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THE COURT-TO-DAY.

SUPREME COURT—IN BANCO.

WICDNKSDAY, {)T1I JdN'l'

I (Before His Honor Mr Justice Williams.) I Butler Bros. v. Pjuki ¥ oint,—Motion to quash a warrant of distress. j Mr Barclay appeared for the defendant in support of the motion, and Dr Fitchett for the plaintiff to oppose. Mr Barclay said that the facts were that certain goods were ordered by Pearpoint from Butler Bros. These goods were sent, and Pearpoint was dissatisfied. Butler Bros, received some of the goods back. There was a question as to whether the remainder of the goods were returned. The goods were sent down by rail, but Butler Bros, declined to pay some small railage charges, and contended that the goods were not returned. This point was not argued, and the Justices decided the dispute without hearing it, making an order for the payment of the amount claimed (L 3) or the return of the goods, but failing to deal with the question as to whether the goods had actually been returned. The contention now was that the non-return of the goods was a condition precedent to the amount being due ; and that, as this matter had not been determined, the warrant of distress had been wrongfully issued, and should be quashed. Dr fitchett submitted that not only was the case exceedingly paltry, but it was one in which his learned friend's client had suffered no damage whatever in respect of the matter complained of. The Justices had found that the plaintiff was entitled to a verdict for the amount claimed, and had given the defendant the option of returning the goods in satisfaction of the judgment. The learned counsel argued that counsel for the defendant had set up as matter for prohibition what was simply matter for rehearing. His Honor, in giving judgment, said Butler Bros, sued Pearpoint in the Court below for L 3, for goods sold and delivered. If the magistrates found for the plaintiffs, the proper judgment of course would be that the defendant should pay the plaintiffs the sum of L 3. At the hearing, however, the plainciffs' solicitor stated that his clients were williug to take the goods back provided they were returned free of expense. Then the Justices made the minute in question. It seems to me that looking at the form of action and at the statement of the plaintiffs' solicitor, that he was willing to take the goods back if they were returned free of expense ; that the magistrates in making this minute must be taken to have exercised, with the consent of the plaintiff, the power which section 47 gives them, " to prescribe such terms and conditions as to the time and mode of satisfying such judgment as they shall deem just and reasonable." As I have said in the course of the argument, it seems to me the effect of this is to give a concession to the defendant, with the consent of the plaintiff, to which the defendant was not strictly entitled. What took place afterwards confirms this view. Had it been the intention of the Magistrate, in making this minute, to decide that the goods were to be returned, then entirely different proceedings would have been taken. Under section 58 a warrant would have been issued to the bailiff requiring him to demand and seize specific goods. Nothing of that kind was done. The seven days' grace given to the defendant to pay the L 3 elapsed, and a warrant of distress was issued to recover the money, thus showing that the judgment was treated throughout as a judgment for the sum of L 3 simpHciler. I think the defendant exceedingly unreasonable in complaining of a modification of the judgment, which was, a concession to himself. I think, therefore, the motion must be refused, with costs. Judgment accordingly, with costs (L 7 7s). FINDLAY AND Co. V. F. MANDKR AND Co. —Motion to Bet aside the verdict of the

jury and for a new trial, on the grounds of misdirection and non-direction.

Sir R. Stout appeared for the plaintiffs in support of the motion : and Mr Hoskings for the defendants to oppose. This was a case iu which the plaintiffs brought an action to recover the sum of L2OO damages for alleged non-fulfilment of an agreement by defendants to sell to the plaintiff 3.50,000 ft of kauri timber at 4s 9d per 100 ft. The case was heard before a jury in the Supreme Court on the 22nd of March last, and resulted in a verdict for the defendants. It was now sought to set aside the verdict, and to obtain a new trial, on the grounds of misdirection and non-direction by the learned Judge. [Left sitting].

RKSIDENT MAGISTRATE'S COURT. (Before E. H. Carew, Esq., R.M.) Sargood, Son, and Ewen v. John Burnett. —Claim. L 42 12s sd, for goods supplied. MrC. Kettle for plaintiff.—Judgment by default for the amount claimed, with costs. F. J. Sheridan v. Kempthorne, Prosser, and Co.—Claim, Ll9 3s 4d, for wrongful dismissal. Mr J. Wilkinson for plaintiff; Mr James for defendants.—The hearing of this partly-heard case was resumed.—Plaintiff, in cross-examination, said he remembered that the salary fixed was L2, but no definite arrangement was made as to the termination of tho engagement. He asked Mr Kempthorne for the holiday, but could not remember what answer the latter made. Witness thought that Mr Kempthorne replied to the effect that he (witness) was not entitled to a holiday. Witness thought that he promised to resume work on Thursday, January 3, if his services were required on that date. Witness proceeded to Christchurch, and on the following Saturday, Junuary 5, sent an " urgent" telegram to liis employers. Assuming that his request had been refused regarding the extension of holiday he would have been able to reach Dunedin and start work on Monday morning by catching the boat which was advertised to leave Lyttelton on the Saturday evening. To Mr Wilkinson : It being holiday time witness could have reached Dunedin on account of the extension of the Oamaru train to Timaru. The general custom of chemists in town was that if the wages were paid weekly a week's notice would suffice, if monthly a month's notice, and if quarterly, three months' notice.—Thomas Kempthorne, manager of the defendant company, said that all the i servants in his employ were paid weekly, and an engagement was entered into which could be terminated weekly, unless a special agreement was entered into by both parties. Plaintiff was engaged temporarily, and no arrangement was made as to notice of dismissal. If plaintiff gave satisfaction he would have continued in the employ of the company. To Mr James: There was an entry in the wages book in witness's handwriting:— " Sheridan—two weeks' wages, L 4." When plaintiff asked witness for the holidays he (witness) consented, but stipulated that he should be back at the warehouse on Manday morning, January 6. Witness answered plaintiff's telegram on Monday morning, but he could not swear that the telegram did not arrive on Saturday, the office being closed early on Saturday afternoon.—His Worship said that there was evidence of wilful disobedience on the part of plaintiff, and therefore the case would be dismissed, with costs against plaintiff. Had plaintiff sued for wages due, judging from the evidence adduced, he would have obtained judgment for one month's wages; but, suing for wrongful dismissal as he did, the case would be dismissed.

J. Jackson v. H. F. Setson.—Claim, Ll9 16* 7d, for extra labor done, and material supplied. Mr S. Solomon for plaintiff ; Mr Sim for defendant.—The evidence of plaintiff went to show that he repaired, by means of his own and hired labor, the combings of a ship, the cost of which was to be paid by defendant. Witness had applied for payment, which had been refused. He knew absolutely nothing about any negotiations which had been carried on between defendant and Mr Mill, whereby the latter was to pay witness for his own and hired labor. He had applied for payment to Mr Mill, who had distinctly repudiated liability in connection with work done on board the vessel.—Evidence as to the work mentioned in the contract having been finished in a satisfactory manner and without any unnecessary delay was given.—Mr Sim submitted that defendant was not liable. Plaintiff had previously agreed with Mr Mill to perform all carpentering work under the contract, and in that connection had taken up the work on the vessel. Mr Mill had entered into negotiations with defendant as to payment for the amount incurred in the work done on board the vessel, and those negotiations had been closed and the claims of Mr Mill settled. Mr Mill had never repudiated liability, and was quite willing to pay the plaintiff.—Mr Solomon: Then why did he notallow his name to be placed as the defendant in connection with the case ?—After Mr Sim had detailed the particulars of the contract between plaintiff and Mr Mill, His Worship said that judgment would be given for defendant, with costs.

CITY POLICE COURT. (Before Messrs J. Logan, J. Elmer, and W. Isaac, justices.) Drunkenness.— John Duncan (one previous conviction) was convicted and discharged; James Burns (also one previous conviction) was fined ss, in default twentyfour hours' imprisonment. Obscene Language.— Burns was further charged with this offence in King Btreet, and pleaded guilty.—He was sentenced to fourteen days' hard labor, the sentence to run concurrently with the previous one.

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Permanent link to this item

https://paperspast.natlib.govt.nz/newspapers/ESD18890605.2.10

Bibliographic details

THE COURT-TO-DAY., Evening Star, Issue 7925, 5 June 1889

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THE COURT-TO-DAY. Evening Star, Issue 7925, 5 June 1889

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