RESIDENT MAGISTRATE’S COURT.

Evening Star, Issue 2819, 1 March 1872, Page 2

RESIDENT MAGISTRATE’S COURT.

Yesterlav. (Before A. C. Strode, Esip, R.M.) Civil Cases. Proudfoot and another v. Banbury and Treasurer. Mr Haggitt for the plaintiffs, Mr Bathgate for the defendants. The hearing of this case was resumed this morning. For the defence, VV. E. Session, Clerk of the Provincial Council was called. A plan of the Dunedin and Port Chalmers Railway was deposited with the late Clerk of the

Council in terms of the Dunedin Railway Ordinance, as well as a book of reference. He could not produce them not being in his custody. In consequence of a memorandum from the Superintendent they were sent to Wellington br the purposes of obtaining the validation Ordinance. His Honor had telegraphed to Wellington for them, and they were expected by the next mail. Mr Haggitt said there was a copy of them in the Court.

Chares Fynraore. draughtsman in the General Hoad Board office. He produced a map of the West Harbor road district. The roads as laid down in the map were under their jurisdiction. (The proclamation in the Provincial Gormimnt Gazette, defining the boundaries of the district, was produced.) The plan was prepared by authority of the General Road Board. District roads were sometimes one chain wide, and some sixtylinks. The district mad was laid out by authority of the \ est Harbor District Road Board. It was surveyed about three years ago. The authority lor making the map was the order of the Superintendent. The line of road did not appear in the record map of the Province.—John Hartley was called. Ho was proprietor of section 311 in the West Harbor district. Plaintiff had put a fence on a portion of the ro -d line, taking in 25 feet of it. and defendant had made a road on the remainder of the line, which was about 17 feet wide. Notice had been given by the lai tiffs to sake a part of his property for a road line. He was a member and local inspector the Road Board. He recollected that the fence was put up on the 7th of Augu-t. He told the men “it would mi! do.” He sow Mr Proudfoot respecting it, and pointed out that by taking the fence from the neck of laud to Bull Island, he would obtain a better fence, straighter. and costing less, without interfering with the road line. Mr Proudfoot said he would see to it, but no alteration was made. Prior to the fence being put up, the plaintiffs bought the contract for making the road of Johnson, the original contractor. In forming the line of r tad opposite his property it was necessary to throw the stuff over towards the railway. The defendants had not laid earth or trees on the surface of the line. No notice had been served upon the local Road Board, nor had any road been substituted for that faken. At two places the who’e. road had been taken. The contractors had done nothing not absolutely necessary towards construction of the road. To find stuff for railway embankments a quantity of earth had been taken away, the earth had slipped and hurried three panels. Nothing had been broken by tbe contractors for the road, many of the rails were pretty well buried, and would cost something to get out. lu cross-examination the witness srid he had lived fifteen or sixteen years on his property. A sixteen feet road was formed in 1868 of chains in length, and in 1869 a further length of 170 chains. He did not know whether Mr Stratton the engineer, returned. Mr Bathga'-e called David Proudfoot, but prior to examining him asked leave to make a statement. He truste I personally, in conducting the case, he had done nothing to render himse'f unworthy to occupy the position of solicitor in that Court. His Worship was aware that by law certain privileges were allowed to counsel in conducting cases, and it was possible in the course of enquiry that questions might be put reflecting on the reputation of claimants or witnesses in the Court. If, therefore, any party, by intimidation or otherwise, interfered with parties, witnesses, or counsel, with a view to impede the course of justice, he was liable to severe penalties, besides tine and imprisonment, for contempt of Court. He had to call his Worship’s attention to a letter addressed by his Honor the Superintendent, of which he would read two sentences, and he was sure his Worship would not only not approve, but would point out to the plaintiff that he had placed himseff in a very serious position. He might say he fund to his astonishment that the plaintiff, before writthat letter, had not consulted his solicitor. The sentences read from the letter complained to His Honor that Mr Bathgate, a member of His Honor’s Executive in the course of the action then pending, had repeatedly and offensively made statements respecting the management of the affairs of the firm highly detrimental to their interests, and calculated to destroy all confidence in them. Aud further, that they had to complain of several similar interferences in other cases. He (Mr Bathgate) thought such language altogethe unwarrantable, and he wished His Worship to state that he had not been guilty of any such conduct as was attributed to him, and to caution the plaintiff that any repetition of such conduct would render him liable to the penalties referred to. He might say in conclusion that it was quite clear to hia mind that the duty of the Executive was to protect Road Boards against parties constructing works for their own private benefit. The public were not interested in the railway, which was entirely a private speculation. Mr Haggit said of coarse he had r.o right to say anything, but he did not think His Worship had any power to deal with the matter, as tbe penalties alluded to only referred to offences against the Supreme Court. To say the least it was irregular of Mr Rroudfoofc to write such a letter, aud had ho known of his intention he should have sent a message to stop it ; but Mr Proudfoot said the quotations did not refer so much to the proceedings before the Court, but to others of which they had reason to comHe did not know that Mr Bathgate had taken the proper course, and it was occupying the time of the Court by introducing matters of that sort, which only had reference to the Supreme Court. His Worship said in that Court he had no authority to deal with such a matter. If Mr Bathgate felt aggrieved his course was open to him. but the matter had nothing whatever to do with what was passing in the Court.

Mr Bathgate apprehended, if he had been guilty of doing anything improper in conducting the e sse, his Worship could deal with it, and therefore it was competent for him to take notice of the plaintiff's conduct. His Worship said Mr. Proudfoot had not written to him, but to some other person. He did not justify his doing so, nor did he say he had done right. All he said was that he had nothing to do with it L. <>. Beal, manager of the Bank of New Zealand, had no deeds connected with Messrs Proudfoot, Olver, and Ulph’s contract for the construction of the Port Chalmers Railway. He had received a letter from a person signing himself secretary to the Port Chalmers Hallway Company at home, offering him the office of auditor to the company. He was not aware officially that it was formed. D. Proudfoot did not whether the interest

of Proudfoot, Oiver, and Ulph in the railway had been transferred to a company. The witness was subjected to a very long examination, in the course of which Mr Bathgate insisted upon the production of the deed of partnership of Proudfoot, Oiver, ard Ulph, oi all notices served by them for the purchase of land, aud of all plans for the construct on of the railway. Richard Henry Brown stated he had once been in the emp'oy of Mr Stratton. On the 10th of November, 1870, he called on Mr Proudfoot, who said he knew nothing of contracts 0 aud 7, West Harb r, hut could nob obtain the drawings. B. 0. Stratton, engineer to the West Harbor lload Board, had held that position since 1867. The Road Board made roads as they happened to be in funds, and had had in course of construction a road between Dunedin and Port Chalmers. He prepared plans and specifications for contract 6. Mr Proudfoot, by his advice, purchased Johnson’s contract for L 5, with the concurrence of the West Harbor Hoad Board. The plaintiffs had made the railway, but not the road, and the new road was made at the risk of the first contractors. In every pDce where difficulties had occurred he had taken the line for the railway. The road had to bs re-marked in consequence. By the construction of the railway the road would have to go through private property of which the Road Board had not power i o take possession. The fence was erected after the works on the contract commenced. To his knowledge the defendants had been guilty of no negligenc3 in making the road. 'l’he damage to the fence could nt have been avoided unless by going up the hill. If Mr Proudfoot had made road and railway together, the damage would not have been done. He was in Mr Prou ifoot’s employ, and left in September or October, 1870. The further hearing of the case was adjourned till March 28.

This Day, Spence v. Carey.—L3l 16 lid. Mr Stewart for the plaintiff. The claim was for part payment of a horse. The defendant had filed his schedule, and it was sought to obtain judgment for the amount. Defendant not appearing, judgment was given by default for the plaintiff. Christie v. Strong,—L27, for cattle sold and delivered. Mr Stout for the plaintiff. .1, Christie, North Harbor, sold some cattle to two men who called on him ; one was named Ferguson, the other he did not know. Ferguson represented himself as a partner with Strong. Plaintiff saw Strong and got a couple of pounds for the lambs, but he refused to pay more than a pound a hundred for the great cattle. Witness refused to take the amount, and, on calling again, he said he had paid Ferguson. The defendant said ho bought the stock of Ferguson, with whom he was not connected as a partner. In cross-examination, the defendant said a partnership was in contemplation between himself and Ferguson, who was Christie’s nephew. Evidence was called for the defendant to show that Ferguson received L2l 10s for the cattle, Something was said about lambs in Ferguson’s account. His Worship considered from the whole account of the transaction it was evident there had been a deliberate intention on the part of Strong and Ferguson to defraud Christie out of his property. It was plainly a disgraceful dodge. Judgment for plaintiff, L 27 with coats. Triston v. Macdonald and another. —L 25 Is fid. Mr Stout for the plaintiff, Mr Turton for the defendant. This was a claim for commission and wages for the sale of meat in the Octagon market. The original agreement was, that he should have a pound a week in consideration of beef sold and ninepence a sheep for aU mutton sold. After some time the ’principals complained that the profit to the salesman was greater than theirs, and the plaintiff agreed to take sixpence a sheep. He made about six pounds a week. The defence was that the commission ceased by agreement at a certain specified date, and that the plaintiff agreed to sell on wages only. Judgment for plaintiff LI, each party to pay his own costs.