DISTRICT COURT.

Hawke's Bay Times, Volume I, Issue 22, 28 November 1861, Page 2

DISTRICT COURT.

Thursday, November, 21, 1861. 21c.Iloherls and others Carter, Superintendent. Captain Curling delivered judgment in this case, and after reviewing the facts and stating that the 3rd clause of the specification, the one relied on by the plaintiffs as containing a contract on the part of the Government to supply them with a daily average of ten punts, seemed clearly susceptible of such an interpretation, and that the pleas denying the contract and asserting that the payments made had been accepted in full had failed, said that the only question remaining was as to the amount of damages the plaintiffs had sustained, and in the absence of any satisfactory evidence as to what the men employed by the plaintiffs were being paid on the days when the dredge did not work, he thought that ,£GO would compensate them for their loss, and he accordingly awarded them that sum, with costs. Charlton v. Kennedy. This was an action brought to recover the possession of a certain mare alleged to be the property of the plaintiff, and wrongfully converted by the defendant to his use or hhO, its value. The defendant denied the possession, asserted that the mare did not

belong to the plaintiff, and further pleaded that he had bought it on account of Messrs. Stuart and Kinross, his employers. Mr. C. Allen appeared for the plaintiff, and Mr. Wilson for the defendant.

The plaintiffs case was —that he havin'* been formerly in partnership with Mr. G. IT Worgan had, on its dissolution, taken security for the amount due to him, in which the mare was included ; that the defendant was aware of his claim, and yet had purchased the animal from Worgan. The plaintiff, George Charlton, was called to proved these facts, and produced a certified copy of the mortgage deed, which was objected to as insufficient evidence, the original deed being accessible. It was shewn that the original was in the possession of Mr. Carlyon, in Wellington, and could not be procured, but the objection being pressed, Mr. Allen withdrew it, relying upon being able to prove the defendant s knowledge of its contents, which was proved by the plaintiff, and also that the defendant had admitted to him that he had purchased the mare conditionally only upon plaintiffs assenting thereto. Mr. A. Kennedy, the defendant, was also called, and proved that he bought the horse conditionally from Worgan "for Messrs. Stuart, Kinross, A Co. for £4O, in part liquidation of a debt due from Worgan to them ; but on producing the bought-nnte it appeared that the sale was made in his own name. He was aware that the mare was included in Charlton’s mortgage, but the condition was not that Charlton should assent, but that there should be no sale if Charlton asserted a claim and proved a title. For the defence it was contended that, in the absence of the deed, there was no proof that the mare was mortgaged to the plaintiff, and that if this were not so, that thb/mare was bought by the defendant for his principals; Messrs. Stuart and Kinross, and consequently the defendant was not liable. - C His Honor took time to consider hjtS judgment, and on the Saturday following decided that the plaintiff s case failed soldty in consequence of the contents of the mortgage deed being insufficiently proved; that° lie thought the action was well brought ; and that the defendant had no right to buy the mare with the knowledge of Charlton's claim. Plaintiff nonsuited. Worgan v. Kennedy. This action was brought to recover the sum of £25, paid by the defendant on behalf of the plaintiff, as a deposit on an application made by the plaintiff for an increase to his run at Paloka. The defendant pleaded never indebted; that he had no interest in the £25, but acted merely as agent for Messrs. Stuart, Kinross, A Co. ; that it was agreed between the plaintiff and defendant that the license resulting from such application should be held by Stuart, Kinross, A Co. in favor of Messrs. Bowler A Co., of Wellington ; that no license was issued, and Bowler A Co. had claimed the return of the £25. Mr. Allen appeared for the plaintiff; Mr. Wilson for the defendant. From the facts proved in the case, it appeared that the plaintiff, desirous of applying for an increase to his run, applied to Mr. Kinross to discount his order for £46 on Messrs. Bowler, which he agreed to do on 'having the application made in the name of the defendant and the license, when granted, transferred to them ; to this plaintiff agreed. Stuart, Kinross, A Co. cashed the bill for £46, retained .£2l, and deposited the £25 in the land office, the application being made in the name of Kennedy, but being made and signed by Kinross. The application was unsuccessful, the land applied for being in reserve, and not open for purchase, consequently the £25 was returnable on application. The plaintiff was shewn to have applied to the defendant to get the £25 bat'k, and repay it to him, which he declined. These facts were proved by Mr. H. E. Webb, chief clerk in the land office, and by the defendant, who was called for the plaintiff. On the other side it was contended that the Court had no power to make the order asked for, as Bowler had refused to cash Worgau’s draft until Messrs. Stuart, Kinross, A Co., had agreed to assign their interest in the license to him, which they had done, and that as the £46 were still due from Worgan to Bowler, the £25 belonged to the latter. In support of this case, Mr. Kinross was called, and proved his negociation with Bowler, and the transfer of the interest in the application to him, and that Bowler had recently told him that Worgan was considerably in his debt ; but he failed to prove Worgan’s assent to the transfer to Bowler, or the state of accounts between them. In reply, Mr. Allen relied upon the fact that Kennedy was merely trustee for M organ, and, though admitting that if the licence

had been granted it would have been a security to Stuart and Kinross or Bowler, as it had been refused, and he had derived no benefit from the £2o, and bad been debited with it by Bowler in account, he was entitled to be repaid it. His Honor took time to consider his judgment, and on the following morning decided in favour of the plaintiff, with costs. Charlton against Neil. Was an action in which the plaintiff sought to recover possession of a mare called Beauty, the property of the plaintiff, and converted by the defendant to his own use. The facts were similar to those in Charlton v. Kennedy, and the case was settled out of Court. Mr. Allen for the plaintiff; Mr. Wilson for the defendant. Friday, November 22. Shirley another v. John § James Liny aril. This was an action brought to recover .£33 19s. 5d., the amount of the plaintiff's bill fur butcher’s meat supplied to the defendants, who were road contractors. Mr. Allen appeared for the plaintiffs. Henry Shirley proved the order by, and delivery to, John Lingard, who informed him that he and James were in partnership, and the presentation of the bill to him, when he checked it as correct, and directed him to take it to James, who wrote on it an order to Mr. Newton to pay the amount out of monies received by him from the Government, under their contract, but that Newton refused payment. The defendants, who appeared and defended separately, the one by Mr. Wilson, the other by Mr. Taylor, each denied the . partnership and his individual liability, and attempted to throw the responsibility on the other of them, but in doing so proved too much, and a witness called "by the defendant James, and who was a laborer on the works, admitted that the two defendants were his masters, and that lie looked to both for payment. Mi.’. Allen, in reply, likened the defendants to two prisoners hopelessly guilty, who had agreed each to accuse the other of the crime imputed to them in the indefinite hope that one might by accident escape ; and he wondered that the combined professional talent of the Province should be concentrated upon the proving his case, and asserted that the action was really undefended. His Honor at once gave judgment for the amount claimed, with costs. Charlton v. Glenny. Tins was an action for the return of a horse, under somewhat similar circumstances to those in the previous horse cases, and resulted in a verdict for the plaintiff for the return of the horse. Mr. Allen fur the plaintiff; Mr. Wilson for the defendant. This case terminated the November sittings.