RESIDENT MAGISTRATE’S COURT.

Hawke's Bay Times, Volume II, Issue 44, 1 May 1862, Page 3

RESIDENT MAGISTRATE’S COURT.

Apiul 25. (Before J. Curling, Esq., R.M., and M. Fitzgerald, Esq., J.P.) Me.Hardy v. Breingan. Plaintiff sought to recover AlO 125., balance of account for timber and posts delivered to defendant. Judgment by default for the amount claimed, with costs, 15s. Defendant subsequently applied for a reheax’ing of this case, on the grounds that he was prevented from attending owing to the illness of his wife and child ; that the floods in the river would have prevented him proceeding to port; and that he could prove that he was not indebted to the plaintiff. McHardy v. Gray. This was an action to recover .£l9, for timber and posts supplied to defendant’s order. Judgment by default for amount claimed, and costs. Mr. Taylor, for defendant, subsequently made application for a re-hearing of this case, on the grounds that the defendant was unable to attend the court owing to the heavy rain swelling the rivers, and that he had a good defence and was not indebted, but that, on the contrary, plaintiff owed him a considerable sum of money. April 2G. (Before J. Curling, Esq., R.M.) James Wilson was summoned to answer a charge of negligently driving in the streets of Napier, whereby a native named Paora was knocked down and hurt. Eiued £2 ; of which the native, who was somewhat hurt, received £L April 29. (Before J. Curling, Esq., K.M., ami W. Maltbv and H. J. Tillen, Esqs.) France v. Brathwaite. Was an action brought to recover £l4 15s. Gd., the amount of an order drawn by one Thomas Shepherd on the defendant payable to the plaintiff. Shepherd bad a contract with the defendant to erect the Rank fence, and plaintiff took the order to defendant, who declined to pay it then, as there was nothing due to Shepherd, he having done none of the work, but the plaintiff stated that defendant promised to pay it out of the first money due to Shepherd, and he left the order with defendant, who kept it for many months ; but at the end of the contract, when plaintiff saw him again, he told him there was nothing due to Shepherd. It appeared that plaintiff, failing to get the money from defendant, had sued Shepherd. For the defence, Brathwaite was called, and denied having promised to pay; he merely kept the order 'to let it take its chance witlx others. He did not consider it a sufficient authority to pay upoix; but he admitted that he did not tell plaixxtiff so. lie paid other orders presented to him afterwards, axxd stated that even if there had been sufficient funds he would not have paid this order. On cross-examination he could give no reason whatever for the last answer, and admitted that since receiving the authority he had paid Shephei’d large sums of money on the contract. . < In reply it was urged that, having taken the order from plaintiff, he was bound to pay it before paying Shepherd anything. The Court retired to consider their judgment, and on x’eturning merely dismissed the summons, without giving any other expression of opinion in the matter beyond this, that they thought it right to say that Mr. Brathwaite had not behaved well ixx the matter’. Mr Allen for plaintiff; Mr. Wilson for defendant. Wircmu Patene v. Tncmmel. Plaixxtiff claimed a certain pair of breeches, which defendant had agreed to make for the sum of £3 155., of which sum he had paid £2 ss. on account, and had offered to pay the balance. Plaintiff did not appear. Kennedy v. Day. Defendant, a private in the 14th Regt., was charged with assaulting Mr. A. Ken-

nedy, on the night of Wednesday, the 23i’d April.

Mr. Kennedy deposed that on the evening in question he came out of Marshall’s hotel and walked towards the Spit. Spoke to one dr two persons as I passed. Mr. Bridge was with him. It was dark. When they got to Mr. Fitzgerald’s corner, two soldiers came up. One had a great coat on and a cap ; the other had on a blue serge shirt and a belt. Believed the defendant Day to be the man in the great coat; but could not swear to him, as it was dax’k, and he had only just come out of the light. Could swear to him being one of the men. The man in the great coat ran against him, and instead of going away kept close by his side. Said nothing to him. Fixxding he did not go away witness told him he thought the road was quite wide enough for both, and wished he would keep a little further off. He said he only wished to talk to them and say good night. The other man who was with him asked him to come on. He said “ No,” he would stay and have a talk ; and then turned round and held out his hand. Witness shook hands with him, and believed Mr. Bridge did so, and wished him good night. It was raining at the time, and they again asked him to go on. He then went after his comrade, who had got some distance in advance. We let them go on a bit, and then walked on. When we got to Robottom’s we found thexxx coming back. The man in the great coat came up to witness and asked him to light. Witness said “No; why should I light ?” He then got vexy much excited, and made a round hit at witness; but he drew back, and was struck but slightly. Mr. Bridge called out “ Picket!” knowing the picket was at Marshall’s, upon which they both turned round and ran up the hill. Witness went back to Marshall’s, and asked Corporal Davern if he knew the men. He said he knew them to be Day and Mulcaby. The second day afterwards, witness was going up to the Barracks, when he saw three men in the custody of the guard, and recognised Day as one of the men. The man in the great coat struck witness ; the other man was taking no part in it whatever, but he had walked back with the man who struck witness, and was about three yards behind. Had seen Mulcaby since, axxd recognised him as one of the men. Did not know fx’onx his own knowledge which was in the great coat. Had a firm impression it was Day, but could not swear it. Believed Day to have been the man in the gx’eat coat, fx’om his countenance. John Davern deposed that on the evening in question ho saw’ Mr. Kennedy and Bridge together, going towards the Spit. Five oxsix minutes altorwards saw them again, axxd they asked him who were the tw-o soldiers who went up the road before them. Told them Day ami Mulcaby. Mr. Kennedy said that the man in the great coat had struck him. Had seen'two soldiers pass Mr. Sutton’s going up before Mr, Kennedy and Bridge. Was talking to Mr. Kennedy at the time they passed, and they bid us good night. Mr. Kennedy went up after them, and wdien he returned it was that he asked me who they w-ere. Knew them well, and could swear to thexxx. Day w-as in the great , coat; the other had his fox-age cap and blue serge shirt aud waist belt on. Thomas Andrew Bridge deposed that he was with Mr. Kennedy on the evening in question when the tw r o soldiers came up. They first of all met us a little above Mr. Fitzgerald’s house. One of them walked up against Mr. Kennedy, who told him the road was quite wide enough for both. The soldier said he only wanted to say “ Good night.” We said “ Good night” to him. He left us, and then caught up his companion. We walked on after them, and by the time we got beyond Mr. Robottom’s one of the men turned round (we were then in the dark) and challenged Mr. Kennedy to fight, at the same time flinging his arms about, by which he struck Mr. Kennedy under the chin. Witness called for the picket, which he knew to be at Marshall’s, and both the men sot off running. We returned to Marshall’s and saw Corporal Davern. Mr. Kennedy asked him if he knew who those two soldiers were in advance of us ; and he said “ Yes; Malcaby and Day.” After a few minutes conversation, we left. The man who walked against Kennedy had a great coat on. It was the same man who struck Kennedy. On Friday identified Mulcaby as one of the men ; but could not say which was the man who struck Kennedy, but was certain ho had a great coat on. Thomas McCarthy deposed : I am a sergeant in the 14th Regt. I recollect the night in question. I was ordered after Day and two more who had bi’oken out of Barracks. About ton o’clock that night Day

came down the road by himself. I was standing at Marshall’s door, lie had no great coat on then. I made him a prisoner, and gave him over to the sergeant of the picket. Mulcaby was out of Barracks that night. I did not see him coming homo. The corporal of police met him coming home. I went to the pay-sergeant the next morning an d told him that I heard Day had had a great coat on that night in the town ; and he searched and found it in the barracks next morning. Thomas O’Brien deposed to seeing Day on the evening in question dressed in a great coat. Saw him go into Marshall’s with two other soldiers. Mulcaby was not one of them. Did not see him afterwards. Thomas Day, in defence, said : I went into Marshall’s that night. I did not leave it until I was brought out drunk by the picket. Ido not remember seeing that man Kennedy at all. I was drunk, and I was brought home to the Barracks by the picket. I do not remember any more. I have no evidence to bring forward about the great coat. I don’t recollect anything at all. Fined .£2 ; in default, 14 days’ imprisonment, with hard labour. RoboUom v. Newton. Plaintiff sought to recover £l2 10s., on an order made by Charles Benton on defendant. Judgment for plaintiff, with costs. April 30. (Before J. Curling, Esq., R.M.) Me.Hardy v. Gray. This was a rehearing of a case tried in this Court on Fridav last. The action was brought to recover the sum ot £l9, the price of 287 posts supplied by the plaintiff to Mr. Heslop by the direction of the defendant. It appeared from the plaintiff’s evidence that he had agreed to purchase 200 acres of land at Mangaone from Mr. Brookes for £SOO, payable by instalments. The purchase money, however, was to be paid to Gi’ay, the owner of the land. Gray drew the agreement and witnessed it, and of course was aware of its contents. The plaintiff took possession in October last, and paid Gray £IOO in January following. Gray soon afterwards asked him to supply Heslop with the residue of certain timber which Brookes had agreed but had omitted to deliver to him. Plaintiff did so ; but could not for sortie time get a receipt from Heslop. But ho applied to defendant for the £l9, which the latter refused to pay till he was satisfied of the delivery, On the 9th of June, in consequence of some disagreement about the payment of the balance of the £SOO, his agreement was determined, Gray drawing up a memorandum to that effect, which plaintiff' signed, and then gave up possession. He afterwards got Heslop's receipt, and applied again; but payment was refused. The plaintiff also stated that in the settlement nothing was said about Heslop’s timber, and he did not forego that claim, he merely gave up the land. For the defence, Mr. Gray stated there was a considerable sum due upon the balance of accost from plaintiff to him, and that in that account he had credited plaintiff with £l6 15s. as the value of the timber; and he admitted, that on the determination of the tenancy nothing was said about it, but he considered it included in the arrangement; and he added that the plaintiff had agreed to supply him with timber on account of the next instalment off the purchase money, and he had so treated this liability. He, however, admitted that plaintiff had applied after the delivery for payment, and that plaintiff had refused to let him have 100 straining posts unless paid for on delivery. He acknowledged that he had never rendered plaintiff any account, and that no account had been made up at the time, but that the one produced had been framed by him after action brought. The Resident Magistrate took time to consider his judgment. Mr. Allen for plaintiff; Mr. Taylor for defendant.