RESIDENT MAGISTRATE'S COURT.

West Coast Times, Issue 116, 31 January 1866, Page 3

RESIDENT MAGISTRATE' S COURT.

Tuesday, 30 ru Jxxuarv, fßcforo a. a. FilzGorald, Esq., R.M.) DiiUNKKXxnss. — John Feonoy, for boing drunk, was fined 20s, or forty-eight hours' iniprisoninonr. Luxacv. — John Mulheriie. nrrested for being of unsound mind, was discharged on Dr Rylcy's certificate. De'stuucxiox of PjtoPKim', — Georgo Smith pleaded guilty to breaking a window in tlio Qucenslown llotcl, and was lot off by paying tho damage, 20s.

civir. casks.

Ek v. M'ftjnnoss. — An action for Ll7 9s 10ft, for work and labor done. Mr South nppenrecl for tho defence, mid admitted L 5 12s 10(1. A ( vcvdict for L 5 ds was given. Swanson and Co v. Cnvey. — This wtiß an adjourned case — L 5 lls 6d, for work and Inbor done. The dofonco was that tho work lintl not been properly performed, and flint payment was withheld till it was. Tho enso was * adjourned for further ovidi'iico. Smith v. Greenwood. — Mr South appeared for the plaintiff. Tin's was an action to recover L 8 10s lOd under tho following circumstances: — Plaintiff" stated that ho had had some credit from defendant, who was a butcher at the Knniori, and went on tho l'ith of Janunvv fo pay him. On getting to his ahop, pinintiu" ' gave defendant a LIO note, nad defendant receipted his bill for Ll 9s 2d. Just niter doing so, a customer enmo into tho shop, mid prior to giving change defendant served him. In the meanwhile defendant had put thonoto under n piece of fat lo prevent it blowing away. After serving the cnstoiner the note was missing, and had not been recovered. It was to get the balance that the action was brought. In defence it was said that the note was put under the fat and wns suddenly missed when the plaintiff wa<* present, and the defendant knew nothing about it. A verdict for tho amount claimed was given. In the ciso of Swanson v. Carey, tho parties came into court subsequent to the hearing, and said the matter had been arranged, plaintiff to perform certain extra work, and to receivo the amount without costs. Powell v. Green. -Mr South for the defence. An notion to recover L 9 5s 6d goods supplied. Some most directly opposite evidence was given, tho representative of the plaintiff swearing that ho had neverrecoivfifl tho money, and the defendant swearing positively that ho hud paid it. There were no witnesses on either sido. The Magistrate considered thai the balance of the testimony was in favour of tho plaintiff, and gave a verdict for the amount claimed. Frater v. Yarey.--An action for L 3 balance of account. The defence was that the defendant was a partner in a firm, and that he had already paid more than his share. The Magistrate held that that had nothing to do with it and that defendant was responsible, and gave a verdict for the amount claimed. Christie and Co v. Nicol.— This was an action for L2O damages alleged to have been sustained by tho ketch John Mitchell, through the neglect of the steamer Yarra, whilst engaged in towing the schooner Victory. Elias • P. Norris said that he was master of the ketch John Mitchell. In icply to the magistrate, the witness said that ho was not a member of the firm of Christie and Co., and bad no regular power of attorney lo act for them. Mr. Campbell, nt this stage of the caso, came into Couri, and appeared for the plaintiff, and at the same time Mr. South appeared for tho defence. Captain Morris was then examined, and said that on tho 3rd of December lie wns in his vessel, and was then lying two miles to 1 lie (southward of tho. channel in the roadstead. When thcro tho Yarra wu» towing the Victory, and through her mismanagement tho latter vessel came into contact with the John Mitchell, carried away her jibbooin and bulwarks, and occasioned other damage, lie toad an extract from some papers which ho said was the log that had been kept by the mate, mid which detailed the accident. Mr. South objected to this being received, as it did not contain any of the elements of a log-book,- but Mr Campbell contended that, as it hid been sworn to by tho '"* /Vitness ns being the log-book, it was not for the other side to question it, unle&s he could prove that it was not what was leprcf-ented. Mr. Campbell further argued that this was merely a coasting vessel, and that therefore tho master of . her was not bound by such strict evidence as would otlierwiss be the case. Mr South said he had an objection to raise, viz., that tho vessel was not a coaster, but was on a foreign voyage at the time. He therefore wished the magistrate to ask whether she was or was not a coaster. In reply to the magistrate, the witness mid thatthe vessel was a coaster, and had come from Sydney specially to trade on this coast. The Magistrate thought that the log should be admitted, and decided that this should be allowed. — Mr South would linve no objection to the case proceeding if the magistrate would take a note of his objection. — Captain Korris then was re-examined, and proved the damage done, and also that the captain of the Victory did all he could to avoid the collision by putting his helm hard down and lulling up into the wind. Had he not done so. he would have struck the John Mitchell amidships. The actual damage done amounted to the sum of LlB, and tho balauce of the money was for detention, &c. — Mr South objected that this was special damage, and the Magistrate concurred with the objection.— In cross-examination by Mr South, the witness said ho could not tell positively where he was nnchoied, but ho was some two miles from the channel. When the Yarra passed him, he hailed her, and nt that time she was far enough fiom him to clear him . At that time the Victory had her fore-and-aft sails set, her foresail, and mainsail, and tho towline was taut. It might not have been hard straight taut like a piece of wire, but it was taut enough to tow tho vessel. Tho Victory was being steered nt the time, and was then muter the command of the Yarra as far as his knowledge went.— Re-examined by Mr Campbell — The 'Victory was in tow at the time. — Captain Nifliol, master of tho Ynrrn, said that he on the 3rd December was proceeding to fho Gothenburg, with tho Victory in tow. Tho latter vessel had all her sails sot. On passing the John Mitchell he was hailed by the master, and ho slackened speed in consequence. Owing to this, the Victory was ontirely under her own control, and could lnvvo gone round tho world if she had pleased. If tho Victory had shifted his rope, hovo in stays, and gono about, the collision would not have occurred. There woro cortuin conditions under which tlio Yavnv undertook towage, and they were those held in his (Mv Souths) hand. — Mr Campbell objected to this being put in, as no conditions could bind his , eliontß, they being in no way parlies fo it. — Tho Magistrate allowed the conditions lo be put in, mid ono of them ran us follows : — "Should flic nuisfor or person in charge of tho Yarra consider tlio snfefy of tlio steamer endangered wliilo having any vessel or vessels in tow, ho reserves to himself tho right, ntany time, lo release liiinsolf from fho town : and ho will not bo responsible for any loss or damago tlmt may occur to any vessel while in tow."— Captain Nichol's cxmniuniion conliw. nucd — Tho Victory, by shifting her tow rope, • could linvo escaped the danger. — Cross-oxum-ined by Mr Campbell — Ho saw on coming into harbor that tlio bowsprit had boon jnoro injuvod Ijinu had boon caused through tho Victory. Ho eased tho vossol, but did jiot nltov her course, and was obligod to go near tho John Mitcholl, da oho lay in tho diroof; ronto to tho Ootlionburg, Ho wont favty ynrdn c\onv of tlio John MUoJioll, If (ho yjwpj jio W lowing (H4 !10t (|0 do, I|(> noiity

Hot help it. Tho tow lino wns slack at tho time, nnd tho tow lino was in tho water. 310 could not B\venv tlmt sho was not undor command of tho steamer, but sho was only partly undor command, as sho had sails set. Ifo did not give nny orders ns to (ho Victory making or taking in sail, as fay na ho roinomborcd. Ho did not fell tho Victory to do anything, but ho d'd toll (ho John Mitchell lo Black their call ', as ho fcaw a collision wns imvitnblc. 110 gavo no orders to tho Victory nt nil, but loft (ho matter (o (heir own direction. Ho did tell thoso ho was (owing (o steer in various ways, — generally to steer directly after him when ho had them in charge In reply to (ho .Bench, (ho wilncss said thai ho had called no survey. Tho other sido had proposed to submit the easo fo nrbitralipn, but as ho did not consider ho was indebted, ho refused to do so. Mr Campbell said, that ns it had been alleged (hat Iho .Lionels had dono more danuigo when faking tho John MitchoH in low, ho would wish lo rccnll tho captain of tho John Mitchell. On this witness being ro-oxnmined, ho onid tlmt Iho only damage dono was breaking off what had been already injured so much, as to occasion Iho slightest touch to bring (hut about. Mr South, in defence, urged Hint fho Yarra wns entirely irresponsible, and tlmt tho nccident wns occasioned wholly through (ho mismanagement of tho Victory. At (he (ime, it had been proved, (hat (ho Victory wns under sail, nnd wns under her own control, so that whatever tho result, tho Victory. nlono wns tho occasion, and tho defendant should not bo held responsible fov the default of tho Victory. It hnd iiat been shown flint there wns nny wnnt of enro ov caution on fho part of Iho defendant, mid it had also been proved tlmt tho tow lino wns sluck nt tho time of tlio collision, (bat tho Victory wns under her own control, nnd (lint it wns'not by (ho ""defendant's own default that (ho misfortune had occurred. Mr Campbell, on tho other hand, argued that it was of no consequence (o (he owners of tho Mitchell ns fo what the conditions of contract, might linvo been between tlio owners of tho Ynvra, nnd (he vessels Hint (hoy towed. Whether fho sails of tho Victory vero set or not had nothing to do with it. If tho captain of tho tug allowed those on board (ho Victory (o set their sails, thai wns at his own risk, and till ho enst oft" his tow lino he was responsible for Iho vessel ho hnd in charge. It was entirely owing to tho bad navigation of fho enpfain of tho Ynvra (hat a collision hnd occurred ut nil, for if ho had kept further away, it could not have (nken place. Tho Magistrate reserved his decision till this day (Wednesday.) The Court then adjourned.