RESIDENT MAGISTRATE'S COURT.

Evening Star, Volume VIII, Issue 2115, 15 February 1870, Page 2

RESIDENT MAGISTRATE'S COURT.

This Day. (Before J. Fulton, Esq., 8.M.) Civil Casks, NON-DKLTVBRY OF A MAIL. Barr t. Moss.— This was an information laid under the 29th section of the Post Office Act, to recover from the defendant LIOO for non-delivery of a mail package at Lyttelton. Mr Haggitt for the informant; Mr Turton for the defendant. The short facta of the case, as given in evidence, wore that the defendant is purser of the steamship Wellington that left Port Chalmers for the Northern Ports on the 12th August last. On that day the mails from Dunedin were delivered to the purser in the presence of Mr J. R. Monson, of the Customs, Port Chalmers, who, on checking oyer the packages as specified in the way-bill, discovered tluvt an error bad been committed in making it out. The way-bill stated that there were five boxes and three packages, but on counting them there were four boxes and four bags. An alteration was made accordingly at the time by Mr Monson. The purser received the mails, and gave a receipt for them in accordance with the correction made by Mr Monson. James Wilkin, postmaster at Lyttelton, proved that on the 13tb August ha received only one package from Port Chalmers by the Wellington, instead of one from Dunedin and one from Port Chalmers. He received no Dunedin mail at all. In reply to questions by Mr Turton it appeared that about that time there bad been a change made in the Post Office system of taking receipts for mails, and that frequent errors had occurred in the waybills. Archibald Barr, the Chief Postmaster at Dunedin said tbe waybill was made out by a clerk named Harris, who had since been dis missed for intemperance. He believed with the exception of the Dunedin bag for Lyttelton, all the other mails were delivered as he had heard nothing to the contrary. With regard to the missing bag be had reason to think it had not turned up, as one or two important letters had not been delivered to those to whom they were addressed, Mr Turton submitted that no case had been established against the defendant, and asked that tbe information might be dismissed on four grounds: — First, that the receipt put in as the receipt signed by Moss did not render him responsible for the safe keeping and delivery of ths mails as he was not the person in charge but only the servant of the captain. The receipt had not been given as a principal, but as one of the officers of the ship, and therefore the information should have been laid against the captain under whose charge was the vessel and everything on board. Secondly, by the Justices of the Peace Act, in tbe interpretation clause, “Justice of the Peace” was defined to be a Justice of the Peace having jurisdiction in the place where the matter of complaint had arisen, and as the matter complained of, tile nondelivery of the mail, had not occurred in Dunedin but in Lyttelton, the Court in Dunedin had no jurisdiction. Thirdly. That the expression in the twenty-ninth clause of the Post Office Act, “ The master or other person,” meant any other person in charge of the vessel—the master or person in place of the master, and the prosecution had. failed to show the defendant was the person in charge. His Worship : You hold it means the captain or master for the time being. Mr Turton : Exactly. And, lastly, the evidence went to show that the mail was delivered to Moss, nothing more. It might have been received by a seaman or any other person on board, but that would not make him the person in charge. Mr Haggitt replied that the Act was very distinct as to the person declared liable. It was not the master or other person having charge of the vessel, but the master or other person belonging to the vessel, having charge of the mail. It was perfectly clear that Moss, the purser of the vessel, was a person belonging to the vessel, and by his acts it was clear he had charge of the mail, as he checked the delivery of it; and when he had ascertained it was correct, he signed for it. That wont to show ho was answerable for the delivery, not tho captain ; and it was in those terms the information was laid against him. With regard to the question of jurisdiction, a Justice of tho Peace was a Justice of tho Peace for tho Colony, and had jurisdiction over every part of it. The whole of Mr Turlon’s arguments wore comprised in those two which he had answered. His Worship : The objection, as he understood it, wm that the| purser signed for the captain.

Mr Haggitt; If he signed for the captain he was still responsible. It was not a question of agency. The master might have undertaken to deliver the mails, and that might subject him to damage in case of a civil action ; but the receipt given p anted very clearly to the fact that the purser was in charge of the mail. Mr Turton said the defence was that the person who should have been informed against, was the captain of the Wellington, an ! not the officer who stood charged with the offence. Francis Holmes, master of the Wellington, said the purser generally signed for the mails on his behalf. On receiving them they were put into the mail-room and locked up. As master of the vessel, the mails were under his charge, as was everything else on board. A gratuity was given to the captain for carrying the mails, of which the purser got no portion. The purser received the mails, and if anything went wrong he (the master) looked to him. He should say no one on board had immediate charge of the mails. As soon as they were put into the mail room they were locked up. Tho purser could go in and out of the room. The lamp trimmer assisted tho purser to take them on board. He was not certain whether the purser kept the key of the mail room or not. He could not say who kept it; ho himself did not. Mr Fulton delivered his decision as follows; —“The ‘other person’ mentioned in the Act is clearly to my mind the person having the immediate custody of the mails. Whatever doubts I may have entertained before on this point have been set at rest by the evidence of the captain, who, after saying that he himself is the custodian of the mails, admits that he dce« not keep tho key of the mail-room, while he states that the purser frequently goes in and out of it. It has been proved to my mind without a doubt, that whatever mistake ■ there may have been in the way bill, the defendant received the missing _ packet cr mail, that he has neglected to deliver it, and that therefore he is responsible for his negligence. Taking into consideration the importance of the matter, and the trouble and loss likely to accrue from neglect to deliver the mails, I must impose a substantial penalty in the present case. Defendant fined L2O and costs. *