RESIDENT MAGISTRATES' COURT.

Colonist, Volume XVI, Issue 1807, 8 September 1874, Page 3

RESIDENT MAGISTRATES' COURT.

[Before L. Bboad, Esq., E.M.]

SATUEDAY, Septembeb sth

West v. Underwood,

Mr Pitt appeared for plaintiffs, and Mr A. Adams for defendant.

In this caso the plaintiff, Mr W. H. West, sought; to recover the sum of £7 16s. as being the value of thirteen boxes of cigars alleged to have been extracted from a case of the same, consigned to him from 1 Melbourne per s.s Albion. After hearing evidence for both sides his Worship gave judgment as follows : —I have come to the conclusion that I cannot admit the memorandum or certificate which purports to be issued under the authority of the Customs in Melbourne as proof of the weight of the box of cigars when shipped on board the Albion. I think we have very strong evidence that it is not the custom to reweigh cases of cigars when they leave the bond, and that the document is in effect nothing more than a memorandum of the weight when the box was received into the bond. The testimony of the ships' officers as to the impossibility of the case having been opened on board is very conclusive, and there is the additional fact as testified by the wharfinger that it was landed here apparently in good order and condition. Mr Pasley and Mr Levien were present when the box was opened, the former noticed nothing remarkable about it, nor was his attention directed to any peculiar circumstances. Mr Levien, says, how» ever, that he did observe indications of the case having been previously opened. This being so, I think he should have given the agent of the ship notice before opening the case, but he appears to have kept his impressions entirely to himself, and not even to have made any remark to Mr Pasley. I cannot help thinking it is more in accordance with mercantile usage to give the agent notice, whenever there is such a conspicuous appearance about a package as to suggest the possibility of a claim for losses or damage against the ship. On the whole Ido not think there is suffioient evidence to fix the defendant with liability in this case. My own opinion on the facts as giren in evidence, is that the case was plundered before it came into the defendant's custody. Plaintiff nonsuited with £111s costs.