RESIDENT MAGISTRATE’S COURT.

New Zealand Times, Volume XXXV, Issue 5872, 27 January 1880, Page 3

RESIDENT MAGISTRATE’S COURT.

Monday, January 26. (Before T. A. Mansford, Esq., E.M.) POLICE BUSINESS.

John Mills was fined ss. for drunkenness.— Jessie Walker was charged with the larceny of a watch and chain, from the house of John Watson. Case remanded till next day.—Samuel Beuney, mate of the brigantine was charged by Thomas Etherege, an A. 8., with an S£. r °lb at sea on the I9th instant. . There was a c:- ss action, iad b -th cases were heard together. From the evidence given it seemed there had been a dispute between the parties as to Etherege not obeying Benney’s orders during a squall, and the quarrel ended in blows on -both sides. Benney was fined 20s. and costs, or to be imprisoned for three days. Cross action dismissed. . CIVIL OASES. An extremely long Use of small debt cases —nearly one hundred— judgm.ent summonses, &c., were set down for hearing. Of these the majority were either struck out, postponed, or settled out of Court; a number being heard and decided. Among those postponed till Wednesday was the action Duncan v. Zohrab and Newman. THE “PUNCH” CASE— BURKETT V. WALLIS. This was a claim for £54 Bs. lOd ; the evidence having been heard at previous sittings of the Court. His Worship now delivered the following judgment;—The agreement in this case must io my opinion b© based on the memo, in writing—l 6 pages of letter-press with an insert of two pngej cartoon, at £2O per first thousand copies, and at the rate of £lO for every extra thousand, with au allowance of 10s. per page of standing matter. The question whether toned paper was to be used for the cartoons I am unable definitely to determine, but intend to decide that portion of the case in favor of the plaintiff, believing that there is some slight .evidence of defendant agreeing to accept the toned paper shown him as far as it would go, and that ordinary paper was to be used afterwards. The term “ standing matter” is a technical phrase. Interpreted by me in accordance with the professional evidence given, it has reference to four pages of advertisements not requiring alteration or unlocking, and does not apply to the frontispiece or woodcuts. I am of opinion that the terms were intended to be cash, which does not necessarily imply cash before delivery, and the conduct of the parties shows that on all issues with the exception of the last the periodical was delivered, that the account was rendered at the time or shortly afterwards, and payments, made on account. It would be quite unusual to expect payment before deliveiy, unless the agreement was so clear in its terms'as to remove all doubt on the subject. This'will exclude the first item of the plaintiff’s claim, £23, and after deducting for overcharge and standing matter, according to my calculation, £25 155., making together the sum of £4B will leave a balance of £6 13s. lOd. in fcttvor of plaintiff, for which I give judgment ' with costs. THE CIBCUS ACCIDENT—NASH V. CHIABZNI. This was an action to recover £IOO damages for an accident sustained by the plaintiff while attending the circus on December 4 last, through the breaking of a tent pole. The evidence for the defence had been taken by commission in Christchurch. Mr. Stafford now appeared for • plaintiff, and Mr. OHivier for defendant. Mr. Stafford called Dr. Diver, who deposed to attending the plaintiff for his injuries. Ho Raw the poles fall in the circus. The injury to the plaintiff consisted of an extremely severe scalp wound 5£ inches long, penetrating to the bone. He attended pi for a week until hereturned to his work, i - c could not say .whether there was any porn. t injury, though it was possible in after ye.it.i the effect might be felt. His fees were £5 ss. The weather at the time was medium for Wellington— the wind was gusty. Ho could hot say whether the' tent poles were fastened in the ground. He made for the door of the circus as soon as the accident occurred

concussion of the brain.—Henry Ol.flo’ lector, deposed to witnessing the acci '-o’, and hearing Mr. Chiarini say that the cisco * people would have to pay for the injury on ihe following day. Chiarini had told asm v,i;,t of his to go and settle with the plaintiff the day after the* accident, which the servant faded to do. XXe heard a conversation between Chiarini and Mr. Scoular before opening on the evening of December 4. Scoular said it would not he safe to open that evening. "Witne-s concurred in that. Chiarini said, “Oh we’ll risk it if anything happens wo shall only have to pay for it.” Therewas too much slack in the tent ropes. There were three poles broken. Ihe wind came in violent gusts. Witness ran for Dr. Diver after the accident. The weather was very had for circuses during the whole stay of Chiarini’s show. 'The poles were of Oregon pine the best for the purpose. The circus employes were all old hands, and competent. j;_ Pf Nash, the plaintiff, deposed to the circumstances of the accident. He took his seat in the pit, where the polo struck him, rendering him unconscious, and he could remember nothing after. He believed the accident had impaired his memory. He thought the circus arrangements were tolerably good, though he did not understand much about such matters. He had been laid up a week.—The evidence of defendant and his servants, taken in Christchurch, having been read, Mr. Ollivier contended that the plaintiff had not made out a case. He knew perfectly well what the weather urns in Wellington. Defendant had taken every precaution. Plaintiff had gone with a full knowledge of his risk. XXe was not permanently injured, and was perfectly able to perform his duties. He was so much recovered the day after the accident as to be able to consult lawyers. Even if damages were given, from the circumstances they should Sot be heavy.—Mr. Stafford briefly addressed the Court, contending that Chiarini was ouilty of gross negligence in opening his circus on the night of the accident, and was therefore responsible, and should pay exemplary damages.—His Worship expressed au opinion that the Corporation should have power to see that performances should only be given in proper and safe buildings. He did not think there had been any negligence, but the defendant bad taken precautions. He thought a judgment for £lO 10s. and costs, includin'’ Dr. Diver's, would meet the justice of the case.—Judgment accordingly. WALTERS V. JOSEPH. This was a claim for £ls Is. Bd. Mr. Ollivier appeared for plaintiff, Mr. Chapman for defendant. Plaintiff had been a traveller for Jacob Joseph and Go., at £3oo a year. Through depression in business the firm gave several of their employees notice of a temporary reduction of '25 per cent, of their salaries. Defendant was given written notice while at Wanganui. He objected, and after some negotiations was given a month’s notice, and was paid for the month while the notice was running, and also for the previous month, at the reduced rate. He now sued for the difference between two mouths’ pay at £350 a year and 25 per cent, reduction on that sn m. q'he evidence of plaintiff and defendant having beeu taken, judgment was given for the former, with costs. JUDGMENTS. The following judgments on cases heard at previous sittings were delivered : Mills v. Martin.—Claim £4 15s. The sale of the red lead was completed on the 6th May, several days before the plaintiff entered into possession under his bill of sale. The defendant was debited with the amount, and put down by the original debtor, McCredie, as a creditor for the balance. Judgment for the defendant, with costs. Mace and Arkell v. Hinge.—£3l 2s. 2d., amount of law costs paid by plaintiffs to Mr. Ollivier for defendant at her request. The evidence in this case is so conflicting, and at the same time so evenly balanced, that I cannot possibly arrive at any conclusion. If the plaintiffs suffer they have only themselves to blame for not having reduced to writing the terms of settlement at the meeting of the parties interested in Mr. Ollivier’s office. The plaintiffs must be non-suited, each party to pay his own costs.

Macarthy v. Harding.—A claim for £SO, damages for breach of covenant iu the lease of the Brunswick Hotel—to buy all colonial ale from plaintiff. In this case I give judgment for defendant, with coats. Mills v. Jackson.—£4 7s. fid. In this case the defendant sent an order to McCredie for the goods now sued for, which were delivered in due coarse, accompanied by a memorandum, stating that they were from Mr, McCredie, ironmonger, Lambton-quay. The order and delivery took place on or about the 17th May, the plaintiff having taken possession of Mr. McCredie’s stock, under a bill of sale, before the time of delivery, though the business was carried on as usual by McCredie, who stated that he was instructed by the plaintiff not to allow the seizure to be known, pending some arrangements then contemplated. No invoice of the goods was sent to the defendant in the plaintiff’s name till the first of the following month. Had the invoice in-the plaintiff's name accompanied the goods the defendant might, it he felt disposed, have returned them, but as the memorandum expressly states that they were from Mr. McCredie, from whom they were ordered, and the defendant having no knowledge that the plaintiff had entered into possession under his bill of sale, the defendant is entitled to set off their value against his contra account with McCredie. Judgment for defendant, with costs. The Court rose at 2 p.m.