RESIDENT MAGISTRATE'S COURT.

Taranaki Herald, Volume II, Issue 99, 21 June 1854, Page 3

RESIDENT MAGISTRATE'S COURT.

Before the Resident Magistrate dßfflßvVir.soN | Esq., J, P. ™ j Im^at v Wilson. — This was an action to repo- | vor £\ 1 Is. id. The olnim arose out of a previous | action between tho parties tried'in this Court n short time since, respecting a consignment of I Cheese, in which the present plaintiff wm defend* ant. Mr. Norris appeared for the plaintiff, and I Mr. Richmond conducted the defence, I The plaintiff claimed to reoovor back the aura for which the action was brought, it having boeu discovered that the amount h»d been overpaid on making up the ncoountw sales and expense*. 1 Tho speculation had been an unfortunate one, and at the previous trial the plaintiff staled that considering the has which had occurred he had not charged freight. In the account now put in a charge for freight was male, and formed the gieater part of tho claim. The plaintiff considered that the defendant having sued him on tho previous > occasion he was released from his promise not to ' charge the freight. It was not the amount that ho cared for— lf recovered it would bo given to some charitable Institution. | M?r. Richmond for the defence contended that , Ihs plaintiff did not prctond that the payment was mads under any mistake. Tho £15 paid was ) taken by the defendant in part of his claim, and I without prejudice to further proceedings. In the ■ last action the Court had not pronoun' cd upon that claim, and it was still open and a new notion might bo brought. The learned gentleman then cited some cases from the notes to Smith's leading cases to show that an amount having been paid with a full knowledge of all tho circumstances, and received without fraud, could not be recovered b&ck, Mr. Norris staled that the c>«os cited refer to accounts whicli have been closed, and not to an open account, as the defendant's attorney admits this to he. Mr. Richmond contended that that would miilcc no differc nco, it was a settled point that monoy pnid into Court could bo taken out by the plaintiff although a nonsui}/ should pais against him. A payment on account was an admission to the extent of the payment, and could not be recalled, Money might be received without prejudice, but could not be so paid. There were plenty of cases in point. It mutt be clear that a different course would lead to endless litigation, Tho Resident Magistrate dismissed the case* observing that the freight had been foregone by the agent on the part of his principal, and that tbo plaintiff's ageut being in full possession of all the circumstances when he made the payment, the payment mart be taken to be an admiaiion that the amount was due.