R.M. COURT.

Marlborough Daily Times, Volume X, Issue 314, 23 June 1888, Page 2

R.M. COURT.

Friday, June 22. (Before J. Allen Esq., R.M.) CIVIL CASES. John Sperry (Property Tax Commissioner) v Brace and M‘Kenzic, a claim cl L 3 11s 6d. There was no appearance of either party, hut tho Clerk of tho Court explained that it was not necessary for the plaintiff to be present. Judgment was accordingly given for plaintiff for tho amount claimed, and 8s costs. Same v Henry Redwood, a claim of L2 lls 4d. Ko appearance of defendant. Judgment for plaintiff for amount claimed, and Ss costs. Same v Sutton Bros., a claim of LI 16s sd. Verdict for plaintiff, and costs. C. O’Dwyer v John M'Muhon, a claim of L 3 9s 9d. When this case was first called there was no appearance or either party, hut plaintiff appeared later on, and made an application for a reinstatement. The case was accordingly heard, and judgment was entered for plaintiff for amount claimed, and 6s coats. G. W. Riley vF. Wilmott, a claim of L 3 2s Gd. No appearance of defendant. Judgment for plaintiff by default, and 7s costs. Thos. H. Hu->twick v A. W. Carkeek, a claim of Ll 4s 9d. When tho case was called neither plaintiff nor defendant put in an appearance. Plaintiff, however, appeared afterwards, and applied for a reiustatem nt, saying he was prevented from being present at the proper hour. The application was granted, and judgment was given for pla'ntiff for amount claimed, and 12s-costs. Mrs Dickson v Jacob Walton, a claim of LIJ 10s. Mr M‘Nab appeared for plaintiff, Mr Conolly for defeudan . Mr Conolly said Mr M-Nab wished to havo the C'.-se adjourned ti’l 2 o’clock, as aff'his witnesses had not arrived. Thisjwaa agreed to. * Holmes and Bell v Donald Munro, claim Ll2 7s on a dishonored promissory note, together with interest from Marcia 4th, 1888, the date on winch the note was due. Ko appearance of defendant. Judgment was entered for plaintiff for tho amount claimed, and Ll 5s costs. Alfred Raynor v J. K. Little, claim Ll2 3s Od for goods supplied. Mr Rogers, who appeared lor plaintiff, stated that defendant’s solicitors, who were resident irqNelson, had asked him to have the present case treated in the same manner as those that came on for hearing a few weeks ago —viz, judgmen. to bo given for plaintiffs and execution to be stayed till about the middle of July. Plaintiff having given evidence, His Worship entered up judgment for the amount claimed, 2s costs, and ordered execution (<£ b 3 stayed until 16th July.

W. B. Girling v F. O’Brien, claim L 27 2s lid on a dishonored promissory not°, together with interest. Judgment f ; plaintiff, and Ll IDs costs. IV, J. Baillie v James Edwards, a claim of L 4 15s for rent due. Mr Conolly, who appeared for plaintiff, stated that he was acting as his agent, and collected the rent in question. Mr Conolly gave evidence to tho effect that defendant had paidLlO 9s on account, and that Li 15s was still duo and owing. Judgment for plaintiff for amount claimed, and lis costa. No professional fc-o was allowed. Charles Earp and Co. v. the Wellington Operative Pv t Company, a claim of LSO 13s 8d on three dishonored prorr’ssory notes. Mr Conolly, who appeared for plaintiffs, S£ id that there was a flight discrepancy in the amount oi the interest charged, inasmuch as 10 per. cent, had been charged instead of S per cent. Ilia Worship pointed out that the dates from which the interest was calculated had

been given, and he would therefore held over the case until 2 o’clock, in order that the mistakes might bo remedied. Mr Allen had just mado this remark, when a telegram was handed to the Clerk. The telegram was from the Clerk of the Court, Wei mgton, asking leave for evidence to be taken in the case on Gth July. Tno case was therefore adjourned until 13th July, and in the meantime plaintiffs were to alter their claim in the direction iudicated by the Magistrate. J, G. Tildes v. Joan T. Robinson.—Mr M'Oallum for plaintiff, Mr Rogers for defendant. This was a claim of L 7 10s for rent, but Mr M'Callum said it was really an action to give up possession. His friend, Mr Rogers, agreed to give up possession fortnight, and hence the cl«im for rent would not be pressed. Mr Rogers said ho agreed to this, as he understood the claim for rent had been abandoned. His Worship therefore made it, by consent of parties, that the chum be amended, and possession given up on or before 6th July, with lGs Court costs. Counsel did nut ask for a professional fee. DEI’EMUSD CASE. Mrs Dickson v Jacob Walton, a claim of LlO lOs for damage to trap, 1 together with medical attendance, etc. Mr M'Nab appeared for plaint’ff, Mr Conolly for defendant. Mr M'Nab having explained the nature of the claim, asked that all witnesses in the case might be ordered out of Court. This having been done, ho called Margaret Dickson, p’uintiff’s daughter, who stated that she went up to the Onamalutu on tho loth January last in her mother’s trap in company with young ‘Wady. Sho know defendant’s place, and when they got opposite to it a dog ran out at the trap. Did not know the exact time, but thought it would bo before dinner. The dog was of a dark color, but witness did not take particu'aV notice of it. Sho was certain that it rushed out of Walton’s place. There was a person standing in the door, but she did not notice anyone, on the road. Tho horse shied and bolted, capsizlig the trap and throwing tho occupants out on the ground. Witness considered the dog was the cause of the accident. Wady did not whip the horso. There was no whip or stick :'u the trap. Witness thought thero was a hank where the trap capsized but she would not be certain about it. Sho was 1 locked insensible, and her mother afterwards brought her to Blenheim to visit a doctor, hut sho (witness) would not go. She was laid up for some timo on account of the accident, To Mr Conolly : Don’t kno /v Walton’s orchard. Do not remember seeing it before I come to the house. Shortly after I was thrown out of the trap I got up and sat on a log. Do not remember defendant coming to ino, but remember seeing him about. I c ; d not fall out of the trap unt‘l it capsized. The trap turned over. The horso lay on the ground for somo time, hut I did not seo Mr Walton near it, although there were a lot of other men there. Am certain Mr Wady was not whipping tho horse, which was only going at a trot at tho time of tho accident.

To Mr M'Nab : Tno dog came out from the garden, or from somewhere about the premises. The place it came out of was ihe Woirau river side of Wady’s house.

To His Worship: Tim house stood slightly off from the load. I fancy there was a fence around the house, although I would not bo sure about it.

Thomas Wady, jun., a resident of the Onainalutu, stated that his father lived next to Jacob Walton’s placo. Walton had a black dog, with a white streak down its breast. Witness remembered Sunday, 13th Juuuary, on which date he drove Miss Dickson to his father’s house They got in front of Walton’s place shortly boforo dinner, and a dog ran out from tho hoi so through the fence and harked loudly at the horse. Witness could remember notldng moro of the accident, as ho was stunned through being thrown out of tho sulky. He thought the clog frightened tho horse. He never used a whip, and thore was no whip of any kind in tlio trap. He was trotting at the timo of the aeeidout, but he had been walking previous to that. Walton’s house stood about 12 yards back from the fence, and witness saw tho dog como through the fence. Ho had known the horse lie had been driving for about two years, and had used it himse’f for about a year. He had always found it very quiet. The trap was taken to Macalister’s, Blenheim, to bo repaired. Walton’s dog was in the habit of running out at people, but witness bad not known it to be the cause of any accidents.

To Mr Conolly : Never 1. jew the horso to shy before. Was not driving carelessly at tho time of the accident. I did ted defendant and somo other people that I did not know bow tbe trap got upset, but I did not know what I was saying at the time. Recollect tho dog running out, and think it was the cause of the accident ; in fact, I am quito certain it was defendant’s dog that caused the accident. Mr M'Nab said he would call L. Swash.

Mr Conolly objected to that witness being called, on the ground that he was an unimportant witness, and did not warrant 40s mileage being spent on him. Mr M'Nab held that after the witness bad given his evidence, His Worship would agree that he was most necessary to the case. At any rate, he would let the witness stand on his merits.

Larrv Swash deposed that he had worked at tho sawmP. at Onamalutu off and on for about two years. He knew both defendant and b's dog, tbo latter in particular. Witness described the dog, which ho thought was tho orly one that Walton had. Some time ago witness had an encounter with tho dog. He had his suspicions about it, and when he was passing one day, llding a young horse, he armed himself. Ho thought that if he did not look out he n“ght be thrown, as the dog would run out and bark at the horse. He threw a stono at the dog, who then immediately went at tho horse’s heels, tho result of the encounter being that the horse got its leg broken. Witneis knew the dog for its had quo’itios, and other people knew it also. To Mr Conolly : Had been rushed by the dog on a previous occasion, and was nearly throw n from my horse.

To Mr M'Nab : I was on a young horse, and was determined to keep a good look out for tbo dog. John Inman, for sometime a resident of the Onamalutu, said he knew Walton’s dog on’y too wo”. He used to pass Walton’s place fr.quently, and he always walked his hoi so past, as he fu y expected tho dog io lush out at him. To tho Bench : r J he dog has eai sod my horso to shy several times.

E zaboth Dickson, Haiti na, the pla itiff :‘n tho case, said Iho repairs to the trap cost L 8 los. j Mr M'Nab here said that ho had abandoned the clar'm fo” .Ll 5s for med’cal alter dance, as he was not aware that the girl had not gono to the doctor. Witness (to Mr Couo v, y): A” tbo rop i'-s had to bo effected on account of the accident. I instructed Mr M‘Nab in the matter about a fortnight after the accident. I did not go to Mr Rogers unt ’. about a week ago. Mr M’Nah explained that ho left home a few weeks ago, and when doing so he asked the Cleric of the Court to tell Mrs Dickson, if she called during his absence, to interview Mr Regers on tho matter. Mr Conolly hero produced a letter, purporting to have been written by Mr Rogers, giving defendant notico that if ho sld not pay for the trap on or before the

23rd June, legal proceed : ngß would he taken against him. In reply to Mr Conolly, witness said that she instructed Mr Rogers to write the letter, hut she never mentioned any date to him.

Mr M'Nab said he did not know anything about the letter until yesterday. Mr Conolly: Then the letter was written without your authority, Mrs Dickson r' Mr M'Nab: lam surprised at you, Mr Conolly, I am surprised. Counsel then had a pretty lively argument on tho question ot tho It it r, and whethor or not Mr Rogers should be recognised in the matter and bis evidence taken. Tho matter having been settled, Witness again emphatically denied that she instructed Mr Rogers to mention any particular date in the letter. To Mr M'Nab: Walton was aware that proceedings in the case were pending, and he knew very well that I had a cla’m against him. He nover offered to pay the amount.

Richard Brunning, a late resident of the Onamnlutu, gave evidence as to the habit Walton’s dog had of running out unpeople passing. The dog was a wellknown character.

Mr Conolly said the defence was a complete denial of the principal statements made by the witnesses for plaintiff. He called

Jacob Walton, the defendant, who remembered all the circumstances connected with the accident. He was in his orchard when the trap passed, and bis dog was with him. He could swear to it. Tho dog never ran out at the trap. When the trap was about a chain from the house, tho dog barked and started to run, but witness called him in, and he ! obeyed It was a sheep dog, and was : completely under witness’ control. When tho dog harked it was about two chains off the trap. There was a fence apart of the orchard between them. Tho horse was travelling at a fast pace, in fact, it was going as fast as it could, and Wady was whipping it. Witness’ brother rang out “Thero’s an accident.” Witness rushed forward and his dog with him. He did not see tho trap capsize tho first time, but he saw it the second time. Wady was driving very carelessly, and his near rein was hanging loose. He would swear that the dog was not the cause of the accident, and that it never ran out at the trap. Wady or nojono else ever spoke a word to witness about the dog. He nover heard anything of it until he got Mr Roger’s letter. M" M'Nab or Mrs Dickson never told him anything about tho dog being the cause of the accident, although the latter had plenty of opportunites to do so. The dog would run out at people, but, not when witness was near, as he had it completely under command. The trap d ; d not appear to bo damaged very much.

Mr M'Nab said he did not think his friend was going to fight tho question of tho value of the damage done. Mr Conolly held that counsel for plaintiff should have caded MrMacaJister.

Mr M'Nab thought that sufficient evidence had been given on that point.

Witness continued : I should not think it would have cost L 8 los to repa'r the trap. To Mr M'Nab : Did not expect to hear anything further about the accident. The dog was close to the fence when I called him back. I called the dog back so as to paevent him being up to his old tricks again. The horse was going pretty near as fast as it could go. Could not find the whip anywhere. It must have vanished into the air. The trap was about a chain away when the dog harked. Am certain Wady was flogging the horse. The whole affair happened wittrn a clurn, or a chain and a-half.

To Mr Conolly: Tho fenco was a fourrail ono, with no hedge. The horse and trap kept straight on the road, and did not swerve as they passed me.

To His Worship: The horse was not running away.

Joseph Walton, defendant’s brother, gave corroborative evidence. He was inside the house when the trap passed, and he heard the dog hark a moment or two before. The horse was going very rapidly, and Wady was using the whip freely on it. He could not find the whip after the accident occurred. After the horso had passed tho house witness saw Wady take the whip and lash the horse two or three times. The wheel then ran into the water table on tbo right hand side of the road, with the result that the sulky upset, and the occupants were thrown out on to tho hank. Tho near rein was quite slack, and Wady was letting the horse take its own course. Wady asked witness’s brother how the accident occuired, hut the latter said he didn’t know. No mention was made of the dog. When witness told Mrs Dickson that she must be mistaken about the dog, she replied that “she cou’d be’ieve her own daughter before me ” (meaning witness). To Mr M‘Nab: Was not surprised when I got the summons. Summoned Mr Higgs as a witness, but he c r d not turn up, Mr M'Nab said that if the easo were adjourned ho would cal rebutting evidenco as to the whip. However, if his friend was agreeable to waive the question as to tho value of the repairs effected, he (Mr M‘Nab) would waive his address, and that would allow the case to he settled at once.

His Worship said he did not wish to decide the case at once, as the evidence was of such, a conflicting" nature. He would givo judgment the fo’krwing morning, at 11 o’clock.