RESIDENT MAGISTRATE'S COURT.

Nelson Evening Mail, Volume X, Issue 295, 8 November 1875, Page 2

RESIDENT MAGISTRATE'S COURT.

[Before L Bkoad, Esq , B.M.]

THIB DAY.

Hooper v. Hogg,— Defendant was charged with unlawfully assaulting J. R. Hooper, and a trivial a«sault having beea proved, was pound over in his own recogn-zance of £26 to keep the peace for three months Judgments were delivered la the following cases ihe two flrst mentioned having been heard at Spring Grove ou Mmday last :— Orchard b. Cook. This is an action for money had and received as follows— The defendants seizsd two haves of the plaintiff's tre?passiog and doinjr damage on defendant's land, and were proceeding to take them to the pound when plaintiff's servant, to save the inconvenience of a long journey to the pound and back, paid the sum of £i demanded by defendants, before they would liberate th? cattle. The plaintiff now asks the Court to order the repayment of so much of thia sum aa is in excess of what could have been lawfully charged had tlie horses been taken to the pound. Now money paid to procure the liberation of animals t iken damage feasant cannot be recovered ba< k m an action for « money had and received," (Lindon v. Hooper, I Cbwp, 414) a thongh an excess tj sam haa been demanded and paid under protest (Gulliver v. Cogens, I CB. 788.) Nor caa he recover it at all unl-ss defendant has himself msde a tender of a specific sum as proper amends (Glyn v. Thomas, 2s L. J.. Ex. 125. The plaintiff should ha?c tendered at the time what he

considered a proper sum. The haaarJ of the sufficiency of the tender recti upon the wroogf'otr whose cattle have trespissei, and ' not upon the party who h>s suffered by the tr«spa«s. If the latter t^ere'ofe demands an exorbitant sum for compensation, that will not dispense with the necessity of a tender qf N « proper compensation, and will not relieved the owner of the trespissmg cattle (rom the obligation of estimating and tendering at his own risk the proper amount of damage; for he being the original wrongdoer by euffvring hia cattle to trespass is bound to tender the sura he maintains to be sufficient before he can complain of the exorbitant amount of compensation claimed. In this case the seizure was perfectly lawful, and plaintiff made no tender of a speciHc sum as proper amends. Plaintiff nonsuited. «. M £ Pijt appeared for the plaintiff, aad Mr Fetii for tfte d^fendapt y , ■ , ;; ) >f

I Eboar v Gabb.

This is an action to recover £20, the value of a dog. the property of the plaintiff aud shot by the defendant. The facta ape shortly these :— The ''o-j'w^s running »t largS aming the sheep on defendant's ran He saw it, gave chase, ran the dog down,, led him by ft string to the home-station, where he tied him up, and after about au hour, shot him. The defendant relies upon clause -2 of the "Injuries by Dogs Act, 1865;*» and the plaintiff contends fn reply, that although defendant might bo justified in destroying the dog On tho spot, ap had no right to respite him aa it were, iod then kill him I havtfno doubt tho ptaintiff-s contention is right to thia extent.^ that there must be no unreasonable delay io ■* the execution ; but, looking to.the facta, aod. that thit Act was passed for th? special pro. , tection of runholders, who caunot be expected always to go about ready arnaed for the slaughter of stray dogs, I do not think a delay of an hour in completing the deed sufficiently long to take away the right to destroy the animal. Thia affair may be taken as one continuing Act— the view—the chase— the rapture— and the execution. I think defendant was justified under the statute. Judgment for defendant, with co* ts Mr Feu, appeared for the plaintiff, aod Mr Prrr for the defendant.

j Pools ». Smith.

This is an action to recover from the drawers the amount of a cheque " payable to Bearer," which came into plaintifTs possesion under the followiog circumstances :— Jo-in Doghtsty received the cheque from the defendants in payment for some cattle ; subsequently he gave it to Infleid, who was acting a* stakeholder for a billiard match in which Dogherty was an interested psrty. The match waa won by the plaintiff, who received the cheque with the rest of the atakea from Infleid Then Dougherty, being dissatiKfled with the conduct of the match, communicated with the defendants, and at hia request they stopped payment of the cheque at the bank. Thia action is brought to recover the amount, and tbe defendant, relying upon the statutory provisions as to gaming securities siys the cheque was givei to the holder for an " illegal consideration," and i that he is not therefore entitled to recover upon it, the property never having passed (ia Uw) i.oai Dogherty to the plaintiff. Now the wait, or illegality of the consideration, would ba, under ordinary circumstances, no answer to an action by a remote party against the drawer ( Watson v. Rufaill. 31 L.J.Q B. 304, and Bank of New Zealand v Bird! Macassey's reports, 3SI), nop can I perceive tbat the Statutes improve the defendants position. They gave the cheque 7 for good consideration, and they must let the pla : ntiff nght out with Dogherty the question of who has the lega! right to the money: A cheque "payable to bearer" is treated as n.on y or ctth and is transferable from hand to hand, and I know of no defence that would avail the drawer, to an action by a re-note holder, unless he cou'.d prove the plaintiff had actually stolen the security. Here it ia quite clear Douqterly gsve the cheque voluntarily, and I think the defendants are estopped from raising any question aa to the illegali-y of the consideration between Dogherty and Poole. Judgment for plaintiff wiih. costs, £1 Bs. Mr Pitt appeared for the plaintiff, and Mr Fell for the defendant.