RESIDENT MAGISTRATE’S COURT.

Evening Star, Volume IX, Issue 2555, 26 April 1871, Page 2

RESIDENT MAGISTRATE’S COURT.

This Day. (Before A. C. Strode, Esq., R, M.) Civil Cases. Reichardt v. Allen.—los. Case dismissed. Cunningham v. Ellison.—Ll9 4s. Mr Barton for the plaint'lT, Mr Stewart for the defendant. This was a claim for the return of monies paid 01 account of wood not delivered through its being burnt. It was agreed that the evidence taken in the case on the last occa io 1 should not be repeated Mr Stewart claiming the right to addresi the Court. He hold that Ellison’s con ract being merely to cat and stack the wood, the measurement was not a condition precedent to the right to sue, and that he had fulfilled his contract and was iu a position to claim, on giving evidence of quantity, irrespective of measurement. Mr Barton drew attention to evidence having been given as to abandonment of the contract. Mr Stewart took exception also to the form of the plaint, which specified money was paid to the use of the defendant, which was not proved hy the evidence. There was an account between the parties which had not been adjusted, and the form of action should have be'ii to recover money had and received without consideration beinggi von for it. Mr Barton a 1 111 it fed that the form of plaint should have been different, and applied for leave to amend it. His Worship decided that, full particulars being given in a second sheet, the conditions of the Act were complied with. Mr Barton replied to Mr .Stewart, and maintained that delivery was not completed through the quantity not having been ascertained. In giving judgment, his Worship said he was of opinion that the contract having been terminated between the parries, all transactions between them stopped at that date ; and if any money had been overpaid or due from one to the other, that money should be repaid by the person owing it. That appeared the only equitable way of looking at the matter. Judgment hj r the plaintiff for the amount claimed.

Spratt v. Kincaid.—L6, for damage done to a stove ; and a further c'aim of L2U for damage done in assaulting the plaintiffs wife. Mr Barton for the plaintiff; Mr Holmes for Mr Macasscy for the defend-.nt. LI 2s 6d was paid into Court. The facts, as given in evidence by Mrs Spratt, were, hat on the 6th of April she sent down three iron stoves to Kincaid and M'Queens —one for repairs, the other two to be broken up for old iron The arrangement was made on the previous Thursday with the 'clerk at the fiuudry. The price of the old iron was to be os per cwt. The stoves were sent down in a van, and she followed. On arrival at the foundry, she found her three stoves smashed up. Mr Kincaid claimed the stoves as his, and on hrr stating they were her stoves, Ir ordered her out. He appeared either very much excited or drunk. She refused to go, when he put his band on her shoulder to put her out. She resisted, and he said he would send for a p diceman. He then repeated the process of putting his hand on her shoulder, shook his fist in her face, and threatened to throw her out of the place, and her old iron after her. On which she withdrew, taking the broken stoves with her. She valued the stove at L 5 or L 6. In cross examination, she said she told Kincaid he was an impertinent scoundrel when he shook his list in her face ; and, if her husband had been there, he would not have dared to have touched her. In cross examination she said all three stoves were sold to Wi'son and Co.’s for old iron. Henry Charles Bell, 13 years of age, stated that he went with the stoves to Kincaid’s foundry, when Mr. Kincaid ordered a man to tumble the stoves out of the van. This was done, and the stove intended for repair was brolc n. A man, apparently a waggoner, said to Kincaid, “send a ham.i.er through it,” o which he sent for a hammer, and, after three blows, sent a fourth through into the oven. The remainder of the evidence confirmed Mrs. Spratt’s statement. For the defence, it was said that breaking up the stove was an accident. Evidence was ■ given to show that No. G American stove could be supplied for L 3 10s., with utensils ; without utensi's L2. D. Turner, clerk to Kincaid and McQueen, said Mrs. Spratt became very violent on the stove being broken up, and was so abusive and loud in her remarks that half the men in the place stopped work and became lookers on. Mr. Windmill, an express man, related what took place on taking the stoves to the foundry. The stoves were thrown from the van to got the dirt out of them, and were put on the scales to be weighed. Two of the stoves were very bad, and the third not much better. John Buchanan, foreman of engineers at the foundry, said when he first saw Mrs. Spratt Kincaid had’gone into one of the shops to avoid her. As he passed her she turned upon him. Her conduct was violent; she was pale with passion, and he thought her a l.ttle in liquor. The defendant said, when the stoves arrived at the foundry, through mistake, the stoves were broken up. Slip called hip} “ap iippertipent scoumlrol," a “black-faccd villain,” and that, if her husband were there, he would make him shako in his shoes. He merely put his hand on her shoulder, quietly and without excitement, to put her gently out, and never shook bis fist in her face. His Worship said

ttatfkpl J affair originated in a mistake, and the plaintiff should he placed in a similar position that she would have occupied had it not been broken. Judgment for the plaintiff L2., each party paying costs. The claim for damages for a-sault was given in favour of the defendant.