Resident Magistrate's Court.

Marlborough Express, Volume III, Issue 128, 1 August 1868, Page 5

Resident Magistrate's Court.

BLENHEIM — Monday, July 27, 1868. [Before S. L. Muller, Esq., KM.] P. LAWRENCE V. RAYMOND AND BARTLETT. Mr. Nelson acted for plaintiff; Mr. Pitt for defendants. This was a claim of £4 10s. for a ton of sand ordered and procured from Wellington. Phillip Lawrence deposed that Mr. Bartlett gave him an order for sand from Wellington ; it was to do Dodson’s house and another. He understood at the time Bartlett and Raymond were partners; he sent over for the sand by Butt, but he did not bring it. Afterwards when Cracknell was here he gave him the order for one ton. Cracknell sent to him for bags to hold it in, which he supplied, and the sand came over. When Bartlett ordered it, he said they were in a hurry for it, as they could not finish the houses without it. He did not countermand the order when it did not come by the Alai’m. Bartlett said, “ get it as soon as possible,” and he replied, “it should be over by return of the Falcon,” and it was. He intended to pay the freight of the sand, but as lie had an account with the agent of the Falcon, he had not yet paid for it, as he had not been asked. He told Bartlett the sand had arrived. Pritchard fetched it away at Bartlett’s instructions. They had admitted to him they had received the sand. He had not received

the sacks back. He told him the sand would be about £4 or £4 1 Os. The sand came, he thought, in February. By Mr. Pitt: Not to his recollection was there any one present when the order was given. It was, he thought, in January. The account produced was his. He had not given any drayman an order to get the sand; but Pritchard had orders before to fetch the sand when it arrived. He (witness) did not apply for delivery of the goods. Captain Cracknell did not appear to the subpoena. Mr. Dodson intimated that Cracknell was subpoenaed to appear on the 22nd (a mistake of the Clerk’s), instead ot the 27th. Sergeant Kennedy said he had not compared the two copies of the subpoena. The Bench said he ought have compared them. The Clerk sends out the service copy, and he had to fill up the other from it. J. B. Wemyss deposed that the defendants took a contract for painting and papering his house. They had to use sand for the outside work. There was a delay in getting the sand, but there was plenty other work to go on with. Prior to their getting the sand they informed him where they were getting the sand from —Raymond particularly, and perhaps both. He understood that they had ordered it from Mr. Lawrence. Raymond said he had ordered it through Lawrence. After the sand came they made no remark.

By Mi. Pitt: Raymond told him he had ordered it through Mr. Lawrence, and that it had not come, and he (witness) remarked that .Mr. Lawrence had previously disappointed him too in procuring some articles. This was some time in January, most likely. Henry Pritchard deposed he did Raymond and Bartlett’s carting work generally He did not get any directions to get sand out of the Falcon either from Raymond and Bartlett or Lawrence. Raymond and Bartlett told him sand was coming in the Alarm, and he looked after it, but it did not come by her. He considered that his duty in that matter then ceased. He got the sand from the Falcon. Raymond took him to the wharf, and helped him to put it in the dray. He could not recollect whether he saw Cracknell. The sand was in sacks ; lie could not say whether there was any brand on them. He considered it was the same sand that had been expected for some

tune. By Mr. Pitt: He believed it was Bartlett and Raymond's directions to get the sand from the Alarm. Lawrence never told him to look out for it. Tic did not cart any goods for Mr. Lawrence at that time from the Falcon. John Raymond was a painter. In January last lie was a partner with Bartlett. He was still a partner on jobs. They had occasion for some sand, lie did not order sand through Lawrence, Ho had a conversation with him abou. sand, and as he was going to A ellington at the time, he instructed him to find out the price of prepared sand. Bartlett never said he ordered sand of Lawrence. The sand they got came from Wellington through .Mr. Dodson. Mr. Wemyss never spoke to him about the sand. What he swore was not correct. Lawrence never told him the price before they got the sand. He had paid Dodson £2 for the ton of sand. This was not prepared sand. Tie took delivery of the sand from one of the men of the Falcon. He asked for the sand for the painters, and he saw Mr. Dodson about it half-an-hour afterwards. He had asked Cracknell what sand would cost; but when it came in the Falcon he took it away whatever the price should he. He had asked Cracknel! to bring a ton of sand if he could get it. Mr. Lawrence had taken him down to the Falcon some time after the bill had been presented, and asked Captain Cracknell, in his presence, if he had used the bags, but he would not say anything. Mr. Nelson wished to call Mr. Dodson, who was in Court. Mr. Pitt held that he could not call Mr. Dodson, as he had been subpoenaed for the defence. Mr Nelson asked for an undertaking that Mr. Dodson would be called by the defence. Mr. Pitt held he was not called on to give any promise. Mr. Nelson read part of a clause in the new Act which, he held, empowered him to call as a witness any one who was in Court, whether he had been subpoenaed by himself, the other side, or not at all. The Bench ruled that it was quite out of the question, when the witness had been subpoenaed for the defendants. Mr. Nelson held that after his case was closed the defence might not call the witness, and the Act gave him the power to call anyone that was in Court. He would have to appeal against the ruling. James Bartlett was then called, and deposed that in January last he did not order

any sand from Wellington. His partner informed him ho had spoken to Craokncll. lie never spoke to Pritchard to get sand from the Alarm. He once asked Lawrence to enquire in Wellington what the price of sand was. He gave no order to him, nor to the agent of the Falcon ; but he got it. He was not in town when it came. Mr. Wernyss did not speak to him about the sand that he remembered.

Lydia Flora Lawrence deposed that she was present when llaymond and Bartlett ordered some sand. She could not say which, as they were dealing with them, and they frequently came into the store together. They came in together after they had ordered the sand to know why it had not arrived, llaymond and Bartlett acknowledged they had received the sand. The account produced was in her handwriting. She remembered llaymond saying they could not pay just then. They did not dispute any part of the bill but a cask of whiting. By Mr. Pitt: She did not remember the date when the order was given, but she could tell if she was at the store. Ho price was fixed, but she thought Mr, Lawrence said it would be from £4 to £4 10s. Mr. Pitt held there was no evidence on the part of the plaintiff that the goods had been delivered. There was no direct evidence the order ever was given. It was necessary in a case of debt to show delivery of the goods. He raised that question, and thought the objection was fatal. There was no evidence of delivery, nor that the goods had ever been in Lawrence.’s possession.

John Raymond was re-culled for the defence, and deposed that ho never admitted, in the presence of Mrs. Lawrence, owing for sand. He was sure he was never in the place since the bill was delivered. The account was given to his partner. He spoke of the sand and the whiting together. Two or three of the sacks were marked “ F the rest were rotten. He did not know of the price of bags being paid into Court.

James Bartlett re-examined by the defence : When Mr. Lawrence came back, witness asked him if he had ascertained the price of sand, and he replied he had forgot all about it. He did not know anything about 8 sacks at Is. (3d. each forming part of the payment into Court. That was a mistake of himself and partner. He would not have paid it into Court if he had known. By Mr. Relson : He never expected sand in the Alarm. He told Pritchard he should want him some time or another to cart some sand to Wemyss’. He could not say when Raymond ordered it.

Homy Dodson deposed that ho was agent for the Falcon. Ho remembered in February last a ton of sand arrived by her. It was delivered to Baymond and Bartlett. He was paid for it in his account. He paid Cracknell 10s. for the sand, and 30s. was charged for freight. Mr. Lawrence never applied to him about a ton of sand arriving by the Falcon. There was never a ton of sand entered in the Falcon’s books consigned to Lawrence. The Captain ol the vessel lately said to him that the bags Lawrence gave him were so bad that he used some bags belonging to the vessel. Mr. Lawrence once spoke to him about this matter two months ago—some time after the sand came. Ten shillings was the ordinary price for a ton in Wellington. By Mr. Helson : Ten shillings, put on board. He thought Cracknell employed a boatman named Chant. Witness never ordered Captain Cracknell he understood. He told witness lie had a ton of sand for the painters, and the price was 10s. ; he never made mention about Lawrence ; he did not say who ordered it ; he knew nothing about that; he thought very likely ho told Mr. Lawrence ; all he would get would be a commission; the Captain lately said he brought the sand in consequence of Mr. Lawrence’s order. Cracknell acknowledged that Lawrence gave him bags. It was usual for parties to give orders through the Captain ; he thought it was not the Captain’s business to receive a commission. They had an understanding with him that he was not to do so. The Captain brings goods over not put in the invoice. In such cases he is charged with freight. If witness had known that sand was ordered by Mr. Lawrence, he should not have touched it. It was after Cracknell got the 10s. that he told witness about Lawrence’s transaction.

Mr. Pitt summed up his case. Was or was there not an order given to Lawrence for this sand; and did this identical sand belong to him that came over in the Falcon ? Again, his clients could have nothing to do with plaintiff, if Craeknell committed a breach of contract by delivering the sand to the defendants.

The Bench said the evidence of plaintiff and the defendants was very conflicting; but if any one was in the wrong, it must

he Cracknell, who -would be liable to Lawrence for non-fulfilment in performance of contract. Judgment for the defendants, with £3 10s. costs. Plaintiff to receive £2 7s. paid into Court for other items. THOMAS WALL V. WILLIAM PIKE. Mr. Nelson acted for plaintiff; Mr. Tarton for the defendant. This was a claim of £5 for a cucumber case carried away in the flood, and taken possession of and detained by the defendant, with Bs. costs for sending a dray down for it.

Thomas Wall deposed that, after the flood in February last, he saw this cucumber case in the south-east corner of Mr. Barleyman’s section. Afterwards when he went to get it to pieces, so that it could be taken away, it was gone. Mr. Pike acknowledged lie had taken it. He sent Earll for it, and defendant refused to give it up. It was, in its then state, worth £3 or £4, and the sashes, if the glass was broken, would be worth lbs. each.

By Mr. Turton : Ho charged £5, because the man that got the frame was likely to have the sashes.

W. 13. Earll deposed that defendant would not let the frame go without £l. He said he carried a sash up on his back to keep the glass from breaking, and that was worth 10s. —that it took him half-a-day to take the frame to pieces to cart. He said he wanted £l, or would give £1 for it. William Tike acknowledged finding the frame, and refusing to let it go without £1 for his trouble. Thomas Davis said he was a carpenter, and valued the frame at present as worth £2 ; the sash was worth 15s. The Bench : The frame did not belong to Hr. Pike, for finding it did not make it his property. The evidence tended to Mr. Wall’s ownership. Judgment for plaintiff for £3 55., with £2 Is. costs. j. w. hutch eson v. j. Honeywell. This was a claim of £l6 10s. Bd., a balance due. Defendant had acknowledged the validity of the claim. Judgment for plaintiff for the amount, with £2 -Is. costs. Court was then adjourned till next day. TUESDAY, JULY 2Sru, IS6S. WEMYSS V. GUNN. An action to recover £5, being half value of repairing a boundary fence. Mr. Nelson appeared for defendant, and stated that 15s. had been paid into Court, with a promise of payment of other annual instalments. He urged that the case should be adjourned until after next District Court, on account of certain nice points of law which he knew would arise, as the most eminent lawyers in Wellington held varying opinions thereon. The use of the phrase in tlie Act, “owner or occupier,” showed that the owner should be sued first, and, failing a remedy, then the occupier. Should the decision be given against his client, it was his intention to appeal. Mr. J. 13. Wemyss contended that the case referred to was very different, being concerning a boundary fence between Crown Lands. Justice required that the occupier should be the first sued, as he was the party benefited, especially as it was under a lease. The Act provided that a new fence might be paid for in instalments, but did not provide for repairs. The Pencil agreed with plaintiff that the clause referred to a new fence ; the one in question was washed away by a flood, and therefore came under the head of repairs. One clause provided that the occupier could recover from the owner, which showed that the occupier was rather the person to be sued. Mr. Nelson again urged that the clause showed that the owner should be sued first, as the words stood, and the occupier was only a provision in the case of absentees. Mr. Wemyss replied that the case of absentees was separately provided for in another clause. Mr. Nelson again pressed that the case might be adjourned for a fortnight, to allow him to study the case. The plaintiff opposed the application on the ground that he had twice postponed it already at Mr. Nelson’s request. The Bench held the opinion that the occupier was the proper person to be sued, and the defendant had put himself to a large extent out of Court, by paying a sum into the Court. Mr. Wemyss pointed out that clauses 14 and 15 of the original Act (which were not repealed), clearly settled that the occupier was the person to repair the fences. Mr, Nelson, after reading the clauses, gave way on this ground, and asked for time on account of defendant having lost his books.

Judgment for plaintiff for full amount, with 11s. costs, to be paid in monthly intalments of £l.

LATEST FROM THE FATEA. Nelsox, Monday, July 27. The steamer Lady Bird arrived from the North on Monday last. Advices from Taranaki state that Father Roland arrived at Taranaki (overland), from Patea on Friday night last. The natives appeared to be friendly, as he met with no molestation. He was informed that the Taranaki tribes have determined to remain neutral and not allow the rebels to fight on their land. The day prior to the attack on Turo-Turo Mokai, the rebels visited that redoubt under the pretext of selling onions. Colonel McDonnell is progressing with the redoubts which he is constructing for the protection of the settlers. — Jnd' pendent.