RIGHT OF SET-OFF.

Hawera Star, Volume XLV, 25 November 1925, Page 9

RIGHT OF SET-OFF.

MORRISSEY AND CO’S. DEFENCE. UPHELD BY MAGISTRATE. Reserved judgment in the case in which N. Horrobin, of Levin, alleged that the sum of £8 Is (id had been wrongfully deducted by R. P. Morrissey and C'o., of Hawera, from the sale of his horses, was delivered at the Magistrate’s Court at Hawera to-day. The plaintiff, N .Horrobin, claimed the sum stated above, while Morrissey and Co. claimed the right to set-off the same amount, alleging that they had looked to one Jackson as the owner of the animals and, therefore, had the right to off-set the amount oi Jackson’s account (£8 Is sd) from the proceeds of the sale. Defendants, the magistrate stated, were auctioneers at Hawera. They sold horses brought to them by one Jackson, who had previously sold horses through defendants and who was indebted to defendants in the sum of £8 Is sd. It was agreed that the debt should be deducted from the sale of the horses. It was proved that the horses were the property of the plaintiff and Jackson had no interest in them except that he was entrusted with them for sale. The magistrate agreed that until immediately after the sale the defendants knew nothing of the plaintiff and had no suspicion that Jackson was not the owner of the horses. The plaintiff sought to recover the amount of Jackson’s indebtedness retained out of the proceeds of the sale, but he was satisfied that the matter was concluded in favour of the defendants by the case of Montagu v. Forwood. After quoting various authorities he contended that Morrissey and Co’s, right of set-off was complete as soon as they had completed the sale of the horses for cash. The plaintiffs had shown no ground for taking that right. He was ‘satisfied that the Auctioneers Act of 190 S had no bearing on the point at issue. Judgment was for the defendants.

With regard to the counter-claim the magistrate said that the facts alleged and proved at the hearing were those relied on in the main action. They established, in his opinion, the defence of set-off and afforded no ground for a judgment in favour of the defendants against the plaintiff. There had been one point at issue in both actions and only one hearing, and the statement of counter-claim served to inform the plaintiff fully of tiie defendant’s defence to the action. The defendant was thereby nonsuited, without costs, on the counter-claim. iAt the hearing Mr. A. AV. Free, of Levin, appeared for the plaintiff (Horrobin)’ and Mr. B. Ala lone for the defendant company.