DISTRICT COURT, WESTLAND.

West Coast Times, Issue 599, 26 August 1867, Page 3

DISTRICT COURT, WESTLAND.

CIVIL SITTINGS.

Saturday, 24th August, 1867. (Before His Honor E. Clarke, Esq., District Court Judge.) „ The, Cpurt re-opened this ■ morning at 4/}g, o'clock. CHUBCHES AND ANOTHER V. BCANLON AND OTHERS. On the application of Mr Rees for defendants, the Court granted costs up to the time of the discontinuance of two actions. I

OWEN V. BOWLINSHATV.

Mr Rees for plaintiff, Mr Harvey for defendant.

This was an action to recover the sum of L3O on account stated between the parties, viz. on an I O U, and for money lent, and for board and lodging. Plaintiff having proved his claim, Mr Harvey said that defendant admitted the claim as correct. Judgment for plaintiff for full amount claimed;

. Mr Harvey said that defendant had been in prison for five weeks, having been arrested on capias issued on the affidavit of the plaintiff, As defendant had been imprisoned in default of bail, to answer the action, and as that answer had now been given, he (Mr Harvey) apprehended that defendant could no longer be retained in custody. Bis Honor— Certainly not. The order to hold to bail is now exhausted.

Mr Harvey said that with regard to the question of costs he found nothing in the rules which provided for the costs of interlocutory proceedings. He contended that the writ of summons should have been issued in the Supreme Court, and then his Honor could have issued an order to hold to bail. The rule provided that the writ of arrest should be attested in the name of a Judge of the Supreme Court, and therefore he apprehended that the writ should have been sealed with the seal of the Supreme Court, instead of the seal of the District Court. Mr Rees contended that the endorsement on the writ clearly, showed what it was, and although it was attested in the name of a Supreme Court Judge, yet it was sealed with the seal of the District Court, because the proceedings were taken in the District Court. He contended that the costs of the interlocutory proceedings must be made costs in the cause. His Honqr said that no doubt it did

seem rather anomalous that the writ

should be attested in the name of a Supreme Court Judge, and yet sealed with the seal of the District Court. The writ, however, had been issued by him under a gpecial authority from the Governor, which gave him power to issue such writs. He thought that the costs of the interlocutory proceedings should be made costs in the cause.

SMITH V. PONSONBY.

Mr. Rees for plaintiff, Mr Harvey for defendant. In this action Richard Smith was the plaintiff, and Gordon Ponsonby the defendant. Plaintiff in Ms declaration alleged that in, or about the month of December, 1866, the defendant contracted with the plaintiff to lighter the vessel, of which the defendant was the master, and

called the Cland Hamilton, of 28£ tons of s cargo, at the rate of L 2 per ton, and the plaintiff entered upon the work of lightering the said vessel called the Claud Hamilton, and did lighter the said vessel to the extent of twenty tons, when the defendant interrupted the plaintiff in the discharge of the said contract, and refused to allow him to complete the same, wherefore plaintiff claimed, to recover from defendant the sum of L 57 damages. Defendant, in his plea, denied all the material allegationi contained, in plain, fig's depletion, - f

Richard Smith, the plaintiff, examined by Mr Rees, deposed — On the 26th December, 1866, I made an agreement with defendant to lighter the Claud Hamilton of 28 J tons of cargo, at L 2 per ton, (Agreement in writing put in and read). In pursuance of that contract, I entered on the work, and had about half finished, when another lighter came up, and the mate of the Claud Hamilton would not allow me to Complete the work, but said that he would cast my vessel off. At tide time I was thus interrupted I was ready, an 4 willing to perform my contract. I landed the goods I had on board my vessel, the lona, and was ready and willing to land the remainder of them, but was not allowed to take them. I have applied to the agent of the vessel, Mr White, for the money, but he objected to pay me as he said I had no business to go to the steamer, as he had made a contract to lighter the vessel with another party. I should have completed my contract had I not been cast off.

Cross-examined by Mr" Harvey— l applied to the agent for payment,, because the agreement was made with defendant as captain of the Claud Hamilton ; the agreement was made in the roadstead, on board the Claud Hamilton. When I went on board I was not aware • tbat Royse, Mudie and Co. had a contract for lightering the steamers belonging to the Panama line; the agreement produced was made after I had commenced to take cargo on board the lona. I saw Mr White and Mr Royse on that day, but not before I began to take in cargo. I had some small packages, about a ton of cargo on board when they came on board the Claud Hamilton. Mr White told me that I was not to lighter the cargo, for if I did I should not be paid for it. The written agreement was made after Mr White told me that if I took cargo on board I should not be paid for it. When he told me that I got Captain Ponsonby to make the agreement, I know that Mr White is agent for the Panama Company in the port of Hokitika

By his Honor — I first entered into a verbal agreement with defendant to lighter the ship, After Mr White- told me that another person had got the contract, I got defendant to make the written agreement. I have been paid nothing on account of that contract, although I lightered about fifteen tons. I lightered those fifteen tons after Mr White told me that he had entered into a contract with some one else.

By Mr Rees — I had some goods on board when Mr White came.

Mr Harvey submittedthat plaintiff must be nonsuited. Tiie evidence showed that defendant had been sued as master of the steamship Claud Hamilton. Now, although the master of a vessel had power to make contracts on the part of the owner in order to expedite the voyage, or for things necessary for the ship when that vessel was in foreign ports, yet such power ceased when the ship arrived at the port where the owner resided, or where an agent for the ship was located. {Arthur v. Barton 6 M and W, 186.) Mr Rees contended that the case cited by his learned friend did not apply to the present case. Arthur v. .Barton had reference to necessaries supplied for the ship's usebut did not apply to the taking in or dis- ' charging freight. Besides, the contract was made, not when the ship wag in port, but in the roadstead — in fact when the vessel was at sea, and therefore the power of the agent could not supersede that of the master.

Mr Harvey replied, arguing that on the ship arriving at Hokitika the power of the captain to make contracts on the ship's behalf was superseded by the power of the agent. His Honor said the evidence showed that the verbal agreement had been partialy acted on before Mr White, the agent, spoke to the plaintiff. The plaintiff had, however, clearly stated that he relied on the written agreement which had been put in. Now, there could be no doubt that when a man entered into a contract with another, no matter whether he had a right to make that contract or not, and caused the second contracting party to expend time and labor in the execution of that contract, and thus put him to inconvenience, that the first party to the contract so made was personally responsible, Then came the question, who was it was sued in the present action. Was it Captain Ponsonby in his private capacity, or was it the Panama Company through their agent. The declaration would seem to show that it was Gordon Ponsonby in his private capacity, but the evidence showed that in reality it was against the agent of the company. The evidence, therefore, did not support the declaration. He was of opinion that the action (if any action would lie in the case) should have been a special action for damages sustained by plaintiff through defendant entering into a contract which he had no power to make. Being of this opinion, lie had no other alternative than I to nonsuit the plaintiff, with costs.

Mr Rees said that he should lodge the necessary notice of appeal, The Oourfc tlion adjourned to Monday