RESIDENT MAGISTRATE’S COURT.

Evening Star, Volume VII, Issue 1955, 11 August 1869, Page 2

RESIDENT MAGISTRATE’S COURT.

This Lay. (Before A. Chetham-Strode, Esq., R.M.) DRUNK ANT) DISORDERLY. William White, charged with being drunk and with indecency, was ordered to be imprisoned three days, with hard labor. ILLEGALLY ON PREMISES. James Wilson was charged with being illegally on the premises of James Hutton, of the Australasian Hotel. From the evidence of a shipmate, there was every reason to think that the prisoner is of unsound mind. He shipped as sail-maker in the Challenger, and it was stated that he had been badly used on boa d, and that his aberration of mind was the result of it. His head and whiskers were shaved wljile in the vessel.—His Worship said he should have strict enquiry made in the matter, and in the Wilson was remanded for medical examination. Civil Cases, Kilgour v. Hyman.—This was a case of ejectment. Mr Hodgkins for the plaintiff. The Bailiff of the Court proved having posted the necessary notice, and a warrant was ordered for further proceedings Macfavlane v. Rose. —A claim for L 8 for rent. The defendant stated he had yesterday filed his schedule. The plaintiff pressed the case, and judgment was given for L 7 10s with costs. George v. M'Callum.—A claim for LI, money lent. The defendant did not appear, and judgment was given by default, Fleming v. Robinson. The plaintiff claimed 14s 9d, balance of account. The defendant said the sum sought to be recovered was for one bag of oats that he had not received. The defendant put some questions to show that only one bag was addressed The address was produced, which stated that, by the Golden Age, two bags of oats and three

of chaff had been forwarded. The defendant objected to pay for one bag of oats, which he stated he had not received, on the ground of not being sufficiently addressed.—John Crawford, who attended on the wharf at Portobello, recollected receiving three bags of chaff and one of oats for Robinson. He had received packages previously sometimes each bag was addressed, and sometimes only one of a parcel. On the day in question the ! ticket only gave the address “Robinson,” without specifying the quantity.—John Robinson was called as witness, who said that in ail previous cases each bag was addressed. His Worship said it might be a custom not to address each bag, but it was a very objectionable one. It was not much trouble for a produce dealer to address each parcel sent to a farmer. The least that a customer could expect was that each parcel should be distinctly addressed. No doubt the bag had been delivered to some one else, unintentionally, by the Harbor Company, in consequence of the absence of address. It was a practice that the Court would not uphold. Judgment for the defendant. Slater v. Reid.—This was an action to recover a hay horse, illegally detained by the defendant, value L4O. Mr Harris for the plaintiff. The claimant stated that he was in' the employ of Messrs Murison about sixteen months. During that time he had a bay horse that he placed in the hands of a man, named Hannah, to break in, in consideration of which he was to have the use of the animal. It was twice hurt by a horse kicking it, and ’.he witness left it with Hannah until arrested. Hannah, he believed, had left the country, and witness found the horse at the Cattle Market Hotel, North East Valley, in the possession of John Reid. There was a scar on the horse’s hip by which he knew him. He had warned the defendant not to part with the horse. A witness who had been in Hannah’s employ confirmed the evidence of the plaintiff. The defendant declined to say anything excepting that the team was not his, but belonged to a man named Smith, and he wished the case adjourned till the owner would appear. Judgment for the plaintiff, 1.35 and costs. Rackham v. Bookless—A claim for L7O, the value of a horse purchased by the plaintiff, off Messrs Wright, Stephenson, and Co., as agents for the defendant, with expenses upon it. Mi Wilson for the plaintiff. Mr Macassey for the defendant. Witnesses were ordered out of court. Mr Wilson stated that the action was brought in consequence of a horse which had been warranted sound proving unsound, and that the unsonndness was made manifest as soon as the horse was put to work. The plaintiff said he bought the horse of Messrs Wright, Stephenson and Co, as agents for Mr Bookless. Before buying the horse plaintiff asked Bookless if he would guarantee him sound and staunch. He answered he would, and he took possession of him on the following Monday. On the Tuesday he fell lame and could not be worked. He accordingly wrote to the defendant, and stated he should return the horse, but be refused to receive him. He had been at great expense and inconvenience, in consequence of the lameness of the animal. Iq cross-examination, the plaintiff said, the horse, with another, were put up at auction a few days before, and were withdrawn at L 125. He understood the auctioneers to represent them as sound and staunch. He bid L 220 for them. He saw the horse tried on the Friday : one of the horses refused to poll, and the one purchased proved staunch. He should say the greatest weight drawn from Ander on’s Ray to Manse street was a ton.— John Stephenson, as agent for Bookless, sold two horses to the plaintiff, subject to trial. One did not prove staunch. Mr Packham bought the other, and Mr Bookless, who was present, said he could guarantee the horse sound and staunch. He would not have asked Mr Packham to buy the horse had he not believed it sound. He could not swear that Mr Bookless did not add to the words “ sound and staunch ” as far as he knew.— Charles Prouse, foreman to Mr Packham, said Peckham asked Bookless if he could guarantee him “ sound,” and he said he could. Mr Packham then said he would take him.—John Hogan, carter in Mr Packham’s employ took the horse to work on the Monday and Tuesday. On the Tuesday he had 500 bricks in the dray. It was the usual load for a horse. He thought a brick would weigh about seven pounds. Jeffry Williams heard Bookless on the Friday say to Packham he would warrant the horses sound. He saw the horses tried. The first horse, when he came on the metal, would not pull; the other drew his load as far Driver Maclean, and Go’s If the cost of a couple of horses in Melbourne was LlO5, there would not be any margin for profit at Ll2O after expenses were paid. As a horse-deaL r, he shou d not have been satisfied as to the staunchness of the horse. As to soundness, he did not pay attention He never hail any horse fall lame on the voyage from Melbourne, although he once lost one for which he received compensation from the captain of the vessel. .Samuel Scblesinger, veterinary surgeon, saw the horse at the request of Mr Packham, and examined it with regard to soundness. He found the horse suffering from slight catarrhal fever, which however abated. On examining him further he found inflammation coming on. He found the lamime diseased. In the coronet of the inner quarter of the near fore-foot, there was a longitudinal hollowness of the hoof down to the toe. The hoof had fallen in in a way similar to sand-crack. It was in his opinion worse than a sand crack. On visiting the house again, he found a blacksmith, who said he had taken the shoe off by order of Mr Bookless. On lifting the foot up he found it diseased. J Tattersall found the fore foot in a state of chronic laminitis, and the hoof altered in shape. A dint was then caused by the falling of the coffin bone through the ligaments being diseased. In common conversation if was “an old founder.” The sole was flattened, '1 here was acutp as well as ebronio founder. The acute form might have been produced in an hour. David Hill) a blacksmith, examined the horse’s foot, aud found it to be a little tender. —This closed the plaintiff’s case.—Mr Macassey submitted that the plaintiff must be nonsuited. There had not been one word said, either by the counsel for the plaintiff, or in the evidence, Co fix upon the defendant anything approaching to misrepresentation. Only on a warrant being given could it be said there was a case to answer. When there was a written contract, aud any term of it was left out, anything that had been previously said on the point omitted went for nothing, unless fraud should be shown. That ha- i been decided by Mr Justice Gibbs in the case of Pickering v. Dowson, Stanton’s reports, 781. He also held that Mr Packham having tried the horse, purchased him on his judgment,

and not on the representation of the defendant, and that the disease in the foot could have been discovered, as it was apparent to any experienced eye ; that formed a second ground of non-suit. Mr Wilson replied, and held that the receipt given by Messrs Wright, Stephenson, and Co , was not a contract, and that the only contract entered into was a verbal one.—His VVorship considered that the receipt was equivalent to a contract, and that the law was clear that where a contract was reduced to writing, whatever representations might have been made previously if they were omitted in the contract they went for nothing, were not binding upon the seller, and must be struck out of the case. The plaintiff was nonsuited.