RESIDENT MAGISTRATE’S COURT.

Evening Star, Issue 3230, 27 June 1873, Page 2

RESIDENT MAGISTRATE’S COURT.

(Before I. N. Watt, Esq., R.M.) Thursday, June 26. David Macgregor applied for renewal of a slaughter-house license. The application was opposed by the Inspector of Slaughterhouses. License refused. Boenicke v. Frazer, jun.—ln this case plaintiff claimed to receive L2O, being loss and damage sustained through the defendant having, on or about the 10th and 11th June last, wrongfully obstructed and withdrawn water from the Kaikorai stream, whereby the plaintiff was deprived of the use of the water at th° work of his glue manufactory; in consequence of which his said works were hindered and a large quantity of glue destroyed. Mr Stewart for plaintiff and Mr Stout for defendant. It appeared by the evidence adduced for plaintiff that he and de fendant were each proprietors of works situated on the Kaikorai stream. Defendant’s works were situated higher up the stream than those of plaintiff. He (defendant) occupied the premises as flax work a, and had constructed certain dams into which the waters of the creek had been divested. On the date libelled, the flow of water in the creek failed, in consequence of which a quan tity of glue in course of manufacture was destroyed. The case for the defence was that defendant was not owner of the flax mills, hio lease of the premifes having expired two months ago. The Coart sustained the defence, and non-suited plaintiff without costs. M‘Glashan v, Wilson.—This was an adjourned case in which the question of jurisdiction was discussed at great length on a previous occasion. The Court decided the point in favor of plaintiff, and the case was now proceeded with. The plaint-note was as follows :—“Oct. 15, 1868: To value of photographic goods, the property of plaintiff, shipped by him per Helenslee, and sold by defendant at auction L 66 Is 3d.” Mr 'tewart for plaintiff and Mr E. Cook, for defendant. Mr Stewart opened the case by stating that plaintiff carried on business in Edinburgh. In the year 1868 he exported a quantity of goods to one De Maus, then residing in Dunedin. In the meantime, De Maus’s credit became suspicious, and plaintiff found it necessary to exercise his right of haying the goods stopped in transitu. A power of attorney was forwarded by plaintiff to defendant pndpr Which the goods were sold. Numerous applications and endeavors bad been made to get defendant to apppunt for the proceeds. Eventually a power of attorney was forwarded to Mr William Bly, but still no satisfaction could be got. Since the action had been raised, a set-off in the shape of a bill of costs, amounting to L4O, had been put in. He called W. W. Wilson, solicitor, the defendant, who was interrogated as follows t -Did you, in the year 1868. get possession of certain goods on behalf of plaintiff?—! never had possession of any goods. Did you deal with any such goods ?—I instructed Mr I 'e Carle to sell certain goods. In reply to other questions witness said that he did receive a power of attorney from a person in Edinburgh of the name of M Glashan. He did not know whether it was the M‘Glashan named in the summons. He did not know where the power of attorney now was. He believed it might be found amongst some eld papers in Duncan’s store ; dr it might be amongst j sonm papers that were burned. He had not: had any subpm# a to produce the power of attorney. Were you hot spbpjpnaed to pro-! duce all deeds, letters, and documents received from plaintiff or his agent, Mr Sly ? i Yes { blit that does not mention a power of attorney, r Cook ; The terms of the subpoena are too general to warrant a demand for prod uction of any particular document, After the point had been further argued, the witness said that these papers were not now under his control. They were stored along with other papers belonging to Mr Ward, He had not parted with his right of property in these papers. He did not care about putting himself to the trouble and expense of searching through these papers. He meant by expense, the expense of storage. Moreover, he would require to go up into a high loft in the store. He would have to borrow ladders, and all that for the satisfaction of Mr M‘Glashan. It would take him a fortnight to look through them. Mr Stewart: Then I will produce a copy of the power of attorney notarialiy certified.—Mr Cook objected to the production of the copy power of attorney. The notarial certificate, ho contended, was not sufficient evidence of its authenticity.—Mr Stewart replied that in England credence was given to documents authenticated by the signature of a notary public, and the rule invariably followed was that judicial notice was taken of these certificates. The other side having failed to produce the original doou. ment, he contended that the copy as authenticated was admissible as secondary evidence. Counsel cited authorities to show that a notarial certificate was a document recognised by the whole of the commercial world. —The Court admitted the document as evidence on a ruling by Judge Richmond, who laid it down that in Magistrates Courts, apd Courts of inferior jurisdiction, it was the duty of the Judge to get at the facts of the case the best way he could.—Mr Stewart put a question to the witness as to the contents of the power of attorney, in answer to which he said that he had not seen the original document for the last five years.— Mr Cook : Before my learned friend goes any ; further, I have another objection to state to the copy power of attorney being adduced in ‘ evidence. My objection is that it merely; profiles to be the copy of a copy, and not a copy of the original document. Now, while we nake got ; a'certificate tljat it is a correct copy of the copy or draft' of the power of attorney, there is nothing to snow that the copy from which it was taken is a true copy of the original.—After the objection had been argued oh this peiut the Court de*

cided that the power of attorney as produced was not admissible as evidence. The examination of the defendant was then pro* ceeded with. He said ; I did not act as solicitor for He Mans : I acted for his wife against him. 1 was never paid any money,’' that I recollect of, out ef De Maus’s estate. Be (De Mans) turned his wife and sister-in-law out of the house, and they instructed me to apply to the Court for their protection. It was under that employment that the bill of costs for which I ranked in De Mans’* estate was incurred. Plaintiff may have been a creditor in De Mans’s estate for 1180.—Mr Stewart: What goods did you deal with on behalf of plaintiff ?—Mr Cook : I object to the question as put,—Mr Stewart: Then I’ll put it this way. Did yon receive the proceeds of certain goods sold by you on behalf of plaintiff ?—I received some money from Mr De Carle; I suppose it was on behalf of goods sold. I acted for the present plaintiff. Mr Cook ; rtefore the witness proceeds further I will ask your Worship to order all the witnesses out of Court.—Mr Stewart; Mr Sly is a witness for the plaintiff, and it is indispensible that he should remain in Court. Practically speaking he is plaintiff in the case, and knows all about the circumstances. —Mr Cook; We know nothing whatever about Mr Sly.— Mr Stewart; I have here a power of attorney executed by the plaintiff, residing in Scotland, in Mr Sly’s favor. On the power of attorney being produced, Mr Cook objected to it on the ground that the signature had not been proved in evidence. — Mr Stewart; Mr Sly will he able to prove the signature.—Wm. Sly was then put into tne witness box, aud on being sworn, was examined as follows •—Mr Stewart: Do you know the signature to the power of attorney now produced ?—1 do, I know it to bo the signature of Mr M'Glaphan, of Edinburgh. Mr Cook : Did you ever see Mr M’Glashan write his signature ?—No, I have not seen him write, but I know his signature from a lengthened correspondence I have had with him. Mr Cook; You never saw him making bis signature. In point of fact you never saw Mr M‘Clash an at all. Is not that the case ?—Yes, 1 never saw him. Then how can yon say that you know this to be his signature ? You don’t in reality know whether Mr M ‘Glashan can write or not. How do you know that he does net carry on his correspondence through his wife?—He has no wife. His wife is dead long ago. The Court : The witness has carried on a correspondence with plaintiff for a series of years ? Witness : For eight years. The Court continued : For a period of eight year*, and from the whole tenor of correspondence he has reason to believe that the signature to the power of attorney is the signature usually employed by plaintiff. I think that’s quite sufficient for the purpose. —Mr Cook ; Then [ beg to differ, and I will ask your Worship to take a note of my objection.— After the application had been made and granted, Mr Cook expressed an opinion that whatever evidence Mr Sly had to give in the case should be given at once. —Mr Stewart replied that it would be absolutely necessary to recall the witness at a later stage of the proceedings.—Mr Cook: Then I shall again apply that Mr Sly be ordered to leave the Court. —rMr Stewart: Just so; I have no doubt but that you would like very much that the whole of us were out of Court.—The Court ruled [that Mr Sly might be recalled, after which the evidence of defendant was proceeded with.—Mr Stewart: What do you say became of the goods ?—What goods ? The goods of which you had charge on plaintiff’s behalf.—! had charge of no goods on plaintiff’s behalf ?—Can you specify the goods you refer to—the goods referred to in your bill of costs?—l know nothing about the goods. It was not my duty to go hawking them round the country. Some solicitors in Dunedin might do that kind of work, but L would not.—Did you receive any money on behalf of certain goods that were sold?—T received from Mr De Carle a cheque, and the account sales of certain goods, part of the contents of the cases referred to in the bill of costs. What was the amount of that cheque ?—I have no recollection. Have you no idea of the amount ?—I believe it was somewhere about L 32 Did you ever account to plaintiff for that money ?—Yes. In what way did you account to him for it ? -By furnishing him with a statement of my bill of costs. Was that the only way in which you accounted to him ?—L gave him the statement with my bill of costs. Did you receive any ©they moneys arising from the sale of other goods belonging to plaintiff? —To the best of my recollection, I received only one cheque, aud that was the cheque for L 3 2; but these transactions took place five years ago, and I am merely speaking from memory. Did you ever render your bill of costs to plaintiff?—My impression is that I did. You did not sell all the goods, I believe?-^-No, I Relieve not. You purchased part of the goods ypprself ?—I did not purchase part of those goods, I purchased part of the stock belonging to the insolvent estate of De Maus. I may have purchased two albums, a field-glass, and other articles. Did you pay for those articles in cash ? I may have paid for them by contra account, but that had nothing whatever to do with the sale o plaintiff’s goods. Will you swear that those articles were not paid for as a setoff against the proceeds realised by the sale ofthe goods?—l will. What do you say you did with the L32?—l kept it, because M‘o»lashan owed me a much larger amount. I do not know during what month this occurred. Ido not know what plaintiff owed me at the date I received the cheque. You received the cheque and paid it away to your landlord, did you not ?—Mr Cook protested against sush statements being imported into the questions, ? and Mr Btpwart complained that the counsel for the defence had all along showed a disposition not to elicit the facts of the case, but to suppress them. The witness' requested counsel for the plaintiff to retrapt the statement, M'p Stewart: I will do nothing of the kind. Witness; Then, I will make you retract what you have said when I get you outside. Mr Stewart; You must not think that you will intimidate me. Examination continued: If there were more goods sold than those represented by the L 32, I am not aware of it. I believe some of the goods remained unsold in De Carle’s hands when I left Otago. No application was made to be about the matter until the year 1872. At this stage the further hearing of the case was adjourned till Monday. ' Friday, June 27. (Before I. N. Watt, Esq., R.M.) Gibson v. Turnbull.—Claim for LSI 11s 10d, for work and labor done as building contractor. Mr Harris for plaintiff, and Mr Stout for defendant A sum of L 9 14s dd was paid into Court. After proof as to the work done had been heard at great length, the Court gave judgment for LlO 8s dd with costs Beaver v. Tillett,—Claim for L 36 lls si, amount claimed on a dishonored cheque, and also for goods supplied, Mr Stout for plaintiff. Judgment for amount claimed, with costs, was given by default.