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RESIDENT MAGISTRATE’S COURT., Ashburton Guardian, Volume 1, Issue 49, 17 January 1880
RESIDENT MAGISTRATE’S COURT.
ASHBURTON— Friday, Jan. IG. (Before Mr. F. Guinness, R.M.) SAUNDERS V. FKIEDLANDER—INTERPLEADER CASE. His Worship gave judgment in this case, and held that as the present firm had not taken the place of the former, Win. Saunders’ trustee, who should have joined in the summons, must take the place of Samuel Saunders in the case. Mr. O’Reilly argued that costs should not be allowed, as the bailiff had withdrawn his warrant. The interpleader was dismissed with costs. A warm discussion here ensued between Messrs. Branson and O’Reilly, and some very courteous compliments were passed. Mr. O’Reilly formally complained of the conduct of the bailiffin the transaction. THE LOST HORSE CASE. M'Farlane v. Lake. —His Worship considered it was the intention of Lake to give another horse in exchange for the one lost. He conld'not consider the evidence of Lake reliable, while that of Boland was given in a very straightforward manner. He would therefore give judgment for plaintiff foi LIG and costs. _ ; An argument ensued as to witnesses’ expenses, and his Worship decided that, no matter whether a witness was subpoenaed or not, he would grant him costs if he were a material witness, which he considered Sol and was. AMENDED SUMMONSES. Acland, Campbell and Co. v. M'Cutcheon. —Claim L2 3s. 4d. Mr. Crisp, for defendant, applied for a nonsuit on the ground that the names of the partners were not properly described. Nonsuit was granted without costs. Mr. Campbell, one of the partners, said he had often known summonses to be .^mended. Joyce, as an “ amicus curiae, said “was aware that such alterations were frequently made. I Mr. Crisp said he had advised his client not to appear, as the previous rulings on similar cases had been against the amend- , ing of summonses in this respect. His Worship admitted that his previous rnlings had not been correct, but he would point out that his course had always been to arrive at an equitable decision, and he thought in this case he could grant the amendment of the summons. Mr. Crisp said it would be unfair to his client, as he advised him not to attend Court that day. His Worship then said he would not grant a nonsuit, and the case would lie adjourned, with costs, till next Court day. THE GRAND STAND CASE AGAIN. Struthers v. Jameson. Claim, Ll 5. Mr. Joyce for plaintiff; Mr. Branson ior defendant. Thos. Struthers, sworn, deponed to having paid to Mr. Jameson Ll 5 for certain rights on the race course in November last. Mr. Branson pointed out the payment was for an interest in land, and that he would claim a nonsuit. He contended that any contract made should have been in writing. Mr. Joyce argued that the contention was frivolous. There had been a failure of consideration on the part of defendant, and all his client asked was for a return of the money paid. The receipt for the Llo was then produced. Struthers’ evidence was continued — I paid Mr. Jameson the money, and went to the ground next day. I was put oft* by Messrs Friedlander and Wilkie. Have applied to Mr Jameson for the money, and he said he would be happy to do so if • the Jockey Club allowed him. I received about L2 5s at the gates and stand, and I paid about L2 for wages, and the .tickets I have still to pay for. By Mr. Branson— l bought the rights at •the Bazaar from Mr. Campbell. Don’t know' who he was acting for. I was present at the beginning of the sale. Don’t know if he was selling for someone else. I have since heard he sold them for the 'Jockey Club. Mr. Campbell told me to pay the money to Mr. Jameson. I don’t know that Mi\ Jameson is Acland, Campbell and Co. ’s agent. I paid Mr. Jameson. 1 had no other agreement with him beyond the receipt produced. I recollect in the previous case his Worship decided that the Club were justified in turning me off the course. I can’t swear he said it was on the ground that I had not carried out my part of the contract. _ . George Jameson deponed to receiving the Ll 5 in question, and had since paid it to the Jockey Club. I paid it, since the last action, to Mr. Wilkie. Plaintiff served me with a notice not to pay. By Mr. Branson—l am not a member of the firm of Acland, Campbell, and Co. I am their agent. James Wilkie deponed to the moneys received afier plaintiff was turned out. Mr. Branson argued that Mr. Jameson could not be looked upon as being responsible for the amount, as he had made no agreement with plaintiff’, and the amount produced in Court was simply an acknowledgment of the receipt of Ll 5 on account of the auctioneers as their clerk or agent. He claimed a verdict for defendant. Joyce pointed out that the case was actually between the Race Club and Struthers, but it could only be brought against Mr. Jameson. His Worship considered the test ofSthe case was—Could Struthers have compelled Jameson to cany out the contract. He thought not, and Jameson was only agent for ■ the auctioneers. The Racing Club were clearly entitled to the payment, and Jameson had no control over the money and had paid it to the club. The verdict would be for defendant. An argument between counsel here ensued, after which Mr. Joyce claimed a nonsuit. His Worship then granted a nonsuit with costs 21s.
Mr. Branson applied for all costs in previous cases to be paid before further litigation ensued. His Worship refused the application. A BIG GROG SCORE. Shearman v. Knight.—Mr. Branson for plaintiff, Mr. Joyce for defendant, who objected to Mr. Branson appearing in the case, as he had previously acted in the same case for the defendant. Mi*. Branson denied the allegation, and explained that he knew nothing of the previous case, as he only heard of it when the evidence was given in Court, and it took place fully two years ago. Mr. Joyce cited authorities to uphold his contention. Mr. Branson said the first case u as for goods sold and delivered, and the present one was for deceit. The action was a distinct one, and ho appeared really for the licensed victuallers of Ashburton. After further discussion, James Knight, deponed that he consulted Mr. Branson in a private room, and instructed him in the case. By the Court—l gave Mr. Branson the summons and told him I had been sued by Mr. Shearman, and asked him to appear for me. Mr. Branson then applied for his partner, Mr. Purnell, to be sent for. Mr. Joyce objected to Mr. Branson making any such application. He would not object to Mr. Shearman applying for Mr. Purnell’s services, and this was accordingly done. Mr. Purnell stated the action was one of deceit. In 1877 defendant was Inspec- : tor of Railways in this district. In that capacity he asked Shearman to supply men working on the railway to the extent of Is. 6d. per day each. Similar arrangements had previously been made with Shearman by Mr. Warner, the former Inspector. The amount claimed was L 46 15s. When the account was forwarded to Mr. Lowe, the Resident Engineer, he repudiated it, and Knight was officially censured for giving the order for the goods. A case was brought for the goods delivered, and the plaintiff was nonsuited on the ground that Knight was not an agent for the General Government. Mr. Joyce took preliminary objections —(1) That no particulars of the items of damages sustained were given ; and (2) that a principal should have been sued before this action was taken. R. W. Shearman deponed—l know defendant. He was inspector of permanent way on the railway in course of construction in 1877. In July, 1877, ho saw me in a private lobby in the hotel. He brought the ganger in, and instructed mo to supply stimulants to the men, as they were working in the water. He told me that he had received instructions from Mr. Lowe not to allow them to exceed Is. fid. per day. I had previously had similar instructions from Mr. Warner (Mr. Lowe’s predecessor). I received payment of accounts by cheque from the General Government for refreshments ordered by Mx-. Warner. The goods having been supplied I sent the bill to Mr. Knight. He brought it back and said 1 ought to send it to Mr. Lowe. The value of the goods sold was L4G 15s. The book the entries were originally made in was burnt. The book in Court is a true statement of the goods supplied. When Mr. Knight brought the account back to mo be did not dispute the account but told me to make it out in Mr. Lowe’s name. I did so. The letter produced is signed by Mr. Menzies, and encloses one from Mi*. Lowe, stating that lie did not recognise the claim against the Government, and would not pass it, and had censured the inspector. I took an action against Mr. Knight for the amount and was nonsuited. By Mr. Joyce—The order given by Mr. Knight was a verbal one. If the men had asked for jam tarts they could have had them to the extent of Is. 6d. per day. Mr. Knight led me to understand the}' were working in water. I don’t know the particulars of what was supplied, the book in Court was made up September or October 1877. Bread and cheese were often sent instead of drink. I supplied the goods sometimes, and the barman sometimes. I have not taken any action against the Government for the amount due. I know* the empties were always returned, and that is a proof the full bottles went away. J. Henry Lowe deponed—l am Engineer of the Government railways. I did not authorise Knight to order refreshments for men working on the railways. I received an account from Knight. I afterwards censured him for allowing refreshments to be served. I refused to pass the account. By Mr. Joyce —On certain occasions men working in water have been allowed refreshments. I have no recollection of giving permission to Knight on this occasion to supply refreshments. I invariably give permission in writing. When I first got the account I sent for Knight, who denied having given the order, and said it was M‘Tcague the ganger who gave it, and he has repeated the assertion several times. He also said he had assumed authority to order the goods. Had the account been L 5 or LlO I would perhaps ha"c passed it, but still would have censured him. I sent the account back to Knight, with instructions to him to get the money from the persons who had contracted the debt. Mr. Joyce, fur the defence, called James Knight, who stated he was inspector under Mr. Lowe, and had been on the railways over 15 years. In June, 1877, he was engaged turning a stream in the Ashburton. Mr. Lowe gave the order to do it. In Mr. Lowe’s office Mr. Guthbert was present, and said it would be advisable to give the men something to drink whilst they were working in the water, and Mx*. Lowe replied, “ Yes, as long as it is not abused.” I then gave the ganger orders to let the men have two nips a day, and told Mr. Shearman to supply it. I never saw or used any of the liquor supplied. I would not have given the order except with Mr. Lowe’s consent. I have had both written and verbal orders in such cases. Mr. Lowe and myself have not got along very well together. By Mr. Purnell—l recollect Mi*. Lowe coming into my office and complaining of tlxe amount of the bill. I x'ecolleot x*cceiviug a letter of censure, telling me that the men must pay the account. I did not lay the blame on the ganger, but said the ganger had taken the goods away, and I had given the order for them, Thomas B. Bain, sworn, deponed he was clerk to Mr. Knight in 1877. Recollect Mr. Lowe bringing in Shearman’s account and saying, “ I never intended anything of tb.is sort.” We reckoned up the first "account, and made it to be about a shilling a day for each man on the work. I have asked Mr. Lowe to give permission for drinks, and he has given verbal permission frequently. By Mr. Purnell —The amount of refreshments authorised by Mx*. Lowe was LlO to L2O on his verbal orders. I have been spoken to by Mr. Lowe, anti am not now under him. Mr. Lowe, recalled, said he had no recollection of such an interview as described by Knight. My practice as to giving orders for drink is to do so in writing. By Mr. Joyce—l believe the evidence of the last two witnesses to be false as to the alleged interview wi tlx Mr. Cuthbert. Mr. Joyce submitted that the action must fail, as there was tlxe direct evidence of tlxe defendant against tlxe negative evidence of Mi*. Lowe, There should have been an official investigation and the scandal to tlxe Public Works Department saved. He quoted authorities to show that Knight had acted in good faith in giving the order, and moreover the order should have been in writing being over LlO in value. Mr. Purnell said the case was one of misrepresentation on the part of defen-
dant. The fact of Mx*. Cuthbert not having been called by defendant was very significant. His Worship said he would give judgment on Tuesday next.
RESIDENT MAGISTRATE’S COURT., Ashburton Guardian, Volume 1, Issue 49, 17 January 1880
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