RESIDENT MAGISTRATE’S COURT.

Evening Star, Issue 3525, 10 June 1874, Page 2

RESIDENT MAGISTRATE’S COURT.

Wednesday, June 10. (Before J. Bathgate, Esq., E.M.) Drunkenness Henry Lloyd for this offence was fined 20s, or in default three days’ imprisonment with hard labor. Window B hearing.—William Bailey was charged with breaking four windows of the value of L 8 Is, in the Albion Hotel, Madaggan street.—Prisoner, when first placed in the dock, said that his name was Orr, but when questioned by the police, said he had better admit that his name was Bailey, as he had been before the Court too often to get off by giving a fictitious name.—His Worship said he quite agreed with prisoner (who now pleaded guilty i that he had been often before the Court. Tie was there on the Bth of this month for being drunk and disorderly, and was now up on a more serious charge, because it was done under the cloud of night. Prisoner would be sentenced to the full term of imprisonment under the Ordinance—one month—he (his Worship) could not accept a fine. CIVIL CASES. Trapskey v. Steadman.—ln this case, heard on Friday last, in which plaintiff was a passenger from the Taieri in a coach owned by defendant, and which met with an accident, by which plaintiff sustained severe injuries, and claimed LSO, his Worship now gave judgment as follows This action has been instituted to recover damages for injury received through the overturn of the defendant’s coach, on which the plaintiff was a passenger. The evidence adduced proves that the break was not in proper working order; that the driver, to compensate for the defect in the power of the break, kept the coach running on the wrong side of the road with two wheels in the water table, and that while so running, one of the wheels came in contact with a large stone in the water-table, whereby the pole was broken and the horses frightened and rendered unmanageable. The consequence was an almost immediate upset, and the injury of the plaintiff. Although passenger carriers are only bound to carry safely those whom they take into their coaches as far as human care and foresight will go, yet they

are responsible for any, even the sligbest neglect. lam of opinion, that the de fondant, in the circumstances, must be held liable for the damage caused by the overturn. The evidence as to the nature and extent of the injuries received by the plaintiff was not satisfactory. He was twelve days in the Hospital, and Dr Inglis subsequently attended him, yet no medical testimony was adduced. lam unable, therefore, to sustain his claim to the full amount. Judgment will be for the plaintiff for L3O, with costs. Mr Barton, for defendant, asked leave to appeal, which was granted, his Worship saying that there some very nice points to be decided. Outred v. Begg.—Plaintiff, a passenger by the ill-fated ship burat, sued to recover from the defendant, agent for the New Zealand Shipping Company, the charterers of the above-named ship, the sum of LIOO, for Joss of his luggage by defendant having through his agents sold the same. Judgment was now given as under :

> This is a claim which has received much consideration, both on account of the peculiar difficulties which surround the case, and the unfortunate position of the plaintiff, an immigrant who has lost all his effects, and landed penniless, in a condition entitling him to sympathy. Notwithstanding this commiseration for the plaintiff in his misfortune, the defendant cannot be made liable to compensate the plaintiff for the value of his goods, unless there is no doubt in law and in fact that he is so. The goods claimed, which are of the value of LIOO, were in possession of the plaintiff as luggage, while a passengers on board the ill-fated ship burat. The plaintiff left the ship, which at the time was a total wreck, stranded on the coast at Gatlin’s River, with water in the hold, on the morning of Ist January, and came to Dunedin. The vessel and cargo and all in it, including passengers’ luggage, were abandoned. The master of the ship came to Dunedin and authorized a sale of the ship “and cargo for the benefit of all whom it may concern. The sale was advertised on the mornin° of sth January, and took place that day. JL verbal protest was made ac the sale against the

jj7a,o*«3u o cio uoiug luciuaea in what was sold.. Whatever may have been sold, it cannot be contended that the price agreed upon was even an approximation to° the i original value of the ship and its contents, ihe purchase was entirely speculative. The purchasers took the risk of salvage upon themselves, and if they did succeed in saving anything, it was doubtless at the cost of a heavy expenditure by them. Although the passengers luggage had been expressly sold to them, it is not to be believed that this induced the purchasers to increase the purchase price one penny. The transaction was to a great extent a blind venture, and there was the contingency ever present that the vessel might break up any day and the whole contents perish. The plaintiff claims to recover “damages for the defendant’s having by his agents lawfully disposed of converted, and received the proceeds of the plaintiff’s property on the sale of the ship and its contents (including passengers’ luggage, part whereof was such the plaintiff’s property as one of the passengers) without his consenc or any authority, and contrary to the urgent request thereat expressed on behalf of him anc his fellow-passengers not to do so, and that, too, at a time when he was in the Colony to manage his own affairs.” The first point which presents itself is that the plaintiff aban-

doned his goods on Ist January, and that he has never from that day to this personally made any effort to save his effef ts, which, so far as he is concerned, have been all along bona vacantia. He now seeks to recover the value of his goods from the defendant on the ground of his unlawful conversion of. the same through their alleged sale and retention of the proceeds. But in considering this sale, its peculiar circumstances must be taken into account. None of the usual elements of a conversion were present. The defendant never had possession, even constructively, of the goods; he never denied the plaintiff’s title thereto, or asserted to have dominion over them; he did not deprive the plaintiff of possession in any way, or detain his goods from him. If it had been practicable for Ehe plaintiff to have gone to' the wreck and recovered and resumed possession of his abandoned pioperty, there was nothing to prevent him doing so, and he has not proved that the defendant did prevent him doing so. All that he proved was that the salvors had recovered the sewing machine, in what condition did not

appear, aud aa album in a useless state. It cannot be assumed that the whole of the plaintiff’s property has been recovered. The sale of an abandoned wreck does not guarantee delivery to the purchaser. It might happen that he was unable to save anything, and the whole of Ins purchase might be swept out to sea and destroyed. .Booth, the plaintiff’s witness, who had been at the wreck later than the plaintiff, stated that the greater part of the luggage was scarcely worth anything; that goods he had were destroyed; and that the condition of the luggage was very bad, it being saturated with salt water, ihere being eventually only possession of what can be actually saved, I am of opinion that the punciple of conversion does not apply to the present case. In all the authorities I find that the wrong-doer has had actual possession of the property claimed by another ; and that when conversion was proved by a sale having taken place the sale was followed by delivery to the prejudice of the real owner. If the plaintiff’s contention be correct, be might recover the value of the goods at the bottom of the sea, which never had been in anyone’s possession since he abandoned them, and left them to the chance of becoming the property of the first fauder, or of falling to the Crown. It is clear that such a doctrine cannot be supported. The most favorable construction which can be placed m the circumstances for the plaintiff is either that he should receive the goods belonging to him which have been saved, ou payment of ms proportion of the costs of salvage, or that he is entitled to a proportion of the purchase price corresponding to the relation the value of

his goods bear to the total value of the ship and cargo. The _ first of these alternatives cannot be made available in this action, and before the defendant can be made liable under the second the plaintiff must establish satisfactorily that the defendant did so interfere in the sale as to become liable. It is therefore necessary now to inquire mto the facts connected with the sale, to decide whether the defendant is in any way responsible. The facts, about which there can be no dispute, are the contents of the written documents. There are first the advertisement intisa^e “the ship Surat, together withthewhole of the cargo”; second, the letterof authority, signed by the master, Capt. Johnson, authorising the immediate sale “ of the wreck of the ship Surat and cargo;” third, the entry in the auctioneer’s book showing that “ the wreck and cargo of Surat were sold ;’’ and fourth, the account-sale rendered by the auctioneer containing this^item, “wreck and cargo of the Surat, L 7,050.” There is not one word ot the passengers’ luggage either being intended to be sold or having been sold. This mass of documentary evidence creates a very strong belief that the luggage was not specially sold, and be* fore that can be weakened, or the presumption so raised negatived, proof of a stronger nature, free from doubt or conflict, must be adduced, it may also be noted that, even although the luggage had been expressly sold, it would be necessary for the plaintiff to prove that it had been so sold by the direct instructions of the defendant. This he has not done, and there is no probability that the defendant interfered, because Captain Johnson, the only person who could authorise the sale of the ship and cargo, was himself present at the sale and in attendance behind the auctioneer. The defendant, as a cautious man of business, had, before giving any instructions to the auctioneers, obtained the letter of authority from Capt. Johnson, before referred to, limiting the sale to the ship and cargo, and he stated in evidence that at the sale he advised Captain Johnson to stick to the advertisement and the letterof authority which had been read. There is no reason to disbelieve this statement. An attempt was made to discredit the defendant’s evidence by proving that the letter was not read at the sale. 1 wo of the passengers and Mr Maclndoe swore positively the letter was not read, whereas the defendant as positively swore it had been read ; and in answer to plaintiff’s counsel, when refwo passengers had stated, he saic *> “I will still say the documents were read at the sale, although a hundred said to the contrary. ’ His evidence received a strong confirmation from Mr Davie, the auctioneer, who stated, on being recalled, that ho distinctly

remembered reading the letter, his memory having been refreshed by the recalling of a singular circumstance —namely, that he had read the signature as “Solomon,” instead of “Johnson,” which excited laughter at the time. On looking at the letter I am satisfied such a mistake would readily occur, as at first sight the signature looks as like “ Solomon” as “ Johnson.” There being a conflict of testimony as to what took place at the sale, the evidence must be sustained which is confirmed by the documents produced. In this view I am clbarly of opinion that the defendant did not in any way interfere personally at the sale in the disposal of the passengers’ luggage, if there was a sale of it at all Another endeavor was made to affix liability on the defendant by adducing witnesses to prove that in March last he admitted to several of the passengers who called upon him that ho had sold the passengers’ luggage. The defendant distinctly contradicted these witnesses. Their evidence as to what took place does not agree in all the details. One says, in reference to the question to the defendant—what he had done with the money —that the defendant answered he had sent it at once to England, while another says that he answered he had paid the money over to the master. The defendant’s statement in regard to this interview is consistent with the documentary evidence, with the defendant’s corroborated account of what took placj at the sale, and with his conduct generally throughout the transaction. He has admitted the receipt of the proceeds of the sale, which he stated he remitted, not to his own constituents, the New Zealand Shipping Company, but to the owners of the ship, in England, by special instructions from Captain Johnson. There is nothing in this fact per se to found liability against the defendant. He received and remitted the money as instructed by Captain Johnson, and as being the proceeds of the ship and cargo, and not including the passengers’ luggage. In the whole circumstances lam unable to decide against the defendant as a wrong-doer. There must be undoubted evidence to bring home a charge of misfeasance against anyone. Judgment will therefore be for the defendant, with costs, the reasons having been stated fully in order that, seeing this is in some measure a representative case, the plaintiff may, if advised, test the judgment by appeal.

Mr dtewarfc: lam instructed by Mr Stamper, plaintiff’s solicitor, to appeal in case of an adverse decision. It is not necessary to ask for leave to do so. I may say that it appears to me that you have ignored altogether what took place at the sale because the evidence was preliminary to it.—His Worship said there was clear proof as to what defendant did at the sale.—Mr Stewart thought that there was distinct evidence by Mr Davie that he addressed the three, and got the necessary instructions from one of them. He farther said that he got positive instructions from Mr Begg before the sale.—His Worship; At the sale, the captain, Mr Elliott, and the defendant, were present behind the auctioneer ; but it is not proved that defendant the necessary instruction?. The defendant, says he did not advise, but that 'aptain Johnson said “stick to the advertisement.” I never committed myself to sayng that the luggage was not sold. —Mr tewart pointed out that the luggage quesion was not raised till the sale.— Vlr Harris thought that if his learned friend carried out his intentim to appeal, it was a waste of •.ime to argue now, seeing that judgment bad been given,—Mr Stewart: [am very m ich ndebted to Mr Harris for his advice. —Mr »arris ; You are wasting very valuable time. —Mr Stewart: Please attend to your ow business. —Mr Harris : That is my business, excuse me. (Laughter.)—Mr Stewart having .ntimated his intention to appeal, the ma.ter dropped. Judgment was given by default, with costs, in the following cases : —Baxter v. Thomas Smith, claim Ll4 17s 9d, for goods supplied ; Elson v. same, L 7 12s, for fruit jold; Blood v. M ‘Ewan, lOs, for balance of wages.

Bowie v. Williams.—Claim I4s 6d, water ■•ates and rent.—Judgment for plaintiff, with costs. Ramsey v. M ‘Kenzle.—This was a fraud summons, defendant being called upon to show cause why he should not satisfy a claim for the sum of Ll 10s 6d, judgment by confession having been given for that amount on March 11—Defendant said he had met with an accident shortly after judgment had bjen given, and this bad precluded him from doing any work ever since.—The case was dismissed. King v. Sparrow.—Claim L 39 13s 4d, for tilling in land at Cumberland street. Mr stout for plaintiff, Mr Harris for defendant —Mr Harris said he had paid L2l 5s into Court, which defendant thought should satisfy the claim. The only matter of dispute was the quantity of ground filled in.— After hearing part of the evidence, the case was adjourned until the 24th last.