RESIDENT MAGISTRATE'S COURT.

Evening Star, Issue 2813, 23 February 1872, Page 2

RESIDENT MAGISTRATE'S COURT.

Yesterday. (Before A. C. Strode, Esq., R.M.) Civil Casks. Iu the case of Williams and another v. Gore, which had not finish-.d when wc went to press on Wednesday, judgment was given for the plaintiffs for L 5 11s 6d, each party to pay his own costs. Mr Stout intimated that Mr Gore was willing to give the plaintiffs Ll6 allowed by the magistrate as penalty for non-completion of the contract within the time stipulated, should the owner of the properfcyjnot sue for it on account of delay, Proudfoot and Co. v, Banbury and Treasurer. —The hearing of this case was resumed to-day. Mr Haggitt for the plaintiffs, Mr i athgate for the defence. John M'Combie, contractor, for putting up the fencing on the Dunedin and Port Chalmers Railways, said after putting up the fence about six chains and a-half opposite Hartley’s and at Shag Bay, were completely destroyed by earth and branches of trees being thrown upon it, he understood by orders of the lecal Road Board. It woukPcost twice as much to re-erect the fence as in ordinary cases, through the difficulty"of the ground. He estimated the {damage at two pounds a chain. John Matherson, Inspector of Works on the Port Chalmers Railway, saw the fence in course of being destroyed, and spoke to both defendants, who told him the Engineer of the local Road Board had instructed them to pay no attention to the fence, but to make the road as he had marked it out. He believed the engineer was Mr Stratton, once in the employ of Messrs Proudfoot, Oliver, aud Ulph. The fence was partly shoved over an I partly destroyed by earth being thrown Upon it. Both defendants were present, when one of them told him to remove the fence at Shag Bay, or they would bury it. They did bury it to the extent of about two and a-half chains. The damage could have been avoided by a little extra labor iu everyplace. He bad seen rolls of scrub, roots and branches, thrown upon the railway embankments, and a great amount of earth at the back of them, which could not have been taken elsewhere than from the cuttings made by the defendants. In answer to Mr Bathgate : There was so much as to impede the passage for foot or horse traffic. There was a full cart load, aud about a cart load of earth 011 the formation level. In his opinion a culvert would be required at the spot, aud the earth placed at the back would have to be removed before it could done. George Proudfoot, manager of the works on the Port Oha'mers line, said; Eighteen panels of fencing were completely destroyed, and on the southern side of Burke’s eighteen panels more ; and on the north side of Shag Bay twenty panels were completely destroyed. Near Macpherson’s cottage five were partially burned, and near Hartley’s nineteen panels. Three hundred and ten cubic yards of earthwork would have to be removed, placed there by the defendants. Mr Stratton was formerly’ in the employ of Proudfoot, Oliver, and Ulph, and was dis? charged. He was of opinion there was some ill-feeling between Mr Stratton and his brother. He was of opinion that the road works could have been done without damage to the railway. In cross-examination, the witness said he thought the ill-feeling between Mr Stratton and his brother was reciprocal. John Banbury, one of the defendants, had a contract with Treasurer for forming the line from Hartley’s property, including all the places spoken yf by the last witness.

The plaintiff’s fence had been damaged in proceeding with the work. Stonts, roots, earth, and rubbish had been at times thrown on to the embankments, but not on the line of railway. They removed any boujders that went on to the line. The spaces behind the embankments had in places been partially lille 1 up. John Winton, living alongside the line of the Port Chalmers railway had seen the defendants throwing dirt from the formation of the district r<-ad upon the line. He confirmed the evidence already given respecting ihe fencing. G. M. Barr, Provincial Engineer, was inspecting engineer of the railway on behalf of the Provincial Government, specified the amount of damage done, and said if not done wilfully, it might have been averted The drainage was interrupted, and great ex pense would have to be incurred to restore it. George Proudfoot said : All the damage except a few panels was done before the "2'ith December. The line was fenced from Polichet Bay to Burke’s brewery, excepting at three places. Kilgour, a member of the local Eoacl Board, thought the damage could have been avoided, but an engineer was set to superintend the work. Banbury said as he was working under Messrs Smith and Hartley, , inspectors ; and Mr Stratton, engineer, no injury could be laid to his charge. A road was made only in parts to the property. r J his closed the case for the plaintiff. Mr Bathgate asked a nonsuit on the following grounds :—lst. On the ground of defective particulars. 2, Of non-joinder of Mr Chaplin, one of the original promoters of the Port Chalmers Bailway, with the plaintiffs. 3rd. That the question being one involving land title, was without the jurisdiction of tne Court. 4th. That the plaintiff having been a wrong doer, had contributed to his own wrong, and therefor 3 could no recover. stb. That the plaintiff should have substituted ano her 60 feet of ground for that taken before he interfered with the road line. Gth. That the plaintiff had ben guilty of contributory negligence; and 7th, the defendants were performing a public duty. Adjourned to Wednesday next.

This Day. Hay v. Cooper.—LSl 5s 3d, for drapery suppled. Judgment for the plaintiff by consent, with costs. Parke and Curie v. Steven. Stout for the plaintiffs ; Mr Jas. Smith for the defendants. Mr Smith for the defence, maintained that the goods were properly stowed. H. Steven, master of the E. P. Bouverie, said the goods were stowed between decks and the after part of the main hatch. '•! hey were slowed without anything upon them ; the vessel not being nearly full. In his experience in a shipment of stoves, some were invariably broken, however carefully stowed away. The vessel en countered a very heavy gale of wind during the voyage—about a week’s sail from New Zealand, while off Tasmania. The vessel rolled very much, and shipped a good deal water. . A small piece broken off a stove might easily drop down amongst the cargo and be lost. On the shipper in Glasgow asking him to sign a clear bill of lading, be refused, and had a clause specially inserted in the Bill of i ading, making an exception .respecting the stoves. Hugh Falconer, second mate of the E. P. Bouverie, saw the stoves stowed at Glasgow in the hold. They were properly stowed. Stoves were always more or less broken in transit.—Mr Jeffry had bad much expelienee in delivery of stoves from England, an ! invariably found them more or less broken—His Worship considered that to establish a claim of the kind un !er consideration, there must be proof of negligence. Such words as were inserted in the bill of lading did not exclude liability in case of negligence. In this case the stowage seemed to be good. With regard to the pieces, the question should have been raised in the plaint; but, apart from that, it seemed an inevitable consequence of breakage that pieces would be lost. He did not consider there was any proof of negligence. Judgment for the defendant. Smith v. Daniels. L33 15s sd. Mr Gatomore for the plaintiff, Mr Jas. Smith for the defendant. This was a claim for goods supplied and services rendered. Mr Smith, for the defence, pleaded that the litigants were partners. The plaintiff was put into the box, who said he never had any partnership transaction with the defendant. His coach ran as far Palmerston, where it was met by defendant’s, each receiving specific charges for passengers and goods. I Left sitting.]