MAGISTRATES’ COURTS.

Lyttelton Times, Volume XXXI, Issue 2607, 13 May 1869, Page 3

MAGISTRATES’ COURTS.

CHRISTCHURCH. Wednesday, Mat 12. (Before C. C. Bowen, Esq., R.M.) Police. —There were no criminal case* on the charge-sheet. CIVIL CASES. The Trustees of F. A. Thiel v. Henry Thomson. —ln this case the defendant applied for a re-hearing, on the ground that he was unable to attend on the previous day when judgment was recorded against him for £2O, alleged value of a musical box, said to have been left with him for repair whilst manager for Mr G. Coates, jeweller, Colombo street. His Worship granted the application, and conclusive proof was then submitted that the box had been left as security for a debt owed by Mr Thiel to Mr Coates, and with the understanding that defendant might dispose of it to liquidate the claim. His Worship accordingly reversed his decision, and entered judgment for defendant with costs. B. Jackman v. Joseph Hadfield.— ln this case plaintiff, for whom Mr Garrick appeared, sought to recover £97 10s, value and hire of certain horses and harness alleged to be unlawfully detained by the defendant. £3 had been paid into Court on behalf of the hiring, but the remainder was disputed, Mr Wynn Williams appealing for the defence. Lengthy evidence was given by the plaintiff, showing that about the middle of last year be bad two horses for sale, and, through the medium of Messrs Dale & Percival, was brought into communication with defendant, who took them on trial; the price he asked for them was £62; but not coming to terms, and being in want of money, he sold them to defendant for £3O, with a written agreement that they were to be given up to him at the end of three months if he tendered the same amount back again, aud it was also understood that the 30s per week which, failing a sale, defendant was to pay for the horses during the time he had them on trial was to be reduced by 10s per week in consideration of the loan. A written agreement was prepared to that effect, but subsequently destroyed without being signed, the defendant taking objection to being bound in such a matter, and stating that he would not deal unfairly by plaintiff. The harness claimed comprised two full sets, and bad been taken by defendant at the same time as the horses, without being connected with the bargain, and had not been returned. One of the mares had since had a foal, which had increased the value of the lot to £75, and the £1 per week hire was charged from the time of the transaction up to the present date, credit being given against the whole for the £3O due on loan to defendant. Plaintiff went to Auckland before the three months noted in the agreement for the loan had expired, but told defendant, who did not object, that Mr Green would represent him in the matter. Some other items of no importance for use of a horse were particularised, and Green was then called and proved to having offered to pay defendant the £3O for release of the horses, but acceptance of which was refused. He also proved to one of the horses being worth from £4O to £45. J. B. Dale, who bad drawn up the agreement of sale and re-sale, stated the particulars, but said he considered if the £3O were not repaid as agreed upon, defendant had a right to keep the horses. J. Raphael was called, but proved nothing material to plaintiff’s case, whilst he admitted that when enquiring about the horses at the time that he held a judgment against plaintiff, defendant told him he could have them on payment of the £3O, and do as be thought proper with them. A witness named Comer valued the horses at about £75, and evidence was then called for the defence. In this the whole matter turned upon the repayment of the £3O which defendant denied having ever been tendered to him, and called his wife, who said that she heard her hatband ask Green if he was going to pay the money for plaintiff, to which he replied in the negative as plaintiff was already indebted to him personally. Other evidence of a similar nature was given, and defendant stated that the harness had never been applied for, and that he had only used it during the time allowed for in the money he had paid into Court, His Worship said he could have no doubt whatever in deciding the case in favour of defendant. He must clearly go on the written contract of which plaintiff had not fulfilled the conditions. The eharge for hire at £ I per week broke down from there being no written agreement and the transaction being conducted as a sale. Mr Garrick; Then am I to understand that your Worship is against me on a point of law that plaintiff could not recover the horses after the three months? His Worship: Yes, and as Iconaider that the items of hire are fully covered by the amount paid into Court, I shall therefore give judgment for defendant with costs. Mr Garrick said he would prefer a non-suit being recorded in respect to the £75 for the horses, and his Worship assenting altered his decision accordingly. J. Commander t. W. Boag.— This was a claim for £72 for damages alleged to have been sustained from a fire said,to have been ignited by the defendant or under hie orders. Mr Harper appeared for the plaintiff, and Mr. Duncan for the defendant. The plaintiff’s evidence went to prove that himself and defendant have a warn p land near the Selwyn, separated from each other by the public road. During the early part of last summer defendant waa frequently burning flax onhis land, but about Christmas it waa particularly noticeable, and, although afterward! the flames diminished it, continued to smoulder in several places. On the ,17th of the following month the fire had increased again, and he noticed it crossing the road towards Ms land. Subsequently It ignited tberegatation on

his fence, and although he used every effort to prevent it spreading, over 40 chains of the fencing,'with some young trees planted along it, and the feed on about 46 acres of bis land were destroyed. From this he was compelled to sell his cattle—42 head—at a loss, and he did not think the paddock would be available tor use again in less than two years. He went to see defendant the day after the Are but could not find him, and did not meet with him until about a month afterwards. When told of the damage on that occasion, he first appeared inclined to repair it, but said he must make enquiries, and then subsequently refused to do anything. A neighbouring farmer named Jones proved to having traced the fire from defendant’s section, and to the correctness of the estimate of damages, and another named Karl adduced to seeing the fire crossing the road from defendant’s land when in company with plaintiff. Neither of them had known of any other fires in the vicinity. • For the defence it was admitted that a fire had been purposely lighted on defendant’s land, and that it had burnt in the direction of plaintiff’s land, but defendant stated that it had died out before reaching plaintiff’s land, fully three weeks previous to the 17th January, and he was positive it had not caused the damage under consideration. He also disputed the correctness of the estimate of damage for the fencing, which could be made as good as ever for 3s per chain, and the feed was of the coarsest swamp kind, A * man named Robinson, in defendant’s employ, also considered that the fire was extinct long before the date complained of, and was confident that it had stopped short at the ditch on the road, although it might, being peaty soil, have smouldered. He saw the fire on the 17th January, when the wind was blowing from plaintiff’s land towards defendant’s. Two other witnesses gave evidence, shewing that the fire ignited on defendant’s land, had stopped short and finally died out at the ditch on the road some weeks before the fire complained of, but they could not swear positively to this. Mr Harper addressed the Bench, noting the positive evidence of plaintiff and Karl seeing the fire cross the road, whilst the evidence of the fire ignited by defendant having become extinguished previously, was only conjectural. Mr Duncan replied, contending that it was for plaintiff to show beyond doubt that living fire had been traced, and this he submitted had not been done in the present case. His Worship said the defendant’s witnesses had given their evidence very cautiously—and he was very glad to see it, for in such soil as that described, it was impossible to say how long a fire might smoulder—whilst for the plaintiff, very positive statements had been adduced. He must, therefore, considering all the facts of the case, say that the tire had proceeded from defendant’s land, but at the ssme time, he was of opinion that the damages had been over estimated, and he should only give judgment for £2O, and costs. Foster t. E. Reece.— This was an action to recover £3O damages, alleged to have been sustained from a breach of agreement by defendant. It appeared that plaintiff was engaged on the 12th of April last to proceed as master of the schooner Swallow to the Fijis, the remuneration to be £73. The vessel was at the time on the slip, and when launched plaintiff found so much water in her hold that she was detained by defendant’s consent for repairs. He had previously engaged a crew, and during this period they were kept idle. He accordingly claimed additional payment for their wages and victuals, upon which a dispute arose, defendant thinking that the owners of the ship were responsible for the delay. I’lainliff not obtaining a settlement, refused to sign articles until such was made, as the crew would come upon him for the amount. Subsequently, defendant engaged another master, aod the vessel sailed without plaintiff. The £73 was to cover all the wages on the voyage, but £3O of it would have reverted to him, For the defence conclusive evidence was adduced, showing that plaintiff had declined to sail until the matter in dispute was settled, which be refused to leave to arbitration or arrange after the trip. Plaintiff, denied thia, but his Worship held that by the evidence plaintiff himself bad broken the agreement whatever might be his claim for being delayed, and accordingly gave judgment for defendant with costs. Mr Duncan appeared for the plaintiff, and Mr Cottrell for the defendant. Judgment for full amount and costs was given in the following cases ;—George Fletcher v. J. W. Shackleton, £22 8s; K. D. Sutherland v. Henry Fenwick, £42 7s 8d ; James Smithson v. Jonathan Earnsbaw, £27 17s 3d ; A. G. Saunders v. Edward S. Dunford, £IOO ; P. Slee v. —. Cousins, £8 Us. KAIAPOf. Tuesday, Mat, 11. (Before G. L. Mellish, Esq., R.M.) Retell and Co. v. J. Matthews (Lyttelton).—Claim £2 3s 7d. Judgment for plaintiff, with order to be paid in a week, or in default 14 days in gaol. J. White and Co. v. Charles Turner.— Claim £l9 6s 3d. Judgment for plaintiff by default, with costs. Mewnhah and Buddle’s Estate v. Thos. Edlin.— Claim £4 15s—disputed. Judgment for £3 10s 7d and costs, 12s. Ordered to pay in a month, or, in default, one month’s imprisonment. Same v. J. Harper.—Claim, £42 12s 6d. Judgment by default. Samk t. Georoe Seward. Claim, £5 18s 9d. Judgment by default. Same v. F. Woodham. —Claim; £2 2s. Judgment by default. W. D. Buddlb’s Estate t. Thoxas Pearce.—Claim, £5 3s 6d. Some of the items were disputed. Judgment for £2 2s 6d and costs. Saxe v. John Sxith.— Claim, £7 5s Id. Judgment by default, with order to pay 10s per week, or in default two months’ imprisonment. John O’Connor ▼. Arxstrong.— Claim, £5 16s 6d, for cutting flax, at 7s per ton, and costs £1 19s, of a summon* issued against Stonyer and Co„ on which he had been nonsuited. Plaintiff said he had been promised 7s per ton by plaintiff. He started with the intention of being paid by Stonyer. Defendant said he was getting 7*, and that he (plaintiff) would get the same. Defendant stated that he hgd paid 0s per ton into Court, which was the ordinary price. He win to get 7a, as the flax vaa off hia own land. He never offered 7s per ton to defendant. Men So his neighbourhood were getting 6s per. too. Plaintiff said that Armstrong wanted it cut in order to allow him to get on with his ploughing. Defendant said that Mr Stonyer’s men cut the rest off at 0s per tom. Judgment for £5 2«, the amount paid into Court; each party to cay their own costs. Slaughter-house licenses were granted to George L, Lee, of Stoke Grange, Kangiora, and Weston and Pimham, Maori Kuo.