Resident Magistrate's Court.

Marlborough Express, Volume IV, Issue 166, 27 March 1869, Page 4

Resident Magistrate's Court.

BLENHEIM, MONDAY, MARCH 22nd, 1869. [Before S. L. Muller, Esq., R.M., and J. B. Wemyss, Esq., J.P.] ASSAULTING A BAXLTFP. T. W. Millington, George Coward, and Jantes Maxted were charged with unlawfully assaulting and beating one jßli Carvill. a bailiff, whilst in possession oF*t£e~ premise a of defendant Millington, Mr. Nelson, for the defence, applied that the cases should be taken separately, in order that the evidence of Coward could be taken, as it was necessary for the defence. Ho

should show thereby that the complainant was a trespasser. The plea was, not guilty. The Bench said it was quite competent for them to be charged together; there was only the information before them.

Mr. Pitt said the facts were simply the same as in the former case against the same defendants. Mr. Griffiths held a bill of sale against the defendant Millington, which gave him tho power to take and sell. The deed would be put in, by which they acquired a right to the possession of the property. In pursuance of the right, he sent complainant to take possession, but the defendants, by force, ejected him from the premises, and each and all did assault and, beat him. The information was laid under the 77th section of the Justices of the Peace Act.

The Bench said that from the clause quoted, it appeared that they had no jurisdiction. The question arose as to the meaning of the word “ hereditaments.” Mr. Pitt urged that the meaning of the proviso contained in the clause, was that a seizure could not take place except by the action of a court of law. The word alluded to include almost anything. After a long deliberation by the Bench, Mr. Pitt suggested that the title of the deed was not in dispute, as the plea was simply dne of not guilty of the assault complained of.

Mr. Nelson, in reply to the Bench, said that what occurred was in defendants defending their own property. He asked that the decision might be deferred until a cross action could be brought for trespass. The Chairman said that should have been done earlier.

Mr. Kelson said he should have taken that course, but after a consultation, it was thought better not to bring one then. The Bench remarked that the only way in which they could take cognizance of the bill of sale was where it was undisputed. After some further remarks from Mr. Pitt, tending to show that the deed in question was not legally disputed in the plea made for the defence, The Bench said the case evidently arose from the disputed property. The question question of the validity of the bill of sale. An action to contest that ought to be brought in the Supreme Court. Mr. Pitt had never heard such a statement before, and if it was correct bills of sale were quite worthlesss. Upon the mere assertion of the defence, that the property was disputed, without any legal action being taken, it appeared the Bench declined to accept the document in question. He would urge that the case should go on for the assault.

Eli Carvell, laborer, in the employ of Mr. Griffiths, deposed that he was employed to take possession of all the goods at Millington’s place. He remained in possession about two hours or more ; did not leave until he was put out by the three defendants.' The reason alleged by Millington was that he objected to my authority [produced], which is an instruction from Griffiths to take possession under a bill of sale. They used all the violence they could to get him out, and tore his coat._ They struggled to put him out, and he resisted. By Mr. Nelson: Mr. Griffiths did not let me know that my presence was not wanted. Thought I might be put out. Was aware that Griffiths was trying to get possession before. Never heard that Fabian tried to get in. Did not expect Millington to wish me to go in. Went there because I was told Don’t know whose premises they were. Had not the bill of sale with me. Griffiths was not there at all. Did not take an inventory of what I seized, but walked about. Coward did not ask me out They put me out. Was not sent there to tear my coat. Millington struck me first, then Coward, and the boy pulled my legs. Millington said he objected to my going there.

C. J. W. Griffiths deposed that he was possessed and entitled to certain goods recently held by Millington. On Friday last sent the last witness to take possession of them. The property was assigned to him by deed, and the signature attached *was his. By Mr. Nelson: I can’t tell who the premises belong to. Believe Kilgour, the mortgagee. Might belong to Coward. Have been told that Coward was the owner, but not beyond doubt. Was once connected with the Press office. Bid not read newspapers regularly. Coward did bind a book there once. Saw a few sticks. Bon’t know that any machinery is required to bind books. jHave seen the property within the last (ireek, but do not know if it was there on FKday. Bid not see what goods Carvill seized. Tou told me that my right was disputed, but I did not believe you knew anything about it. The man was turned out. Bo not know what constitutes a dispute in law. Asked Millington for the goods by bailiff. I suppose you had been acting according to Millington’s directions.

Mr. Pitt urged that it was not disputed that plaintiff had a right to the goods. Mr. Nelson was proceeding to address the Court, when The Bench said it was quite clear from the evidence that the case was out of their jurisdiction. The case would be dismissed, each party to pay their own expenses, HOItNE V. G. JAMES. Mr. Pitt for the defence. Mr. Nelson, for plaintiff, said this was a question of fees for medical aid and attendance on defendant. L. K. Horne deposed that he was registered under the Medical Practitioners Act. On July 2nd, 1868, he was called in by defendant, who had met with an accident by driving against a dray. Ho had a contused knee. There were a few slight bruises, and a grazed wound on the shin bone. Examined him the same evening ; found the knee verv much swollen and heated, but only contused. Always represented to him that he had received more injury than he was aware of. Could not tell him how long he would be suffering from it. The swelling subsided in the course of a few days. Could detect the knee cap, and worked it about from side to side. 11 was not broken. The blow was upon the shin bone. I rested the leg on raised pillows. He did not bend the knee at the joint; he was advised to work it gently. In case the knee-cap had been fractured, it would have been visible, it being the easiest fracture to diagnosis in the whole body. Attended him for a month, until Dr. Yickerman came, and on August 13, he made an appointment to meet him. He examined the knee in my presence. There was still a little fulness about the knee. Before that, he had been to a concert. Dr. Yickerman agreed with me entirely, and recommended an elastic kneecap. Continued to attend him until September 2. He moved about occasionally, and said he was doing so well, he would require no further attendance. He was gradually acquiring strength to the limb. There was no injury to tho patella before that time. James might, having a tender limb, easily make a false step, and so tincture it. Attended him with tho best of my ability and skill. Have not seen his leg since. *

By Mr. Pitt: Think James must have been on his bed. Don’t remember the position. Have seen three cases of fracture of the patella in England, but not here. Meddlesome surgery would be bad surgery, therefore rest and quiet would be best under the circumstances. If fractured, there would have been a gap, easily known by passing the hand over it. Am not aware that James called my attention to a particular swelling. Kor Mr. Leek. Had they done so, should nothave noticed it. Patients are apt to notice little things, and the less notice the better. I admit that I did not treat it for a fracture. Mr. Pitt said the defence was, that the defendant saw from the first that the patella was fractured. He proposed to show by scientific and other evidence that such was the case.

George James, publican, deposed that on July 2, 1868, he was journeying from Picton to Blenheim, when he met with an accident by running foul of a timber waggon com hug in an opposite direction. Was thrown off on my left side. Tried to get up, and the carter helped me. Could not control the leg, nor put it to the ground, nor move it backwards and forwards. Was lifted on a horse by two men. Could not put it in the stirrups. Was lifted down by two men. Called Horne’s attention next morning to a lump on the leg, but he did not consider that anything. It was about an inch above the knee. Afterwards consulted Dr. Tripe about two or three weeks after Dr. Horne ceased. Had not met with any accident in the mean time to cause mo to break my leg. I was not satisfied with what he stated, and went to Dr. Cusack. Between the time of Dr. Horne attending me and Dr. Tripe, no accident occurred. Did not make any false steps ; was at a concert; did not walk ; got out of the tilbury myself on to the ground. Did not make any false step or jerk. Told Dr. Horne that I was nearly falling. Might have given it a little twist. Did not tell Tripe about going to the concert. Yickerman examined the knee in Dr. Horn’s presence ; he did not handle il. The lump was there ever since the accident till now. Believe the lump is a part of the knee-cap bone. Believed he said he did not know whether the knee-cap was broken or not. Dr. Horne has not asked me to move it, but to keep it up till it got stronger, and said it would grow well.

By the Bench : It was at my desire Dr. Horne left me, as I felt getting better. He told me the knee-cap was not broken. Julius Decimus 1 ripe deposed that he was a surgeon practising in Picton— Mr. Nelson objected to Dr. Tripe being allowed to give evidence,, as not beingregistered in New Zealand.

Dr. Tripe showed that it was not necessary under the Act, being registered under the Imperial Act, and produced his certificate.

Examination continued : James called on me to show me the knee. Examined it, and found there iiad been a fracture of the patella, but that union had taken place. Suppose that the fracture had occurred about four months previously. Have no doubt as to the fracture. Most probably the fracture took place when the collision with the cart occurred. It is a prominent feature in such a case that the plaintiff could not put his loot to the ground. 'The proper treatment would be to try and reduce the swelling. The lump spoken of is an evidence of a fractured patella. It is very rarely that honey wounds occur.

By Mr. Nelson : There was no need to work it about. He would move it the more readily if it was fractured. The bone was divided nearly in two nearly below the centre. Had it been fractured by a false step, he must have fallen. It was unlikely that Dr Horne could attend the case without discovering the fracture By the Bench : Nothing could have taken place to cause the fracture without Mr James knowing it. It is possible that that the fracture might have occurred between September 2nd. and October 28th. it is quite possible that had the limb been attended with great care, the result might have been unsatisfactory. Have known cases treated by Dr. Erickson, of London, which joined in three days by means of a starch bandage. In average cases, the space lef tisJto Aan inch. In this it is over an inch.

Henry Williams had examined defendants leg this morn inn tor the first time. It is a simple transverse fracture of the patella, i have no doubt of the fracture. It might have occurred two months ago. muscular action would he sufficient to cause it. Do not know whether Dr. Horne’s treatment was proper or not. Don’t know what that was. Should have treated it differently myself Mr. Pitt said under those circumstances he should withdraw from the case. Judgment for plaintiff, with £3 Is. costs.

TUESDAY, MARCH 23. [Before S. L. Muller, Esq., R.M.] SYMS V. CARROLL. Mr. Pitt, for plaintiff, said this was a churn for goods sold and booked to defendant. William Syms deposed that he was a chemist, and supplied defendant with goods in September last, who ordered them, and lie delivered them to him.

By Mr. Nelson ; I do not keep a clay book, but enter goods on a slate until the month end, and then post them in a book, dealing generally with people that are honorable, who pay me at the end of the month. Do not mean to insinuate defendant is dishonorable. I produce one book. Can’t say when the entry “ J. Carroll Smith” was written; it is a true copy of what was written on the slate; presumed his father was named James Smith Carroll. Had supplied medicines to James Smith Carroll previously, and been paid, except for 2 lots which the little girl fetched and said were for her father. Furnished an account of a portion to Executors; I wrote the entries with “ Senior” to them. Sold sarsaparilla to the little girl, and the rest to defendant. Did not know he was acting as servant to his father; did not know how he got his support, nor how he was living or where, nor have heard since. Am not certain whether he ever bought any goods from me ; was not aware that his father was an invalid. Did not furnish this account to the Executors. The person who accompanied him was not a doctor ; do not remember wha. disorder he spoke of; knew the father was an invalid ; believe the article bought as ■ sarsaparilla was not sarsaparilla. By Mr. Pitt: Sold the goods to defendant on his own responsibility. The charge £1 16s. is fair and reasonable. Did know before the medicine were supplied that his father was an invalid. Mr. Nelson replied that defendant had been acting as his father’s agent since June last, buying goods and selling drinks connected with the house. He had procured goods previously from plaintiff for which he paid for his father. John Smith Carroll, son of James Smith Carroll, deposed: In September last was managing the Boyal Oak for my father; have done so since June last, ordering goods from various persons ; they have always been booked to my father. Have been getting medicines for him from Mr. Syms; Dr. Siokler accompanied me to Syms’. I believe I told him at the time that the drugs were for my father; he never spoke to me about the account before my father’s death. Never got anything from him for myself except some cough lozenges, always

getting it from the Lodge doctor, Dr. Williams. The account sued for is included in the one sent to the Executors.

By Mr. Pitt: Was never frightened to show my father what these medicines were for. Believe I told plaintiff it was for my father. Plaintiff recalled : Furnished an account to the Executors, 155.; did not include the £l 16s. Did not charge all to Executors that lam aware of. The reason I put the goods charged to John in his father’s account

was because I thought he would pay it. The bill produced includes all the items charged in the book to James Smith Carroll. Applied to the Executors for payment after sending in the account to defendant; was aware I should have to wait a year for payment for the father. The entry was opened for defendant, and the items named afterwards excepted. The Executors did not say they would see this account paid. I charged the first bottle to the son, although got by bis sister, because I expected the son would pay it. Mr. Kelson and Mr. Pitt both addressed the Court at great length. The Bench commented on the evidence, giving judgment for the plaintiff for full amount, with £2 costs. AOPAKT V. MACAULAY. Mr. Kelson, for the plaintiff, said this was a claim of £23 for wages clue, but he applied for an adjournment on the grounds that an extraordinary set-off amounting to £74 had been filed, which would require' the presence of a witness from a distance. On the previous day at noon Mr. Pitt, for the defendant, asked his consent to a setoff being filed, which he gave, the document being subject to all incumbrances, and taken for all it was worth, He was, however, unprepared for this one. Considerable discussion ensued, resulting in the set-off being withdrawn, to be made subject of a fresh action. < Henry Aopart, laborer, was engaged as a | servant to defendant by the late Arthur Kinsey, on behalf of Kinsey anOTaeauTay, iiTEook at Manuka Island, from August 6, last year; and he remained until Kinsey’s death. The terms were £1 per week for the first 3 months, and then to be advanced to 255. He subsequently told defendant of ■ the arrangement at the time of the inquest , on Kinsey’s body, wbo wished him to con- \ tinue. On the day before Kinsey, was I drowned gave him an account mfidTTmsiness \ 'done, ancf settled up with him, giving him | £23 which was uclly entered in the book. \ He drew £4 Is. from him on account of ! wages. Some time after Kinsey’s death \ defendant sent up a new manager named Grant, who lived in the Accommodation House, and kept the books. Remained in the employ until March 12 ; on the 3rd had £3 16s belonging to defendant, but refused to give it up' until he returned me the receipt for the last money paid him. By Mr. Pitt: Was working only for defendant. Only received cash, £4 Is. and £3 175.; the last sum he told me to retain. Did pledge some goods in Renwick, but was not hard up. Had some horses ; bought one with the £4 ; picked up ahorse belonging to Mr. ‘Warren, who gave me £5 for finding it. Swear I paid all moneys over to defendant; have not crossed sheep except what are entered in the book. Remember M £ Lauchlan crossing some, but ho did not pay me ; was down here a day in Februaxy, but was not drinking; got Jeftries to stay in my place ; could not put him out; others have been there also, but they found their own tucker.

Mr. Pitt objected that part was due by the firm, and the other part by Macaulay were two separate and distinct cases. These could not be joined in the same plaint. a long legal discussion followed, after which Mr. [Nelson offered to abandon the portion accrued during Kinsey’s lifetime, and prove the balance, but the Bench held that a new summons was requisite. A nonsuit was entered, plaintiff to pay defendant’s costs, £2 Bs.

RIGBY V. EARL. Mr. Pitt appeared for plaintiff; Mr. kelson for defendant. Mr. Pitt claimed a sum due for gravel removed from plaintiff’s land. Peter Rjgbv. deposed that he was owner of certain land in Blenheim, and believed defendant had removed gravel from his land ; defendant gave him a memorandum of 136 loads at Is. a load, which rate ho had received before. By Mr. Nelson: When I came down I enquired as to the amount of gravel ho had taken ; he said if he gave me the amount I should sue him ; I said I did not think I would; I said X would not sue him for it. Did not go to ask him what he would give a year for the gravel. Upon going to Dodson (my agent) I found he brought, ms into debt by advertising it as well as myself. Defendant told mo ho had taken th,e : gravel out of my river bed. Offered to tako i a guinea and cry quits; said ho would give

it me. Afterwards he told me it was not my land. I will not answer whether it is mortgaged ; the river does not run through any land but mine. He did not point out the particular spot where he took it from. He did not tell me that he had drawn any of the gravel from the Taylor river. Collie had sold gravel for me at Is. a load. I heard that the gravel on the road to the church came from my land. Ewart paid me £ I for gravel he had had. By Mr. Pitt; There was an after agreement to sue him for it. I sued him because he did not pay it. George Coward deposed that defendant, had acknowledged that the account given was conect.

Benjamin Enrll had got gravel from various places—behind the church, the river Taylor, and from the Omaka. Plaintiff asked what I would give him ; he wanted £lO a year; I said it was not worth it in 3 years. Afterwards gave him a list of all I had got in 3 years past from every where. Fetched gravel from Taylor as return loads when taking manure to Wemyss’. I agreed to give him £1 for 40 loads, if it was proved that I had taken it from his land. The Court said it had not been proved that the gravel was taken from plaintiffs ground, and remarked upon the circumstance of plaintiff suing defendant after saying he would not do go. A nonsuit would be entered; plaintiff to pay £1 1 Is. costs.