RESIDENT MAGISTRATE'S COURT.

Nelson Examiner and New Zealand Chronicle, Volume XVI, Issue XVI, 9 December 1857, Page 3

RESIDENT MAGISTRATE'S COURT.

Monday, December 7, 1857.

[Before John Poynteb, Eaq., Eesident Magistrate,

and R. K. Newcome, Esq.]

The case of Marsden v. Whitwell was postponed until Tuesday morning.

Thomas Gaukroger v. Joseph Foord Wilson; disputed account for work done. Verdict for plaintiff for £2 16s. Bd.

Thoma9 Davis v. Peter Turner, for furniture supplied. Verdict for plaintiff for £9 Is. 6d., payable in one month.

Ellis v. Duncan. This case was settled out of Court.

James M'Lean v. H. J. L. Augarde. This waß a suit on a Bill of Exchange for £50. Mr. Stamper appeared for the plaintiff. Verdict for plaintiff for the amount, together with interest from the date of the bill becoming due. Holston and Tierney t>. Askew. Mr. Tbavebs appeared for plaintiffs, who sued on account of timber delivered. Case was referred to Mr. Sharp for arbitration.

Lange v. Fanzelow. Mr. Kingdom for plaintiff, Mr. Tbavees for defendant. This vaa a summons for wages, but as neither plaintiff, defendant, nor witnesses could speak English, Mr. Dencker, who was in Court, was sworn as interpreter. Plaintiff claimed for 136 days' labour at 4s. per day. Some conflicting evidence was given relative to defendant having guaranteed to pay the plaintiff's passage from Europe, but a verdict was given. Hooper and Dodson v. M'Nabb, for £11 16s. 6d., being balance of a Bill of Exchange for £37 6s. 9£d. Verdict for plaintiffs.

Jacobsen v. Karsten, for £8 15s. for labour done. Plaintiff having proved bis case, defendant said he was

not liable, as tho affairs of the mill had been settled by arbitration, and his partner had to pay. Tho Magistrate, however, said plaintiff could not be bound by this ; defendant had engaged, and must therefore pay Jacobsen ; half to be paid in one month, and the other half in the succeeding month.

Henry Marryatt v. M'Nabb. Mr. Travers appeared for plaintiff, and Mr. Stamper for defendant. This was a horse case ; it appears plaintiff had borrowed money from M'Nabb, and had given his horse as a pledge for repayment, on tho understanding that defendant was the only person to use it ; this agreement he broke, and in consequence of having let the horse out it had been used badly and died. Verdict for plaintiff for £27, to be paid in one month. Nicholson tmd Ridings v. Washbourne. Mr. Adams appeared for plaintiffs. This was a suit for the balance of £57 os. 2d., due on two Bills of Exchange. Verdict for plaintiffs.

Smith v. Balchelor. In this case it appears that plaintiff had purchased ale from defendant, and having occasion to come to Nelson for medical attendance, defendant had reported that "he had made his pile and bolted," and had himself on a Sunday evening taken away the ale from the plaintiff's store, tho halfway house near the Slate river. Tlus had caused much injury to plaintiff, not only by the aspersion cast on his character as a tradesman, but also by stopping his trade, as the party left in possession of his lent had been unable to supply beer to the many customers who had visited him.

Defendant not being prepared with his witnesses, the case was adjourned till the next Court day.

W. T. L. Travers v. Beauchamp. Mr. Kingdom appeared for defendant. It appears that defendant had occupied a house belonging to plaintiff, and that some idea had at one time existed, that he would purchase the property, but not having done so, Mr. Travers had put the same up for sale, and when defendant became aware of this lie pulled down an outhouse which he erected during his tenancy, and this gave rise to the present action.

Mr. Kingdon said, that so far from injuring the property, defendant had much improved it ; and Mr. Beauchamp, on being sworn, said, the lean-to in question was a separate building, not joined to the house, and resting on piles which had not been driven into the ground.

The Magistrate said he would defer his decision, that he might have time for consideration.

S. E. Poyntz was brought up from gaol to answer to the suit of William Akcrsten on a promissory note for £30. Verdict for plaintiff.

Mr. Akersten asked the Magistrate for authority to sell the property of Poyntz, but this was refused, and the question will consequently remain open until the advent of the long-expected Judge.

N. T. Lockhart v. Thorburn for £20 45. ; same v. R. Johnson for £20 35. ; and Same v. J- Brevington for £4 Is. 6d. : in all these cases verdicts were given for the plaintiff.

Tuesday, December 8.

John Marsden v. Whitwell. Mr. Traveks for plaintiff, Mr. Sinclair for defendant.

Thomas Marsden sworn, said : The goods mentioned in my bill of particulars was shipped in the Tasmanian Maid for Collingwood, on the 20th October last; but as the boat arrived late at night she did not go inside, but anchored about 2£ miles off. She could have gone inside in tho morning, but did not do so, and my goods were placed upon a small punt belonging to the Company, which was upset in trying to reach Collingwood. The steamer remained outside for her own convenience.

Chai'les Myers sworn, said : I was a passenger by the Tasmanian Maid on the trip in question. The steamer arrived at Collingwood late in the evening, and the passengers landed in the morning. The goods, in an attempt to land them, were sunk. Had the steamer waited about two hours she could have gone in and landed tho good 3. I thought the weather moderate when they commenced loading the boat, but 1 have reason to believe the wind was getting up at Collingwood. I think the punt was too heavily loaded. I was in tho punt, and as we proceeded to Collingwood the wind increased. The punt was only about six or eight inches out of the water, and it sank from taking water over the side. I got the man to let go the anchor, that we might try and face the wind, but this did not succeed, so we took it up again and tried to reach the steamer. I wanted the boatman to throw some hay and a large crate overboard, but he did not do it. I also advised raising a signal of distress, but this was not done. The boat sunk about a quarter of an hour after we had raised the anchor. Cross-examined : We staid outside all night, but in the morning all the passengers save myself were landed. My business prevented me from landing. I had purchased some sheep and wanted to get them safely ashore. I have been to sea 25 years. There was a slight sea on when the punt left the steamer. I consider the punt was overladen. I think that if j the man in charge of the lighter had done as I wanted him the accident would not have occuiTed.

Henry Clausen sworn, said : lam a master mariner, and have been to sea for about 22 years. I was in the eteamer at the time in question, and having landed I was soon informed that an accident had happened to the punt. I went out with others to render assistance. The punt was flat-bottomed, and I think not fit to go out so far when there was wind stirring. When I left the steamer it was blowing a light breeze, which afterwards increased. I do not think the punt was safe for such weather. George Siddels sworn, said : I was coxswain of the punt in question, and was on board when she sank ; it is a flat-bottomed boat, about 30 feet long, 7 to 8 feet beam, and 2£ feet deep. She had only landed goods from the steamer once before this accident. She was, on the last occasion, very deeply laden ; the wind caught the hay and the crate, and prevented me from getting he.r head to wind. I heard Myers say something about the hay, but I think had it been thrown overboard it would not have prevented an accident. The cargo was so placed we could not bale out the water which continually flowed into her. John Johnston sworn, said : I am mate of the steamer. I was on board of her when the barge was lost. I had the cargo put into the barge. There was hardly any wind when she commenced loading, but it increased before she left. I told the coxswain to get ashore as quick as possible, or he would have the wind too strong. I think the cargo hi question could have been safely landed in our own boats. Ido not think the punt was capable of meeting the wind that was blowing when she went down ; the wind was not stronger than I had seen it ; tho wind was not blowing more than usual when she went down.

This closed the case for the plaintiff. Thomas Whitwell sworn, said : I am defendant in this action. I am master of the Tasmanian Maid. My practice at Collingwood has been when I have arrived in time to leave by the advertised time of sailing, I have gone inside ; if not, I have staid out ; Ido not know if shippers knew this. I did not consider the barge was overloaded. At the time she left there was every appearance of fine weather, although the wind was unusual, such as I have not seen previously. I have traded along these coasts for four years. The wind, as it increased, came in heavy puffs. I was pulling off to the vessel when tho barge left. There was no wind where I was.

Herbert Evelyn Curtis sworn, said : I am a merchant and part owner of the steamer Tasmanian Maid. lam also managing agent of tho Company. It was perfectly understood by shippers and the public that we did not bind ourselves to go inside the harbour at Collingwood.

The Magistrate said: Carriers are liable even when they deliver to owners of goods an expressed limitation to their liability.

Mr. Travers made some laughablo allusions to some of the evidence ; but stated that he fully relied upon the case as presented.

Mr. Sinclair- having replied,

The Magistrate said: This decidedly could not bo called "the act of God," in the meaning of those words as applied to carriers' liability. It appeared to him there was not a good and sufficient barge provided ; in fact, he thought that the boat in question would not live even in Nelson harbour, much less in Collingwood ; and it was quite clear to him that the Steamboat Company was liable. Judgment for plaintiff for £13 10s. and coats.