R.M. COURT, QUEENSTOWN.

Lake Wakatip Mail, Issue 197, 18 March 1865, Page 3

R.M. COURT, QUEENSTOWN.

EXTENDED JURISDICTION.

(Before His Honor Wilson Gray, District Judge)

March 9.

M'Dougall v. Leitch—ln this case, heard at night, the Court gave a very elaborate judgment, which we are obliged to condense. His Honor said he had given this case due consideration. The action was, firstly, for the horse lent and not returned, valued at 20/; for hire, 10/; and 4/ 10s, value of a saddle. The principal questions to consider were the value of the horse, the hire of it, and, he regretted to say, that the saddle had been introduced into the dispute. The horse had proved incapable of making a rapid or ordinary journey, and had knocked up. The defendant had then stabled him for several weeks, and he thought he had, in what he had done, not exceeded what was absolutely required for the safe care of the auimal. He had made one attempt to get away from Dunedin, but had suffered from a bad fall. So far, everything had been done properly, and the horse was evidently unfit to travel. When the defendant was leaving, the horse was taken possession of by a policeman [This part of the evidence w s gone over.] The horse then got into the hands of the alleged owner, Mr Barnes, who refused to return it. Mr Barnes was a very respectable man, and he did not think it necessary to say the respectability of Mr Branigar, was beyond question. It had been said by the plaintiff that the defendant should have entered an action in a court for illegal possession, or against the party or parties who took the horse, but the Court was of opinion that the defendant would not have been justified in doing so, in consequence of the strong evidence about the horse belonging to Mr Barnes, and the uselessness of litigation in the position in which he was placed. The defendant at once wrote upon the horse being seized to plaintiff, walked back to Queenstown, and assisted the plaintiff by going to the police. He held the defendant had done all he could. The plaintiff then sued Elliot, and failed through want of evidence to obtain a verdict, and yet the defendant was told that with less evidence he should have sued for recovery of a horse he had on hire. As to the hire of the horse, he did not think they could make the double claim of 5/, as the delay was evidently caused by the fault of the horse, and its being so incapable. Had the horse done the work he did not think the question of hire would have arisen or be objected to. As the horse was lost to plaintiff, and as there was a failure of evidence about the horse being taken from the defendant, he thought he should pay 5/. If the horse had been proved a stolen one, then no hire could have been claimed. No sufficient proof of this had, however, been brought forward. About the saddle there was no question. As to the value of the horse, the plaintiff had proceeded upon the supposition—and this supposition was sometimes viewed as correct by even legal eyes that the borrower was bound to restore the articles borrowed. This was not so in law. The article remained at the risk of the owner. If it was taken by robbers, for instance, dies, or falls over a precipiece, it is at the owner's risk. The party hiring are only bound to use care and diligence, and when they do this they have performed all that the law expects from them. Several precedents were quoted upon this point, upon proper care being taken by the bailee, and non-responsibility attached thereunto. Now, if the defendont had summoned Barnes, what could he have done ? He had the very best reasons not to sue Barnes, and would have acted imprudently in doing so in the absence of witnesses. Defendant even acting as the servant of a master—and he put it in this light as a matter of illustration—would he have been justified in resorting to litigation? After several other remarks, the Bench said they thought not. The judgment, after all considerations, would be for plaintiff—hire, 51, and 2/10s balance on saddle. Webster v Howorth.—3l/. 10s. Mr Shepherd for plaintiff; Mr Campbell for defendant. Mr Shepherd applied for the case to be postponed, as a contra account had only been rsndered them the previous night, though repeated applications had been made for an account by defendant. Mr Campbell objected, on the grounds that the defendant had several times come up to settle with plaintiff, but could never obtain a settlement. . The court ruled that the account was not a set off, but cash credits; a set-oft" being an independent matter. The court also held it was a mere matter of accounts, and recommended arbitration as a means of settlement. Adjourned till next morning to allow parties agreeing upon names of parties to arbitrate between plaintiff and defendant. J. and J. Anderson v. Cassius.—This case was mentioned again twice during the day, and several points argued ; but was further postponed after affidavit had been filed. Cook v. Brown.—loo/. Mr Shepherd for plaintiff; Mr Campbell for defendant. Mr Campbell took a preliminary objection to the date of service. This was over-ruled. It was then found that the summons was a blank one, and had yet got an affidavit upon it. Mr Shepherd called upon Mr Campbell to produce the copy. After considerable legal discussion, the court allowed the summons to be amended, and the case was heard and a verdict for plaintiff turnedMr Campbell, who had strongly contested the case, applied for permission to appeal, which was refused, the court remarking that as it was cash lent they could see no reason to throw obstacles in the way of pkintiff. Time was consented to be given. Crofts v. Fletcher.—6l/. Mr Shepherd for plaintiff; Mr Campbell for defendant. This was an action to recover the value of a horse which it seemed the plaintiff, after some demur, had lent to the defendant. The horse was taken charge of by the defendant from the Gorge, ridden, and afterwards put into a stable owned by Mr Elliot, with orders to turn the horse out after getting a feed. It also seemed that there were two horses of a similar color in the stable, viz., greys, and that the wrong horse was turned out'by Elliot's groom. The police took the grey horse left, as their own ; and plaintiff now sought to recover compensation, as the horse was returned foundered.

The plaintiff, in his evidence, denied knowing I anything of these transactions, except, from current rumor. He testified to having written a letter to the defendant, in which he told him that redress could be obtained for whatever he paid to him (plaintiff) from the police, but that this was only thrown out as a suggestion. Mr Angus was called as a witness, and proved that the horse was very lame, apparently from hard riding, but was not foundered ; and that the horse required a spell for a month. Counsel for plaintiff quoted a case in Bullen regarding the duties of a gratuitous bailee, and that a bailee should use due diligence and care. Mr Campbell contended that the defendant had performed his contract by giving the horse a feed, and that he had only tailed in not personally turning out the horse instead of leaving the matter to an ostler. The defendant, in his evidence confirmed the statement of the plaintiff, and, as regards a feed, took Mr Croft's remarks about it jokingly, and stated that under any circumstances he should have given the horse a feed. After the ride he put the horse into Elliot's stables with another grey, directing the ostler to feed both, and afterwards to turn out plaintiff's horse. This made the third grey horse in the stable. He also deposed to Knowing nothing of the horse being turned out until two days after, when the plaintiff said " where did you turn that horse out; he has not gone his usual route ?" That just before leaving Queenstown, plaintiff told defendant that the horse had been taken by mistake of inspector Bailey to the Dunstan, to which he had replied he was very sorry. The horse had been taken by Mr Bailey by mistake from the stable.

Mr Shepherd, in reply, rested his case upon the defendant's evidence, and pointed out that in not turning out the horse defendant had committed the first breach, and that in not inquiring from the ostler, he had committed a gross omission in concealing for seven days the knowledge that he personally had not turned out the horse. Also that the negligence of the ostler was the negligence of the defendant. For damages it was pointed out that seven days had been spent in searching for him, and that the horse had been lost for two months. The court held Mr Fletcher liable, and recommended a compromise, which failing, Mr Gray decided that the error was not uncontrollable, and that he also did not use due care in inquiring from the ostler after the accident. This want of care was to be regretted, and also that any unreasonable damages should be made. Verdict given for 9/. per month, and 01. for looking after horse, making in all 23/. M'Nally v. O'Callaghan.—loo/. Mr Campbell for plaintiff. Mr Bowes, in the absenee of the defendant, and under a power of attorney, appeared for him. This was an action to recover the half value of a racehorse named Garyowen. The horse, it was alleged, had won, at Arthur's Point, Cromwell, and Dunstan/280/, and that at auction 212/. had been offered for him. After a mass of evidence had been taken, the plaintiff swore that the signatures in sale notes was not in his handwriting, or that of his son, and that the horse had been wrongly sold under these false salenotes.

Mr Louttit was examined as to his knowledge, as an expert, of the signature of the plaintiff's son, John M'Nally, and deposed that the signatures to the two 'sale-notes—one of which was stated to be a forgery by plaintiff—were in the same handwriting, but he did not think the third document, also said to be genuine, was similar to the other two signatures. Mr M'Nally was recalled, and proved that an apparent error in the said-to-be genuine sale-note was first written a 3, not a 5, and that it being a mistake, the figure 4 was written thereon, and that he had never had an occasion to show this receipt before. The plaintiff also, in cross-ex-amination, acknowledged having given no cash consideration to his son for the half-share of the horse. Mr Louttit was recalled, and gave his opinion that the figure in the year never could have been a 3, and that it was really a 5. The court decided to grant an adjournment until next sittings, plaintiff's son to then appear. Pole and others (Trustees of J. Gibson and Co.) v. Weaver.—6o/. Mr Shepherd for plaintiff; Mr Campbell for defendant. An objection was raised by Mr Campbell that the plaintiffs could not be represented in the absence of Mr Miller, and that Mr Gibson's authority was not in writing. After a discussion of some extent, and which bore upon the weight and value of verbal instructions, the ease was struck out. The cases of Anderson v. Cassius and Webster v. Howarth were mentioned, and advanced a stage. In the former the plaintiff was allowed to file an amended affidavit; in the latter further latitude was extended to decide upon arbitrators. March. 10..

Webster v. Howarth.— Messrs Shepherd and Campbell appeared. The parties being unable at this, the third time of the bringing the case before court, to agree upon arbitrators, Mr Shepherd withdrew the case for the plaintiff, and the court ruled that the case should stand over until next sittings. Anderson v. Cassius.—This case was heard to some extent. The counsel for the defendant had entered into a compromise with Mrs Anderson, as directed by the defendant's letter. The case occupied the time of the court for upwards of an hour. Judgment taken for 501, in cousideratson of the business connections of the parties; but no distress to issue for two months, and to be held as a collateral security against a draft drawn upon defendant. Mr Louttit, as Mr Cassius' commercial agent, drawing same.

The 'Tuapeka Recorder' says:—"We understand that a change is likely to be made in the police arrangements in Tokomairiro. Mr Inspector Morton is to be stationed here, in charge of the district as far as the Mataura."

The «Molyneux Mail' says:—" An electioneering cavalcade, consisting of coaches, buggies, horsemen, &c, decorated with flags, and accompanied with music, took its departure from Clyde yesterday morning en route for M'Master's station, at which place the contest between Mr Dillon Bell, of Ida Valley, and Mr M'Pherson, of this town, is to be dtcided this day. Scarcely one elector was left behind notwithstanding the distance of fifty miles which they had to travel."