WARDENS COURT

Hokitika Guardian, 20 October 1933, Page 2

WARDENS COURT

: —> < FURTHER SUITS YESTERDAY. JUDGMENT FOR, OEDERMAN. Ihe Warden’s Court continued its sitting yesterday afternoou and evening, in the hearing of the mining suits.

Albert Ce derm an (MvA. It. Eleock) v Frederick Charles Marshall (Mr J. A. Murdoch), for return of goods and £lO damages. The hearing was continued yesterday afternoon, all the evidence being published in the “Guardian.” Counsel for defendant said that if plaintiff had any remedy at any time, lie had lost it through his delay in bringing action. There was no proof that a demand had been made for the return of the pipes. On the other hand there was the other side’s evidence that no demand was made. Three witnesses deposed that the mill had been dismantled and that the bargain was made for purchase of the hut and the pines. Plaintiff must have known defendant was using the pipes long before plaintiff asked for the free gift of the pipes. On the law and on the facts, plaintiff could not win. Two of defendant’s witnesses were now interested parties. This was a case here plaintiff should have proven his rights with all diligence. Counsel for /plaintiff said that there had been undue delay in brnging action. For two years after plaintiff had taken possession of the pipes, no demand was made by defendant for their return. The Court did not have before it the receipt upon which defendant based his case, He submits ted that the documentary evidence was in favour of plaintiff. The Warden gave judgment for plaintiff in' full with costs, and witnesses expenses £3 17s, and ordering the return of the goods, or if they cannot be recovered, plaintiff to be recompensed at the rate of one shilling per foot. He said that the case turned on the question of who first became the owner of the pipes after they were disposed of by Stratford, Blair and Co. The evidence proved that Freitas paid £0 for the pipes and the hut. No steps appeared to have been taken by Marshall to take possession and remove them. The question was whether the pipes were included in the original sale. If so, 'Stratford Blair and Co., had no right to further dispose of them. The liquidator, however, of the sawmilling company, was approached by plaintiff who, said that he could use the pipes, and was later advised that he could have them, and plaintiff apparently took possession and removed them with the .authority of the liquidator.

Mr Tennent discovered the previous action between the liquidator and palintiff, and returned the £2 to defendant, admitting an error had been made, and advising defendant that the liquidator had authority to act. Defendant had endeavoured to make them adhej’e to their 'arrangement a«d returned the £2 to Stratford, Blajr and Co., but it was once more forwarded to defendant, Correspondence between Mr Tennent and counsel for plajntff showed that Freitas had not purchased the pipes, so that they could not be included in the sale of the hut and pipes as claimed. On June 14, 3 029, plaintiff became the new owner of the pipes, on the evidence of Mr Tennent himself. The 1 subsequent sale was one that was made in error, and one over which the company had no control. When the error was known, the money was returned. When defendant removed the pipes, he did so without the consent of the owner.