RESIDENT MAGISTRATE'S COURT.

Timaru Herald, Volume XXXIX, Issue 2770, 9 August 1883, Page 3

RESIDENT MAGISTRATE'S COURT.

TlSlARU— Wednbsday, Afg. 8. Before J. Beswiek, Ei>q., R.M., and H. H. Hennali, Kpq., J.P.) POLICE CASE 3. A fleet offender was fined 5) for being ■unk m the etreeti tbo previous day. Charleß Townsend, of Waimate, was charged itli disobeying an order of Ilie Court Hint he tould pay 5s per week towards the support ' his wife and two children, tho arrears now nounting to £i 5». Ho pleaded m excuse Ibat be bad requested s employer to p:>y it for him, and ho underood that he had done so. Inspector Broham said this story had been quired into, and found to bo untrm. The man was ordered to pay the amount rthwitb. Civil, CASES. Barbor v. Wallace — Adjourned for dcciDn. Mr Hamenley for plaintiff, nnd Mr 0. orry for defendant. In regard to thi< case, which was heard on o 31st ult., and judgmont reserved on a )int of l»w raised by Mr Perry — namely, nt tho affidavit of jurisdiction bad been forn before a solicitor, who waa, moreorer, c solicitor of tho parly making the affidavit -Hie Worship asked Mr Hamcrtloy whether : had yet found aDy nutbority to support a contention that tho affidavit was good. Mr Hamerjlcy replied that ho had been lable t^ find out, but tho Law Library at imaru was a very small one, and ho would ivo to send to Chriitchurch and have search ado there. His Worship suggested that he should give dgmsnt on tho merits of tho case, und servo tho point of law for the Supreme jurt. Mr Perry said that could not be done, tero was no provision for this Court rerring such points to tho superior Court. :io only way to bring tho matter boforo tho lpremo Court was by judgment being yen for tho plaintiff, when tho defendant u!d apply to tho Supreme Court for a •ohibition order. Even then tho question cnild not bo settled unless this Court choeo defend its action. His Worship was quite clear at present at a solicitor, as a solicitor, had do power to ke an affidavit m connection with this jurt. One caso had been shown m which win laid down that tho affidavit of jur.'sdim should be shown m a certain way j id unless ho were shown to the contrary he ust assume that a solicitor hnd no right to ko an affidavit. Mr llamcrslry sail this would be deciding ;uinst tho practice of twenty years. Ho ked for judgment on tho merits, the point law to bo settled on prohibition. He ould undertake to defend it himself. Mr Perry remarked that this Court had )t been m existence twenty years, and the Mctice, to whatever extent it had been llowed, was of quito rccont origin. Mr when Resident Magistrate, ways inflated on euch affidavits being sworn 'fore himself. After a little further discussion, the case Eli further arij turned fjr a week, m order allow Mr Uantersley to refer tJ tlta Uw )r*ry nt Christchurch for any authority that ny exist on tho point. W. Evans r. K. and W. Hughes— Claim 20, damages for breach of warranty of a achino. Mr Perry for plaintiff, Mr Hnmenley for ifendants. Tliis case aroso out of tho following cirimalanceß: — In March last the plaintiff >ught from defendants a second-hand cbaffitter and horse-power for £22 10s. Tho •ftndants m tho sile note, given a week after slivery of the machines, stated, "We laranteo both horse-power end obnlfoutter und ttnd m good repair And m good working der, and one, two or three horses can be orked therein." The plaintiff Bent his farm onager to defendant's plnco at Saltwater reck for the machines, and he took them to ainliff's form at Waibao. Ho «et them p there and tried them by hand, to sea that icy would work. They appeared to run noothly, but immediately two horsea were nt to and star'cd two cogs broke off ono of to wheels m the horse-power, and examinaon showed that these cogs had been broken T before and bad been fixed on again with vets. On plaintiff being informed of this 0 instructed his man to return the machine ) defendants, and this was done. Demdants refused to receive it, and plaintiff led them for the return of the money paid ir it. He was nonsuited at the bearing, 1 May 22nd, on tho ground that he ought > hare sued for damages for tho breach of arranty, and not for the return of the money aid. Ho then earned the machine to be >ld, and it fetched £10, less auctioneer's linrges, or £8 6s nett. He now sued for the ifference between the price paid by him and iat so obtained — £14 4s; for cost of taking lio machine to the farm, £3 ; of returning it, 12 ss ; and of taking it to the auctioneers, Is i total £20. The defence was that tho machine was sold 9 second-hand, and BufHoiontly sound, and m ufficiently good repair and working order for rdinary work with fair usage. It was aitutted that the machine bad been lovorul imea repaired, but since its last repairing it lad been at work and bad worked Batisfaoorily, so that defendants were justified m lescribing it as sound. Tho manner of the e-salo was objected to, and the olaims for noving the machines about were repudiated. L number of witnesses were called on each side, ,nd tho hearing occupied over four houri. Tho plaintiff said be did not examine the nachine before ho bought it, but secured himclf by the guarantee. J. Dryadale, manager at Timaru for Reid md Gray, stated that ho know tho machine, tnd considered the horse-power had been unlound for a long time, the sole plate being matched, and two cogs m one of the pinions jeiug rivetted en. He had himself repaired t, rivetling on the two cogs. When repaired 10 did not consider the machine sound, or itrong enough to stand more than one horse power. E. Cornish, importer, stated that he bought :he machine, new, for £42, and after using it a fow months sold it to defendants m April, 1879, for £35. The horee-powor was only intended for one horse, and ho aold it ai a ono-horso power, the Bale note, which was produced, proving the latter statement. J. Brion, plaintiff's farm manager, stated tho circumstances undor which the horsepower broke down, by separating of two cogs that had been rivetted on while being camfully dealt with. D. Maclean detailed tho oircumttances of the re-sale on plaintiff's account. Ho offered the machine, at auolion, but obtained no bid, and -was then inßtructod to sell privately for £10 and succeeded m doing 60. That was a fair price. For tho dofenco, R. Hughes stated that the machine wbb m good working order when sold. Shortly before he had beon working it with three horsea. Reid and Gray had repaired it, but only rivotted m ono cog which wa« good still, the two that had given way he bad rivetted on himself. He hid done a good deal of work with it since these cogs were put m, and had out SB much aiSK bags of chaff m a day with it. A breakage ol cogs was a common occurrence, and if wel rivetted on again they would work SB well ai before. Two farmers who bad borrowed th machine, a brother of defendants, and i fourth person who bad worked at it befor the sale, spoke of it as working satisfactorily sometimes with two, sometimes with thro horses. Jaa. Henderson, machinist, stated that i wib a aommon practice to rivet on broke oogs, and if it were well done the vrb.ee

would bo as good as before. He would not consider a wheel unsound becauao it bad cogs melted on. Counsel on both Bides addresaod the Court at sorno length. As to the measure of damages, authorities wore quoted to show thßt this Bhould be the difference between the price paid and (be sum found on re-sale to bo a fair market vulue ; but Mr Perry urged that the machine mu-st be tried somewhere, and plaintiff must lake it to bis own farm to try it ; ho could not be expected to make arrangements for trying it elsenhere. To this Mr Hamersley replied that by such reasoning a man could be bold to have a right to lake a thing to England and bring it back at the seller's cott if it turned out badly. His Worship said tho Bench woro of opinion that the defendants guaranteed tho machine to bo (ound nhen they knew perfectly well that it had lateut defects, the cogs which broke off being those recently inserted. Also, that tho plaintiff had done tho beat he could m the interest of all parties m the ro-salo. They were of opinion, however, that no expenses incurred m taking the machine backward and forward ehould bo allowed. Judgment would be for £li 4s, with cost?. Theeo were costs of Court. £1 13s ; of plaintiff's witnesses £3 12s, and solicitor's fee £1 Is ; bringing up the total to / £20 10s.