DISTRICT COURT.-This Day.

Auckland Star, Volume XII, Issue 3391, 13 June 1881, Page 3

DISTRICT COURT.- This Day.

(Before J. E. Macdonald, Esq., R.M.) Brown, Barrett and Co. v. Matthew Callaghan.—Claim £S2 Bs.—Mr Xheo. Cooper for plaintiffs.—Mr .Brown, one of the plaintiffs,deposed that the claim was for goods and a promissory note, but since the takiug out of the summons defendant had paid £40.— Judgment for tho balance with costs, £5 lis. Thos. Ellison v. A. Elliott.—Claim £25 7s, promissory note.—Mr S. Hesketh for plaintiff,, asked that this case might he withdrawn, as the parties had come to an agreement. -Withdrawn accordingly. George Johnstone v. John Smith.—Claim £100, damages.—This being a case for a jury and thero being a number of witnesses, without a chance of a hearing to-day, the case was adjourned until to-morrow morning, at 10.30. A. Heather v. R. W. Priddle.—Claim £35, damage to goods.—MrS. Hesketh for plaintiff, Mr A. Whitaker for defendant.—Mr Hesketh opened the case and gave tbe particulars, which appear in evidence.— Arthur Heather, merchant, deposed that he received a bill of lading, signed by the captain of the Borealia, for slates and kerosene, as in good condition. He paid freight to the agent of the Ocean Ranger, H. P. Barber and Co. The goods were originally shipped by the latter vessel in New York, and transhipped from Lyttelton by the Borealis. He had to pay for the exauiination ot about 326 cases, £1 3s, ex Borealis, which he paid. The value of the 25 damaged cases, 12s a case in bond, which would make about £15. The value of the slates was £12 per 11)00—To bis Honor: They are called " Blue Bangor Slates,' from America. A number of tho slates could be used, but from 1,100, there was no salvage; some of them by cutting might be used for certain odd purpoaes. He should consider that hi 3 100 iv the kerosene was over £40. He estimated his damage at £35.—Mr Whitaker said the defendant wasunfortunately placed, as he resided at Blenheim. The case Bhould have been heard in the Resident Magistrate's Court. There was little doubt but ho must pay something.—Mr Hesketh : The slates w ere sold al 10s. per 1000, much below their value.They were stained by salt water and manyjbroken.—By Mr Whitaker: The slates had become unmarketable by the action ol! the saltwater. He could not Bay exactly as to how tha damage to the kerosene was effected. The cases were wet and stained, 325 cases were damaged. —To Mr Hesketh. :■ He made a concession of Id per gallon on . that which was sold.— Captain Henry Elliott, receiving agent at the Queen-street Wharf, received a portion of the goods from the Borealis. Received 25.650 slates on deck, consigned to Mr Heather, They were much softened by the salt water, and would break by the pressure of the hand. The slates below were in good order, excepting those broken by being trampled over. There were 2,000 cases of kerosene, 1400 on deck, and the remainder below. Those on deck were leaking. Those below were sound. In a number of instances the wood was broken and the tins leaking. The captain said he carried the goods on deck accoiding to an agreement with Captain Priddle. He believed that the damage was caused by the action of the weather and salt water. The decks had evidently been subjected to', continuous water.—This being tbe case, Mir Whitaker addressed the Court in defence, and contended that as half the slates ware not damaged, the sum of £610s , ought to be deducted from the amount of the claim, and he would submit that the defendant ought not to be called upon to pay extra costs in consequence of delays over which he had no control.—Captain Elliott could not say who made the estimate of value.—His Worship having made an arithmetical calculation, ga?e judgment for £28, costs £4 16. John Cash v. Maurice Kelly, Sen,— claim £60.—Mr B, Cooper for plaintiff Mr S. Hesketh for defendantWitnesses were ordered out of Court.—Mrs Kelly said there was no necessity for defendant to leavo the Court, as he was so very deaf.—To that, however, counsel objected, on the strength of the adage, "None so deaf as those who won't hear."—Mr Cooper stated particulars. The plaintiff was a jaj<n<ligger, and had packed' 1900 weitE XR gum in eleven sacks, which was enfc^&to Mr Kelly, and deposited for safe*j/'vhis store. Subsequently the gum and "Bugs disappeared in a mysterious nuiiiaw, and the action was brought to recover value of the same.—Mr Hesketh said, as was customary, Captain Greenleaf took the gum away, and sold it to the best ad-vantage-John Cash deposed that he was a ! gum-digger ai the Wade, Knew defendant. ' Had an interview with him in November last about the storing of the gum. He said he had no team. Said the storage would be a penny a parcel. He recommended him to his ison, who could bring it down. On tbe following day 11 bags containing 1900 weight of gum were carted away. A young man named Fagan drove the horses, aud witness helped to place the gum in Kelly's store. He was to{d that Greenleaf had an office at the store, and generally took the gum for sale, butjthat Mrs Kelly kept the key. Having stored the gum he locked the store, gave the key to Mrs Kelly, and a few days after he paid Mrs Kelly a shilling for storage.—To Mr Cooper : It was not stored for another person to take without his sanction. Heard

the gum had been taken away, and he went to enquire about it. lie went to | Kelly, the younger, who keeps a pablic- { hiuse, and got the key. Opened the store, but found no gum. Locked the store and returned the key to Mra Kelly, asking what had become of his gum. She said she did not know. He then said if it was not forthcoming, or the value, he must sue Mir Kelly for it He did not know Greenleaf.—To His Honor: The gum was my own. Had no partner in the affair. Understood that Greenleaf had sold it, but had neither seen gum, bags, nor money since. Mrs Kelly, on putting the gam into tho store, said I could keep it there as long as I | liked, if, for six months, the charge would bs the same.—To Mr Cooper : He was } offered £28 for the gum, but this w;»s after | he put the matter in the bands of the police. The value of gum at tbe end of November was about £2 6s per cwt,—Mrs Hesketh thought Home limit should be mads as to price.—His Honor said the plaintiff was entitled to claim the highest price which had ruled from November to the present time.—Plaintiff said there had not been much variation in tbe figure. He also claimed for loss of time, fully three weeks, averaging 35s a week,—To Mr S. Hesketh : saw Maurice Kelly by his dwelling-bouse, when he enquired about the storage. He told him to go to Tommy, meaning bis son. There was a German in connection with the store, but he had a key of his own department ; separate from the part were his gum wns stored in November. He did not know, Greenleaf until after the loss of his gun. Had since heard that he was Captain of the Tarn o'Shantor. Was not aware that Greenleaf held the store under Maurice Kelly. Do not know it now. Did not tell Wm. Henry Morton that he was going to put it in Greenleaf's store.—Hia Honor said it was not likely that Grcenleaf's evidence would be forthcoming if be possessed £50.—Plaintiff: By the advice of Mrs Kelly be went to Greenleaf and saw him for the first time. He challenged Greenleaf as to taking his gun. He replied, "Oh, I've sold it," "By whose order ?" asked witness. " Oh," he replied, "by order ol four men." Plaintiff naked their names. He replied, " (Jh, Tim Foley, Billy Morton, Thomas and Maurice Kelly." Greenleaf showed him a bill of the sale of the gum, and promised to pay him at some future time, £28. He told him he would not take it, as it was only half the price. Greenleaf never laid down the money in his cabin. Had nevar received ono penny on account of tbe gum. — Mr S. Hesketh : You will bo distinctly contradicted by witness about the money. Witness said he had spoken the truth.— To His Honor; Asked MisKelly about the terms ot storage because Tommy Kelly said " 'tis no use speaking to the old man ; mother's the boss. —To Mr Hesketh :—He spoke to Constable Moor, but the constable could not take it up ns a case of larceny, and advised him to sue Maurice Kelly, as he appeared to be the responsible party.— John Greenleaf, master of the rom o' Shanter, deposed to receiving the eleven bags of gum by order of the Kellys and others. He sold the gum at tho best price he could get, bat plaintiff refused the money. He did not rent the afore of the elder Kelly in November last.—Crossexamined by Mr Cooper : Did not receive orders from Cash. He was supposed to take all the gum away that wns left. A bag of bonedast was stolen from the store, Could not say who paid for it. He did not. Maurice Kelly said he did not know whether the eleven bags were to go. Several men told him he was to take them. He went back for the bigs.— His Honor said he thought that tbe real facts were now betore the Court: first, as to the way in which tbe gnjn went to tbe store, and that Greehleaf took the gum to Auckland and sold it, as he had Blated ; that he was not the lessee of Kelly's store at the time ; and that Cash had paid the r-.-nt of Is to Mrs Kelly. The question, therefore, to be considered, is tbe liability or non-liability of Maurice Kelly. Witness continued: He had paid £28 to Ca..], He did not at first accept it, bat subsequently he took it—To His Honor : Offered tbe £28 in tbe presence of the constable. He wonld not take it He again offered it, but not before the constable. He left tbe £28 6s pn the table for him. Got tbe 6s change at Bond's. When he got back to the; store both Cash and tbe money >vere Ron . Thought he had taken the money, and was satisfied. Saw no more of Cash. This was ou the 23rd of January. (Left sitting.)