SUPREME COURT.—CIVIL SITTINGS.

Otago Daily Times, Issue 622, 15 December 1863, Page 4

SUPREME COURT.—CIVIL SITTINGS.

Monday, l_th December. (Before His Honor Mr Justice Richmond.)

His Honor took his seat at 10 o'clock. f William Bastings, J. Grant, George Milner, Alexander Reid, were directed to be summoned to appear at 10 o'. lock on Wednesday morning, to show cause why they did not attend at the Court ia answer to their summonses as jurors. vVilliim Armstrong claimed exemption from service as a juror, on the ground of being a volunteer in the Artillery Company. His Honor said at one time he was pleased when exemptions, on the grounds of being Volunteers were claimed ; but he had been credibly informed that many persons had entered their . name. Volunteers merely for the purpose of avoiding serving on juries, and had never attended drill or any meeting of the corps. He was therefore disposed to be more strict than heshould otherwise have been. In the presen^jjj^^^^ stance, he would take an affidavit from MijflHfeH strong, and did not intend that his ren!MHQ^H should apply to him personally. They merely^^^ had a general bearing. He did not know that he could recognise the Artillery Company, as it was not gazetted, and the Gazette was the only official record of its existence. SMALL V. POLE. The plaintiff claimed compensation for the lossof a horse, which had ensued in consequence of the alleged carelessness of the defendant. The damages were laid at Ll2O. Mr Barton, instructed by Mr Gillies, appeared for the plaintiff, and Mr Prendergast for the defendant.

The short facts of the case, as stated by the counsel for the plaintiff, and corroborated by his evidence, are asfoltows: The plaintiff, David Small, a carrier, living-at' Wellington on the North Island, on the 12th December last shipped two horses onboard the steam vessel Queen, for transmission to Port Chalmers. The .e'fendant, Capt. David Pole, was master of the steamer; and the plaintiff came to Dunedin' in the same vessel. The horses arrived safely at the Port, and a" lighter or punt was engaged to convey them on shore. It was. necessary in transhipping them from the Queen to the punt to use slings and - ta.lde, acd the punt not having any, those belonging to the Queen were put in requisition. The first horse was successfully lowered, but the second, being a heavier animal, the tackle broke, the horse fell and broke both his hind leg?. The slings of the punt that conveyed the horses to the steamer had been used in shipping them at Wellington. - The plaintiff said he could readily have sold the horse for X9O.-

John Brown, a seamen on board the lighter engaged to convey the horses on shore, stated that the horse was lifted by the steamer's crane, and the bight of the rope which was attached to

the hook of the crare broke The horse fell, ' ♦? *V, as convey.don ~'.h_j-..' Ue did- not consider ; '«»Si i. l r„ pc W6S, cc lual to-CGiTjiiig such a horse, and he had seen hundreds safely lowered. The snips tackle was invariably used onsuchcccaSS im ivht?! ,carried no tack,«- Tl>e horse Z■ «* » a,? d taken on sllore a«d buried. The n^lT Paid one-guinea for its being taken away. Ihe accident could have been avoidtd with common care. . Captain Frederick Bowden, part proprietor of _n£- pU£ •'jl J 0 which *he horses were lowered, w_v7ci hf.f acts stated fey the previous witness Sivf y C?,: recfc• The clings were an old pair which ought not to have been used for valuable horses. All ships ar,d steamers accustomed to convey horses carried slings for ths purpose of -™a£p'ng them at Port Chalmers. Mr Prendergast moved for a nonsuit on account of the facts proved not agreeing with the declaration. The first couut averred a promise of sate delivery. Now, horses were live animals and unless m case of a distinct promise, carriers did not contend to deliver live animals Fafely. J he next count was afailare to deliver the horses. It stated "one horse was not delivered—but one horse was delivered. Then there was no proof of a contract or of payment of freight, and there was no proof of negligence sufficient to render the defendant liable for the^lamage done to the horse. •Mr Barton repliedll!>^ I the law with regard to hire animals only applieOVo their dying from ■ natural causes on the voyage. With regard to the argument of no proof of contract, if a person stepped into a car and was conveyed by it, the presumption was, that tho fare was paid and so with the horses—-the fact of conveying themim- ■ .plied a contract that they were conveyed for hire and that-freight bad-been paid. And by Wilson and Britt it was plain that even if a duty were gratitipu-ly ..performed, the party lindertakinoit was bound to-exercise due skill -due skill had not been uted and therefore defendant was liable'."^ • ■ Mr Prendergast addressed the jury in defence, and_ urged that it was not fair to assess damages against defendant in the absence of evidence tbat he was aware of the horses being on board of the Queen—that because- the lighter had provided slings at Wellington they were bound to do so at Port Chalmers, and the light* r provided for the conveyance of the animals on sljore was not proper for the work. On these grounds they should find for the defendant. 7 His Honor, in summing up the evidence, said ' that he was of oj-inion that the horses having been received on board ;the Queen they must be considered as having been. taken for hire. The :- question must be:left to the jury with regard to : whose duty it was to provide, slings,' and if tbey were sufficiently safe for the purpose, and if they .found the defendant liable, it was for them to ; sta'e the damage. ; The jury retired a short time, and on their return awarded; tD.vth'e plaintiff damages to the ' amount of L9l. ■

HIGGINS-V. LTJOKIES. This was an action brought to recover the sum v of L9O and interest stated to be due for balance of account for money advanced on loan ; comprising L4O on an I O U, at the rate of Ll per week interest, and a further sum of LSO advanced for oats purchased in-Melbourne. Seven shillings was paid into Court, arid L 44 13s bad been paid ' for interest. The defendant pleaded not indebted beyond the amount paid into Court. On -the jury being sworn a juryman named James Wilson White objected to <ake the oath. His Honor directed that he should make a declaration in the prescribed form for persons conscientiously objecting to take an oath. The witness refused to make an affirmation, and declared all that he could say wes " yea" or " nay," which was all that were allowed to be done by Scripture: His Honor said that the laws had provided the declaration for the benefit of persons affected with weak- consciences, and he had no power to ' "do otherwise thau.commit the juror for contempt if he continued to refuse after, he had heard the words-read to him. The-Juror: "Neither the Queen, nor any Bishop nor Archbishop has any right to dictate to me to do what the Lord Jesus Christ has forbid."

His Honor: It is no-use arguing with me—the law is above me. I can-only administer it. The form of the affirmation was shewn to the juror i and he proceeded to" argue it wag altogether un-necessai-y to be made by a person who wished to speak" the ti nth, . The Judge: I tell you it is necessary. The Juror: It is no evidence that I am speaking the truth. It only goes for -what it is worth. His Honor read the words of the affirmation and asked of the juror if he did not feel bound to fulfil the obligations prescribed. He said he did as far as he was able and took his seat in the jury 7 box accordingly. """ . Mr Barton appeared for the plaintiff, and Mr Cook for the defendantsMr Barton having stated the case, Thophilus Higgins, the plaintiff, said he was Proprietor of th« Dunstan News, at present. In '"-eto.er last, he was clerk to John Lukie and William Lukie, his father, who carried on business in Dunedin as corn and produce merchants The defendant Mr Lukie requiring a little money, plaintiff lent him L4O on his 1.0. U., on consideration "of receiving interest at the rate of ote pound per week. It was to be repaid in a fortnight. Ten pounds of the amount was giveu to John Lukie by authority of William Lukie. and the remainder was given to William Lukie himself There was a subsequent transaction in oats. The plaintiff b~y- desire of the defendant advanced ;LSO for some "oaiTbcught in Melbourne. The'latter complained of the oats being oi bad - quality, arid plaintiff agreed to allow L 5 on them in consideration of the account between them being settled immediately. It was agreed that the LSO should be permitted to stand as a loan. t on condition that Ll per week was paid for the use of it. He had-receivcd on account of interest at various times, L 7, LlO, and L 27 33s,'for . which receipts had been given. The whole "*7. amount received on account of interest was - ' 144,135. James Beid said, he -nas bookeeper to the Lukies a short time since, but was at present out of employment. He recollected receiving the oats, and never saw a worse sample. This closed the case for the p 7aintiff. Mr Cook for the defence, called William Lukie, who said he had never been in partnership with his son in business. His son was in business in George street, but he did not like it, so he (the witness) took it off his hands. He would hot swear that the-signature to the I. 0. U. was not his, but he would not swear that it was, and whether it was or not, he did not fill up .the document. He never borrowed L4O of the plaintiff. His son borrowed L4O of him, but he himself never had it in his possession. He never signed the paper, and could give no account of it. He had been in the habit of signing orders, and leaving them blank, to be filled up "■ when goods were required to be purchased. ..... His Honor said .r.s fraud was not imputed in the declaration for the defence, that evidence must not bereceived. The witness-acknowledged to having sent for the oats, but had never agreed to i pay one pound per week for the advance of LSO, He did not consider he;':.owed plaintiff anythine* in regard to the oats^: The agreement was that he. should pay so much a bushel tor them. When he took the store othisson.it was,empty. There was no- ■-,» -stock.. John Lukie, borrowed some money of defendant, •: about 12 months ago.7 He got part of the money and the remainder was paid to hh father. He could not recollect how much his father receired. He had it given, to hiiri -about a fortnight after he received j.the first instalment. Higgins was in his employ when he was in business in Georgestreet. His father carried on the business in George street after he had left it. He transferred the business to his father; the consideration was that his father had lent him money to carry on business, and he took the place for the money lent him. It was not an empty s'bre. There was some little stock in it, enough to carry on business. .Mr Cook addressed the Jury and said there were only two points to which he would ask their attention—the loan of L4O and the question of tbeoats It was one of those unhappy cases in which the evidence was directly contradir.t-ry., He remarked on the improbability of the loan having been taken on such terms as was represented and condemned the rate of interest as -usurious. He contended further that the T.O. C. was no proof of the money having been lent to the defendant, and that it had in reality been lent to defendant's son, while, with resrard to the oats, it was plain, by the account rendered of sums paid, that with the seven shillings paid into Court that account was settled. ■Mr Barton replied, and remarked that if the terms ofthe contracts had been observed the interest would not have appeared so enormous as it did after having been allowed to accumulate for such a length of time. The first loan of L4O was borrowed for a fortnight, only, and the second amount was also to have been repaid in a short period. If that had been done the remuneration wou'd only have been a fair one for an advance, for a short time. Hereraarked upon the discrepancies in the evidence for the defence, and urged that the 1.0. U. expressly stated that the money •jras lent to the defendant. It was therefore an unanswerable proof ofthe money 'haying been lent to him, and that he must blame himself for the heavy amount of interest which had accumulated. His Honor summed up the evidence. The jury retired, and after consulting together about half an. hour, they returned a verdict for the plaintiff for LBS 10? 6d, on the following grounds-.—lst. That L4O with interest at the rate of one per week was due, the interest accruing from the date offthe^ loanto the

filling of the declaration. 2nd. That interest at the rate of 20 per cent, per annum was due on LSO from, the time of its being advanced to the same period as the other. 3rd. That ihe amount paid (L 44 13s) tcg-tb.fr with an allowance- of L 5 for inferior oats, and 7s paid into Court formed the repayment of the principal in the loan of LSO. The Court adjourned to 10 o'clock this day. \ Cases appointed for this day (T.useday) ':-- Williamson v. Richardson. '-, Z 'V Paterson v. Quick. ----v".-.... '•:- .■•V *~ Rattray v. Moses, . :_ •