MAGISTERIAL.

South Canterbury Times, Issue 5012, 21 May 1889, Page 3

MAGISTERIAL.

TlMAEU—Tuesday, May 21sr, 1839, (Before O. A. Wray. Esq, E.M.) CIVIL CASES. P, W. Eiby (as agent) v. A. Waters, claim £2 arroas of rent, and application for order for possession of tenement. The plaintiff had made his application under the wrong section of the Act, and the case was adjourned for a week for correction. M. Salek v. W. Bloomfield, claim £1 15s Judgment by default. W. O. Beswick v. P. Birrell claim £IOO (£lO2 12s Id reduced by £2l2s Id abandoned to bring the sum within the jurisdiction of this court) Mr Raymond for plaintiff. Defendant did not appear, and was not represented. Mr Raymond stated that the plaintiff was unavoidably absent at Wellington. He called

R. R, Taylor, who stated that last month he was with Mr Ross appointed to arbitrate upon the accounts between plaintiff and defendant, and during the investigation admissions were made by defendant. The two sums of which the claim was composed, £95 12a Bd, dated February 20th 1883, and £6 19s sd, dated February 26th, were admitted by defendant to bo owing by him to plamtiff. His Worship said the statement of claim was not clear enough to enable the Court to understand the case.

Witness to Mr Raymond: He admitted that lie owed the amounts for money received. lie said he had receive! these sums on Mr Beswick’s account, and still owed them. Defendant set up a contra account, but this was not gone into, as defendant went away, and the arbitration nas not completed. Defendant was clerk to plaintiff, lb was put to him in this way, “ Do you owe these moneys? Did you receive them?” and he replied "yes.” He had reseived them in his capacity as employee of Mr Beswick. His Worship said it was not satisfactory that defendant was not represented. Was it not known that ha had left the colony ? Mr Raymond : It is not known. His Worship : Are there any other moneys owing ?

Witness : There are larger sums, amounting to £706 16s lid. Witness handed in a list of amounts received on different dates ; showing that amount. His Worship asked whether this was not “ dividing the cause of action.” Mr Raymond contended it was not, as each sum, separately received, was a separate debt. After discussing this point His Worship remarked that it was unpleasant to adjudicate upon the case in the absence of defendant ; and when it was a question whether he was in the Colony. Mr Raymond : I have not the slightest knowledge of that. Witness, to Mr Raymond ; The sums are moneys received by defendant as clerk to the Assignee, in separate estates. His Worship suggested that it would bo better to make defendant a bankrupt. Mr Raymond replied that the cost of bankruptcy proceedings would probably swamp everything. His Worship demurred to giving judgment. There was no evidence beyond the defendant’s admission.

Mr Raymond considered Mr Taylor’s evidence sufficient.

Witness, to Mr Raymond : He admitted that be bad received the whole of the amounts mentioned in the sheet, without any threat or compuHon. His Worship said ho would give judgment though he did not feel quite satisfied that it was right. W. Strachan v. M. Scannell, claim £l9 5s 6d. Mr White for plaintiff, Mr Hay for defendant. Mr White stated that the claim was for balance duo for threshing work, and the dispute was whether the rate should be ISs or 10s per thousand, Plaintiff, engine driver, statpd ho had been engaged feeding a machine, at 12s a 1000 and foupd, when defendant asked him to pomo and drive his engine and look after the machine. Told defendant he would expect 18s a 1000, the same as he had had two years. Defendant said they would not fall out about wages. Work was done on the 27th April, and two days later defendant paid him at a 10s rate. The plant was a traction engine and self-feeder, and the engine driver had therefore much extra work to do. Left 12s a 1000 as a feeder to work for defendant, and feeders get from 6s to 7s fid per 1000 less than drivers.

To Mr Hay : I had been driving thirteen or fourteen years, portable engines, and there is not much more to learn about a traction engine. Carted water for two first days after going there. It is not true that whenever there was a difficult shift Bcannell took tho engine. Did not tell Scannell that at Hullen’s he did not get a chance to “learn” to drive. Was certain that ho mentioned 18s as tho rate he had received previously. It was not likely he would offer to leave 12s a 1000, to go to work for nothing for the sake of learning to drive a traction engine. Defendant gave him 10s and tucker for a couple of days while witness was driving the water cart, before he went on the engine. Defendant was then driving himself. Had not asked anyone for tho privilege of learning to drive a traction engine. There was nothing in it. Objected to the price, 10s, immediately it was mentioned. Was not dismissed ; gave defendant notice. Defendant was not in charge of the machine, he only visited it three or four times a week. The 18a-a 1000 man was not necessarily in entire charge of the machine and tho bands.

To Mr While : On two occasions of long shifts, taking most of the night, defendant was with witness on the engine steering turn about.

W. Ogilvio, threshing machine proprietor, stated he had paid his driver 18s a 1000 for an ordinary portable engine. A traction engine must be more trouble, and a self feeder must require more looking after than a common one. There was not much difference in the amount of skill required. Mr Hay cross-examined at some length as to the difficulty of managing a traction engine. T. Mitchell, farmer, Seadown, had his threshing done by defendant’s machine, plaintiff driving. Had no funlfc to find with the work. To M r Hay : Defendant trap there gome*

times, and he took part in one only of several shifts. To Mr White : Ho got the engine into an open ditch himself. D. Milne, engine driver for R. Drysdale, had boon paid 18s per 1000 this season ; that was the current rate. Knew plaintiff to be a good driver of a portable engine, and it would not take a good man two days to learn to manage a traction engine. H. 13 alien, owner of a traction engine, “ man feeder,” paid his driver 18s; the driver of a self feeder should have more if anything as he had more responsibility. Knew plaintiff to bo a good man with a machine. Mr Hay said tho defence was that the defendant only took plaintiff on as a favour. Plaintiff offered to go on at ordinary hand’s wages, 9s and find himself, to get a chance to learn to drive the traction engine, andjhe was only pat on to drive by degrees, and in easy places, was never left to himself where there was any difficulty, because he never became competent. M. Scannell, defendant, hotel-keeper, and

proprietor of a traction thresher, stated that plaintiff came to him at his hotel and told him ho had left Hullen’s. He wanted to learn to

drive a traction engine, and Hullen’s driver would never give him a chance to drive. Witness told him he would give him a’chance and then plaintiff said, “ Will you ? I’ll como a month for nothing.” Witness sa dno he would not have that; and plaintiff then offered to come for ordinary hands wages, and witness said no, he would give him 10s a 1000 and found. The defendant then described instances in which plaintiff had shown incompetence ; he never, in his opinion, became competent to manage the machine except in good ground. On one occasion plaintiff broke the elevators through incompetence. Ho mentioned 10s a 1000 as the price agreed upon, the day he started as well as at the first convorertion. That rate was mentioned too before the cheque was drawn in settlement, and plaintiff made no objection until he had get tho cheque, and then he said he would lake it “ on account.” Mr White cross-examined at length.

To Mr White : If he became a competent driver he would be worth 18s a 1000 ; there were some complaints ; dismissed plaintiff because he did not agree with the men, T. Logan, the band cutter, stated defendant always set the machine when he was there and took any difficult shifts. Heard plaintiff 1 Sijjbo would takoJ“ chaffy ” or anything at all about tho mill, to get a chance to learn tho traction engine. Was positive heard plaintiff say that. F. White, owner of a machine with traction engine, said a portable engine driver would require a week with another man to pick up tho management of a traction engine with witness.

To Mr White : From my knowledge of plaintiff it should not take him more than a few days to pick it up. His Worship gave Judgment for plaintiff for £l4 7s 9d. The evidence as to the bargain was eo contradictory that it must be put ande, and from the evidence of other witnesses as to the rate of pay, the lime required by a competent- driver of a portable engine to learn to manage a traction engine, and the evidence as to plaintiff’s skill, he concluded that plaintiff learned to manage the machine in about a week, and would be entitled to the ruling rate after that, and to 10s per 1000 for that week. The total showed that the average earnings were about £5 a week,'and half that would be the only deduction he would be Justified in allowing. Judgment for £l4 7s 6d and costs £3 17s. EMBEZZLEMENT. A young man named David Stewart was charged with embezzling the sum of £3B the property of his employer, Henry jHullen, of Waitohi. Mr While appeared to ask |ihat the informetion be withdrawn, and stated the circumstances. It appeared that the accused, who was a son-in-law of the prosecutor, received a cheque from Mr DeKeuzy, for an amount he owed the prosecutor, and before he handed it over he fell into bad company, got drinking with two men, changed the cheque, and while under the influence of liquor went with these men to Dunedin. He was then afraid to return and telegraphed for his wife to join him. She did not go and an information was laid and a warrant issued for his arrest. In the meantime Stewart came back to Timuru, knowing nothing of the warrant, and was here arrested. He had done what ho could to restore the money,giving an order on the police to hand over the balance be had left of the cheque, about £2O, and the prosecutor owed him about £lO for wages due. It was desired to withdraw the charge ns it was to be believed to bo merely a drunken freak.

Hia Worship asked if (hero was anything to support a criminal charge, if ao the man ought to be prosecuted. The prosecutor was called, and in reply to His Worship said prisoner was not authorised to collect the money, but if ho had handed the cheque over ho would have thought prisoner had done the proper 'thing in coliectrrgit. Re would not say whether theprisoner meant to defraud him. He would not have thought so from his collecting the money, and did not suppose he would have come back if that was bis intention. He supposed prisoner would have given him the money at once if he had not gone into bad company. It was all a public house business. Ho laid the information because prisoner went away with the money.

His Worship said he would take time to consider whether ho should allow the information to bo withdrawn, and remanded prisoner till to-morrow morning. Prisoner asked if he could get bail and His Worship said he would see about that tomorrow.