MAGISTRATE'S COURT.

Dominion, Volume 4, Issue 1123, 10 May 1911, Page 3

MAGISTRATE'S COURT.

(Before Dr. A. M'Arthur, S.M.) CIVIL BUSINESS. •"AGISTER IS NOT AN IXBUBER." An interesting reserved judgment, delivered in the Magistrate's Court yesterday, was tlmt regarding the case in which John C'arswell, carter, of Wellington, was plaintiff, and John I'yle, farmer, of defendant. The claim was for possession of a • mare and foal, or, m the alternative, tlio sum of -£19 155., the estimated value of the mare and foal. Jlr. U. H. I'ell appeared for plaintiff, and Jlr. Jlachell ior defendant; Plaintiff staled thai, about the month of Jlay, 1910, he had delivered a mare and foal to the defendant to lie agisted and taken care of. Plaintiff had sincu asked for the return of the animals, but could not obtain them as they had been impounded ami sold, owing, it was contended, to negligence on the part of defendant. Defendant denied negligence, and claimed' that such reasonable and proper care had liosu taken as was necessary on his part. "An agister," said the Magistrate, "is not an insurer of thb beasts taken in b,v him, but lie must. take reasonable and proper care of them, and is liable for neglect of such reasonable and proper care. Thus he must make good the loss if he leaves a gate open so that, the agisted animal strays out, and is lost." His Worship considered that the principle laid down by Gibbs, C. .T., was exactly in point, where the learned Judge said: "I admit thai particular negligence must, be proved by occasion of which the horse wfls lost. . If there is a want of due care, and diligence generally, the defendant will bo liable. 'The'question is: Were the defendant's fences in an improper stato at the time that the horse was taken in tn agist? Did he apply such a degree of care and diligence to the custody of the horse as the plaintiff, who entrusted the horse to him, had a. right to expect? I shall leave it to the jury." His Worship, answering the questions asked: above, found that, particular negligence had not been proved, that defendant's fences were not in an improper state when the mare and foal were taken in to agist, and, further, that defendant applied the necessary carc and diligence to the custody of the mare 'and foal.' Judgment was accordingly given for the defendant, but without costs. DEBIT SIDE IGNORED. Deserved decision was delivered in tile case in which the Australasian Temperance aud General Mutual Life Assurance Society, Ltd;, Wellington, proceeded against Sydney James Edkins to recover tne sum of <£15 3s. 3d., alleged to be due as value of two promissory notes made by the defendant, and payable to plaintiffs on 'demand. Defendant counterclaimed for .£27 14s. 4d., as cash refunds and commissions alleged to be due. Jlr. Bunny appeared for plaintitfs, and Jlr. P. W. Jackson for defendant. Defendant had been employed by plaintiffs up till July, 1910, to collect "moneys on commission at a minimum guarantee of =£1 ss. per week. The claim arose out of a .'sum of money collected by defendant for plaintiffs, and which defendant stated had'been stolen. He gave a. promissory note to. cover the amount, and, later, gave another promissory note for a cash advance for steamer fare in connection With his transfer. "I am satisfied that the amounts of these promissory notes are .still due and owing, said His Worship. "Tlio defendant appears to have been always in arrear in forwarding payments to the plaintiff association, so much so that, in April, 1910, his attention- was drawn in writing to the effect that the state of his refund account amounted to <£39 16s. 3d. After receiving a statement of the account between him and the association, lie counterclaimed for ,£27 4s. 4d.,_ gathering the particulars from the credit side of the association list of particulars, and absolutely ignoring everything on the dobit .side. , l.''itrtlier, he drew, an, arbitrary line of his own at December 31, 1909, taking in that date, which contained a credit to him of .£5. His counsel appears. to argue that all refunds were to go to the credit, of the defendant in liquidation of the P.N.'s. How can this be so when there are several refunds' long antecedent to the making of the notes? His refunds were, without doubt, in part payment of his general indebtedness to the association. In his general indebtedness to the association, ho is credited with' all the amounts clainied in his counterclaim, and the association is not now suing him on the general amount due, but on two specific I'.N.'s. made by the defendant." Judgment was accordingly given for plaintiffs for the full amount of the claim and the usual costs, and judgment also for the plaintiffs on the counterclaim, with costs. SALE NOT PROVED. "Plaintiff's books are, by no means satisfactory. 1 believe the statement of the defendant, and will give judgment accordingly, but, as there was some doubt as to the'goods supplied to Jliss Cohen, whether being for herself or defendant, no costs will be allowed." These remarks were made by Dr. A. Jl'Arthur, S.M., yesterday, when delivering judgment 111 the. case, in which Alexander Dimdore, general importer, sued Jane Siegel, ladies' tailor; to recover the sum of £21 Is. 5d., balance alleged to be owing on account of goods supplied. Jlr. Organ appeared for plaintiff, and Jlr. Hindmarsh for defendant. The principal matter in dispute was an account for embroidery, which plaintiif alleged had been supplied in the ordinary way, but which defendant alleged was supplied to her to be sold for tho plaintiff, and, if not sold, to be returned. His Worship held that plaintiff had failed to prove- that the embroidery was an out:and-out sale to defendant. Another matter in dispute concerned goods sold to a Miss Cohen. On this point tho magistrate was also of opinion that plaintiff had failed to show that the eoods were purchased on behalf of the defendant.

: ACTION AND CROSS-ACTION. James Bringins, boatbuilder, of Wellington, sued Peter Reyes, accountant, of Wellington, to recover the sum of ,£lB Gs., balance alleged, to be due for work and labour done, and materials supplied in removing defendant's launch Titania from the Boat Harbour to the plaintiff's yards, removing old engine, refitting new engine, replacing deckhouse, repainting, etc. Mr. J. C. 'Peacock appeared for- plaintiff, and Mr. J. J. M'Grath for defendant. . Defendant filed a cross-action claiming the sum of ,£2O, alleging that, in the month of August, 1910, he had entered into an agreement with Bringins, whereby the latter agreed, for the sum of ,£lO and the old engine, to do the following work to the launch'; (1) Remove the engine then in the launch, and fix in its place a Thorneycroft engine; (2) remove the deckhouse then on the launch, and replace jt by a smaller deckhouse; (3) place the new engine in a separate compartment, and give access to it from tho' deck of the launch. It was further alleged in the claim that Bringins did the work referred to in the agreement in a bad and unworkmanlike manner, and the claim was made in respect of the loss sustained by Heycs owing to the defective workmanship, and unskilful and negligent treatment of the engine by Bringins while effecting repairs. "Both actions are being heard together. Lengthy evidence was taken yesterday, and tlien an adjournment was granted until'9.3o a.m. to-day. when the evidence of a witness from the country will be taken, and a further adjournment granted. UNDEFENDED CASES. Judgment bv default • was given for plaintiffs in the following undefended cases:—Marfco and Whitehead v. William Spencer, ,£1 Is. lid., costs 65.; Town and Country Supply Stores v. Bernard Dicdrich, ,£lO 9s. 6d . costs <£1 15s. Gd.; W. Littlejolm niul Son v. G. H. Herbert. .£2l 10s., costs ,E2 Us.: 11. Oscar Ilowett and Co., Ltd'.; v. Maud Ethel Webb. 25., costs l"s.; Frost and Frost v. William Stevens. .£3 35., costs lis.; Bell. Gully. Bell and Myers v. Bernard Dicdrich, JCH Is. Id., costs If>s.; 11. Oscar Hewett. and Co.. Ltd., v. Benjamin Brodie, XS 175.. cost's ,£1 3s. Gd.: Charles .Tones, trading as Diamond CWectionery Co. v. Robert Beale, r£l!l 2s. 3d., costs .£1 lfls, Gd.: P, E, Eus'sll r; B. Cosgrove, £2" Is. Hd., costs, £2 lis.

JCDGMEXT SUMMOXSi:S. Jfenare J'arala was ordered to pay .El l'2s. to J. Swindale oil or bclort; May 11)11, in default to undergo seven day.-/ imprisonment. It. I,oiv was ordered to pay .£5 lis. 'Id., balance of ail amount due lo the Wellington Timber Company, Ltd., on or before May 23, 1911, in default seven day.-' imprisonment. No order was made in the following cases:—Ct. J!. Wilton.v. Samuel J. J'ridmorc, a claim for .£(> 19.-. Id.; A. Koberts v. Samuel J. I'ridmore, a claim for 11?, Id. POLICE CASES. (Before' Mr. AV. G. Riddell, 5..M.) John AYilliains appearing on remand, pleaded not guilty to a charge of stealing an overcoat valued at !10s., Ihe property of Fanny AYhiltakev. Evidence whs given to the cit'ecf that the coal had been lost from the outside of Mrs. AVhiltakers shop, and it was proved to have been sold by accused to a second-hand dealer for 3s. Accused had previously admitted to Detectivc Cameron that lie stole the overcoat in order that he might bo locked up, and so get something to eat. A line of 20s. was imposed, the option being seven days' imprisonment. An order was made that the coat be returned to the owner on payment of 3s. to the second-hand dealer. A respectably-dressed middle-aged woman, named Kdit'h Alma Vallis, was charged with being a rogue and a vagabond in that she imposed on a private person at Carterton on April 2li, v:ith a view to obtaining money. Mr. P. AA • Jackson, who appeared for accused, asked for a remand until this morning. This was granted, bail being allowed in .£2O and two sureties of .£lO each. AVilliam Brady, who pleadi'd guilty to a charge of indecency at Thorndori Hailway Station, was sentenced to 21 dnys' imprisonment. For committing a similar •offence in a lane off Tory Street at 0.15 p.m., John AVotherspoon was al;o sentenced to 21 days' imprisonment. AVilliam Porter, charged with drunkenness, was lined 5?., with the alternative of 2-1 hours' imprisonment. Two. firstoffending inebriates, who did not appear, were ordered to forfeit their bail (10s. each) or undergo 24- hours' imprisonment. Another first offender was convicted and discharged. Alfred Trez.ise was ordered to my 235. a week towards the sunport of his wife •ind 15s. a week towards the support of his child. Defendant was also ordered to pay .£1 Is. solicitor's fee.