HEPBURN V. A. J. SMITH.

West Coast Times, Issue 149, 10 March 1866, Page 2

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 of the 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 Mac'assey (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 o£ the circumstances from which the case arose, the William Miskin [ might have been a chartered vessel or differently owned. Beyond that, the legality of the decision by which the plaintiff had been made liable was questionable. If the contract between the consignee and the master was an illegal one, by being a contravention of the Steam Navigation Act, the consignee 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 defendant to take advantage, against the plaintiff, of his own wrong He held the ownership to be sufficiently proved by the defendant's admission, by theagreementproduced, 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.

Total Loss ov the Schooner Boscabn. —Tho subjoined particulars of tho loss of the Boscarno havo been furnished by Captain Black, late master of tho unfortunate schooner. Tho Boscavno left Hokitika fov this port; on Janvavy 13, and had N. and N.W. winds to tho 20th. On the morning of tho 25th it came on to blow hard from tho S.W., and tho schooner bore up fov sholtev to Kont's Group, and anchored in the West Covo. On tho followittg morning tho wind suddenly shifted to tho N.E., and blew vory hard. Afc noon tho gale moderated, and tho schooner got under weigh, but on passing tho West Point, she was struitk by a heavy squall, which headed hor off. Tho anchor was let go, but would not hold, and camo homo again, and tho schooner drove on shore. Tho kedgo anchor was got out, nnd with some exertion the schoonor was hauled afloat again, but tho wind and sen kopfc increasing in violonce, and tho ropo having snapped, sho went on shore onco more, and became a complete wreck, the sea making a clean broach over hor. On tho following day, 27th, Captain Black and the crow woro taken off by tho lighthouse pooplo, and romainod until tlio 22nd inst., whon thoy woro taken on board tho Anglo-Saxon bound from Sidney to Melbourne. Captain Black speaks in grateful terms of tho kindness shown to hinißolf and crow by tho people of tho lighthouse, and nlso by Capt. Homans, who brought thorn in his vessel here — Melbourne Argus. The Late Robbery 01? the Western Mail. — Our readors will vomember that ou the night of Friday, tho 2nd instant, the Bathurst mail was stuok-up and robbed by two mon, named John Ford and Seymour, near Pulpit-hill, and that the two robbers were olovorly captured by Serjeant Rooney early noxt morning. Soino of the letter-bags were rocovored afc tho timo of tho capture, but several ofchors woro missing. Tho scone of the robbory was a short distanco from one portion of tho -Western Railway works, and the othor day somo navvies discovered, at a place called Cox's Downfall, about a mile from tho Western Road, some mail-bags, and afc onco gavo information to tho police Constable Banuon at onoo procoodeel to tho spot indicated, and romainod thoro all night. In tho morning he obtained assistance, and removed tho principal portion of tho bags to a place of safety, oomo of tho bags had beon opened, but others woro untouohod. Some bank notes and half notes have been rocovered ; but it is fearod thafc some aro lost, as tho constable saw a man going off with something thafc appeared to bo bank notes in his hand j but he (the constable) could not loavo tho bulk of tho property to ascertain what tho mau was carrying away. Among tho debris tho police discovorod tho private note-book of tho prisouor Ford. The wholo of the property has beon handed ovtv to the Postmaster-General,-— "S.M, Horald.."

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