THE COURTS—TO-DAY.

Evening Star, Issue 8810, 27 April 1892, Page 2

THE COURTS—TO-DAY.

RESIDENT MAGISTRATE'S COURT.

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

New Zealand Shipping Company v, New Zealand Railway Commissioners. His Worship gave judgment herein as follows : I think there is a strong improbability that the oase of Steedman’e powders was pillaged between 1.40 p.m., the time when it was discharged from the Tekoa at Port Ghalmors wharf into the railway truck, and 4.30 p. m., when the truck was being unloaded at the Dunedin goods shed, and it was first discovered to have been tampered with. Daring all that time the truck appears to have been covered with a tarpaulin lashed down to the truck, and while stationary at either end of the line exposed to public observation. It seems scarcely possible that any person oonld have removed a portion of the tarpaulin, or have got underneath it and have opened and renailed the oase, and have escaped detection. I think also that the fact that it was firmly renailed is an argument against any such theory, for it is unlikely that any person pilfering the case while in the truck would incur the extra risk of detection from the noise that would be made in driving nails. It seems to me to point to the probability that the oase was pilfered, not by strangers, but by employes of those in charge of it at some time when there was less chance of detection than while it was in the railway truck, There is no probability that the case was pillaged by any railway servant working the train. Their time is fully occupied, and the absence of anyone for a time sufficient to pillage the oase could not fail to be noticed. Messrs Rattray, Loring, Spence, and Mearns have all sworn that they noticed the zinc lining of the case when it was opened at the plaintiff company’s office, and it appeared to each of them that the torn edges of the zinc showed dull and dark, and not bright as it would if comparatively recently out or torn. On the other side, Mr Maddox has given his own experience that the edges of zinc will show dull after seven or eight days’ exposure to the weather in the open ; but that does not meet the present case, because the zino was not exposed to the weather, but covered by the wooden case and kept in the goods office. I think the evidence of those gentlemen on that question is deserving of credit. The fact that the railway tally clerk gave the ship a clean receipt of the case is of course a strong point in plaintiff’s favor. The evidence is that the tally dork was an experienced and careful man; but it has also been shown that the truck-load consisted of twenty-five packages large and small; that it occupied only ten minutes to losd, andßrith jn that time the tally clerk bad tp see the marks ftpd numbers of each package, enter them all ip his book, as well as to examine the condition of the packages. This gives an average of twenty-four seconds for each package within which time the marks and numbers must be seen and written down, and the condition of the package necessarily becomes only of secondary importance. 1 agree with Mr Loring’s evidence that the time is not sufficient, and my opinion is that the faulty condition of the oase must have existed when it was put into the truck, and that it escaped the tally clerk’s notice. Judgment for defendant. His Worship ruled that those witnesses who are in the pay of the Crown should not receive costs, John Davie v. Herbert and Alexander Park.—The hearing of this case was resumed.—Mr Chapman, appearing for plaintiff, asked to be allowed to amend ing in the alternative to add a count founded upon the evidence given by Mr Davie.—Mr Solomon objected to the amendment, and asked for a nonsuit on that the cause of action did not agree with the facts as disclosed by the evidence. An amendment could not be made if it introduced something which the parties did not come to the Court to try, —Mr Chapman submitted that the amendment should be allowed. A 'cause of action was shown by the evidence in respect to which plaintiff might recover, and he claimed to amend accordingly, the rule as to amendment being that when a plaintiff’s case was closed he could ask to amend so as to bring it according to the evidence. He simply asked for the same money in a different form, but on the same set of circumstances, —Mr Solomon replied that his friend might as well argue that if he claimed LSO for assault he could recover if ho proved libel. After consideration, His Worship said i It seems to me that the question the parties came here to have tried is that shown in the third paragraph of the statement of claim—” The defendants, on or about the 28th of February, 1801, sold the said shares, and agreed with the plaintiff that in the event of the buyer failing to pay future calls they would do so to the amount of L6O, which sum the defendants then received from the plaintiff." Well, what the amendment asks for is something quite different to this—is not the same question at all, I think the amendment cannot beallowed.—Mr Solomon then applied fora nonsuit on the grounds, firstly, that there was no evidence of any sort before the Court to support plaintiff’s cause of action. The Resident Magistrates Aot provided that plaintiff’s cause of action should be supported by the evidence. The cause of action was that Mr Park undertook to sell certain shares for Mr Davie, and that in the event of the buyer failing to pay future calls Mr Park would do so to the amount of L6O. Thera was no evidence of that, Secondly, if there was such evidence, plaintiff could not recover (1) because this C-urt had no jurisdiction to try the oase, since it was an action for an indemnity; and (2| that if it was an action for damages, plaintiff was not entitled to succeed because be had not proved damages, Counsel further submitted that if His Worship found that the cause of action was as put forward, Mr Pork’s liability to pay calls was conditional upon Mr Davie doing his best to get the buyers to pay them, and there was no evidence that he ever tried to get the buyers to pay them; and that Mr Davie could not suffer damages, seeing that he was not a principal.—Mr Chapman having replied at length and cited cases, Mr Solomon said that he would rely upon his nonsuit points, and call no evidence. His Worship reserved judgment, Lawrence Kelly v. Thomas Murphy.— Claim, L2 16j, balance of account for work done.—Mr J. A. D, Adams appeared for defendant.—Judgment for Ll 9i 9d and costs.

James Donnelly v, Peter Pilet, —Claim, L 3 3 J , goods supplied. —Mr Thornton for plaintiff, and Mr Solomon for defendant— Defendant admitted delivery of the goods, but said that they bad been paid for to Mrs Donnelly —After the oaee had been partially heard Mr Thornton asked for an adjournment, on the ground that he desired the attendance of Mrs Donnelly as a witness to meet the defence.—Adjournment granted til! 4th May, William George Christie v, the Mayor, Councillors, and Burgesses of North east Valley.—The plaint-note set forth that on the 22nd March, and for some time previously, defendants allowed Watt road to remain in a bad state of repair, and permitted a heap of sand and mortar to remain thereon, whereby a horse and vehicle, the property of plaintiff, were damaged- Defendant claimed LlO for the damage. Mr Solomon appeared for plaintiff, and the Hon. W, D. Stewart f«. r defendants. [The oase was proceeding when we went to press.]