MAGISTERIAL.

Marlborough Express, Volume XXIV, Issue 255, 16 November 1888, Page 3

MAGISTERIAL.

* Feuuy, November 16. (Before Mr J. Allen, E.M.) CTVUi CASES. Simmons v. J. Welsh. Claim £2 4& 9d;Blenheim Borough Council v. Thomas. Scott,, claim £1 14s 9d (for rates) ; Same v. Peter Anderson, claim £1 18s 3d (the defendant m this case pleaded inability to pay owing to continued sickness and the Magistrate advised him to" lay the matter before the Borough Council) ; Same v. H. Honor, claim £2 6s 9d ; Same v. W. Homes, claim £1 15s 9d (the summons had, m accordance with tre Act, been pasted on the door of defendant's dwelling house). Judgment m the foregoing cases went by default. ■ ', Thomas v. Mulligan, claim £3 6s. ' Mr McNab for defendant, who, counseL said, was unable to be present, being en-, gaged at Birch Hill, and unable owing to the high state of rivers to cross them. The case was adjourned with' costs against defendant. Counsel asked that the ad jpurnmeht might be till after Christmas, and he read a letter from his client in 1 which he stated that he wanted to defend the action cost what it might, but as he began shearing yesterday he could not get down earlier. The plaintiff objected and the Magistrate, upheld the objection, adjourning the casa l till. December Ist, the previous day Nov. 30 being St. Andrew's Day, a public holiday. Ham v. Scott claim £1 12s. Defendant had paid into Court 5s 6d and put m a set off of 6s. He objected to several items . The Magistrate went through the items seriatim, and plaintiff supported them with explanations, defendant denying the correctness of several. Defendant having made an affirmation, gave his version of the affair, his_ statement as to dates and quantities: differing considerably from that of plaintiff. At this stage the proceedings became undistinguishable, both parties speaking simultaneously and with great rapidity and volubility. A witness, Blackburn, called, on behalf of defendant, said, "Eeally, your.-Wors-hip, I'm a total stranger to the case." (Laughter.) His Worship: Yes, 1^ don't think you are the only person who is so. (Laughter.) The Magistrate went through the account again, and gave judgment for 9s balance. "Plaintiff handed up some further papers, on seeing which the Bench allowed 6d more; and the parties separated, pleasantly wrangling, defendant saying, "I gave' you the work to take my bread bill out. You ate the money before you earned it." ■ Wilson v. Miss Browning. Claim £4, for services as a dentist. Mr Conolly for plaintiff. Counsel called, as witness for his side, the defendant, Caroline Browning. Last year contracted with plaintiff 'B .brother (deceased) to do certain work m dentistry. It was never executed properly. The contract was to finish a /permanent set of teeth, as the brother had agreed to do. Jos. 3?. Wilson, dentist, was assignee of his brother's estate. Took up some •work left uncompleted by his brother. Defendant supplied her and she expressed satisfaction with a new temporary set. In the course of a week or two she came and said the spring of the new set was broken. He then offered to repair the old set as she would prefer that. Posted her from Hokitika the old set, repaired, but she did not return the new set for months after. ■ To the Magistrate: Had sent her the old permanent set. The charge of £26 was m pursuance of an agreement she said she had made with the deceased. She Has the permanent set now. The new set was now returned. , To defendant ':" It was eighteen months after my brother's' death that I made the set. It was not three, it was eighteen months. . Defendant said the set was useless ; the spring broke and the teeth could not be worn with comfort. It was her own fault that the .teeth remained out of repair, because it was useless to get anything done to them. Defendant then made a statement as follows. When plaintiff succeeded his brother he sent her a bill for £2 and she at once, told him she owed £8. She paid £4 and that' left £4 -which -would have been paid long ago if the work had been done properly. She was not m Blenheim when plaintiff was. To Mr Conolly; I was herein May, June, and July last. I had sent, back the teeth he asked for. The teeth I wear give me pain. I have had to go to the doctor about them. It is not pleasant to come into a public court. I did not com- ■ plain to him because it was useless. The Magistrate said the defendant had evidently not taken proper steps to compel • plaintiff to carry out the agreement, which she alleged he had failed to dpi and m the absence of evidenqe he must give judgment for plaintiff for the amount and costs. Martin v. Blackburn, claim £3 for de- . tention of a parrot. Mr M'CalJum for plaintiff, Mr M'Nab for defendant. ' ,Mr M'Nab admitted the claim £1 for damage^ to a garden by horses, but objected to the item " detention of a parroquet." Counsel read Whafton to show that a parroquet was a wild animal, and therefore could not be " property " or the subject 'of action or of larceny. Counsel quoted Blackstone to show that the ele-. ments and ferl iwturee were common property, which so long as a man had m possession, were his, but reverted to their original state as soon as they escaped or were taken from his custody. Anything of that sort going away became res nullius. The Magistrate said paroquets had been | known to return. | Mr McNab : I have no evidence of that, your Worship. . The Magistrate: But I have. I have a parroquet which returned (a laugh). However, the law seems to be with you; Evidence was heard as follows :— Plaintiff, E. Martin, carpenter, owned a parroquet, which on September Ist escaped to Blackburn's loft. No attempt was made then to follow. Defendant still held the bird. Could not go to defendant's house because they were not friends, and he would be accused of insulting defendant . or his wife. Bought the bird from Simmons. It. was a pet, It spoke lots of words. Would rather have it than £2. £1 was tendered on condition that witness would square it up. Offered to take it on account of the £3 owing altogether. ■ Believed this was the real position. Tliey hung the bird out at the back, and they taught it to say "Poor little cocky, they won't let you back." (A laugh.) To Mr McNab;: Blackburn once lost some bees. I do not know that he did not sue me for taking them, because bees were feri natures. The account is for damage to a garden, as well as detention of a parroquet. .Was not offered two half sovereigns, but £1, a sovereign. This was offered by Holtham on Blackburn's account. I said "bring the bill round and I'll take' it off." I do not think the £1 was offered for damage done to the garden. Wml Holtham (a venerable person) said he offered Martin two half sovereigns for damage done- to the garden. Martin would not take the money. To Mr McCallum : Had been to Martin's before, and he said he would take 10s and the return of the bird. Blackburn said if he knew the bird was Martin's he would give it up. Martin never claimed it. Had no instructions about the bird. To Mr McNab : He would not give a receipt and'l declined to give the money. Mr McNab asked that plaintiff be coasuited on the law.

Mr McCallum thought this would be a dangerouß precedent, to bar recovery of a domesticated bird. If it were a tame animal the' offence would be larceny ; but as this was a court of equity, as well as court of law, he would ask the Magistrate to decide m equity. The Magistrate said he was obliged to decide against his convictions, for it was monstrous that a man should appropriate the property of another with impunity, <md be sheltered by a law. He should be obliged unwillingly to nonsuit the plaintiff, but be would like to hear a judgment of the Supreme Court on the point. He should allow no costs except 8s for one of defendant's witnesses. ' Mr McNab said he was now instructed -by his clieat to say plaintiff could have his bird on calling for it. The Magistrate was glad to hear him say so. . . . The Court then arose.