S.M. COURT.

Manawatu Herald, Volume XXIX, Issue 3777, 19 November 1907, Page 2

S.M. COURT.

FOXTON.—MONDAY

(Before A. D. Thomson, Ksq.. S.M.) * civil, cases. Stevens, Easton and Austin v. •- William Moffatt.—-Claim £2B os ] 6d. Settled out of Court. | George Gray v. J. M. Parish.— Claim 15s id. Adjourned till December x6th. A. R. Osborne v. John Cameron. Claim £4 2s 6d. Judgment for plaintiff by default, costs 16s. Kate Spiers v. Frederick Nye.— Claim £g. Judgment for plaintiff by default, costs 18s. Same v. A. Wallbutton.—Claim £2 13s. Judgment for plaintiff by default, costs 10s. Dr O’Brien v. Richard Ford.— Claim £4. 14s 6d. Judgment, for plaintiff by default, costs 10s. Charles Rouse v. G. and h. Rouse,-—Claim £3 18s. Judgment for plaintiff, costs £1 12s. Mr R. Moore for plaintiff, Mr G. Moore (Palmerston) for defendant. Wra. Mardon v. G. Roberts,— Claim £6 5s id. Judgment for plaintiff by default, costs £1 14s’ 6d.

Same v. J. Olson.—Claim £6 2s. Judgment for plaintiff by default, [ costs £1 3s 6d. ; Same v. Wi Hemara.—Claim £7 os 3d. Adjourned till Decern- * ber 16th.

A. R. McDonald v. Bert Robinson. Claim for possession of house. Order for possession to be given within forty-eight hours, costs £i 13s. A WHITEBAIT CASE. William Young and others v. C. F. Johnston. —Claim £26 10s. Mr L. Read for plaintiffs, Mr R. Moore for defendant.

This case arose from the fact that on October 19th plaintiffs shipped 29 tins of bait by defendant’s light cart to Levin en route to Wellington. On the way to Levin the cart got stuck on the road (which was covered with flood water), and consignment missed the last train to Wellington that night, and on arrival .on Monday morning was condemned i by the Health Officer. The,case \ occupied the Court for four hours. The plaintiffs alleged that after the cart left the stable, the driver did, under Johnston’s instructions, take on more whitebait at Andresen’s, thereby overloading the cart so that it broke through the crust of the road. They (plaintiffs) also sought to prove that the driver was incompetent. William Young deposed that after he had received a telegram from Wellington that the bait had been condemned he had an interview with Johnston when he said plaintiffs wouldn’t take less, than £2O for their loss, whereupon defendant said he wouldn’t allow that amount; he didn’t say what he would allow. To Mr Moore. The Fish Company never made an offer of 15s per tin for the condemned fish ; whitebait will keep fully twentyfour hours in warm weather, and longer in cool. Arthur H. Lee gave evidence that on October 19th be was drivfor Johnston; he had 75 tins of whitebait on a spring cart with two horses; left about 1 o’clock got stuck up after going about, four miles; knew of two badr holes in the road ; had safely ne- . gotiated the first and was about four chains from the second when the. road suddenly collapsed and he unloaded half of the tins and tried to get the cart out of the hole; the unloaded tins were stood in the flood water ; couldn’t get out when the whole load was unshipped ; I went to Levin to arrange for cold storage; when I returned my brother had got the cart out and removed most of the bait to dry ground.

To Mr Moore: Didn’t count the number of tins at Levin ; on previous day had carted 35 tins to Levin, and about a week previous had coveyed 70 to So tins over the road in one load, when the road was in a worse state than on the 19th ; consider the two horses should be able to pull fully two tons over the road ; did his best to get the whitebait away; never i' heard any one at And resen’s or 4 the stable say that he had too much V. on the cart.

William Anderson deposed that Johnston had taken many tins of bait for him to Levin ; on October 19th Johnston’s cart left the stables with about 45 tins on it; thought that was all he was going to take ; wouldn’t put more than 45 tins on a cart with two horses ; consider Lee knows nothing about driving —he’s only a stable-boy ; wouldn’t have allowed my whitebait to have gone had I known more was to have been put on at Andresen’s ; consider Johnston did all he could to remedy the state of affairs after the break-down.

Ernest Howan remembered the 19th October; saw 29 tins of bait put on the cart at the stable for plaintiffs and 14 tins for Anderson ; consider 55 to 40 tins, as the roads were then;' would have been sufficient for two horses to take.

To Mr Moore : Have done carting for about four years for ray father, and on and off ever since. John Wyeth, cab proprietor and carrier, stated that he had been over the roads to Devin ; when the road is flooded consider iscwt. sufficient for two horses and a spring cart; 78 tins on a dry road would be a- good load.

To Mr Moore; Have never carted whitebiit to D-vin ; a full tin of bait should weigh 44111 ; have dene carting on and off for 27 years. This concluded the case for the plaintiffs, and for the defence Mr Moore called C. F. Johnston, the defendant, who stated that there was no special arrangement for the carriage of whitebait on this particular occasion ; told the driver to pick up 25 tins at Andresen’s ; the plaintiffs were within hearing when I told the driver ; there was no mention that the bait had to arrive in a marketable condition ; always examined the vehicles on leaving the stable ; consider anything up to two tons on a cart on a Wet road as not too much for two horses ; Dee took 36 tins over to Devin with the same cart on the morning of the 19th ; when I saw Dee stuck I told him to jump Jon the leader and return to the ‘V stable and get three horses and a j brake and transfer the load and take it on to Devin ; saw the bait „ loaded on the train at Devin on Monday morning—there appeared to be nothing wrong with the bait then.

To Mr Reade ; Since the 19th October have decided not to take more than 20 tins of bait on the coach (three horses). As to what was considered to be a fair load for two horses and a cart on the road in the state it was in on October 19th, James Coley considered two ton was not excessive ; Olliver Austin said thirty hundredweight would be .a fair load, whilst James Symons gave it it as his opinion that thirt} r -five hundredweight should not overtax either the road or the horses. Hugh Blane Scott, porter, Levin railway station, gave evidence as to the whitebait being shipped to Wellington; he considered the T whitebait was fresh when despatched on the train—in fact, he ate some of it on Monday night. To the Magistrate : The tins are consigned at 4olbs weight. Samuel Parsons, carrier, and James Ames, manager Levin butter factory, both considered the whitebait was fresh when shipped from Levin. Hans Andresen also gave corroborative evidence. The latter considered it was not safe to take 76 tins along the road on the 19th October; there should have been more than two horses ; told Johnston if Marsh, instead of Lee, had been driving, the cart would not have-got stuck. In giving judgment, his Worship remarked that this was one of those cases in which no one was responsible. The defendant was not guilty of negligence, and the load had not been excessive. The driver was experienced, and had been over the road that very morning. He sympathised with both plaintiffs and defendant — they were all losers, hut he must enter up judgment for defendant, each party to pay their own costs. SEPARATION ORDER. J Cunningham v. Cunningham. — An application by the wife for a -'Separation order and maintenance, adjourned from 17th August. The evidence adduced at that Sitting of the Court needs no repitition, with the exception that defendant should contribute 15s per week towards the keep of the wife and children during the three months following that action, the wife having the power to renew the action should defendant misconduct himself in the meantime. The evidence in support of the application failed in the slightest degree to substantiate the same, although applicant called her mother, father, and brother-in-law to give evidence. Against the application, Constable Woods was called, and stated that he had not seen Cun - ningham the worse for liquor since last Court proceedings ; in fact, he could hardly believe that it was

. possible for a man to have reformed |as Cunningham had done. r In giving his decision, the Mag- ' istrate said that the wife and her parents had apparently made up their minds that she should not go back and live with her husband despite the fact of his reformation. They had not done anything to effect a reconciliation, but had done much against it. He refused to make an order, and in the civil action he would enter a non-suit.