RESIDENT MAGISTRATE’S COURT.

Evening Star, Issue 4288, 23 November 1876, Page 2

RESIDENT MAGISTRATE’S COURT.

Thursday, November 23.

(Before J. Bathgate, Esq., R.M.)

Morris v. Job Wain and Jerusalem Smyth, —His Worship gave judgment in this case as follows ;—“ This is an action to recover L9B 7s Id, alleged to be due for growing timber sold by the plaintiff to the defendants, and cut and partly removed at the plaintiff was a mortgagor in possession. As regards the defendant Wain, the answer is that the contract was solely with Smyth. The defendant Smyth admits the contract, and pleads that he was prevented removing the timber by notice from the mortgagee, to hja loss and damage, as the timber was required at the time for the railway works in the neighborhood.. A mortgagor in possession may in general exercise all acts of ownership, including the cutting of timber, if the security of the estate is sufficient without it (King v. Smith, 2 Ha. 242, Hampton v, Hodges, 8 Ves. 105). If the mortgagee intended to restrain the mortgagor in doing what in New Zealand is considered rather a beneficial act to the land than otherwise, cutting down the native timber, he might have applied to the Supreme Court for an injunction. But the mortgagee took no steps iu the matter. In this instance, the land had been mortgaged along with other lands by the plaintiff. There is, however, no proof that the mortgagee interfered to prevent the plaintiff dealing with the timber, and he did not apply for an injunction either against the plaintiff or defendant. It was alleged, but not proved, that the mortgagee gave the defendant notice. lam of opinion that, under the contract, the defendant was justified in cutting down and removing the timb.r in so far as he did so, and that he was bound to cany out his contract by removing what is still left on the ground. The plaintiff has proved value, and the defendant has not- had any complete proof in answer. The data from which the plaintiff measured the delivered timber was somewhat imperfect, and I think a reasonable percentage must be deducted for bark and unmarketable timber. The difference between M‘Connell’s measurement of the lying timber and the plaintiff’s measurement is nearly 9 per cent. I will allow this deduction overhead. Judgment will be for the plaintiff forlLBB 7s 4d, with costs against Smyth only.” ‘ William Davis v. David Francis.—Claim, L 8 ils 2d.—Judgment was given by default for the amount claimed.

George Wilson v. William Howell.— Claim, Ll4 15s 4d. Defendant admitted the debt, but pleaded inability to pay.—TTia Worship said ho must make his own arrangements, and gave judgment for plaintiff. Lavinia*Wood v. R. K. Murray.—Claim, L 9 14s, balance of wages. Mr Bathgate for plaintiff; Mr Lewis for defendant.—Plaintiff, an intelligent girl, said that she was lately a domestic servant in the employ of Mr Murray, confectioner. She was engaged at the rate of 12s per week; but her Father subsequently made an arrangement with Mr Murray by which she was to receive L2 12s per calendar month. Her wages were paid irregularly, and there was generally a back account unpaid. Could not specify dates with any certainty, as she kept no memoranda ; but received various sums at sundry times, and on several occasions received L2 10s as a month’s wages. Once 12s was deducted on account of a window that she broke. Left on the 7th inst. because defendant’s son struck her; and had received no money since the end of September. Was away a fortnight on one occasion, through illness, Her lather kept an account of the wages paid. Had been in Murray’s employ eighteen months.—Thos. Wood, plaintiff’s father, said that owing to the irregularity with which his daughter was paid, he neld an interview with Mr Robert Murray in April, who pn mised to give him a .cheque that night which would square up all back accounts, and also agreed to pay plaintiff L2 12s every month. The cheque was not paid till May, and then was a week short. His daughter came home ill recently. Her face was swollen.—Mr Lewis here objected to any evidence as to an assault. Miss Malcolm, who was in Murray’s employment, deposed that on the afternoon Miss Wood-left Mr Lewis again objected to the evidence; it was alleged there was an assault which would be settled in another Court.—His Worship overruled the objection.—Miss Malcolm continued that on the day in question Robert Murray was asked by plaintiff for her wages. He told her to go to the office. Miss Wood said she would not be put off any longer with such cheating, and then Murray slapped her in the face. Plaintiff was rather insolent.— Robt. Murray, son of defendant, said plaintiff asked him for her wages, and on his referring her to the office she called him a “ d——d cheating rascal.” He then boxed her ears, and called to the other girls to’thke her away and quiet her. When she asked him for the wages the amount asked for was due.. Witness swore positively that plaintiff used the word “d—-d” before he struck her. He did not so much object to the adjective as be’ng called a “cheating rascal.”— R, K. Murray, defendant, said that plaiitiff had never asked, h:m for the amounts sued for. His son, transacted nearly all his money matters. —Henry Skarnun also gave evidence. ~ Hia Worship said that con*

oarred in Mr Lewis’s remark that Mr Murray had neTer appeared on suohaoharse ®® hi a Court before; but, uiaforttiJiig son bad not followed in his steps, and had shown a marked want of sisoretum -r-if not gross impropriety-in striking the girl, which act could not be justified by any' circumstances whatever; not even if the girl did, as he attempted' to prove, use abusive language to him. The atssanlt fully ;, justified the girl in leaving the employ, and she might have claimed a month’s wages Iffi default of notice, if she had liked, as she was a monthly servant, by reason of being paid monthly. Plaintiff was entitled to wages up to November 11 in any case. Both defendant and his-son were rather hazy m their dates on which the wages had been paid, Judgment would be for plaintiff for L 5 Bs, including the money paid into Court. Findlay and Cot v. Benjamin Wildey.— Claim, L 22 4s lOd, on a dishonored promissory note.—Mr Finn for plaintiffs.—Defendant, an old man, admitted the debt, but asked for time to pay.—‘His' Worship said that he must come to some reasonable arrangement with plaintiffs.—Mr Finn : Men like yon must work in this country.— Wildey; I have .been sixteen years in the country, and challenge any man to show a black spot on my character. [Left sitting.]