WEDNESDAY, 29TH NOVEMBER.

Otago Daily Times, Issue 1225, 30 November 1865, Page 5

WEDNESDAY, 29TH NOVEMBER.

(Before A: C. Strode, Esq., RM,J CIVIL CASES. (EXTENDED JURISDICTICW.) William Talboys, as agent for Joseph TackweiJ, v. James Gardener.—Claim of LIO 45., for rent of a cottage in MorayPlace. The defendant did not appear, and the plaintiff, in answer to the Magistrate, said be did not know whether the cottage was let under a writu-n or verbal agreement; pf whether there was any agreement. The Magistrate said it was incumbent upon the plaintiff to prove his case thoroughly. Plaintiff nonsuited. A. Briacoe and Co. v. Cornwall and Black.—Claim of L2B 4s lOd. Aeljourned by consent to the ]3th December. A. Merctr v. John Tuck—Claim oi LSO 5s 6.1, for sundry quantities of proccry . poods supplied. Judgment by default for I (he pkintiff with costs. James Mouat v. William Puddy.—Claim of LIOO, for damages sustained by reason of the plaintiff having been evicted by one James Welsh from the use and occupation of a blacksmith's i-hop demised by the defendant to the plain" iff for one year; such eviction being a breach of the covenants of the lease. Mr Ilaggitf, ser.r., appeared for the plaintiff, and Mr Bniton for the defendant. The plaintiff staUd that the shop which lie rented from the defendant was previously occupied by James Welsh, who had gone to Hokitika. Previous to entering into the written agreement for the renting of the shop, the plaintiff came to a distinct nndcrgtandipg with ihe defendant tha the would sign ihe deed, if the elefendant would guarantee that be would not be disturbed in his possession by the previous tenant, should he return from Hokitika. The deed of lease was put in. The plantiff had not been long in possession of the shop, nnd hal expended a considerable sum in fining it up with furnace?, &c, when Welsh returntd from Hokitik.i, and took possession—saying that the shop was hi*, as he had a nine years' lease of ir, ami he never authorised the defendant to let it. The plaintiff would not po out of possession of the shop, until he waß i.foinud by the defendant that Welsh ha«l the prior claim to it, and Welsh forcibly ejected him In cross-examination, it appeared thct on the morning following t: is ej ctment the plaintiff commenced \v( rkiug as Welch's servant. WtUh was called, and stateel that he held the land on which this shop was luilt under a nine years' lease, and he bui't the shop at a cost of LBO. He did net produce the lease, as he was not aware that be had received notice to produce if, not being able to rend. When he returned from Hokitika and found the plaintiff in possession of his shop, he fe;ld the plaintiff that he must no out, anel he laid his hand upon the plainliffs Ehoulder, when l:e walked out. Mr Ii;rlon moved lor a nonsuit, on the ground tlat this clearly wasa question of title, and the .Qourt had no jurisdiction. The Magistrate was of opinion that the present case was escnsially tnc where a title to land was in dispute, and he was prohibited irom dealing vi h it. Plaintiff nonsuited. John Brcpk v. James Forrester.—Claim of L.G2 7» 3d for elr.mages sustained by reason of the refusal of the defendant to deliver 49 tvns 17cwt. 3qrs. 'Jolhn of potatoes1, the balance of a parcel of 100 ten* I.argninod to lie fold by the tfefendun* lo the plaii.tiff. Mr Ilajreitt, sen., appeared for the plaintiff, and Mr Barton for the dtfe-ndant. The plaintiff stated that on the 25th July last he bought from the defendant 20 toiis of potatoes at 'L 35s per ton, according to a cample aftervvareta to be j;roeluced. The sample was produced on 'be Slit July, and wns a good sample of Tnieri red po'atces. It was approved of, and the difendanl commenced 10 deliver from <lay to day. The defendant (old the plaintiff previously that be hnd purchased 100 tons, and on the 31st July the plaintiff agreed to buy the balance of the parcel e>f 100 tons from the defendant, at L 3 5s per ton, and the defendant continued to deliver. On the 2Gth August the defendant tod the plaintiff that he wus unable to deliver the full quantity of 100 tons, and that he had only eight tons remaining. After some conver-ation, the defendant positively refused to deliver any more potatoes, and on the same day tha plaintiff sent in his claim, to the defendant. At that time the price of potatoes hail risen to L 4 10s per ton, and the plaintiil now sued for the difference belv-een that sum anel the price at which, he had purchased the undelivered quantity of potatoes. In cross-examination the. plaintiff saiel he made out his claim against the defendant on the 26th August, but lie admitted that it might have been on the 28th before he sent it to the defendant. Somewhere, abcat that time there was a fall in the prite of potatoes in the marke:t. Samuel Boyle, potato merchant, proved the price of-potatoes' on the 25th July to be L 3, and ou the 25th August the dealers' buying price to be L 4, and the selling price L 4 I.os. The defeadant's statement was, that on the 25th July lie purchased 20 ton* of potatoes from James Todd of ; the laieri, with the option of taking other 70 tons. On llie same day he met the plaintiff and mentioned in a conversation that be had about 100 tons of potatoes, when the plaintiff agreed to take 20 tons, at L 3 ss. The defendant went on delivering potatoes until he had delivered more than 20 tons, when he paw the plaintiff, received a cheque for what i had been delivered, and asked i£ he would go on delivering. The plaintiff then agreed to tike more, but the defendant denied that he ever agreed to sell 100 tons, because he never had them to sell. After the 18th of August the potatoe market rose, and the plaintiff then asked the defendant to hurry the delivery of the balance of the potatoes. The defendant then denied that he was entitled to deliver any ratance, as he never made a bargain to fell more than the 20 tons. On the 29th, tilt defendant received a notice of this claim from the plaintiff, which was dated the 26tb, and between these dates news had come in from Melbourne, which had caused a heavy fall in the potato market here. The Magistrate said that this contract being a verbal one, the simple question for him tadecide was as. to the credibility of the witnesses. The statements of the partita were diamstries! iy opposed to each

• her, and he could only say that Forrester's evidence was consistent with the probabilities of the case. He had no alternative but to dismiss the case. W. J. Dyer v. T F. Roskruge.—Claim of L 143 4«, reduced to LIOO, the amount, of an account stated, and found to be due hy the defendant to the plain* tiff. Mr Wilson appeared for the plaintiff, and Mr Barton for the defence. Mr Wilson stated the case to be that the parties were in partnership at Tokoroairiro, and when a dissolution took place, an award was made by arbitrators that the sum of L 143 4s was due by the defendant to the plaintiff. The defendant fifed his schedule^ which included the amount of this award, which was sworn as heing- a debt due tcr the pJainiifF. Mr A. J, Catomore, deputyregistrar of the Supreme Court, produced. ! the defendant's schedule, which had been filed, but which had since been dismissed. This was the case. Mr Barton moved for n nonsuit, on the ground that the putting dawn of a debt in a schedule was not aa account stated. For the purposes of aix account stated the parties must nfeet together, and have the account drawn ap> between them. The simple question for the Bench to decide, wn? whether an award was an account stated. Mr Wilson replied, and the Magistrate took time to consider bis decisionJames Black v. David Prondfoot. Claim of L7O, as damages sustained by the wrongful detention and conversion by the defendant to his own vsc of one horse and draj-, and L3O as special damages. Mr Harvey appeared for the plaintiff, and Mr Dcmpaey for the defendant. The plaintiff" is a drayman, and the defendant a contractor and lessee of the jetties. The plaintiff stated that on the morning of the 15th ristant, he brought oft the jetty a load of. empty basket?, and went through the tollgate without pa\ ing the toll, because he did not think that he was entitled to pay. In the afternoon of the same day, he brought down a load, whea he was stopped by the defendant and asked for the toll which he had evaded in the morning, but he was then allowed to pa=b without paying it. When he came back the defendant again stopped him, and demanded the shilling for the load oi* empty baskets he had taken away in the morning. The plaintiff refused to pay, w hen the? defendant took the horse by the In a/I and shut the gate, saying that the plaintiff would not pass until he paid the shilling. The plaintiff left the jetty, and the horse and dray in the possession of the defendant, and be hnd not yet received it b.sck pgain. On the day following the detention of the horse and dray, the defendant told the plaintiff that his horfe wcaat Tomlinson's stables at livery, and that he could go smd take it. In crossexamination, the plaintiff'stated that when he wss asked l.y the iltiendant in the atcrnoon to pay the shilling he rtfuscd, and attempted to drive his l:orse through the gate, when the defendant seized the horfe by the head. The plaintiff then jumped off his dray, and threatened to strike the defendant, but did not do so. The defendant asked the plaintiff t~> pay ihe shilling under protest, but he refused and walked up to town to sse his lawyer. During the same afternoon, he issued the summons in this case. Three witnesses proved having seen the plaintiff's horse and dray standing at the door of the defendant's office, during the afternoon, and in the evening a man was (-ten to lead the horte up Jetty street Mr Dempsey moved for a non-suit on the. law of the case, that no act of conversions bad been proved, and the defendant hai rifevcr exercised any act of ownership ovcz the horse nnd dray. Mr Harvey replied. The Mngistrate nfused to grant the nonsuit. For the defence, William Lockie» keeper of the jc-tty gates, stated that on the afternoon of the 15th, he heard the plaintiff refuse to pay a sixpence which he should have paid in the morning. The g&te was shut. The plaintiff used very abusive lanpuage, turned his liorse round, and backed his dray against the gate for the pxirposG of breaking it open. One of the gates was opened to let another draypass, when the plaintiff turned his horse again, and attempted to rush thn.ugh the gate, but did not gst through. The plaintiff then jumped on to his dray and sat there for about twenty minutes, while the defendant left the jetty for an hour. The horse and drny remained on the jetty until the gates weie closed at six o'cock, when the witness asked Mr Tomlinson, who waa on the jetty, what he would do with the horse. Tomlinson replied that the horse was worth its night's feed, ond if the witness would Lack it off. the jetty, be would take it to his stable. The witness could not bade the hors.l, but. a little boy did it, and the witness led the horse partly up Jetty street, when be and Tomlinson jumped on to the dray and Tomlinson took t'&e reins. He- had no authority or instructions from the defendant to take the bor-=e to a stable. The defendant denied having backed the horse on the Jetty, or touched it beyond having, seized the reins when the plainti-iF attempted to lush the gate. The Magistrate was of opinion that this was a clear case of wrongful conversion; and that the defendant had exercised complete control over this horse and dray, and that it was by his orders or those of his servants or agents that the horse was sent to Toialinson's stables. The plaindfT had lost his means of livelihood for fourteen days by the act of the defendant, and he was entitled to damages. Judgment for the plaintiff L 79 and costs, to be reduced to L 9 and costs upon the restoration of the horse and dray. David Christie v. William Bissett.— Claim rf L2O 183 3d, the balance of am account for horse feed, cash lent, &c., extending from December, 18G2, to July, 18G '. For the defence a number of itemsr were disputed, and a cheque for LI9 5a wn produced which was given by the defendant to the plaintiff on the 18tht September, 1863. The plaintiff denied all knowledge oi this cheque, or that he'ever paid it in to his account. The ledgerkeeper of the Bank of New South Wales stated that the cheque for Lift 5s was paid In to tlio credit of tb/j plaintiff's account on the 18th September, 180.3; bufe he could not gay by v.hom. The Magistrate gave judgment for the.pUiatHF3s3dan<l costs. T. F. Roskvuge v. W. J. Dyer.--Ad« joaraed by consent to Friday next Dismissed for non-appearance: —Charles Moore v. Richard Hoivartb, LlB 9s 6d; Thonem'.m and Oliver, trustees in the estate of H. and E. Bastings v. John. Kedz'je, L 3.5 93 2d; Same v. George W-ibb, L 25 5s Gd; B. Wilson and Co. T^ xWmm Mitchell, L29x