THE COURTS.

Mount Ida Chronicle, Volume XXI, Issue 1066, 8 May 1890, Page 3

THE COURTS.

THE WARDEN'S COURT," NASEBY. " Monday, May 5. IS9O. (Before S. M. Dalgleish, Esq., Warden.) water-race. Archibald Leckie, below stone hut. Little Kyeburn.—No appearance ; struck out. j TAIL-RACES. Ah Quan, foot of Mt. Bnrster.—Granted. Ah Tie and Ah Folk, tail-race, near the residence of Mr. W. Ball.—Withdrawn. Harry G. Ravenwood, Wet Gully.'— Grafted. Michael Spillard, Mulholland's Gully.— Granted. DAMS. All Fong was granted three dams in Rcache's Gully, Naseliy. RESIDENCE STTE. Elizabeth Young applied for two acres"°iii Spec Gully, as a and was granted one acre. PROTECTION. Hugh Wilson and others, Charles Coote, James Howell and otfi'ers, E. Wood and others, and Thomas Howell and others were granted four months'protection for dredging claims on the Taieri river. . EXTENDED CLAIM. Chow Shay was granted an extended claim of 2a. situate in Home Gully. —The Applicant also applied for permission to work a tail-race included in the claim, which was granted subject to the terms of an order made on 27th March, 1890.

RESIDENT MAGISTRATE'S COURT, Monday, May 5, 1890. (Before S. M. Dalgleish, Esq., x R.M.) j CIVIL CASES. ' Peter Law v. Alexander M'Kenzie.—This ' case, which was a claim of LAO J Is 6d, hail I been adjourned from last court-day in order that defendant might furnish the particulars , of a set-r.ff against plaintiff ; but on the case being called defendant did not appear, and his solicitor (Mr. G. F. Rowlatt) stated that as his client had neglected to supply him . with the necessary information he had no , defence to make. -Judgment whs aecordI ingly given for plaintiff (fir whom Mr. •■ M'Cartl.y appeared) for- the full amount , claimed, with costs amounting to L 6 12s. ! Samuel Law v. James Davidson.—Claim I Ll4 os 6d for goods supplied.—.Mr. S. E. i M'Carthy appeared for the defendant, and stated that his client admitted the debt, but wished for time in which to pay/it. David- : sou was a miner on Mount Burster, and as • the party only washed up at long intervals he was not in a position at present to pay the amount due.— PJaiufciff said he was willing to accept payment at the rate of L 3 ; per month ; and an order, was made by his j Worship accordingly. | John Law and Son v. William Price.— Claim, L 23 14s 6d.—As defendant acknowledged the debt, judgment was given for the j amount claimed, with costs L2 12s. j A number of cases brought by the Break ' o' Day Q.M. Co. (Ltd ), Nenthnrn, for the recovery of various amounts due as calls . were withdrawn. ' j BARRETT V. COYLE. | In this case it appeared that William Barrett, • Naseby, entered into a contract with John Coyle, Kyeburn, to build bricks at 8s per 100 and stonework at 3s 6d per i yard. The number of bricks built by plain- | till was 2750, for which he charged Lll. ami the stonework (254 yds- came to L 4 9s 3d, makiug a total of Llo 9s 3d. Against ! this nad to be deducted for board, labor and cash, L 5 6s, leaving the a nount due at LlO 3s 3d, which was the sum sued for. Defendant objected to the amount charged for the stonework, and in satisfaction of the claim tendered LS 14s 6d, aud pleaded a set-off to the extent of LI 10s, and "Not Indebted " in the remainder. Mr. S. E. M'Carthy appeared for plaintiff; and Mr. G. F. Rowlatt for defendant. William Barrett deposed that he was a stone-mason and brick-builder. On January 25th of this year he entered into a contract witli Coyle to build bricks and also stonework. The price agreed on for -he latter was 3s 6d per yard, for labor only, defendant undertaking to provide stones and other requisites. Coyle asked him if there were not 27ffc. in a cubic yard, to which witness replied in the affirmative, but informed him that he always built according to the mason's measurement, which whs nine running feet to the yard. To this Coyle made no reply. It was always understood that, unless the cubic measurement was distinctly specified, work of this description was charged for according to the mason's measurement. Had the agreement been 3s 6d per cubic yard, he would not have made more than 2s a day Regarding the set-off, which was four days' horse-hire at. 7s fid per day, witness stated that Coyle oflercd him a loan of the horse, remarking that he might have it whenever he required it. On the first occasion of his using it he rode to Naseby on Saturday evening and returned to Coyle's on Monday morning, for which he was charged two i days' hire ; and on the second occasion his ! sou had the use of the horse for four or five

[ hours to go to Houndburn. Witness was positive that defendant offered him the | horse, and that nothing was mentioned about payment. He had made a memo, of 1 the contract in his pocket-book two days I after the Hgrecment was made. [ Mr. Rowlatt objected to the memorandum | being used as evidence on the ground that it was not made on the same day as the contract, and that after a couple of days had elapsed it was probable Barrett's recollection of the bargain would be very indistinct. His Worship remarked that it was generally recognised as sufficient if a memorandum was made a reasonable time after an agreement. In cross-examination witness stated that, although he had never served an apprenticeship, he considered himself a stonemason, having worked at the. trade for 10 or 12 years in this district. He considered the class of work done for Coyle proper stoi emasonry. A trench was cut to the depth of eight or nine inches and filled with stones set in mud, and the wall was built eidit or nine inches above the surface. The contract was niu'le on the racecourse the first day of the Mnniototo Jockey Club's summer meeting. Witness had not had too much drink. There was no one else present at the time, but he would swear positively th.it he explained the measurements of a builder's yard to Coyle, anil that he never referred to cubic yards in connection with this job. He was engaged 13 days (.sometimes 11 or 12 hours a day) in building the bricks and foundation, and reckoned that he had cleared £lO 3a 3d profit. He did not tender for the stonework at 3* Od per cubic yard v ith the intention of making it up on the whole job. By Mr. M'Carthy : The stonework which was the subject of dispute was of the same description as the foundations for sun-dried brick buildings ordinarily built in this district. Defendant had never made a demand , to witness for horse-hire. A short time bcJ fore the summons was issued Coyle told him that if he liked he could charge him for the use of the horse and that, if he (witness) insisted on being paid for the stonework at per builder's yard, he would do so. A mason's yard was 9ft., iv d a cubic yard 27ft. Three shillings mid sixpence a yard was witness's usual price for doing work of thisdeseription. William Jacob (a bricklayer and plasterer of 45 years' experience), William Hayes (".0 years' experience) and James M'Laren (0 years'experience) gave evidence to the effect j that unless cubic yards were distinctly • specified in the .agreement, mason's work

was always charged for Cat per: yard. At 3s 6d per cubic ylLird a ma.-eouM _not earn more than 2s. 6(1 or*os'6d a day at such work as that in dispute. 10s 6d per cubic yard would be a fair price. Mr. M'Carthy putin as evidence " Rouse's -Practical Man." with a v'ww of showing that all mason's work was charged by-superficial measure. This closed the plaintiffs case. For the defence, John Coyle, defendant in the present case, stated that when the contract was entered into he was perfectly sober, but plaintiff appeared to be half drunk. The price agreed on for -building the foundation was 3s 6d per cubic yard. He was certain of this, cubic measurement being the' only measurement of which he hud any knowledge. The contract was made on a Thursday, and plaintiff commenced work on the following Monday. There was no mortar used in building the foundation, which was about eight- inches below the siuface and from five to nine inches above it. A man could easily build three cubic yards per day. Plaintiff only took about three days at the stonework, and only worked about eight or nine hours a day The building was 2Sft. 9in. in length aud 14ft. in breadth. From these measurements Mr. R. H. Browne made up the number of cubic yards, and witness offered to pay plaintiff according to this, but he refused to accept it, saying that the work was agi seel to be charged for at per builder's yard.° He [ left the money with Mr. James Mitchell, so I that if plaintiff altered his mind he could get it, aud on receiving the summons witness paid the money into court. In reference to the set-off, witness said he told plaintiff he could have the horse, but although no charge was mentioned he did not meau to let him have it for.nothing. On finishing the contract, plaintiff told witness there were 25£ cubic yards in the building. By Mr. M'Carthy: Witness told plaintiff he did not want any mud with the stones in the foundation below the surface. - He had carted eight or ten tip-dray loads of stones, which he thought would be sufficient, as he reckoned one dray load would be enough for a cubic yard of the foundation. When Barrett told him there were 25& cubic yards in the work he made no remark. He saw plaintiff working about eight o'clock one night, but was certaiu he did not work on an average more than eight or nine hours a day. He never told Barrett before he offered to pay him that he intended to charge him for the horse. Patrick M'Cluskey, faimer.,. stated that he had had. considerable experience in Ireland in building stone walls, and that he could easily build three cubic yards a day of a wall such as that described.

By Mr.-M'Carthy: He" had been in this district 21 years, and had only built one stone foundation in that period. Richard H. Browne, C.E., deposed that he had had 27 years' experience in the colony as an engineer and surveyor. He would not describe the class of work performed for Coyle as masonry, but would term it- merely a rubble wall, [n giving quantities, witness always made up the measurements into cubic yards. Cubic measurement was best known iu this colony in connection with this class of work. Witness possessed a scientific work, which was a recognised authority, showing that masonry was always measured by cubic feet, or, as now approved by engineers, by the cubic yard. The work wis dated 1876, and stated that even then the builder'smeasurement was falling intodisuse. Any man who could not build two cubic yards a day of a wall such as that built by plaintiff would not be worth employing Defendant gave witness the measurements of the building and asked him to calculate the number cf cubic yards, which came to a little over eight. The mason's yard only applied to finished masonry,, and the cubic yard to rough work. , . ,*'" By Mr. M'Carthy : In getting work of this description done for the County Council, witness always specified cubic measurement. He did this so that the contractor could not claim payment according to the builder's yard. Patrick Hagan, laborer, Kyeburn, stated that he worked with Barrett for Coyle at tne house, but did not help to put in the foundation. Barrett did not work more than eight or nine hours a day. Before going away, Barrett told witness that if Coyle asked him to make up the measurements, he could say it was cubic yards. By Mr. M'Carthy: He would swear positively that plaintiff said cubic yards. Witness was still employed by defendant. W. Barrett (re-sworn) denied that he said anything whatever about the building to Hagan. On one occasion he told Coyle that there were 2750 bricks in the building and 2oh yards in the foundation. By Mr. Rowlatt: Witness never spoke to Hagan about the measurements. His Worship said that as he wished to examine the scientific works referred to in the evidence, he would give his decision the following morning.

Tuesday, Mat 6. the heathen chtneb. Ah Chow, remanded from Arrowtown, was charged on the information, of the police .with the larceny of a bolt of'cauvas valued at £5 16s, the property of Mee Hock. Mr. Rowlatt (who appeared for the accused) asked that an adjournment be "ranted and that accused be admitted to ba 1?) Constable Willis objected to a remand being granted, on the ground that the accused had already given the police a great deal of trouble, and also that by trrantino- a remand the ends of justice would not°be served. The information having been read over to the accused, lie said he took the hose, and asked his Worship to deal with the case. The police consenting, the value of the hose was reduced to £4 19s Gd in order to give his Worship jurisdiction. Constable Willis said the facts of the case were as follow:—About December 31 Mee Hock, who possessed a claim in Spec Gully, Kaseby, purchased a bolt of canvas from Mr.' W. N. Horswell, who got it made into hose tor him. Mee Hock was usins the hose on January 31st., but the following moraine it was missing. He told Mr. Simon Hewitt of the occurrence, ad a few days afterwards the latter, walking through Ah Chow s claim, noticed some new hose. Knowim* that Ah Chow had for a considerable time l>e«!ii in the habit of using old hose, and being on the look out for Mee Hock's hose, Mr. Hewitt examined it and found a lot of yellow clay adhering to it, which provrd to he exactly of the same character as that iu Mee Hock's claim, while the earth in Ah Chow' claim was totally different. A nuir-ber of marks, which were found to represent Ah Chow's name, h.td been put on the hose and diit rubbed over it, evidently to make it look old. On tin* evening of February 24 Mee Hock charged Ah Chow with the theft and he denied ic. Constable Willis was informed the following e\ eiiing j and immediately proceeded to the accused's hut but found that, although he had been working in the claim just a short time before ! the information was laid, lie had gone away, i He traced him seven miles beyond Serpentine, where he lost all trace of him for about a wjek, when he was informed that the accused was on ids way to i lyde. He then telegraphed to the Clyde police, who traced him from there to Cromwell, thence to . Cardrona, and finally to Arrow, where he i was arrested on the 27th April. The accused told him Id tell Mee Hock not to go ' against him, and that he would lend him his { h(. 3 e. A fortnight previous to the purchase of the hose by Mee Hock, Ah Chow wanted to buy it, but as he had not suliieient monev I Mr. Horswell .vould not give it.

"j His Worship said, that from the way in | which Constable Willis had stated the case, j and as the accused had pleaded guilty, there 1 was no doubt that Ah Chow had committed the theft, but he did not think a very heavy sentence whs called for. ; ■ Constable Willis drew his Worship's attention to the fact that miners' property was quite unprotected, and that they had to depend on the honesty of each other. Last year six similar cases had been reported to the police, and in not one iiist-anee couldthe tnief be discovered. The Act allowed sixmonths imprisonment. His Worship said he would sentence accused to six mouths' imprisonment, whh Hard labor, in Dunedin ga-.ii. BARRETT V. COYLE. In giving his decision in this case his H orship said there could not be the slightest doubt that the agreement was for 3s 6d per builder's yard. Mr. Browne's evidence and the scientific works, he thought, applied to finished masonry aud not-work of such a rough nature ab that in dispute. Regarding the set-off, Coyle had voluntarily admitted having offered plaintiff the loan of the horse Judgment would be for LI Ss 9d in addition to the amount paid iuto court, with costs amonating to L 4 10.