RESIDENT MAGISTRATE'S COURT.

Evening Star, Issue 3663, 18 November 1874, Page 2

RESIDENT MAGISTRATE'S COURT.

Tuesday, November I^. (Before J. Bathgate, JEstp, E.M.) CIVIL CASE. Hickie v. Walls, was a claim for L3O. Mr ■stewart for plaintiff, Mr H arris for defendant. Plaint ff and big family lived on the lower door of the building known as the Argyle Rooms, in Maclaggan street. On the 26t.1i October defendant celebrated the opening of the Argyle Rooms with a ball, and it was to this that plaintiff took exception He deposed that the noise during the whole of the night was of a most f.,a-ful character, preventing himself, his wife, and family from getting any sleep, and, in fact, almost driving them out of iheir minds. Some of *», children had the measles, and one of his children had been made worse by the ball People were singing, and stamping, and ®^ a gg6riu' about the room in a way that banished slc.cp from his household. His object was not sonnjch to recover damages as to puta stop to the continuance of the.sef ree-and-easie . much amusement was caused jyhen plaintiff produced his “notes of the proceedings ”ani read as follows “ October 23rd, half-pist 8 ; A tremendous stamping on floor over our heads; half-p:;st 9, music and marching round room ; 10 o’ch ck, dancing in full swing • half-past 10; sergeant of police came in 5 dancing renewed, in a more heavy manner. (Jailed the attend u of policeman at; 11 o’elo :k —he did not int. rfire. Twelve o clock: Song, ‘ VVhite Squall,’ immense stamping; sung and chorus, ‘ I kiss her and court her ’ (great laughter), stamping on tne tloor ; comic song, ‘ VVhy is the boy’s head as bald as his face ?’ ditto, ‘ I am very fond of rum-de-dcoile-dum ’ (loud and continued laughter). Saturday, 10 o’clock ; Heavy dancing and whistling kind of music. Many neatly drunk and staggering into the pieshop; building ihakiogwitbneavy dancing;

dancing from door on to side-walk ; in front, heavy kicking on floor, some leaving drunk. *■'-alt-past I : Police sergeant called ; dancing. Two o’clock ; Dancing again ; song, *A. starry night for a ramble—K ss and never tell j’ great stamping on tin; floor ; song, ‘ I’ll never forget coming through the rye,’ applause ; dancing and drunkenness : singing till daylight. Dive o’clock: ‘We wont go home till rnorn’ng,’ an>D departure of the serenaders. ’ —The defence was that the rooms were built for public entertainment; that the people present on the occasion complained of were respectable ; and that the ball could n .t have been an annoyance.— His Worship held that no one had a right to annoy his neighbors, as had evidently been done in this case. Puch dances could not be continued.—’.‘efendant was fined 40s aud costs.

The Comet Case —"W. J. M’flroy wa-. charged, ou the information of Michael Finn, miner, with obtaining money under false pretences.—Complainant stated that, being desirous of going to the Palmer diggings, and hearing that a vessel was to leave" Lyttelton for Endeavor Hiver. he called upon Al Uroy, who promised to get him a passage on payment of 1 5 cash aud a f art her sum of *•‘s when ready to start. The deposit was paid, and a receipt given for it. Through some unforeseen circumstance the ves el originally intended to convey them was de barred from sailing, and def n lant agreed to send all those wU i had taken out thoir passages by the Comet from Port Chalmers. Ihe final deposit was accordingly paid and a receipt given, signed •• W. J. MT roy. agex-t for J.v, B. Martin aud Co ” They came to Port Chalmers by the Maori, and on uriviiu? :, erc their tickets were not recognised, and M-llroy’s receipts w. re re mdiated by Martin m l u.o. —R. B. Mir in stated that MTiroy vvas not his agent, and had no authority In -dgn as such. He had received uo mone. from him. Un the loth Oct ’her witness relive! a telegram from accused, stating that there were fifty ste rage passengers and four cabin, who intended to go by the !'o:net. It further asked if he (prisoner) should act as his (Martins) agent. Witness simply replied that he had room tor the passengers, a .d said nothing about agency,--Francis W.’ Hales, clerk to accused, identified the signature on the receipt produced as that" of M'llroy. Iho Coirt then adjourned till day.

Wednesday, November 19, (Before J. Balhgate, Esq., K.M,)

.Alleged Fjuauio—'ho charge against John MTlroy of obtaining 1$ from Martin Finn, by means of ialse pretence?, was continued to-day.—Mr Bathgate, in opening the case for the accused, said that it should never have come before tbe Court in its present form, as the remedy under the circumstances was clearly a civil action ; in fact, he understood the object of these proceedings was not so much because the informant thought the accused was guilty of I lecit or fraud, but to enable the facts to be so clearly elhited that i-.s men might be urepare l with the remedy of a civil actipp. He might mention that when MTlroy was brought before the Bench at Christchurch, the magistrate there, eo it appears, expressed himself, showing that the matter appealed to be o breach of civil contract and i ot an act of a criminal nature ; and even advised vITJroy to communicate with Dunedin thus going out of his way io shorten the pro ceediugs. . s to the alleged charge o' obtaining tbe live pounds by fraudently representing that he was the agent of B, B. Martin tnd Co. when he was apt, the facts were these :—M Tiroy laid on the for the Palmer digging conditionally''that she should sail if sriHoiefib passengers were obt died j bat the Customs authorities interfered, and condemned the vessel under the Passenger . J >ct, This awkward circumstance having arisen, M'Uroy considered what he should do, and determined to try to com? to an arrangement by which the men might be forwarded,- so as not to give i.hetn the slightest ground of complaint. He was aware that the Comet was t > sail from Dunedin, and consequently made arrangem nts with Mes.-rs Findlay an I Co. At this time MTlroy, as part owner of the Comet, had been making arrangements for tjja sale of the vessel to Messrs Findlay and ; Co. The transaction was so far completed i [ hat Findlay, through bis agent, Martin, had advertised the vessel for the Palmer. I bis was known ‘to MTlroy at the time, but the pale pot b,eing completed,' Findlay and Co, had taken a step t‘*o far. Tjie vessel was laid on, and MTlroy communicated with parties with a view of taking pa-sen-ger?, M‘Uroy telegraphing to Findlay, ‘ Have about sixty passengers for LlO each. Doubtful if I cm send them. Can you send them ?” The result of that was a reply to this effect, “Vessel going at some distant date. Make your complete arrangements with Martin. All go.” At this time the sale was looked upon as good as complete, MTlroy, in answer to a telegram from Oapt Cooper, wiring to Messrs Findlay on the 10th ibst., “Cooper asks for instructhns. Give him possession to day, provided you have paid LI.OOO ’into the bank.” The LI.QOO, however, was never paid'. After receiving thege telegrams MTlroy called ’a meeting of intending passengers, apt! told them that he had been in communication with the agents of the Comet, and that they might proceed by her or have their L 5 refunded. A resolution having been passed that they would proceed by the Comet, MTlroy wired to Martin. “ Pai-smge.-s accept offer, fifty steerage and four cabin passengers, Lls each, less steamer passage. ” Throughout, MTlroy had looked up n Findlay and Mai tin virtually as one. the latter only being the agent of the former, tie submitted that MTlroy was perfectly jue.ffi idia assuming that he was acting as Maniocs agent. There was not a tittle of evidence to show, that Finn was enduced to part with his mpuey by suy representation being Inide by accused that the latter was Martin’s agent Through the ease be'ng brought on here, instead of at Christchurch, where thos? acquainted with the facts resided, MTlroy was deprived of their evidence —His Worship said the procerdings in respect to the Comet, on the civil side of the Court, had no bearing on the issue of the present ease. Much was now shown that had not come 1 out on that occasion. Counsel for the defence stated the case clearly. To constitute fraud, three distinct elements must be proved *: first, representing something as an existing fact which was not one; secondly, an intent to defraud or cheat, and thirdly, the obtaining of the money, valuable security, or whatever it may be, by means of the false statements. Prosecutor alleges that the accused obtained from him live one-pound uoUs the ba auce of his passage by the Come 1 :, as agent for R. B. Martin a’M Co. Martin denies the agency, and prosecutor loses the passage apa ijis money. Previous to the last session of the Assembly such a ca?e as the present would not be disposed of summarily ; but now a case, where the sum only amounts to L 5, pould be investigated and summarily dealt with by this C >urt. It was certain that prosecutor had been wronged—it was not necessary for him to say by whom—aud he would say most grieviously wronged. Apparently he was ma-le a shuttlecock of between the parties in C hriatchurch and here. Being so wronged, he had his remedy against cither oijo or the other of the parties. The question here was were there any grounds for a criminal prosecutiw? Awussd »isht be liable for full

damages for breach of contra t with the pro- j sjcutor, but was he guilty of o' - ; .ig money ' > by fa'se pretences? The THae pretence < ail-'gcd Was that the accuse .1 >al received the money by fraudulently representing that he was agent for B. Ma r.in ami Co., whereas ho wa> not agent, i herelbre, the whole matter binged on that point. It was not alleged or urged that from the beginning accused intended to cluat or defnud these man ; nor was it alleged ihat, in laying on the Kspeculador for the Palmer diggings, hi had d'no anything which was not straightforward and lioness. He had s-t .ted if be could not obtain a tutti dent number of men, or any other obstacle presented itself, that he would not he responsible for damages, but that the pr.s raouey would be returned. hne-half of the money was taken for toe lulfiliin ~ of the contract ; but the vessel be ug condemned by the authorities, he determined to t;.ke advantage of the Comet, which was to sail direct from Dunedin. Up to this date hs apj.eirel to have acted in a straightforward and honest waiver, and there was not the slightest imputation that he intended to cheat or defraud the passengers. At this very time he was negotiating for the sale of the Comet to Findlay, and it appeared, when the civil case was heard, it was not known that the accused was the owner of the Comet aud was negotiating for the sale of the ship. Findlay tnig it have had reasons for his name not being brought into the milter, and had ; .ot Martin and Co. to act for him, and referred the accused to them. To a telegr.m from M‘l roy to vlartia, aski g him if he should act as an agent no ar.swe’ - was received, tough to the latt-r part of tht legram, asking the numb r of pass- ngers the Comet could take, and th-. terms. Martin hid r plied, adding : ‘‘Can take a few morin the si oon ; passage, Lli each.” (his Worship) had no doubt whatever that, through Marti .' not answering that telegram, the complication followed aud Martiu had thus not conducted his business in a straightforward and proper way. From the answer received, the accu ed thought he was j ustitied in acting as agent There W:*sau old maxim —“ Whoever is silent is presumed to assent,” and Martin, having given a silent answer, hiust be presumed tq haye assented to Mdllroy acting as his agent, fie (his Worship) was not going to dolor mine the legal aspect of the matter, with regard to a civil action, _ but, seeing the sHence Martin bad maintained when the direst question as to the agency was put to him, he could not see how .Vl'llroy could have acted with afraudu lent intent. He was sitting in the place of a , jury, and as such believed that accused had acted under the belief that he was agent for Mar r tiq, though l)e may have acted under a misapprehension of the menu- , ing of the te:egram. However much he regretted the laxity which led to a pecuniarily heavy loss to many decent miners, he could not find MTiroy guilty of obtaining money by false pretenoes. He had no doubt that had prosecutor beeu aware of the facts revealed by the telegiams, i he would not have brought the charge ; but he was justified iu laying the information, as i the facts as they preaeuttd teemselves to Lis i eyes were that aceused by representing himself as &,u ageipfc to Martin obtained their money, and tlpd sgency being repudiated by the latter they had Joss the.r mopey. The I accused was discharged.

(Before T. A. Maagford, Esq., E.M.) Drunkenness. Bichard Wood, Ellen Dqimoghua, Hannah Kelly, Thos. Wallace. Elias James, and Florence Mercer were each lined 10s, with tho option of twenty-four hours’ imprisonment, for this offence. Thos. bogarty, who had been fined ou a previous occasion, was ordered to pay a penalty of *2os, in default, to be imp.-ia jned ip gaol for three days. rpfEFr —Charles Humphries was charged with stealing three pigeons, the property of V\ illianj Harper, Fleet stregt. Informant identified the pigeons pr-dpced as his property, which the polio; had fpund in posess on of accused.—Prisoner gaid that be had bought the pigeons from another boy named M les ; and in order to tes'J the veracity of hj s statement, the c se was postponed uuti> Miles’s attendance could be obtained, when he was sent to gaol for a month, A charge against Humphries, of stealing a pair of eocks from the shop of John Brown, draper, George street, was adjourned till tomorrow. CIVIL CASES. Pell v. Pirie.—This case was further adjourned for a week, by consent. : : rooks Y Dodgou.— Claim of 15s Judgment fog the amount claimed, with costs. M. Sawyers v. J. Purvis.— I This was an action to recover LlO damages through cattle trespass. Mr Mouat for plaintiff, and Mr Stewart for defendant. Judgment for 40s and costa.