RESIDENT MAGISTRATE'S COÜRT.

Wellington Independent, Volume XXVI, Issue 3095, 7 January 1871, Page 3

RESIDENT MA GISTRA TE'S CO URT.

Thubbday, January 5. (Before J. C. Crawford, Esq., R.M.) A PROMISSORY NOTE CASE. Laurie v Eddie. — Claim £8 7s 6d, being the amount of a dishonored promissory note. Judgment by default for amount and costs. ADJOUENED OASE. The adjourned caße — Sellars v Feafcherston — was again brought on. Mr Brandon appeared for the defendant. Mr Izard, who appeared for Captain Sellars, was proceeding to snow fchat there had beon negligence in the mooring, but his Worship the Resident Magistrate refused to admit fcha. iv the former hearing of the case there had been any evidence of negligence brought forward. Mr Izard then contended that if a person was paid to do a particular thing — thafc if he- contracted to moor a vessel properly and securoly, and if the vessel met wifch damage through the mooring tackle being unsubstantial and inefficient, the ( authorities wero clearly liable for non-performance of contract;. Ifc was of no importance whether they knew or did nofc know thafc the material used for mooring was nofc sufficiently substantial ; they should still bo hold liable, inasmuch as they were paid for tho performance of a duty they had manifestly failed to carry oufc. Ifc could be shown thafc not only the Electra had been imperilled by fche unsubstantial nature of tho gear, but that several other vessels had been imperilled from a similar inefficiency ; and thafc fche fact; of the weak nature of the gear had been brought under fche notice of Captain Holliday, and thafc he had refused or neglected to rectify the cause of complaint. Mr Brandon maintained there was no negligence on the part of the Superintendent through his subordinate officers, in mooring tbe vessel ; but even if negligence had been shown, he still contended that tho Superintendent was not liable, inasmuch { as the Superintendent was in fche position of a landlord, having let the wharf to other persons, who by their contract were the receivers of any fees or tolls that mighfc accrue from those using tho wharf. The tenant took all the benefit derived from a vessel lying at the wharf, and was therefore clearly liable for any failure in rendering an equivalent for such benefit. The real reason of the damage was neither due to negligence on fche part of the tenant nor on the part of the landlord, and could only be attributed to the elements — tho violence of the storm. The ring and bolt had held fche Halcione — a vessel half as large again as fcho Electra, for many months ; and after doing so, how could anyone be led to suppose thafc the ring would break with a much smaller vessel. Negligence must be proved, and also a knowledge of fche fact before damages could be claimed. There was ample evidence that precautions had been several times taken by the Harbor Master when it was fouud necessary. Besides, he also thought the plaintiff had acted , wifch reprehensible supinenesa in not taking a little extra precaution on seeing threatening , weather ooming on, which from his own statement and the representations such knowledge led J him to make, he know was coming on, and must J therefore be nullified in his claim. Neither was he bound to allow his vessel to remain in thafc berth. His Worship gave judgment as follows: — I hold that fcho three objections made by Mr Brandon are untenable, and thafc the only question before me is as to whether or nofc fche Superintendent showed negligence in nofc providing efficient moorings. There is no evidence before me to show that there was any defect in fche moorings. The ring ani bolt appear fco have been of ample size and had previously hold for periods of four months eaoh vessels of much larger tonnage than the Electra. Tho objection whioh appears to have been mado by Captain Sellars at the time after the ship was moored, that he did not like iron moorings, appears to me to be a matter of opinion j other shipmasters mighfc prefor iron. Upon fcho evidence before me I shall givo judgment for defendant;. 1. There is no evidence of negligence on the part of fche Harbor Master or his assistants in mooring the vessel. 2. I think thafc the Provincial Government; cannot divest itself of ifcs liability and throw it upon fche lessee. 3. There appears no evidence fco show thafc the moorings were nofc in a proper and sound condition and of reasonable strength. •_.. I hold fchafc fche Superintendent is liable for tlie acts of "bis subordinate, bufc with regard to the Harbor Master this point does not apply, as no negligence is sustained against; him. The best of cables, or of moorings may Bnap by a sudden jerk. There is nothing in the evidence before me to show fchafc this was not the case in fchis instance, and the parting of fche bolt may be i accepted as an accident. j ALLEGED EMBEZZLEMENT— ADJOUENED CASE. Whiteford v Quin. — This case brought by the Captain of the W.V.F. Brigade against; their former sub-treasurer, and adjourned from last weok was again brought on. On fche former hearing of the case, and at the close of the evidence for the prosecution, Mr Allan, counsel for the defence, asked for an adjournment in order to examine the documents and books they had not had an opportunity of doing so before. The depositions for the prosecution and the indictment; having been read, the prisoner pleaded nofc guilty. Mr Allan then called, as a witne63 for the defence, Joseph Bowafcer, builder : I was a member of fche Brigade till about ten weeks, and in 1868 and 1869. I attended the annual meetings for fche. lasfc three years, Mr Quin was at all of them, Capt. Whiteford occupying the chair. In 1869 1 heard him read fche balance sheet at the Odd Fellows' Hall, bufc no objection was made by anyone fchafc monies had been received and were nofc accounted for. It was fche general practice for Insurance Companies to subscribe money annually, and every member of the Brigade was cognisant of ifc. I heard of the money when fcho balance sheet was read, bufc I forget tho amounfc. The balance sheot in 1869 I bolieve was roceived and adopted. I had a conversation with Whiteford on lasfc Saturday, and asked him what ho thought of Morton 'B oaße. I said — "Do you think he has appropriated any portion of thafc money to his own uso P" He answered — " No, I don'fc think he has. And if ho would only come and tell us how he expended the money, I don'fc believe there would be any deficiency. lam very sorry for him." By Mr Izard : I did net get a copy of fche balance sheet in 1869, It is not customary for the treasurer to issue copies of fche balance sheet to members. I don'fc recollect the itemß of fche balance sheet; in that year, and can'b say whether tho item £91 10s was there, but I know there was mentioned money from fche Insurance Companies. There was au Insurance Oflice agenfc (J. M. Taylor) present afc the time. I can't recollect that Mr Quin or anyone else moved the adoption of the balance sheet for 1869. Mr Lancaster called, deposed : lam a member of the W.V.F. Brigade, and was a member in June 1869. I was afc fchafc annual meeting and heard tho balance sheot read. Sums from the Insurance offices were accounted for. Mr J. M. Taylor was present. I heard no objections whatever made. The balance sheet was adopted. By Mr Izard : I could nofc say who moved tho adoption. I could nofc say thafc such an item aB £91 10s was mentioned; it is too long ago to remember. John Holmes called, deposed : In Junb 1869 I was a member of the W. V.F. Brigade ; I was a lieutenant and one of the committee. I attended fche annual meeting of thafc year and heard the balance sheet read. I heard Quin read that money had been received from the Insurance Companies, bufc don'fc recollect; the amounfc. J. M. Taylor, an Insurance Agenfc, was present". I believe the balance sheet was accepted. I know thafc no objections were raised. By Mr Izard : I can't say whether the balance sheet had beon audited, nor do I recollect whether any motion was made for its adoption. This closed the case.

Mr Allan submitted thafc the case should never have been brought iuto Court. Mr Quin was quite willing to account for everything and had always been willing to do bo. An attempt had been made, in bringing forward the case in Courfc, fco lead his Worship to believe that the money had been Btolen, whereas on cross-examination Captain Whiteford was forced to admit that the money was entered in the books. I was quite clear thafc for fcwo years no objections were made. Ifc might certainly have been better if Quiu had j paid the cheque itself into the bank ; bufc there was a variety of ways in whioh money was disbursed iv a Fire Brigade, and there was no doubt ' fchat Quin could satisfactorily explain everything in connexion with this money. He contended I that the case ought to fall to the ground. His Worship then adjonrned the case till fche following day. LARCENY. A charge of larceny against the prisoner was fchen made — of having appropriated to his own use 14s received from Captain Whiteford in 1868 to pay a stationery account. Tbis also was adjourned till the following day.