RESIDENT MAGISTRATE’S COURT.

Evening Star, Issue 3286, 1 September 1873, Page 3

RESIDENT MAGISTRATE’S COURT.

Monday, September 1. (Before I. N» Watt, Esq., R.M.) Burston V. Norman Wood.—Mr M'Keay applied to have the judgment set aside m this case, which was heard on Friday last, on the ground that his client, the defendant, was not served personally with the sumnu ns. Defendant was put in the box, and sta cd that he did not receive the summons person-ally.—Cross-examined by Mr Stout (for plaintiff) : The summons was left with my wife. She told me the nature of it, but I wan not served with it. I did complain to plaintiff of his summoning mo, instead of asking for the money.—Mr Stout contended that the summons having come to the knowledge of defendant, through his wife, the judgment could not be sot aside. His Worship thought the judgment should be set aside, as, on the first hearing, the plaintiff had sworn, either-intentionally or erroneously, that he served the summons personally on defendant, which it now appeared was not the case. Judgment accordingly, but the defendant not disputing the claim, paid the amount. Flexman v, Herbert —Claim, L 43 11s Gd. for hides. Mr Wilson appeared for plaintiff, Mr Stout for defendant.—W. Harris, in the employment of plaintiff, stated that Mr Howard ordered the hides in question. Cross-examined; Could not say if Mr Howard was a member of the firm of Herbert and Co ; but there are three firms, viz , Herbert and Co., Her’ crt, Mackney, and Co., and Herbert and Howard, all the accounts against which were paid by Mr Herbert. Did not authorise Dowse and Co., of Lawrence, to obtain goods from Herbert and Co.—Mr Stout here contended that there was no proof of Mr Howard being a partner of Mr Herbert j upon which Mr Wilson raid he would prove that Mr Howard was agent for the firm, and produced a latter from Herbert and Co. in which that gentleman was spoken of as “ our Mr Howard ” —Goo. putcher, in the employment of plaintiff at the time in question, gave evidence of Mr Howard’s ordering the goods on April 15, and their being forwarded to Herbert, Mackney, and Co,, of Tuapeka Mouth.-—Another letter from Herbert and Co. was put in evidence, wjiich stated that plaintiff must have made a mistake in forwarding so large $ quantity of bides to Herbert, Mackney, and Co., and asking who gave him the order -«~For the defence, the evidence of Mr Her bert was read, which stated that Mr Howard was not A member of the firm of Herbert and Co., the only members of the firm being himself and Mr M'lvinlay, and that the goods were not ordered by their firm.—The evidence of Mr M'Kinlay was also read, stating that the goods were received addressed Herbert and Mackney, and that they were not ordered by either * firm.—His Worship considered that there was no evidence to prove either that Mr Howard was a member or agent of the firm sued, or that Mr Herbert of Herbert and Co., was the Mr Herbert, of Herbert, Macknoy, and Co. Plaintiff would therefore be nonsuited.

Gray v. Hall.—Claim L 9 0s 10d, fnrtimb°r supplied.—Mr Stout appeared for plaintiff This wag a claim for balance of an account in 1868, which defendant disputed, saying that he paid the full amount in that year. During the next year he obtained more goods from the plaintiff, for the amount of which plaintiff oft n applied as the only account due.—Plaintiff stated tint the balance of account had not been carried forward at the time of opening a new ledger. It had therefore been overlooked for a time.—Fis Worship failed to tee on which side the balance of evidence was, and therefore nonsuited plaintiff as to the larger amount, and gave judgment for plaintiff for 9s, a claim which arose since the balance claimed, together with coats. Peninsula District Road Board v. Thomas Dale.— laim 18s, for rates. Alexander Stewart, chairman of the Board, and John Kirkpatrick, collector, proved that defendant had never objected to the rate until now. Judgment for the plaintiffs for amount claimed, with costs. M'Farlane v. M'Harg.—Claim L 8 9s 5d for groceries supplied. Plaintiff produced an acknowledgment from defendant to pay the amount in weekly instalments, only one of which, however, had been received. Judgment by default for plaintiff for amount claimed, with costs.

Davis v. James M'Pherson.—Claim L2l4a lid, for meat supplied. Judgment by default for amount claimed, with costs.

M‘Carthy and others v. Duxbury,—Claim of L2O, amount due for work and labor done in sinking a shaft for the Chain Bills Railway Tunnel, and of L2 9a for baling the water out of tho same. Judgment iu this case, which was heard on Wednesday last, was given as follows It appears both from the evidence of the plaintiff Burn, and that of the defendant Duxbury, that tho plaintiffs agreed to sink the first ten feet for L 1 0; and as the plaintiffs have failed to shew that they have, and I am of opinion that they have not, sunk so much as ten feet (below the level to which Qie shaft was sunls before they comtnenceii their contract), I do not think we have anything to do with the alternative conditions respecting fifteen feet and twenty feet, seeing the agreement was terminated before the first ten feet were complete!; and as the defendant has paid the full amount agreed upon for the first ton feet, namely LlO, I cannot see that plaintiffs have any further claim on him, because they knocked off work in consequence of his failing to sharpen their tools and to supply timber. Judgment, therefore, so far as this amount is concerned, will be for the defendant. With respect to the L2 9s, this amount appears to be due from the defendant, but whether to the plaintiffs or to Arnold, who was employed by the defendant to bale before they commenced to sink, is not satisfactorily shown. With respect to this amount, therefore, the plaintiffs will be nonsuit; each party to pay his own coats.