The Evening Star FRIDAY, JANUARY 3,1873. RESIDENT MAGISTRATE’S COURT. This Day.

Evening Star, Issue 3081, 3 January 1873, Page 2

The Evening Star FRIDAY, JANUARY 3,1873.

RESIDENT MAGISTRATE’S COURT. This Day.

(Before A. C. Strode, Esq., R.M.) CIVIL CASES. Portobello Road Board v. North.—This was an action for L2S Bs, money alleged to be the property of plaintiff, but now in poasession of defendant as Treasurer of the Board. Defendant acknowledged liability to the extent of LI 7s. Mr Stout appeared for plaintiff. Judgment was given for Ll6 7s 21, together with costs. Bogan and Co v. Smith.—ln this case Plaintiffs sought to recover the sum of L 45, being the amount of a promissory note. Mr Stewart appeared for plaintiffs, and said that defendant had paid the amount of the Bill into the Bank of Otago, at Invercargill, to the credit of plaintiffs. He would, therefore, now ask the Court to award costs of action. Judgment for 1.3 8s and costs. Watson v. J. Lambert —Plaintiff sued for L 35 1 s, the value of a horse injured by coming in contact with broken bottles, alleged to have been thrown on plaintiff’s property, in the North-east Valley, by defendant. Mr Barton appeared for plaintiff, and Mr Smith for defendant. Plaintiff stated that on Sunday, the 27th of Oct. last, he first observed the horse coming home to feed, injured. He examined the spot where the horse had been rolling, and received the injury near to defendant’s property. There was a considerable quantity of glass about the spot. The day being Sunday he did not immediately take action in the matter, but on the following day ho waited on Lambert, who expressed regret .at the accident, and acknowledged that his little boy had thrown glass somewhere near to where the horse hid been rolling. lie now claimed LIS for ten wet ks loss of work at 30s per week, L2O depreciation in value of horse, and 10s farrier’s fee. On another occasion he met defendant, and claimed damages, but deffendant replied that he was not liable. —Thomas Draws said that on the 27th October he was crossing Watson’s paddock in the direction of Pine Hill, and saw the horse in question standing near the plaintiff’s bouu-dary-fence and not far from where he had been rolling. He was wounded in the leg and bleeding freely. About twenty yards from Lambert’s house and near to where the horse rolled, bottles and broken glass were strewn about, but he observed no broken glass on the exact spot where the ‘horse lolled. Agnes Watson said that two weeks before the horse was wounded, she saw defendant’s servant throw a broken gin bottle on to the spot where tiie horse rolled. There was a quantity of crockery and broken glass strewn al'out the ground.—Counsel for defendant submitted that plaintiff had failed to substantiate his case, inasmuch as he had not proved that defendant had caused the broken bottles to be maliciously thrown on to plaintiff’s property, and that therefore the case should be dismissed. —His Worship thought that plaintiff’s case, though weak, was proved, and therefore he would hear the other side.—James Lambert said his dwelling was some fifty to sixty feet from plaintiff’s property, and divided by a fence. lie had seen on several occasions broken bottles on plaintiff’s ground, fifty yards from his house. He did not see any bottles about the place where, the horse appeared to have been rolling. At the time plaintiff sought damages, a piece of glass about the size of half-a-crown was picked up on the spot where the horse rolled. About five weeks after tire accident he said to plaintiff that he was in the habit of digging holes to bury bottles in, as his sou was m the habit of cutting his fingers with them, and not that he was swry his son had thrown the battles on the ground. lie thought the injury the horse had received was very slight. Since this action was brought against him, he surveyed the paddock and found six places on which were broken bottles, but none near to his own house. When plaintiff spoke of damages, and implied that defendant was the cause of the accident, he replied that possibly bis son carried the bottles into plaintiff’s field. The only servant he had in his employ last October was a little girl named Muir. Elizabeth Muir, a child of twelve years, said she lived with defendant in October as nurse-girl, but did nob during that or any other time throw bottles into plaintiff’s field. Robert Farquharsou, V.S., proved that the wound was a mere flesh wound, and not calculated to cause permanent injury. The horse was worth about L2O. Plaintiff was nonsuited with costs. Clarke v. Barron and others. —Mr Stout appeared for plaintiff, and Mr Stewart for defendants. Counsel applied for an adjournment of the hearing, owing to the absence of an important witness. Adjourned for fourteen days. Briscoe and Co. v. Adam. —This case was heard some time ago. but judgment was reserved until yesterday, when his Worship delivered as follows :—The damages in this case were originally laid at L 3 IGs, but as both parties viewed it as a test case the amount was by consent altered to L 6 in order to give a right to appeal, I have therefore only to decide upon the liability, and as 1 am of opinion that the master is liable on the main ground, it is not necessary that I should enter upon the question of the conversion of the pieces of the jaw boxes. The liability appears to me to hinge upon the note “not accountable for breakage of eastings, unless through improper stowage,” and this note, not only from the nature of it, but also from the difference of the haudwritjug appears to have beeu. inserted by the master or the ships agent after the bill of lading had, by the shippers, been submitted

for signature. It may be argued that this has nothing to do with the matter, so ing that the shippers accepted the insertion, and this might be so if the note were free from ambiguity. It may mean either that the proof of proper stowage should lie upon the master, or that the proof of improper stowage should lie upon the shipper or his agents ; and at first glance, from the wording of the note, the proof would appear to lie with the shipper or his agents, iiut, looking at the well-recognised method of proof which the master has by survey before the stowage is disturbed, before bis attention or that of his agents be directed to the damage, 1 am inclined to think that the true interpretation of the note m the bill of lading should run thus—“not accountable for breakage of c tstiugs if properly stowed”— j throwing the onus of proof of proper stowage upon the ship. To escape his general liability (which by the note is virtually admitted), it is incumbent upon the master to prove the proper stowage, which I am of opinion he has not properly done. Proper or improper stowage is more a matter of opinion for exports, than a matter of fact to be ascertained by the evidence of the inexpert, All the witnesses for the defence are in the interest of the ship, and therefore their evidence cannot be regarded as that of experts. The plaintiffs had no opportunity, and c umot be called upon, to prove the negative, when the defendant debarred, them from so doiny by neglecting to inform them of the disaster—if such it were —or to call for survey by competent and disinterested persons, before the stowage was broken. Judgment will, thereb re, be for the plaintiffs, L 3 16s, together with costs.