RESIDENT MAGISTRATE'S COURT, AHAURA.

Grey River Argus, Volume XIV, Issue 1727, 16 February 1874, Page 2

RESIDENT MAGISTRATE'S COURT, AHAURA.

Friday, February 13.

(Before C. Whitefoord, Esq., R.M.) Gough v. Ashton and Cassidy.— A claim of L 29 10s., for tolls for crossiug in the punt at the Ahaura, the mail coach runuiug between Reefton and Greymouth, with four horses and passengers at vadous times, also for crossing horses other than those harnessed to the coach. This case came on for hearing first on 23rd January, and it was adjourned to the 30th to enable' the solicitor of the defendants to appear. On the 30th the case was called, and Mr Staite appeared for the plaintiff and Mr Perkins for the defendants. The evidence of the plaintiff and the defendants was taken as to several items in the account stated, but there was very little dispute with respect to the particulars. The entire question rested upon what interpretation was to be placed upon the wording of the " protection" held by the plaintiff from the Nelson Government. The protection to the plaintiff for the ferryboat, and afterwards for the punt were put in. Mr Staite argued that under the Goldfields Act the Superintendent could authorise the plaintiff to charge tolls, and that the plaintiff had been so authorised. But even if he did not rely entirely upon the Superintendent's protection, he contsnded that he could sue fer work and labor done while working the punt in crossing the defendants' horses. It the right to be paid for the labor i^r formed that gave the right to bring the

action, and he would defy the Government to prevent his client charging tolls within the limit fixed by the protection if parties ÜBed his punt. The Court : That argument might apply - if the charge was made and the toll demanded at the time the work was done. Mr Staite would aubrait that the ownership of the punt was not disputed, and they being owners wero in a position to refuso to work unless they were paid. The wording of the protection only compelled them to "cross a postman in a ferry boat," -and it was not because they built a punt to accommodate Ashton and Cassidy, When that firm choose to carry the mails in a four-wheeled coach, that they (the defendants) should not pay for the extra accommodation. The defendants could take the mail without a coach and four, and he would be glad if his learned friend, with all his ingenuity of argument, would prove that a coach and four hones meant a " postman." The defendants took passengers for their own beOf fit, and it was necessary before they could profit by passengers, that they should provide a coach to carry them, but they were not to be allowed to claim exemption from paying toll, because they made a profit out of the passenger traffic. Mr Staite quoted cases in illustration, and said that if the defendants claimed to take the mail only, no matter how conveyed, they might come to the Court with a good case, but when the protection of the plaintiff was granted a coach and four was not contemplated no more than a railway train could be. Mr Perkins contended, that a verdict should pass for the defendants on the grounds : — First, that the protection being in the nature of a tax, the terms of it should be construed strictly— "Brougham's Legal Maxims, p.p. 465, 466 ;" and secondly. there was no proof of the Governor's power having been delegated to Oswald Curtis, and the document was signed by him as Superintendent, without setting out his authority ; third,' the coach should pass free, as the defendants were carrying the mails, and under their contract with the General Government they were obliged to provide a coach. They were therefore postmen, and by the terms of his protection tbe plaintiff was obliged to cross all postmen free. Fourth, that part of the time during which the plaintiff charged for crossing he held no protection at all, and that even if he did, no contract to pay was ever made between tbe parties. Again, the protection did not extend to a coach and horses, inasmuch as the protection put in only referred to a " horse and rider," and the secured protection was for a " horse and dray." .Now, a coach was not a dray. Mr Staite : Neither is it a wheelbarrow, and the argument put forth would apply to that " vehicle " as well as any other. Mr Perkins continued, and contended finally that the plaintiff had overcharged the defendants, for the protection allowed 2s for every " horse with rider," but no charge was imposed for an additional hone. Mr Staite replied as to tbe right of the Superintendent to grant protection. It was a presumption of law that when an official act of this nature was done, the person who did it acted with authority, and therefore acted rightfully and legally, and the other Bide would have to show to the contrary. He briefly recapitulated his arguments, that the protection of the Superintendent was merely to prevent overcharge, by fixing the. tolls and thus protecting the public. But this protection was not necessary when the ownership of the punt not disputed, and the ownership gave the right to sue for work done. By carrying passengers the defendants had waived their light to exemption from tolls as mail carriers, and this the Judges of the Supreme Court had already decided. The plaintiff, under his protection, was obliged to cross the mails and the perse n in charge of them, with Buch means oi conveyance as would be reasonably required, but a coach and four was not necessary for this purpose. His Worship, after the arguments of counsel were finished postponed giving bis decision. Mr Perkins trusted the Court would make a note of one of his objections, viz., that no contract to pay was ever made. The case was adjourned for two weeks, and the Magistrate gave his decision today. His Worship, in giving judgment, said it would be more satisfaction to him if the learned gentlemen on either side had qnotad authorities bearing on the vase at g. eater length ; as it was, he had very little to guide him in arriving at a decision. The "protection" granted the plaintiff was a misnomer when applied to ' the grant of the Government, for it was more in the nature of a permission to erect a pant, with a guarantee that he would btt protected from the competition of other parties for a distance along the river. The amounts charged were pn-t'y well admitted as correct in detail, and the rates generally were not disputed. The main question was could the defendants, because they carried the mail pass free along the main lire of road, no matter . what conveyance they used ? The plaintiff 1 , under his protections dated October 1872 and July 1873, claimed that he was only .bound to cross free of charge the mailman, the road overseer, and Government officials on duty. The custom, before the main road opened, was to take the mail on a pack-horse, which the plaintiff admits he crossed free, and was willing to do so now. But it was not because the circumstances of the County had changed, that a more liberal interpretation should ■ot be put upon the terms of the plaintiu's grant. It was not because the main road was now happily available th*t the mails should be carried on pack-horses still; and he thought that as the increased facilities for traffic necessitated better means of carriage, it was intended that whatever means of conveyance might be considered 'necessary to carry the mails, that conveyance should pass free. Suppose a large rush had taken place upcountry before the coach-road was opened, and it was found necessary or convenient, owing to increased to load two pack-horses with the mails, would the plaintiff be justified in refusing to pass thefecond horse free, or would he he upheld in his interpretation of his {roteotfon, that he was only bound to cross " a mailman and his horse ?" The Court thdnght not, and consequently the mail coach and the horses usually draw- „ ing it should pass free. The charges made for the coach-horses wonld be disallowed, bat the passengers would have to be paid for, and also the horses which passed at different times to the relay and change atatfont of the defendants. The jlairitiff j bad charged for thw© extra hones pus* i

ing barebacked, as if they had riders, that ib, 2s each, but Is only would be allowed, as if they were bo many head of cattle. Judgment for the plaintiff for Lll lls 6d with costs, and a professional fee of L 2 2s. The verdict was in effect for the defendants. The plaintiff's solicitor intimatod the intention of his client, to appeal. Fraser v. Hall. — For L2O upon a dishonored cheque. A return of non-eurvioe was made from Nelßon, and, on the motion of Mr Staito, the summons was enlarged for one month. Clarson v. Essex.— A claim of L 27 7s sd, for goods supplied at Duffer Creek. The defendant confessed judgment, and was ordered to pay LI pei week. Gane y. Sheehan. — A claim of LI 3 5s 7d ; 'similar to the last. Judgment for the plaintiff by default for the amount Bued for and costs.

The Court was adjourned to the 20th February.