RESIDENT MAGISTRATE'S COURT.

Southland Times, Volume I, Issue 33, 16 August 1864, Page 3

RESIDENT MAGISTRATE'S COURT.

Saturday, 13th August, 1864. (Before H. M'Culloch, Esq., R.M.) Indecency. — Richard Andrews, for indecent exposure ofhis person, on 12th inst., was dismissed. Breach op the Peace.— W. Roye, for provoking a breach of the peace tliis nlortiing, and breaking a bucket of the value of seven shhillings, was fined in the sum of 605., and to pay the price of the bucket, or in default, 14 days' imprisonment, with hard labor. The Court then adjourned. MoiTDAY, 15th August, 1863. (Before H. M'Culloch, Esq., R.M.) drunkenness. — One drunkard forfeited 40s. in default of appearance to answer to this charge. William Cuthrel, for the. offence of driving a horse and cart on the gratings in Deveron-street, was fined 205., for a first offence. Civil . cases. Perkins y. Godfrey.— Claim for £46 Os. 10|d., being value of goods shipped in the William Miskin from Invercargill to Bluff Harbor, and not delivered. Ifc appeared that Mr. Perkins was acting for another party, and tho case was adjourned for a week to allow defendant to appeal. JOHNSTON V. WEBSTER. Claim for £185 12s. 2d., (reduced to £100 to bring it within the jurisdiction of the Court), for goods delivered. Mr. Macdonald appeared for defendant. Plain-" tiff, in person. Plaintiff gave his evidence. Defendant pleaded " Not indebted." Cross-examined.— £l,ll4 9s. Id. of the goods were delivered to Mr. Moir, of the Clai-endon Hotel, and the balance to Mr. Webster, being £38 odds. iir. Webster entered into an engagement with Mr- Moir to pay off this debt of £i,114 odds. I did not see the agreement. I don't know if it was in writing. Webster's account against me amounts to £112. Mr. Moir's accouut is £420. I did not arrange to wait for payment of Mr. Webster's account till the hotel paid expenses. By the Court, — I received £445 7s. 6d. from Moil-, and the balance from Webster. Mr. Macdonald contended that there was no case for the plaintiff, as there was no consistent testimony as to tlie transference of the debt from Moir to Webster. The magistrate was clearly of the same opinion, and non-suited the plaintiff, with costs. MURDOCH T. ROEBUCK. Claim for £100, for damage sustained by removal of the bowling alley attached to the Union Hotel. Mr. Harvey for plaintiff. Mr. Button for defence. The defence put forth was, tliat all that had been removed were- fixtures, as decided upon by arbitration. Mr. M'Donald, one of the arbiters, gave evidence that the floor, being a trade fixture, was liable to be removed. E. King deposed to being sent to protest against the pulling down of the alley. Got a written notice, and the work was stopped on my presenting this. It was again commenced to be pulled down on the following day. Mr. Roebuck said he did not care for the arbiter's decision. Mr. R. Stuart, solicitor, deposed to preparing the agreement and protest. John Reid, a contractor, deposed. — Know bowling alley in question. Without floor oi* tables, the value of the bowling alley would be about £175. Cross-examined. — It could not be put up for £100. . By the Court. — It would be about 60 feet m length, and 12 to 14 feet in width, and of native timber. J. S. Johnson deposed. — Enow the bowling a 1 ley in dispute. The value would be .about £30. Did not know the roof was of corrugated iron. The Court. — Tliis witness evidently has not examined the building sufficiently to testily correctly as to the value. Examination continued. — The value ofa bowling alley, without the floor, and measuring SO feet by 16 feet, would be £80. It could be put up for £80. I R. Murdoch deposed. — Never gave Mr. Roebuck permission to remove the bowling alley. The value would be £130. This was the case for the plaintiff. Mr. Button opened the case for the defence, and contended that the bowling alley (meaning the walls and roof, as well as th© tables and floor) was a trade fixture — being put there for the purposes of trade. He quoted Smith on the point at issue, in the cases of Penton v. Robart, and Buckland v. Butlerfield. Mr. Roebuck, the defendant, deposed : — Was formerly a tenant of Mr. Murdoch. I put up the bowling alley. The whole woidd be worth from £70 to £SO. It was put up in dear times. A dispute arose between us as to the removal of the floor. I thought I was, from the decision of the arbiters, entitled to remove the whole. Cross-examined. — The corrugated fron was damaged. There was three-fourths of a ton of it. This was the defendant's case. Mr. Harvey addressed tlie Court for the prosecution, and quoted from Woodfall in support of his case ; maintaining that the bowling alley was not a compulsory trade fixture. Tliis building was of the nature of freehold property, being fastened into the ground with pilc3. The Court — I don't think it is of importance whether the building is fixed by piles or in any other manner, Mr. Button — Unless it can be proven that some material damage was done. After a few more remarks, the case was adjourned till Wednesday, in order that the legal points of the case should be fully argued. MURDOCH T. ROEBUCK. Claim for £47 Os. 2d., less 800 feet of timber allowed, £8 Bs. £4 4s. was paid into Court as in full of the claim. Mr. Harvey for plaintiff. Mr. Button for defendant. Mr. Murdoch was examined as. to the supplying of 2,000 feet of timber for the erection of the bowling alley — I gave two long posts, but not any timber. Mr. Button applied for a mistake in the agreement between the parties being amended, relying on the power of the Court to do soin cases both of equity and legality. The 2,000 feet of timber was nofc mentioned in the agreement, but it was clearly understood to be so. - Mr. Harvey objected to this, insisting that m the face of a written agreement, such a plea could not be allowed. Mr. Button said he would clearly prove it was an omission* and called Mr. Roebuck, who deposed. — I was to pay Murdoch. £100 for the goodwill, the lease, two lamp posts, and 2,000 feefc of timber. I got an account two months afterwards for 2,300 feet scantlin". I got the account from a partner of Mr. Murdoch's. I told Mm I had already paid Mr. Murdoch. He said Murdoch had told him of some agreement. Mr. W. Robertson, estate agent, deposed.— l negotiated the' lease of the Union Hotel to Mr. Roebuck. The final arrangement stated that £100 was to be paid for the goodwill of the business, the license, two lamp posts, and 2,000 feet of timber. If it were not in the agreement, it was intended to be in it. Cross-examined. — The omission has never been rectified. The agreement produced is the one I got prepared. Mr. Aitchison, a partner of Mr. Murdock. — 1 remember rendering an account to Roebuck. Mr. Murdoch said he was entitled to.be paid for that, less a certain amount for som© iron. F. Chapman, deposed. — Was present at the time when the agreement was talked of and confirmed. This witness' evidence was corroborative of that given by Mr. Robertson. Mr. Button now addressed the Court lor the defence. Mr. Harvey replied. The Court awarded a verdict for the plaintiff for,£47 os. 2d., less the £8 Bs. and £4 4s. paid into Court, leaving £34 Bs. 3d. ; defendant paying COStS. ■...-■-■•. -r

BROWN V. DEEGAN. Claim for £44, being value of eleven sheep destroyed by dogs of defendant. Mr.* Button for plaintiff. Mr. Harvey for defendant. Mr. Brown, a farmer, at Ryal Bush, gave evidence to the value of the sheep destroyed. Paid £3 12s. per head for them. They were now in lamb, and I value them at £4 4s. They were of the Leicester breed. Deegan resides about two miles from my place. On 2nd instant he passed my place with a dog. Shortly afterwards I heard a dog barking, I went into the paddock, and caught it in the act of worrying one of the sheep. It was the same dog as I had seen with Mr. Deegan, and which I had seen at Mr. Deegan's farm. /Fourteen of the sheep were worried. Three have died. The other eleven are badly bitten, nnd several are in a languishing state. I told Deegan was his dog had done. He owned the dog. He was sorry for what was done. He went to see the sheep. He put a rope round the dog's neck, and was going to hang it. . I said he need not be so fast, as it had done more damage than his life could answer for. I asked compensation for the sheep. He at that time agreed to refer the case to arbitration. Up to tliis time the Deegans never denied being owners of the dog. Cross-examined. — Only three have died. The eight which tVere left are next to useless. Four of them are pining away. They were heavy in lamb. I offered "to settle the affair for £25, being willing to bear half tho loss, as it was a misfortune to Deegan, as well as for myself. Mr. Louis Grilles (of Carey and Grilles) deposed to selling Mr. Brown some Leicester ewes, at £3 12s. Their value hi lamb would be about £4 Bs. per head, John Clarkson gave corroborative evidence to the sheep being worried by the dog. This was the case for the prosecution. Mr. Harvey now applied for a nonsuit. He referred to the provisions of the Provincial Ordinance, which had been framed to overrule the common law. He maintained that this could only be done by act of the G-eneral Assembly. The Bench disallowed a nonsuit. Mr. Harvey now opened the case for the defence, and called Mr. James Deegan. — On the 2nd August, went with my dog through plaintiff's paddock. The clog was a very quiet dog, and never worried sheep. When the dog returned to mo, its mouth had no appearance of having been biting sheep. The dog lias been running aboufc Mr. Brown's sheep for the last six months. I never told huu it had at any tune worried a sheep. Cross-examined. — I never told Brown that I had given it a thraslung for worrying a sheep. I never said he was a vicious dog. I said ho was a good house dog. Patrick Deegan gave corroborative evidence. Agnes Hosie gave further corroborative evidence. Mr. Harvey now addressed the Court for tho defence, and submitted that it was necessary that a scienta be proven. Supposing this was agamst him, was the identity ofthe dog proven? Further, taking ifc for granted that the t 'ourt decided against him on both these points, he submitted that the damage was overstated. Only thr«o of the sheep were dead, and the plaintiff could not claim for eleven. Mr. Button replied for the prosecution, and maintained that the evidence was most conclusive. The dog was caught in the act, as had been stated. As to the damage done, he suggested.that plaintiff and defendant should bear each lialf the damage. The Court ruled thafc ifc was nofc necessary for the scienta to bo proven. A verdict was found for the plaintiff for £2S, the owner keeping the the sheep, and defendant paying costs, £4 ls. GriiAnAii v. Levy, and Levy v. Graham:. — These were counter-actions, which, in consequence of the short time allowed for the defence, were agreed to be postponed for a week. As one of the witnesses, Samuel Levy, was going to Auckland on the following day, his evidence was taken •as to the agreement between the parties. He was a witness to the signature of Graham. The cases were then postponed for a week. JACOBY V. MYERS. Claim fo? £24 for rent of premises in Taystreet. Defendant paid £3 into Court as in full of all claim for rent. Mr. Harvey, for plaintiff ; Mr. Button appeared for defendant. It appeared that the agreement betwen the parties was differently interpreted by them ; the one saying that the lease was a three years' one, while tlie other said it was a weekly tenancy one. The original agreement was for oue year, to 27th August. 1863, at £3 a-week, payable iv advance, witli a clause at the end of it, which provided that Mr. Myers had the option of retaining possession of the premises for three years more at the same rate. He had been asked on 27th August, 1863, by Mr. Jaeoby, if he intended to retain possession iv terms of the agreement, aud, according to the lafcter's statement, he said, " Yes ; most, undoubtedly." Sir. Myers denied this, and even said, that in consequence of not agreeing to give £3 a week, Mr. Jaeoby had said he had better leave. The Bench found that, the defendant was only a weekly tenant, and awarded a verdict for plaintiff for £3 more than had been paid into Courfc, with expenses. The Court then rose.