SUPREME COURT.—Monday. CIVIL SITING . [Before his Honor Mr. Justice J. S. Moore]

Daily Southern Cross, Volume XXIV, Issue 3406, 16 June 1868, Page 4

SUPREME COURT.— Monday. CIVIL SITING . [Before his Honor Mr. Justice J. S. Moore ]

FREDERICK WILLIAMS Y. WILLIAM AVERY This was an acti m to reoover the sura vf £50 due on a promissory note, Mr. Gillies appeared for the plaintiff. There was no defence for the a.ofcioa, *nd his Honor therefore directed ihe jury to return a verdict for the plaintiff.

MAOHATTIBV. MACFAIttANE. This was an action to recover the sum of £250, brought by Thorana Milne Machattie against John Sungater Macfarlane, under circumstances detailed in the evidence below, Mr. Hesketh appeared on behalf of the plaintiff, and Messrs. Whitaker and Gillies for the defendaat, The declaration set forth that on a certaia day in October, in the year 1863, tie defendaat received from Mr. Thomas Macffar lane the sum of £250 for the use and benefit of the present plaintiff j aud that the said sum bad never been paid to plaintiff, who now brought the present action to recover the said sum of £250, together with the interest accruing thereon from the cUte specified. The defendant's plea to the action was, that he denied all material allegations in the plaintiff's amended declaration. The three issues as read to the jury by the clerk of the Court were— l. Did Thomas Henderson pay to the defendant on or about the Ist of October, for the use of plaintiff, the turn of £250 ? 2. Was the said sum \ aid over to plaintiff for his sole uae and benefit? 3. What sum, if any, was plaintiff entitled to recover ? After Mr. Heaketh had laid the facts of the case before the jury, he proceeded to call the following witnesses. J. S. Maofarlane : I am defendant in this action. About October, 1863, I and others were interested in a contract for the supply of meat. I tendered with one James "Williamson for the contract. Mr. Williamson had a half-interest at first, but in a day or two he gave Mr. Walters one-third of the whole contract. I retained one-third, and Mr. James Williamson retained a third. My third belonged to J. S. Macfarlane and Company— that is, to Mr. Machattie and myself. Messrs. Henderson and Macfarlane had nothing to do with this contract at that time. Tn selling it, Henderson and Macfarlane claimed a share of it, and had it. Henderson and Macfarlane had other contracts which benefited me, and they therefore claimed a share in this con- | tract, which I allowed them. The third of the share was sold for £1,500. Mr. Henderson had £500, and the other two five hundreds went to the business oi J. S. Macfarlane. Mr. Henderson did not claim hall of the proceeds— or £750. If he did, I don't recollect, The £1,500 was paid by three bills of £500 each, and I gave Henderson one of those bills. I sold the third of the contract to Mr. James Williamson. Those bills were paid. At least, I know our two were, Mr. Machattie was in Sydney at the time of the sale. I may have talked to Henderson and Macfarlane about the matter before I sold the interest, bu< I will not swear to it. Remember giving Mr. Mac ffarlane his £500. I don't recollect talking to Messrs Henderson and Macfarlane about £750. I spoke about £500 as their share. I don't remember Mr. Henderson telling me that he would take £500, and that the other £250 was to be given to Machattie. ] swear that nothing of the kind took place. Mr. Machattie got £500, which, with my £500, went intc the business. Thomas Macffarlane : I am a merchant residing in Auckland, one of the firm of Henderson anc Macfarlane. I was a member of the firm in October, 1863, and also Mr. Henderson. 1 believe the lattei gentleman is now on his way from California here, About the time mentioned I waß interested in acattL contract. What knowledge I have of our interest ii that contract I obtained from Mr. Henderson, wh( made the arrangement*. I recollect the sale of thii third interest by Macfarlane to James Williamson. The sum given was £1,500. We got one of the bills foi £500. Mr, Henderson said that our interest was i half. By Mr. Gillies : The bill for £500 wu dulj honoured. Plaintiff was examined : In October last £ wai in partnership with plaintiff. I was interested in th< cattle contract. Our firm had, with Messrs Henderson and Macfarlane, one-third interest ii the contract. That was so when I went to Sydney whither I went to make arrangements for the supply of cattle. It was in Sydney that I first heard of thi sale of the interest by my partner. Henderson anc Macfarlane had half interest in the third. On mj return defendant did not tell me how he had disposec of the money, I knew we had two bills for £500 eaol in our cash box. I heard something about sixmonthi ago from Henderson and Macfarlane. lam sure tha Messrs. Henderson and Macfarlane were entitled t< half our third in this contract, I often had conver sat ions with defendant about it. I never receivec any money from him on account of this contract. By Mr. Gillies : I have information that the thirc of this interest sold for £2,000. If the third wai sold for only £1,500, then we have got in the bus! ness what wa were entitled to, viz., £1,000 out o that contract. I don't know whether Henderson ant Macfarlane only got £500. I did not enter the billi in my bill book after my return. The entry writtei in the book produced is not in my handwriting, Part of it is mine—" JS.Z., 6th Sept. "—that is th< only part. It refers to a bill of £500, but I can't saj whether it is one of the £500 bills in question. 1 don't know at what date these bills Were granted. I am not aware whether the banks were in the habil of refusing to discount bills which had longer to rue than three or four months. I claim nothing of whai we were paid. I believe we got our share. I now sue for £250 due to me by Mr. Henderson. ] still believe the interest was sold for £2,000. By Mr. Hesketh : We were not in the habit ol keeping bills till they were overdue, and then discounting them. I come here for the £250 which was given to me by Mr. Henderson. That £250 was given to Mr. J. S. Macfarlane to present to me. James Williamson deposed : I reside at Epsom. In October, 1863, I was interested in a cattle contraot with Mr. J. S. Macfarlane. When the contract was originally taken up I had some interest. I afterwards purchased of Mr. J. S. Macfarlane the third interest which he held for £1,500, paid in three bills of £500 each. Those bills were all paid. I afterwards sold the same third to Mr. Buckland — a day or two after purchasing it. By Mn Gillies : The bills were dated sir, nine, and twelve months respectively. These two bills are marked as having been paid. This is also one of my cheques— it was given by me for the first bill that fell due, and is dated the 6th May. I gave no other bills at that time to Mr. J. S. Macfarlane. By Mr. Hesketh : At the time of this purchase I knew of the absence of Mr. Machattie, and for what purpose he was absent. This was the case for the plaintiff. Mr. Gillies submitted that the plaintiff must be nonsuited, as there was not the slightest tittle of evidence to Bhow that this sum of money— this £250 alleged to have been paid for the use and benefit of plaintiff— had ever been paid to Mr. Macfarlane. The Judge (to Mr. Hesketh) : Where is the evidence to support your declaration ? Mr. Hesketh said it had plainly been shown that his client was entitled to receive £750. His Honor said that plaintiff had not only got what he was entitled to, but had, upon his own showing, received more. Mr. Hesketh said that no doubt the total sum received was what they were fully entitled to, but this sum in question, which was plaintiff's own private money, had been mixed up with the partnership accounts. The Judge : But you have not proved that this sum of £250 was ever paid to defendant. It had been stated that the interest was sold for £2,000. Well, even if it were so, Mr. Machattie has admitted here today that the firm received £1,000, which would be the half. Mr. Hesketh still submitted that he had made out a primA facie case to goto the jury. At the same time he admitted that he ought to have had Mr. Thomas Henderson as a witness. He was expected by the Panama mail. Mr. Gillies said that the first issue was to the effect that Mr. Henderson had paid a sum of £250 to Mr. Macfarlane for the sole use of Maohattie. But they had not had a tittle of evidence brought before them to prove that allegation j there was, therefore, absolutely nothing to go to the jury. After some further discussion, Mr. Hesketh agreed to take a nonsuit. This concluded the business, and the Court adjourned.