APPEAL CASE.

Nelson Evening Mail, Volume II, Issue 9, 11 January 1867, Page 2

APPEAL CASE.

Enderby, Appellant, v. Hunter, Eespondent. This was an appeal to the Supreme Court against a decision of the Resident Magistrate of Nelson, on behalf of the plaintiff in a civil case in which the present respondent sued the appellant for the sum of £19, the price of goods sold and delivered. The Judge, who has reversed the judgment of the Resident Magistrate, writes as follows : — " It is to be presumed that the Resident Magistrate decided not merely as a Court .of Conscience (ia which case this Court

could not interfere, even if it thought that it had come to a wrong decision as to the equitable merits, which it is by no means prepared to affirm), but according to what he took to be the strict legal rights of the parties; and the Court in determining whether the decision thereon was correct, must confine itself to the questiou submitted in the case. "Tbe first question substantially is whether the defendant in the Court below, having once stopped the cheque, was bouud to pay it to Murdoch, the holder. Now, if the defendant had not ultimately allowed the bank to pay the cheque, the holder might have had an action against him which he might have defended successfully if he had been able to prove the illegality of the consideration for the transfer of the cheque, aud notice to the holder as suggested by the case. "But he was not obliged by law to stop the cheque aud abide the action, and run the risk of failure, in order to extricate the plaintiff from the effects of his own folly, iu engaging in the gambling transactions. " It is true that the defendaut promised the plaintiff that he would do so, and in the first instance acted upon this promise. But this was not an agreement or contract upon which the plaintiff could have maintained any action, for it was merely nudum pactum, without any consideration, aud the plaintiff after dealing with the cheque as he did, could not even equitably have called on the defendant to slop it without indemnifying him against any action which might be brought against him by the holder ; and although there may have been a breach of good faith by the defendant in countermanding his direction to the bank, to stop the cheque, without giving notice of the countermand to the plaintiff, I see no reason in point of law, Avhy the defendant should not on reconsideration refuse to run the risk of an action by Murdoch, and, therefore allow the bank to honor the cheque. " These considertions afford an answer to the second, as well as to the first question put to the Court in the case. I am of opinion therefore, that in point of law, delivery to Hunter of the cheque which was afterwards paid, amounted to payment of the debt for which the plaintiff sued (see Pearce v. Davis, 1 M. and Rob. 365, per Paterson, J.) ; and that there was no new biuding contract betweeu the plaintiff and defendant which altered the rights of the parties. " The judgment must, therefore, be in favor of the appellant, the defendant in the Court below. "Judgment for aqpellant, with costs."