DISTRICT COURT.-This Day.

Auckland Star, Volume XII, Issue 3392, 14 June 1881, Page 3

DISTRICT COURT.-This Day.

(Before J. E. Macdonald, Esq., R.M.)

John Cash v. Maurice Kelly, senr.— Claim £00.—Mr E. Cooper for plaintiff, and Mr S. Hesketh for defendant.—The particulars ol: this case appeared in our last issue, but on the application of plaintiffs solicitor, judgment was reserved tor the consideration of a point of law. —Mr Cooper addressed the Court at length in favour of plaintiff's claim, and said the question was " Did Kelly use common diligence in regard of the gum." He believed that defendant might have stopped Greenleaf trom taking the goods away, if he liked. —His Honor asked what was the contract, and what legal liabilities attach to such contract. — Mr S. Hesketh made some remarks, aud quoted Addison on similar cases, aud contended that defendant was not liable for tho amount claimed.—His Honor reviewed the chief features of the case, and felt there was no conspiracy between the parties to defraud Cash. There was nothing to show dishonesty. The gum was placed in the shed, aud anybody, it would appear, could get the key. The bags ot gum were not addressed ; the plaintiff had evidently sued the wrong persou ; but certainly there was something curious, perhaps suspicious, iv Gieenlcaf's conduct in selling gum wben he did not know who was the owner. The plaintill' was the sufferer; he had lost his gum ; and, in accordance with law, he must be nonsuited.—Costs £11.

Joseph Fulton v. Crawford Baillie.— Claim £65 ss.—Mr Lush, for plaintiff—Mr Samuel Hesketh, for defendant.— The evidence in this case was simply as follows : Joseph Fultou^plaintiff, deposed that he was a contractor and holder of laud at Henderson's Mill. He knew defendant, who resided ia the same district. Ou the 18th of April, last year, he engaged to buy a horse named Lofty, of defendant, for £25 ; a set of harness, £5 53, and special damage iv consequence of being deprived of his horse, £30. The agreement, according to plaintiff's statement, was to the effect that defendant consented toaeceptpayments by instalments at plaintiff's convenience, but this was denied by defendant.—The further hearing ot this ca .c was reserved until the conclusion of the following jury case.

Johnstone v. Smith.—Claim £100, damages.— Mr Theo. Cooper for plaintiff, and Mr Samuel Hesketh for defendant. (A jury of four wero cmpaunelled.)— Mr Cooper briefly narrated the circumstances of the claim. The plaintiff, by his next friend, was Bobert Whitson Johnstone, a lad of eleven, a Grammar School boy, and on the day in question the lad was returning from his studies when he was kicked by a racehorse named Tim Whiiller, belonging to Mr John Smith (draper), the defendant, and had his arm broken. The lad had stopped to look at some boys playing at football at the same time, that Mr Smith's race-horses were rambling round the Barrack enclosure. The - ball bounding near "Tim Whiiller," and he being a horse of fiery disposition, was alarmed, backed, kicked out, and broke the lad's arm.—William Stockwell, surgeon and qualified medical practitioner in Auckland, attended the son of Mr Johnstone in Angust last. He had received a compound fracture of the arm. He attended the patient from the Ist of August until tho Ist of November. There is a mark of the injury, but the arm, he should think, is as strong as it ever will be.— To' His Honor : He has practically recovered from tbe injury, but at times he may suffer from tbe arm." The boy suffered considerable pain for a long time.—To the Foreman of the jury: It is very possible that he may suffer from it again, but being a youth, he may completely recover.—To Mr Hesketh : A broken limb causes a severe shock to tbe system.—George Johnstone, brewer, deposed that he ■ occupied a house on Barrack Hill. The plan of the Albert Park (produced) shews the position of the allotments and the limits of the recreation ground, Bobert Whitson Johnstone was his son, but he was not in Auckland at the time of the accident. Saw Mr Smith on his return. The day after the accident Mr Smith asked how the boy was, aud said he was sorry he had been injured, especially as he knew the boy was of a quiet disposition and unlike other boys, was not iv the habit of irritating his racers. Mr Smith has the reputation of keeping race - horses. He admitted that witness' sou was injured by the horse.—Mr S. Hesketh said he would admit that the horse that kicked the boy wan the property of Mr Smith ; but he was not pre Dared to admit that it was "Tim Whiiller." It might have been another horse.-Mr Johnstone: The boy was prevented from attending school during that session. Mr Smith had no further conversation with witness about the accident, and since he had taken steps in the matter Mr Smith had been silent. Had often seen Mr Smith's horses at liberty, capering along the road.—To Mr Hesketh: Had written to Mr Smith, and offered to settle th" matter for £50. He only wanted the expenses, in fact, but Mr Smith would not come to terms, consequently he instructed Messrs Russell, Devore and Cooper to write a letter to Mr Smith.—His Honor said nothing had been said about medical expense.—Mr Johnstone said he had paid about £20, including £15 15s to Dr. Stockwell, and expenses in chemicals, medicine, and attendance.—Bobert Whitson Johnstone, son of the last witness, gave au account of the accident, which occurred on the 25th of August of last year. He wa'> kicked on the left arm. He did not frighten the horse ; nor did he f .el the kick much at first, A boy named Holland saw the kick. Twopenuy Elliott was riding Tim Whifller. Knew the horse and Twopenny. Three horses wero going round and round. To Mr Hesketh : " Twopenny " had never warned him to. keep out of Tim's way. Was not aware that any other boys had been hurt. He was going towards the football boys. The horse was going in the circle to the stable.—Heury Holland, aged 3, son of Mr J. Holland (Holland and Butler) went to the Grammar School. Saw Robert Johnstone kicked. Stopped to see Mr Smith's horses. The horse, Tim Whiiller, ehied at the football and suddenly backed on Johnstone, kicking him on the arm. He could not get out of the way. Johnstone said he was not hurt, 'but found presently that he could not lift his arm. They were not in any way interfering with the horses.—Cross-examined by Mr S. Hesketh. . , , •Arthur McCormick,sonofMrMeCormick. solicitor, deposed to being in company with Robert W. Johnstone, and saw him kicked by Mr Smith's race-horse ; did nothing to the horse which was frightened by the football.—Phillip A. Phillips, Town jClerk, deposed that the property formerly under the management of the City Commissioners, was transferred to the Town Council, with all rights and priyileges i £he reserve marked Albert Park was a part of the property under section 13 of tho local Acts'. Mr Smith bad conditional permission to exercise his horses on Barrack Hill, subject to the condition that he did not cause annoyance to tho public or that there were no complaints. The privilege had been withdrawn in consequence of complaints from Mr Johnstone and others.— This was plaintiff's case.—Mr S. Hesketh, in speaking in defence, considered that it was a pure and simple accident, and that there was really no cause to go to the jury, the defendant not being liable.—His Honor said that, assuming the horse was there unlawfully, the boy was kicked and nething had been shown that the boy did anything to cause the horse to kick. The sole question was whether the horse was there lawfully or unlawfully.—His Honor said tbat in his opinion Mr Smith was there unlawfully, and in this opinion he was supported by plaintiff's counsel.— Mr Hesketh addressed ■ the jury at some length and called evidence in defence.— John Smith, defendant, deposed to hearing of the accident in August last.—His Honor Washed to linow why Mr Stnith was called, as he wag not there and knew nothingl about the accident,—Mr" Hesketh said it; was for Mr Smith's satisfaction,—His' Honor said he wished the jury to have the satisfaction ot leaving the box.—Mr Smith i wished to contradict some of Johnstone's statements, He said he expressed sorrow on hearing of the boy's accident, and it Mr Johnstone had said he was hard up for £20, he would have given him that sum. He kept some half-a-dozen horses for bis own amusement; they were gentle aud his apprentice, •'Twopenny" could do as he liked with this very horse.—His Hpnpj- expressed bis surprise that a draper's apprentice was engaged in riding racehorses instead of mpasuring calico,—Mr Smith, said tbe lad was apprenticed to a'. jockey, and' not to 'the drapery.— .(Left sitting.)