Resident Magistrate's Court.

Marlborough Express, Volume III, Issue 125, 11 July 1868, Page 5

Resident Magistrate's Court.

BLENHEIM — Monday, July 6, 1868. [Before S. L. Muller, Esq., R.M.] EOBINSON V. WOLLEE. In this case, which was heard on the previous sitting, judgment hadbeenreseryed. The Bench said a question had been raised for the defendant, that the plaintiff having taken re-entry could not recover for rent due. He considered from what he could understand from the Act, that any bar of the kind did not refer to rent due at the time of re-entry, but to the recovery of rent due after re-entry. Holding that a party had a right to rent up to the time of reentry, he must give judgment for the plaintiff for £4O, and £4 3s. costs. u WM. HOMES V. J. It. NBAVE. William Homes deposed that Mr. Neave became responsible for the. payment of £l7 due by another party upon a Bill, by.instalments of . £4 a month, the first instalment being due on the 4th of June last. He had endorsed the document, and when the £4 was not paid, he, - paid the; amount to Mr. Gorrie, and-was entitled to sue Mr; Neave foi: it. -Defendant had paid the £4 to Mr. Gorrie, but not till a week after the summons had been taken out. .All he. now asked for was the expenses. • Mr. Neave said- he didn’t acknowledge Mr. Homes in the' transaction at all. He had paid the money to Mr. Gorrie, and produced the receipt. The Bench said according to the agreement handed in the money was payable to Mr. Gorrie. The summons did not state

what plaintiff sued for, nor when the instalment was due. The matter had been so irregularly brought before the Coui’t that plaintiff would have to pay costs of Court. Defendant applied for his costs, but the Bench informed him they could hot be allowed, as he had not paid the money to the time. J. PARLEY V . J. H. CATON. Mr. Nelson acted for plaintiff; Mr. Turton for defendant. Plaintiff deposed that prior to the 11th of May, 1866, he was in the employ of Mr. Caton; and on the day named he agreed with Mr. Caton (agreement produced) to cut 100 to 150 posts, at Is. 6d. each, in a certain bush, and 600 rails in a different bush. There was an understanding that on cutting these he should continue in the employment of defendant at 255. a week, till a flood enabled him to get the timber rafted down.

Mr. Tuifon objected to parallel evidence to the agreement being received. The Bench received it as explanation of the agreement. Mr. Turton held that the agreement spoke for itself. Plaintiff continued —He cut 150 posts in one place, and 500 rails in the other. He also cut 60 spars according to vex-bal instructions. He could not bring the posts down because there was no fresh in the river, and delivery had been taken of the rails. He returned to Caton’s and commenced work as before, till a fresh should come for rafting. But before a flood came he was discharged by Mr. Murphy, the overseer. He had asked Mr. Caton’s manager for payment, but he referred him to Mi. Caton, saying that he had not fulfilled his engagement, but as soon as he (the manager) could get the timber down he would pay him. By the Bench : He had floated the same quantity of timber down in a day in other creeks. His wages had been paid till time of discharge. He had credited Mr. Caton wi}h £4 145., for provisions received. Is. each was charged for the spars. Mr. Caton said the other day that he could get paid by the overseer if he passed the account. Whereas the overseer said Mr. Caton had taken it away, and he knew nothing about it. And Mr. Caton now said the account was in Christchurch. It was two years since the account was due. James McLeod deposed he saw Mr. Caton’s manager taking away some of the posts and rails. Mr. Turton was instructed by his client to say that he knew nothing about, and had no recollection of the transaction. In a case of this sort, to constitute legality, there ought to have been an agreement between the parties in writing, or evidence of part payment. The agreement was only on the part of Mr. Caton, and on his only. He would read a case bearing on the point. There was no consideration on the face of the agreement to enable plaintiff to recover, besides the want of mutuality. Had plaintiff not performed the work, he would not have been liable for any damages. Mr. Nelson held there was plenty of consideration. The defendant had supplied plaintiff with rations, and plaintiff had executed the work as far as he had been 1 enabled to do. The Court ruled they would not be justified in giving a nonsuit. No evidence had been adduced to disprove what had been stated by plaintiff, and the plaintiff having executed the work, the contract was valid. Mr. Turton asked for an adjournment for two months. The Bench said it would be absurd to grant an adjournment. There was no denial of plaintiff’s assertions; the account had been standing for two years. Both Mr. Caton and his overseer had been applied to for payment. Judgment wouldf have to be for plaintiff for the amount, £lB 13s. 6d., and £2 12s. costs. H. G. CLAEKE AND W. WHITE V. P. ADAMS. Mr. Nelson acted for plaintiffs. This was a claim for £6 10s., for damage done by defendant’s pigs to certain land held by plaintiff. Henry G. Clark deposed that he and W. White held between them a paddock adjoining his residence. When he took the paddock it had a most sufficient fence, which consisted of a 3 or 4 feet ditch on both sides, a bank 4 feet high, and two wires on stakes over that. Defendant had the adjoining paddock, and his pigs had constantly trespassed on. their land for the last three months. These pigs levelled the bank and fence for, 2 chains or so, and from 10 to. 30 pigs were constantly on the land. £6 10s, .would not .even compensate for the damage sustained, and defendant , had admitted the justice of a "claim. . His object was a good deal to.put a stpp to the intolerable nuisance.. William White said that defendant, had admitted to him that it was right to make a demand, but he. could not help the pigs getting in, and he had been disappointed in getting a man to put up the fence again.

£6 10s. would not fully compensate them, as they had been unable to keep their horses on the grass. Mr. Nelson applied for the amount of damages in accordance with the 6th clause of No. 2, session 16. The Bench stated that parties could recover, if it were proved that a fence was a sufficient one, although not according to the fencing ordinance. Judgment for plaintiffs, with £1 14s. costs. H. DODSON (as AGENT FOE. MR. MURPHY) V. P. LAWRENCE. This case was not called, but Mr. Nelson expressed an opinion that when the notice of withdrawal of a case was so short as it had been in this instance, the case should be called in Court that defendant might claim his expenses. He had been engaged by Mr. Lawrence, and had gone to some trouble to get the case up, to give the proper particulars, which had been filed, and had incurred expenses. The Bench would not allow Mr. Nelson for his attendance in Court, as it was competent for Mr. Lawrence himself to appear and ask for expenses. Mr. Nelson held that if Mr. Lawrence had been debarred from being allowed the expenses, he would have been deprived of necessary legal advocacy by his (Mr Nelson’s) not appearing to claim them. He had been engaged to come there for defendant. He had issued subpoenas, and they were liable for these witnesses’ costs who were now in Court. He had only received notice at £-past ten that morning of withdrawal. The Bench would allow expenses from the time of receiving the summons till the notice was given. Mr. Nelson said there were four witnesses including Mr. Lawrence. The Bench held that only one witness was necessary—the one that put up the fence. The others had evidently been subpoenaed to make up costs. Mr. Nelson, upon his professional reputation, would say that there had been no attempt on his part to make up costs. Mr. Dodson was known to have said that the fence might have been retained with proper attention to it, and Mr. Dobson’s evidence as a professional man was necessary to rebut that opinion. The Bench: If Mr. Dodson had raised such a plea, he could have granted an adjournment for a professional witness. Mr. Nelson: There would then have been an unnecessary delay and costs. If ,no witness had been brought, Mr. Dodson’s opinion would have been considered by the Bench as good as Mr. Lawrence’s, and he might have been nonsuited. The Court granted legal expenses prior to notice of withdrawal, and costs of Barry’s attendance, total, £2. The question of the payment of a plaintiff or defendant who may appear as a witness being urged upon the Court in the last case, the magistrate said he would take the opinion of the bar here, upon the interpretation of the clause. The Court then rose.