RESIDENT MAGISTRATE'S COURT.

Timaru Herald, Volume XXXIX, Issue 2763, 1 August 1883, Page 3

RESIDENT MAGISTRATE'S COURT.

Tl.UAßU.— Tuesday, July 31th. (Before J. Boswiek, Esq., R.M., and E. G. Stericker, Heq., J.P.) BKFCSISG DUTY. The case of John Cartwright, cook on board the barquo Norman Macleod, adjourned tho previous day, was now resumed. Mr Hmiuersley appeared for tho defendant. Tho captain and second officer gave evidence which showed that tho cook had refused to continue his duty on Sunday afternoon, on being refused leave to come ashoro. Mr Hamcrslcy submitted that no offence under the clairso of tho Act montioned was proved. His client was charged with neglect of duty, and it was not shown that any duty had been required of him which he failed to perform. Tho Bench found that accused hod been impertinent to the captain, and had refused duty, but us tho captain had offered to pay him off, they would not inflict any scntcneo of imprisonment, but merely order that ho forfeit two days' wages. Samuel Groves, Joseph Dingley, John Yarns, John Jauberg, John Burn and Gustavo Anderson, seamen on board the Norman Macleod, wero charged with wilful disobedience to lawful commands on Monday morning. The mou severally pleaded guilty, and on being nsked if they had any explanation to make, the sailmaker said he had been at sea, off and on, for thirty years, and ho had never before been refused leavo to go ashore on coming into v port. Ho had uhvava borne a good character, and did not think lm present captain could give him a, bad one. His real reason for refusing duty, however, was that he did not consider his life safe m the vessel at soa, owing to tho negligoneo of the officers. Timo after time, m bad weather, the poop had been left without an officer ; they nero m the galley or on tho half-deck. These wore the officers, tho first and second mate. Ho had nothing to say against Captain Scoullar, except his refusing him permission to corns ashoro on Saturday night. Another of tho accused, a youth, said tho captain had threutenod to throw him ovorboard, and to hang him up to the yardarm. A third said lie did not want to go to sea again with tho same officers. He had been at tho wheel for hours over his time and no officer about. Captain Scoullar admitted that he hiul threatened to ropes-end tho boy as he was a useless fellow, though paid nearly as much as a man. Ho had always found the officers attentive to their duty. They wero not always on tho poop, but he had always found them somewhere on deck when they ought to be there. Tho sinlmnker nsked leavo to ro ashore on Saturday, and he told him to wait a while and ho would get ashore m his turn. He had taken two men ashore to the doctor and did. not let them off till very lalo, and ho did not waut to havo too many men ashoro at onco. In reply to the Bench, the men severally refused to go back to work. They wero then sontenced to bo imprisoned till the vessel is ready for sea, and then to be put on board. One of tho men said, on hearing tho sentence, "Wo won't work, sir." After tho men had left tho Court, the sentence was varied, making it a month's imprisonment, but the men to be taken out and sent on board when tho vessel is ready for sea. BOROUGH DY-LAW3. Stewart Hamilton was summoned for driving four loose horses through a street m tho Borough on the 22nd inst., contrary to By-law 11, clause 4. Constablo Sullivan proved tho offence, and defendant, who did not appear, was fined 20s and costs 7s. MAINTENANCE ODDER. John Wright, Addington, father of the boy who was sent to tho Industrial School a few weeks ago, having been arrested for horsestealing, was summoned for neglecting to contribute to the boy's support at tho school. Defendant said he was willing to contribute something, but he had never been asked to do so. Inspector Broham askod for an order, and an order for the payment of 83 a week was made. It was stated that the boy was not thon m tho Industrial School, having escaped from it a few days ago. (Before J. Beswick, Esq., R.M.) CIVIL OABKS. Judgment was given for plaintiffs by default m the cases Jaa. Wilson v. Jas. Hay (Tcrauka), claim £2 17s, costs 8s; G. Vaile v. H. Scott, claim £8 10s, coßts 11s. Levels Boad Board v. William Ogg — Claim £1 2s 6d, rates. Defendant appeared and admitted tho claim, and judgment was entered for tho amount and costs. Hay v. Harris — Claim, £4 12s, judgment summons. The judgment creditor appliod for an ovdor to compel payment, with tho usual alternative, but as ho could not show that his debtor had had the means to pay him since his judgment was obtained ho was reprimanded for undertaking, on his application, to show it. The debtor was, however, advised to pay £1 per month if ho wished to keop clear of penalties, and the caso was adjourned for a month. Wm. Barber v. Jas Wallace— Claim £36 3s 6d. Mr Hamersley for plaintiff, Mr Perry foi defendant. This case was continued from Monday, it having been adjourned for tho attendance of an important witness. This was Donald Maclean, of tho firm of Maclean anc Stewart, who was called by Mr Hamprsloy and gave his version of the affair m dispute He Btated that Barber had made arrange ments to sell his stock by auction early m April, and they wero advertised accordingly Before the date of tho sale, however, tho de

fendant, Goorge Wallace, who traded m Timnni as James Wallace, stepped m and bought the lot for a lump sum of £'35. Tho witness drew up tho sale note, which was produced m Court. It was arranged that tho sale by auction should proceod as had been determined on by Barber, but. tho salo was to be held on Wallace's account, tho proceeds being handed to Barber, at least to the extent of £235. He heard nothing of the bargain between Barber and Wallace, boing off, and was surprised that the latter did not attend the sale. He delayed tho salo an hour, waiting for him, but lie did not come. Had the sale realised mere than £235 ho should have puid the excess to Wallace, and expected that Wallace would pay any deficiency to Barber. Mr Perry, for defendant, said he was surprised at the evidence for plaintiff, it was so different from his own instructions, and ho would press tho objection ho had mentioned the previous day against tho jurisdiction of the Court. The point ho would now rely upon was that the affidavit of jurisdiction required by section 34 of tho Resident Magistrate's Act 1867 was valueloss, it having been sworn beforo Mr Hnmersloy aa a solicitor. He submitted, and argued at some length, that a solicitor, as a solicitor, has no more power to tako affidavits for uso m Resident Magistrates' Courts than any other person, and, as a secondary contention, that if a solicitor hits such power m general, tho solicitor to iv party cannot tako that party's affidavit. Tho Supremo Court Rulo 187 gave solicitors of that Court generally powor to tako affidavits or affirmations for use m that Court, but Rule 188 forbade a solicitor acting as solicitor, clork or agent to a porson, to take such person's affidavit or affirmation, and the District Court Rules gave solicitors tho same powers m this respect, and with respect to proceedings m the District Court, as were conferred by tho Supreme Court Rules, but there was no law giving a solicitor, qua solicitor, similar powers, limited or unlimited, m respect of proceedings m tho Resident Magistrates' Courts. The genernl law on the subject at Home, Mr Perry showed, gavo solicitors no such power, — they must be specially authorised. The Clerk of the Court was the" proper person to tako tho affidavit of jurisdiction, ho being specially empowered by section 10 of tho Amending Act of 1872. Mr Hamersley replied, and His Worship said he would tako time to coubider, as tho point raised was an important one. As to tho merits of tho case, ho had no hesitation m saying that tho plaintiff had entirely proved 11's ca?o, anil on the merits ho would give judgment for the plaintiff. Ho must, howover, reservo his decision on tho question of jurisdiction. He thought it would bo a pity if so clear a case were upset on a merely technical ground, but tho point raised was a very important one, and it would be well to have it settled. W. F. Christie v. F. E. Raddon— Claim £3 Is 3d, work and labor done m threshing grain. Mr White for plaintiff, and Mr Perry for defendant. A cross-action, Raddon v. Christio, claim £41 17s, for damages sustained through a breach of contract, was taken at the samo time. A number of witnesses were examined on each side. The facts of tho case, briefly stated, were that Christie, a threshing machine proprietor, agreed to thresh X addon's wheat, m seven stacks ; and promised to do it after threshing for three other parties named, no date being montioned. Instead of going, as promised, ho went to thresh for several other persons besides tho three ho had nnmed, and consequently reached Raddon's four or five days later than ho would have done, had he kept his promise. As soon as tho machine reached the farm, tho heavy Hooding rains of the enrly part of May set m, and no threshing could be done for 11 fortnight. Chriptic commenced to thresh on the lltli May, although Raddon objcuti-d that the stacks' were too wet. He threshed, out two stacks and a portion of another, that day, Raddon assisting to throw off tho wet shoaves from tho top, and though objecting that the stacks were too wet, not actually forbidding the work being gone on with. On tho night of the 11th, some little rain fell, and next morning he forbade them to do any more that day than finish the butt of tho stuck partly threshed. Christie then refusod to wait longer, giving as reasons that his men would not stay, ami that other machines wero at work. Ho look his machine away, and declined to return until it should suit his convenience, and later, professed his inability to return lit all. Raddon had considerable difficulty m getting another machine to finish his threshing, and when ho did so libd to pay an extra price for tho work. Ho claimed ns damages tins extra cost of threshing, a sum of 8s per bag on a numbor of bags of wheat threshed by Christie, which he was obliged to sell at a reduced rate because it threshed wet, and a further sum of 4d per bushel on tho wheat afterwards threshed, as the loss sustained through a falling market owing to Christie not coming to thresh for him 113 soon us ho undertook to do. Ho could have sold at a certain price if his wheat had been threshed before tho rains referred to, and his gmin, he alleged, would till have been iv good order, but since then he had boon uuablo to sell at all. Ho had not, therefore, actually proved his loss, but prices had fallen, as was proved by one witness (Mr W. Evans) 3d per bushel for such whoat during the time tho rains continued. Mr Perry, m addressing tho Court, contended that Christie was not entitled to any payment for what ho had done, seeing that no' had broken his contract, and that his client was properly entitled to be compensated for nil his losses through Christie's improper conduct. Mr White- argued that tho claim fov threshing was for work and labor done, and must be paid for, no matter whnt judgment was given on the counter claim, and m regard to this ho urged that no damages could bo claimed for any loss on tho wheat sold wet, as Raddon had not forbidden that wheat to bo threshed as he ought to have done j that no damages could bo claimed for tho extra cost of finishing the threshing, as Christie was ordered to stop work after ho had begun, although tho stacks wero m no worse condition the second day than when ho began, and that no damages could bo claimed for loss sustained by delay owing to a falling market, as this was a contingency that would not bo m tho contemplation of cither party when tho agreement to do tho work was made. Several decisions of English Judges on eases of more or less similar nature were quoted, anil His Worship took time to consider these, and adjourned tho case and the Court till 11 a.m. to-day.