RESIDENT MAGISTRATE'S COURT

Timaru Herald, Volume XLI, Issue 3298, 23 April 1885, Page 3

RESIDENT MAGISTRATE'S COURT

TIMARU — Wednesday, Apbil 22nd.

(Before H. W. Robinson, Esq., R.M.) VAGBANCY.

Thomas Poylon, charged with being au idle and disorderly person wandering abroad and begging at Otaio, was brought up on remand from Tuesday. Sergeant Cullen conducted the prosecution. Accused pleaded " not guilty," stating he was looking for work at Otaio, and not begging for anything. D. McLaren, of Otaio, called, said he know nothing of accused except that ho had called at his station one night about a week ago, and asked for a "shake down." Witness allowed him to "shake down," and next morning accused went away. W. Sugden Armitage, of Otaio, said accused had come to his farm threo or four timc3 during the last six months. The last time he came witness gave him something to eat and drink, but would not allow him to sleep on the premises. As accused manifested no inclination to go away witness escorted him to the road and left him, accused at parting using some threatening expressions towards witness. This was the case, and His Worship said ho would have to quash the information aB the accused asked for shelter, but did not ask for tho food given him by Mr Armitage. Accused would therefore be discharged.

DBUNK WHILST IN CHARGE OP A HOUSE. Martin Whelan was charged with being drunk whilst in charge of a horse on Tuesday last.

Accused admitted he was drunk, and ConBtable O'Donoghue having proved the offence, Whelan was fined 10s, in default twenty- four hours' imprisonment. CIVIL CASE. The civil case R. Wilkin and Co. v. Allan and Stumbles— Claim, £100, was then resumed. Mr Tosswill appeared for plaintiff Company, and Mr Perry for defendants. Charles Bourn, recalled, in answer to Mr Tosswill, said the charges in Richmond's account were fair and reasonable, and that Richmond never objected to any of them, In answer to Mr Perry, he said Wilkin and Co., of Christehurch, arranged the sale of bark to Richmond ; that he (witness) drew out cheques, and with Mr Rutter, Wilkin and Co.'s salesman, effected and looked after the sales made to Richmond. All goods bought by Richmond had been charged at the ordinary rate.

To Mr Tosswill witness said Richmond had been only charged the actual cost for the bark i and to Mr Perry he said by actual cost he meant what was charged by the plaintiffs' Christchurch office, through whom tho bark, which had been imported from Tasmania, had been procured. Phillip Metz was recalled by Mr Tosswill to prove certain entries of sales made by him in the day-book, but as tho book was not produced Mr Perry objected. Mr Tosswill said the book woidd arrive by the Express from Christchurch, and obtained leave to recall the witness later.

James Allan, called, said he was formerly a clerk for Wilkin and Co. He had attended a number of auction sales at which Guinness acted as auctioneer. The auction, book (produced) was in his handwriting, and contained entries of goods bought by Richmond at auction sales. Richmond was always present at these sales. He could prove that Richmond bought skins as entered in this book.

To Mr Perry : Richmond was always present at the sales, and bid himself for skinß, etc.

The Court then (noon) adjourned till 1.15 p.m., when Phillip Metz, recalled by Mr Tos swill, Baid the handwriting in the book (produced) was his own. The item of £5 2s on the 21st December, 1882, was a sale by private treaty, and although it was not an auction account, it was entered in the auction ledger. Two ledgers were kept by the firm — an auction one and an ordinary one. The accounts rendered were taken straight from the daybook. On tho 11th January, 1883, there is an item of £21 18s 3d for skins. This was called an auction account because it was entered in the auction ledger. The item of £22 18s 7A was for goods purchased by Richmond. The entry was made by me. (Witness then checked the particulars of this item with His Worship.) Richmond bought several lots at different times. He had searched all the delivery receipt books but could not find the delivery receipt for the bark bought by Richmond on tho 6th February, 1883.

Mr Tosswill said he could not produce positive evidence of tho delivery of the bark, but with the permission of His Worship, ho put in an item in Richmond's book in reference to it..

Witness in answer to Mr Perry said he did not make the sale on the 21st December. Most likely it was made by Guinness ; he (witness) only booked it. ihe salesman had nothing to do with that department, it was only Guinness. The entry was made from what someone told witness ; he had no personal knowledge of the sale himself. The item of £22 18s 7d was a sale by private treaty. He did not see the goods sold nor did he know if the prices were ' reasonable ; he merely entered them. He received instructions to book all the goods to Richmond, but he did not know, whether they were for Richmond or who they were for. Re-examined by Mr Toss will: The entries were always made after the sale was negotiated. The lime pelts were delivered in the bags, then put but and counted by Richmond, and the numbers of the different lots were then sent in to the firm. That is the usual custom when selling lime pelts. Richmond was not necessarily present when witness got the particulars of the other items. There wero no other entries relating to those in

question. Re-examined by Mi- Perry: Never had anyone present to check Riohmond when he was counting the pelts. He could not swear positively that Richmond had given him the numbers of the pelts in those entriei referred to. . .•','. His Worship asked if Richmond's book was admissible in evidence, what was it put in to prove ? Mr Toßtfwill replied that it was to prove,

without doubt, the delivery of the load of bark charged £.'9 10s Bd, as ho was unable to i rovo its delivery to Richmond by the delivery book.. The principal rule iti evidence was that the best possible evidenco should be produced. Ho was unable to prove the delivery by Metz's evidence, and he was unable to find Richmond. Failing the production of this witness, and the delivery receipt, he had to put in this book as his best evidence. In support of this ho quoted Taylor on Evidence. Tho sale of the bark was entered in tho book before Richmond's bankruptcy, as items in tho book would show. On the grounds laid down in Taylor on Evidence, he would submit that the book ought to bo put in. Mr Perry contended that on looking into tho book closely it showed clearly, in his opinion, that it had not been made up by Richmond, but by someone else. Instead of being entered up from time to time there was evidence in it to show that it had beon made up from scraps collected and then entered up at one particular time. No reliance could be put on it as there had boen no evidence adduced to show when the accounts wero entered.

Mr Tosswill argued that the items must have beon entered by Richmond immediately after, the goods were delivered. Mr Perry said the last item in the book was on the 30th June, and tho next itom in the account was on the 17th July, so that the book could have been written up at any time, even as late as the time Richmond left the place. Ihere was no positive proof of its being in the handwriting of Richmond. His Worship would see that the ontries might have beon made after tho delivery of the goods ; they might have been made a long time after tho delivery, or they might even have been mado when tho Trustee took tho books over. Referring to Taylor on Evidenco, ho said the admission of a principal could seldom^ be user) against a surety. His learned friend would have to prove that the entries wero mado immediately after tho delivery of the goods, if the plaintiff's side wished to bring themselves within tho general moaning of tho rule. His learned friend had not exhausted all his means of evidence. Although he produced ono carter to prove the delivery of the goods, probably some other carter might have carted them and can producothe receipt of delivery. He had not made every enquiry to find that out. In his (Mr Perry's) opinion the writing in tho book was not done by Richmond. The entries in tho book were made up to the 16th July, and possibly up to tho time the Trustee took the books.

Mr Tosswill submitted that the ovidonce of Richmond's handwriting in tho books is admissible as being the only evidence he could produce on that point undor tho circumstances. The goods were delivered during the transaction of this account for which tho surety was bound. The defendants could huvo "produced evidence if they had liked, but instead of that they quote a judgment which does not bear on tho point. Ho submitted that the evidence ho had produced was conclusive evidence on the point at issue. His Worship was of opinion that Richmond had merely entered up the book to see in what financial position he stood, though it did not appear that tho entries had all been made at one particular time.

This closed the plaintiffs' case,

Mr Perry, in opening the case for the dofence, said there were sevoral points, in his opinion, on which the plaintiffs should bo nonsuited. The points on which he should be nonsuited were that the guarantee did not state on the face of it with whom Richmond's debts were to be contracted. Although it was addressed to Wilkin and Co. it did not show that they were to be the principal parties. On the question of interest, there was nothing lo prove that interost could be claimed. No agreement had been made as to its payment, and there had been no evidence adduced to show that Richmond knew that Wilkin and Co. were in tho habit of charging their clients interest on goods purchased. Mr Tosswill being unable to combat the points raised by Mr Perry to tho satisfaction of the Courtj His Worship nonsuited the plaintiffs, with costs. £3 19s. ...