DISTRICT COURT.

Wellington Independent, Volume XXI, Issue 2482, 19 February 1867, Page 3

DISTRICT COURT.

Saturday, February 16. (Before His Honor Judge Ward.) The Court was opened at 10 o'clock. J. H. WALLACE V S. SWAINSON. Mrlzard for plaintiff; Mr Brandon for defendant. This was an action to recover the sura of £83 Is Id, as the balance of a running account, in- ] eluding agent's commission for the management J of sheep, <fee. J. H. Wallaco, plaintiff, being sworn, deposed : lam an auctioneer residing in Wellington. For five or six-and-twenty years, up to June, 1863, I acted us agent for defendant. I gayo up the j agency at that time of my own accord. I "was constantly in the habit of advanciug monies to her and received monies on her account. I kept regular accounts of my receipts and payments, and regularly entered them in her books at any time she asked me to do so. From 1861 to 1863 I always entered the account in her book. The accounts in Court are correct accounts and the same that were entered in her book. No objection was ever made to these accounts by Mrs

' 1 1 . vl' ■ I - ' » Swainsori 1 The items were n&veridisptited by her The settlement of the account as ifchaa gone on from time to .time has been based upon. these, accounts. There was an arrangement by which I teojf charge of some sheep belonging to her which I purchased for her at her request ; I made an agreement with her as to what commission should be charged* The sheep were to be placed on her land. The agreement was based upon a letter received from Mr McDonald, a 00-trußtee, which I produce. [The letter, in which Mr McDonald assented to commission being charged for the management of the sheep, was then read by Mrlzard. The trust deed was also read.] His Honor thought that the accounts for the management of the sheep, as being conducted on behalf of the trust, should have been kept separate from the accounts for business transacted for Mrs Swainson personally. Mr Izard argued that Mrs Swainson had rendered herself personally liable by her admission of the charge for a long series of years ; that she had always acted as agent for the trust estate ; and that she had always permitted the accounts for her own private business and those connected with the trust to be combined. His Honor after hearing Mr Izard's arguments said the best way would be to go on with the evidence, and any points of law that might arise could be argued afterwards. Examination continued: The 2\ per cent I have charged is much below the usual rate. I merely charged it to save myself from absolute loss. I made no profit out of the account ; but am a considerable loser by it. Cross-examined by Mr Brandon : The sheep were purchased by me under instructions from Mrs Swainson, and were put into my obarge. They were removed from Mr Guthrie's about 1854 or 1865. The sheep were removed to Mr D. Wallace's station at Cape Turnagain. Two or three years afterwards, I became interested in that station from heavy advances I made. Thevwera kept on the usual terms — one third of the increase and one half of the wool. When the sheep were delivered up, Mrs Swainson expressed dis* satisfaction because the returns were not so large as she expected. She has never .steadily refused to pay this claim, and a few months ago she said it should be paid. We did not enter into the question of her personal liability ; it was never disputed. You told me a short time ago that as a trustee I could not charge commission. Ec-examined •' The original sum invested in the sheep was £156, which resulted in a flook of 650 ewes and 1300 wethers. In the conversation referred to she told me she would willingly pay me if she had funds in hand. Mr Brandon objected that this was a contract made by Mr Swainson, that Mrs Swainson was merely the recipient of the proceeds for the sheep, which she had to apply to the benefit of others, and that the charge could only be made against the trust funds. No evidence was adduced for the defence. His Honor said his impression was that plaintiff was entitled to a verdict, but ho should like to look up some authorities on the subject and would therefore postpone judgment till Tuesday. D. ANDEBSON AND OTHEBS (iN THE ESTATE OF J. WALLACE) T O. PAWNS. Action to recover £35 Is, for goods sold and delivered. D. Anderson, being placed in the witness-box, produced the trust deed of J. Wallace's eßtate, under which he sued. J. Wallace deposed : I assigned my debts to Mr Anderson. I swear no monies charged in the account produced have been paid me by Mr Fawns. John Grigg, clerk to the estate of J". Wallace, deposed to having copied the account from Mr Wallace's books, which he produced. Judgment for plaintiff for full amount claimed and costs. SAME T 0. HEWITT. Action to recover the sum of £33 4s 9d, for goods sold and delivered. Mrlzard appeared for the defendant. Settled out of Court. W. P. PIOKBBINO V J. WAIXAOB. Mr Izard for plaintiff; Mr Brandon for defendant. Action to recover £80 for money received. This action had arisen incidently out of the case of " Trustees of Wallace's Estate r. Pickering," tried before the Court at its last sitting, in which judgment was given for plaintiff, but execution was stayed in order to allow defendant an opportunity to bring a cross-action. W. P. Pickering, plaintiff, deposed : In the year 1864 1 had transactions with Mr Hickson about some land. I gave him a mortgage over it to sell the land for me. Mr Hiokson at the time gave Mr Wallace the two acceptances produced. They were to be placed to my account by Mr Wallace. According to the accounts given to me and filed in the Court at the last trial. they were not placed to my account. I changed 'the two acceptances for a bill of £80. Cross-examined : I took the bill for £80 from Mr Hiokson, and gave it to Mr Wallace. It was never discounted. Mr Wallace gave me up the bill for £80 on my giving him two acceptances for £30 and £50 which I had received from Mr Hickson. The £80 bill was"changed for th» acceptances partly to suit Mr Wallace. - I have received no value for the £50 acceptance ; I hare received nothing more than is charged in the account produced. The acceptance of £29 7s* 6d, due 28th May, 1864, I paid with my own money. I did not pay it the day it was due. I was not in the habit of going to Mr Wallace at that time for funds to assist me. On the Slit May, 1864, he did not give me £12 7s 6d in cash. W. Hickson, deposed—ln 1864, I agreed to make plaintiff an advance of £80 on the security of land which I had to dispose of for him. A bill of £80 was first; given and two acceptances were afterwards substituted, which were afterward! paid by me. By the Court — I charged the acceptances against the land. Mr Brandon called for the defence, J. Wallace, who deposed — In May, 1864, plaintiff gave me bills of £50 and £80, accepted by Hickson & Co. I received the bill for £30 to discount it for Mr Piokering and hand him the proceeds to enable him to take up an acceptance of his which fell duo on the 31st May. I paid it to him by a cheque for £17 and cash £12 7s 6d. That was the amount of the acceptance due on the 31st May. The cheque produced is the one I gave him ; I have not seen it since I gave it to him till to-day, when I got it from the Union Bank. I did not receive the money for tht cheque. I produce the block of the cheque, the entry on which was made at the time the cheque was given. In May, 1864, plaintiff was indebted to me in the sum of £26 7s lid. Plaintiff gay© me the acceptance for £26 7s 6d, the - previous February, in anticipation of goods which he expected to obtain from me before the acceptance fell due. Plaintiff gave me the £50 acceptance to get it discounted for him ; I got it discounted) and handed the proceeds to him in the manner detailed in the bill of particulars. I did not retain any of the proceeds j some of the money might have been retained for a time, but he got it all eventually. He gave me to understand that he could iiofc get it discounted himself. Cross-examined by Mr Izard — This transaction does not appear in my book. There is no entry of my having received either of these two bills. There is no entry of the payment I made on account of them. I received the money and handed the proceeds to plaintiff. I believe I received both bills the same day. On the Slet May, plaintiff came to me about the £80 bill. I did not toll him that I paid the monoy away to the men at the saw-mill. The cheque produced was not returned to me. I know- 1 paid defendant £13 7a 6d in cash when I gave him ths

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cheque, because I made an entry on the block to that effect. There was an acceptance 4 for £29 7s «d between us. He gets credit for it i in the account. I gave the acceptance to Mr gjhultze. Mr Schultze sued upon it, rind Mr Pickering paid it. I used to keep a bill-book for my own business. This was a private affair, and I did not enter the £50 acceptance in it. I have no entry of any payment of it. Mr John Martin discounted it. The proceeds we handed to piaintiff at different times. I don't think I gave him cheques for it. Very likely the money wbb put into the Bank with other monies. I have no cheque or receipt for any portion of the £60 paid to him. I merely recollect that I paid him different sums at different times. 80-examined— The getting this bill discounted was entirely disconnected with my business, and that is the reason no entry of the transaction was made in the boc&s Houston Logan, deposed— l was formerly shopman to Mr J. Wallace. I have seen the bills now produced. I have heard plaintiff come at different times and ask for money on account of . those bills. I saw him receive money once or twice on account of them. By the Court— l have heard plaintiff ask if the bills were discounted. Mr Brandon then addressed the Court for the defendant, and Mr Izard for the plaintiff. Hia Honor reviewed the evidence, and said lie thought the balance of evidence in regard to the acceptance of £30, was in favor of defendant ; but with regard to the £50 acceptance, it was sufliciently clear that defendant had received the money for the bill, but no sufficient evidence had been produced to show that he had handed it over to the plaintiff, and therefore, a verdict must be given for the plaintiff, for "the amount of the second bill — £50 — and cost 9. Mr Izard asked that the present judgment should be allowed as a set-off against the judgment obtained by the Truatees of Wallace's estate against W. Pickering at the laab sitting of the Court. , j Mr Brandon objected that the parties in the j aotion were quite different. Judgment on this point was adjourned till Tuesday. The Court then rose.