SUPREME COURT.—CIVIL BUSINESS.

Otago Daily Times, Issue 290, 25 November 1862, Page 6

SUPREME COURT.—CIVIL BUSINESS.

(Before His Honor, Mr Justice Gresson.) Saturday, November 22.

His Honor Mr Justice Gresson sat in banco at eleven o'clock.

M'QUEEN V. MURRAY.

Mr Gillies shoAved cause against the rule nisi for a new tiial obtained by Mr Cook, on the ground of misdirection. He submitted that the direction Avas correct; that there could not be a sale by sample, if the defendant did not intend so to sell, because there avo uld be no assent to such sale on his part. True, there might be no mental intention to sell bysample, yet the acts ofthe party might amount to it; but it Avas wholly for the jury to judge whether the intention, as indicated by acts and words, amounted to sale by sample. There must be mutuality of assent to constitute a binding contract; and the jury were properly directed to estimate whether there Avas such mutual sanction in this case. Apart from this, he submitted that, under one of the rules of the Court, the rule nisi ought to be discharged; for it was provided tbat the judge would not interfere, if, despite an acknoAvledged misdirection, he thought the verdict was a fair and just one. It was so in this case. Seven bags of flour were delivered and accepted. Four of them, it was sworn, AA-ere good, and three bad ; ancl it was also proved that the plaintiff did not think of returning any flour, until he found that third parties AA'ere complaining—he having retained two bags. The jury evidently gave their verdict upon the basis of fairly paying the plaintiff for the four bags. * .Mr Cook.submitted that the jury had no right to divide the matter. There was a bindiug contract or not; and what the jury ought to have heen told was to consider Avhat the acts and words of the plaintiff led the defendant to believe was to be the nature of the sale. He contended that the defendant Avas led to believe that it was a sals by sample of good flour, not of an unguaranteed lot. Then, tbe contract Avas nofc completed until delivery; and the direction of the Judge misled them on that point. His Honor could scarcely admit that he had mis- | directed the jury; although he had nofc, perhaps, well | expressed the general principle that the assent of both , parties was essential to a contract. But he considered that substantial justice had been done, and that it was desirable, for the sake of the parties themselves, that the verdict should not be disturbed. Rule nisi discharged, with costs. PROFESSIONAL COSTS IN THK RESIDENT M&GIS-

tratb's court.

During tbe preceding discussion, his Honor remarked that ifc was to be regretted that such an action for such an amount should have been brought in the Supreme Court, ancl nofc taken into thafc of the Resident Magistrate.

Mr Barton now stated that on behalf of the members ofthe profession, he had applied to Mr Strode on the question of the non-allowance of professional costs in the* Magistrate's Court; and the magistrate had intimated that he would consult his Honor respecting it. Mr Gillies said that the question was discussed in the Legislature during- the last session, and it seemed to be generally considered that the interests of justice wculd be best served by adhering to the original intention of the Legislature, whigji was not to make those courts courts of law, but father of equity and good conscience, into which suitors could go and manage their own cases, and in which the Magistrate might take evidence hot strictly legal, if he thought that justice would be promoted thereby.' The Judge agreed that such was the intention of the Legislature. Mr. Barton said that the whole state of things was being changed here. One day last week the Judge had before him a case of claim for damage to goods while on the wayjfrom England, and on the next day a precisely similar case was heard by the Resident Magistrate; That case could nofc be managed by the parties, and it would not pay professional men to attend the Court without receiving^ a fair.fee. Mr -Strode admitted that the practice in. his Court had so much altered since Dunedin becamei a large commer-' , cial town, that some thing ought to be done, and said j that he would lay the question of the allowance of I professional charges before His Honor. But until

there was a change, such cases as those in question, although the amount in dispute might be small, must, he (Mr Barton) feared, be brought into the Supreme Court.

Mr. Gillies said that extension of jurisdiction would, no doubt, do good; and there Avas a new Resident Magistrates Court Ordinance prepared. The Judge said he had not heard from Mr Strode on the subject. Dunedin was now quite exceptional in New Zealand, he believed, as regarded the amount of business both in the Supreme Court and thafc of the Resident Magistrate; but there was a great deal to be said in favor of keeping the Magistrate's Court; merejy courts of conscience. \\ hether an extension of jurisdiction would meet the difficulties here, he would not undertake to say ; for he should nob like to iuterfere, Avithout consultation with the other judges, so as to make any new rule uniform throughout the colony.

BULB kisi.

A rule nisi for a iicav trial Avas obtained by Mr Barton, the ease of Moss v. Jones and another ; and similar rules were granted to Mr South, in Mendoza t. Coleman, and Edwards v. M'Lachlan.

Monday, 24th November. Mr Justice Gresson took his seat at ten o'clock

DISPUTE AS TO A VUG MILL.

Hertslet v. Joseph.—Mr South Avas for the plaintiff, Henry Charles Hertslet; and Mr Barton (instructed by Mr M'Gregor) for the defendant, John Joseph. The plaintiff was brought up in custody by Mr Stoddart, under a writ of habeas corpus, he being confined in the Gaol as a debtor.

The claim was for Ll5O, as compensation for the wrongful conversion of a pug mill; and the pleading denied all the material allegations in the declaration. The admitted facts Avere that, in consequence of an advertisement for brick makers, tlie parties came together ; that a cont-acfc Avas signed for the making of bricks at per thousand, "all tool? and appliances to be found by the employer;" and that a pug mill was bought by the defendant and paid for by a cheque for L 25 giA-cu to him by the plaintiff. Upon all the remainder ofthe ease, there was the most direct and positive conflict of evidence.

The plaintiff's case was that the defendant stated that the pug mill was a necessary appliance : and that he (the plaintiff) then named tlie mill in question, as one which Mr Reynolds had for sale, it having originally been brought out for Mr James M'Andrew" He (the plaintiff) had been in treaty for the mill, but did not choose to pay the LlO asked by Mr Reynolds ; and some week or ten clays having passed, he suggested, to the defendant thafc he should go ancl purchase it, ber-ause he would get it cheaper, being a workingman. The defendant did purchase from Mr Bridgman, to whom Mr Reynolds had sold in the meantime; but the plaintiff said thafc the purchase was solely for himself, and he added that five minutes after the purchase the defendant handed him Brid-r----man's receipt, which he had kenfc eA'er since. The plaintiff admitted that he told the defendant to leaA-e his (the plaintiff's) place, but thafc Avas when the defendant claimed to be Avorking at a pound a day, and not as a contractor; and he felt satisfied that, apart from the £20, he had paid the defendant considerably more than the contract price for all the bricks made*. Philip LaAvrence, Avho inserted the advertisement and dreAv up the contract, said thafc there Avas a talk at first abiut a mill; but it Avas not a necessary appliance for brick making, nor Avas it included in the list of tools, &c, whicli was drawn up at the time. The words in the contract referred only to barroAvs, moulds, shifting boards, ac. When the pug mill was mentioned, the defendant said that with one he would be able to turn out bricks much quicker, and the plaintiff said that he would get one as soon as possible.

The defendant's account was that a mill not bein* necessary, although advantageous, and he bein-? aware of this one for sale, he asked the plaintiff to advance hira money. The plaintiff gave him a cheque for L 25. on account, and as he had then done no Avork, he gave the receipt for the mill to the plaintiff, as security for the money. He took the plaintiff to see the mill before purchasing it; and afterwards, the plaintiff said, " You seem to have made a good bargain for yourself ; and as you have bought the mill, I'll find a horse to work ifc." There AA'as never a shadoAv of suggestion that he I (the defendant) should purchase for the plaintiff ; and when the plaintiff ordered him to leave the ground, he replied, " You must give me a few days to remove the mill, as the roads are so bad." The plaintiff did not make any remark upon that, request. There was now nearly LBO due to him from the plaintiff; and the present action was not commenced until after he had begun proceedings against the plaintiff to recover that amount. A Avitness stated that he heard the plaintiff say that as the defendant had bought the mill, he (the plaintiff) would find a horse: and Mr Bridgman stated that he sold to the defendant for himself, and never kneAv the plaintiff iv connection Avith the treaty for, or sale of; the mill. After half an hour's consultation, the jury found for the plaintiff ; damages L 25.

A HORSE CASE,

Morrtson v. Ehrenfried.—Mr South avos for the plaintiff, llobert Morrison, horse dealer; and Mr Gillies for the defendant, Louis Ehrenfried, storekeeper, at Tuapeka. The plaintiff sued on an lOU for L7O, which stated that amount to be " the money for one bay horse and harness purchased, payable at one month from this date December 24, 1861." The defendant pleaded that the bay horse mentioned Avas warranted sound ; that nonesuch had ever been delivered ; and that tliere was thercfoie no liability. _Mr South submitted that he was entitled to a verdict on the pleadings. The document sued on partook more of the nature of a promissory note than of an i- O U, and that absolute payment on a fixed date being provided, it was not open to the defendant to go into the question of the soundness or unsoundness ofthe horse.

Mr Gillies argued thafc the IO U having been given for a consideration, he Avas at perfect liberty to prove failure of that consideration.

The Judge agreed, bnt took a note of the objection.

The onus probandi lying on the defendant, Mr Gillies opened his case after a brief statement from Mr South.

The defendant said he met th^ plaintiff in Princes - sfcreet on tiie 24th December. Painfciff said he had just come over from Victoria with some horses, and asked Avhether he wanted one 1 He replied that he could do Avith a first-class draught horse; aud the plaintiff said "I've one that'll just suit you." The plaintiff took him to a yard and showed, him a very good looking horse, Avhich seemed all right except in one of the hind legs. He asked Avhat Avas Avrong Avith the leg; and the plaintiff said that ifc would never come against him—that he Avas pei fectly sound. The plaintiff asked LBO ; but he (the defendant) said that if the horse was perfectly staunch and sound he would give L7O for it and the harness. The .plaintiff agreed; ancl said " You can pay mo when you like. I'mjm no hurry for the money." They subsequently met at Price's Stable?, to which the horse- had been taken. There the plaintiff 2sked for an 1.0. U. ; and he (the defendant) i said, "If you have an IO U. I ought to have a j guarantee." The plaintiff replied, "You need nofc jhe afraid, for if you don'fc like the horse you can return him." He then gave the I O o,*and the ! plaintiff signed a bought note,-which he (the defendant) wrote, in Avhich were the words. " the horse Avarranted sound." On the next day. the horse Avasstarted with tAvo other horses, with a dray loaded with about a ton, for Wetherstone's. That evening, they got three-quarters of a mile out of town. On the next clay, the dray-horse was put into the shafts. There was a hill to be got up at once, ancl the horse went just as if broken-Avinded. He thought this might be due to the motion of the ship; but instead of working off the bad symptoms, they got worse, and, the .horse became lame in the near hind leg. About seven miles only "were "ddiiV that day, as the horse seemed to be perfectly knocked up. Next day he was placed to lead. Every ten yards, at the outside, in going up a hill, he stopped, or w- <s frequently roaring; lie was tried in all ways, but was no ecood ; aud they were four days and a half in getting up, although Avith worse roads, and as great a load, he had gone up in trom three days to three days and a half. On the way down he met the plaintiff, who said that the horse might be a little queer from the sea voyage, and that he (the defendant) had better take him another trip. He repliedjthat he would have nothing more to do Avith the horse, for he was useless ; and after some conversation, the plaintiff* said that, at any rate, he would not take back the horse there, but would meet him (the defendant) at Price's on the next day but one. He took the horse to Price's, and remained about four days and a half. He theu (on the 6ih December) Avrote to the plaintiff that the horse would remain at the stables at his risk and charges. Henry Newman, driver for the defendant in December last, said that the horse "choked up" so much from want of breath, but was still so Aviilin^ to work, that when leading, he had to be tied back".to prevent his pulling, otherwise he must have fallen. He was really useless in going up hill. Joseph Baume gave confirmatory eAridence. Mr Price stated that after the horse was brought back to his stables, he tried to get the plaintiff and .the defendant to make some arrangement. As he was friendly Avith both of them, and knew the circumstances under which the horse was sent back, he had throughout refuse! to examiue the horse in the slightest way, because he wanted to keep out of the dispute. From the 6th January to the 12fch March, the horse remained at livery in his stables, and was then sold by auction by Mr.de Carle for L 35. Had there been a warranty of soundness given, he would certainly have fetched much . more. The bill for livery amounted to LBB ss; and

the horse was sold by his (the plaintiff's) authority.the brother of the plaintiff was examined; and this completing his case, the Court rose afc half-past five o'clock.