DISTRICT COURT.

Otago Daily Times, Issue 70, 5 February 1862, Page 2

DISTRICT COURT.

Tuesday, 4th Fkiuuiary,

(Before His Honor John Hyde Harris, Esq.,

District Judge.) It. li. 3IABTIN AND ANOTIIfIU V. J. IILAC.'CLOCIi AND CO.

This was an action brought by Messrs. R. B. Martin and Co. ug.iiuit J. Blaekloc.k and Co , of Invercargill, to recover the sum of £.".0 Gs. 3d , alleged to be due by thy defendants to the plaintiff;.

Mr. Ivenvon appeared for the plaintilfs, and and Mr. J."B. Gillies'for the defendants.

Mr. Gillies submitted that the Court had no jurisdiction, as tiie defendants did not reside in this Province, and tliere was nothing to show that the debt had beeu contracted in this Province.

Mr. Kenyon contended that Invercargill was within the jurisdiction of tlie Court, as the separation of tlie Province did not interfere with the district of tho court's jurisdiction.

His Honor held that as tlie definition of the district in the proclamation expressly stated the " ProvinceofOiago," without naming the bnundariesof i t, tho separation of'a portion of, place:! that portion beyond the jurisdiction ofthe Court. He had corresponded on the subject with the At-torney-General, who was also of opinion that the jurisdiction of the Court over thy Province of Southland had ceased. lie could not dismiss the ease, as he had no jurisdiction to hear it, or to give costs. It must, therefore, lapse. Mr. Kenyon objecting io this course, his Honor agreed to dismiis it without costs, on tiie ground of tlie Court having no jurisdiction, and not on the merits of the ease.

MOOKH V. IJaKNKTT

This was an action brought for the recovery of £31 35., being the price paid by pl.iiutifi to defendant for two cases of harm which he alleged wore inferior to tbe sample, and unsaleable.

Henry Moore examined by Mr. Gillies : About the ISth October last he purchased two cases hums from the defendant. Oue of tlie hams had been shown to him and appeared iv good condition. Burnett said it was a fair sample. The next day he got delivery of them and sent one of the cases to Mr. Shand, baker. He immediately opened his own case, and found they were pcifcctly unsaleable. Mr. Shand's case was in the same state. They were all perfectly rotten. There was not a sound ham in tlio lot. He told Mr. Burnett of tlieir condition the sums day, and he said that if Dunbar, who had introduced witness to defendant, would return his commission, lie defendant would take back one of tho cases. Mr. Shand's case was sent back, but defendant would not take it back.

Cross-examined by Mr. Cook : Only one of the hams was taken out and tried .when he went to purchase them. That one was in fair order, but not of the best quality. It was worth Is. Id per pound. That was about Id. or ad. a lb. less than the usual price for really good hams. Ho did not ask for a warrantry, Defendant said it was a fair sample, aud that the others were about the same, and that he could not expect the best hams at that price. He did not tell witness to examine the remainder of the case, lie said that he would take a second case if they were tlie, same kind, and the invoice was then made out. He paid for tiicin tho next day. AB soon as he discovered the state of his own case, he went to Shand's and looked at Ills case. They were so bad, that Shand at once sent tiicin back. He bought the second case on the faith of the sample. Win- Shand remembered buying a case of hams from Moore in October lust. He bought them from a sample which was shown him. Tlie same day the case was delivered, he examined it and the hums were quite unfit for use. Ho sent them back. They were quite unsaleable. He at once sent thcra back, but the defendant refused to take them in. They remained in his place until the fire, when they were destroyed. . Cross-examined by Mr. Cook : The whole case smellcd dreadfully, He only examined 3of the

Mr. Cook for the defendant, contended that the ham; hail not been sold by sasnpic, and that at the time the plaintiff bought them, ho h.-id an opportunity of examining every ham in the case if lie had wished it. He was also aware that they were not of tho best quality, as he .bought them considerably beiow the market price at the time for good hams.

Mr. Barnnett said there were five or six cases of hams in the place when plaintiff called. lie opened one of the cases, and Moore turned the hams all over and tried three or four of them. lie approved of them, and said ho would take two cases. AVitness then asked him for a deposit, wliich plaintiff left, and took away o.it! of tha hums with him. Nothing had been said about sample. Plaintiff sent for them the next day. lie had never offered to take back one ofthe cases if Dunbar returned his commission. Dunbar was not his agent, but he paid him a commission on the sale. Ho refused to take the hams back.

Cross-examined by Mr. Gillies : He would swear that all the hams were fit for use and were good bains. The reason lie s^ld them at eleven pence when they were worth one and sixpence was that he wanted to give a bargain as he was commencing business. He had sold the two cases at the same time, but he could not account for different invoices having been made out for each case. The price he named to Dunbar was eleven pence, but he arranged with him to ask Moore one and a penny so as to give the difference to him as

Henry Wolfe said ho was clerk to tho defendant, and remembered Dunbar calling about some bams, and the price named to him after showing him the hams was two pence a pound less than that afterwards named to Moore. Moore, when he came, took several ofthe hams out and examined them. He said he would take two cases. Two cases were entered iii the book and their being charged scperatel.v- was a mistake. In the first instance he made out the invoice to Dunbar at eleven pence. Nothing wss said about sample. "I'lie plaintiff siv.y the hams and were satisfied with them. Cross-examined by Mr. Gillcs: "Dunbar examined the hams before Moore came in. One of the. hams was uncovered. Mr. Barncfct was present and the caso wis afterwards nailed up. Mr. Moore examined the hams. The other cases had been sold about the same time and no complaint had been made about them. Sir. Cook then addressed the. Court for the defence. Contending that tho goods had not been sold ■ according to sample, and that no warrantry had ' been given. He then cited several cases to prove that his client was not liable. Mr. Gillies said that iv all cases ofthe sale o eatables or drinkables there was an implied warrantry that the goods were eatable or drinkable, and he cited several cases in support of this view of the case. His Honor thought that as the plaintiff had had a fair opportunity of inspecting the. hams, they could not be considered as sold by .sample or with any warrantry, and he therefore" did not consider that the plaintiff was entitled to recover. He would therefore give judgment for the defendant with costs. Baip.d v. It. B. Martin & Co. This was an action for the value of certain timber which it was alleged had been given to the defendants for sale on Commission, and which they now refused to account for. Mr. Gillies appeared for the plaintiff, and Mr. Kenyon for the defendants.

AA rm. Baird said he was a sawyer ;he remembered bringing up 00,121 feet of timber to Dunedin last year, and as he heard that tlie defendants had an auction iv a short time, he went to them and asked them to sell the timber. The timber had, at this time, been on the beach for eight or ten days. He saw Messrs. Martin & Co.'s clerk about the sale, and he then saw Mr. Martin himself, and then named his reserve price, and gave him a list of the timber. Immediately before going to Messrs. Martin lie had counted the timber and found it all riuht. On the day of the auction, only thirty-eight pieces were sold, at a price below the reserve, and he then refused to allow auy more of it to go at the price, There was -UiC, feet sold. Before the sale he handed over all the timber to Mr. Millar, pointing out each lot, the number of pieces, of feet, and the "lengths. The timber was then left with Messrs. Martin for sale, until some time afterwards, when be observe! that a considerable amount- of it bad been removed. He went to Martin, who gave him his account sales for 1383 feet, mid paid him for that amount. He went down and found that more than this quantity bad been .removed ; tliere wasabo'it 1,187 leot missing at that time. He could get no satisfaction about it from Messrs. Martin & Co., as they said they were not responsible, an 1 tbey had paid him for nil they had sold. He wrot: threatening legal proceedings, and the answer '.riven was that ha knew his own course.

Cross examined by Mr. Kenyon : Some of it had bee i sold and removed before the auction. He first spoke to Messrs. Martin three or four days be .'ore the auction. Ho gave delivery ofthe timber to Mr Millar. He pointed out to him the various sacks. After the auction, Mr. Martin asked liiiu to leave tlie timber with him for sale. He ne.-orwas warned by Mr. Millar that tlie timber was floating away. Mr. Millar had told him so. but (his was after 1,100 and odd feet had floated away. He received this message through a thir t party. He had moved some of the timber af.er he hud given it to Mr. Millar. ' Several paople had told him that it was flouting away, but he had never heard of it until some 1,100 feet hid gone.

Geo.'gc Greenfield remembered helping the plaintiff to stack his timber on tlie beach. It was in the usual place He was present, at the auction sale, and after it be heard "Mr. Martin ask plaintiff to leave the timber with him for sale.

They were standing near tiie timber at tlio time. He hail some timber of lib own with Mr. Mirlin fir sale, and as it was washing away, lie moved it to a different place when told by Mr. Martin.

Mr. Martin also said tiiat Braid's timber was being washed away, but that be was not responsible.

Another sawyer, named Popham, said ha had given timber to Martin to sail, and had delivered it in tlie same place as Braid's, wliich lie believed was tho umal place. Ha afterwards wanted to sell some of ii himself, but Mr. Martin would not let him. This was about 18 months ago. Thomas Braid remembered counting the timber after it was lauded ou the beach, aud ou comparing it wilh the plaintiffs account, the two laliied, both in measurement and number. Air. Kenyon said that the defendants hud never taken delivery ofthe timber, but that the plaintiff iiad simply asked the defendants to put up the timber at a sale, wliich they bad previously advertised, and that when they could not sell it they had promised to do tlie best they could with it by privat" sale. 11. 8.-Martin remembered the plaintiff" asking him to sco some timber for him nt a sale previously advertised. He thought this was on tiie day of tiie sale, but it might have been the day before. A specification of tho timber wii* left with him, mid on the bench tlie reserved price was named. After bis own sale lie oli'ercd Braid's timber, but it did not fetch tlie reserve. He afterwards told plaintiff this, and said iii.-it they might dispose of some of it privately.^ Nothing further was said, except, that plaintiff assented to this. He never took delivery of the timber, nor was it usual to do so under such circumstances. Tiiey only took delivery after there was a special sale and arrangement. Cross-examined by Mr. Gillies : The commission was nearly uniform, but varied slightly, according to tlie trouble incurred. He sold some afterwards without any special order. Re-examined by Mr. Kenyon : Nothing was said about taking delivery. By fie Court: He did not consider that any delivery or lor was necessary when he sold apart of it. He thought the plaintiff was at perfect liberty to sell it himself if lie wished. j

Mr. Miller, the foreman of defendant, remembered heing on the btneh with the plaintiff, but denied that the plaint ill had ever given him delive-y of the timber. He told him that Mr. Martin wished him to sell tbat limber for him at a-:ert iin price which he named. He just said, "there is the limber, and you may sell it if you can". AAltness did not remember selling any of it. He several times told tlie plaintiff that his timber was floating away. He even told him that it was not in a proper place at the very time. Alter this the plaintiff himself moved part of the timber. Gi'oss-exumined by Mr. Gillies :He did not remember having spoken to the plaintiff before the auction. Mr. Kenyon submitted that the evidence clearly proved that tlie defendants had never taken delivery, and that they therefore were npt liable. Mi'.GiHies said that as Commission Agents, and as hiving sold some of that timber, the defendants had virtually taken possession of it, as, if they ha I not taken possession of it, they could not givQ delivery of it to the person to whom they sold it. l B««iifif» i» tM» mm tr*» v«»enr«d «*tS to-day,

JJICIIAUDSON V. -WILSON". Tliis was an action brought by J. L. C. Richardson, tiie Superintendent of the Province, for the recovery of £30, being the amount of four bills of exchange for £20 each, due by tbe defendant to the Government ofthe Province, for money advanced by the Government in payment of the passage money of the defendant and bis family from Britain to this eob.iy. The Provincial Solicitor appeared for the Plaintiff, but the defendant did not appear. Judgment was thereforegiv en for the Government with £5 1 Ss costs. liiciiAimsox V. WAIU). This was also an action brought by the Go vernment for the recovery of £20, being th amount of money advanced by the plaintiff to pay the passage money of tbe defendant's wife, then Janet Sutherland, from Britain to Otago. It was postponed to allow tiie plaintiff time to prove the marriage of the defendant. IUCIIAKDSOX V. WATSON. This was an action of a similar nature for £22, but £10 had been paid in court with a request of further time for the payment of the remainder. The Provincial Solicitor stated the Government were willing to allow this, so judgment for the amount and costs was given on this understanding. CnowiiußST v. Eddy. This was an action brought to recover the sum of £.?0, being amount of Bill of Exchange drawn by plaintiff and accepted by defendant, and since dishonored by him. The defendant did not appear, and the plaintiff having sworn to tbe defendant's signature to the Bilhjudgmcnt was given for the amount, with costs and one month's interest. 11. AVilson & Co., v. Riddle. This was an action to recover the amount of a Bill of Exchange for the sum of £100, which hud been drawn by plaintiffs and accepted by defendant, end since dishonored by him. Evidence of the authenticity of the signature having been given, judgment was given for the amount and costs. Jones, Bird & Co., v. Banks. On the application of Mr. South, the Solicitor for the plaintiffs, this case was ndjourned for a month, on the payment ofthe defendant's costs of the day by the plaintiffs. Clan v. Stone. This was an action brought to recover the sum of £39 and interest, the amount of balance due on a promissory note for £15, given by the defendant to the plaintiff. The case being undefended, judgment was given for £48 155., with costs. Atkinson v. Tesipeuley, Jonks & Co. This was an action brought to recover £50, alleged to be due by the defendants, who had since suspended payment to the plaintiff. The case being undefended, judgment was given for the amount claimed with costs.

The Court was then udjournsd till 11 O'clock to day.