RESIDENT MAGISTRATE'S COURT.

Timaru Herald, Volume XL, Issue 3019, 28 May 1884, Page 3

RESIDENT MAGISTRATE'S COURT.

TlMAßT7— Tuesday, Mat £7th. (Before J. Beswick, Esq., B.M.,|;and E G. Stericker, Esq., J.P.) DBUNKBNHB9a. , G. Hutcheson, who had a considerable suit of money upon him, when arrested, was fined 109 far being drunk ia the streets. IT/HACK. A man named Josiah Spencs was committed to Sunnyside, on the certificates of Drj lovegrove and Drew, t!>at be is of unsound mind, and unfit to be at large. OlTir, OA3EB. Judgment by default was given m the following ca»es : — Coy and Drummond t. H. A. Eeade, claim £3 Is 7d, coeUlss; Qabitei and Plants v. T. Roberts, claim £3 3s 9d, costs 8s ; E. G. Kerr t. W. Gee, cUim £iO, costs £1 2s ; Sitno v. A. Exley, claim £7 2i 7d, costs 14«; O. Pallfaer t. W. Howley, claim £4 15s, less £2 10s paid since summom issued, balance admitted, judgment for the balance, £2 s>, and costs 7s ; Peieook and Geaney v. A. Fisher, claim £10 16a 6d, costs £1, amount by agreement, to be paid at the rate of £1 a month j Timaru Kerald Coy. v. J. F. MsFadjen, claim £2 >'2s 6d, costs 7s. Tha following cases :— J. Pareona t. Forgatson and McQueen, claim £13 10s; B. Hughes t. T. Shaw, claim £2 13) ; and F. B. Raymond t. I. Cook, claim £2 Is sd, were adjourned till the next Court day. B. GoTie T. G. Poupart, claim £10 12i 6d. Mr Fcrater for plaintiff; Mr Perry for defendant. Only part of the claim waj m dispute, namely £7, tha value of a horae belouging to plaintiff, lo«t by defendant. Plaintiff stated that he bought a horse at Maclean and Stewart's for £6 17s 6d, about three years ago, and put a set of shoes on it at a cost of Bs. He lent it to defendant about a fortnight afterwards and defendant lost it. Defendant wanted the horse to ride to and from bis work, and plaintiff told bim he could hara it, if be would let him have it back when he wanted it, and would pay for it if he lost it. One day last year ( ' the day after George Green went through the Court " was the nearest indication plaintiff could giro of the date) defendant told him be bad lost tbe horse, and said be would pay for it. He bad cot paid for it, nor had he triad to do so. In reply to Mr Perry, plaintiff said he had not been using defendant* bor?es since be lent defendant his, for hii own work. Mr Perry cross-examined some time as to dates and other matter?, without eliciting anything sew. Defendant stated that plaintiff lent bim the horse to ride t> his work. He put tbe hone m a securely fenced paddock with a new gate. George Green came one sight to the paddock with cattl-3, and left the gite open, and the horse got out. He went to look for it the same night, with Green's man, but they could not find it. He searched all over for.it afterwards, and advertised for it, but had" never heard of it from that day to this. He neTer promised to pay for it ; never said a word about payment. Plaintiff had borrowed his horse* and cart "any amount of times " for two years. Mr Perry submitted that m a case of this kind negligence most be proved, and defendant had shown that he took reasonable precautions for keeping the horse safely. He put it into a secure paddock, and some other person left tbe gate open and tbe horse got out and was lost. Be quoted a .-ass from 38 Jjaw Journal, m which a person sued a banker for the value of «eeoritiesj;*tolen from tbe banker 1 * strong room. In that case tbe owner of the securities deposited the box with .the banter lor safe custody merely, retaining- the key bixaielf, ai>d paying nothing for tße- accommodation. Tbe cashier, abstracted some of the papers and absconded. Ibe banker, as a gratuitous bailee, who had taken reasonable precautions, was beld net to be liable for tbe toes, and the Privy Council upheld this decision. His Worship: Tbe banker's s&fd was locked, and would be reasonably considered a secure place. Here the paddock gate was not lacked. Mr Perry repeated that his client had taken good ore of tha horse, and had done ■11 he coald to find it. It was unfortunate that one or other of the parlies must lose, but he did nottbink defendant was liable. Tbere might be ground for an action against Green for leaving tbe gate open. Mr Forster, referring to the csse quoted by Mr Perry, said the defendant's liability might be doubted if tbe gate bad been locked and bad been broken open, but it was not locked. He then quoted a decision m which it was' laid down that a person who loses •mother's property, m such a way, is liable for it unless it is shown that be had exercised the amount of care and prudence and foresight which the most vigilant and careful man would have exercised. His Worship said it wa» tbe boooden duty of a bailee to take especial care of another party's property. This paddock was not ••core, because it was open to tbe acceis of Other people, one of whom left the gate open. In view of this circumstance be did not thin) defendant had taken sufficient care of th< hone to freo him from liability for its loss Judgment would be given for plaintiff for tht • full amount claimed, oott* IQ9, and solicitor', fee, £1 Is. T. Cotter, r. Jas. McDonald, claim £60. Mr Forster for plaintiff, Mr 0. Perry fo defendant. In this case the plaintiff sought to reeove £60 paid to defendant m part pajmeDt fo name sections m the Washdyke Flat township fonr acres m all, tbe total pnrcha»o mone being £110. The plaintiff alleged that th money was obtained from him by fradulen misrepresentations, also that he was a mine at the time tbe money was paid, and 0 coming of age he repudiated the contract. Tbe plaintiff stated be km at work c country on a station belonging to a relative defendant, and talking to bim of settlii dawn near Timaru, defendant Raid be hi f jur acres of land at tbe Wathdyke, snitat for a garden or anything. Defendant said pud £108 for the land, and be wanted £1 for it. Agreed to buy it, and paid £60 account. He was at that time (July 188 under age 1 he became of age m August, 18! He had e« other proof of his age, but woi call his mother. The land he foand afterwsn was fit for nothing, three-parts of it bei ooder water very often. Told bis step-fatr aftsr be had bought it, and he was very w with biro. Had made several requests defendant to return the money, and defend 1 ■aid be did not wish bim to lose aoythii Had never signed any paper m oonnecti

i with the bargain all through. Defendant had f signed a contract, but he had not. 1 Mr Ferry here produced a deed transferring the land to the plaintiff. , Mr Forster repudiated it. It did not signify how many deeds the defendant had caused to be prepared, if the pUintiff was no part; to t them. Plaintiff, crOßi- examined by Mr Perry .- -9 Had n«rer bought any land before ; had done f no cattle dealing before that, but had done , some Binoe. Bought some cows for his stepk father, and took them away again because, he i would not piy for them. He had never borrowed money on the land. Had' borrowed t money to buy a dairy from Mr Molntosh, , and mentioned Iheso sections, but did not , offer them an security. That was after be became of oge. Told Mr Mclntosh the sections must be sold directly, and gave him to ! unriereUnd that he would get the proceeds. I Did not offer the sections as security to Mr < H. Ford. Took a dairy from Mr Raymond, , but did not keep it ; signed nothing m con- . necti m with it, and gave it up after being , there two days. Mr Perry : You " repudiated " that too. Mr Perry then inquired into other business , transaciimsof the plaintiff, with the view of , showing aa he explained to the Bench, that j he was a most astute young roan, a , CHutk>u9 dealer, aud koew as much about bu.-iness an most men. Cross-examination continued : Did not bny . the sections with the view of leasing Mr , Howley's section adjoining, and working the j two together. Did not know the land at all v?h n he purchased it ; had only passed the locality m the train, and hid not taken any notice of it. Was going to look at it before buying, but defendant told him he nerd not trouble himself, and defendant also told him not to tell his stup-faiher. His step-father was very wild when he did tell him. Mra McQrath, mother of the plaintiff, was called to prove that plaintiff was a minor at the time of the trnnsaolion, June, 18S2. She paid her son waa born m County Cork, and would be 23 on Ihe Ibl of August next. He was 17, ehe believed, when they came to Naw Zealand, five year* ago last February. Bhs was not quite sure about his age, bat believed he would be 22 next August. He had been a very good son to her till of late. He bought them some cowa, but took them away again, — they were his own property. He could not do much work till they cirae out, and then he wont up country at onoe and sbe did not see him for two years. la reply to Mr Perry, the witness said she could only tel her son's age, " to the best of her belief," to be 21 last August. His Worship told Mr Forster he had better accept a nonsuit. He could not think of upsetting an agreement under which money had been paid, on suoh evidence. Mr Forater admitted that the proof of the plaintiff's age was unsatisfactory. His Worship was about to eater a nonsuit with costs to i'l*i >> fc' n '> when Mr Perry objected and said ho would like his olient to be called, to show that he did not "take m" the plaintiff. In any case the plaintiff: could not recover the money, as he bad been dealiDg with the sections since he beoama of age. His Worship agreed to hear the evidence, to settle the question of costs. The defendant, a farmer at Seadown, stated I hat he bought the sections at auctian on the 31st January, 1832, for £108, but the; cod him £114 altogether. He sold them to Cotter m June, 1882, for £110, but at that time he did not know what the expenses would hi. He (imply told the plaintiff he had the sections for sale, and they were there for anyone to fee. Plaintiff considered about it some time and then bought them. Had known plaintiff for some time, and always considered him a vrry smart young man. Did not know what his age was when he sold the sections to him. To Mr Forster : Could not say why plaintiff did not sign the contract to buy. Did not know the plaintiff was under age j did not know that (here waa any low about ego. Did not go back to Mr Ziester after the auction and try to get him to take the land back. After the sale agreed to take some other sections, and did get Mr Ziesler to let bim off these. The floods m tbe Washdyke had only been coming over tbe land during the last year or two. Did not remember promising to see that plaintiff suffered no lose on the sections. Mr Zie.'ler, the original owner of the land, was called to prove that the price, £110, was a fair one. Other sections had been sold since at similar pric:s. Defendant had never asked him to take back any of the sections he bought at auction, but he took back some others applied for privately after the sale. He had prepared a transfer to Cotter on the defendant's instructions. His Worship, after hearing this evidence, said he was bound to give a nonsuit, with costs. If the plaintiff could obtain better evidence of hia age (he caee might be brought on again. The costs as well as tbe solicitor's fee amounted to £5 6s 6d. The Curt then adjourned.