LOCAL NEWS.

Nelson Evening Mail, Volume I, Issue 74, 31 May 1866, Page 2

LOCAL NEWS.

SUPREME COURT. SITTINGS IN BANCO. [Before His Honor Mk. Justice Johxsto>\] This Dat. STK.ICUAN V, PONSOJNBT. Mr. Adams moved to enter a verdict for plaintiff for £250 for damage in respect to cattle, and -£1,030 damage in respect to sheep. Total, .£1,287. Mr. South took an "obj ection, that the action would not lie. Gordon Ponsonby could not be charged as an individual, nor could the company be charged through him. He cited numerous legal authorities. His Honor said it seemed to him that an attempt ■was made to recover damages for a breach of defendant's personal contract. Could 1 an action be brought against him as agent for the company, after he ceased to be their registered agent, for damage-caused by the negligence of another captain? '~ -Mr. South asked that a verdict be generally entered for the defendant, "with leave to reserve a case for the Court of Appeal. In an action against the owners of the ship, an action could not be sustained as against their captain. There was no contract to bind the defendant, under the ordinary rules, for any malfasance between Pictoa and Nelson. He quoted Abbott, page 41, last edition. His Honor wished to have a case cited of the primary responsibility of owners to third parties. He thought the counsel did not sufficiently discriminate in tlie cases cited. Mr. South argued at length, citing Ellis v. Turner and another in confirmation of his views, that superiors were answerable for the conduct of their servant when he was legitimately responsible to them for his acts. His Honor: The other side admit the responsibility of the owners, and .a. the defendant as their agent as the first person tv be got at. If they cannot prove their right to a contract in which they can bind the owners, they have no right io recover. Mr. South : Then the owners are the proper party to proceed against? His Honor: Yes, this is the point to get at. Just distinguish the c.rss in which the master is responsible. Mr. South.: Under Bills of Lading Acts the master is responsible. He quoted Abbott, sect, a, p. 96. The master beiug appointed by the owners, persons sustaining loss have a legal claim ou theni. This was understood here, and the agent of the company here was c-'ite willing to accept service and incur tiie responsibility. His Honor: Can an English corporation sue and be sued without an authorised agent ? Mr. South mentioned a case in which a company appeared the moment the agent was proceeded against. The action should have been brought against the owners aud it was no answer to say they could not be got at. In reference to the second party Captain Fitzsimon, it became a question whether an action lay against him. In any case it was not competent to fix the action without establishing privity of contract, which it had not been attempted to do. Mr. Adams replied: He did not dispute the liability of the owners as a general rule, and they would have brought the action against them were they in a position to do so. Tlie captain was responsible for all contracts entered into by bim for them, within the scope of his authority. It was not necessary to seek after the owners to sue them, if the captain could be found. There was a distinct right to sue the party who was authorised to carry out the contract, as was laid down in Addison on contracts. His Honor : As the claim was in a partnership property, the plaintiff, under any circumstances, could recover for half the sheep only. Mr. South suggested another point, that one partner could not sue another. His Honor wished the counsel to state whether they wished him to go on with the case, or reserve it for the Court of Appeal. Mr. South inclined to that course, in consequence of the points being so intertwined the one with the other. Mr. Adams having consulted with Mr. Pitt, 6aid they preferred to have the matter settled by this court. The captain was responsible for breach of contract, whether the negligence arose from himself or any other person. A carrier was responsible for the delivery of goods beyond the point he professed to carry. His iirnio" cited an instance where an engineer

brought an action against a railway company, for not forwarding him on a line branching from their own, and not belonging to them, hut on "which they had contracted to take him. Mr. Adams contended that the analogy of a ship with a railway was good, if not complete. The captain in this case knowing he was about to be transhipped was responsible for the consequences, and had his remedy against the owners. The jury had ignored the negligence, but the plaintiff was not called upon to point out where it occurred. It was sufficient to show that negligence occurred, so as to prevent the delivery of the goods. It was not material in a contract like this to prove by whose negligence, delay or loss was caused. His Honor : The other side say, if you are to sue a master at all, it is him who was the cause of negligence. Mr. South having replied, his Honor said he would take time to consider his decision. He would take care it should be given to give time to hoth parties to go to the Court of Appeal. GREEN V. 3IACSHANE. Mr. Kingdon applied for a verdict to be entered for plaintiff for £116 18s. 4d. Mr. Pitt moved that in regard to a farthing damages for the non possessfon, a verdict be entered for defendant. He moved that on the other point nominal damages be entered for the plaintiff. In the -first case the action was wrongly brought against the defendant ; it should have been brought against the trustee. His Honor intimated that he agreed with Mr. Pitt on this point, as at present advised. Mr. Kingdon: As Mrs. Macshane merely joined in the agreement with her trustee, by the ordinance we are entitled to claim possession. His Honor : As Green was put in possession, your question can be one of costs only. The question for consideration was how was the verdict to be entered. Except with regard to the claim for non-possession of the land, the verdict would be for tho plaintiff, for £116 18s. 4d. Mr. Pitt undertook to prepare a special case in reference to the land, which his Honor would entertain at a future sitting.