TWENTY-YEAR-OLD CASE

Timaru Herald, Volume CXXXVII, Issue 19672, 14 December 1933, Page 14

TWENTY-YEAR-OLD CASE

LONG STANDING DEBT INTERESTING POINTS In the Magistrate’s Court yesterday, before Mr C. R. Orr-Walker, S.M., William Curie sought to recover from John Goddard the sum of £2O/14/2. Plaintiff was represented by Mr L. M. Inglis, and defendant by Mr A. D. Mcßae. Mr Inglis said that plaintiff had secured judgment for the amount in October 1913, under the name of Curie and Co. He was the sole proprietor, no one else at that time having any interest in the business. Plaintiff said that in 1913 he had been carrying on business in Timaru as a grocer, under the name of Curie and Co. He was the sole proprietor of the business. He obtained judgment against defendant for £2O/14/2, but nothing had been paid. To Mr Mcßae: The business was never known as J. Curie and Co. He would not deny that in a business directory in 1907, the firm was set down as J. Curie and Co. If it was so set out, it was no fault of his. At the start, he and his father were in partnership, and when his father died, the business was left to witness. His brother had no interest whatever in the business, which was closed up in 1912 or 1913. Practically all the books had since been destroyed. Defendant’s Contentions. Mr Mcßae, for the defence denied that plaintiff obtained judgment against defendant, as the court records would show, the judgment being obtained by Curie and Co. He also contended that the original plaint note did not adequately describe the plaintiff. He could not find any authority for a person, carrying on business in the name of a firm, to sue in the name of that firm, although it was competent for two or more persons, carrying on business as a firm, to sue or be sued. The Magistrate remarked that the position was a peculiar one. Mr Mcßae raised a further point and that was the jurisdiction of the court to enter judgment on a judgment. The Mgistrate recalled having once given judgment on a judgment, and had also issued a warrant for arrest. A man had been arrested, and although the question of jurisdiction had been raised, the amount claimed had been paid into court. He had a distinct recollection of a section ot either the Magistrate’s Court code or Supreme Court code in which it was set out that costs were not to be allowed on a judgment on a judgment. Mr Inglis said that plaintiff claimed to be the person entitled to recover, as he was the firm. No action had been taken to have the judgment set aside. He submitted that they were entitled to prove the identity of William Curie, and they were asking for judgment, not for an amendment of t’ _• original judgment. The Magistrate reserved his decision.