This Day.

Daily Telegraph (Napier), Issue 3567, 14 December 1882, Page 2

This Day.

(Before His Honor Mr Justice Gillies.) His Honor took his seat at 10 a.m.

MULLOOLT V. AWATA TB HAKE. - A common iury was sworn in, with Mr J. B. Hollis as foreman.

Mr H. Byre Kenny appeared for the plaintiff. There was no appearance on behalf of tbe defendant.

This was an action to recover a sum of £170 14e 9d for goods cold and delivered, for moneys advanced to defendant, and for sums paid on his behalf, .together, with interest on the same at the rate of ten per cent.

Mr Kenny explained that the original claim against the defendant amounted to £880 Hβ 3d, but off this a total sum of £209 16s 6d had to be deducted, the plaintiff being debarred from cueing for it principally under the Statute of Limitation, and partly under the Tippler's Act. The defendant had in 1879 given the plaintiff three promissory notee covering tbe amount of the claim at that time, and including the* interest charged, and he (Mr Kenny) Would therefore ask the jury to accept that fact as an admission that the defendant was agreeable to pay the interest. \

The plaintiff was examined, and stated; he had received nothing from the defendant in payment of bis claim excepting £10, which he had appropriated to coyer, the amount for spirits which he was unable to sue for, and which did not appear in the bill. He received promissory notes from the defendant amounting to £300, but these bad been burned, one in the fire that took place at the Bank of New Zealand, Gisborne, and tbe other two in the fire at Mr Finn's office.

By the Court: Defendant stated on one occasion, when witness informed him that he would be charged interest, that he would not pay it.

His Fonor, in summing up, reviewed the facts of the case, and said that, in the absence of evidence on the other side, the plaintiff was entitled to recover for the goods sold and delivered, and for moneys paid and advanced, with the exception of the items charged up to the end of 1875, which were barred by the Statute of Limitation. This, exclusive of interest, came to £107 3s 3d. With respect to the interest the law did not imply that a person was entitled to pay interest on a current account unless an arrangement to pay same had been entered into. In the present: instance no i such arrangement seemed to havesever existed ; but, on the contrary, according to the plaintiff's own admission, the defendant had remonstrated when informed that interest would be charged. It was, however, entirely a matter for the jury to decide, and if they believed; from the evidence that the defendant had by implication or otherwise agreed to pay interest they would find accordingly. At the same time they would observe that the interest charged could not have been calculated, as stated, at ten per cent., as at that rate it would only amount to about £39, where*s it was shown on the account at £83 11s 6d. The only way in which the discrepancy could be accounted for was that probably, the defendant included interest for that portion of the bill barred, by the Statute, of Limitation.

After a brief retirement the jury returned a verdict for the plaintiff for £107 3s 3d, giving a negative answer to the second question, " Did the defendant promise to pay any interest on the account?"

His Honor entered up judgment accordingly. .:.... This concluded the common jury business, and the Court was adjourned to

10 o'clock on Monday morning, when tbe special jury cases will be dealt with.