RESIDENT MAGISTRATE'S COURT.

Southland Times, Volume 2, Issue 78, 4 August 1863, Page 3

RESIDENT MAGISTRATE'S COURT.

mm ,;: -'''MoraA^k^td^tjGttsT.-' y ia ...; ■ IfftnuNK llf the Pubuc? Stbeets,— Jdichael ilKiorand Alexandatf Hendry were fineft&sx-gKifbr'thiroffenceVV;;....-,^,l* A. . •|BY \ AAAcmii'idKSv^A^:'^ * v Sands.— This was" 1 a' case in *»£ the plaintiff claimed damages*! by rea•lMof the refusal of the defendant to deliver rjM r certain books, Entrusted; to Jnm by the •4Bntiff. Mr' Harvey appeared for tho plain-' 'WM'-'Ut Sands, inre'ferehce to a'statement, i^Mr Harvey, that he was prepared to Mndon the case if defendant would] at once Wer up the bookstand piy costs, said that IKoulu prefer te go into the'ease** the inlEatibnoßheßench. * •-fiS^ dw *?Jf JSf^J'' ' l^hewas notinCourtfor thegratiflc^ttonof JMown curiosity, even supposing such a curgßTto e* defendant, -howevavdj £>>, Xmned to go on with .the case. .... WiUiau* Wiuck examined by. Mr Harvey, said that ■KctoSt he 'had landed tothe deW&^W**± casino ok, j« iiKWer, in order to keep his books, tie IBSifed for the books constantly,' but AcWS had declined to give theiuup; he ?B Consequently n# been able to get his Mounts correctly, rendered, and so suffered fcemble loss' There were outstanding IKs "in those books to the amount of LSOO SKldf Two witnesses were then called SEras William Robertson and [A. T. ManMS who deposed to being indebted to the SKtiff for tabling, and to have offered to «him for same, but to have been told that )■ Sd not render them correctly, as S Coks were in defendant's hands. m*Z the case for the plaintiff. iM'defendant said that the plaintiff having ■£ the proprietor of. an hotel -d no bookkeepmg. had placed ins IKtoinhis hands that they might be proaMhfkent He had not been fully paid for MiS and therefore he maintained that Was tlie law in Victoria, and consequently Mo be the law here, that the account SB a lien upon all hooks placed with him «isfeewL paid. His Worship said he Mil not -tecogmse any such law. Defendant S' calie d W. M. Sims, who said that he SBmbered the 31st March, and that plaintiff Sed defendant to make out his accounts X, leave them open ; they were handed iKrtohim, and he said thoy would soon be iWfito get in the money; witness took an Mount rendered to Mr Robertson. At this K"e defendant said he would comply with sßW^estion of the plaintiff s solicitor, and He up th* books and pay costs. Mr Harvey M n applied for the solicitor's fee to be mSried in the costs. The Kesidenfe Magis--iJHte said that the local bar ought to adopt M -District Court rules, and that he would i^Hw-d no fees - n cases uncler L 2°' <aS gV such cases the assistance of counwas not contemplated ; but that from ioKo to LSO he would award L 3 3s ; and wMni LSO to LIOO, L 5 ss. Mr South said (Xt this would be an injustice in small cases, rflien a point of law niight be involved, and ele plaintiff be an ignorant man. His Wor■jjßip said that in such a case it would be the uflity of the Bench to assist the plaintiff. Mr [McDonald proposed a qualification of His [(Worship's rule, to the effect that in the excepjSgnal case cited by Mr South, his Worship JjKould reserve power to award the fee. His Worship could not see it, and said that if he Mice began there would be no end to qualifijjßftions° Mr South said that some 11. M.'s JBere of opinion that it was not in their power » give costs. His Worship said that he had the point yesterday and had made «p his mind. Mr South thought that in pavifßcnlar cases, the fee should be a matter of jSpeal to the Bench. His Worship said that jle disliked appeals. In the case before the Snirt, costs were then awarded to the plaintiff ,ijf L 5 15s 6d. 'Am .Harrison v. Robertson— Mr Harvey, who Appeared for the plaintiff in this case, said ['■iat as it involved a complication of accounts, "M c wou ld refer it in the meantime to an HBccountant, and report this day week to his 9 Monkman v. Kirkwood — Mr Harvey for the Slaintiff, and Mr South for the defendant.— Jhis was a case in wliich the plaintiff sought J> recover LSO advanced on a leasehold pro fßerty ; hut as, from the evidence led, there ppeaied to be a confusion of parties, the loney advanced having been actually given D a Mr Lawson, and their being no direct roof connecting the defendant wifch the said ,50, upon the application of Mr South the ase was non-suited. Plaintiff to pay L 3 18s osts. Hargen and Jaggers v. Watson — Claim •3*. 14s 6d. No appearance of defendant, udgment for plaintiff, L3l 14s 6d, and 15s osts. v. Calder, Blacklock, and Co.— Claim j65, less Llo paid to acconnt — Mr Harvey oi the plaintiff ; Mr M'Donald, for the deendants — Mr Harvey said that this was an ction for recovery of balance due on the ale of a horse, harness and cart. The de - endants alleged payments of further sums of j3andL6, and denied indebtedness to any urn, in fact, that they were by the death of he horse, entitled to damages. He would Sail the plaintiff. David Elliot said iat Messrs Calder, Blacklock and Co., .new a horse which li&had sold to them for 2 months prior to the' 23rd April ; on the ccasion of negotiating the sale, he had said oMr Calder, that he wanted L 65 ; he said, rery well — that he would buy her ; witness hen said "Shake hand over the counter upon t; '' and they shook hands ; the next day he lelivcred within the yard of the firm the torse, or rather the mare, cart, Lc. ; at the ime of thejdelivery he asked defendants to go md look at the mare ; but they said there ras no occasion. On account of this sale he eceived £15 from the firm, arid a bill for the wlance. At the time of the transaction witless said to the defendants that lie did not tnow whether the mare was sound.i In three nonths time he received a letter from the defendants, requesting that the £15 paid by hem should be refunded because' the horse vas dead. ('This letter was produced and dentined.) This was the first and last comnunication he had with the defendants on the Object^ He could not read 'writing. Had tot received payment of the LSO, the subject )f the action. Cross-examined by Mr M'Donild: I cannot swear whether or not I signed l?documeut now produced, certifying that the mare was staunch and sound. I might lave put mymark to that document. I purchased the mare from Mr Adams in April 1861. Mr Calder knew her from having ridden behind her in a " shay." t I cannot say whether the horse was sound at the time of the sale.' She' \vas hot in bad health . lam certain that I did not say to Mr Taylor between the_ 24th April' and' sth May, that I was: glad; Ihad got hpr off my.hahds because she would die, but Mr Taylor said to me, its a'gooa job 'you've sold her, because they'll soon kill her ; I borrowed' subsequent to the pale L 3 from the defendants. By the Bench : lNvo months' ago the firm offered me LlO as the balance of price for the cart, horse &c. • £ refusedy-saying ,; that -I- wanted the' LSO settled up ; on the day of delivery the mare was perfectly sound. Kenneth Mclvor deposed to the cart in which the marjj was generally harnessed being a light one. Thomas Clarke said that he did not remember the time -the marewas r sold 'to the defendants ; Would 6ay it was?about f.the beginning of 1J362 ; remembered to, .have s.een her at the jettyinthepossessioh'of aMr Waugh; saw him | bring her down, when she got bogged up to her belly in a ditch , the cart wa's empty at .the time ; the mare -Hrould.npt, pujl , the cart 'through, so they had' to take her put of harness; could not -say^when'- this' took place. By Mr McDonald: There wasnd great difficulty in extiicating her; could. not say if she -£ er « injured. by the accident.,, plaintiff being recalled said, Waugh never drove for me. i his was the case for f hW plaintiff. By Mr McDonald : William Calder said that in Apnl, 1862, he entered into an arrangement

with Elliott for the, purchase of a cart, harness, and -mare ; the.document now produced certifying the mai-e to be sound was -in witness's handwriting ; Elliot attached his mark ■to it^iii' presence °f a witness.,- after ihe had l-eadit'6ver"t6'him; the; liorse' was 'handed over^'.^augivfrbm wli6'm;-Wltness purchased it withou-t; disclosing his principal ; the horsedid a little work between ,: the jetty and wit •• ness's store ':... cart and harness w.ere estimated at about L2O; the .horse;, at the difference between" that- and L 65,. Gross-examined byMr Harvey : Ido not know if tbe mare died in consequence of having been bogged at the jetty. By the Bench: Witness certified- the mare to be sound and staunch ; he was sober at ' the time. Thomas , Waugh said jthat he received a'hiare from , the defendants near the end of April;" the mare at the time was very poor and, thick ih the wind when ascending hills; would /not know a horse to be unsound unless' it were very ill; worked the marei four or jSve'daysuurihg'' little more than half a day ; turned her but into a paddock after four or five days; she was then very poor indeed and thick in the wind, with:a bad cough ; she .only lived two days after being turned out ; she did not die from any thing witness did to her. By Mr Harvey: The mare was bogged at the wharf two days after she came into my possession ; at the Waihopai Bridge she on one occasion got into the sand in the middle of the road. Mr Harvey : Toll me succinctly what was the matter with the horse. Witness : I am not a veterinary surgeon ; I turned the mare out into a paddock four days or so after I got her ; it was cold wet weather at that time. By 'he Bench . Witness did not know the cause of death ; the mare was never subjected to a post mortem examination. Joseph Scott corroborated defendant's evidence ; at the time of the sale he had noticed that the horse was unsound ; he had said so to his employer, Mr Calder, and he said, " Oh, but Elliot has certified that she is sound." Edward Taylor said that he had had experience in the veterinary line; plaintiff had said to him that he was glad to get rid of his mare ; the mare was screwed in her fore legs, still this would not kill her. Henry Adams, contractor, said he sold plaintiff a mare in 18S1 ; saw her again in April, 1862 ; she was in the same condition as when he sold her, which was not a good condition ; she was very screwed and puffed about the fetlocks ; sh.* was an aged mare ; she was not sound ; Elliot bought her with his eyes open. Mr McDonald then addresspd the court for the defence, dwelling upon the fact that the evidence showed the mare to be uns-jnnd, and that the plaintiff had guaranteed her verbally and in writinsr to be sound. Mr Harvey maintained that the mare at the time of the sale hail not in her the seeds of any disease from which she could have died. But even granting her unsound, it was for the defendants; the moment th ;y discovered that unsoundness, to have gone and represented such to be the case to the plaintiff; but instead *they or Waugh had gone on using her : working her, and tnen had tuttied her into a paddock in the worst of weather, thereby causing her death. The Bench saicl that if Mr Harvey could produce any authority in regard to his statement just made, it would have a beneficial effect on his case. Mr M'Donald produced an authority to the contrary. Mr Harvey moved for a remind, that the point of law might be looked up and considered. His Worship granted a remand to Wedneseay. Grigor v Morton.— Mr Harvey for the plaintiff, MrSuuthfor the defendaut.. Claim of L3O for professional services. Wm. Benson Grigor said that he was a surgeon ; Mr Morton called at his house in May, and requested him to go out to Seaward Bush to see a man who had met with an accident; witness objected to go, but Mr Morton returned again in the evening, ancl pressed him to go ; MiMorton's servant came to him next morning with a horse, and ho complied with defendants request; in November or December Mr Morton asked witness for his iicc-ount, which he rendered; he made no objection at the time, but asked him to bo mo- j derate, as the man was a working man. About the settlement of this account he had saicl, " Come and j I will give you a cheque for L2O ; " witness however declined to reduce; his fee ; defendant then J -aid that ht* would make it L 25, but witness refused ; he had no more conversation with him till about a mouth ago, when witness told him that the account ought to be settled ; he said that he then lost all control of the man whom witness had attended, as he had. left the Seaward Bush; aud that, therefore*, he did not see why he should paywitness's bill; he then offered Ll2, but witness would not take it. Mr South said he did not wish to be offensive, but wa« Mr Grigor a properly qualified mcdii-al man ? The Bench replied in tbe affirmative. The witness, cross-exa-mined by Mr South, said: A servant of his came down and told me that a tree had fallen upOn a man who was working at Seaward Bush as a sawyer ; his name was not George Sawyer, as mentioned in the summons; I was subsequently requested by Mr Morton to proceed to Seaward Bush ; he never said to me that this man was a contractor; I told him that I had urgent cases in town; and he said, "Leave your town patiunu — there is no fear of them dying;" He also said, " You need not bo frightened about the money ;" He might have said that he had money in his hands due by him to the man; defendant never told me the man was his servant ; when the man had left the Bush altogether he told me that he had money belonging to him ; again, after this he said that I ought to have taken the ! offer he made me, as he had at that time money ot the sawyer's in his pos es^ion. j This was the case for the plaintiff. Mr Grigor, ex- ( amined by the Bench, said that when he attended tho man, he (the patient) said that he hoped he would be able to pay. Sir South said that his client objected to pay other men's debts. Ho was in a position to prove that the man whom Mr Grigor attended was a contractor aud not in his client's employ. The man placed a horse in Mr Martin's charge, the proceeds of which were to defray the professional charges, and so Mr Morton offered L2O to the surgeon, which sum was about tlie value of the horse ; Mr Morton had requested Mr Grigor's atlandance out of pure humanity. Mr Morton, examined by Mr South, said that he entered into a contract with George Mezzlebi-ook for cutting timber, and that he was to pay him so much per 100 feet, and that in consequence of an accident to this contractor, he had called upon the plaintiff. Witness said to the plaintiff.at his residence, that he need not be alarmed about his fees, for the man had money in his hands; after visit ing the man threo times, he askod him (defendant) how the patient was getting on; he replied t that he had asked him to get his account, Mr Grigor then handed him a bill for L3O. Mr South said '•' If we were paid at that rate we should all make fortunes." His Worship: "Oh, you are not doing badly." Examination resumed : He told plaintiff that his patient was a poor man and th.it. he had a mare in his possession worth about L 25 and that if he asked for more he would have to sell his tools ; witness offered him a: cheque for L 25, but he (plaintiff) considered it not up to his mark ; witness then saw the man, and he said he would go and fee the surgeon himself, whereupon he mounted the mare and rode away, and neither mare nor man have been seen since ; he had reasons to believe that tho man was on some of the Otago diggings. Mr South here moved for a remand, that a material witness — Skelly, a servant of Mr Morton.'ehould be produced. His Worship asked why he had not been brought down to day. Mr Morton said that he had not had time ; ancl, moreover, that this witness had stuck in the mud uo country some days before. After an enquiry from His Worship as to whether he was still sticking there, the remand was granted, the uefendant paying the costs for the day. The summons was also to be amended by the plaintiff.

i . " ,: I.n short, ladies and gentlemen," said an overpowered orator, " I can only say — beg leave to add — I desire to assure you that I wish I had a window in my bosom, that you might see the emotion of my heart." "Vulgar boy from the gallery : "Won't a pane in your stomach do this time?" A Quick Tkip.— At a recent; trial before £ justice, the following queer colloquy occurred :— Counsel : " Didn't you tell Hooper to go to the devil ?" : Witness : "Iratherlhinkldid.". Counsel: "Well, did he go?" Witness: "I believe not, but if he did, he made a quick 'trip of it for I met him the next day." A farmer, named Marshall, was found dead in \. ..bog, on Slansfield Moor, Lancashire. He had evidently.. heen struggling Over the swamp at that place, for his bundle was found at some distance from his body. He appears to have ultimately fallen on his face and sunk in the bog. He had a considerable sum of money upon him when found. He was last seen alive on Saturday.