DISTRICT COURT.—Tuesday.

New Zealand Herald, Volume XXI, Issue 7161, 29 October 1884, Page 3

DISTRICT COURT.—Tuesday.

[Before His Honor Judge Smiih.] H. M. Shepherd v. Hksry Swailer. — Claim £21 12a 3d. Mr. Edward Cooper for the plaintiff, Mr. Earl for the defendant. This suit was brought to recover the sum of £21 12s 3d, being the amonnt due for money had and received by the defendant, to the use of the plaintiff, being the amount of a certain payment received from the Board of Education, Auckland, under a contract originally made by the Board with one, Markee, and subsequently taken up and performed by the plaintiff, in the name of the defendant.— Evidence was given at some length, which showed that Markee, the contractor, was likely to be unable to carry out the work, and that Henry Shailer and George Rhodes, the sureties, undertook to have the work

finished to save any trouble about tho bonds. Mr. bnailer, as one of the bondsmen, employed I Markee to carry out the work, which he did. Air. Earl applied for a nonsuit on the grounds that plaintitf, by calling the defendant a3 hi" witness, had virtually, from tho testimony adduced, placed before tho Court two different stories, and asked the Court to decide which was the correct one. Mr. Cooper contended that it was for the Court to decide as to the balance of the testimony. His Honor held thai tbu only course hs could adopt was to nonsuit the plaintiff. Nonsuit accordingly 'with costs £3 17s, when the Court ro3e.