Resident Magistrate's Court

Mataura Ensign, Volume 15, Issue 1357, 19 January 1894, Page 4

Resident Magistrate's Court

GOBE. Tuesday, 16th January, 1894

(Before K. S. Hawkins, Esq., X.51.)

Jos. Smaill vW. Walker.— Ll 14s lOd. Mr Fletcher for plaintiff. Judgment by default, with oosts of Court, LI 3s.

Dunedin City Sinking Fund Trustees v W. Avtke)i.->-L5 Ob lOd, costs of preparation 7 of deeds in connection with a proposed loan. Mr Poppelwell for plaintiffs. The- evidence of A. J. Pease was taken for transmission to Ounedin, costs of Court 245, witness' expenses 265, and solicitor's fee 21s. Wright StepJienson and Go. v- R. Forbes. — L 7 Qa, on a .dishonored promissory note. Mr Bowler for plain* tiffa, for whom judgment was given, with costs, of Court 19b, and solicitor's fee 218.

Mitchell and Son v T. SticMe.~l.2 10a. Mr Poppelwell ;for .plaintiffs; Judgment? by default with costs of court 6s.

A QUESTION OP AGENCY.

Jos. Stevenson and Son v Catherine Bale. L 2 Os 6d balance due for .wages building a. honse. Mr PoppelweH for plaintiffs and Mr Neave for defendant.

MrPoppelwell outlined' the case and said that some time ago Mr Stevenson .was-, spoken to by the Dales about •building a-house on- a section belonging to Mrs Dale. "Plans were prepared and Is an hour agreed on as the rate of wages for each of the plaintiffs. No extras charge was made for overtime as is the custom, that being allowed as against meals the- plaintiffs got at defendant's house. ;The preliminary arrangements were made with the husband, James Dale, an undischarged bankrupt, who said he was the agent for his wife. Mrs Dale paid L 3 on account and it was only, -when tbe claim was made for the balance ■ that .she disputed her right to pay and denied liability. Jos. Stevenson senr. and Jog. Stevensoii' ;; 'junr;- gave evidence " in support of counsel's 'statement. , ' Mr Neave ■ moved for a nonsuit j urging- that agency had not ; been shown and that a totaliy different conl tract to that set out in the claim had been proved. Portion of tbe claim was to be taken out by Dale working for the plaintiffs and if the action had been brought against him, he could resist the claim as plaintiffs had not asked him to work any part of it out.

The nonsuit was not allowed and Mrs Dale and James Dale then guve evidence denying agency and said that James Dale was the party liable.

His Worship said the evidence of defendants was. very unsatisfactory and it had not altered his opinion. ■ He. simply did not believe the evidence of Dale that the work would only amount to about L2O. The whole thing was an attempt to defraud plaintiffs of a just cJaim and he gave judgment for the full amount with costs of court LI 13s and solicitor's fee L 2 2s, less 5a expenses allowed to Jumes Dale as witness.

A DOG FIGHT. John.Ballinline v D. O'Gallag/ian. — Claim for the return of a dog and tbe collar and chain or L 4 5s — their value.

Mr Poppelwell for plaintiff and Mr Bowler for defendant.

Mr Poppelwell said that the dog formerly belongtd to one Harper who was recently drained in tbe Matiurn civer. After his death the - party who had possession of the dog gave it to plaintiff in satisfaction of his claim against Harper and he registered it. Subsequently -a man named Smith took the dop away from plaintiff's father's yard along with the collar and chain and the dog was afterwards found in defendant's possession and he refused to give it op.

C. Petterson deposed that Harper was drowned about tbe 18th of December last. He then ■■ had a dog for which he refused L 7. Harper had been ia witness' employment for the last 18 months or 2 year?, and bo knew that Harper bid had the uae o,f a horse belonging to Ballintine. After Harper's death plaintiff came to witness and told him of his claim against Harper, and witness said if be had any claim against Harper be (witness) would give Ballintine bis right ti the drg,und Ballintine could go and register it iv his own name He did not want to say whether Harper owed him any money or whether he had aDy claim to the dog. — (There was some laughter here, which caused witness to siy to the E. M., who was also laughing '" Wei!, there's nothing fo laugh «t." This only piovoked more hilarity.) When Harper died he took possts-ion of the dog and put the registered collr.r on it.

His Worship : In plain language Pet tet-Hon cellared the dog.— (Laughter) Witness : It was through the dog following him that they knew something had happened to Harper. He (witness)

gave the dog bo far his right was concerned to Ballintine.

Mr Neave: You can't dtfine your right ? Witness (leaving the box) • It's all right.— (Laughter,) ■ John Ballintine got tbe dog from Petterson and registered it. Tbe., dog was then with Benson (Harper's mate) at the hut, and witneßS (rave the collar to Petterson to put on the dog. Benson brought him the do» next day, and he took it to his faher's place and kept. it>" and fed it there several days. .He had been working with Harper at Pettereon's chaflcutter, . and Harper hired a horse from him for 2s 6d a week for over four months, bnt had not paid him. He saw the dog with O'Callaghan in the street and asked for it, but O'Callaghaa said they would see- in the court- who had the best right to it, and that the dog had come to him without any chain oc collar. Witnees said he reckoned Smith had taken the dog, but O'Callaghan replied that he knew nothing about Smith and that he bad lent the dog to Harper about three years ago.

C. Pettorson, recalled, said that on the day of the inquest on Harper, O'Callaghan said he bad given the dog to Harper about three years ago. John Ballintine, sent-., said that before Christmas the dog was brought to his place. Smith came and wanted the dog from him, but be told Smith to get a writing from bis son and he would give it up, but not otherwise. Smith came back in about an hoar and said he would take the dog, but witness refused to allow him The morning after Christmas he heard a noifce at bis gate, and on going out; saw Smith flying up the street heading the dog'ori the chain. Smith never made a- claim to the dog on bebalf of O'Cillaghan. ' J ■-a James Smith" 'said that w.htit the last witness "had ; sald ! was quite^ untrue. Witness told Mr Ballintine, senr.; that the dog did not belong to him' (Ballintine),. and claimed the' dbg bei cause it had" been in his posse- sion for ten months and he had fed him all that time, about 18 months agoi Harper got the loan of the dog frod O'Oallaghan, and both .Harper and O'Callaghan had 'told him so.' He did not take the dog from Ballintine or his son, and Ballinline, senr., bad sworn 4 lie. He did riot know who took the dog away if he was .«bot that minute.

To Mr Bowler : He first knew of the dog about three years ago, when O'Callflghan lent it to Harper at; Pukerau for rabbiting. Witness had the dbg for six months, and Harper had told him he could have the dog if anyf--thing happened to' -him (Harper) and if O'Gallughan did not want it. '

D. O'Callaghan , said that the dog came to his- bouse on 26th December, as .it had been in the ' habit of doing^ and he tied it up. It had no collar or chain on, and he did hot know who tbok it from Ballintine's- place. Plaintiff afterwards asked .what he wasgoiug to do about the dog, .and he said he /was going, to keep it.. . He did not remember saying to Patterson that i he gave the dog to Harper. The dog repeatedly stopped' at his and followed him about. :

To Mr Bowler: He lent .fcfcfifc dog to Harper about two years and a half ag6 at Fukerau to be broken into Rabbiting. His reason for not; claiming the. dog before was that he wanted Harper to train it, and Harpeiswas'makiDg bis living by it. He bad not seen Smith from the time Ballintine got the dog until that day, and he had great difficulty in getting Smith to- come to the court.

Counsel on both sides then addressed the Court on the law on . the subject.

His Worship had to deal with the actions of the parties and he was inclined to think that the truth l»y with the plaintiff's side. Smith's conduct was not above suspicion : he had gone twice for the, dbg and he (His Worship) was inclined to believe the evidence of Mr Balliutine, sent', »nd lot that of Smith. The ownership business get up by defendant was UDB*tisfaccory,and he thought that O'Callagbon gave the dog to Harper, instead of .lending it for two and a half years. He thought the actual poßsension of the dog whs in the plaintiffs .

Mr Bower nsk'pd for an atljournnifnt to get a nitne^, Kelly, from Pukerau, who was present .when the dog wss loaned. The summons had only be<?D served on Saturday,

His Worship remarked that suoh evidence would be open to suspicion, as tbo witness would hear all the cvi deuce that bad been given,

Mr Boiler then culled Constabln Ferguson, who s*id that

on the dny of the inquest O'C«llagh>n said he thought he h»d some claim to the dog and that he had given it to Harper about thiee years ago.

The plaintiff, recalled, valued the dog at L 3, whilst defendant only valued it at 30a.

His Worship split the differpneo and assessed its value at L 2 5a and gßve judgment for the return of the dog or L 2 5?, costs of court 6s; and. solicitor's fee LI Is.