RESIDENT MAGISTRATE'S COURT.

Otago Witness, Issue 1320, 17 March 1877, Page 5

RESIDENT MAGISTRATE'S COURT.

Tuesday, 6th Maech. (Before John Bathgate, Esq., E.M.) Herbert and others v. L. W. Clarke.— In this case, Mr Mouat, for Mr M'Keay, applied to have the above-named defendant, who had been sentenced to three months' imprisonment by Mr Nugent Wood, discharged from custody. His Worship refused the application on the grounds that he had no jurisdiction. i A. H. Koss v. Captain Setton.— Claim of LB6 10a, compensation for damage done to the contents of certain cases shipped on board the Pleiades at London, and consigned to the defendant.—His Worship having referred to the facta as proved, proceeded to say : lam of opinion that the ship, having put the case No. 8 on board the lighter in the customary way, and the same having been received by the lighter as in good order and condition, the ship is relieved of all responsibility for that case. I think the case received the damage after it left the ship, and the probability is that it happened when on the wharf between the Saturday and the Wednesday. lam of opinion that a case requiring careful handling should not have been "left so long on a public wharf exposed to injury or depredators until night The obligation on the captain as carrier was discharged on the arrival of the goods at their destination, and delivery of them there to the lighter. Messrs Dalgety, Nichols, and Co., in arranging with the lighterman, did so, in my opinion, as is the custom, for the convenience of the consignees, and their go acting cannot bind the defendant, as representing the owners of the ship, sis liable in a new contract. It was in the power of the consignees to send special instructions to the master how they wished their goods delivered, and, in fact, some of them, before delivery, objected to the lighter's rates, ami they were reduced in consequence. A ship anchored in the stream has no means of land-carriage, and is only bound to deliver goods in the customary manner to a lighter alongside. The plaintiff might have specially instructed how his goods were to be lightered, but he did not do so. There was no contract express or implied on the part of the ship to deliver the goods to the plaintiff on Dunedin Wharf. The ship had no control over the lighter, and did not share in the freight carried by the latter, nor was there any agreement for a common freight divisible between them. The only principle upon which I could find the ship liable for damage to the goods when in custody of the lighter, would be that of partnership, or a continuing contract in which both were interested. There is no ground for this. Each of them earned its own freight independently. lam unable to consider Messrs Dalgety, Nichols, and Co., in what they did concerning the lighterage, as acting so as to bind the ship to a responsibility extending beyond the ship's side. In regard to the other cases, the damage is of two kinds— breakage and by fresh water. Breakage is within the exceptions of the bill of lading, and the onus lies on the plaintiffs to prove that it was caused by improper stowage. No fact, such as marks on the cases of undue pressure, or other circumstance inferring careless or improper siowage, has been proved, while on the other hand, the chief and 2nd officers and th 6 marine surveyor proved that the stowage was good. I am, therefore, unable to find the defendant liable for the breakage. The damage by water is of a peculiar kind, being proved to be by fresh water. Again, there are no marks on the outside of the cases to lead to the inference that this happened on board the ship. In the whole circumstances, I am of opinion the probability is the damage wa3 received on board the lighter during the extraordinary searching and violent storm of rain_ lasting two days which occurred after the receipt of the goods by the lighter. In this opinion the plaintiff concurs, as expressed in his letter of February 20th to Messrs Dalgetv, Nichols, and Co. Whether the lighter is liable in the circumstances, considering the way the goods were packed or the violence of the storm, it is not necessary that I should now decide. It is sufficient to say that, viewing the plaintiff as a heavy loser, I have given the case a careful consideration, but am not able to come to the conclusion that he ia at present entitled to a judgment. I accordingly nonsuit the plaintiff.

Wednesday, 7th March. (Before T. A. Mansford, Esq., R.M.) J. S. Webb v. James Campbell. — His Wor ■ ship gave judgment for plaintiff in this case, as follows : — In this case there were three separate contracts each capable of being enforced apart from the others. The defendant would not be justified in refeing to complete the purchase of two of the lots through any misrepresentation or error in regard to the third lot. The defence appears to be that some young timber, which the defendant characterises as ornamental, was growing upon one of the lots, and that a portion of this timber was cut clown if ter the sale. The evidence, however, satisfies me that the timber, consisting of five young gum trees, were actually felled some hours before the sale, and that they were not of that description to entitle them to be classed as ornamental trees.^ If the timber had been cut down after the signing- of the contract, and proeedtobe ornamental, a specific performance of the con tract could not be enforced, and this action as far as relates to section 12 could not be main-

tained. Ordinary timber cut down under similar circumstances would be simply a matter of compensation. The defendant disregarded all letters and applications prior to the re-sale, and refused to accept the fair and reasonable compensation offered to him, so that he has only himself to blame for the loss sustained by the ra-sale. An error appears to have been made m calculating the loss upon the re-sale ot section 6. The actual loss was Ll4, but in the particulars of demand L 7 only is claimed. The judgment will therefore be for L 66 17s 4d, raarle up as follows : Loss on re-sale of section 6, L 7: do, section 10, L 25;2 5; do, section 12, Ll7 ; total loss on re-sale, L 49;4 9; expenses of re-sale, Ll7 17s 4d; making together L6G 17s 4d. Judgment for plaintiff, L 66 17s 4d, ard costs.

Fbiday, 9th MaHch. (Before J. Bathgate, Esq., E.M.)

City Corporation v. Alex. Cameron.— Claim of L38 15s for rent alleged to be due by the defendant as lessee of a portion of the Wharves and Quays Keserves. The evidence for the plaintiff v/as heard on a former* occasion, when Mr Stout for the defence submitted that plaintiff should be nonsuited on two grounds. First, that the defendant had never got possession of the land, and that by plaintiff's own agreement there had been an entire suspension of renc ; second, that the Land Transfer Act prevented any person except the registered proprietor from recovering rent. — Mr Anderson, for the plaintiff, pointed out that the defendant in his own letter to the Corporation admitted that he had been in possession of part of the land. In regard to the other objection, that the Superintendent and not the plaintiffs was the registered proprietor, and that therefore the Corporation could not recover, he submitted that that ob jection could not avail, as a tenant could not dispute his landlord's title. Proceeding to refer to the Land Transfer Act, he said that as it stood at present he considered it not creditable to the Government that introduced it, nor to the Legislature which, passed it. It was a most faulty measure. Mr Stout had a few days age expressed surprise at the Statute of Frauds having been pleaded as a defence to an action, but it was a time-honoured statute, not like the Land Transfer Act. — Mr Stout replied that there was no analogy, as his condition was that the wrong persoD was being sued. — Mr Anderson then proceeded at considerable length to show the evil results which would follow to purchasers of land under this Act should his Worship decide that Mr Stout's second objection was law.— Mr Stout having replied, his Worship considered that possession had not been sufficiently established, and nonsuited the plaintiff, remarking at the same time that it the defendant had occupied part of the land, he might be liable for use and occupation.