HEPBURN V. A. J. SMITH.

West Coast Times, Issue 145, 6 March 1866, Page 3

HEPBURN V. A. J. SMITH.

This was an action to recover money paid by order of the Resident Magistrate, Hokitika, and was heard before A. C. Strode, Esq., R. M. Dunedin, on the 22nd ult. We quote from the Daily Times : — Hepburn v. A. J. Smith. — Claim of £98 4s, paid by the plaintiff for the defenant, under order of the Resident Magistrate's court at Hokitika. The plaintiff was master ofrthe steamer William Miskin, in July last, when trading between Dunedin and Hokitika. On one of her passages to Hokitika she put into Nelson, and the Inspector for the Marine Board would not grant the vessel a certificate until a deck-load of timber which was consigned to Messrs Richardson aud Whitton, had been removed. The timber was accordingly left at Nelson. Part of it was, in about five weeks afterwards, forwarded to Hokitika, and the remainder at a subsequent date. The consignees refused to take delivery ; the plaintiff, as Captain of the vessel, was sued at Hokitika for the value of the timber ; and the sum then paid by order of the Court, with the expenses attached, constituted the amount now claimed. The vessel was almost immediately afterwards sold by her owners, of whom the defendant was the registered owner, to the Dunedin Steam Snipping Company ; the defendant, according to the agreement drawn up, holding himself responsible for all .past liabilities. This was the evidence of Captain Hepburn, J. Houghton, junr., and the plaintiff's agent Mr Dempsey, who, in the absence of the register, swore to having seen it, and thereby ascertained the defendaut to have been the registered owner of the vessel. He also produced the agreement of sale, by which the defendant's previous ownership was implied. For the defence, Mr Macassey (instructed by Mr Gilles) took objections to the agreement as evidence of ownership or liability. It applied only to the date at which it was signed ; at the time of the occurrence of the circumstances from which the case arose, the William Miskin might have been a chartered vessel or differently owned. Beyond that, the legaMy%of .the decision by which the plaintiff had been made liable was questionable. If the contract between the consignee and the maste. was an illegal one, by being a contrave on of the Steam Navigation Act, the -> isignee could not legally recover. Mr Dempsey contended that the question of legality did not arise, the goods having been shipped at shipper's risk, and it being impossible for the defendaut to take advantage, against the plaintiff, of his own wrong He held the ownership to be sufficiently proved by the defendant's admission, by the agreement produced, and by his (Mr Dempsey's) evidence. The Magistrate considered that, as the vessel had so frequently changed hands, it was necessary to have absolute proof of the ownership at the time the contract was made 'and judgment given against the plaintiff. The best and only proof of that was the register of the vessel. As it; has not been produced the plaintiff must be non-suited.|

y Wo find it stated in an English scienti.io paper, that the works at tbo Mount Oenis Tunnel aro interrupted, if not susponded, on account of "the intervention of a rock too hard to bo worked.,' It is said "to turn nil the drills, and to dofy any attempt at ponetration."