RESIDENT MAGISTRATE’S COURT.—GISBORNE.

Poverty Bay Standard, Volume XI, Issue 1349, 30 August 1883, Page 2

RESIDENT MAGISTRATE’S COURT.—GISBORNE.

[Before J. Booth, Esq,, R.M.] Tuesday. J. Warren v. J. Busing AN. Enlarged to September 11. Sahgood & Co. v. S. J. Bromley. Mr Brassey, who appeared for the plaintiff, asked permission to withdraw the case.— Granted. J. Warren v. R. Austin, Claim £2 15s for rates due and owing. Judgment for amount and coals. W. Cooper v. Tiopiba Tawhtao. Mr Kenny appeared for plaintiff. This w»b a judgment summons for £62 10* 6d. Evidence was given by Mr VVoon that the defendant was pusseesaed of ample means. The defendant, who appeared in person, wu-j ordered to pay the amount by this day fortnight, in default two months imprisonment. S. M. Wilson v. Hen are Potae. Claim £4 10s for buggy hire. Mr Brassey appeared for plaintiff. Judgment was given for the amount claimed and costs, £1 2s. Teat & Friar v, Cooper, Mr Rees appeared for the plaintiff, and Mr Brassey, for defendant, applied for an adjournment as his client was unavoidably absent on important business. His Worship, under the circumstances, granted an adjournment until September 28th, so as to give time for the production of evidence to bo taken in Wellington. Mr Rees wished to know w duh of the cases (there being two) was to ba adjourned. Mr Brassey said that ns both ca-es were ident.i ally the same he expected that the adjournment applied to both. Mr Rees strongly opposed the application, and said that Mr Cooper was only keeping out of the way purposely so as to create unneceflBary and Vexatious delay. He should tender his evidence, and if the Court did not like to take it. he was d >ne. His Worship decided to go on with the second rase. Mr Keen explained that this was an action to recover £B5 18s 41 on a dishonoied promissory note which had been given in satisfaction for goods supplied to Natives on the order of Mr Cooper. Mr Friar was a partner in the firm of Teat, Friar & Co . and knew Mr R. Cooper, who had been dealing with the firm since 1881, through Natives from whom he was buying land. The bill (produced) was signed by Mr Cooper. He had received various amounts fr<»m Mr Cooper. By Mr Bruss-y : Tho goods were not sup lied to Mr Cooper, but they were entered to his a?e«»un». No payments entered in t’>e books were on account of the bill. Sums of money were paid since March. No money was paid on account of tho promissory note Mr Cooper had authorised him to go to Mr Muir for money. He entered the name of each Native in his day book when they received the goods. He knew Mr Cooper was connected with the purchase of lands. Mr Cooper give the Natives orders so that he might know they were connected with Miapaua Block. He’ gave each Native an account so that he (the Native) might show it to Mr Cooper. Did not remember the final settled merit with the Natives. He remembered going to Mr Muir and asking him to pay all the accounts. The goods supplied to the Natives were part and parcel of the promissory note. He received various sums of money on account after debiting these bills to Mr R. Cooper. He knew the Natives had to pay for these goods. By Mr Rees; He did not look to the Natives to pay. Cooper has never disputed his liability on these bills. This ended the plaintiff’s case.

Mr. Brassey said he could ask for u non* I suit, on the ground that it whs out of the jurisdiction of the Court, but he did not wish to do Worship could now see that there u v .jiencc, and he would ar.k for an adjournment t’l! Mr Cooper returned. Mr Rees urged that there was no defence. It could not be but of the jurisdiction of the Court, not being an open account. Every bill was a separate action. Mr Brassey again asked for an adjournment. His Worship c..id he would like to take time to look into the question of jurisdiction raised by Mr Brassey. Adjourned to next Friday.

Wednesday, Police v. Hansen. The defendant was charged with allowing his chimney to catch fire. Bin Worship said he would only inflict a nominal flue of ss, as undoubtedly the chimney sweep was to blame to a certain extent, Captain Winter v. W. Parnell, This was a criminal action brought by the plaintiff to recover the sum of £1 6s, which the defendant did and still does unlawfully neglect and refuse to pay. Mr Kenny for the plaintiff; Mr Brassey for the defendant. Mr Brassey pleaded not guilty. Mr Kenny said that the complaint had been laid for the purpose of recovering certain fines inflicted by the plaintiff as commanding officer of the J Battery New New Zealand Artillery, according to the rules and regulations of the same, for nonattendance at parades. The proceedings had been taken under the 50th section of the Volunteer Act He thought his learned friend would admit that the defendant was a member of the corps in question. Mr Brassey said he would admit everything except that the court had not the jurisdiction to entertain the case. He wanted Mr Kenny to point out how these fines could be inflicted.

Mr Kenny replied that he had already pointed out that the case could be heard under the 50th section of the Act. If iMr Brassey raised an objection as a point of law, he would ask to be allowed to reply to it, as he considered was his right. Mr Brassey objected that Mr Kenny should reply. The information had been taken as already stated under the 50th section to recover penalties, but they could not recover as under a penalty, nor could thev recover if their stand was taken under the 50th section. The 42nd section was the one they should have proceeded under. His friend was splitting a cause of action. First he brought a civil action to recover a part of the amount, and after that a criminal or quasi-criminal action for the balance. They are bringing a multiplicity of actions which the court will not allow.

Mr Kenny pointed out that they were not splitting a cause of action, and that did not apply in the case at all. He considered that the only mode of proceeding was under the 50th section and not under the 42nd as his friend contended, and if that was wrong there was no other way to proceed. He went on further to point out the meaning ot “fine” and “penalty,” and submitted that each tended to bear the same meaning, and also quoted various authorities to support him. The two words were used indiscriminately in the Act. He could hardly imagine that His Worship would decide that the action was wrongly taken, for if he did so, then the volunteers could do just as they pleased, and be their own masters. Mr Brassey said with regard to the words “penalty” and “fine,” he considered there was a vast and grave distinction between them. The commanding officer could fine a man, but if he wished to inflict a penalty he would have to lay an information against him, and the penalty imposed would have to be paid into court. He thought that the distinction was clearly shewn in the regulations themselves, several of which he quoted. He said these fines could have been recovered in a civil action. His Worship said he considered that there was a distinction between the words, and he would dismiss the case. Mr Kenny gave notice of appeal. His Worship said he was very glad, as he should like the case to be fully gone into, Reynolds v. J, Porter,

Mr Kenny appeared for complainant, It appeared that complainant went to look for some cattle at the pound, when defendant struck him and asked him if he wanted to steal the cattle. W. Reynolds—l went to the pound on Sunday to look for cattle, and see whether a red and white steer was there, The defendant came and asked me if I wanted to steal the cattle, and then struck me with his hand on the head, then with a rope, and again with his hand. By defendant—l came the back way to the "pound, I did not tease the cuttie. I will swear that. I was not told to clear off, Did not use obscene language. Mrs Priestley—Remembered last Sunday, Saw complainant and defendant. Saw defendant Beat the boy, and strike him on the head with his fist and also with a rope. M. W. Hislop—Remembered seeing the plaintiff and defendant on Sunday. Saw defendant strike the plaintiff twice with hithand and once with u rope. The plaintiff's brother corroborated the assault. The defendant, having been sworn, stated that he was in the employ of Mr Cannon, the poundkeeper. The youngster cam« and annoyed the cattle. The plaintifl called him a grey-headed old , ano refused to go away. Fined £1 and costs, £2 5s ; in default seven days. Mr Cannon said that Mr Kenny had, under cover of his legal position in the Court, thought fit to slander him. His Worship said th it nothing had been said against him (Mr Cannon).