RESIDENT MAGISTRATE’S COURT.

Evening Star, Issue 2980, 6 September 1872, Page 2

RESIDENT MAGISTRATE’S COURT.

This Day. (Before A. C. Strode, Esq., R.M.) JUDGMENT. Proudfoot and another v. Boyd and another.—ln this case the plaintiffs having paid a lump sump of L7OO, the amount named in the charter party for the freight of a full cargo, claim LIDO for damages sustained by them by reason of the defendants having neglected and failed to load the brig Our Hope with a full and complete cargo of timber, in accordance with the terms of the charter party. The charter party, which appears to me to he a very loose and insufficient document, has been put in evidence, and by it the ship was to load a full and complete cargo of timber (not to exceed 360 tons in weight), “ The cargo was to consist of piles not exceeding 57 feet in length, nor a greater diameter than 22 inches at the butts, according to specification, also of sawn timber.” I quote the words of the charter party, and before proceeding further I am called upon to put an interpretation upon them, to gather the intent of the contracting pai’ties with respect to the cargo the vessel was required to load. I am of opinion that the intent was that the ship should load as many piles as could be stowed in her, and that she was to fill up the broken stowage with sawn timber ; that the sawn timber was to he a secondary consideration, to be thrown in after the loading with piles was completed, as the words “ also sawn timber” seem to have been added in the charter party after the primary object of the voyage had been stated. I am confirmed in this opinion by the so-called specification on the back of the charter where the dimensions of no less than 526 piles are given ; but sawn timber is not even mentioned there. Of course the vessel could not take a third part of this number of piles, but I infer from all the circumstances that she was to load as many piles as could be put into her, not exceeding the specified weight, and that sawn timber was to occupy only broken stowage. And this appears to be the interpretation put upon the charter party by the plaintiffs, if not by the defendant, for, although their plaint is for neglecting and failing to load a full cargo of timber, the evidence adduced on their behalf only points to a deficiency of piles—the evidence of the master of the vessel that ho was willing to take, and asked for, more sawn timber, is not being questioned. It was clearly the duty of the master to properly stow the piles on board his ship, and those being of divers dimensions, the plaintiffs were bound to supply them in such order (with respect to dimension) as he should desire, to enable him to fairly suit the varying capacity of his ship at each successive tier of piles ; and this I understand the master to have claimed when he asked the plaintiff’s agent, Robertson, “ to let him choose the piles.” After carefully weighing tlio evidence, wKicli is in many* respects defective, I am of opinion that the vessel was not properly stowed, for Firstly : The piles were not delivered as required. Secondly : The vessel was laden from one bow port only. Thirdly: Nearly all the butts of the piles were stowed forward, And 1 assume the number of piles deficient from these causes to be, as estimaaed by Captain Thomson, seven. I have nothing to guide me in determining how many piles of this deficiency should be charged to the default of the plaintiff’s agent in not delivering them in proper sequence with respect to size, nor how many should be charged to the default of the defendant, but I have concluded to charge four to the former and three to the latter. I am also of opinion that the vessel had room for and could have stowed at least seven piles of average dimensions. The conclusion to which 1 have therefore come is, that the plaintiffs have by the fault of the defendants, lost the freight on ten piles, the

value of which I assess as follows; The vessel actually loaded 122, and if properly stowed would have taken 14 more, making a total of 136, this at L7OO freight for the whole would give Lsl 9s 5d for the ten piles deficient by reason of defendant’s default. The evidence affords me no means of ascertaining the amount of damage sustained by plaintiffs in consequence of delay in delivery of the ten piles, nor (no dimensions having been given) of ascertaining the value of the freight on the sawn timber. I have therefore thrown the one against the other. Judgment for plaintiff, LSI 9s sd, together with costs.

Civil Cases. Bird v. Weekes.—L9 10s lid —The debt was admitted. Judgment by consent for the amount, to be paid by instalments of 10s a week. Clarke v. Henry. Stewart for the plaintiff; Mr Edward Cook for the defendant. This was a claim for rent of premises from January 10th to the 27th of August, amounting to LlO 4s. and the remainder for damages for unlawful occupation. From the evidence it appeared that the defendant was tenant of the house to the date claimed for ; that receiving notice to quit he left, he gave up the key, and subsequently obtained possession of the house by means which plaintiff could not explain, and. refused to leave.—After the evidence of several witnesses had been taken, Mr Cook moved for a nonsuit, on the ground that the plaintiff had no claim for rent, not having been entitled to it for the time claimed.—Mr Stewart replied.—His Worship decided there was a case to answer. —The defendant, in hia cross-examination, said he had consulted two lawyers at first, but did not like the way they went on, for one said he was liable to pay, and the other said not. He then consulted two others iu succession. When he delivered up the key it was partly for a “lark.” The reason why he retained possession of the house was that one of the lawyers told him he had no right to be turned out.—His Worship considered the defence of the lamest character, and that the course taken by the defendant was an attempt to “ do ” the plaintiff out of his just money. Judgment for the plaintiff, Ll2 4s and costs. Evans v. Young.—Llß 5s 4d, for balance of account. Judgment by default for the plaintiff for the amount, with costs. Reeves v. Davis.—This was an answer to a fraud summons, tho defendant being required to state why a judgment of lb-. (Jourt had not been satisfied. Defendant was ordered to pay L 6 14s and costs within fourteen days, or to b« imprisoned one month. [Left sitting.]