RESIDENT MAGISTRATE'S COURT.

Hawke's Bay Herald, Volume XXI, Issue 5016, 23 February 1878, Page 2

RESIDENT MAGISTRATE'S COURT.

: ' l Friday/ February 22. [ ' ' (Before* R. Beetham, Egq.,R.M.) ' ' '"' r " ' ' ASSAULT. -• ■■'.'•. Jane Martin was charged by Ann Miller w£tH having assaulted h£r son 1 Janaes'/a boy of i?,yedri, 'at the Spit on Sunday, the ..' „, '; ; - ''< ■ • Mr Bees appeared' for the, cppiplairiaht. Ann .Miller was called, jand stated 'tljat she was the mother of the^boy James Miller. Had sent her younger soji, 6 years of age,., to sohool :on'.the day mentioned .in the information, and was on the verandah when* 'ahti' saw- fc'boy interferingiwith her; boy,- and'sent her othei? boy James to stop the boy from beating his younger brother. Witriesswent out shortly afterwards,^ and saw the .defendant with her boy ; James upon the gfbdnd 'beating hirft. with : hVr : ijstS, u '.The>boy was oryiug •' Kis fad© "was nufoked, andV'lu's xt&b? ''The defendant then toolc' Up stones and threatened complainant. ' In ,reply^,to ; a question by defendant, the complainant" admitted having said that if she had been,,;in better health she would have knocked both defendant's eyes into one, but denied that her son took up any stones to throw at defendant while complainant was present. James Miller deposed : I remember Sunday last. The boy David Hunter began throwing stones at my little brother. I kept him off. I did not strike him,- but held him against the fence. 1 saw the defendant coming with a big stqne in her hand, and I ran, but I was caught by a boy named Iforfche. Then defendant came up and knocked me down and beat me. ,; In reply to defendant, the witness denied that he was kicking or striking the boy Martin. Ellen Josephine Keys was called, and stated that she saw the affair among the boys on Sunday last, but it was from a distance. She saw defendant striking the boy-Miller. Mary Knowles confirmed in every particular the evidence given by James Miller. v For >f the defence, Jane Martin was swprnl ' She said : On Sunday afternoon ' a boy named Eyre came to my house. and said, "They are killing your brother." I went round „t o the^ school and found. James Miller kicking .my brother,, andwhen 1 1 went towards them Miller ; threw stones' at me and ran away. Nor the caught him fpr me, and I beat him. Defendant' then called several young witnesses, but their evidence went to con;finn that given for the complainant. 1 .Mr Rees. briefly addressed the Court, and asked that there "'might be an'expression of opinion from the Bench!'' about conduct like that of the defendant. Although „ ihia was , only children's squabble, it might lead to quarrels among ] their elders, and possibly to a breach of | the peace. '. { \ /, \ i ' .- His Worship said he would not impose a fine, but proceeded to read the defendant ! a severe lecture -upon the results of such displays of temper as she had indulged in. In the course of his remarks, his Worship happened to say that the defendant was evidently a- "lady of irritable temperament," to which the defendant began ,to enter an emphatic protest, when his Worship amended the expression to tliafc.of "alady of an energetic disposition." The- case' was dismissed, the defendant to pay all costs of Court, amounting to 19s 6d. There was a cross action for assault, in wHich Hhe defendant in the last case appeared as complainant, but at the suggestion of his Worship it was withdrawn. M f DONALD V. ANDERSON. This was a claim for £4 10s as being an excessive charge on some sheep belonging to plaintiff, which had broken into defendant's orchard,, and had been impounded by him 1 with a claim upon them for £5, which plaintiff had to pay to get them released. He liow contended that 10s would ; bejiuificient^o coyer the damage, and he : sought to reboverthe remainder: ■ c Mr Lee was for plaintiff ; Mr Lascelles; for the defendant. , ■ ( , . A. M'Donald deposed : I have land-ad-joining that belonging to Mr Anderson at ' Taradale. A post and wire fence divides our properties. I agreed with Anderson's son, the father being ah invalid, to repair half the fence. I repaired my half. I had sheep in my paddock, and I heard they had got into Anderson's. I went and saw Mrs Anderson ; 138 sheep had broken through into Anderson's. I asked them to point out the damage done and to appoint some one to assess it. They drove the sheep to the pound and I had to pay £6 3s to get them out. The sheep went through that part of the fence which Anderson should have repaired. Cross-examined by Mr Lascelles : I went all over Anderson's ground. ' I saw a corner where damage had been done to potatoes, where the sheep had been rounded up. The potatoes were ripe, and treading upon them by sheep would not hurt them. Thomas Hayes deposed : I saw| Mr M'Donald's sheep in Anderson's paddock. I ,went to, see the damage done. I shouldn't say there was any real damage done. The corner of the potatoes was trampled. If it had gone to arbitration I should say 10s would be sufficient compensation. Joseph Brien remembered the sheep getting into Anderson's. Had seen the orchard and paddock. Did not consider there was any material damage done. Hear I Mr M'Donald offer to go to arbitration. The fence was imperfect. John Waters deposed : I know the land on which the sheep were, and the dividing fence. I heard a conversation between M'Donald and Anderson about repairing

the fence. They agreed that each should epair half. I repaired both M'Donald's and Anderson's. Anderson's half had become imperfect. There .were great gaps in it. . - J^the defenceyMr Lasceiles called '"■ 11 * 3«n.,;wh*o deposed : I .was tqld. on the morning 5f the 14th ins£~ jhat a^lot of sh%£%d broken into my fathers orchard. I found the sheep $#shmg about the orchard. I took them out and put them in a lane, and secured -them. -.When.M'Donald came.Jie did sue- .. ge?t arbitration, but no one , came to arbitrate, and 'I droveAhe sheep into the pound; Some-young trees- had -been ■ broken, and a lot. ,qf potatoes .trambled into mud. "•" ' p.Cross-examined . 'iby: (Mr Lee- The potatoes were not' ripe. LWe were (using • some of them, and .some had been sent into town. Never agreed with.MfDonald to repair t anyy.portipn ,of the fence. The ' < sheep went through; the portion of the ' fence which we always considered belonged'to M f Dbnald; ; ..-'.- . .. ■■ John Anderson, another s6n of the defendant," deposed ;• I saw the orchard 'two days after the trespass: Leaves were torn off some of the vines.; young trees were broken, and .50 or 60 square yards of i potatoes b,eaten down. The, part beaten; -down., wpuld.'. yield* 2 or 3 tons. Cdaldn t say what damage was {done to jfriiit trees. Tho potatoes were, spoiled.. ; Edward Olson gave evidence, as to the .damage thafcshad.been done, i: He that besideß the injury to the potato, crop, a good deal' of lucerne had been trodden down, and grapes eaten off the vines. Jane ; "wife of the defendant, : /deposed to the sheep coming into the -orchard, and to-h'er helping Mr Lord to put them out.,. The potato field was then M ataep.;, ,All the potato plants' were l trodden down, the lucerne ruined, arid ! nothing .p,f the.- .grapes left. Besides ' eating the grapes off, the sheep, did a good deal qf ' injpy tfo .the . vineß, in jumping over the wires upon which the vines were trailed. Of the potatoes were .40 yards destroyed; / That had been ad- • mitted by Mr M'Donald's own man. Mr Lascelles and MrCLeeMiaving addressed the Bench, , His 'Worship* said $bat< the.) evidence showed thatsrtheA damage, done by the; sheep exceeded .what the defendant, had. claimed when impounding them. He saw ' I no reason?to disturb: that claim. I Judgmeniiou^defendant^with £3 9a A ■ COsts. ~r~^ >\ PERFECT V. RUSSELI. I The plaintiff claimed £43 16s for 21,900 I bricks made by him for : defendant under I a contract for 50,0001, brinks bearing date I ,the 14th of May. T^'ease was before I the Court last weeky£wnen the plaintiff I . recovered judgment on a claim for mak- I ing 60,000 bricks ;under a contract dated I the 24th of May. Mr Rees, who then I '. appeared for the .defendant, obtained an I adjournment of the present action on the I ground that he was under the impression I • that : there really w.as but one contract be- 1 tweeri pla'intifT and Mr Russell respecting I brickß, the ! two contracts produced in I Court being merely duplicates of one con- 1 tract. ' ' I Mr Lascelles appeared for the plaintiff, I and Mr.Rees for the defendant, the Hon. I H..-R^ i ßus3ell l ; ,-, ■ George Perfect, the plaintiff, deposed tofl the circumstances under which the two con-B tracts were entered into. He stated that infl the first instance Mr Russell wanted himß to make 100,000 ; but witness would onlyH make 50,000, and a contract for that nunvfl ber was entered into. Witness's son and two men went -to Te Aute ancfl commenced digging for clay, and havinfl succeeded in finding clay that was suitfl able, witness went to Mr Russell, andtol<fl him that he would take the other contracH for another 50, 000. bricks, as he hadfounM good clay. ' >J Thereupon the contract no\H sued upon was entered into. The coi^| tract produced, dated 24th May last, w^H the one. Under that contract witnes^B made 21,150 bricks. They were now aH Te Aute ready for delivery. They we^H the same quality as the first lot, and we^H made from % the same clay. Witness w^M knocked off from making any more brick^H on the 6th of October last, by Mr HumpflH reys, defendant's clerk. Mr Humphre^H came to witness and said that he was -^H knock off, as Mr Russell could not rIH member giving witness the second coJH tract, and that when witness had got t^H bricks that were already made burned, lfl| Russell would pay for them. They we^H all marketable bricks ; witness could s^H them now for, £3 a thousand. . , A dozen bricks were produced Court, and the plaintiff was crosa-examinl^B by Mr Rees as to the quality of some^H them. He admitted that he did not cflH those good marketable bricks. Jph]a D.can deposed that he I^H examined the bricks' that the plaintiff U^H made at Te Aute. There were very fIH bricks among them like those infe^H ones now produced. He should say^Hj more than one in a hundred. He wo^^| give £2 10s per thousand for themJj^H (Plaintiffs claim was at the rate of £2^^| thousand.) Witness would be able toHH theni at froni £3 to £4 per thousand. Thomas. Kilburn, brickmaker, depc^^H that he had seen the bricks that had q^H made by the plaintiff at Te Aute. T^^H were good marketable bricks, and worth; about £4 per thousand. T^^B were the best marketable bricks, for^^H quantity, that he had seen in Haw^^H Bay. Some of the bad appearance in^^H bricks now produced was caused by t^^H having been, knocked about. It woul^^H usual to take off 10 per cent for midd^^H bricks, but in those of plaintiff there not more than' 5 per cent. . Henry Collins, mason and bricklayd^H Hastings, deposed that he had seenj^^B bricks at Te Aute. They were j^^H marketable bricks. J^^H Thomas Martin gave evidencg^|^^^H same effect/ He would get fronrt^^Hgj £4 per thousand for the same cla^^H| bricks. He would not grumble at being ten in a hundred of the impeHH kind now produced. David Black deposed tha^. it wa^^^H custom of the trade to allow for aV^H centage of imperfect bricks 'among a fIHH good bricks. '■' George Perfect, son of the nlai^HH deposed that he had helped his fatl^^H|| pack the bricks. There was about c^^^H a'^ hundred like the worst of those^H^H ducedy and about 5 per cent, of the |^^^| - imperfect ones. ' Plaintiff's case having closed, Mr^^^H wished to know -whether Mr Lascell^^^^H going upon upon the contract or^HBH quantum meruii. Mr Lascelles replied that he d^^^H upon quantum meruit. J^^^^| Mr Rees contended that the P^^^^^l could not do so, as it had not been that the contract had beenrescinde^^^^H if plaintiff went upon the contract^^^Hn the rent for the cottage would havo^^^H allowed, in accordance with the te^^^flfl the contract. J^^^l Mr Lascelles, on the other hanc^^^^H tended that the contract had be^^^^^H scindecljby Mr Humphreys (defe^^^^H agent) ordering plaintiff to knock °^^H|H as to the rent of the cottage, it cou^^^^H be claimed because of the contract H^^^H been broken by defendant. Mr Rees then opened the defei^^^^H| case, arid called James Winks, who deposed that^H^^H instructions from the defendant, examined and sorted the bricks na^^^^H the plaintiff at Te Aute. He sor^^^Hn 9550 bricks. Of one stack, he we^^^^H one side only, about a third way through. He went into bot^^^HH of the other stack. He sorted t^|^^^| he took them out, and divided thj^^^^H two lots— one good and the othfl^^^H Out of the 9550, there were 6400 g<^^^^H 3150 bad. The clay in some of tbß^^^H was hot 'thoroughly worked. Hfl^H^H tliat 'the good bricks had been outside, covering the bad^ ones in^^^^B stacks. ' i^^^^H Wiliam Black, brickmaker, H^^Hl that the brickg produced were ri^^^^H bricks. A few of them were passa|^^^H the rest were bad. HH^^H

William Olliver deposed that about six of the bricks produced were good bricks, but the others were bad. Robert Holt, builder, considered the bricks produced a very poor sample. Five, out df the dozen produced by Mr Rees and four produced by Mr Lascelles, were good bricks ; the others were bad. Henry R. Russell deposed that he knew nothing of the second contract. It puzzled him entirely, and appeared . to be a mistake altogether. r Plaintiff waited upon witness in May last, at Waipukurau. He said he wanted to earn some money, and asked if he could make some bricks for -witness. Told him to go to Te Aute and see if he could find clay. Plaintiff found clay, and thereupon the contract was made. Witness thought itwastheonly one made. When witness saw the bricks, 'he objected to them and said he would not take them. With regard to rescindingthe contract, -witness had no distinct recollection of having given any instructions to his clerk Humphreys, though he might have done so. Witness was seriously ill at the time. Witness sent Winks to examine the bricks. Tfie/result of the exadainatioil amazed him to think thai any on§ should attempt to impose upon him in that way. In cross-examination by, Mr -Lascelles, Mr Russell stated that he knew f nothing, about there being two contracts iintiV he* was communicated with, oh' that jpbittt by Mr Rees. Some correspondence that hadpassed between Mr 'Lascelles jaiid witness on the matter having b«en pnt~into : his hands, he, e[xplain6d that he. jhad been under the^ impression 'that -it' re-' f erred to the one -^contract .of . which; alone he had any refcollectiori? ; He' -*t>elieyed that the mistake.had arisen throujghc it having been forgotten, wHen {he second' contract was signed, that there "was already one made. } It had never been his inte'titicnV to' enteir into more than,' one contract. .He admitted that he had never, intimated to the plaintiff that he could selllithe-bricks.^. He ..denied, that _.he_had' said to plaintiffs wife that he would make the place too hot for her and her husband. Witness^.had found, that she was still oc,cupying witness's cottage at Te Aute, and - ;- he-toldlieE.that.she must leave. .' r Wuliam, .deposed that he vas prglenj; at.,an .interview the",plaintiff ;,had [ ■with' Mr-. Russell before the latter went to Wellington. Mr Russell complained about the bricks not -being good, and hoped he .would have better luck.. Perfect replied -that the weather had been bad. George Perfect (the plaintiff), was, recalled 'at the 1 request of Mr Lascelles. He denied that Mr Russell had, before going to .Wellington, complained about the brtcKs: ! 'A'llMr' Rußsell said was, " I wish yffu/luel?'" and witness answered, " Thank y ou, i( sir;"- '- : • Mr Rees asked his Worship, before de^ ciding the, , case, to "appoint some one to examine the i bricks.' : ''*' fijs. W,6. rshj^p declined doing so, holding that it was for the parties to the ac ( tion to bring evidence before him as to the quality of the bricks. , . , ; ., / ..-, 1 Mr Jßuss.ell;.^aid .he was anxious ithat* it should not be saidjthat he did not wish to pay for thQ, bricks. H He knew he had a bad article, .but he would pay for it. All he wished was to, justify himself. Mr Lascelles objected to Mr Russell addressing the Court when he was represented by counsel. Mr Rees then addressed the Bench for the 7 defendant, ■ and Mr' Lascelles for plaintiff. His; Worship said he would give i his decision, the following (this) morning at lj o'clock.

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