RESIDENT MAGISTRATE'S OOURT.

Otago Daily Times, Issue 7287, 25 June 1885, Page 4

RESIDENT MAGISTRATE'S OOURT.

Wednesday, Juke 24, (Before E. H. Carew, Esq., R.M.)

Hugo Wertheim (per R. Lochhead) v. J. Gurr.—Claim £5 63. After hearing the evidence of the defendant in this case, judgment waa Riven for £1 and costs.

James Wilson, brewer (Dunedin) v. Patrick Moonay, hotelkeeper (Thornton, Invercargill). —Claim £22 0s 6d on a judgment summons.— Mr. Stuart appeared for the plaintiff, and Mr Solomon for defendant. The defendant did not appear. In reply to his Worship, tho plaintiff said he had not tendered the defendant the necessary costs. He had, however, seen him in town tbat morning, and only 10 minutes before the case was called he had seen him outside the Court.—Mr Solomon argued that as expenses had not been tendered his client, ho was not called on to appear to answer the charge.—His Worship ruled that as the defendant bad been outside tha Court, and failed to answer to bis name, the fact that he had not been tendered expenses was not a sufficient excuse for a dismissal of the caso. His Worship considered that it had been shown that tbe defendant could pay the amount if he cared to.—An order waß made for payment of tbe amount and costs by instalments; in default 21 days' imprisonment in Invercargill gaol. J. Elmor v. T. O. Stokes, jun.—Claim £21 163 6d, on a judgment Bumnnns.—Mr A. S. Adamß appeared for plaintiff, and Mr Stuart for defendant.—After hearing the evidence in this case, and proof having been adduced to show that defendant was in a position to pay the olaim, the defendant was ordered to satisfy the same within 14 days; in default 21 days' imprisonment.

E. Grimmett v. David Yorston.—Olaim filG.balanoedueonabuildingcsntraot.—MrW. Macgregor appeared for the plaintiff, and Mr A. S. Adams for tbe defendant.—The defendant put in a set-off for £24 9a 4d, for goods supplied.—After opening the plaintiff's caso, an adjournment was mado until Friday next. Hogg, Howison, and Nicol, and Co. v. Robert Stewart.—Claim £40, for six months' rent due for portion of run Mount Alta, No. 333, the Bame being payable in advance and due on Ist March 1885.—Mr Kettle appeared for plaintiffs, and Mr Chapman for defendant.—His Worship gave judgment for the amount claimed, with costs.

Ada Tondut (widow, Dunedin) v, Georgina Elizabeth Papprill.—Claim £100, for money had and received by defendant to plaintiff's use on or about the Cth February 1885, and for money payable by the' defendant to. plaintiff on an account stated, and £1 10a interest on the sum of £100. The plaintiff abandoned her claim for the intarest, and sued for the £100 alleged to be due to hor.—Mr Sim appeared for the plaintiffj and Mr Fitchett for the defendant. — In th'ia previously heard case his Worship now gave judgment as follows :—

The putles agree that about tho 9th Pebiuary last there was a statement between them respecting the partnership accounts. Each, howovor, gives an entirely different version of wh»t took placo. According to plaintiff it was agreed betweon them that there waa a balance due to her of £UO. AocoidlDff to the defendant it was agrood to be £87, and further, that this balance waß then paid to the plaintiff Plaintiff admits rocoipt of £87 about this time, but pays, It w»s In payment of a loan to defendant in Juno 1884. The defendant denies that money was lent to her in June or any other time. Upon these faots 8 C D a, 3 n e n S S"1? »outu by the P'aln«« '<" either £87 ?J*i«>,BubJMtto l, h<> question of payment; and I think the question of whether it is £87 or £100 must Btend or faill upon whether the e-idonce proves that £87 waß paid in teltlement of tho borrowed money or of the partoerahip account* It has been shown that the cheque for £87 waa oaehod on the eamo day as the cheques that wore given to close partnership liabilities. This, if merely a coinoidencT Is a very strange one, for It happened Just oa one would cxpeot If there had been a complete settlement of all their partnership transactions at this time which defendant says was the case. The partnership insets appett to have boen as follows:—C'a'ta In bonk £15 Is 7d ; Inßurance money, £200: total,£2is la 7d' Liabilities, £27 is 8d; leaving a balance of £187 16s lid-that I>, £93 18] 5Jd for each If they bo equally Interested. Plaint Ct says »ho gave defendant' her portion of the lUbillt ej, leaving her share of the (oiunace' money clou. Tbli dehnduit denlej, tad

there Is nothing to corroborate either statement. Tho statement of the witness Chain that he, saw the entry in plaintiff's book of a loan ol £S7 is not ovldenco, 09 it has not been proved that defendant saw it excepting for the purpose of identifying the noxt . page of the book as having been looked at by dolon-1 drat The statement that while tuoli an accountbook was bjinz passed in front of him in December last he saw and read what ia written on two opposite sides of the same leaf of papor; and that what ho then read should remain fixed on hU memory soma six months attorwuda does not impress my mind aa being at all probable. Looking ai the whole caie tbo probabilities ate strongly in lavour of defendant's cise. It has bora ahown ehe wns not in want of money at the date ehe is alleged to have borrowed money. There appears to have been no life policy to redeem at the time the loan Is alleged to have been m»do for that purpo ;o. Two months after the alleged ' loan plalntm iound defendant in a position to put £150 Into the business they go into, but does not appear to have been surprised at defendant's altered circumstances, nor to have sought for payment ol tho debt for the alleged loan of a large Bum of money. It Is also strange if at tho time when the yaitles ascertained the amount due to plaintiff in the partnership accounts, thoro being no reason why.this division ehould not be then malo. That this division Bhoi'd be deferred without any apparent object, and that just at this particular time this alleged old debt should be paid with moneys which plaintiff must have known, it it be truo, were partnership assets. There eeoma to me nothing unsatisfactory in defendant's evidence, with <be exception that sho failed to explain how plaintiff's portion of the assets was reduced from £03 odd to £87, but that is not a matter for much surprise. My belief la that the £37 was paid in settlement of tho partnership accounts, and that nothing is now due. The plaintiff will be nonsuited, with co;ts £316 a).