RESIDENT MAGISTRATE'S COURT.

Hawke's Bay Herald, Volume 14, Issue 1150, 6 May 1870, Page 3

RESIDENT MAGISTRATE'S COURT.

Tuksday, May 3. (Before J. A. Smith, Esq., J.P., and J. Wilkiuson, Escl-, J.P.) CIVIL CASES. Beagley and Stevens v. Or;*. — Debt, £2 2s. Adjourned to Friday. ' Gilligan v. JSt/iiiei'. — In this case the plaintiff, as lessee of the Toll-gate, sought to recover from the defendant, who drives au express between Napier and Meanee, and is contractor for the carriage of mails to Meauee, the sum of £17 65., balance of au accouut for tolls from the Ist July last to the 20th. ult. Mr. Carlyon appeared for plaintiff, and Mr. Lee for defendant. . The plaintiff, in his evidence, stated that defendant was in the habit of pasiing through the Toll-gate ; that he (plaintiff) had an authority from the Government to collect the toll. The first mouth plaintiff had charge of the Toll-gate, the defendant told him he was mail contractor, and had a right to pass the gate free all day. Plaintiff kept no account of the number of times defendant passed. He passed twice every day, with the exception of once or twice when it was wet weather. Plaintiff never asked him to show the mail bag. Sent in au account to defendant in February last, for £10 Gs. Gd., which he refused to pay. Sent in another account for tho amount sued for, which he also refused to pay, Since the last account was delivered defendant had paid tho toll. Plaintiff shut the gate on defendant approaching it with his vehicle, and he then drove back. The next day defendant's man drove through and paid the toll; and on tha 22nd ult., the defendant himself paid the toll. Iv January plaintiff was informed that defendant had no right to pass free more than once a day. Bad no doubt about his right previous to this, and let defendant go through, because he (plaintiff) knew no better. Until the last few days never made any demand upon the defendant for the tolls. In reply to the Court, the plaintiff stated that he had no book containing entries of the days the defendant passed the gate ; the accounts furnished were made up from memory, as with one or two exceptions, defendant had passed every day twice from the Ist July. Peter Bourke, chief Postmaster, gave evidence to the effect that all mail- carriers were exempt from toll. The mail to the

Meanee was despatched at 11 o'olpok in the morning, but frequently a mail was sent in the afternoon, when mails' from other ports arrived after eleven. . "\ Mr. Lee having stated that he did not intend to call witnesses, Mr. Carlyoh addressed the court, and contended that th& plaintiff \yas entitled to recover the amount of his claim on the ground that the'def&K dant had misrepresented himself to be exempt from toll afc all times,' whether carry-' ing a mail or not. This had misled the plaintiff and as soon as he found out his error, he sent in his account, and it would be very unjust if, through the defendant's misrepresentation,: he should suffer loss.'' He admitted, however, that the plaintiff had been negligent in not having brought the case before the court earlier. Mr. Lee, in addressing the court, submitted several points in favor of his client. The chief point was that the plaintiff had no right to sue for the tolls, as, by the wording of the "loir Gate Act," the plaintiff was merely a collector of the iolls, and had, by' the 7th Section, to give se- ' eurity for. duly accounting for them to the ' Provincial Treasurer. This showed" that * he was a servant of the Government, and^ ' therefore, was nofr in a position to sue for the tolls. The defendant had always'; denied his liability to pay; ' eonsequehtlyj' the gate-keeper, having let him pass, qpuld not charge him with the tolls, there haying: '/. lieen no promise on the part of the defendant to pay them. The plaintiff's propel course would .have been to have shut tho gate on defendant refasing to pay at first, and thus brought the question to an issue." Mr. Lee further argued that, by the word- : ing. of the 2nd section of the Act, no tollcould be demanded from the defendant at any time, because- his vehicle and horses were employed in the conveyance of Hei? Majesty s mails. The Bench, having retired for a short ' time for consideration, dismissed the case, with costs, without any expression of opinion on the points raised in defence. Pititi v Duncan. — Claim for £7 ss;, - value of a horse borrowed by defendant and not returned. Defendant did not appear, and judgment was given for plaintiff. . with costs. '