DISTRICT COURT. This Day. (Before His Honor Judge Mansford.)

Evening Post, Volume XIX, Issue 64, 19 March 1880, Page 3

DISTRICT COURT. This Day. (Before His Honor Judge Mansford.)

COLONIAL BANK V. HUTCHISON. His Honor delivered judgment in this case as follows : — " It is unnecessary to Bet out the particulars of claim and statement of defence. There is no evidence that the plaintiffs were cognizant of the defendant being surety for Port. The evidence of the defendant, which is all there is on the point, discloses that while the original note, of which he is now sued upon is a renewal, was current, the defendant had several interviews with Mr. Barton, the manager of the Colonial Bank, on the subject, and" that he thoroughly understood the relationship between Everest, the original drawer of the note, and the defendant. There is not sufficient evidence to justify me in arriving at the conclusion that, as between the plaintiff and defendant, Port was the principal debtor and the «W<«i<*fl.Tifr simply a surety, and even if the plaintiff was aware of the fact of the defendant being only a Burety, I am of opinion that the mortgage given by Port to the plaintiff as a collateral security only, with a reservation of all rights to me upon promissory notes or bills lodged with the plaintiffs, and extending the time for payment of the debt due by Port to the plaintiff, including the note now sued upon, does not discharge the defendant if he were a surety. Looking at the nature of the original transaction between the defendant and Everest, as disclosed by the evidence, I think it is open to doubt whether j the defendant could fairly set up, as a defence, that the original note, of which the present one is the outcome, was an aocom---modation, as generally understood. The case is an interesting one, and after a careful consideration of the authorities cited, I have determined to give judgment for the plaintiff, feeling satisfied that any decision will not^ be final, and that however I may have decided, the party getting an adverse judgment would appeal Judgment for plaintiff, £134. 6s 9d, and costs." His Honor added that this judgment would apply to two other cases of the same kind, between the same parties — one brought in the District, and one in the Resident Magistrate's Court, in both of which judgment had been reserved. M'LEAN V. COBPOBATION OP WEIAINSTON. In this case, Mr. Travers said he was prepared to argue the nonsuit point that he had -raised when the plaintiff obtained a verdict at a previous sitting, but as he understood a letter had been sent to the Borough Council, proposing terms of settlement, he was willing :that the case should be adjourned for that purpose. Mr. Stafford said such was the case. A letter to the above end was now before the Publio Works Committee of the Council, and was under consideration. The case was adjourned accordingly. MOULDS V. WALLBB AND OTHEBS. Mr. Stafford appeared for the plaintiff, Mr. Bell for the defence. This was an action to recover .£2OO damages, Said to have been sustained by defendant through the alleged negligence of a servant of the defendant's, whereby a piece of timber on the wharf at Wellington was ' blown on, and seriously injured, plaintiff. The facts, as stated, were as follows. The defendants are owners of a sohooner named the D'Aroy Pratt, which was under the command of Captain Dempsey. Some timber landed from it was allowed to lie some time on the wharf,- and through a piece of it falling, the accident complained of took place. George Harper, one of the defendants, was first called, and," asked if he was one of the owners of the ship in question./ ,- Mr. Bell objected to that question being put. There was only one way of proving the ownership of a ship, viz., by the production of the register. Mr. Stafford said that they had given notice to defendants to produce the register. Mr. Bell Baid they must prove the notice. Some argument took place as to what the witness was bound to answer, but his Honor ruled that the question should be replied to. Mr. Bell asked his, Honor to take a note of his objection, which was that the question was immaterial to the issue, as any answers were not evidence to establish any relations of master and servant between the captain and the owners of the vessel. The examination then proceeded, witness admitting that the vessel was the property of defendants,' and that Captain Dempsey was master of her at the time the accident took place.' She was registered in his and his partner's name. ' a Plaintiff proved that on the day in question^ he was, walking on the wharf, when some of the timber landed from the D'Arey Pratt was blown violently against him, rehdering him insensible, bruising his knee and shoulder severely, and breaking his leg. He was taken to the hospital, and remained there under medical treatment for 210 days, during which he suffered intense pain. By this means he lost a situation that would have. been as good as 454 a week to him at Wanganui. He had been laid up since the accident, and a bill for J631 had been sent hint from the hospital. In oroBS-examination, plaintiff said that the plank that struck him was about twenty feet long, and he was about twenty feet away from it. ' ! Other evidence was given to -show that delivery of the timber had been refused to the person to whom it was consigned till the freight was paid, and it consequently remained on the wharf longer than it would otherwise have done. The refusal was on the day before the accident. The Traffic Manager of the wharf proved that the tim« ber landed from the D'Aroy Pratt was stacked, bnt was not secured when the accident took place. He subsequently secured the timber, and thought it always necessary to secure timber of that kind when it was blowing hard. He would have secured this before the accident had it been in his charge. It was blowing a heavy nor'-wester at the time. Several witnesses were examined, but the testimony as to the time when the vessel was at the wharf, and the dates when the timber from her was removed, was most contradictory. Mr. Bell moved for a nonsuit as against Waller, on the ground that not a tittle of .evidence to connect the defendant had been offered. He also submitted that there must be also a nonsuit as against Mr. Harper, as ¦ it had not been shown that the. captain of the vessel was acting as his servant in stacking timber on the wharf. His Honor agreed, as far as the defendant Waller was concerned, but with reference to the other defendants woold let the case go to the jury, reserving the points raised by Mr. BelL The defenoe was really that the defendant had stacked the timber properly, that the accident had been caused through an extraordinary gale arising after the vessel had left the wharf, and that no negligence whatever had been shown to render defendants in any way responsible. In support, Mr. Greenfield and others were called, and said that it was not usual to lash timber when landed. [The case had not conoluded when we went to preßs.] .