DISTRICT COURT.

Otago Witness, Issue 537, 15 March 1862, Page 6

DISTRICT COURT.

Tuesday, 11th March. (Before J. H Harris, Esq.) _ Business was resumed in this, the last adjourned sitting of the Court, at a few miuutes after eltvdn. Several applications for adjournment were granted to the following day. Appeals, illegal convictions by' major crokbu. Mr. South applied for judgment of the Court in sundry cases adjudicated upon illegally by Major i Croker, prior to that gentleman having been duly sworn in as a resident magistrate, and when, a3 au officer in the Commission of the Peace, he had exceeded his powers in pronouncing sentence on convictions obtained before him. The cases of Baines, Stevenson, and Colville wera heard, and were held to be binding in their resnlt upon all the others. Mr. Howarth, Provincial Solicitor, appeared to watch the interests of Major Croker, the respondent. Mr. South attended on behalf of tiie appellants, and put in evidence the New Zealand Grvernment Gazette of 14th January, 1862, in which Major Croker was gazetted for the first time as a resident magia!rate, arguing that he possessed no power as a commissioner o? the peace to inflict a penalty upon a conviction made on the 6th idem. Mr. Howarth produced a letter from the sral of Government, under date Bth January last, intimating an intention to elevate Major Croker to a resident mnsrjstracy. Hid Honor ruled that no gentleman could ba so recognised, until hu had been actually gazetted, aud even then he would not be entitled to act until lie had taked the oaths of office. Mr. Howarth, Provincial Solicitor, argued that j under the Goldfields Act, any Justice of the Peace could adjudicate in virtue of a licensed ordinance., Mr. South contended, that under the 36tli section of the Act cited, Jarvis' Acts were impliedly in fore« throughout this territory. His Honor thought it would be very difficult to shew that one magistrate had jurisdiction to convict under the operation of a Licensed Ordinance, although he might possess a legal power to sign summonses. Hus Honor adjudged the appeals to be good, as it waa quite evident that Major Croker had not been gazetted as a Resident Magistrate until the 12th January, 1562. and the convictions in the ca^es now before the Court occurred some days previously. Mr. South said, after that decision, he should apply for costs, although he was reluctant to harrass the magi&trate. He stated that the appellants had been in attendance upon tiiree several occasions ; that thej had been encumbered with heavy expenses ; and that one of the seventeen, material aud necessary witnesses, had been taken suddenly ill on the road to the Court while the result had been of vital importance to all partien concerned. He did not press for full costs, but he applied for such an amount as the Court might consider proper to award. He repudiated the accusation that he had advised or counselled invidious proceedings against Major Croker, although such a course had been attributed to him through evil reports. His Honor expressed an opinion that the Provincial Government would tike measures for indemnifying any magistrate against whom, under guch circumstances as the present, posts were allowed. Mr. South, in reply to his Honor, fixed a sum at £28 10 3 . The Court pronounced judgment, and in each case ruled the ground of appeal to have been sustained. Costs, inclusive of Solicitor's fees, were granted to the appellants in the total amount of 12/. 133. Braid v. Martin & Co.— The hearing of this ease was adjourned until to-morrow (this day.) Bowtok v. M-Indoe.— This was an application for a new trial, on the ground that evidence had beendia" covered since tho last trial, which was unknown before. His Honor remarked, that he held his presen position provisionally, and ruled that he had no jurisdiction to make any order in the case. The Court adjourned at half-paat twelve, until noon next day. Wednesda}-, March 12. (Before J. H. Hauius, Esq.) Jones v. Banks. — In this actiqn, plaintiff was $ part ler in the firm of Jone3, Bird and Co., and ltobt. Banks was the defendant. The cause was brought into Court to recover the sum of £51, being balance of an account contracted in October, 1361. Mr. South appeared for the plaintiff, and Mr, Johnstone for tnp defendant. The material point in ksue related to the staunch* ness., or otherwise of tv grey cart hor9@, purchased ftt the plaintift's yards during a sale by public auction, about six months ago. A witness named MorrLon depossi, that the horse was bought on a Saturday, and thai ou the following Monday or Tuesday, it wan so restive when placed in the stable, that it was found necessary to tie a large piece of timber to the aniuial'a tail to prevent it kicking ; but to no purpose. Ewen M'Coll, examined by Mr. Johnstons : Said that he recollected having been in company with the defendant, in October last, at Jones, Bird and Co.'s s \le yards ; and he remembered the defendant asking the ostler to try a grey horse, but he said he would not. There was nothing uncivil, insulting, or o!feu>ive in defendant's manner towards the ostler. In ie->lyto the Court, the witness said, that the man who was askevl by Mr. Banks to try the hone, and who refused to do so, was the same person whom the depo.ieut saw receiving orders from Jones, Bird and C>.. aud who tried the qualities of other horses sent for sale. Mr South obwved that the most remarkable feature in this ca-e was that the horse was guaranteed as a staunch horse in harness when scut up, for resale hy the defendaut, who, when purchasing it, in th,e first instance, did not' take the opnortuniny of mnkingany enquiry into the coudition of tlje animal. Mr. Jpnes, one of tlie plaintiffs, being; sworn, deposed, -that on Saturday, the HtH October. 18(jl, a grey horse was sold hy him, as auctioneer, to' the defendant for £51, for which a rheck, was presented in. payment, and that on Monday following, tlie 13th idem,, the defendant entered tlie horso for resale at tlm plaintiffs yards. An entry in the books of the firm proved that the animal was entered in the name ot one Robert Ellis, and was desoribed as staunch, and that it was put. up nt auction on the 25th October, when only £35 was bid for it, the consequence was tlmt tlie hoi>e \w\s hought in for the protection of the defendant, who, however, had stoppea payment of the original cheque for Lsl. It wns to recover tlie vnhio of this bank oitlev tlmt the present action wns brought. When sold, in the second instance, the horse wns described as a draught grey horse, but witness could not swenr to any warranty being given on that occasion. The plaintiff hnd received a Totter from the defendant informing him that he had stopped payment' nt the bank, aniT^ai the horse would be thrown upon his risk. The court thought it would be prudent to remand the case for nn hour for the production of that letter. Mr Jones, however, stated that he was content for the trial to proceed without any adjournment, as he had no desire to detain tlie Court. Mr South called Thomas Dickson, importer, who said that lie knew the horse in question. He had imported it, and had worked it in Melbourne as well as in Dunedin. He had known the animal for two years before lie purchased it from a carrier. It wiu a very staunch horse, but Rrew a little vicious after having been idle for any time. He considered tho animal to be as fine a horse as there wne in Dunedin He had never known it fail to pull, when put intq harness, nor to kick for two hours, "at a stretch ■' when any person attempted to harness him. ' Robert Ellis, a livery stable keeper, knew the horse well, ne had no hesitation in pronouncing him a staunch horse, but he had never seen him in harness When he gave instructions to tht plaintiff to re-sell' witness remembered having: told Mr Jones to put him up as a staunch horso, hut not to sny anything about his quietness. It was well capable of pnllinsr? . • ,? IS . H °! l T r , ulwi tlmt was no evidence, for capability implied what could he done, provided any effprt were made. The horse might he capable of pulJmff, llUt that was no recQinrneuclntion, so W as it lmd «o will to pull, Witnew hnd nover tried the horse in a cart. Mr South called another party named Greong, who did not respond, and the case here closed. His Honor «aid he saw some little difficulty in coming to a decision, when he considered, Ay hat should be done with the proceeds of the horse, for ho wns under the impression that he should have to tak« that view. Mr Johnstone declined to addres3 the Court. Mr South offered a few observations, after which, His Honor adjourned tlie Court until Sutuvday next, at 11 o'clock in the forenoon, when judgment will be delivered.' The Court to se at twenty minutes before U<h