THE COURTS-TO-DAY.

Evening Star, Issue 6914, 29 May 1885, Page 2

THE COURTS-TO-DAY.

RESIDENT MAGISTRATE'S COURT. (Before E. H. Carew, Esq., R.M.) •James Fox v. Stocks and another.—Claim, L4O 0s lid, for timber supplied.—ln this previously-heard case His Worship now gave judgment as follows:—I think, defendants cduld have refused to accept the timber measuring lfi s 3 as not having been ordered by then), and other timber on account of its unsound quality, and not being suited for the purpose described in their letters to plaintiff; but they should have done this at the railway-station to which it was consigned by plaintiff, or at anyr.ite at the railway siding where it was discharged, where they could have had a full opportunity of examining it. In place of doing so they carted it to the Hurunui River, anil then (March 11) wrote complaining that it had been sent. There was no reason that I can see why it was not examined at the railway, and rejected there if the timber did not comply with the order, and it was unreasonable to cart it a distance, and then not till two months after (May f») refuse to accept it. I think, under these circumstances, the defendants are bound to keep the timber, and any breach of warranty may go in reduction of the price of the timber ; that is, the price of the timber may be reduced by so much as it is worth less on account of its unfitness. As to the question of jurisdiction in respect to the timber supplied from Christchurch yards, the letters ordering timber were all received in Dunedin, and that is a material part of the cause of action. I think, too, the case of Wood v. Perry (18 L.J., Ex. 161) will go to support the jurisdiction. As to the question of set-off, it appears to me the transaction has been conducted in rather a loose way on both sides, and I cannot lind anything in the correspondence before the timber was actually sent away that shows plaintiff was to send this timber from Lyttelton and not from Dunedin; but even if there had been, I think the additional cost of railway carriage paid by defendants from Dunedin was not a compulsory payment, as they could have refused to accept the timber, and it therefore cannot be set off as money paid at plaintiffs request. The cross-claim is, therefore, not dealt with as a setoff. As to the charge made for sawing the 16 x 12 timber into 111 x 9, the correspondence docs not show defendants ever agreed to do so, and they are therefore not liable for it. The first item in account must be reduced by the full price of one log 22ft by 16 x 9, equal to 264 ft, which at 30s per 100 ft equals L 3 15)s. The second and third items are not recoverable. The fourth item must be reduced from 4s to 3s 6d, the agreed price. The lifth and sixth items must be reduced by the full price of 44ift at 3s 6d, which equals L 7 16s 9d; also a proportionate part (4s 6d) of the item for sawing blocks, These leave a balance of L2l 16s lOd, for which judgment will be given, with costs. Robert B. Lawrence v. Thomas Scott Smith.—Claim, Lls 8s sd, damages for breach of agreement. Mr Finch appeared for plaintiff; Mr Solomon for defendant. — Counsel for plaintiff said the action was brought against defendant, who was solicitor in a case brought by the plaintiff' recently against one A. E. Cameron for goods supplied. Cameron is a minor, and only obtained the goods on the agreement of Smith that no plea of infancy should be raised on Cameron's behalf. That agreement was, however, broken, and when plaintiff summoned Cameron a plea of infancy was raised by Smith and sustained. Plaintiff could not therefore recover from Cameron, and now sued Smith for breach of agreement. Plaintiff stated that during 1883 he had a contract to deliver certain goods to Cameron, and some of them were delivered. There was a dispute as to part of the goods, and the remainder were not delivered. Cameron referred witness to Mr Smith as his solicitor to settle the matter. Mr Reid, of Reids and Finch, acted as solicitor for witness. An interview between the two parties took place, at which Reid, on witness's behalf, demurred to deliver the remainder of the goods. Smith thereupon said that so long as Cameron did not take the case out of his hands he would not raise a plea of infancy. Witness thereupon said he would decline to deliver the goods, and did so. Previous to Smith's promise witness had refused to deliver the goods. The goods were not paid for, and witness subsequently brought an action in this Court against Cameron, when Smith, on behalf of Cameron, raised a plea of infancy, and witness was nonsuited on that plea. Witness had to pay costs. Cross-examined: At the interview with Smith, the latter said that witness had already been paid by promissory notes. In the first action brought by witness he was nonsuited, apart from the plea of infancy. He then took action in the District Court, anil was

nonsuited on the ground that the case was not within the jurisdiction of the Court, the amount being under L'2o. John Reid, solicitor, stated that at the interview mentioned Cameron gave his word of honor that he would not take the case out of Smith's hands, and Smith promised that he .would not raise the pica of infancy. On th9se conditions witness advised plaintiff to deliver the remainder of the. goods. Witness thought he asked Smith if he would guarantee that he would not raise the plea of infancy as long as t e case was in his hands. Cameron was present at the time, and heard the whole conversation. Cross-examined : Witness could not be positive that the interview took place in Smith's office ; he did not think it was held in witness's own office. Smith made a remark to the effect that plaintiff could not sue for the goods because he had not delivered them all. Witness had two interviews with Smith and Cameron, and plaintiff was present at one of them. Witness could not remember the details of

the conversations that took place. He did not remember Smith's saying that he would advise his client not to plead infancy ; witness would contradict Smith if he affirmed that he did so. Smith offered to pay L 5 to settle the claim. Smith might on a subsequent occasion have told witness that it was all right —that he had advised his client not to plead infancy, and that the latter had agreed to do so. Witness could not, however, remember such a conversation.—Defendant stated that the plea of infancy on behalf of his client was only raised in the last action, in the Resident Magistrate's Court, brought by plaintiff. Witness raised that plea because Cameron told him that he considered he was being persecuted by actions being repeatedly brought against him, and that he did not want to have his name appearing in the papers continually as a defendant.—A. E. Cameron stated that an interview took place between him, Smith, and Reid at the office of the last-named. Smith then advised him to waive the plea of infancy, and witness did so in the first three cases brought against him. Witness did not promise on his honor not to raise the plea of infancy, but Smith advised him not to plead infancy, and witness then said he would not. — Alfred Barclay, law student, gave evidence as to what took place at the interviews. — His Worship gave judgment for defendant. In the following cases judgment was given for plaintiffs by default:—N.Z. Hardware Co. v. T. Crawford, claim, LI 2 19s 2d ; same v. J. Henderson, Lo 19s 6d; J. Sperry v. E. F. Eaton, L4*l7s 7d ; B. Gray v. G. Walker, LI. A. Evans v. W. C. L. Finch.—Claim, L3O lo's 6d, account alleged to be due.— Plaintiff was nonsuited.

CITY POLICE COURT.

(Before E. H. Carew, Esq., R.M.)

Stealing Raisins.—The ten boys who pleaded guilty to stealing raisins yesterday came before the Court for disposal. It appeared that they had all been whipped by their parents, and they were discharged with a caution.

(Before Messrs J. Logan, W. Hutchison, J, P. Jones, and H. North, J.P.s.)

Dkuxkknness. Thomas Fisher, Tyson Hudson, William Barry, and James Roomy were each fined ss, in default twenty-four hours' imprisonment. Obsckxk Laxo;ua<;e and Assault.— Sidney Htrlf-rt Ku'ujht was charged with making use of obscene language in Stafford street last evening, and also with assaulting Ah Mee. Mr Fraser appeared for Ah Mee. —According to the evidence of Ah Mee and

.1 Chinese interpreter, the relations which tli<: defendant had atteaipted to foster between his wife and the Chinamen living in the neighborhood were of an utterly depraved character. More shocking details than were related have never conic out in a Police Court.—For the first offence the accused was sentenced to two months' imprisonment, and for the second he was fined L'2 10s, in default a month's imprisonment. C.micy A.M) the Races.— Frank Russell was charged with plying for hire with his calj at other than a place appointed for the purpose.—lt appeared that the defendant had been picking up passengers away from a eab-stand on the race-day.—Case dismissed. Kdii-aril Alixoiekr was similarly charged. Mr Frascr (for the defendant), submitted that the bringing of these cases amounted to persecution.— Sergeant-major Bevin said the " duck-shoving " which the defendant had been guilty of was prejudicial to the interests of those cabmen who acted in accordance with the by-laws.—Case dismissed. A similar charge against Patrick JU'Guiiii was also dismissed.—Defendant was further charged with driving without passengers at a slower speed than six miles an hour.— Air Frascr, for the defendant, submitted that the information disclosed no offence. The by-law simply made "loitering" driving at a slower rate than six miles an hour, and the defendant should have been charged with that.—Case dismissal.

Similar charges against Robert Kirk and John Muirlitod were also dismissed.—The Bench stated that the men must understand that, though the cases had been dismissed, they had done wrong.—Mr Fraser said the cabmen intend to apply for a special stand for race days.

OISSTKIXTING THE FoOTPATH. —SamUtl H. Cnrlcr, for obstructing the footpath in George street by placing goods thereon, was fined 5s and costs.

(Before Messrs Logan, Hutchison, and Jones, J.P.s.)

L.vkckky as a Bailee.— Robert Goo<Uson was charged for that he, being the bailee of three horses, the property of JohnJPlaisted, did fraudulently take anil convert them to his own use, and did thereby feloniously steal the same. Mr Friser appeared for the prosecution and MrM'Keay for the defence. —Mr Fraser stated, in opening the case, that the prosecutor (Plaisted) was the owner of a coach and four horses, which he had bought originally for the purpose of running a stage out to Green Island. The accused was a horse dealer. About six weeks or two months ago the prosecutor was anxious to sell his turn-out, and, coming in contact with the accused, he told him that if he could find a buyer at Ll2O he would pay the usual commission to him. The accused represented that he had a buyer in one Capstick, but Plaisted, on making inquiries, found Capstick was a man of straw, and he told the accused he would not take this man's bill. Accused then offered to get the endorsement of a publican named Hutchings, and negotiations were, entered into. Fi7ially, however, they were broken off, as a price could not be agreed upon, but the accused continued following the prosecutor about, making all sorts of suggestions as to what he should do. The prosecutor owed some L3O or L4O to Mr Bathgate, and a rumor being circulated that he was about to leave the Colony, he was arrested. On being taken to Mr Bathgate's office, however, he at once disproved the truth of the rumor and .was released. He appeared, however, to have peculiar ideas as to what could possibly be done with his goods under the circumstances, and, acting under the advice of Goodison, he left his horses in stables belonging to Corish Bennett, and hjs coach was hidden somewhere at St. Clair. Goodison made a great deal of mystery over the matter, and undertook the whole charge of prosecutor's property. The prosecutor afterwards obtained legal advice as to his position, and decided to take his horses out of the accused's charge. When he applied to the accused for them, however, the accused said: " The horses are mine; they arc not yours at all. I bought them from you. I shall sell them, and put the money in my pocket, and you can send me to gaol if you like." On going to the stable afterwards with a constable, the prosecutor recovered one of the horses, but the other three could not be found. Xo doubt the defence that would be raised would be that there had been a sale ; but the prosecutor most emphatically denied that under any circumstances did he make a sale. The accused was a mere bailee of the goods, and his whole action was one of impudent fraud. When arrested tJhe accused said: "Well, it is a very good thing that I did not sell the horses, or I might have got into trouble." An idea of the value of the evidence which would be called for the defence might be obtained when counsel witness who would say that Goodison wanted him to swear that he heard the prosecutor say that he had sold the horses. For this piece of perjury the sum of 5s was offered.—John Plaisted gave evidence in accordancewiththe statement of counsel. In cross-examination he said: I never offered my servicesonboard any steamer. I went on board a steamer, but never told the accused that I had offered to take the position of stoker. I did not sell the horses to Goodison for LW. I never had a quarrel with the accused about them. I never told M'Hardie that I had sold them. I offered accused a horse, because I thought it would pay me better to, give him it than go to law.—David Reid stated that he had been employed by. the accused to recover the missing horses. He found out where one of them was. Witness met the accused in the Provincial Saleyards, and he offered 5s if wifeless would tell him where the horse was. He also said he wanted witness to swear that he had bought the horses and he would pay witness. He told witness to be at his lawyer's the next day at .ten o'clock, but witness did not go. Cross-examined: Witness had been a steward, apd was at present travelling in connection with the sale of patent gas-burners.—Sergeant Macdonell and Constable Cruickshank also gave evidence.—Mr M'Keay pointed out that in common law there could be no larceny where goods were taken possession of in good faith. Statute law put matters upon a different footing, but before there could beany larceny there must be clear proof of conversion. He asked where the proof of conversion was in that case. There was no-suggestion that the horses had been sold,-and nothing to show that they were not still in the possession of the accuEed. But Plaisted's story was a tissue of falsehoods, and as a matter of fact there had : been a sale to Goodison. The prosecutor 'had set the criminal law in force against an innocent man to get out of a bad bargain. Counsel then criticised the evidence given for the prosecution, and asked the Bench to totally disbelieve Reid. Alexander M'Haudie, licensee of the Southern Hotel, stated that the accused and the prosecutor had met frequently in the hotel lately. On Friday evening the prosecutor while in the hotel said to witness that he had com pleted the bargain. He also for the L2, saying "I want to release the horses from the stables to take them over to Mr Goodison's." Cross-examined: Until witness was served with a summons he never told anyone what had passed between the prosecutor and him. Witness had been to bed for an hour on Friday evening.— John Dunlop, master mariner, deposed that on Thursday or Friday he was at the Southern Hotel, and he heard the prosecutor and the accused bargaining about a coach and horses. Finally, they agreed upon L6O as a price, and they shook hands over the bargain.—George Hutchings, carter and hotel-keeper, said that on Sunday last he heard the prosecutor say to the accused: " I'll give you the mare and withdraw the bargain.'—Mr Fraser argued, in reference to the legal point raised by Mr M'Keay, that a refusal to deliver np the horses was sufficient proof of conversion. —The Bench reserved their decision until to-morrow.