURT.

POLICE CASES. (Before Mr. W. G. Riddell, S.M.) A well-dressed man named Joseph Burke pleaded not guilty to a charge of having used obscene language on board the steamer Takapuna at the Quoen's Wharf. After hearing a portion of the evidence for the prosecution | 'afccusecl applied -for an adjournment to:'enable him to procure the services of-a solicitor. The case -was accordingly adjourned until his morning, bail boing allowed in the sum of £5. , An engineer named Robert Alexander Frost was romanded to appear at Christchurch on Saturday on a charge of having at Sydenham, •on December 13, unlawfully deserted his ivife reasonable cause, and failed to provide'her with adequato means of maintenance. On the application of Mr. P. W. Jackson, bail was allowed in the sum of £50, and ono surety of £50.

John O'Sullivan, described as a contractor, was charged with having, on August 30, at Wellington, assaulted Richard Coulson so as to cause him actual bodily harm. On tho application of Chief Detectivo M'Grath, who stated that Coulson would not bo able to appear before September 9, as lie was still laid lip in bed, a- remand until that date was granted. Bail was fixed in the sum of £50, and one surety of £50, on the application of Mr. O'Leary. • Two first.offenders for drunkenness• were dealt with, oue, who failed to appear, boing convicted and fined 10s., in default 24 hours' imprisonment, and the other being convicted and fined 55., in default 24 hours' imprisonment. A girl, 18 years of age, a waitress, appeared iu answer to a charge of having, on July 1, stolon 'a lady's overcoat, the property of tho daughter of tho landlord of tho private hotel at which she was employed. Tho police stated that nothfiig was known against accused, who was a recent arrival from Australia. Accused was convicted, and ordered to come up for sentence iwhen called upon. -. . • CIVIL BUSINESS, (Beforo Dr. A. M'Arthur, S.M.) UNDEFENDED CASES. 17 Judgment for: plaintiff;-.by default'of dofbn-. y-int was entered in the following cases:— o. H. Robinson and Soil v. Oscar Freyberg, £5 10s., costs £1 3s. Gd.; Carrol and O'Brien v. Edward Potts, £1 175., costs 65.; Empiro Loan and Discount Co., Ltd., v. Win. James Davis,- £186 19s. Gd., costs £8 35.; Joseph Mollier v. Ernest C. Starkoy, 13s. 7d., costs 55.; Baldwin and! Rayward v. Samuel Donniston, £14 19s. 6d., costs £1 10s. Gd.; samo v. Win. Spencer, £3 3s.> costs 165.; Commercial Agency, Limited, and Hirst and Co', v. Samuel Marston, Gd., costs 10s.; Commercial Agency, Limited, v. Jas. M. Croucher, ,£5 14s. Id., costs £1 3s. Gd.; Sidney J. Adams v. H. C. Taylor, £8 175., costs £1 3s. 6d.; Annio Conci v. Catherine M'Carthy, £2 175., costs 10s.', Wellington Traders' Agency as assignees of tho Diamond Confectionery.Co., Ltd., v. Manson A. Currin, £11 2s. Bd., costs £1 10s. Gd.; Miss M. F. "Stephenson v. Goldbloom Bros., 185.,' costs os. ;■ Edward Lander v. Georgo Morgan, £1"55., costs 55.; Clout Bros. v. David Barrie, £3 lis. 10d., costs 10s.; John Rigg and Company v. Helen Brown, £7 os. 5d., costs £1 Ss. 6d.; Blundell-Bros., Ltd., v.-Weber Waiono Cooperative Dairy -Co., -Ltd.,. v .155., costs -;ss. ; Frank Joseph. Oakcs v. Frederick Butcher, £1 75., costs Bs. • JUDGMENT SUMMONSES. In the judgment summons case Sleek and Von Kaast v. Chas. Johnson, a, debt of £3 195., debtor was ordered to pay on or beforo September 17, in default seven days' imprisonment. . In the case\Blundell Bros., Ltd., v. John A. Lawson, a debt of £2 25., debtor was ordered to pay on or beforo September 17, in default seven days' imprisonment. Chas. Herdman was ordered to pay £12 16s. Gd. to Fordo and. Company on or before September 17, in default fourteen days' imprisonment. ' No. orders were made in the following cases: —Wise and Deeble v-. John M'lntosli, a debt of £3 ss: Gd.; Annie Cunningham v. Mabel Tangney, a debt of £1 18s. 6U.

MONEYLENDER AND BORROWER. A QUESTION OF INTEREST. Reserved judgment was given by Dr. A. M'Arthur, S.M., in the case Thos. V. Venables (Mr. Dunn) v. George Lambert, moneylender (Mr. Webb), a claim-for £109 14s. in councction with a loan of £500 on mortgage on freehold land. After setting out the statement of-claim in full, his AA'orship said tho action was one under tho Moneylenders Act, 1901. The parties entered into an arrangement whereby tho defendant was to lend the plaintiff the 'sum of £500 on certain terms. Tho period of repayment extended over fifteen years. When 'tlio tcrnis of repayment ' were worked out" tho interest amounted to per cent, per annum. After paying niuo instalments regularly the plaintiff desired to repay tlio loan and closo the transaction.- - The defendant objected to this unless plaintiff paid him a premium, • or-penalty, ,of £100, ..which tho latter !did pay under protest. Calculating tho penalty and tho instalments paid, the amount, of interest on tho sum. advanced up to tho time of payment was at tho rate of 43 per cent. In the contract • between the parties there was nothing said as to a release on payment of tho sum due. Plaintiff positively assorted that the defendant agreed orally with him that he would release him at; any time lie was ready to repay. This tlio defendant as positively denied, asserting that he novel' agreed to any such' arrangement. In his AVorship's opinion defendant had ample and more than sufficient security for the advance made. It was not a question of inoro personal security or of a doubtful security. The memorandum of mortgugo contained a clause that if default should 1)0 made in the payment of any instalment, or if there should bo any broach of any covenant, etc., thereupon the wholo of the instalments should • bcconio at onco duo and payable, and it should bo lawful for tlio mortgagee to at once enter upon the land and exercise his power of sale. A ■ solicitor was instructed' by defendant to prepare the mortgage, and although ho explained to plaintiff that there was no repayment clause, yet lie did not explain the default clauso to him. If the terms of tho contract were such as to ombraco a contingent possibility of its rcsult-

ing in. a harsh and unconscionable bargain the .Court might reopen the transaction. Thus where the contract was for the payment of the principal and, a stated sum for interest by instalments, tho whole to become payablo 011 failure to pay any one instalment, tho Court reopened the transaction on the ground that tho happening of one of the events provided for might mako tho interest, exorbitant. Moneylenders understood these things, but people generally did not. . After dealing with various authorities'referred to by.counsel, his Worship said lie' considered that 13S- per cent, per annum 011 such an ample and Sufficient security was oxcessivc, but tho Court did not rest its judgment on that mainly. • Tho default elauso was never explained to plaintiff, and in his Worship's opinion it rendered the terms of the contract such .as to cause, a contingent possibility of its resulting in a harsh and unconscionablo bargain, and there tho Court might reopen the transaction, tlis Worship considered the calculation made by plaintiff on tho basis of interest at the rate of 10 per cent; per annum, and having regard to the absence' of risk, to bo liberal, but at the samo time the Court thought defendant should ho allowed one quarter's interest as a premium for release, viz., £12 10s. Judgment would be for the.amount claimed, £109 145., less £12 10s., viz., £97 45., and costs £9 16s.

CATERER AND COOK. CLAIM FOR WAGES. " A REMARKABLE CASE." . All interesting judgment was delivered in the case of Leo. De Laval (Mr. Toogojd/ v. Edward J. Searl (Mr Dunn). l'lamtiff claimed to recover from the defendant the sum of £9, being balance duo as wages. The case, his Worship said, was a most remarkablo one. The' plaintiff said that 011 July 22 he went to got the wages due to him, which he claimed to bo £9 6s. He told Searl 110 wanted to get away to Auckland on the midday boat, and Searl answered that he would give the plaintiff his wages. Searl put 6s. on the table, and put tho pay-book in front of the plaintiff, saying, " Sign your name and I'll pay you." The wages were due for slightly over four weeks', and as he looked at the book, the plaintiff said, "I'll have to put, five signatures in the book. Why don't •jw put four weeks and three days, aiid then I'll only have to put one." Searl replied, "It's all right, aiil't it,* sign your narno if you want to get away, and I'll pay you." Searl was counting money at the time. Tho plaintiff barely had time to put the pen down before Searl caught hold of tho book. He blotted De Laval's signature, and walked across the room to the desk, and locked the book up. Then 110 camc back and stood in front of the plaintiff, and said, "Now, chef, I've got you-. You've signed your namo on tho book, and I won't give you any money." Do Laval said, " What do you mean?" Searl replied, "That moans you' are paid." Tho plaintiff said, "Do you moan-to say that you will do 1110 out of my money that I have honestly earned?" Searl said,."l mean it." Eventually the plaintiff got 6s. in silver from Searl, and that was all ho received. Tho defendant's statement of tho case was somowhat different. His statement was as follows:—"Do Laval camo up. I paid him £1 Bs. He signed his signature once and I blotted it. Do Laval was satisfied with his payment. He left." "There is here, positivo perjury. 011 one sido or tho other," his Worship said. "There is no escape from it." The plaintiff swore that 110 never left the premises, but met a Mr. Whitelaw, who called in a constable. The latter searched tho'plaintiff, and tho only money found on him was 6s. Mr. Whitelaw said tiio signatures in the book appeared to him to bo fresh. The constablo said that 110 was certain all tho marks were frosh. He also searched tho blotting paper, and saw tho signatures in a corner. Tho evidenco of., the other witnesses for ■ tho defence, his Worship,said, offered him no help. "To sum up," said his Worship, "theso woro the stories of tho principals, directly opposed to each other. In favour of the plaintiff thoro was tho fact that his account had been told in a straightforward manner, and that tho figures ho gave tallied exactly • with-the record jcept in a hook by him, which 'ho sriid lib kept from day' to day. Ho was searched almost immediately, at any ;rato 110 had not left tho premises—and only tho 6s. was found on him. There was tho evidenco of tho two independent witnesses, who stated that tho signatures appeared frosh. For the dofendant there was his statement, and that of his son Percy, but tho latter's statement must bo discounted, as 110 disagreed with his father 011 one point." His Worship had most carefully examined the books, and as far as tho wages woro concerned tho books sho,wed them as being paid regularly on tho dub date. Tho books did not help him. Ho had also carefully examiried tho signatures again and again, and to him they presented tho appearance of having been written at tho samo time. In his Worship's opinion tho wages wero duo to tho plaintiff, who had received only Gs. of thom. Judgment would bo for tho plaintiff with costs £3 ss. ,

PATENT. COPPERS. Judgment was also delivered in the caso W. I l '. Eggers , (Mr. • Kirkcaldie) v. A. H. Wood (Mr;' rliirk), a dispute in connection with the: purchase of a nefr stylo of copper and fittings, ' which . woro Warranted to bo equal in quality and litness to ordinary brick coppers. Plaintilf contended that the coppers, of which he had purchased a considerable numbor for £58 125., woro useless, and claimed £60 for damages for broach of warranty. His Worship stated that plaintiff inspected ono of the coppers' in Auckland, and expressed his satisfaction with it. On ills return to Wellington a long correspondence took place between' tho parties, in which plaintilf urged the defendant to supply a large numbor of sets. • Tho defendant supplied. somo at considerable cost, and tho plaintilf expressed approval thereof. It was not until the time for payment passed by that lie found fault. Tho present defendant then sued in the Magistrate's Court at Auckland, and got judgment. His Worship was of tho opinion that then and there was the time and place for the present plaintiff to have put in his counter-claim. Tho Court had seen ono of tho sots fitted up, and at work, and was satisfied that, so far as it could judge, it was in all respects as serviceable as a brick one. Taking all things into consideration, his Worship was of tho opinion that tho plaintiff bought tho. goods, and that they fairly, fulfilled the guarantee, or whatever it might bo called, that they woro as good as brick. That being his opinion he would givo_ judgment for the defendant, with costs £5 4s.

A DEFENDED CASE. < (Before Dr. A. M'Arthur, S.JI.) T!iO wholo of tho afternoon was occupied in hearing a case, Alfred Mini rice Lewis, acratod water manufacturer (Mr. Morison) v. the Wellington Steam Terry Company (Mr. Dalziell), a claim for £43 155., alleged to bo tho value of .aerated water bottles supplied to.defendants, and not returned. Evidence showed that there wa:3 a contract between the two parties, plaintiff supplying defendants'"witlr afirat'cd" water' for sale at tho pavilion, at Day's Bay. The dispute was as to tho return of tho bottles after they had been emptied. Defendants alleged that tho plaintiffs received the bottles, with tho exception of those now in stock—some 90 dozen. There was no check kept by defendants 0)i tho bottles supplied. After hearing evidence at length, his Worship reserved his decision. At the' Mount Cook Police Court yesterday morning, before Mr.. J. Lambert, J.P., George Broughton was fined 20s. for drunkenness, . in default seven days'- imprisonment. For a similar offence Thomas Mulcaliey was fined ss. or 24 hours' imprisonment. One first offender was convicted and discharged.