R M COURT.-Thursday. [Before R.C. Barstw, Esq., R.M.]

Daily Southern Cross, Volume XXXII, Issue 5804, 5 May 1876, Page 3

R M COURT.-Thursday. [Before R.C. Barstw, Esq., R.M.]

JuJHfMEXT.S FOR ] J L YINTIFRS. — John S. Cobley v. John McLeunou, claim goods, Cl 15s. ; costs, £1 4s. (id. Thomas MaeffarLvue (trustee of Giles' estate) v. Richard Garnaut, claim £4 15s. lOd. ; coats, £2 Is. McDougall v. Edwards. This was a case heard last (Jourfc day, in which pLimtili recovered £12 for a watch lost by defendant. — His Worship made an order for the amount to be paid by weekly instalments of £1. Wilmam Rytti:a\ \. Ghom.r H. Kincher. — Claim £8 10.". 7d., judgment summons. Mr. Thome for plaintiff ; Mr. Joy for defendant. The defendant himself did not appear. — Hu» Worship remaiked upon his absence, but on receiving .in explanation from Mr. Joy, that no contempt of Com t was intended, consented to adjourn the cusp till next Court day. Thomys TiiOMi >ov . Symiti Dyvjs. — Claim £2 13s. 5d. judgment summons. — Mr. Thome appeared for plaintiff. Defendant appeared, and was examined on oath by his Worship as to his means with which to satisfy the judgment, and to show cause why he should not be imprisoned for non-pay-ment. Defendant swore that he had no means, lie was dependent on his wife and soiii., one a carpenter, and the other a shoe ma leer The debt had originally been £1 8s lid He had paid 10». when he had got some work to do, but the action now taken had increased the amount to nearly £'.i. He had no property whatever.— Mi. Tliorne proceeded to question deteudantas to his means last year, but his Worship mled that the witness could only be examined as to his position sini-e the judgment had been obtained. The e\ ulence showing that defendant had no means, he could make no order. Ki iii/ulo, niliif fit he could not older him to pvy out ot nothing — Mr. Rees agtced with the view taken by his Woiship. The Act was not meant to put a man in prison who cannot pay. -Mr. Thorne thought the Act meant to make a mm woik m onler to pay his debts, and not go about with ln-> hancU in his pockets, whilst supported by his wife and family. — The defendant svid lie was anxious to got work, but being now in w'U'i found a dilHeulty in doing so — Mi. Thome asked that the case might be ad journcd for six months.— His Woiship icfused He lojked upon it that the party bringing the matter into Court must prove that the defendant has the means to pay. He must bide his time, and when ho knows that the man can pay. and won't, then bting him before the Court His Worship read the clause in the Act. — Mr. Tliorne asked if there was no power of getting a second judgment summons * — His Worship said he could not give one for the same debt. A distress warrant might bo taken out, peihaps. — Mr. Thorne said the defendant would tike good <aie of that — Tlio oi->e was dUn.issed, Vtith tvits. Pyi .."( k M vitrrx v. Joirv Mouu>. Claim £IS 17b. 6d. —Mr. Thorne appeared for plai tiff and stated thai defendant hadoffu-ed to pay .'5O-3. a-month. Plaintiff was willing to accept the arrangement. — His Worship made an order for 30-. to be paid every four weeks ; the lirst payment to be made on the fii.st of June. In default of piyment of any instalment the whole debt will become due again, and defendant will be liable to GO Jays' imprisonment. TlIOM Ys M YCfTYRL YNE.TRLM'FKOI' GrOttCr, Gil*s, \. Ri-svv Gkyttex. Claim 17 14s. 7d. Mr. Hesketh for defendant. — '1 his was a claim for goods, supplied, to which defendant pleaded .i* ,i oft oil the -,11111 ot one quartci -. interest on a 11101 teage she held over real property belonging to G1L.3. — His Worship asked if the case could not bu settled out of Court He thought it could by the appearance of it. —Mr. llees said the bet-off was not admitted. The defendant could not by any possibilit}' prove the debt against the estate The trustee could not acknowledge it. The dobt was secured on mortgage, and the Act required that the value of the security should be estnnited. and then the deficiency, u any was f ni'id to exist, could rank on the estate —Ms Hesketh siid the defendant denied the debt in the tirot place, or admitting the debt, then she pleaded a set-oil' of £16. -Mr. Rees sail pleading a aet-offwas admitting the claim; the defendant was actually asking the Court to give her the balance — Mr. Hesketh denied that he admitted the debt. Though he had given the one pica of a set-off he might have half-a-dozen other defences.. He was not bound to give notice ot all in the Resident Magistrate's Cmiit, though bound to do so in the .Supreme Court. — His Worship thought it very doubtful whether this amount of interest could be a claim against the estate. It clearly could not be usud as a set-off if the security held was sufficient to pay off the mortgage and interest. If the defendant chose to sell under the mortgage, and by so doing realised the money lent and the interest thereon, theie would no longer be any claim for interest.— Mr. Hesketh said that was not the point. It was whether when a person is sued for €7 14s. 7d. he cannot put in as a si 1 1 -off the interest one of the quarters due of vrhiAi half-a-dozen are unpaid, £9(> unpaid intiieot was actually due. — His Woiship pointed out another difficulty 111 the bet-uil. It said a quarter's interest, but did not say w hich qu irfcer; it gave no date — Mr. Hesketh thought that surely when a per->on was sued for a small amount he could declin* to pa> when the claimant owed a muJi larger amount. — Mr. Rees said the claims must be "mutual.'' This was not a trade debt. If the defendant gave np the security she eonltl then rank on the e&t.ifce. — His YV 01 -»hip believed he had not the power to give judgment for the balance in favour of defendant. —Mr. Ileus said certainly ho had not. That would put the defendant in a better position than if no action had been taken by the tiu>tees. — Mr. Husketh thought she was decidedly 111 a better position. — H13 Woiship's impression was that there was no rijht of off in the present case. He woul I postpone his decision for a week if Mr. Heskath wished, so that he might think it over. Reference was made to the lS3rd and 10.1th clauses of the Act. His Worship said that, though the claim for interest might bo made a " mutual " debt by arrangement between the parties, he could not compel them "o make such arrangement. Under the 105th cluise he must decide against defend int, as he supposed the claim tor £7 14s. 7d. was not dispute 1, and give judgment fo.* that amount with fl UN. co3ts.— Mr. Hesketh said ho would consider the advisability or otheiuise of proving in the estate of Giles. The fact was the property mortgaged had been sold by a former mortgagee. There was theretore no security for the £S00 and interest due to Mrs. Gratteu, who had taken an assignment of a mortgage from the trustees of the Melanesian Mission, thus complicating the matter still more. John UnNitv Fieiu v. Samuel Worm-'. —Claim, printing, £3 7s. Gd. Mr. Hughes appealed for plaintiff; Mr. Rees for defendant. This was an action to recover a debt incurred by defendant when (as alleged by plaintift) carrying on business as Brown and Co., fruiterer.*., 111 Queeu-stioet. — The plaintiff deposed th.it defendant had promised to pay. — Mr. Recs cross-ex unined witness to •,how that the debt was incurred by Brown and Co., of which firm the defendant was a partner. Witness said that he had been told by Brown that he (Brown) was only a servant of defendant, at a silary of £2 a week. Some of the thing* had been ordered by Brown. — Mr. Hughes called Samuel Worms as a witness for the plaintiff, and warned him that if he did not receive the

aubwerd to his questions wln> h he waentitled to receive, he would take other steps. The evidence of the defendant did not support tho claim against him.— Mr. Ree.s produced an account, in favoui of Brown and Co , against the plaintiff, w li > remitted some ot the items but denied others — Mr Rees aigued that, but for the dispute ns t / the correctness of the account*, evidence as to which only could hi' gi\ui b\ Brown, who had gone to Sidney, the e.i^c would not have been brought. 'lhc plamtiu should have sued Brown and Co., not Worms. He asked Jor a nonsuit — Mr Hughes refused to take a nonsuit. —His Worship thought plaintilf showed a want of caution in not seeing liiown befoie he went away, if he had any doubt .is to the parties who owed the money. He must give judgment for the defendant, with costs, 10s. Gd. This would not prevent Brown and Co. bumg sued. H. L. AxUKKtiON" VND J AN r J> C. B. Ckuich.sha.xk v. Tjiomvs Damon, jln*., Hnvm Dvlto.n, and Svmull Du,ro.\. — Claim, goods, £32 ISs.— Mr. Hesketh appeared tor plaintiffs —The defendants denied their liability, and deposed that their father and Uncle William had incurred the debt, which wab for .uticles supplied to the yacht built by them (the defendants) in their leisure time. Their father and uncle, under the style of Thomas Dalton and Co., had employed them shoemaking, and had paid them no wages. These things, however, were to be taken by them as pait payment. — At the close of the evidence of Thomas and Henry Dalton, Mr. Hesketh elected to take a nonsuit His Worship allowed no costs. J. B. Rcssell t. P. F. M. Bukkow s — Claim, promissory note, £17. — Mr. Devore for plaintiff, Mr. Thome for defendant. — The defendant resides at Wellington, but will be in Auckland within 10 day..—Adjourned till May 18. W. L. Roth v. J. H. G. McLevnon.— Claim, gooda, £33 3s. 7(1.— Mr. Devore for plaintiff, Mr. Joy for defendaut.— This case had been ad|ourned Iroin last Court day on the question ot the jurisdiction of the Court. A number of cases had been cited, ab bearing ou the matter, but his Woislnp had been unable to hud anything very conclusive in them. In a case (Avards v. Rhode* and others, 22 Law Tourual. 10G, Common Pleas), howevei, his Worship had found a, very distnict ruling as to the jurisdiction of County Courts, and as to the terms used in the Resident Magistrates' Courts -Act. It was a case in which the plaintiff sued for £87, giving credit for £14 paid on account, and allowing £17 moie as a >,et-ofi", so as to bring his claim within the jurisdiction of the Court. £36 was sued for, and the Court held that the amount paid on account clearly might be deducted from the £07, but then £.">.! would have been left as against winch the set-off stood. The Chief Justice, in giwng judgment, said that if the amount of tho sot off and the money paid into Court hid been changed the case clearly would have been within the jurisdiction of the Court, though the original sum was £67 ; thus show ing that though the original sum exceeded the jurisdiction of the Court, when that sum was reduced by items in account, so that the haluice to be lecoveml was within the jmisdiction, the Court could act. It was clearly set forth m the case quoted, that the amount was reduced by items m account other than an admitted set-off, that is, a set off by consent of both parties. Of course, the matter would alwaj-. bo open for cousideiation as to what account was so reduced; it might prove not to bo the account before the Court —Mi Devoro a->kcd if he \va-> to undent md t!ut his Worship ruled this ha had jurisdiction. — His Worship • The judgment of the Court is that if tho accounts upon which Roth sues has been reduced so as to bring it within its jurisdiction. I can hear the case, but I am not satisfied that the money paid was on that account. — Mr. Joy said the defendant h*d sworn that he had never paid a shilling on the account sued for — what he had paid was towards an amount of £50, and not on account of £7(3, for which he had never received a bill, which he had never admitted, and never intended to admit, as correct.— His Worship thought it possible that, upon hearing the evidence, he might lind that he hid n<) lansdiction ; but ho «.. mid not it the pr^cnE sta?e say so. Ho »vould h*ir the evidence no^t Court day. H. L Po^ineskte \. John Wtxch(OMm —Claim, goods, Sec, £12 3s.— Mr. Hu^'la-. appeared for plaintiff, and stated that, since a judgment summons had been issued, £4 10s. had bjen paid. H: applied for an order. — At tho suggestion ot the Court, the cisc was adjourned till the 29fch of June. FitEnnu. k G. Clutox \\ WiLLiur Fru-,— n laim, slaughtering fees. £4 2s. (id. —On tho appl cation of Mr. Thome, who appeared tor plaintiff, this was adjourned for a week. Thomvn Bvrr v. John' Mullvly. — Claim, !.'» 11s. 10d.— On the application of Mr. Hughes, who appsared for plaintiff, this w a*> adjourned for 14 days.