RESIDENT MAGISTRATE'S COURT, CAMPBELLTOWN.

Southland Times, Issue 694, 10 July 1867, Page 2

RESIDENT MAGISTRATE'S COURT, CAMPBELLTOWN.

Thuesday, 4th July, 1867. (Before I. Newton Watt, Esq., E.M.) W"Ai>DEii v. Macintosh — Fo£.J29*lSs 6d. This was an action to recover the ftbove amount, being wharfage on a shipment of cattle paid by .plaintiff is agent for the defendant. ,- V,, James Waddel, plaintiff, deposed — I am a shipping and forwarding agent , at Bluff Harbor. I have several times acted as _ agent _for Mr Macintosh, and paid charges on his account. TEn Januarylast a cargo of cattle arrived by the ship Hydra.^ I : ia§ appointed agent by the defendant, to tally jthem out of the ship and to take delivery. When -I rendered my account defendant paid me for my trouble, but objected to reimburse me for the wharfage on the cattle which I had paid on his account. He said, by a subsequent arrangement with Mr Thomson (of Dodd and Thomson, the shippers) he only took delivery at Green Hills. It is usual for shipping and forwarding agents to pay charges on account of their principals. I have done it before for Mr Macintosh, and was not-instructed not to do so in the present instance. Cross-examined by Mr Macintosh — I • was appointed to take delivery, or tally the cattle out. lam not agent for Driver and M'Lean. I did not act as agent for Mr Thomson — I acted as agent for Capt. Rich, of the Hydra. I supplied the Hydra with some, hay for the cattle. By the Court— The cattle were all landed and I had become responsible for the wharfage before defendant told me he was to take delivery at the Green Hills. I was not informed of the terms of purchase ; I acted as I would ordinarily in other cases. Mr Thomson paid me for the hay. James Macintosh (defendant) deposed — I purchased a cargo of . cattle from Driver and M'Lean, of Dunedin, as agents for Dodd and Thomson, to be delivered at the Bluff. I hand in the agreement. *By the agreement the cattle were to be landed by- the vendors at the Bluff, and I was to pay only for those landed. "When the Hydra arrived she was detained at Starling Point for a week. . Many were dead and dying when she got to the wharf. I told Mr Thomson, therefore, that I would not take delivery of them. I don't think any of them were landed at this time. Mr Thomson agreed to alter the agreement. I. hand in his letter. By the terms of the letter I was not to pay for any cattle that might die within twenty-four, hours after landing, and any bullocks that might then be unfit to travel were to be retained by me (defendant) at my. expense, but at the vendor's risk, until able to travel. Plaintiff was not my agent, I was on the spot with jnj stoekkeeper, he was only to count the cattle, any boy might have done it. I let plaintiff count away after the agreement" was altered, did not inform him of the agreement or alteration of the same. Cross-examined by plaintiff — I paid you for counting the cattle. I might have paid you for entering the cattle at the Custom House. The cattle were not consigned to me. By the Court — I think I paid plaintiff a guinea for counting the bullocks. I did not consider it an extraordinary charge for a boy's day's work. Boys charge pretty high at the Bluff. The ship paid the men employed on the wharf during the landing. T. G-. Tanton, shipping and forwarding agent, was called to prove the custom of the port, and deposed that he had as subagent received cattle and sheep at the Bluff and paid wharfage, but was unable to state whether in these cases they were shipped at the risk of the vendor or vendee, or where delivery was taken. Judgment was reserved uutil the following day and then delivered thus : — The issues raised in this case appear to be — Ist. Was plaintiff the agent of the defendant or only his servant for the time, and hired for a specific service? 2nd. If agent was he justified in paying charges on account of defendant ? 3rd. If so justified was the wharfage in question a charge proper to be paid by him as t such agent. And this last raises the question incidentally of whether Dodd and Thomson the shippers or the defendant should pay the wharfage. With respect to the nrst point I am satisfied that the plaintiff was justified in considering himself as agent for the purpose in question. And with respect to the second that he was justified in paying charges on defendant's account, which were properly chargeable to him, the defendant. , The third issue is more difficult to decide, and I should like to have had better evidence of the general custom or the custom of the port with respect to cattle than has been offered. By the'original agreement the cattle were to be landed by the vendors "on the beach at the usual place of landing cattle," and the purchaser (the defendant) was to take and pay for all cattle so landed. The cattle were landed apparently by tacit consent (both principals being present) op, the iustejs, $n$

thus wharfage accrued. It appears therefore that the property did not change hands until the cattle were landed. So Dodd and Thomson used the wharf to land the^cattle, and the defendant used the wharf to herd -them and drive them to /the land. And there is no. evidence before the Court to show whether by custom the wharfage accrues from the act of landing the cattle on the wharf or upon the receiving them and the driving them therefrom. . But there is another view of the subject which will, I think, render any decision on this last question at present unnecessary. It is not usual for persons receiving goods overseas (unless - they are trading as importers) to do their ,'• own customs and shipping business, even although they may be present on the spot. Plaintiff had on several occasions acted as agent for defendant, and paid landing charges for him, — with no information tothe contrary, plaintiff naturally supposed he was to do the same with respect to the cattle. And wharfage being a charge which is customarily paid by the receiver of goods, and there being no evidence before the Court that the -custom does not hold good with respect to cattle, and in the absence of any direction, from defendant to plaintiff not to pay it, I think the plaintiff is entitled to a verdict. Judgment for plaintiff, £9 19s 6d, with costs. If defendant should be able 'to prove that the custom does not hold with respecc to cattle he can apply for a rehearing.