RESIDENT MAGISTRATE'S COURT.

Evening Star, Issue 3282, 27 August 1873, Page 2

RESIDENT MAGISTRATE'S COURT.

Wednesday, August 27. (Before I. N. Watt, Esq., R.M.) Meikle v, Johnston. —Claim LI 1 13s. Mr Stout appeared for plaintiff, and. Air Harris for defendant. Mr Harris stated that his client admitted the liability of himself and his partners, and was willing to pay the whole claim himself, in monthly instalments of L2 10s. Judgment for the plaintiff for amount claimed, to be be paid at the rate of L 4 per month, with costs. Cameron v. Kedgley.—Claim, L 9 10s, for half cost of fencing. Mr Stout appeared for plaintiff, Mr Harris for defendant. —Donald Cameron, plaintiff, stated that he occupied land adjoining property of defendant. There was no fence between their respective properties. In the year 1567 gave defendant notice, and erected a fence in the terms of the Ordinance. Defendant inspected the fence and approved of it, stating that he was not then in a position to pay witness his half of the cost, but that he would do so. Witness had never, however, received anything.— Cross-examined : The length of the section was abi-mt fifty chains, but part of it only belonged to witness. Knew that defendant was in gaol for debt at the time witness sent the notice, but he was out of gaol before the fence was finished. Witness furnished himself with an Ordinance of the latest date before erecting the fence. The notice was written by a Mr Smith, but not in the words of the Ordinance of 18G7. The posts were not more than nine Let apart at first, but some of them might now be, through repairs being made. Defendant never objected to pay the amount until last year,—John

Smith : Helped plaintiff to put tip the fence in question. When finished, defendant assisted to measure it, and expressed himself highly, satisfied with it. Witness was a partner with plaintiff at that time, but sold his interest last year. -Mr Harris contended that judgment should be given for defendant, on the ground that the fence had been erected under the Ordinance of 1867. which bad been disallowed by Government, and that due notice, according to the Ordinance then in foico (chat of 18i5), had not been given. —John Kedgely, defendant, stated that he and plaintiff were neighbors. Never received any notice as to fencing. The fence was erected while he was in gaol. ' ever measured the fence with plaintiff nor did the latter ever claim part payment from him until lately, when witness declined any liability, as the fence was not erected in the term of any Ordinance. The spaces between the posts ranged from ten to twelve feet, according to a measurement witness took tince the present action aro;e, the fence being exactly in the same condition as when put up. -Cross-examined : Would swear that ho never spoke to plaintiff and the witness Smith, or measured the fence with them as they h*d sworn. —Defendant called two witnesses, named Gorin and Stevenson, who had examined the fence yesterday, and who stated that it was a very bad ono, the posts being too wide apart, and there not being sufficient wires in all parts. —His Worship considered the fence an insufficient one, and therefore gave judgment for the defendant, with costs. Judgment was given by default in th* following cases :—Solomon v. Alex. Carr : claim L 5, balance of account for gold chain, fee Schnlenberg v. Duracoa : claim Ll2, balance of wages. Hall v. Thorpe ; claim LlO 8s Bd, balance of account for board and lodging. Gibbs and Clayton v. Goodfellow.-- Application by defendant for re-hearing. His Worship gave his decision on this application as follows : “This applica'ion is made on the grounds of the discovery of fresh evidence by the defendant since the hearing?; evidence in the possession of the defendant at the time of the bearing. There-bearing must he refused on the ground, amongst others, that it is an invariable rule in all Courts, and one founded upon the clearest principle* of reason and justice, that if evidence, which either was in possession of parties at the time of trial, or by proper diligence might have been obtained, is either not produced or has not been procured, and the case is decided adversely to the side to which the evidence was available, no opportunity for producing that evidence ought to be given by it ranting a new trial. (Lord Chelmsford, in House of Lords—Sheddeu v. AttorneyGeneral— 22 X..T., K.S. 631J If this were permitted, it is obvious that parties might endeavour to obtain the determination of their case upon the least amount of evidence, reserving the right, if they failed, to have the case re tried upon additional evidence which was all the time in their power.” _ Nichol v. Pophara (as administrator). — Claim for Lls l4s lud, balance of passage money paid for Alex. Garaide, deceased, fiom Holland in 1863. His Worship gave judgment in this case as follows : —“I am of opinion that the positive evidence of the plaintiff outweighs the negative evidence of the defendant. For, notwithstanding it has been shown that the deceased, if his assets had been realised, was of late years abundantly able to pay the debt, it does not appear that with the demands upon his means made by his growing business he could have done so without inconvenience. 1 also think that by no ingenuity of reasoning can it b« shown that the payment made in June, 1869, does not take the claim out of the operation of the Statute of Limitations. Judgment will therefore bo for the plaintiff. At the same time, I consider that the defendant, taking ail the circumstances into consideration, has, as administrator, acted wisely and properly in refusing to pay the claim without a judicial decision upon it. The plaintiff is, I think, alone to blame for ihc necessity of this action, in not putting and keeping bis claim upon a proper footing during the lifetime of the deceased. Judgment will therefore be for the plaintiff —LIS 14s lOd, less the defendant’s costs.”