RESIDENT MAGISTRATE'S COURT.

Otago Daily Times, Issue 112, 26 March 1862, Page 4

RESIDENT MAGISTRATE'S COURT.

Tuesday, 25th March, 1862. : (Before Alfred Clietham.Strode, Esq., It.M.) Drunkenness.—The undermentioned persons were fined 205., or in default, committed for 4S hnurs : Samuel Oorrie, Thomas Trancis, David Steele, Richard ilutahins. Alex. Micaaughtea, Siinuel Curby, William Sanndors, and Robert Rainbard. Assault.—(Jeorge Martin was charged witli having assaulted the police, between twelve and one o'clock, yesterday afternoon, opposite the Provincial Hotel. He was fined 40s. and costs, or in default, committed to gaol for 14 days. OB3oEN'ii Lanodaos.—Samuel Ourrie was charged by constable Macfarhme, with having used profane, and abusive language in High-street, opposite to the Arcade on the previous day. He was fined 5.1. and costs. Assault.—Daniel Sullivan was charged with' having assaulted constable James Connor, on the previous day. He was fined 40s. and costs ;or in default, committed for 48 hours.

Nuisances, —[n the case of Henry Jones and Co. Mr. Nimon said he had inspected the premises of tha defendants on the previous day, and believed that they would be in thorough repair by Friday next. Adjourned to ths 28th inst. Mr. Nimon informed against John Flanagan for having tolerate 1 a nuisance on his premises, but now informed the Bench that the defendant had vacated them, and they were now in the occupation of another party. His Worship directed that a summons should be taken out against the party now in possession. In the case of Robertson and Bennett, the nuisance was reported to have abated; and in the natter against George! Cook, a similar report was made. In both instances, the cases were dismissed. John Sultzer was fined 10s. aud costs, for suffering stagnant water, aud refuse to remain on Ms premises. Mr. Nimon stated that the case was tried about a fort : night ago, when the defendant was fined ; but the premises were still in the same state.—One or two other cases of a similar character were remanded to Friday next. -■■■'- . Discharged.—Patrick M'Loughlin charged with stealing a gold watch, was released from custody : the evidence against him being unequal to a conviction ; the witness in chief being a French lady, residing in Princes-street, whose testimony was obscure, and inconclusive.

Pkxtv Larceny.—Alfred Mitchell was informed against for having on the 23rd instant, feloniously stolen a silver watch and chain of the value of 20s. Mr. Premlergast appeared for the prisoner. William Wallace Hughes, ou oath, stated that last Sunday night, lie stopped at the Spring Bank Inn, and went to sleep in a room where there were about six or seven other persons. George Ho well, who described himself as a watchman ou the manor, cave evidence to the effect that he slept in the same room on the night in question; and was disturbed by the antics of the prisoner, who {jot up from his own bed, and commenced fossicking about the place. lie'asked him what he was up to, 'and' the man instantly went into his own bed again ; but, in a few minutes afterwards he got up a second time, struck a light with a luciferinatch, and- began to search the chamber. The next morning, witness, haying his suspicions aroused by the extraordinary-behaviour of the prisoner, interrogated the whole of the lodgers as to whether they had lost anything : but, it appears that nothing was missed then. On Monday afternoon, however, witness observed the prisoner in possession of the watch which Hughes, a laborer, residing at East Taieri, identified as being his property. He said that on Sunday night he "turned in"' with his trowsers on; and the watch round his neck ; but it must have been taken from his person while asleep in the room, by the prisoner, when he was noticed by Howcll to be so busy on the alert. He valued the watch at £8 :at all events he gave that amount for it, and would not now accept that sum for its' purchase. Mr. Prendergast disputed the jurisdiction of the Court, on thu ground of valuation of the watch :it was stated on the face of the information to be worth 20s : but the principal witness now swore that he gave £8 for it, and would not take that figure for it now. His Worship over-ruled the objection, and expressed his determination to, deal summarily with the case. Mr. Inspector Weldon applied for consent to amend the information, but this was not acceded to. Mr. Prendergast in addressing the Bench said, that the Court was exceoling its jurisdiction, and disparaging the defendant's liberty, by deciding on the merits of a case, which ought to be sent up to a higher tribunal. He could proJuce substantial evidence' a? to goo;l character of the prisoner; and, in the event of any conviction, should appeal against summary judgment to the ruling- of f lie Court above. Afte,r some conversation, aud further argument, the case was adjourned to Friday for the production of evidence as to the prisoner's character. Norman v. Reid.—Adjourned,' for the presence of a witness. Civil Sinu. Douglas v. Hastifi.—ln this'ca«e James Douglas summoned Robei t Hastie for payment of the sum of £-20—being commission upon the sale of 'property and advertising, of an estimated value of £1000, at 2J per cent. Mr. Prendergast appeared for thn plaintiif; Mr. Rawlins attended for the defendant. Before evidence was called, Mr. Preudergast applied for an adjournment to enable his client to procure the evidence of Mr. M'Landress. After some discussion, the Bench remanded, further hearing, until Friday, the 28th current. Pollock v. Portman.—No appearance ot tho_ defendant. Service of summons on the oth March instant was proved. Plaintiff claimed payment ■of£ >. 3 udgment went by default, in favor of plaintiff for £5 and & costs. lldke v. Hall.—ln this case William Hall, the defendant, though not present, had addressed a note to the Clerk qf the Bench, admitting Ms liability,- for an account staged at^£B 14s.,."but he wished for time to enable him to liquidate the de'>t. Charles fluke, the plaintiff, stated that he l»ad already allowed grace extending over two years and three months ; but the amount was not yet paid. His Honor observed that this was a long time to be allowed to payso small a sum, and pronounced judgment for the plamtitt m £3 145., together with costs. ' ■'. ' Davidson and Black v. Henderson.—ln tins case William Davidson and James Black, sued Win. Henderson for the recovery of the sum of £4 125., claimed on the construction of a chimney. Judgment for plaintiff £4 125., together with costs. ' Holland & Murcitt v. Wilson.—ln this oase there was no appearance, and it was accordingly dismisssed. _ Bateman y. Haknett. —George Bateman summoned Jeremiah Harnett, for payment of £2 12s. 6d. The Bench said the particulars of the demand were for work and labor done, hi repairing and fixing a tent frame, building a kitchen, • &c, for three days and a-half. Mr. Johnstoae appeared for the defendant, anil pleaded not indebted ; his client did not-know the plaintiff in jjhe transaction; and only rec.ognis.ed a person calledßuxtbn, who, fiadbeen engaged to gxocute the work. After hearing evidence,: His Honor remarked that he clearly recognized- Bnxton and not Bateman, as the party who had been principal in the contract; he therefore. ruled the proceedings to have baen .commenced in a wrong way, and, under the circumstances non-suited the plaintiff, Mr. Johnston here tendered to Buxton the sijin_ of £2 Bs. in payment of an original debt amounting in full to £2 155., of which 7s. had been paid on account. The tender was rejected by Mr. Buxton. Another ease of a precisely corresponding character, in which one George Hanjmond appeared as "■ plaintiff. against the same defendant, teriniiujited ju jj nqnsuit. His Honor told the plaintiff that if he Had any'yajid, claim at a.l], he must evidently lay it against Buxton. Murray- V. NATHAN.-dßobert- Murray sum-? raoned Hyara Edward Nathan for..£l:B'. !4s 3d, of which the "sum of £5 O.s 9d had been paid into court, claim on goods delivered. Defendant admitted a portion, mid, as regards tjje remainderp pleaded " not indebted." The items of acoqijat disputed related to one case of anchovies, ponta.ittg.four. draen, at 15s per dozen, and valued at £3, alleged to have been delivered on -the 21st October, .Defendant objected to this item, on the grounds that he did not receive the-a.ii-" chOvies. Another, item was a disputed case of wax vestas estimated at a valuation of £4 4s. The cvi-; dence of Mr. Casper was taken to the effect that he recollected the defendant purchasing at Bing's auction mart, in April, 1881, a case of wax vestas, half of which the witness ageeed to take, and the remainder was bought by the plaintiff, to whom- deponent saw them deliverea. The case was remanded until tomorrow, for the evidence of Mr. Murray's carter, as to the alleged delivery of the anchovies, and for the testimony of Mr. Nathan's domestics per contra. Meiirybbw v. Cooi'BH.—ln the case of Henry A. Merrydew against Thomas Cooper, there was no appearance, and it was accordingly dismissed. Dobson v. Mum.—John Dobson sued Robert Muir for the sum of £19 12s Gd. Plaintiff, in this c;ise, is a mason, and had been employed by the defendant to construct 13 yards of a' drain-m Pnncosstreet, at the rate of 14s per yard, running measurement. Defendant disputed the day labor throughout ; admitted the sewering was. done, but nlteed Wai t.he"pitching! and''kerjnn'g were nof 'complete. The thirteen yards U 'drdlnjhfe'liridf not been done in a workmanlike manner.' 'An' agreement was put m but had'been so badly written, His Honor remarked, it was very difficult to read it. The items in the account were as''follows:—l7 yards 2 ft. of kerbmsv at Gaper vafd ; 14 yards of pitching, at Is 6d_per yard 11 Ws of rubble, at Is 6d per yard j besides labor. Gred t wps giyeh fov £\ % rfife}yed as cash, ori'aci count. Defendant inarmed tl}e court that plaintif was in partnership with a man named M'Dpnald, whp had taken the job off himself, and he (defendant) could not admit any part of the claim, as it,would rer quire, at least, £14 to flnish the work, The furthe, hearing of the case was adjourned until to-morrowf at eleven o'clock in the forenoon, for the evidence o a witness to prove the alleged partnership.Jakvis v. Staples.—No appearance Of either party. Case dismissed., .'; " "><• "■"■■'"' ':■ "i,, ." Davidson akd Another v. Dickbnson.—The plaintiffs sued the defendant for ';■&: claimed on the construction of a single cliimney erected upon their premises. The sum of £5 was admitted, the defendant averring that sum was the price, or cost, agreed upon. The chimney'measured- about 10 feet high.,' "His Honor remarked he should like to have evidence as to the value of, the work. |The case was adjourned

at a quarter to throe o'clock, for the testimony of a witness as to the vn'ue of ths work in question. Judgment was afterwards given for £i, together with costs.

Hewry v Norton.— In this case Samuel Hewry summoned Thomas Norton & Co. for vioiathi" the terras of an agreement. Mr. Pre^idergajt fb- the defendant, argue.l that bis clients were not liable, and." that they had entered into no ta take upon any particular day; and, further,1' that if. there were a liability of an v sort, everything went to prove that the chain of evidence was incomplete; besides which there exists a general doubt as to the legality of this proceeding. The Passenger and Shipping Ael= provided peculiar jurisdictions for ca.->M of this kind. The magistrate who presided here is a sta>l\Me judge ; (Mid the law cxp>es*ly stated that a pe.-nl:ar jurisdiction such as tlii3 .should l<e excluded. ll<-, however, objected having an i.=sue with the ji'ii i';ction of this Court; this was a Court which e\.-t.': liy statute ; and, he apprehended, that when umv :ho Passenger or Shipping Acts, a person prefeinM to take his case into a couriof higher jurisdiction, where there is a jury, and where there are judges of large 1 experience and legal education, that that pihilege should not be taken from him.

. Mr. Gillies, for the defendant, replied : The leansc-d gentleman said there could exis-t no measure of doubt as to the jurisdiction of the Court. The doubt raised by the opposite side was very ingenious, no doubt, but it-was one of those ingenuities whereby he attempted to cut them away on one side ; and when it wend to the jurisdiction of this Court as a common contract, he says, "Oh, but there is a Passengers' Act to be met! " The words of the Resident Magistrate's Act were perfectly clear, for they state that any claim, or demand for money, can be brought before it.

Mi-. Prendergast contended that this was a "court not known to exist at all in England; for this was a court where two judges sat, or a police magistrate ; and in civil cases, according to theterma of the Act constituting this Court, there remains no appeal. He maintained that this Court was a Court of a roost stringent character, especially against a defendant, because it did not leave him the right of certiorttri,' or of appeal; a defendant, by want of cr.rtiorqri has no power to take this case on proper evidence or affidavits, into the Supreme Court; neither has he the power, according to the reading of .the, Resident Magistrates Act, of appealing to a bench of magistrates, or to the court above, from the decision of the Bench here. He regarded this as a very valid objection. He put, really, before the Court in a spirit of due submission : nor in a captious temper to cavil at incapacity of proper ruliug, but he advanced it as a reasonable lenal argument. Mr. Gillies observed that the terms of the Passenger and Shipping Acts were intended as protection to passengers against shipping affeuts, and were designed to give them surer rpmedies than they formerly possessed. Mr. Premlergast said that in England, all parties were allowed to appeal from the decisions awauled by inferior courts of jurisdiction, and all cases, com- ■ mercial or otherwise, were never intended to be settled withouht right of appeal. In the present instance, there were ten cases • against one firm, in which the amount stood at 4J20 in each case; which would realise £200 ; and if there had been seventythree passengers on board this ship, the Briton, these seventy-three people might obtain a verdict againtt the defendants, which would involve the heavy penalty of twenty times seventy-three. Viewing this liability as a case of extreme hardship, he would put it. to the Bench whether it would not be more satisfactory that a cose of this kind should be tried where there could be no dissatisfaction, to wit—before a judge and jury. He again argued that this court was not a Court of jurisdiction similar to any that existed in any portion of the British realms, becaute the cases which came before the Court here were casps without appeal. He could not recommend Ins client' to try whether this matter was ultra vM-n, or to combat the right of upppal, because it would be too extravagant for one individual to venture into a controversy between the Council of New Zealand, jind the Imperial Parliament j but he would say, under the circumstances, that it was a case for dun consideration; and he trusted he would not be considered impertinent in thus submitting his views as a lawyer, on the attention of the Court. IJis Honor said ho was perfectly satisfied as to the extent of his jurisdiction. There was no doubt but'that, under the Act, lie had jurisdiction ; and therefore, he should exercise it. At the same time, his Honor remarked, it would have been much more witisfactory to himself if the case had been tried before the Supremo Court; but as it had been brought before him, he should entertain it; Mr.'Gillies observed in opening the information, that this case was precisely similar to that which was heard last week.* [Ses Milbourn v. Norton, published in the Daily Times of Monday the 24th in&tJ He, however, had to inform the Court, ,that immediately on that decision being given, the remainder of the passengers had applied to the defendants, and they had refused to pay any attention to their demands, or to make any arrangement with them for the restitution of their passage money—nay more. —instantly upon hi:j Honor's recent judgment being made known, Mr. Norton took horse, and rode off to Port Chalmeisforthwith, where he employed a*steam-tug to tow tl.e Briton out to sea, with a large number of passengers ■ on board, but without any apparatus for cooking—so as to prevent any of the passengers instituting further. claims against him. The evidence he had to adduce would be precisely of a corresponding character to that elicited on the former occasion. The learned gentlemen regretted that the time of the Court should ' be re-occupied by a repetition of evidence. This case was exactly the same. Plaintiff had engaged a passage per Briton for' Auckland. The vessel did not sail according to the date of her appointment, and upon proceeding on board the vessel there was no berths for, the accommodation o'f,'tlig1 passengers'; no cookjngutensijs, and no sijniciency of provision". Thp Elain'tiff had applfgt! tq tl}^ defendant'lbr^is njohgy'fq ■■ c returned, but this jjful been refqs§d- : Mr. Prendergast;, for1 the defence, now contended.; that this case was dissimilar from the last (alluding to Milbourn v, Norton), inasmuch as here there wiis no violation of contract, seeing that the Briton, not hay.i ing sailed until Saturday last, the plaintiff'had every" opportunity of going on board the previous day, in stead of running about town and fishing up lawyers to institute frivolous prosecutions upon imaginary and untenable grounds. As to the alleged deficiency of provisions, there Was no valid evidence of such'being' the case ; in fact, for aught he knew, the contract be- '■■ tween the plaintiff and defendant might require -tb c passengers to provision themselves. With regard to the accommodation, he was prepared to show that there was as much accommodation on board the Briton as is usually provided on vessels making similar voyages. •Thomas Norton being now sworn, deposed: That he was agent for Mr. Merrydew, who was owner of the Briton, but lie did no|. know the, captain. Ilrj knew that tlje. Bntqn'sail&Toniipi: vfjyiige'liist'l?rjdny; Witness had nothing whatever to' do with the inspect tion of a vessel before sailing. He had positively informed the plaintifF and other passengers that they were fools to go. That Coroinandel was all a. hoax, and that if they returned to his office he would give them back their money ; adding that, had he been desirous of realising five per cent, out of them, all he had to do was to encourage them to proceed, and then to despatch a clerk out of his own office to Auck laud, to bring or send them back again. ■Mr. Prendergasfc—According to the shipping trade of this town, how far is an agent liable 1

Mr. trillies-4[ object to that question. Mr! Prejido;fgast>—Tfte,nVhat r are the 'genera] clvjt|eg of an' agent 1 ~ " •■-••■■ - Witness—To soil passages acconlingto instructions. Ho (Mr. Norton) had always expressed:}'desire that this case should nqt go on technical grounds, but upon its intrinsic merits, as sustained by inconvertible evidence, Henry Arthur Merrydew, sworn, deposed—That 1)0 is. a. shipping aguht, and agent for the owners uf the Briton, W. I', Jones, of ilelbonrup, and Jtv, Bird. Witness had a promise of being » quartop owner, but lie could not swear that he was go yet. lie had seen the vessel prior to her departure, aid. • knew that the following stock was shipped : 2 sheep, 3 casks of hoof,. weighing 8 owt each ; half ton biscuits, 4 cwt flour, half a *chest of tea was put on buard, 70 lbs of coffee ; pappar, mustard, oud salt, a fair quantity ; ho could not exactly say how much ; '2 firkins of butter, 2 cwt of sugar, 50 lbs of raisins, 50 lbs of suit, 1 ton of potatoes, 1 cwt of rice, 1 ewi of pea«, and 90 lbs of fresh meat stands at the bottom of the list, but witness was under the impression it • was consumed before the vessel proceeded to sea. He bslicved that ten or twelve days constituted an average passage between Dunedin and Auckland: The sheep put on board the Briton weighed S7 lbs each. The opinion of Mr. Dove (Lloyd 1:; agent) had been taken as to the cooking apparatus, and was considered to be satisfactory. During the Briton's detention at Port Chalmers^ the wind was adverse to her proceeding out to sea. Samuel Simms, a, clerk in the defendant1!! office,' identified a ■ certificate shown him (5y iMr. Preiidergast, to the" oHWfr that forty three passengersl'"might find aCeomm'odatiok' oii fooard-tfio Briton. He characterised the • plaintiff's conduct a3 having been excessively hnpertiu'ent; he had taken a passage for Auckland, when" -witness told him" that; . should he ever change his mind, and not wish'to "go; >he (witness) would return the money. No applicatiprt . was made for the passage money to- be restored until after fyel array!}l of unfavorable news concerning tnq Ooromandergoldilfi|ds. Capt. Johnston, of tl|e Sophin, being swprn, denospd that he had been on board the Briton ; and he know the galley, which he had offerpd to exchange for with the master. He believed it fully competent for 43 passengers ; ho had provided for 150 persons with a" worse store. The wind blew during Thursday, Friday, and Saturday from the N.E., and was adverse to the departure of the Briton. Another witness, by name Phillips, was next examined : after which, the testimony of another party was taken, (but whose name was not disclosed) to the effect that he assisted to convey 1350 galls, of water on' board the Briton; as well as materinl for fitting up 72 bunks'; '

- Mr. Prendergasfc wished to Lave the evidence of Captain Dove, -who is Lloyd's agent, as to the charao-

ter of the galley on board the Briton; but, it .was fought t'xp'w. icnt to adjourn the case expressly for that purpose. His Worship remarked that tliia was an important case, mid involved some intricate points of law, which he should whh to have argued. Mr. Prendergatt asked for time to consider, and prepare" argument. Jlr. Gillies wished to proceed at once. Mr. Prenderga^t .said there was a very important point of law tii be argued, and-the Court, after hearing it. might probably wish to adjourn ; (and then having conferred with the defendant;) His client had instructed him to say that there were ten or twelve cases pending against him of a similar nature, and it time were allowed to his counsel to argue the reserved points of law. he was willing to take His Honors decision in this instance as binding on the remainder of the vases. Mr. Gillies still wished to proceed to legal argument at once; but, after some conversation, it was agreed to adjourn further proceedings to half-past nine to-morrow morning. . . The Court rose at twenty minutes before six o'clock. .