RESIDENT MAGISTRATE'S COURT.

Otago Daily Times, Issue 3049, 14 November 1871, Page 3

RESIDENT MAGISTRATE'S COURT.

Monday, 13th November. (Before A. C. Strode, Esq., R.M.) RusseU v. Walker.—Claim of £14 ISs 6d, balance of account for goods supplied. - Judgment was given for plaintiff by consent, part of the amount to be paid in monthly instalments of £2. 'Payne v. Robertson. —This was an action to recover the sum of £20, damages aUeged to have been sustained by plaintiff through false representations made by defendant. Mr Stout appeared for plaintiff. The case for the plaintiff was tliat he had been induced by defendant, who was a dairy-man, to enter into a contract with him to take a number of • cows on terms, and purchase the good-will of his dairy. Defendant represented that the cows would yield on an average about 60 or 03 quarts of milk per day; but plaintiff found, on taking the dairy, that the cows would not yield more than - from 40 to 45 quarts per day; and in order •to meet the requirements of his customers he had to purchase milk from other people. He had lost £3 in the concern, and worked eight weeks for nothing. A witness, named . John Anderson, who was called by plaintiff, . stated that he heard defendant teU plaintiff that the cows never averaged much less than from 60 to 63 quarts. Defendant in evidence . stated that plaintiff had told him and his wife when giving up the dairy that he was doing well with the cows, but that the doc- - tor had advised him to go to sea for the benefit of his health. He denied altogether i that he had ever told plaintiff the cows would yield 63 quarts of milk. The Magistrate considered the evidence proved that there had been a misrepresentation, and the only question to decide was as to the amount of damage sustained by plaintiff. He thought ~ £5 woidd be sufficient compensation, and would give judgment for that amount, together with costs. There was a cross- . action arising out of the same affair, in which Robertson claimed to recover the sum of £5 10s, for rent owing by Payne on account -of the cows. Mr Stout consented to judgment. M'Meikan v. A. J. Smyth.—This was an action to recover the sum of £10, tor damage done to plaintiff's fences. Mr Stout for .. plaintiff, and Mr Anderson for defendant. It appeared that defendant, who is a contractor for the construction of a section of the Clutha Railway, had taken down some portion of a fence belonging to plaintiff, who is a dairyman, holding some property under lease beyond the Industrial School. The injury sustained by the damage to the fence . alone, plaintiff stated, was not much, the • chief loss having been occasioned through his • cows getting out of the paddock, and wan- • dering all over the neighbourhood. He had to put nine cows into another paddock in - consequence of the damage done to the fence. In cross-examination, plaintiff stated that he had granted a right of passage over the ground in question to defendant and his men, charging a toll of 6d per head per month. Thos. Calcutt, General Government Agent, : .stated that he had given possession of the land to Mr Smyth for railway purposes, and .-. said he considered the latter could not be • called a trespasser. Witness had paid plaintiff £1 as compensation for his interest in the land taken possession of, and he thought that compensation included everything. Mr Anderson appUed for a nonsuit, as Mr •■■- Calcutt had sworn that he considered • defendant was not a trespasser, and plaintiff himself had admitted that he granted a right of passage over the land to plaintiff and his men. His Worship, how- - -ever, said he thought there was a case to answer. A. J. Smyth, the defendant, said -that plaintiff's fence had been re-erected and •left in better order thau they had been when the line was taken possession of. In his • opinion, the other portions of the fence were not cattle proof. A witness named M'Ken- .. zie stated he had seen plaintiff's cows get through other parts of the fence than that which defendant was accused of having • damaged. The Magistrate said he was in- - clined to think there had been some little -■ damage done, and thought the case would be met by the payment of 20s, and costs. In our report of the case, Cutten (Acting Provincial Treasurer) v. Macdonald, heard -- on Friday last, we stated that "Mr Stewart •. contended that the payment made by defendant on account had been made upon one - only of the bills held by the Government, - and that such a payment would not act as a bar to the operation of the Statute of Limi- -- tations with respect to the other bills, citing in support of his argument the case of Nash v. Hodgson, 23, L. J., Ch. 780 and 781." It has since been pointed out to us that this decision cited by Mr Stewart was reversed < upon appeal by the Lord Chancellor, whose judgment is reported iii 25, L. J., Ch.