MAGISTERIAL.

Gisborne Times, Volume XXV, Issue 2060, 11 December 1907, Page 1

MAGISTERIAL.

TUESDAY, DECEMBER. 10. (Before Mr. IV. A. Barton, S.-M.) Bush-felling DSsputo.—ln tlio case of Martin Cruickshank and othors v. AV. S. Bunn, judgment was delivered by His Worship in the following terms: —“I am of opinion that phvintilfs are not entitled to recover in this action on the ground that the contract entered into by them with defendant has not been completed, and according to the evidence (of Mr Spence it is now a matter of impossibility for the work to be completed according to specifications, for tlio reason that on an area of about 30 acres the heavy trees liayo been fallen into uncut underscrub, which cannot possibly bo cut now, thereby rendering a proper burn impossible. Tlio contract provides that if the contractors are not making good progress with tlio work, satisfactory in every rospect to the employer or his appointee, or if in tlio opinion of the employer or Ins appointee such work is being dono in a s'lovenly, or unworkmanlike manlier, tlio employer or liis appointeo may put on sufficient men in his discretion to complete tlio same ,at tlio cost of the contractors, or alternatively may put an end to the contract, and . thereby the contractors shall liavo no claim on tlio employor for any payment beyond those then made in cash or goods. I am satisfied from the evidence that the work was dono by plaintiffs in a slovenly and unworkmanlike manner, and not jfn accordance with tlio specifications, and consequently will bo of very little, if any, value to defendant. Defendant of’tlio 4th of October, 1907, put an end to the contract, and gave his reasons for so doing. It is true that after tlio notice was given defendant agreed to allow the plaintiffs to go over and finish section tone, of 96 acres, but that, was undoubtedly upon the understanding that the four plaintiffs wore go on with the work, but defendant havifng ascertained that only two of them were on the job, gave plaintiffs another notice on the lltli of October, determining the contract, as in my opinion ho was under the circumstances entitled to do. It would be unreasonable to suppose that defendant intended to allow only two of the plaintiffs to go and finish the work. A great deal of trouble would have been saved had the overseers. paid more attention to their duties, and have called plaintiffs’ attention at the time to any. of tlio work which they considered not properly done, and have given them clearly ' to understand that such work would not bo passed by them, but the fact of their not having done so does not in my opinion entitle the plaintiffs to recover in this action. Plaintiffs will for the reasons given bo nonsuited, but considering all the circumstances, I shall not allow any costs.” . ' -Drunkenness. —A first offender for drunkenness was convicted and fined os with costs 2s, in default 24 hours’ imprisonment-. Falling toßegisterßirth.—Herbert F. Gush was charged on the information of the Registrar with failing to register the birth of his child within the requisite number of days.—Air T. A. Coleman appeared for defendant and pleaded guilty, stating that it was not an attempt to ev-ado tlio law, but merely- an oversight.—Defendant was fined 10s with 7s costa. ~ , Alleged Theft—John Seagar Buckland was brought up on remand charged with having omitted to pay £lO 05..t0 John Russell Hill, being the proceeds'of the sale of a horse sold |,v defendant - and the- property of the said John Russell Hill. —Mr. T. A. Coleman appeared for accused.— Detective Maddern conducted the case for the nolice anti called John Russell Hill who stated that oar Saturday Julv 25th he gave accused a horse‘to sell in his capacity as auctioneer. AVitnesfi put a reserve of £ll on the horse. 'Witness next saw accused tlio following Saturday, when lie asked him if lie. had sold the horse. Accused replied that he had and told witness to call round for Ills money. •'Witness did call round, hut could' not find accused. During the following week witness again saw accused anti asked for his money. Accused then said that he bad not the money then, but- would give it to witness on <t.he following. Saturday. AYitness called on the following Saturday morning and saw accused at bis saleyards. Again asked him for the money, aind was told to wait until after the sale that day. Accused was requested by Witness to leave the monev for him at Mr (Mann s chemist shop. As far as witness knew this had not been done. Had not- seen accused since then until he appeared in Court on the previous day. Three weeks after tlio sale of the lior.se ’ witness consulted a solicitor and informed, the police, ohtnining a warrant for the arrest of accused. The money for the horse was paid to witness last AVednesday through accused’s solicitors. To Air Coleman: The horse handed to accused was a bay mare. .Did not tell accused he wtanted it sold by auction and did riot know whether it was sold by auction or privately. No written demand .was made by witness for account sales or for the money 7. Accased’ never iasked for time to pay. If he liad, witness would have allowed it.—AV. Maddern, detective, gave evidence that he was on the wharf on 15th June last and saw accused leave the wharf on the Tuatea. On ■ June 27,th Hill informed witness of the theft 'and on the return of the AUetoria from Sydney witness found that a Air Buckland .travelled by her for Sydney on June loth, paying liis passage on board. —‘Air T. A. Coleman ifor the defence contended -that he had no case to answer. Quoting from the Auctioneers Act,counsel proceeded to show that it- was a no* cessarv ingredient o-f any charge under the Act that there should be a sale by auction. The evidence showed that the horse was -sold, hut did not show that it had been sold by auction. Consequently, counsel held there was no offence.—The accused gave evidence on his own behalf. He (stated that early in May ho had received the mare from Hill, who said lie wanted £ll. No- special instructions were given for the sale. AVibliess sold the mare about three weeks afterwards to Air. -Neenan, of Ormond. ■ (Later witness met Hill who asked- him about payment ifor the mare. AVitness replied that, he did not have the amount at the time, but would see him again. (Some days later witness again saw Hill, when Hill asked him to leave the money at Mr Mann’s: AVitness neglected to do so. AVitness left Gisborne for Auckland on June 15tli .and when lie •arrived there arranged with. Messrs Buckland and -Sons to pay his Gisborne debts. To liis Worship: Did not give the firm a list of his debts.

AVitness returned to tlio Dominion on November, 30th of liis own free will, and was not aware of these proceedings having been; taken. Two of witness's liabilities m tins district had been mi id during l#is absence. Did not leave the Dominion to avoid creditors. To Detective- lAl'addern. Lrfit the Dominion on urgent private matters. The night before leaving Gisiborno had slout at Ormond. AViitncss was not aware that the police •had been searching for li-im in Auckland. From Sydney witness did not go to Tasmania. Deft Sydney for New Zealand, but couhl not remember the day, or the day 7 be arrived in Wellington. AVitness left it to bis wife to give a- list of bis liabilities to Buckland and Sons. His wife did not know lio was leaving the colony 7 but- did know liis liabilities.— iH. M. Route,r, laind and ostato agent, stated that he received communications from accused’s bro-ther-in-law, Air. 11. Gorrie, (of Auckland, in reference to accused’s liabilities in this district and asking .witness to ascertain any pressing liabilities. AVitness was to draw on, them up to £l5O meantime and put the matter' in .'the . hands of Alessrs Chris]) and Cole,man, solicitors. To Detective Aladdern..: Ascertained a month or five weeks ago that a..warrant was out for accused. 'lliad got a list of some accounts owing by accused which were pressing.—Cornelius Neenan, hotelkeeper, Ormond, stated that ho. bought a hay mart from accused at Ormond on 19th May. To DetectiveMiuldorin : Mare was branded on the near shoulder. Sold the mare again on the 24bli Alay.—His AA r o-rship considered a prima facie ease liad been made out and accused was committed for trial at the next sitting of the -Supreme Court, to be held in Gisborne on Alia roll 2nd, 1908..

Alleged Threatening Behavior. — Elizabeth Beatrice Alullooly applied to liavo James Alullooly 7 bound over to keep tlie peace towards her.—Air. T.. A. Coleman appeared for complainant, and Air. F. AV. Nolan for defendant. —Elizabeth Beatrice Alullooly, wife of defendant, deposed that she had been living apart from her husband. On November 14th defendant came to the paddock of witness’s liouse, and said lie would give witness “enough to do.” Defendant was excited. Defendant bumped the walls of the bouse about 10 o’clock ,and witness' beard three shots fired about 11.30 p.ni. AVitness was si:t present afraid that defendant would do her and her children some harm. To Air. Nolan: Saw defendant ride up past the house half an hour after the shots were fired. Had never seen defendant with a revolver. Defendant came to see witness on October 27, at 4.30 a.m., and said ho was going to stay- there. Defendant did not say ho had come to see his soil. He came again in the evening, and started calling names to the witness, and then she threw a dish of water in his face.—Blanche James stated tint she went to live with complainant, and about November 14th hoard three shots fired about 10.30, and saw defendant riding up the lane in. front of the house.—Alatthew Alullooly, aged 13 years, son of complainant, gave evidence that he saw defendant about four weeks ago -at liis houiso. Defendant said that .witness’s- brother bad written- something on . a paper, and said that if witness did not say the same ho would riddle him with bullets. Defendant pointed -the revolver at witness, who then went home. On tlio same day defendant said to witness he would liavo his mother in Court before Christmas. To Air. -Nolan : The revolver was not loaded when it -was painted at witness. Defendant used -to give them a cup of tea every 7 day when going to school. Defendant liad never threatened witness before or since that occurrence. —Mr. Nolan,Tor the defence, called James Alullooly, who stated that ho was ill with influenza on November 1-Jit.h. and Was visited by James Mills several times during that day 7. AVitness hid never fired a revolver near complainant's house. Had only fired t-lie- revolver twice at a dog, which had run under thehouse, and had never threatened to do harm to complainant or her children. AVitness went to complainant's house to see liis son, and saw complainant there. Complainant threw water over witness and slammed the door in his face. No bad language or threats were used by witness. To Air. Coleman: Bought revolver and ammunition -to defend himself. Had 'never fired the revolver in Caesar’s paddocks or in - the lane outside . complainant’s house. Never pointed revolver at liis sou. Intended to keep revolver.—James Mills stated that lie lived next door to defendant, and saw him on November 14,tilt. Defendant was then suffering from influenza, -and was, very weak, iln witness’s opinion defendant- could not possibly have either ridden or walked to complainant’s house.—iHis' .Worship said that he would adjourn the ease until January 9t.li, but that if in the meantime .defendant would hand the revolver to- the- police he would dismiss the -information.—The defendant thanked the Alagistrate, and said that he would obey the order.