MAGISTERIAL.

Timaru Herald, Volume LX, Issue 2358, 1 April 1897, Page 3

MAGISTERIAL.

p » ■ I TlM AKU— Wednesday, Mauch 31st. f (Before C. A. Wray, Esq., S.M.) CIVIL CASES. Judgment by default with coßts was - given in the cases:— W.Cce v. JHenry e Oook, claim £3 6a 6d; same v P. E. i Hoare, £3 15a; Ballantyne &Co. v. J. Robf inson, £5 18s lid; Waddell and Orerar (Mr White) v. C. Hobbß, £4 sa ; J. Craigie t v. J. Campbell £18 108. c A. Davidson and Uo v. W. .M/Milling- > ton, claim £1 7a 6d, judgment summons. Mr White for the judgment creditor, c examined the debtor. The judgmenl !• was obtained on the 3rd inat Defendant * said he had earned nothing to pay the e debt since the judgment. He admitted '. that he had given a bill of sale over a >f horse and trap since the judgment wag obtained the Uorse aucl cart wefc

seized under the judgment by the bailiff but were given up on a definite promise to pay next day, and the promise was not kept, because he had not the money. He offered to pay 2s a month, said he could not pay 2s a week. R Kennedy, bailiff, gave evidence of the promise and the release of the property seized. — Defendant said he did his utmost to keep his promise, but he could Hot get the money. He had had a lot of hard luck, and only wanted time to recover himself. —Allowed 14 day 8 to pay the whole amount, in default seven days' imprisonment. J.'Bivßutland v.Jane Scott, claim £7 2s '3d. * Mr Raymond for plaintiff, Mr C. Perry loir defendant. WJfcne.sseS; were ; ordered out of Court. — Mr Raymond. said, the claim was for a quantity of seed wheatand sacks supplied in July last. .There was a set off put in, by which it was claimed that on April 18th last year a sum of £14 10s was jeft in Mr Rutland's hands to pay cer tain. r,e.njk. coming due and to pay for the seed^. .^)ieat, and it was alleged that the rent jffts, pot paid; and the seed wheat wa^npw, being sued ,for. The defendant admitted, the claim for the seed wheat, and claimedrefund of the balance £7 7s 9d. The defendant therefore was the real plaintiff, and should prove her case. Mr Perry stated defendant's case. Mrs Scott, who pwnsr a small farm near ■Washdyke, being in bad health last year, w£s offered .to ; go to the North Island, andto^ enable her to do so she got Mr Rutlanato'; arrange a loan of £40 on mpftgage for her, with Mr Smithson. She'ha'd'preyio'ußly got £5 from plaintiff, arid #Hen the £40 (leas £3 3s costs) was obtained, this£s was repaid, with £1 Is for commission. As Mrs Scott's rent would come due while she was away, and some seed wheat would be required, she left £14 10s in Mr Rutland's hands, to pay the ?rt»^t; ■■'£6 lOs;. and £8 for the se'ediWheat^' Mrs Scott .returned home inj <<AagUßt J , and goon' after was asked bytpl'aintrff about?. his'. -account for the seed wheat :• which ; he ,had .She said " You had the money for that." He said he had not ; that the money wps kept to pay a debt of Davie, her sori*in-law. It then turned out that at .the -.time of the raising of the, loan through Jjfcutland, Davie owed him some money, on a promissory note, and Rutan.d ha(i ; tak^n the £14 10s towards the liquidation of that debt, and charged Mrs Scott., .with the seed wheat, rtfhen Davie \pent for the money to pay the rent, plaintiff said he was going to keep the money to pay his debt, and he wanted Davie to give him a promissory note for the wheat, but ultimately he let him have' the seed without the p.n. Davie paid the rent when it became due out of money he had earned himself. The seed wheat had been paid for out of the money left with ; Mr Rutland, and he a6ked fot judgment for the balance of £14108. • I Jane Scott, the defendant, a widow, gave evidence generally bearing out counsel's statement. The £14 10s was not given to Mr Rutland for him to pay the rent or to pay for wheat. When she got the loan Davie was with her, and she was telling him that she would leave him £14 10s— £6 10s to pay the rent, and £8 to pay for seed wheat-^when Mr Rutland, who heard it, said if she liked she could leave the £14 103 with him, and she thought it was very kind of him to offer to take care of it. Davie was to get the money to pay the rent and for the j seedj When shereturned from the North Island, she saw plaintiff, and he said that he had kept the money to pay Davie's debt She knew nothing of Davie's debt to him. Had asked for the money twice. Had not taken legal proceedings before, through having much sickness in the house. ' Mr Raymond cross-examined at some length. Defendant said she did not mention before the plaintiff the name of > the person to whom rent was payable. ! Davie was to get the money from Rutland to pay it. Witness admitted that she was not a business woman, and that her memory was not good. Her daughter, now Mrs Davie, always helped her I in her business. Agnes Davie, daughter of last witness, gave similar evidence in chief. In crossexamination by Mr Raymond the, witness became mixed up among receipts produced by Mr Raymond. She was certain that two papers placed before her bore her signature, yet she repudiated the contents of one of them because she was not in Timaru on that date. She was only with her mother at Mr Rutland's on the 10th April(her wedding day) when the £5 was borrowed, and again on the 18th when it was returned out of the proceeds of the loan of £40, yet the receipt for £5 that she recognised as signed by her for her mother was dated the 15th. She was also confident that only one £5 was borrowed, and then Mr Raymond produced a second receipt for £5, dated the 10th. Witness when re-examined recollected that her mother came to town for a few days between the 10th and 18th, so that witness and her husband might have the place to themselves a little while. The amount paid over to her mother was £16 and some silver. (Mu Perry said the £40— less £3 3s Mr Smithson's costs, £1 Is Mr Rutland's commission, £14 10s, left with him, and £5 repaid, left £16 6s to be paid over to her. Archibald Davie, defendant's son-in-law, gave corroborative evidence, but less clearly. He signed something for his mother to make her mark on, when the £5 was got, but could not identify it certainly, He gave evidence at length in reply to Mr Perry as to Mr Rutland's refusal to let him have seed wheat without security for payment for it. When the rent became due he asked plaintifl for the money to pay his (Davie's) debt, and he would not give him the monoy. His debt was £16, reduced by £2 before the rent became due. Mr Raymond cross-examined at some length. Witness denied that he had spoken to plaintiff about a loan for his future mother-in-law, out of which plaintiff could be paid. He did not see' lim about it at all until he went with Mrs Scott. He was not sure how much money Mrs Scott was given, about £17, he thought. He denied that he returned that day and paid defendant 10s 6d or anything. He had not paid his debt, because he had been unable to pay it yet. He admitted that he had lately been in Court in an assault case, and that his evidence was not believed. He was not sober when he gave evidence then. To Mr Perry: Never authorised Mr Rutland to take Mrs Scott's money to pay ■his debt ; . would pay the debt himself as soon as he could. The p.n. he gave had an endorsement. ' This closed the defendant's case. On resuming after lunch, Mr Raymond opened the case for the plaintiff. He pointed out that Jhecaae had developed into a charge of fraud against Mr Rutland, and a forgery of signatures to receipts, but nothing of the sort had been proved. Mr Rutland would show with the greatest clearness how the money was appropriated. J.B. Rutland, plaintiff, stated that he had -no transactions with Mrs Scott before last April. Had with Davie, on a promissory note for £16 endorsed by H. Nichols.r Spoke to Davie a few days before the note became due (April 18th;. Davie said he was going to get married, that his mother-in-law wanted to get a loan on her property to help him, and to get money to go to the North Island. £2 had been paid off the £16 a month before, leaving £14 due. Oh the 10th the three came to his office, gave him particulars of Mrs Scott's property, and asked him to raise a loan of £40. On that day he lent Mrs Scott £5. (Receipt identified.) Witness wrote " Jane Scott,' she. made her mark, and Davie signed as witness. Four or five days lat^r mothei and daughter came in, an,d got a second £5. (Receipt produced, signed by Mrs Davie. Book entries also shown.) Mrs Davie signed instead of Mrs Scott making her mark, at Mrs Scott's request On the 18th the three came in again. A cheque for £36 17s was got from Mi Smithsdn, Witness cashed the cheque

F met the parties at his office, and dis--3 tributed the proceeds. He jotted down 3 .the figures ofc the division :— Advances . returned £10, commission £1 Is, prei mium for iusurance 6s 6d, cash to Mrs , Scott £12, balance £13 9s 6d. The I balance was to be given to Davie. No- ■ thing was said about rent. Agreed to > let Mrs Scott have seed wheat when s they wanted it, but nothing was said , about the money in his hands being . kept to pay for it. He understood that j the money was for Davie. Nothing was • said about Davie's debt at the meeting, but Davie had arranged that the money 1 left for him was to pay his debt. Later , in the day Davie brought him the balr ance and paid off his debt. (Gash book entries shown.) Lifted the bill from . the discounter and treated it aB i paid. It was not called for. Sup- ■ plied seed wheat and oats on August ' 11th. Sent account and also wrote for i the money in November and December, i Saw Mrs Scott in August and asked about payment; 1 for the wheat, and she ! said Davie should have paid for that out 1 of the money he got from witness. Told . her he had no tt done so. She called at the office later! an.d said that the money she left for Davie was for rent and the i seed. Qold her he had nothing to do with that. » r She complained then of Davie having misapplied her money. He showed her his memorandum of the distribution, that £13 9s 6d was left for Davie. There was no undertaking or understanding oh his part to hold the money on Mrs Scott's account for 1 specified purposes. To Mr P«>rry : Davie's debt was for cash lent, 21st February, 1896. Did not mention to Mrs Scott that he would charge the bill against the money. Mrs Scott did not leave the money in his hands for the purposes she stated, so far as he |understood. The money was left with him to give to Davie, and Davie [had avtanged before that it was to pay 1)18 debt. W'aa ifnder the impression, from what Davie had said, that Mrs Scott knew that. Swore positively that he advanced £5 on the 15th. The two ladies were mistaken in denying it. Took no receipt for the £12. Gave Mrs Scott no statement of the disposition of the money. , His Worship: Why did you not give the balance to Davie at the time ?— He did not ask for it. If you had said to Mrs Scott that you would keep the money for Dayie's debt, would it not have been the right thing to do? Or if you had said to Davie before Mrs Scott, •• This will square us P ' She says that she knew nothing of the debt, her daughter swears that she did not, and Davie swears that they knew nothing of ; it, and they all swear that the understanding was that the balance was to be retained for certain purposes -to pay the rent and purchase seed wheat. There was nothing to show that the women knew anything about Davie's debt. Ha,d the witness anything to show that they did kuow ? Witness: Not so far as I am concerned. This closed the evidence* Mr Raymond addressed the Court on the evidence. He insisted that the three witnesses on the other side must be considered as at least very hasty in their evidence. It was clear that two advances of £5 each were made, one on the 10th and one on the 15th, and the women had forgotten one of them. All three we;re equally positive that the amount left with Mr Rutland was £14 10s, and that this amount was mentioned there. But they must have arrived at' this amount by a calculation omitting the second .£5, and the 6s 6d for insurance. Such a sum as £14 10s could not possibly have been mentioned. : Then Mrs Scott and her daughter absolutely contradicted each other regarding the signatures to receipts. ! The only point against Mr Rutland was that he did not mention to Mrs Scott that Davie's debt would be paid. It was no part of his duty to mention ifc, he understanding that the matter had been arranged between the parties. Certainly it was understood by Davie, who completed paying off his debt, and never did anything to indicate that he considered the promissory note still current. Another point was that as the other side alleged, Davie was to get the" money to pay the rent and buy seed wheat. Davie had paid the rent, , tney had had the seed* wheat, and now , they were not satisfied with refusing to pay for the wheat, but were asking to have the money paid for the rent by Davie, refunded to them. If there was anyone, at fault, if anyone had defrauded Mrs Scott, it was her own son-in-law. % In conclusion Mr Raymond urged his Worship to disbelieve Davie i altogether, and distrust the evidence of , the women because they had testified , hastily, and without due caution. Mr Perry, in reply, urged . that al- \ though the women might be mistaken in the number of visits to Mr Rutland's, in the number of advances made, as to who signed certain papers, and as to the amount left with him, and notwith- ; standing that Davie's evidence might be ; looked upon with suspicion and even disregarded altogether in view of his own share in the transaction, and in view of his previous appearance ! in the Court, there could be no doubt that the two women tried to tell the truth as well as they could remember it, and on certain points they were [ positive and unshaken, namely, that ; they were unaware that Davie owed ' Rutland anything (and Davie swore they 1 did not), and that the money was left ; with Mr Rutland for Mrs Scott's pur- ; poses ; and on the other hand Mr Rut- ; Jand had not made out that he was authorised by Mrs Scott to apply her money to the purpose to which he did apply it. The whole of the circumstances 1 corroborated Mrs Scott's story, She was a poor woman, not in a position to pay ■ her son-in-law's debts, having to mortgage her farm to raise money to go to the North Island, and having rent [ rent coming due, and seed to purchase ' for her farm, it was quite reasonable 1 that she should prepare to meet these 1 necessary expenses during her absence. [ Mr Rutland had denied the woman's ' most reasonable story, but he had set up ' an unreasonable one in its place. Mr ; Kaymond had made several suggestions ' that if the women's story was true it '. amounted to a charge of fraud against I Mr Rutland. He did not say so, but if J the transaction did bear such a construci tion Mr Rutland had only himself to blame. ' j His Worship :, It does not appear to be f contended that there was any. trust ira- , posed upon Rutland to see that the money was spent' /either for paying rent or for wheat. The trust alleged is that he was . simply to hand over the money to Davie • t when he called for it. If Davie misspent I the money afterwards that was a matter r between him and those who made the j trust with him. When Davie got the x money was there anything to prevent j him appropriating it to pay his own j bill? Mr Perry: Yes, Rutland would be a making himself a party, to a fraud.be- - cause he knew that the money was left i for a special purpose. His Worship : If Davie had simply - called and^asked for the money, Rutland • would have been justified in giving it to i him, to go and pay someone else. * Mr Perry : But he did not hand the money to Davie at all. He kept it himi self. ti His Worship : Had he no right to ap--0 propriate the money to pay his own 1 promissory note ? a Mr Perry submitted that he had not. }, Mr Raymond :If Mr Rutland had received those instructions and under--8 stood them, and was a party to a fraud * by Davie, he would probably be liable for the seed wheat. His case was that it 8 had to be proved that he received the & money with such instructions. [ Mr Perry submitted that that was proved. Sir Perry cited one case for r His Worship's consideration. ), Judgment was reserved,