MAGISTRATES’ COURTS.

Globe, Volume VIII, Issue 1010, 20 September 1877, Page 2

MAGISTRATES’ COURTS.

CHRISTCHURCH. Wednesday, September 19. (Before G. L. Mellish, Esq., R.M.) CIVIL CASES. A. MOORE AND CO, V. MINISTER OF PUBLIC WORKS. Mr Joynt for the plaintiff, and Mr Gr. Harper for the defence. In this ease Mr A. Moore, corn merchant, Christchurch, sued the Minister of Public Works for £SO, the value of fifty bags of wheat destroyed by the fire which occurred at the export goods sheds, Lyttelton railway station, on or about the 17th June, 1877. The evidence for the plaintiff showed that the wheat had been sent by rail from Christchurch to Lyttelton, the plaintiff’s agent, Dunlop, being instructed to order the railway authorities to ship the wheat on board the Otago, then, it was said, lying in port. The evidence led for the defence went to show that the Otago was not ready to take the goods on board when they were sent to Port. The plaintiff, recalled, statcu iliat the Railway Department had given him no notice that the debris left by the fire was to be sold for whom it might concern. All he had seen touching the matter was an advertisement in the newspaper. Nor had the authorities accounted to him for the proceeds of the sale of the debris of his grain. Mr Harper then briefly stated that he relied on the endorsement on the note of consignment as relieving the Government from all liability. The endorsement contains the words “the Canterbury railways will not be accountable for any loss or damage to any goods in their hands as carriers, or in their warehouses, or on their landing places, arising from lire.” Mr Joynt submitted that the plaintiff must recover, and quoted from the Public Works Act, 187(5, showing that all goods received by the railway shall be deemed to be in the custody of the Minister of Public Works until they are delivered to the consignee. He also held that the railway was in the position of a common carrier, and pointed out that the Carriers Act of 1866 set forth that a common carrier shall be liable for negligence, although he stipulated against it. Mr Harper had referred to a Bye law published in the New Zealand “Gazette” of April 18th, 1877, as showing the Government was not liable. It contained the words —“ The Minister will not be responsible for any loss or damage in respect to any goods received for carriage, or carried on the railway, if the loss or damage arises from the act of God, civil commotion, the Queen’s enemies, or from fire (except from the railway engines or apparatus), or from accidental delays in transit occurring from either of these causes.” Mr Joynt maintained that this Bye-law was ultra, vires in so far as the 145th section of the Public Works Act was concerned, and pointed out that it had not been framed under the 153rd section of that Act. The endorsement on the note of consignment and the Byc-law were therefore of no avail in limiting the liability of the Government. The Court reserved its decision till that day week. EDWARDS V MINISTER OF PUBLIC WORKS. In this case, which was similar to the preceding one, Mr Thomas Edwards, maltster, Christchurch, sued the Minister of Public Works for £2O 12s lOd for damage done to sixty bags of malt by the fire which occurred at Lyttelton on the 17th June, 1877, and £72 Is 6d, for subsequent wrongful detention of the same goods at the railway station, Christchurch. Mr Joynt for the plaintiff, and Mr G. Harper for the defence. The evidence showed that the malt in question was worth 7s, f.o.b. at Lyttelton, and that it had been so injured by the fire that the contents of forty bags had to be transferred to new sacks, and that then the goods were not fit for brewing ale, nor even porter. The goods were, by plaintiff’s order, afterwards returned to the Christchurch railway station, and when plaintiff applied for them there the officer in charge refused to give them up unless plaintiff signed a note that they were delivered in good order and condition. This, in the face of their damaged state he declined to do, the goods were detained, and hence the claim for detention. Having heard counsel, His Worship intimated that he would reserve his decision till that day week. Thursday, September 20. (Before G. L. Mellish, Esq., R.M., and G. L. Lee, Esq., J.P.) Miscellaneous. —Robert Dunn, drunkenness, was fined 40s ; John Delaney, drunkenness and destroying Government property, value Bs, while in the cells, 10s and the damage 8s; Henry Williams, drunkenness and soliciting alms on the 10th instant, was, both charges being proved, fined 5s for drunkenness. The other charge was dismissed, it being the first appearance of the accused. The man said he had been in drink, and was a tailor by trade. If he had done what ho was charged with he had done it unawares. He had been in employment since his arrival in the place. Larceny as a Bailee. —Carlof Klint was charged with larceny as a bailee in the matter of two horses, one belonging to John Brookes the other to J. W. Carrcw. Detective Benjamin had charged the accused yesterday with larceny as a bailee of a horse, the property of John Brookes, Christchurch. The prisoner said, “ I know I did it. I’m guilty.” Witness took possession of the horse—a mare—at Millett’s stables, Christchurch. The prisoner, when asked if he had anything to say, remarked that he would like to get a lawyer, as he could not explain himself, and there were any number of things connected with the case which he would like to bring before the Court. The police stated that Mr Joynt had been communicated with, and the case was ordered to stand over till accused obtained counsel. After a lapse of some time, the prisoner’s solicitor not arriving, the prisoner was remanded till Monday. Dog Poisoning. —S. Powell v C. Bucknall. This case, in which judgment had gone for plaintiff by default, was brought up for rehearing. Mr Izard appeared for the plaintiff, and Mr Thomas for the defendant, who, it was alleged, had poisoned plaintiff’s dog, valued at £lO. S. Powell, trainer, said that about the 13th of August last he was owner of a red Dish setter, which died, he believed, by poison, because he hail eaten one of the sheep which Bucknall had poisoned. The sheep wa; within ton feet of the road. Bucknall said he iiad put the poison there. Witness found the Jog within thirty yards of the sheep. The log had just been broken in, and was worth L‘lo. lie had kept the dog tied up night md day, except when he had it out or dlowod it to run about the place. Cross■xauiined —Witness owned twenty acres of ■and there, but he could not say what area of .and Bucknall had. Bucknall bad sheep, and vitness saw young lambs there. He had aeard no complaint from Bucknall about dog® worrying his sheep, Witness had oub boy uj

in his employment, but he had no one in his service at the time of the dog’s being poisoned, so far as he remembered. The boy’s name was Stewart, if he had one at the time. His present boy was named Thomson. Witness did rot take in the “Lyttelton Times,” and his attention was not directed to any advertisement about poison being laid down on Bucknall’s land, nor did he see any notice on Bucknall’s land. After the time his dog was there witness could smell the sheep off the road. Witness saw what he was told was poison lying on the sheep. The dog was let loose on Sunday morning, and he saw no more of him till he was found dead on Monday. Edward J. Brock, veterinary surgeon, had seen the sheep in question on the Monday afternoon. It was skinned, but there was no offensive smell. There was some crystalised matter on the shoulder of the sheep, and he took it to be strychnine. A small part of the carcase had been eaten. The dog was lying close by, and he should say that the dog had died through eating strychnine. The dog was well bred, well broken, and worth at least £lO. Cross-examined —The dog presented all the appearance of having died from strychnine. The carcase seemed to have been eaten about the neck, and the greater portion of the poison was on the shoulder, near the neck. There was a good fence between the paddock and the road. There were dead lambs lying about with slits in their shoulders, and there were gaps in the fence. Mr Armstrong said the distance between the sheep and the road was 10ft. There was no smell from the sheep on Sunday. Mr Cutts said that the dog was always kept on the chain, and he had never known the dog to run after sheep. There were gaps in the fence all along the road, and a sporting dog would be certain to smell even fresh meat within a distance of ten feet of a road. Mr Digby had never seen the dog run after Jsheep, and he had shot over it several times where there were sheep. S. Powell, plaintiff, said he had about eighty acres, and kept between 300 and 400 merino ewes. They were lambing at the time in question, and he lost about thirty lambs through dogs at the time. He went round to the persons personally and gave notice that he was going to put down poison for two or three days till he removed the sheep. That was about four or Jive days before the dog was poisoned. He did not see Powell, but he gave particular information on the matter to one of his men. He had advertised, and had put up a notice on his land within three chains of the road. The poison was not laid by him nearer than three chains to the road. He placed poison in two sheep and two lambs, but not so that dogs passing the road would bo attracted by the carcases. The lambs and the sheep had been shifted from that particular place. Another witness had seen Powell’s dog in the paddock some days before, amongst a lot of dead lambs. Witness lived on the land, and he had known the sheep to be disturbed, and there were a good many lambs lost in consequence. Mr Thomas, in addressing the Court, argued that Bucknall was justified in laying the poison within three chains of the road, as at that distance dogs passing on the road would not be attracted by the carcase. That was the principle laid down in the written law as governing such cases. Mr Izard held that the defendant was responsible, inasmuch as it was clear the sheep was near the hedge, within 10ft of it, where the dog was poisoned. The Court remarked that the whole question was whether the poison was laid so near the road as to attract i the dog in passing. There was no doubt that Bucknall had laid the poison three chains from the fence, but the sheep, it was equally clear, had at some time or other been shifted from the place where the poison was laid to a place sufficiently near the road to attract the dog. It was just possible, but not likely, that the carcase was dragged by a dog to where it was seen, within 10ft of the fence. That was one solution of the difficulty, and another solution, which the Court could not for a moment entertain, was that Powell or someone connected with him had, after the dog had been poisoned, removed the carcase close to the fence, with the view of making a good case. Under these circumstances, the judgment would be confirmed. The Court expressed sympathy with Bucknall, but remarked that his losses did not alter the law of the case. Mr Izard did not press for additional costs.