DISTRICT COURT, LAWRENCE.

Tuapeka Times, Volume III, Issue 212, 22 February 1872, Page 5

DISTRICT COURT, LAWRENCE.

(Before His Honour Judge Gray.) Tuesday, February 13th.

Mackay v. Browne. — This was an action brought to recover £140, for not redelivering cattle which had been lent to defendant.

Mr. Gooday appeared for plaintiff, and. Mr. M'Coy for defendant.

The plaintiff in this case was Mr. Mac- | kay, late Depasturing Inspector, and the defendant Mr. G. F. C. Browne, M.P.C. The action arose o\it of a transaction which commenced six or seven years ago. It appeared that Mr. Mackay at that time owned 32 head of cattle, running upon the Goldfields commonage, and Mr. Browne was in the dairy business, supplying the miners with milk. Mr. Mackay permitted Mr. Browne to use for milking the cows of his herd, in consideration of-T him (Mr. Browne) supplying him with a certain quantity of milk and butter per week. Mr. Mackay alleged that it was a further portion .of the contract that Mr. Browne should take charge of the cattle, and, as alleged in the declaration, "safely keep" them and their increase for Mr. Mackay, re-delivering them when requested so to do. Mr. Browne denied that he had undertaken to take any charge of the cattle, and alleged that the milk and butter supplied to Mr. Mackay was the sole consideration on his part ; but admitted, however, that Mr. Mackay might reasonably expect that he should " have an- eye after them." The evidence showed that Mr. Mackay, on making his ■ returns for assessment of these cattle as cattle running on the Goldfields commonage, had relied chiefly, if not wholly, on information furnished him by Mr. Browne, as to their numbers and the gradual increase that was taking' place. The last return furnished for assessment was 95 — the number being estimated on information, or, as Mr. Mackay termed it, "returns," furnished to him by Mr. Browne. Some time last year Mr. Mackay wished to terminate the contract, and to remove his cattle to the neighbourhood of his own residence. Mr. Browne's absence from home while attending his duties in the Provincial Coun- j cil made it difficult for him to assist in mustering the cattle. Mr. Mackay, with his own men and Mr. Browne's son, was able to muster 57. Mr. Mackay admitted that 4 others were running on the hills, which he was willing to consider as re-delivered, as they were within easy reach ; and there was a further number also on the hills, which he met from time to time, but the numbers of which he believed would not cover half the deficiency. Meeting Mr. Browne, and conversing with him on the subject of the deficiency, Mr. Mackay claimed that Mr. Browne was absolutely bound to re-deliver him cattle to the number of 95. Mr. Browne utterly denied any responsibility, and some warm words ensuing, Mr. Mackay insisted on holding Mr. Browne responsible, while Mr. Browne refused to take any more trouble abr»ut mustering the cattle, on the ground that no responsibility whatever existed. Mr. Mackay then brought this action.

His Honour, at the termination of the case, observed that his difficulty in dealing with it arose from the nature of the declaration, which was very technically drawn up, and was founded upon an alleged contract of safe keeping, without alleging against the defendant any other form of liability. Probably, however, there might be an amendment. [No amendment, however, was then applied for.] His Honour reserved judgment.

Wednesday, 14th February.

Pine v. Henderson. — This was an action brought to recover the sum of £70 for wrongful dismissal.

Mr. M'Coy appeared for plaintiff, and Mr. Copland for defendant.

It appeared that plaintiff had Bold his lease of the Commercial stables to defendant, and an agreement was entered into between the parties whereby plaintiff was to act as groom for defendant for six months at the rate of £3 per week. Plaintiff in fulfilment of this agreement entered into defendant's service. While in defendant's employment, he was in the habit of attending to a racehorse which he owned. This defendant repeatedly objected to, as he considered it interfered with his duties in his (defendant's) stable. On the 11th January, the disagreement reached a climax. Plaintiff came late that morning — an altercation ensued, which resulted in plaintiff demanding his wages. The amount due to him by defendant up to date was paid, and he now sought to recover the balance of wages for the term of the agreement.

His Honour dismissed the case, allowing professional fee and costs of Court to plaintiff.

Laws'on v. Nicoll & Others. — An action had been brought to recover the sum of L 250, damage done to plaintiff's garden, and the matter had been referred to arbitration. The award of the arbitrators, L 47, had been paid into Court, and accepted by plaintiff.

Mr. Gooday, on behalf of defendants, now made application to His Honour to fix the costs. Mr. Copland appeared for the plaintiff.

Doughty and Webster y, Squires and Others. — This was a suit brought to recover L 99 damages sustained by plaintiffs through defendants polluting a stream of water at Canada Reef by their mining operations. Mr. M'Coy appeared for plaintiffs. Defendants were not reprssented.

It appeared that some years ago Doughty and Webster had erected a flax mill on the creek said to be polluted. Subsequently Doughty sold out to one Griffiths, who has since held possession. Griffiths was carrying on the business of flax cleaning until lately, when the mining operations of the defendants so polluted the creek thai, he was no longer able to do so. The action, was raised in, the name of Doughty^ akd Webster, as they were the original' lessees, although the property wa& vested in Griffithe^who

wa3 at present in Melbourne. It came 'put that ' Doughty and Webster were never consulted in the.jnatter, and that Mr. M'Coy had not a warrant from Mr. Griffiths to institute proceedings. His Honour considered that the case was improperly before the Court. Griffiths was the proper party to institute the action, and his warrant to sue should be before the Court, as in the event of an adverse judgment he might escape under the plea that he never gave instructions. Under the circumstances, and seeing that defendants were not represented by counsel, he would either adjourn the case until next sittings, or discharge it from the list. The defendants accepted the latter alternative, as it would cause great inconveoieDce to tliein. to have to come again to Lawrence.

A son of Grifiiths was in Court, who stated that he was unable to pay the expenses of the defendants.

His Honour remarked that he had no doubt that when Mr. Griffiths returned, he would see the propriety of paying the defendants' expenses. He further stated to both parties that they had better come to some arrangement, as if they did not a very important case would be raised, "which might cause a great deal of ■litigation, and in its results materially injure both parties.

Monday, 19th February.

Mackay v. Browne. — In this case, which had been heard on the 13th inst., His Honour now gave judgment. He suggested to Mr. M'Coy, counsel for dedefendant, that he should enable him to decide the real matter in controversy by assenting to an amendment of the declaration charging Mr. Browne, not with a contract, perhaps, for absolute safe keeping, but for a contract to take ordinary care and a subsequent negligence.

Mr, M'Coy said he did not feel justified in assisting the plaintiff.

His Honour then said that he had given the matter a good deal of consideration as to whether he ought to make this amendment after he had reserved judgment, plaintiff not having applied for it at the hearing. The declaration was very technically drawn, and the evidence had been very technically applied to a contract of absolute safe keeping. He would have amended the declaration if application had- been made while it was still possible to recall the witnesses, but he did not feel justified in doing so at this stage. He must, therefore, though reluctantly, non-suit the plaintiff; but as the true matter in controversy had not been determined, he would only give defendant partial costs. He would very much regret if this matter became the subject of further litigation. Probably the parties would now see it was their mutual interest to agree upon some settlement. v Plaintiff non-suited, with costs, L 3 3s.

Sittings in Bankruptcy.

Wednesday, February 14th.

Claim of Christina Clark against the estate of D. and 11. Clark.

In this case Miss Clark claimed £90 from the estate of Donald and Hugh Clark, wages due to her from 18G4 as housekeeper for her father.

The Trustee in Bankruptcy asked the Court to disallow the debt.

After some preliminary objections had been disposed of, Miss Clark produced an agreement between herself and father, written in 1 864, whereby she was to receive for her services £35 per year. She had had the agreement in her possession ever since it was written, and would have produced it sooner had she thought it necessary to do so. She produced an account of all moneys paid on her account, also the number of cattle she had received, which cattle were taken possession of by the Trustee.

Donald Clark deposed to having written the agreement and signed it on the date mentioned. The account produced was at various periods made up from memory. He was satisfied that the items were correct to a few shillings.

The Trustee stated that the last witness, in his last examination, distinctly swore that there was no agreement in existence between him and his daughter ; and also said that were he previously aware of the existence of the agreement, the estate would have been saved some considerable amount of expenses.

Upon his being asked by His Honour how much the estate would realise, the Trustee stated about five shillings in the pound, if the present claim was expunged. He further remarked that Miss Clark was was only entitled to three months' wages, and in no case to exceed £50.

His Honour reduced the claim to £50 — three months' wages at the rate of £35 per annum to be a preferential claim against the estate, the balance to be ranked against the estate along with the other claims.

Thursday, February 15th.

Re I. Butterßeld. — In this case the accounts of the bankrupt were not made up in accordance with the Act. The bankrupt was examined by Mr. Gooday, who appeared for Messrs. Lange and Tlioneman, Dunedin, to whom he was indebted in the sura of £70, for goods supplied, but nothing of importance was elicited. The case was adjourned until the next sitting of the Court, to enable the bankrupt to make out his accounts in conformity with the Act.

•Re R. J. Hamilton, Switzers. — Mr. M*Coy appeared for the bankrupt, who had tiled no accounts whatever. The case was adjourned until next sitting, to enable the bankrupt to make out some statement of his affairs.

Re Puller and Grant. — Mr. Gooday applied for the final discharge of the bankrupts, as the six months, the period for which their ticket was suspended, had expired. — Granted.