RESIDENT MAGISTRATE'S COURT. WEDNESDAY, 25TH JUNE, 1862.

Otago Daily Times, Issue 181, 26 June 1862, Page 4

RESIDENT MAGISTRATE'S COURT. WEDNESDAY, 25TH JUNE, 1862.

(Before Alfred Chetham Strode, Esq.. R.M.) Drunkenness. —James Gilligan was fined 20s. for this offence. Lambert asd Co. v. Donald Ross.—Tins'was a remand adjourned from Monday last, for the evidence of Mr. Hepburn, who was alleged to havo effected the tale of Joseph Wilson's chattels and effects, the piaintiifo having obtained. judgment, against him for the sum of Ll2 Os., upon which execution was ordered ta issue previous to the sth of May last. Mr. Prendercast appeared for the plaintiffs, auct- Mr. Howarth for the defendant. Mr. Bucklev sworn, stated that after the sth May, lie asked the defendant, who is a bailiff of this Court, if he had executed the levy, when Ross made answer that there were no assets. Witness asked him what lie had done with the tent, aud defendant replied that it was a fixture, and could not be touched. Witness knew it to rest upon " sleepers," and to be a chattel. It was a wooden frame, with a canvap cover. Ail round the outside was boarded. The sleepers lay horizontally. Witness, to the begt of his knowledge, would swear that the tent was not nailed to piles ; it was a chattel, and rested on sleepers. The rafters rested on the sleepers, and the floor upon them, Witness went this morning to examine the building, and look for nails, but he did not see any. Tlie building was about twenty-five or thirty feet long. Mr. Milis sworn, stated that early in May Last, he sent notice to Donald Ross, certifying him that there was rent due, amounting to about Ll2. Had received Ll4 from the auctioneer, the rent being still running on. Witness had been frequently in the house, but he could not say lie went in there on the sth May. The place presented a most miserable appearance. There was an old stove there.' Tho kitchen'did not look as though a dinner could have been cooked there. It had a most desolate look, The benches and chr.irs were very ricketty. Witness be* heved that a good business had been conducted on thf? premises for many months previously. He was aware that the ground had been excavated for the psui;osio of laying the sleepers in the usual way of building. The term:* upon wnich the place was let to Captain Wilson were committed to writing. Mr. William Hepburn sworn, stated that he was an auctioneer,' He knew Captain Wilson's late premises. He sold the property on the 23rd May last, at Wilson's request. The proceeds realized L 39 Os. &d., after deducting his own charges. The commission amounted to L 3 155.. and bellman L 2. The gross sum was L 45 Os. 9d. That was abovo the figure lie expected t»

get. Mr. Mills told witness that he would not allow him to tell it, unless he got his rent out of tht: proce.;ds, and witness paid him Ll4 out of the sile. Captain Wiisim'j instructions were to sell to the best advantage. Witness sold tho things in the-house for L 4;", less LlO, wliich was the proceeds of the house. Witness couU net swear that the old swag 3. rubbish, and benches were ou the promises previously to the sth May. Two kegs fetched lis. 01. The tent realise Ills. Witness retained L 25 Os. 9d., balance of tiie jirueoeds, in hi.s present possession. That ammiiit included the sale of the house, and everything. That was th« ease for the prosecution. .Mr. Howiuthnow addressed the ilonnii, and contended that no case had been m.ide out. The learned gentleman argued that it, w;is quite clear tho building in question Mas a building as much attached to the freehold as any wooden building usually erected in Dunedin. The ground had been excavated, and the tenement had been banked up in the ground. It had a floor, the joists of which rested on the sleepers, and the s.>')iL>rs on tin- pile.". His Worship sn'd: Certainly from the evidence before me, I can corns but to one conclusion, aud that is, that the plaintiffs have no ca*e. lam of opinion, most undoubtedly, that this house, from the evidence before me, was it chattel real, nnd built in the ordinary way of houses iv colonial towns. There is no doubt of it, and the biiliff, so far, was justified in the act he did. I shall therefore dismiss the case with costs. The witnesses Avere allowed 7s. each, expenses. Tlie money was handed over to the poor box. Qoonstrrii v. Af.nni d. —Claim for £13 I4s. 10!., for-damage sustained by furniture freighted at 40s. per ton on board the William Buchanan, from the port of Meltoiirnc: the deeudant being; master of that v.-sso'. The measurement taken up by the plaintiff, Ediv.ird Veunbies Good nth. was stated to he 1-27 feet 2 iv. Mis. Goodsuth deposed to the damages which had been sustained by a handsome bedstead, and valuable carpet. The licucli reserved judgment until to-morrow (this day.) Lloa-d, Targakt ,st Co. v r. Goodsuth. — Action to recover the sum of £2 2s. G 1., of which £! had been pahl in: the particulars resiinsr upon charges on sundry goods ex Drover, from Melbourne. Judgment iv favor of the plaintiff, iv the full amount claimed, together with c.ists '.>•>.

WoonAl.i. v.'Desnis.— In this case S. L. Woodall was p aintiff, and Charles Dennis the defendant. The particulars of demand relied upon amount of cmtract for building a house at St. Kilda, £31; c c lit by cash, £25, leaving a balance due of £9. Mr. Ward appealed for the defendant. Plainfift nonsuited: the flench recommending that the caso be withdraAvn, and transferred to the Court above. Woodbury v. Fegeb.—Mr. Prendergast for the plaintiff, William Woodbury, and Mr. Kenyon for t rie defendant. Tlie plaintiff sued on the amount <f t.vo orders drawn in his favor by one George Freeman, f>r £7 15s. There was a counter-action for hire of a uray for twelve weeks, nt £1 10. a week, amounting to £18. It was resolved to Avithbold judgment in the first case, until the second one was heard. The Bench, aft-r hearing evidence, adjourned the case ti this day week, the 2nd July, for the production of witnesses from the goldfields. Pxoenees of 10s. adjudged to Feger were, by him, presented to the poor b.oc. At the next hearing the Bench will deliver judgment in both actions. - M. A. Lee v. C. M'Dowell. This was an action for damages done to a horse between the 3rd nnd 16th June', aud estimated nt £20. Case dismissed.

Daniem-s v. Mackenzie. —Claim on arrears of wages, amounting to £15 10s. from 24th April to 16th June. There av.os no appearance of defendant. Judgment in favor of plaintiff by default, together Avith costs, Os. Mahkuali. v. J. K. Smith. —This case was adjourned to one o'clock on Friday (to-morrow), the defendant to pay plaintiff 10s. Loj-tcross v. Daniblls.—Claim for £4 ls. for Avork and labor done. Adjourned to-next Friday. McKay asp Another v. Jonks. —In this case Robert. McKay, late cook afc the Tamora House, and his -wife, who had beea a domestic in the same establishment, sued David Jones, tho proprietor, for the recovery of five Avocks wages, at the rate of £4 per week : of which sura Ll2 had been paid into Court. Judgment for plaintiffs, together with COitS. Richards a". Harnett. —Action on the detention of a horse, saddle, and bridle, valued at L 25 sterling. Reduced to L2O, to bring the case Avithin the jurisdiction. Judgment in favor of plaintiff in the sum of L 3. together with costs, 9s. Same v. McGregor.—Action to recover damages estimated at Lil on alleged injuries done to Leicester's patent ball washing machine. Judgment for plaintiff in the sum of L 5, together with costs. Same A r. Curr. —The particulars of demand were the price of sundry bales of corks, 100 gross, valued at 1.10, of which the sum of L'r had been paid in. The defendant acknowledged the debt, but said the money' Avas not due until the 2nd July. Judgment in favor of plaintiff in the full amount, together with easts. Patkrsox & Co. v. Geo. Cox Dawson.—-The plaintiffs' accountant appeared in behalf of the plaintiffs. There was no appearance of the defendan'. Service of summons upon the defendant was duly proved on the oath of Donald RoSs, a bailiff of this Court. The particulars of demand relied upon tlie delivery of one saddle A-alucd at L 5 10s., one bridle A-alued at Ll os., four casks of porter Ll2 Bs., four esses of ale Lls, amounting to L 34 3s. Reduced to L2O to bring the case withiu jurisdiction. Judgment in fa v>r of plaintiff in the sumofL2o, together with CO3t c, 9j. Haywaitr v. Corcoran.—Action on an I O U for L2O. Nc appearance of defendant. Judgment went with the plaintiff by default. The following' case ay.-is a rcmanet standing over for deliberation and judgment, as it involves a technicality in law, and relates to the vexed question of " Injuria? to Kasements." We give the decision of the Bench in full. Lauh.J3.wk v. Moore.— The Resident Magistrate delivered judgment in this case, where the plaintiff sought to recover from defendant the sum of £20, being tlie amount of damage sustained by him in consepienfo of a breach of coveiiantinadeedoflea.se mule bewteen the plaintiff and defendant, in that the defendant had carried on, and is now carrying on. and p rmitting to be carried on upon tbe -said premises, a business other than the biisine sofa saddler and harness maker, contrary to the contract or agreement, in that behalf entered into in tlie sail deed or lease, by the defendant with the plaintiff. The answer to the demand hy the defendant; was an admission of the breach of covenant, hut a idea of not indebted : and it was contended on his telialf, that such a coA-enant Avas a nullity, unless actual damage were proved by an act of thedefendant. The ease, as" stated by counsel was, his Avorship said, brought into Court, not with the view of pressing for the amount set out in his particulars of demand, biit simply to try tbe question as to whether such a covenant, as that referred to, was of any avail. His Avorship was certainly of opinion that it Avas so, and remarked that the law appeared to be dearly laid down on tbe subject in " Miyno's Treatise on Damages," where the passage runs thus : —" In such cases tho rule may be laid down that where an actual infringement of right has taken place, an action will lie, and the plaintiff will he entitled to a verdict with nominal damages, though no real loss has been sustained. Hence in actions by commoners against strangers for interfering with their rights of common, or by the owners of lands aud houses, for violation of their rights of ways, watercourses, light and air, there is mi necessity to shew any actual or substantial damage resulting from the act complained of. Wherever a right lias been violated, the lav/will presume damage ; and the mere fact that sueh'acts, if submitted to, would - lay the foundation of a fresh right in the wrong doer, adverse to the original proprietor, is itself support for an action. A strong instance of this doctrine arose in a recent case. By deed between plaintiff and defendant, owners of adjoining closes, it was agreed that (hiring. the first ten day2t-cf every month the defendant should have the exclusive use, for purpose of irrigation, of the waters of a stream which flowed through his lands to the plaintiff's. That at all other times the water ' should be under the plaintiff s control, and that it should flow upon his land through the defendant's in a channel specifically described. Defendant altered the stream in its course through his own laud, by cutting a new channel. The stream, however, entered the plaintiff's land at exactly the same point as before, and iv the same quantity. No damage of aiy sorb arose. It was held, however, that under tie terms of the deed, the plaintiff had a right to have the stream flowing in the specified channel, and Avtis entitled to nominal damages." See page 256, " luuries to -Easements."

fit Under these circumstances, the Bench gave judgment for plaintiff, in the sum of 55., with costs.