MAGISTRATE'S COURT.

New Zealand Herald, Volume LIV, Issue 16434, 10 January 1917, Page 3

MAGISTRATE'S COURT.

CLAIM FOR GOODS. INTERESTING LAW POINT A CLAIM for £66 7s 3d, for timber and - hardware supplied by A. McColl against Mrs. M. E. Clark, of Cambridge, was heard by Mr. F. V. Frazer. S.M.. at the Magistrate's Court yesterday. The defence was that a judgment for the same debt had been obtained against C. J. Clark, husband of the defendant, in the Magistrate's Court on May 2. A traveller for the plaintiff said that in May, 1915, an order was booked by Mrs. Clark for £51 14s '3d, and the amount was paid tho next month. She gave the name . " Mrs. C. J. Clark," and the account in • the books was headed '•' C- J. Clark. ' After paying this account she ordered more goods to the value of £66 7s 3d. She did not definitely say she was "C. JClark," but inferred it. The plaintiff' knew nothing of the husband, and it was • the wife/to whom credit was given. It was not until April, 1916, that the firm sued C. J. Clark,'who confessed judgment, and on a distress warrant against C. J. Clark being issued it was returned marked "No effects." It was then discovered for tho first time that C. J. Clark was the husband, not the wife. The wife owned all the property, and the goods ordered i were for a house to bo erected on her land. There was no dispute as to the facts. The only question was whether judgment having been given against the husband was . it a bar to the present proceedings on the ground that there could not be two judgments for the same debt. Mr. Edmund Mahony, for the defeu- • dant, contended that the case was governed by a recognised principle of law: that where a plaintiff has elected to sue ■ the agent instead of the principal, or vice versa, and has obtained judgment he could not bu£ the other/ Ho cited cases in support of his contention. Mr. R. W. McComiell, for the plaintiff, cited a recent English case, Isaacs v. Oalbstein, decided last year, which' distinguished cases of mistake front thuao where a deliberate election had been made. The magistrate said he was satisfied it was not a case of agency. The plaintiff had dealt with Mrs. Clark, and through an innocent mistake on both sides the husband had been sued instead of the wife. It would not. be equitable to deprive a, plaintiff of his remedy against a debtor because he had fallen into the error of obtaining judgment against a person Who was not a party to the contract. Judgment would be tor the plaintiff for the amount ' claimed, less £7 paid on account, for I which credit had been given. Costs, £6 7s 6d were allowed.