Resident Magistrate's Court.

Marlborough Express, Volume III, Issue 113, 18 April 1868, Page 5

Resident Magistrate's Court.

BLENHEIM— Monday, April 13, 18G8. [Before S. L. Muller, Esq., R.M., and A. J. SICKLEK, Esq., J.P.] ILLEGALLY AT LARGE. George Butler was brought up on remand, charged with being, on his own admission, a ticket-of-leave man illegally at large. Senior-sergeant Emerson stated that the prisoner had voluntarily sought him, and gave himself up, stating at the same time that he was unable to obtain employment. The Bench said there would be no necessity for remanding the prisoner for four months till the-Sergeant of Police communicated with the proper authorities in Australia, as by a recent Act escaped ticket-of-leave men could be dealt with'at once, and sentenced to imprisonment for any period not exceeding three years. Prisoner was sentenced to six months’ imprisonment, with hard labour, in Picton jail. CIVIL CASES. JAMES GORIUE V. JOSEPH DEMPSEY. Mr. Moffitt appeared for plaintiff, and Mr. Nelson for defendant. Mr. Moffitt, in opening the case, said this was a claim for £l, due according to agreement, in respect of a contract having been finished a week before the time specified. It was a small matter to sue upon, but it was more in vindication of character. A set-off had been filed on behalf of the defendant for £l6, the contract being unfinished for 16 weeks after time. The plaintiff, on being sworn, said he agreed with defendant to put up the framework of a partition as part of the contract, but he did not finish it, as he was not supplied with sufficient material to do so. W. King worked for plaintiff upon the defendant’s house. They finished the contract on the 7th December last, plaintiff asking defendant at the time if he was satisfied, and he said “ yes.”

W. Craig was working for plaintiff’ upon defendant’s house, and they finished the contract on the 7th of December. He heard plaintiff say to defendant Was he satisfied, and defendant said “yes.” That was in reference to the completion of contract. There was a partition to put up, hut it was no part of contract. He worked at it, but he could not complete it, as defendant had not enough stuff. Defendant said he asked plaintiff if he would put up the framework of a partition instead of a hand-rail, and if it would pay him to do it, and he said “yes.” On the 7th of December they never said a word about the contract, or the finishing of it. Plaintiff might have finished the contract, as when he wanted timber he went over to his own yard and got it. He had asked him time after time to finish the contract, and he said he could not come. The partition frame was unfinished still. W. B. Earll remembered bringing goods to defendant’s new house on the 15th December. Ho had to leave them outside as the carpenter’s bench was in the room behind the shop. James Tait had seen the framework in defendant’s house. There were four rough studs and one dressed one put up, and one door-head tennented, but not put up. It wanted three studs to finish it, and one dressed one for doorway. Messrs. Moffitt and Nelson.then addressed the Bench 7m”'bcllaTTor their respective clients. The Bench said the plaintiff and two witnesses had sworn to facts, that the plaintiff asked defendant and lie replied he was satisfied. About the partition they considered the evidence in favor of the plaintiff, and the Bench gave a decision for tile amount claimed with £2 6s. costs. THOMAS WARD V. J. GIIiSOV. Mr. Moffitt appeared for plaintiff. This was an adjourned case from last week. The evidence given on the previous occasion having been read over, defendant said he could not see why he was involved in these disputes, the horse having been given up to him, with the understanding that his possession should not be called in question again. Plaintiff remembered defendant saying if there was any dispute, he did not want the colt. He did not remember making any arrangement with defendant that he should have no trouble about it. Mr. Dodson here made an application to be allowed to take the place of defendant. The Court said they had the power to allow a person to act as agent for another, and they had no objection in this. TJltitimately the Court agreed to accept Mr. Dodson as the defendant.

Mr. Ward (by Mr. Dodson) said he did not remember agreeing to take the price the horse fetched, provided its identity was proved in his favor.

Martin Hart said he assisted plaintiff three years ago in collecting some horses from the hills. A mare and two foals were taken to Mr. Bobinson’s stable. The one sucking the mother was an entire, and he had seen it at Mr. Dodson’s sale yards the other day. He was satisfied it was the same by its peculiar Homan nose, thick jaws, and a few grey hairs on forehead. He had seen a number of Towtou’s stock, and should think this was one. llichard Hart gave similar evidence. James Hobinson remembered a mare and two foals being brought to their stable about two years ago. They remained a fortnight there. Two months after he saw the entire colt at Meadow Bank. He saw it six months after at Mr. Godfrey’s sale in Blenheim. Eighteen months after he identified it as plaintiff’s at Eyes and Empson’s sale. The horse was given up to plaintiff at Mr. Godfrey’s sale. Mr. H. Dodson said that on March the 2nd, he held an auction sale of horses, for Messrs. Eyes and Empson, and sold to Blick a dark colt for £4. On March 30th resold the colt for Mr. Blick for £5 ss. to Mr. Gibson. After the sale plaintiff claimed the colt. It was mutually agreed between Empson and plaintiff that plaintiff should have the proceeds of the sale of horse paid over to him if it was his, and defendant was to retain the colt in any case. John Eitzgerald said he heard plaintiff after the sale say the colt was his, and that if it proved to be his he would take the £5 and defendant should have the colt. ■_H,ichard Rothwell said he was a servant in He remembered a sale last March 12 months, at which a colt was sold the property of Eyes and Empson. Blick bought it. It was out of the mare Information, He first saw it a month old. He had seen the colt five or six times every year, when he went that way. It always ran between Seventeen Yalley and the Maxwell Pass. [Mr. Moffitt: Do you recognise the colt from any prominent points?] He did not require to do that, fqr he could

not say he ever saw two horses alike. He had been 11 years in Eyes and Einpson’s employ. It was part of his business to look after the horses on the run. He had seen the foal beside the mare twenty times. The colt never stopped at Meadow Bank from the day he was foaled till he was sold. The Bench, without doubting the sincerity of tire evidence of the Harts and Robinson, held that the last witness had clearly traced the foal from about the time it was born, and had never lost sight of it till it was sold. Judgment would be for defendant. Joins' FITZGERALD V. JOHX SHEPHERD. An action to recover £2O damages. Mr. Nelson acted for plaintiff, and Mr. Moffitt for defendant. Plaintiff said in March, 1867, he purchased the cow in question, and another that was running at his own place from Mr Shepherd. He said she was sound and all right. He observed to him that she was thin and very rough. He said that was from heavy milking. He purchased her and drove her home. Defendant came with him and milked her there. He also delivered to him the other cow. She was put into a paddock of 14 acres. Only the two cows were kept in it. A day or two after he observed her drag her hind quarter after her. Her milk was gone. He met defendant and told him. He said she would be all right after calving. He gave her hay. In about six weeks or two months she was worse, her eyes and nose running, skin cold and yellow, was purged, and her breathing was affected. She calved three months after he bought her. She would not take hay and mash, and gave no milk, and she died. He told defendant, and he said, if he had had her, she would have been alive yc-t. The further hearing of the case was adjourned till next day. TUESDAY, APRIL 14th, 1868. The adjourned case of Fitzgerald v. Shepherd was proceeded with. T. Hunt said he was a veterinary surgeon. From the evidence he had heard, ho would say the cow was diseased of the liver, and those were the symptoms of the last stage. A liver complaint might take years to come to a head. It could not be pleuro pneumonia. The disease in this case would have been chronic. It was brought on by high feeding. Defendant said he offered plaintiff his choice out of six or seven cows, but he said he would not buy any but this poley, and the one running at his house. He did not want to sell the poley, and it was a short time before he would give him an answer. At last he, witness, agreed, saying that if he could not sell what he wanted, he would sell what he could. During the four or live years he had had her, she had nothing the matter with her, but being a heavy milker she might have been rather thin. She was in capital health as far as he knew. In the winter time ho had fed her with hay, and he advised him to do the same. He never warranted the cow, for there was no occasion. Henry Humffries, E. Ross, W. A. D. Sutherland, and Philip Rush, all testified to nothing having ever been the matter with the cow, and to its having been one of the best cows about. The Bench held that nothing had been produced to show that the cow was not sound when sold. Judgment would therefore be for the defendant, with £3 Is. allowance for expenses. FREDERICK BUSCH V. JOSH SHEPHERD. Mr. Nelson acted for plaintiff, Mr. Moffitt for defendant. Mr. Nelson asked that witneses should leave the Court. He said defendant had got into the possession of a certain horse, his client’s property. The demand was the recovery of the horse and £ 10 for deterioration, loss of time, and damages. If not returned a claim for £25. F. Busch, farmer at Spring Creek, deposed that in February last he had a grey horse branded FB in his possession. Henry Humffries came to his house about the horse on the 18th of February, and asked whether he had sold the horse to Bill the brickmaker. He said defendant had sent him, as he (defendant) was about buying him. He (witness) told him he had not sold it, and to tell defendant to have nothing to do with it, and he went away. Bill hgd been working for him, and had been paid in wheat and oats. When he left him there might have been 2s. or 3s. owing him. Bill wanted to buy the horse, and on the last occasion he offered him £7, but he wanted £B. Bill said he would give it, if he would take it in bricks or work. He owed for wheat and oats at that time. ' The day following Humffries calling, he passed the place where the horses were running, but he saw this one was not there. Ho called at defendant’s, but no one was in charge of the bar, and the people about could tell him nothing of the horse. The

following day he also failed in seeing defendant. On the Saturday he met him in town, and he acknowledged he had bought the horse from Bill. He (witness) said the horse was his, and he would have it; that he (defendant) should look after the man that had deceived him. He went then to Mr. Moffitt, who said defendant had already retained him. He then went and told. Sergeant Emei'son, who said he had better go to Mr. Moffitt. He told him he had been. He consulted Mr. Kelson, and gave defendant notice. This was early in March. Thomas Kelson Heal was working with plaintiff in February last, stacking. Plaintiff was working on the ground. Humffries came up, and he heard him ask if Bill had bought the horse, and that defendant had sent him, as he was about to buy it. Plaintiff asked him if he had seen Bill. He said “yes,” at defendant’s, drunk, Plaintiff said more than once ’.hat defendant had better have nothing to do with the horse. John Shephead deposed that in February last, Bill Ambrose offered him a horse, bricks, and timber for £l2. He owed witness £l 10s. or £2. He (witness) agreed to give £9 and cry quits, which he accepted, and gave the receipt produced. He told him nothing about his arrangements with plaintiff; only that he had purchased the horse. He sent Humffries next day to see if it was correct, who returned and told him plaintiff said he had sold the horse but had not given delivery. Sherman then got the horse in for Bill, who delivered to him. It was lame, and he would not have given £4 for it. About two days after he received a formal demand for the horse. The receipt was drawn up on the 17th, and he gave him £5 in cash at the time. [By Mr. Kelson] Of course he had expectations it would be drunk. Bill left on the 19th.

Henry Humffries remembered being sent to plaintiff’s, on February last. Plaintiff told him he had sold the horse to Bill, but there was some more work to be done to complete the payment, and that he had not given delivery of the horse. He said if defendant bought the horse he would take it away wherever he found it. W. Sherman deposed to catching the horse, and seeing it delivered by Bill. David Scott said he was in the employ of Mr. Busch when Bill Ambrose was there. He heard Ambrose say, “ All that kept him there was for this horse.” He had not quite worked it out. When Mr. Busch discharged him, he said he was sorry he could not keep us on, as Bill had to work out for the horse. He told him three or four times the same thing. After the horse was sold to Mr. Shepherd, Mr. Busch, as they were coming along the road, was trying to. make out about the wheat and oats, and that he had never told him he wanted Bill to stop to work the horse out.

Senior Sergeant Emerson deposed that Mr. Busch told him of having sold the horse, but had not given delivery. He said he was going to take the case to Court, and did not apply to him in his official capacity. Mr. Moffitt argued that the last witness really proved the sale of the horse. That to constitute a valid contract of sale exceeding £lO, there should be part payment,, delivery, or the contract in writing; under £lO, a verbal contract was binding. Thiscase was under £lO. The question of delivery was immaterial, as it was quite competent for the purchaser to sell his interest in the horse. An unpaid vendor had a lien on an article sold while in his possession for the balance; but if the article had parted from his custody, he could only bring a civil action for the balance owing. Mr. Nelson argued it had been stated by Mr. Busch that Bill was working out for some wheat and oats, and had to work out for a horse. The sergeant might have misunderstood him. He might have said he agreed to sell the horse, but had never been paid. No man could have taken more notice of the matter than Busch, and it was the sergeant’s business to have looked after the man. The conduct of Shepherd throughout was to be severely commented upon. These were the houses licensed to supply refreshments, when they were lushing places from morning till night; traps to receive. ~ . instead of being a safeguard to the public. People went in there to get drunk, and these were the kind of houses that were for the accommodation of strangers coming here ! In this case they could act upon civil or criminal procedure ; no market overt took place in a public house; such were the nests of all the crime of the country, Mr. Shepherd’s house was not market overt; The Bench considered they must show they had taken the: initiative for a criminal offence, if it was really necessary that a criminal proceeding should have been instituted, It was the part of those from whom property was stolen to arrest and punish the thief before they brought a civil action against another for the recovery of the property, He would reserve his decision till next Court day.*