RESIDENT MAGISTRATE'S COURT.

Otago Daily Times, Issue 2059, 10 September 1868, Page 3

RESIDENT MAGISTRATE'S COURT.

. WEDNESD-A^rf September'9th. ! e (Befbre.!A.^fetha^§tr^e,lS|£, KM.)

;B>b.unk:enness.rr.James Wood,.John "G v ato,7 -Samuel .^^L^b,~"ind'-"-EaWard - liawsohy were each fined 10s for drunkenness. Bridget. Keane w,as^ charged with drunken and^'disdifderiy coh<Juc^; J':Th4r|> was a longstring of coimctioris.iCgainst her. She .invariably,! wh^n I callfedj'tip'dn to plead,, !tjie*! Magistrate, ,** that she is just i going rip .'a,' ( .situation, up th^ , .countryj.;. .and ,jihaj-;if!.he ; will let'her off^ she will never appear before-Mm. again.'' i; Tiiisv. excuse Jdid foaotj-:avail ; her td-

, day, and she was -sent; ;ioi gac&J.&r r--"14i l days, in > default of L 5. The Magistrate said that if she was found transgressing again] -she- ;^h6uldlbb charged^ as. an habitual druiikard?. - } j STfiiLtNtf-'"TOBld^..:^^!a;;^Rbbinson was charged.with'KaYihg!s.tdlen,abox o^ tobacco, of the" value' of liß!iOß^!frbm : th4 shop of Samuel) gjbrd, u grqcer,^!^WalSer street. The-Commissipner of police con-, ducted the case. -Alexander !M(J3rae;;said.

that, on Tuesdayjinight^1 hessawjfche prisoner leave Mr Bird^s shdp, and go/down k 'righfcof-way. rThepris®her,;atithetime,' had a small box under his:coatff -^CrecTge Button, .shopboy^^ to;:the nprdsecht6r/s raid that a box of. tobacco; pf1 the;same brand as thedhe produced in 'Courts !had, been taken from the!s]idp.'.fehad~hedida'nbise!; at the door, as'if'some phe-liad 'nxoyed some: : boxes, and;^ he,,,gave ~-l iihme'diate information to the !! police. • '-.v^SelcgeaniMajor Moore said> that, acting. ,up,on information ...heuiarrested the, prisoner in .a^house .off Walker [street.!; He -searched the house- carefhlly,.: but could not find the object of his isearch." It being dark^ he\. obta,ined a flighted candle,, aiid, .oh dperung a back ddo^Tie^ saw the marks dfTecentfo.otsteps; 5 These footprints..led about tenVyards frbm^ the: door"y: and then t^rmih^ted ; ; ahd under an occupied .house a box of tobacco .was found. ' The witness compared footprints made with.prisoner's boots jwith! the footprints already... made. > The impressions corresponded exactly,.;,;. : There j ,;was a peculiarity about the t :footprinits,

by there being ho nails on-the left;toe!of

the left boot. -One side-:=of the heel of -^-both- boots was also r distinguished the absence of nails. Mr Birdi: identified 'the bokxif-tobacco pro'diKiedj ahd cdrrobjpr^ted the : Sergeant-Major's evidence. ;;'-';Tiie prisbner, who reserved his defenc^, was committed for trial. .; " • ', v ' .'^ l) M ■'; An Acobssouy;—C. Sta*fcey was, charged with being an accessory tp rthe'stealing 'of the tobacco, feferred to in thejlast case. It was in her house that had ' been arrested..:-=. The Commissipner df. Police asked'for the prisoner's ;diseharge, - as the evidence obtained was; hardly suffi-. cient to; convict 3ier.r The: prisoner was discharged.':;: .' .-.,-.^ .;/:;• -:y A:-'; : :^j:-,- . \ c'rracr cisiis^—EXTßNiDED" jxriisDicTiojr.:

,; fi ;M, t Barr' ,v. John ll'Kechnie, ad,dDcdnist?ator inj, the : estate iof iThomaJs ■ Strauehon.—Claim li3Q ): f cc for instructing Thomas Hopper Strauchon im ihec^il;of surveying.-: -,: The plaintiff stated (that, by an agreement made verbally with; the Jat;e Mr Stra'uehon, a^so'n of the lattericame tjo , him to learn surveying."' The-fee1 wsiSj LIOO for a course (of •ihatructiw,' .whicih generally occupied! two years.' i!Jt-'had . been disthictly understood that he! would " <&afge ; at that rate, and thepiipilwkswith" liim eight v months. .The .defendant wsjs called, and he admitted haying heard that:; there was some agreement made;., but he" did ibt know what it. was. Heiknewthat the previous administrator -to tithe estate, had : - the" debt "to be just. Mr Strauchon, the plaintiffs pupil, and his brother, stated that they knew their father had'made; the agreement sued •upon:. The defendant said he; had allowed the case to come intojCfpurt, b4-' cause there had .been no :writteh" agree-, xnent produced, and because he would sbje free from responsibility if, he paid themoney upon the .judgment of, the Court. Judgment was given for the amount ►claimed, with costs., V-vf-V. Jfc^ ■ Andrew Lees ■& Robertson Brothers, -iClaiiri OL100; for moneylent and: interest. : Mr Wilson appeared for the plaintiff, an&: Mr* Stewart -for the defendants; The' latter pleaded never ; indebted./ The stated that -on the iCth.pf April,. lSSSiiie lent John Jldbert'soh, .one of tho; •defendants, LBO. 'The latter: said; his i\i wanted4he money to decrease, his over- ' draft at the Bank ; and there a verbal that bank interest should be paid :on the loan.. In answer •. to Mr! 5 iStewart, the plaintiff said that the money was-lent in the Commercial Bank, Wai--pori. He was manager of the Bank, and -the':; defendants carried on ljusiness as draperi in the townsliip. He .had taken the money out of a desk in the Bank room^ It was his own mpney^ andjcibt the Bank's. The Bank manager was.coming ■up. from Dunedin, and it ,was tp xeduce the amount of the ,-defendants' overdraft that the money was; lent. A 1 cheque had -been gi .en for the amount of the: debt, which had been lost.' John; Robertson denied that the-plaintiff had ■*7er lent him or his firm -•",one [penny. When Mr M'Kenzie, the; nianagerj was •about to visit Waiporijtiie.plaMtiff camie

to him" and obtained a cheque for LBO. This waa placed, as representing cash, to his credit,- so as ltd', reduce the "amount of | the overdraft, and.when Mr M'Kenzie; went away tne amount; was,debited again, j He had not had the benefit of the LBo,' »Tho !• firm !!stopped paynierfc -.'shortly; afterwards,- and- the plaintiff had not; claimed as He did not know! thatthechequehadbeenlost ihMrWilsonfs; office, arid it was not because of, that; knowledge, that the action, was defended.; George Robertson said that he had never' received the money,' nor, to his know-! ledge, had his firth. !i John Robertson: was recalled, and his bankbook produced, !; [Mr Wilson remarking- that, if his state-: ment was s true, the, book would isno-.T a! debit* and credit of the LBO. The witness .1 saidit would not, asthe..boqk had !been' manufactured ..to.,'deceive';Mr, M'Kerizie. The "Magistrate said the Vpase disclosed l most disgraceful proceedings. ■ He -'did { not' like the look of -the transac-l 'tioio,'.at; jdl:- -and • • could;,: toot <jlefci.de • whether j! i£ tlie''. money !lVad.',' been-lenii,! it was the- Bank's ■or thes plaintiff's. ■ He; •wasabout to dismiss the h oase, when, Mr; Wilson claimed a nonsuit, which was: granted. Mr Stewart''applied fpr costs.; '! .The, Magistrate said he \wcjld not V farthing... -It-was a.mosi disgraceful base.1 "v.Geprge,Johnson. u.,l>onald .M'Lennanj .^Mr-Cook appeared for the plaintiff,' and; Mr Haggitt'for 'the^deienddht., The plaintiff sought ,to reecjyeif L47!;12s, !i;^he: ! partifiujlars pf ivhich weifd s^fe^W'fpj&pwa,:! " To amount payable March, 1867, to the! plaintiff in riglii'of his'wife Janet, formerly; Janet Brown, widow, in discharge-of -all; obligation.by the defendant to maintain' hischildj L6O ;. less amount -chargeable' against plaintiff by defendant for main-1 tenanee of a- child kept'b^him) Sl^.weeks . as. 8s per. week,, Ll2, Ba. To amount ,of cash lent' defendant lilt), tAf 12s; ' Tffis item for money,, .lent., was abandoned j1 it-being-sh'own 'thai'tfoTmoney waa lent for Jwelvje-months,.whichw.asnot,yelexpire.dj and the other claim<was ■ made under the following circumstances, as stated for the .plaintiff. i^Mrs tfafteti (Brown/ arcwidow^ was the'riiother-of- ah 'illegitimate chil'd^ r the defendant .being the father. After :iffi6 ' birth of the; ,child'j; "she married' the plaintiff,, and. the,,• defendant gave, her a 1 note of hand,: promising ;tp pay LSO in discharge hi jail claims'iipdh himfbr the supportujf .the child- s -daughter of Mrs Brown had; also an illegitimate child.' It was. stated1 that the";plaintiff was the . p\itative afiather^,but't^is he'denied!" Hej howeveiy ; made, an arrangement ,by. which, .on.^coTidition.*that he gave, up .'s&<promissory note for L 50,: and'kept his wife's child, the bp;iihd hei'self to keep the daughter's r infant. The agreement, whichr. Was drawn up by the defendant, ran ; as: follows :—I certify to say that sail keep.V,of the bairn! that is in •my ; platje; :will be provided by me until the' bearer calls for it." Re--cently, notice',had 'be^n.. given to the plaintiff that the child would not be kept any longer, ; and it had;;been returned to him. He had, in the presence of the defendant, burned the promissory note, but he now sued, for its'amount, less 8s a , week which he allowed .thedefendant for the time 1 the cMd Jhad ;b'een ke^pt. :! Mt : -Haggitt-n^oyed~ior . a^^nonsuit on the ground of nohjoihdure of 'the plaintiff's, wif^e in the .summons, .and that^ ,the form of :Vaction.; ; was altogether -wroha^ The plaintiff ;could : not sue -for breach of i; an-!-agreement which he-! himself cancelled. - If he had cause of .action at all, it. ; was for damages for a breach of *the ; second agreement. Mr Cook contended that the promissory note ; represented money; ancl the acti.onic.wals for money had and receivedi; The Magistrate said that he could come to no other conclusion than that the agreement, withtegard to the liso was dead, and could hot be introduced here, ; :The plaintiff was nonsuited. ■ ■ -•-■■ -■■■■■ :■■<■> . •• ,^homas Phillips. 'v.\ B. * F.'.Stohr:^Olam X- 5s ;6d, for 'goods . supplied., Mr Sm^hies^ for the;!Magistrate'', J^ case shdtdcL not be -dismissed: for irregu;-! larity. •;The^plaintiff,'lived1 iif Sydheyj and the-r'suiiimoiis" was" taken out by ah agent- iMr Smythies submitted that the' agentVname"OUght to havespp^aredupoh the plai4tßf6ife'r-.4!ChlJ3:defendant had a set-off, Tv^hich he cO.uldnot possibly serve.; 'Theinrst;6f;lthe i special rules^uhd'er the' R.M Act; 11867, provided that <'in vany case where the^plamtiff, orV!where there are'more playitiffs!than!oh€>;all'the plain--tiffs are :ii'abseht' ifr'om|';',the l (Dplqny, and there be withmrjihe- Colony!", an agenj; authorised vt613feiahsact: his or their affairs generally an'd^'ta prosecute; and defend ! actions jn ,Ms or ..their 'behalf,' such agent shall be entitled to appear and act in any Courts undOT^^e-^s^dvA^ the, plaintiff or vplamtil^,''as,<fully r !.as such ypliaintiff^. or "plaintiffs' themselve? could.^; Thus the agent stood io:.:JaU, patents an^ 'purposes in the "plaintiffis- position, and ther,e i should i besbm0 j .hie^nsp i f letting the: defendant know who was'i.the.ageh,t. Th^ ■* Magistrate said-there ;was greatriweight ip. Mr Smythies's !rewa^k"s! :.Mr.^aggitt, foi: the plaintiff, said he would^ -do away with Mr SmytMes's ;6bj'ectidni bjacceptinf. service of the"! ; set ..0ff.,.. Mr Smythies. agreed, and the case proceeded. The agent apjjeared, arid'his power of attorney was put in^MrSmythiesiheh Contended that, under : tt^e -r,uie quoted- above,. ;the ■ plaintifl was not properly.before the , Court. Thjs power of attorney was a one-sided affaii*. % - Ifc merely gave the_ agent pbwer to collect debts, not to • pay them, -o which was contrary to the, spirit-of ;thW Act. ■■'• It wa!s perfectly plain::that.his argument wa|s right.l The rule said,-" an agent authorised to transact. jhisvOTi their affairs generally^ .and to prosecute, and. defend such actiphs;iu his or their behalf. 53 Suppose a person had a contra amount against an absent plaintiff, how could he sue ah •aigent "having such a power of attorney as ,toat-prdduced., If it!were not.for Jtherule a pynixg^a i largfe.suhiioltmphey hiight go! away,- leave an -agehti. to! colleci /ail debts due to him, ,ahd laugh at his credi.torsi. He >coiiterided that ,thie .siimmons was irregular. - ; ■ , ; ; .. - . : '

Mr Haggitt said he was iastonished to hear .such'an/..argument. How could a ; person be from, doing. an> act ,he ,was ; >propeily: authorised to do. •:■ >Thb power of attorney.gaye! the a^ent all the power_ he wanted tb.:e?:ercise, andjf the plaintiff had creditors here; there were processes for,, attaching ; .moneys in '■~-,t he ■agent's hands. . , V\ .; \ '■-.';!■ Thfe^'lSfagistrate-^poihted^oxif' to Mp Haggitt - that Mr Smythies's objection rested upon--certain ruletj- framed for the "carrying out of the Resident Magistrate's Court AcV 1867^ th^-Act under' which the suitombns/ff-as issued." H^ might say-that a difficulty had been found in the''-work--ing .of the Act, and upon his reepmmenda;tion the rules had beeniiramed to inee!t that difficulty. He was called upon to decide a question how which. forced hin> to look at the strict wording.of-the rule, and he held that the case must fall. ;

Mr Haggitt: How, can it fall?;; ! •: The Magistrate : I do not -think--there is. any pl3intiff.beforjejhe Court. _ _■;'';.'- ; Mr Haggitt : I appear for him. .

:; Mrl^mythies : -OhB! >■. no, you; ■; don't ; you are not instructed by him, but- by his..agent. : .-'... ' i.V■. " ';... . . .':'.; "-;;."'.' ' -

The Magistrate: bYou'r-.principal,? Mr Haggitt, is, in^lega) } genfi^aiaytiiv: He

is not before th6":Cdurt\ih~anyj! way. f, Thel casfrmust fall. --"•■- ~ ,-— *."—*!!.."*..'l_'!.!!!'.'

Mr Haggitt Baidlthatv,}fe "intended to appeal^ and he took down in -writing the grounds of .the' 'I^agistrate's decision. "The'summons is dismissed because t£e plaintiff is not before the Court, as although his attorney and solicitor ,are present;, the power of attorney produced,does hot give power, to the agent to, transact busmess generally ; anil,'although, it authorises! the attorney, to, prosecute actions,, it does not authdrise" him to"'defend.". !Mr Sniytliies took exception to the Words } ''his attorney I and solicit or are present" The solicitor I was the"solicitor of.;the' attorney,' riot' of' the plaintiff. .. ; Mr,",!Haggitt amended ihe! judgment by the word's 'c his j attorney andhissolicitor.'',; ■ in the followttig cases, judgments were! given by default" fpr^'the amounts claimed, ''■ with costsi -Oliverpand ■Ulph v. John Lewis, claim' L 23; 4s sd; for goods sup-; plied ;-Mex'man Bros, 't?. 1 Thofflas Jackson, L2l 12s 9d,; fpiTjgqods suppliecl ; same v. \ Ro.bert.r^ewell,i liSl 1.65.n6d,; for goods1 supjilied j same -Henrys'Fe_etey/ i ; L32j -iTa 4d r due on a dishonoured bill -).' James' Campbell -».. James O'Grady, L3O, balancei dvel\\pon'therprice of a iibrse ahd'dray/- ---.' ;;,!triie; oaifee' And^^lGe'is;!^, 'William. Hy. libngbottom, was dismissed for non-j -appeararice: ;'/,u^'H !;v';-; •';';'-■•.. ',■;] .;■■'■' " ■■••■ j