RESIDENT MAGISTRATE’S COURT.—GISBORNE.

Poverty Bay Standard, Volume X, Issue 1108, 28 July 1882, Page 2

RESIDENT MAGISTRATE’S COURT.—GISBORNE.

This Day. [Before M. Puree, Esq., B.M.] CIVIL CASES. W. Adaib v. E. Dsvkht. This case was adjourned until August 27th. Gibbons v. Dbvbby. Claim, £l4 16s, for the loss of 13 bags of flour whilst carting it to the Big Biver. Mr Fraser, who appeared for the plaintiff, asked that th. plaint be amended by striking out the brand and Oamaru, which Mr Kenny, who appeared for the defendant, agreed to do. The witnesses were ordered out of Court, and Mr Fraser called B. G. Gibbon., who stated : lam a .hipping agent. My father is owner of the Isabella. I acted as his agent. The Isabella was wrecked last June. The cargo was discharged on the Murewai Beach. I made arrangement, for its transport to Gisborne—with Mr Devery as far as the Big Biver, then to deliver it to Kennedy and Bennett, lightermen. The agreement was to oart the flour from the Murewai Beach, and deliver the same aboard the Koko, at the Big Biver, at 4s per ton, and Is per ton extra for all that wo. put in Devery’s store. If the lighter was not there he was to go on storing it at his place, and then oart it aboard the Noko when .he arrived there. For storing it I was to give him Is extra per ton. Cross-examined by Mr Kenny i I did not pay him. Mr Shelton was to pay him, and the lightermen to hand me over the difference in the freight. We wore speaking on the matter, and I spoke to Mr Devery about it. He offered to cart it to the Big Biver for 4s per ton, and 1. a ton extra ror what went into the store. After a short talk with Ms Kirker, the Insurance agent, I agreed to the offer, He did not .ay he mode the offer on behalf of Mr McDoull. Ido not swear that MoDoull’s name was not mentioned. I know that MoDbull did do part of the work. I did not know that McDoull did the lot, and also that the contract was made on behalf of McDoull. My father is in New South Wide.; he is the owner. The captain has the document, in hi. possession stating the cargo, which is as far as I know, 610 sacks of flour, 60 from J. and T, Meak, and 60 from Anderson & Co. It is Meek’s flour that is lost.

Cross-examined by Mr Fraser i I know nothing about the cargo, I did not recognise that McDoull had anything to do in the mattar. Mr Kirker was present wheu th. contract was made. Mr Shelton was there, but I cannot swear what passed between us. Mr Kirker is not here now,

Neil McDonald, sworn, deposed i I am master of the Isabella, and reside at the Albion Hotel, The cargo was taken ashore, and put under cover of the .alls. Mr Gibbon, told me to put the cargo on chore. I delivered the cargo to Mr Derery'e carter, to be token to the Big Biver. I delivered 857 »aoks to them of aooibs. BJ- Bevery and Moßdull took the cargo away. Devery came down with the cartere and helped to load the oarte with the cargo. On one or two occasion. Devery drove some of the cargo away himself. Sometimes Devery would .ign the receipt., and sometimes he wouldn't. (Mr Kenny now produced a book and so cross-examined the defendant). I have had that book before, and got it from the mate of the Isabella. I tore the leaves out of the book because they belonged to me. By Mr Kenny i I refused to (how them t 0 defendant. Previous to this I offered to run the tally up with him. The second time he asked me I told him X would not show the leaves until ho sew them in Court, On looking at the bills pf Ming I found I ought to have 610 SOOlbs. sacks of flour, There wore 60 2001 b. bags to order branded J. and J. Meek; 650 2001 b. bags, Anderson and Co. j 10 2001 b. bags, Ireland and Co., on board the Isabella j and, 337 501 b. bag., and 140 1001 b. bag. in addition. I know McDoull was Devery's carter. Devery himself said so. No one else was present at the time. After the wreck I put the flour very carefully on the beach, The only thing I can swear as to the disposal is that I oelivewd 267 socks myself. They were all soo|b sacks. AU the flout I

shipped was not tallied out of the vessel, but there was a good look out kept while putting out, and to the best of my belief the amount was correct. McDoull took the flour away to the best of my belief. I should say there were three or four 501 b bags used by the natives. J issued two 501 b. bags, and Mr Gibbons 2or 3. I include natives and white men as the working party. There might have been 2 of the 1001 b bags, but if any 2001 b bags were used, it was without my knowledge. I never saw a dray como at night. I remember one of the men telling me that .ome of the flour had been stolen. I made enquiries and the man told me that he would tell me who stole the flour when lie was put to tlie push I can tell nothing of the flour of my own knowledge. Cross-examined by Mr. Fraser : The 257 bags delivered by mo to Devery’s carters wore 2001 b bags. I delivered to Devery a quantity of flour out of this consignment, which he had bought from Messrs. Common, Shelton, and Co. We could not distinguish the brands on all the sacks. A good many of the sacks were as bad as those produced. I should think there were 7 out of 20 os bed as that. That is as near as I can

go. There were not half. Thoae on the ground tier were undiatinguiahable. I put a mark on some of Devery’s sacks. There were two of us counting them, and I marked those I counted. The blue mark on the bag produced resembles my mark. All the flour delivered to Derery were 2001 b. bags. He ought to have had 310 bags out of which I delivered 184. I have demanded 13 sacks of J. T. Meek brand from Mr Devery, and ho refused to deliver them or pay for them. I told Devery to make up the number with other brands if he could not get J. T. Meek brand. It appeals he has not done so. I said to Devery that that was what I would do in his place. He said that was the only thing he could do. He did not do it. A few days after this I demanded J. and T. Meek brand, or payment for them. I particularised the J. and T. Meek brand. I asked Devery if he came across the J. T. Meek brand in his store to return it to the rightful owner. We found one bag in hie store of that brand, and he said he would put it on one side, and send it, and any others he might oomo across, to the rightful owner. He afterward! said he was short himself, and refused to give up any. I was told that there were six bags at Kennedy and Bennett's, which I understood I could have. Alex. Craig, sworn deposed i (The witness who was evidently Sootoii, requested security for expenses, which was granted). I was mate of the Isabella when she went ashore. The cargo was discharged on the beach, Part of the cargo was gone when I left. I delivered a portion of the cargo to MoDoull end another oartor. I left the tally slips with the Captain The slip leaves produced I cannot swear to. I will not undertake to swear batt they were either kept, or not kept by me, I was at the time acting in the capacity of mate, and it is my duty, if I get the proper material, to keep a proper tally. I ought to have had a proper tally book. I would not think myself doing my duty if I kept euoh a tally without proper material. I cannot remember how many bogs I delivered. It is a month ago since I left. lam not aware thgt I was ever asked by the Captain to keep a proper tally. The Captain spoke to me about keeping a better one. By Mr Kenny i Mr Devery complained to me of the loose manner in which the tallying was done. I cannot swear to the hook pro, duoed. Oats, bran, flour, and everything else were delivered in a mixed up way. The brands on the bags wore, some of them illegible, and some legible. I should say about half. I have seen bags of flour coming into the stove for Mr Devery. The Captain never said any thing to mo about the blue mark. The Magistrate said that the mate inrefusing to keep the ta|ly-book without proper forms did not do his duty. By Mr Kenny i All the ships in whioh I have served as mate are supplied with these boeks. The book could have been got from <hc ship after she was stranded, ‘ Hora again the R.M, severely reprimanded the witness,

Herbert Gomm, (the same question as to expenses was similarly answered): lam an able seaman. I was on board the Isabella when she was wrecked. The cargo was put on the beach. I was left along with the cargo. It was afterwards carted away. I delivered a portion of tlie cargo to McDoulJ and MoDermof under the captain's instructions. I kept tally slip*. I recognise some of those produced as written by me. The cargo was in flour. There were some 2001 b, bags among it. I think I delivered about 87 bags of 2001bs. which were taken away by the carters McDoull and McDermott. I think about 1501bs. would bo used in tlie cook house. I was on watch the night following the enquiry. I saw someone moving about the shed where the flour was kept with a light, and I got a man to oome with me, and wo saw it was the captain. My mate said “ It's the captain, we'd better go back." Some of the brands wore very illegible, some were plain. I cannot tell you the proportion. There was a blue mark put on some of Devery’s socks by the captain. I saw the captain rolling the sacks about, and there were people with him, and a dray on the beach. I mode no enquiry, because be being my " boss,” I thought I had no right, I cannot say what he was doing with the flour, whether he wu stacking it, or what he was doing with it. There was a dray there, and by the way the mon were speaking to the horses I could tall the day was loaded. I was never within 100 yards of the drey. We could not distinguish any one but the skipper, We were never nearer him then 20 yards. Jack Bailey was with me. John Bennett sworn, deposed, I am a master Mariner. I was employed by Messrs. Common and Shelton to represent their interests when the Isabella was wrecked, in taking care of their cargo. I received 207 sacks,(2oolb.) from the beach. I received them from Mr Devery, but of that number there were 2S sacks belonging to Mr Orr. Devery took every care in regard to this flour. I don't think Mr Devery ohtoksd the work, but after It got to his stqrq ha toojtevery care of it. Some of the. brands ora very illegible. There are qU 20011,. sacks in rny store now i AfO them are Henderson's, and qne Devery’s. They wore offered to Mr Orr, and ho refused them i I daresay on account of the chance of their being more iq< jured than his own.

Mr Fraser here addressed the Court aayino that in consequence of the witnesses haying gone slightly away from whet hie instructions had led him tq suppose he must ask for a nonsuit. Mr Kenny, while agreeing to a nonsuit, jgd that his client was very much aggrieved by this ease, in which M was ptapar»d with a very strong defence. Hie Worship said ha must grant a nonsuit with oosts £4 6«, McDevitt v. Cook County Cotxoiz,, My Kenny for plaintiff, Mr Fraser for defendant, This was a plaint by Mr McDevitt against the nuisance by the Cook County Council in allowing the tramway to exist, and alleging severe injuries received by his being oapsised t’ rough the horse being frightened by the locomotive, for which the plaintiff asks £lOO as compensation. The defendants admitted the grounds of action, but disputed tlio amount of damavos ae too remote, ”

Chat*. McDevitt, sworn, deposed : I am a contractor living in Gisborne, and am the plaintiff in this case. On the 2nd of February I and my servant were driving two drays from Waerenga-a-hika home. I cautioned my servant to walk by theside of his team I told my servant to look out for the engine, and tell me when it was coming ; he was in front of me. I told him if he saw the engine coming, to pull off the road. How he got on I don’t know, but when the engine came along empty making a great noise my leading horse which I was holding by the head got frightened, and threw down into the ditch and cut me severely. The shaft horse held tight to his breeching luckily for me. I sung out and got clear, and managed to get the team round to the road, my leg was bleeding. The blood was running out of my boottop. I was getting very weak and called my servant, and sent him into Mr Malone for a drink of water, which he brought. The first to come to my assistance were Messrs Malone and Ward. They got me into Mr Malone’s cart and he drove me, and Mr Ward drove my team, into Makaraka. I managed to get home and sent for Dr Pollen who attended to me. I was about a month or five weeks detained from my business by reason of my injuries; for a fortnight I was confined to the house suffering great pain and experiencing sleepless nights. My ordinary earnings as a contractor are about £1 per diem. I should have tendered for the Wairoa road contract, and had appointed to meet Mr Winter at Steggall’s with that object, but was prerented by my leg. I tried to ride but found I was unabls to do so. I lost all business during fhe time I was shut up in this

by Mr Fraser: The £1 per diem is the joint result of my own labours and my team. After the accident I turned

my horses out. I should have had a chance of getting a contract out of the Wairoa lot. I should have had to pay a man 7s or 8s per diem to drive for me. For a fortnight I was absolutely unable to do anything, and for a fortnight afterwards I was not able to do anything. The doctor gave me no instructions as to resuming my avocations. After I left my hoft*e I made an effort to work and found I had to drop the shovel, being thoroughly unable to ute my leg. Charles Peterson gate corroborative eridense as to the accident. Charles MeDaritt recalled i At the time of the accident I had several town orders on hand which weae as good to me as contracts. Mr Fraser addressed the Court. There were no general damages claimed, they were special damages, via.: Dr Pollen, £1 Ils 6d , loss of time, 88 days at £l, £2B i loss of business, £7O 3. 6d| or a total of £lOO. To the item £1 111 6d there was no objection, To the £BB he objected as excessive by reason of plaintiff not having exercised sufficient diligence to earn money by his team during his illness. The item £7O as claimed for loss of contract was prospective, presumptive, and too remote. It seemed an out of the way claim and did not seem a natural or reasonable result, and he would ask His Worship to disallow ;t altogether. After hearing Mr Fraser for the defendant, and Mr Kenny for the plaintiff, His Worship gave judgment for plaintiff for £22 Ils 6d with costs of Court £4 Is and counsel and witnesses coats £6 7s, or £32 18s 6d in all. [We shall publish the argument and judgment fully our issue to-morrow,

For continuation of ntwt tee 4th page.