MAGISTRATE'S COURT.

Otago Daily Times, Issue 10443, 20 August 1895, Page 4

MAGISTRATE'S COURT.

Monday, August 19. j (Before Mr E. H. Carew, S.M.) ! Judgment for the plaintiffs, with costs, was given in each of the following oases : —James Rattray and Co. (for whom Mr. Bathgate appeared) v. i Hector Mackay (Eastern Bush, near Invercargill), claim £24 lis sd, interest due on mortgage ; H. .1. ; Luchs (for whom Mr Sim appeared) v. E. F. ! Woods (Wanganui), claim £25 9s, casb lent aud money paid by plaintiff on belnlf of defendant ; A. Briscoe and Co. (for whom Mr Finch appeared) j v. Wm. Smith (Centre Bu.h), claim £12 13s Bd, j gooda supplied ; S. Solomon v. T. Chapman, claim ( £3 3s, for services rendered. ' John Wright v. David Duucan.—Olaim £60, on a judgment summons. Mr Sim for plaintiff, and Mr Solomon for defendant —His Worship gave judgment, in this previously-heard case as follows : —" This ia a judgment summons, and appli-. cation is made on behalf of the plaintiff that the original judgment for £60 16s 4d may be ordered to be paid by instalments. The case in re Spring (4 N.Z. Law Report-5, 2341) is without doubt a precedent that such an order may be made under 'The Imprisonment for Debt Abolition Ant 1874,' without proof that the debtor has had means to pay the debt since the date of the judgment; but I agree with Mr Solomon that it i« proper to consider the probability of ti. debtor being in a position to pay by instalment, and if there ia no such probability no. order should be. made. I | thiuk, also, that the circuinstaucKs as to how the debt was incurred should be looked into in considering the pressure that should be sanctioned to enforce payment. The evidence goes to show that the debt was for interest upon a mortgage of £550; that defendant paid nearly £400 for interest, besides paying off part of the . principal wifch money ha borrowed on security of his furniture ; that plaintiff subsequently realised upon this security, and that defendant had been a considerable loser by the transaction, and it involved him in difficulties., The debtor has sworn that his salary is £165 per annum, and that he.has a wife and.two children to support, and has no property of any kind. He also says his furniture is still mortgaged, as he has bee>p unable to pay off what he borrowed to give plaintiff iv reduction of the priucipal. He has interest to pay on that suni or will lose the use of the furniture, and he says he has other debts, incurred through his loss in the property he mortgaged. The judgment . debt therefore appears to be an honest debt, brought about ,by bad judgment or misfortune, and it is quite clear, under his present prospects, the defendant will not bsable to pay it Of course it is probable that if an order were made for payment by small instalments, spreading.the debt over a term of years, tbe defendant from dread of imprisonment, night, find means'to meet them; but if I have a right to exercise a reasonable discretion, as I believe I have, I decline to make an order tbat would be a'step, in the direction of squeezing a debt of this description out of a salary that is only reasonable means for the maintenance of the debtor and his family. Case dismissed." ■ Kathleen O'Callaghan v. Hr D. O'Callaghan.— Claim £10, as quarter's alimony.—Mr Jame3 appeared for plaintiff, and Mr Holmes'for defendant.—ln this previously-heard case his Worship gave judgment for the amount claimed, with costs. John Blaikie v. Scoullar and'Chisholm.—Claim £36 '165,-'-" for timber .-supplied.—Mr Solomon appeared for plaintiff, and Mr Sim for defendants. In this previously-heard case judgment was given for the amount paid iuto court aud'costs (£l 7s). James, Jenniugs v. William Cuttle.—Claim £120, damages for asrault, whereby the defendant suffered great bodily pain, incurred expense for medical attendance, and is incapacitated from pursuing his ordinary avocation. — Mr Fraser appeared for the'plaintiff, and Mr Solomon for the defendant—Mr Fraser said the plaintiff was a man advanced in years. He had a daughter married to defendant's br.ither Thomas, who kept the Rainbow Hotel in George street. On the evening of the sth June Thomas and William Cuttle were talking together iv the back yarri wben plaintiff went out and spoke to Thomas. Defendant mace -a rush at him. caught him by the collar, and ran him down the yard, bumping him up against a brick wall and theu knocking him to the rrcrand. It was in the fall that the plaintiffs armwa? broken. The limb was how in a fiir way to recovery, but it would be some time before it would regain its usual strength; In an old person a broken bone did not readily mend. —Dr JL W. Ross gave evidence, in the cr.ur.-e of which besaid it would be a fortu; ght yet before the plaintiff could use his arm. -The plaintiff gave evidence corroborative of counsel's opening statement.— Iri cross-examiuation; witness raid he had been pushed by his creditors for money i and one of his horses, had died. The other was in possession of his daugbter (Mrs Cuttle). Witness was a sober man,'hut'occasionally'had-a drink ; but bn the night of tbeassanltbe was perfectly sober. He had stayed at the Rainbow Hotel since February last. He had'not been living with ■ his'wife, and Avas bound over to keep the peace. On tbe nightof the'assault witness had a few drinks. Defendant 1 was a good friend to witness, and lent him £5 or £6, but he had paid him back The licensee of the hotel might have taken a dice box out of witness's hand.—Evidence was given by Edward Francis Gerkins (who said the disturbance commenced becaute the licensee refused to allow dice to be thrown), James Gawn* (barber), and Margaret Cuttle (wife of Thonias Cuttle).—Mr Solomon, for the defence, referred to inconsistencies in the evidence of the plaintiff's witnesses. The facts of the defendant's case were these: William Cuttle went to the hotel at the invitation of Mrs Cuttle to prevent a row. On going into the back yard with his brother Thomas, plaintiff came out and caught him round the waist. In the struggle they fell, Jennings's arm being broken.—William Jennings and John Forrest gave evidence for defendant,- after which his Worship intimated that he would give his decision uext court day.