RESIDENT MAGISTRATE'S COURT.

Timaru Herald, Volume XXXIX, Issue 2832, 20 October 1883, Page 3

RESIDENT MAGISTRATE'S COURT.

TlMAßU— Fbiday, Oct. 19th. (Before J. Beswick, Esq., 8.M.) DBONKENNB33. Jobn Wilson, charged with being drunk m the Main Street the previous evening, pleaded not guilty. Persons arrested on this oharge are usually content to admit the impeachment, but this man entered a defence. He was standing talking to an expreeaman, he eaid, when a constable came up to him and aeked if ha would like a ride m an express. He said no, he was quite capable of walking wherever he wanted to go. The constable then asked him to take a walk with him, and he refused, but the constable took hold of him and dragged him along to the station. When they got there he asked to be taken to see the Inspector, and w»s taken into a room where two other constables were. . He could get no satisfaction from them, they only tried to humbug him, so he went quietly to the cell. The arresting constable said the prisoner was drunk and staggering about, but otherwise was not misbehaving, and was not quite incapable of taking care of himself. Bergeant Cullen, who saw him at the office, considered he waa not capable of taking . care of himself. He was quite drunk, and staggered about the office when brought m. HU Worship (aid ha was sure the man had been drinking, as he was still shaking from the effects of it. The ptiaoner replied that it was a " sort of nerves " he had. He had only had sir or geven glasses of beer m the three or four days he had been m town, and could not be said to have bees drinking.) He was fined 6s or 24 hours' imprisonment. Another first offender was also fined 5s or 24 hours' imprisonment. DISOBBYINQ AJf OBDBB. Augustus Blaochett was summoned for disobeying an order of the Court, made m June, 1882, requiring him to pay 5s a week for the support of one of his children m the Industrial School at Caversham, he having paid nothing since the 9th April last. i Defendant explained that he paid the last amount on April 9tb, and the order was then reduced to 4* a week. The amount now due was JBS Bs. This statement wua made with a self-satisfied air that seemed to imply that it was quite a sufficient answer to the charge.

His Worship took moro notice of tl figures, however, and eajing ho had himse seen defendant going about m ft stato c drunkenness, ordered him to pay tho amour within 43 hours or go to g»ol for a month. CIVIL CASE. T. McClatchie. jun., v. Bank of New Sout Wales — Claim £35, money had and receive for plaintiff's u-e. Mr Haniersley for plaintiff, Mr C. Perr for defendants. The plaintiff's caae rested on tho followin grounds : — At the time the money was paic the plaintiff was manager m Timaru for M P. Cunningham, and m that capacity ha dealings with one Heffernan. Mr Cunningham arranged to lend Heffornan £1100 on uiorl gage, to pay off his liabilities, according to statement furnished by Heffernan himsell and the money was advanced and distributed Heffernan hud, however, omitted from hi statement a bill for £33, held by the Bank o New South Wales, on which, it having beei dishonored, they had sued, and obtaine( judgment. The Manager of the Bank thei (Mr Pringle), hearing of the arrangement spoke to plaintiff about the bill, before tin negotiations were concluded, and the plaintil undertDok to hold any surplus there might bi from the loan, after paying the liftbilitioi named m the statement, to protect the Bank'i claim, saying he expected there would bo i surplus of £29 or so. The £1100 was dis tributed by Mr Hamersley, as solicitor foi plaintiff, and tho matter being a good wbili ia hand, inttrest and commission running or swallowed the possible surplus, so that nc money remained to meet the bill. Soon aftei the loan was negotiated, Mr Pringlo pressed plaintiff to give him a cheque for the amount, and plaintiff replied that he must sco Mr Hamersley to learn whether thore was any surplus or not. The same day plaintiff had to go to Orari on business, and before he left be gave his clerk, Bourdon, »ome £i 5 of his own private moneys, with instructions to pay it into bis (plaintiff's) private account ab the Union Bank, (lhe clerk was not at all clear as to when this money was given into his charge.) While plaintiff was away, Mr Pringle col'oa at the ofEce and told the clerk that plaintiff had promised him a cheque for the bill, and asked for the money. The clerk replied that he had money m his hands belonging to plaintiff, and he would wire to plaintiff for instructions. He did so, but as the plaintiff did not get the telegram be got no reply. In the evening Mr IVingla called at the office again, and believing his representation, that the plaintiff had promised to pay tho amount, the clerk paid it out of the money he had m hand belonging to plaintiff, and Mr Pringlo, it was supposed, credited Heffernan with the amount. Subsequently the plaintiff endeavored to get the money returned, as it was his own private money, and not part of the £1100 advanced by Cunningham. Hia own account at the same Bank happened to be overdrawn at the time, and ho thought one account would bo set against tho othor, and therefore made no very etronuoua efforts to get the matter put right, and it was allowed to remain m abeyance for somo time. Ho was subsequently sued for his overdraft, £24 odd, and paid it, and now sought to get back the money that had been improperly paid to the Bank by tho clerk Bourdon. Tho evidence of the plaintiff and of Bourdon bore out the foregoing statement, Mr Hamersley proving that ho had distributed tho £1100 advanced by Cunningham, none being left over. Tbo defence was twofold— that plaintiff had definitely promised to tike up the bill, and that if the clerk did p&y the money wrongfully, plaintiff subsequently ratified his actioD. As to the promise to pay Mr Pringle (whose evidence was taken at Grey mouth) stated that plaintiff told him, on the morning of the day tho money was paid, that the negotiations for tbe loan wero completed, and he would call at tho Bank with a cheque for the amount of the bill before one o'clock. Finding he did not do co, he went to plaintiff's office and asked the clerk for it. The clerk telegraphed for instructions, and not getting a reply, he asked him to pay it out of the money he had m his hands, suggesting that plaintiff bad no doubt intended it for tht.t particular purpose, believing (hat this was bo, and that the money was part of the loan received from Cunningham. Measrs Stumbles and Ralph stated that they spoke to plaintiff several times about the bill, and he definitely promised to pay the money as soon as the loan was arranged. In proof of the alleged ratification by plaintiff of lhe clerk's action Mr Stumbles, who was interested as tbe original payee, stated that on the day after the money -was paid the plaintiff met him and said he had " settled with the Bank about the bill, and it was all right." Saveral letters from plaintiff to tbe Bank were also produced, the contents of wbich it was urged must be taken to ratify the payment. The case was oomplicatod a good deal by the fact that at the time tho plaintiff's account was overdrawn, and m the communications between tho parties, verbal or written, the two things were more or lest mixed up. The plaintiff jtated that he always considered the overdraft as a sort of set-off to the wrongful payment, but the Bank did not so consider it, and called upon him to pay it off. He refused, and wrote to the superintendent of the Bank about it. Mr Pringle bad m the meantime left Timaru, and been succeeded by Mr Stedman, who was pressing the plaintiff to pay. Mr Pringle came to Timaru again, and bad an interview with plaintiff, the result of which was, according to plaintiff, that he should be allowed time to pay off hia overdraft, m consideration of his endeavoring to get from Hefferaan tho amount of the bill. According to the defence he was allowed time m consideration of there having been a misunderstanding merely, about the taking up of the bill — not m consideration of its having been wrongly taken up. The time to be allowed was to be fixed by the euperintendent, and he allowed to the end of tbe next month. Plaintiff m the meantime was unable to get anything out of Heffernan, and when the time expired he was sued for his overdraft and paid it, being advised by his solicitor to do bo and bring a separate action regarding the present claim. In cross-examining plaintiff and his clerk, Mr Perry enquired where the money left m tbe hands of the latter came from, and how long it had been m the clerk's hands, and they being unable to tell very clearly, Mr Perry asked Hia Worship to believe that it was really part of the advance by Cunningham, and therefore the proper fund for the payment of Heffernau's bill. It was a cardinal point, Mr Perrj said, whether the money was plaintiff's oi not. It was clear that Mr Pringle understood he was receiving money belonging tc Cunningham and not to the plaintiff. Or this point Mr Hamersley replied that the evidence of plaintiff, who alone could know was that the money was his, and as far as the loan was concerned he had himself ahowr that it was all distributed. Mr Perry contended tbat plaintiff had got an advantage from the payment, m being allowed time tc pay his overdraft, a concession which wai sometimes of no small importance to people Mr Hamersley replied that to pay £34 foi delaying a few weeks the demand for £24 would be buying the concession rather dearly Both counsel addressed the Court at som< length, each quoting several cases m supporl of bis view. Mr Perry quoted particularly cases m which it had been held that monej paid by mistake could not be recovered, which Mr Hamersley criticised as referring t< instances m which persons had paid aw a; their own money by mistake, not that o others, as the clerk Bourdon bad done here In bia turn, Mr Hameisley quoted other easei to show that when money had been paid anc no consideration received for it, it wai recoverable. Tbe cose now beforo the Court he argued, was one of this class, the plaintif having received no consideration worth men tioning, and if he did not recover ft, it woulc be a total loss to him. The plaintiff had nc remedy against anyone else, while the defen dants had their remedy against Heffernan am the payees of tho bill. The point was raised by His Worship as t whether, the Barik having obtained judgmen aguinßt Heffernan on the bill, their claio against him, on the bill, was not therebextinguished. Mr Hamersley contended i was, and therefore the bill was waste pape so far as Heffernan was concerned, whethe m the hands of the Bank or of plaintiff. Th Bank, however, had their judgment to re place it, but if plaintiff took up tho bill h could not require Heffernan to pay it. His Worship said he would consider th case, and give judgment next Friday, wbei he would aleo give judgment m the oas Fendall v. Ogilyie. The Court adjourned at 4.30 p.m.

no WAlMATE.— Thtjbsday, Oct. 18. If (Before J. Beawick, E«q., R.M., and I of Stackpoole, J.P.) :)t BRBACHB3 OF BOBOUGH BY-LAWS. W. Howitt was fined lOj for allowing h rhininoy to be on fire on tlio 7Mi iml., nn h Samuel and Robert Androw 5s eueh fc d driving drays on tbo 6th met. without tli owners' names being painted thereon. •y BBEACII OP CANTKIIBUBT CATTIE TBBBrA6 ORDINANCE 1872. ig Jno. Ellen and Geo. Woods were fined 5 i, each for allowing cows to wander on ih ir county roade, near Painstown, on the Bth inel d The defendants did not appear m any o n the casea mentioned. Thooffenco and eervie t- of summons m eaoh case wbb proved by th a police. f > CIVIL CA3K9. j. Johnston v. Lovegrov.) — Claim £7 10*. is This case was brought to reanvar wage if alleged to be duo for services ns cook, n Defendant pleaded not indebted, on thi d ground that be-did not engago plaintiff, am i] was not liable. t, The plaintiff, Louis Johnston, said bo wa c a Pane by birlh. He worked for fivo week ff as o .ok on defendant's farm, and was ongagec c by a man named Bain or Bairn, who wa 9 threshing for defendant. s Mr Lovegrovo, the defondnnt, said tin a threshing was by contract, and ho had nol bin/ „ to do with the engagoraont or payment of lh< r plaintiff. c The casa was nonsuitod. a Damant v. Manchester Bros, and Gold j smith— Claim, £66. r Mr Forstor (of Timaru) for the plaintiff 1 Mr Clement for the defendants. 3 In this case plaintiff claimed £16 as value t of vateroart and tank and caek which wor< 9 taken and sold by the defendants, Bnd £5C r damages sustained by the wronsful sale. 1 The plaintiff m evidence eaid ho had been , threshing at Makikihi this soneon. The i threshing mill was covered by a bill of sale given to defendants. The amount for which s the machinery was Beoured had been paid by j plaintiff m instalments, with the exception of , £75 due next January. When threshing > work was over, plaintiff went to Cbrist- [ church, leaving the engine and thresher with [ Mr Rickman, Waimate. He returned to i Timaru, and wont to Dunedin on the 1.-t ( September, and came back to Waimato on . tho 19th of the came month. He then found , tho machinery which had been loft at Rick- . man's was soM and taken away. Mr John Manchester, onn of the defendants, said the , mill was sold as it was thought plaintiff had > left the ciuntry. The water-cart, tank and tub 1 were not included m tho bill of sale. Tho , value of these was as claimed, £16. Plaintiff ( wa* put to great loss by the silo of tho engine and the articles named. Tho bill of sale was , produced. i In erosi-examination, plaintiff said he had | offered the mill for s.ile m August, but dei fendsnla would not allow Iho sale without their authority, as holders of the bill of sale i Afterwards defendants, at plaintiff's request, i put tho machinery up for sa'e, tho tank and ; cart included, with the engine and mill gear. Ihe sale did not realise the sum put on as reserve. While plaintiff was away m Dunedin three or four summonses were taken out against him for debt. Mr Riekman, auctioneer, Mr Vicker*, and ■ Mr J. Manchester wore examined for defen- . danls. Mr Manchester said under a clause of the bill of salo the defendants were authorised to coll when it was considered that their intereit m the engine was endangered by the action of other creditors, although tho list instalment was not due until January 1884. Summonses had been issued or applied for m this Court before the advertisement of the sale, and the Court bailiff had seized the machinery under a distress warrant Childs v. Damant (the plaintiff). Defendants' witnesies showed the value of the cart and tank to be about £5, the tank being almost moless from a hole near the bottom. Counsel for each eide addressed the Bench i on the evidenoo and legal points of tho case, Mr Forater pressing the plaintiff's claim for vindictive damages, the dofendant having sold i during the plaintiff's absence the machinery, , the last instalment of payment for which did ; not fall due until next January ; selling also at the Bame time the articles claimod for, . which were not included m the bill of sale. , Mr Clement, for his clients, argued that 1 under the clauses of tlio bill of sale produced tho defendants had a perfect right to do as they had done m tho matter, plaintiff having goae away without informing either ! defendants or his other creditors, and allow- , ing judgment to go against him by default m i the B.M. Court and distress warrant! to be | executed by seizure of the machinery m , question by tho Court bailiff. The water , tank and cart were sold as part of the ( machinery, all being sold togethor,as had been i shown by production of Court cases. Tho i balance of tho proceeds of the sale were seized by tho bailiff of the R.M. Court, and operated ( upon for payment of judgments obtained by , plaintiff's creditors. , Decision m the case was adjourned to November let. Sullivan v. Buckingham— Claim £30 2a lOd. , Plaintiff sued to recover amount of contract , wage* alleged to bo duo for shifting rook for , defendant, at Hakateramea. Plaintiff, m evidence, stated the amount was due as a balance for working for defeni dant, who bad a contract with the Waimate i County Council for road making. D.Buckingham (defendant) and his witness, , Mr Hillary, showed that the measurement as [ claimed by the plaintiff was incorrect, and that the work was not done m accordance i with specification. i Judgment was given for plaintiff for 28s, , with costs. Dandy v. Ridgwell and Watdle — Claim , £26 7s 7d. i Judgment by default. , The Court thon adjourned to November Ist, > LIBERTY AND RESTRAINT. ; (Pliiladeiphia Ledger.) ' In these days of unmixed adoration of liberty, we are often disposed to look , upon restraint as it 3 natural enemy, and . as such to regard it with impatience and j dislike. Thus there is a frequent chafing t against all kinds of restraint, even the ; moat wholesome and necessary. The j youth resents the restraints of home and E school ; the lawbreaker those of governa raent ; some would break loose from the ■ bonds of marriage ; others, m the name f of liberty, would use the press, oi r the mails, or the public hall, to corrupt ' and debase the young and ignorant. And 3 there are not wanting those who, withI out any vicious desires or evil intentions, 9 yet gravely advocate the removal of all g restraints, and actually believe that suet; j a course would reflect honor and insure . benefit to mankind. In all this there if , t an utter disregard of the great truth that j restraint and liberty go hand m hand ir s the development of charactor. Indeed i. without the former the latter is imposr sible, A recent writer pithily says :— i "No human being, however great oi • powerful, was ever so free aa a fißh c There is always something that h< t must or must not do, while the fist y may do whatever he likes. Al y the kingdoms of the world put togethei i are not half so large as the sea, and al ° the railroads and wheels that ever wen 7 or will be invented are not so easy ai ' fins." The higher we ascend m th< '• animal creation the more power of re ? straint do we Bee manifested, and th more honor do we instinctively pay. Thi * horse and the dog are at once the mos j intelligent and the most capable of re „ straint of all the lower animals, and th i two qualities are seldom dissociated. It a human races the most barbarous and leas i. intelligent are amenable to no restrain d but that of force. They may bo crushei by tyranny, or bent by the stern hand o o despotism, but of wise restraint, of sub it mission to law and order, of the govern D ment of their passions or impulses, the; 7 know as little as they do of true liberty II As civilisation advances, und as freedor " becomes better understood, m that ver ' proportion does the value of restrain „ become recognised. Intelligence dis c' e coverßthatthe happiness of the communit depends upon the orderly and law-abidin 10 conduct of each citizen, and as fas n as tho people advance m thoughtfa ie ness and wisdom, they become w£ ling to submit to such restriction as aro found noodful. As intelligcnc

'■ increases despotism declines, and as tn; 3r liberty becomes bottor understood tli necessity for certain restnuntsbecomes r< cognised and admitted. Tho wiao an '■' wholesome restraints <.f parental love, < "* family ties, of a good government, c public opinion, and even of social ol servances, arc tho best possible, prepara 3S tions for that self-restraint which is th rock on which all truo liberty is built ; 3 No slavery ia so abject and humiliatin le as that which chains us m servile obedienc t. to our own appetites nnd passions, nn< >f no power on earth can free us from uucl io bonds except tho power of self-restraint ie This power, like nil others, is developei by continual exercise, and ho who resists o contemns all external restraints shut himself out from this development. Thi 19 capacity of yielding to wise, restrain: always leads to tho capacity for Belf ? restraint. Look at tho progress of thi youth who has always been indulged ii s overy whim and never thwarted m an] B desire. Ho grows up selfish and dis j agreeable, and though ho may fancy h( a enjoys liberty he really knows nothing o it. For although he may bend his wil 0 to no one ; though ho m.iy defy al g attempts to influence him ; though c ho may break through tlio bar riera of public opinion, nnd dia regard tho laws of society, ho yet bows ir • servile, subjection to his inclinations, Ik , yields tho roms to his passions, ho is con ■> quered and ridden over by appetite oi ambition, he has no power to guide or to ' control his lower nature, and thus he j becomes a slavo m tho worst poasibk sense, atid to the worst possible master, j On tho other hand, tho loving discipline B of home, teaching tho youth gradually , but steadily to curb his temper nud , control his desireB — tho wiso restraints oi j school or college training him to habits ol f concentration and developing mental » power — tho mild laws of a good Govern- ■ ment enforcing equal rights for 1 all her citizens — all tend to lit him > to understand and to enjoy real ' liberty. While, thon, we honor freedom I nnd rightly work for it, let us also honor wiso and just restraints, and willingly submit to them, knowing that, as the dignity and sublimity of tho universe I depends upon tho obedienco of every j planet to the law 3 which sustain it, so our , highest perfection deponds upon our glad ■ obedienco to tho laws which preserve and . uphold society. i " Entico the trusty Sun, if that you can, From hia ecliptic lino ; beckon the Sky. [ Who lives by rulo then, keeps good company."