THE COURTS. RESIDENT MAGISTRATE'S COURT, LAWRENCE.

Tuapeka Times, Volume V, Issue 260, 23 January 1873, Page 5

THE COURTS. RESIDENT MAGISTRATE'S COURT, LAWRENCE.

Tuesday, Jan. 21. (Before Vincent Pyke, Esq., R.M., and His Worship the Mayor.J John Gately was brought up on remand on acharge of stealing a sovereign from Mr. M'Kimmie. Inspector Thompson said he had communicated with the Chief of the Police, who had obtained and forwarded to him a report from the master of the Industrial school respecting prisoner. The boy it appeared was over 13 years of age, and the master considered him too hardened to re-admit him to the Industrial school, as he would corrupt the other boys. The general conduct of the boy while in the school was bad. The Resident Magistrate said it was .a difficult thing to deal with a case like that before him. If the boy was sent to gaol it would only complete his ruin, and if he were sent ha.dk to the Industrial school he would contaminate boys whose only crime was that they were neglected. Such a case showed the

necessity that existed for a Reformatory, so that criminals should be separated from neglected children, aft contemplated by the Ordinance, instead of being indiscriminately mixed together as they were at present in the Industrial school. He was surprised that the authorities had so long overlooked this matter. What were the justices to do in such a case ? He would remand the prisoner for another week, and in the meantime would communicate with the Government to see if sent to gaol, the boy could be kept apart from the older prisoners. William Draper was charged on information that he did on the 6th inst., near Wetherstones, in a public place, use threatening and abusive language, whereby a breach of the peace was occasioned. Inspector Thompson prosecuted ; defendant conducted his own case. The following evidence was adduced .—. — William Sheath, settler— On the 6th instant, I was in company with defendant when we met Grundy. Draper spoke to Grundy, but I do not recollect what he said. Grundy replied, but I do not recollect what his words were. Draper was riding, and Grundy was walking leading a horse. Both took off their coats and waistcoats, and Grundy hid shirt also. They then fought for about twenty minutes. I tried to prevent their fighting, and afterwards endeavored to separate them. The fight 'commenced on the Lawrence side of Wetherstones, but ' afterwards the combatants got away from it, The two men used abusive language to each other. Thomas Grundy — On the 6th instant I j met defendant midway between the half way house and Wetherstones on the main { road. He was riding, and I was leading ! ahorse. Draper spoke first. He called out " Now, I'll take that outlfis. for bull money;" and afterwards said, "I'll punch your b y head." I replied, "You'll never have a better chauce." He got off his horse, and handed it to Sheath who held it. Draper and 1 then fought. Drapur used a good deal of abusive language. He said he had punched my head before, and would do it again. Draper's language provoked me to strike him. Cross-examined — The first words Draper said were, " Hallo dirty nos«." William SI c .th re-called, said that both men stripped before commencing to fight. t This was the cas?. It was decided to hear the evidence in the following case before calling upon Draper for his defence. Thomas Grundy was then charged upon infofmation with a similar offence. Mr. Mouat appeared for the defence. The evidence of Sheath in the hist case was read over and admitted. In answer to Mr. Mouat, the witness said he held Draper's horse at his (Draper's) request. William Draper : I met defendant 011 the 6th instant, near Wetherstonea. 1 said, " Hallo dirty nose." He replied, "I'll soften your b y head, you b ." I then said, "It never laid in your boots." He answered, " You told Jimmy Smith that you had punched my hoad the other day. Now come off your horse, and I'll soften your b -y head." I jumped off my horse, we then stripped and fought by the roathide. If defendant had not challenged me I would not have fought him. We both stood up properly together. Mr. Sheath ra-called : There weri a number of persons around ten minutes after the fight began. Draper on being called upon for his defence, said that some time ago in serving a summons on Grundy, he by mistake gave him the wrong document. On returning to rectify his error,' Grundy struck him twice. He retaliated and succeeded in giving Grundy a black eye. This, he supposed, had caused ill-feeling on both sides. Mr. Mouat said that a Government officer in Mr. Grundy's position was necessarily exposed to a great deal of personal ill-will, which vented itself in abusive, threatening, and insulting language, and the Bench ought to protect him in the discharge of his duty. The charge against him was clearly not proved, a3 the only evidence was that of his paHiceps criminis. If it were necessary, he could produce a large number of witnesses who could testify to continual provocation on Draper's part. His client could hardly be convicted of provoking a breach of the peace, since according to Draper's own statement, he (Draper) had previously used language which caused the tight. The fighting spoken of was not a part of the offence charged — it was only a consequence of it. Mr. Pyke said the Supreme Court of Victoria had ruled that unless there was a breach of the peace, the section of the Vagrant Act, which waa the same in Now Zealand and Vcitoria, under which the charge was laid did not apply. The Bench retired, and on returning Mr. Pyke said that there had been a joint use of abusive language, exceedingly discreditable to both parties. It was a strange thing that two men could not meet upon the public highway without quarrelling, and the Bench were resolved to put a stop to such practices. Something had been said about illfeeling existing against Government officers. As a Government officer of many years standing, he would say that such a feeling was not general, although some individuals might entertain ill will against particular officers. Grundy's position as a Government official ought to have caused him to have borne and forborne. Respect for the service ought to have stopped his tongue and tied his hands. The judgment of the Court was that • Draper should be fined £2 and 6s 6d costs ; and Grundy would be tiued;£2, with9scosts. Both, parties would also be required to enter into their own recognizances of £25 i each, to keep the peace towards each other and Her Majesty's subjects for the space of twelve mouths. Hayes and Others v. Bzanmotvt and Tuapeka Water Race Co. — Claim of £6 6s. Judgment by default for the amount claimed with costß.

(Extended Jurisdiction.) (Before Vincent Pyke, Esq., R.M.) Hammond v. M'PJw.rson. — Claim of £41 03., amount of dishonored bill of change. Mr. Mow at appeared fur plaintiff; Mr. M 'Coy for defendant. Defendant pleaded — Ist, not indebted ; " 2nd,, no.consideration4.3rd4 failure of .consi-

deration ; 4th, non-presentation for payment of the bill. T. Hammond, farmer, Waitahuna, said that the bill produced was given in payment of oats. It came due on a Saturday, anil on the following Monday he presented it to M'Pherson, who said he would not take the oats, and refused to pay the amount. Cross-examined. — Presented the bill tor M'Pherson in his own house. The oats for which the bill was given were lying at Moa Flat, and he (plaiutiff) had not seen them for 18 months. The bill was given two months after the oats were bought. Re-examined — M'Pherson never said anything to him about the oats, but two months after giving the bill he wrote to his brother-in-law at, Wftitaliuna, complaining of the quality of the oats. By the Bench : M'Pheraon was to take the oats from Moa Plat. This waa plaintiff's case. Mr. M'Coy argued that there had been no acceptance or delivery of the oats ; also that the contract for the sale being for goods to the value of more than £10, as it was not in writing, had no force, under the 17th section of the Statute of Frauds. Consequently there was clearly u<> consideration for the* bill. Mr. Pyke said the acceptance itself was a note or memorandum of the sale, and I took the case out of the Statute of Frauds. Mr. M'Coy continued that the oats had been purchased as first-class oats, but had proved unfit for use. His learned friend would probably quote the legal maxim, caveat emptor, but in this case it did not apply. The plaintiff having obtained the highest price for the oats impliedly warranted them good. Delivery had not been taken, so that there had been no value whatever received for the bill. An action could be brought by his client for breach of contract. Besides, he was under the impression that the sale of such oats as plaintiff proposed to deliver was a misdemeanor at common law. He admitted if the bill had been endorsed to an innocent holder, payment could not be resisted, but in this case plaintiff had retained possession of it. He called Alexander M'Pherson, late hotelkeeper at Roxburgh, who deposed that some time since he bought 3'JO bushels oats from plaintiff, at 2s 9d per bushel, which was the highest current rate. The oats were at Moa Flat. Plaintiff said they were a good sample. Ha (defendant) bought them understanding they were good. He wanted to use them for feeding horses, and plaintiff knew that. He was to take delivery of the oats from M 'Kay's farm, Moa Flat. He told plaintiff he did not want the oats for six weeks, and gave him the bill the same day. Some six or seven weeks afterwards, he sent his man down to M 'Kay's to bring up some straw, and told him to bring up some of the oats with him. The man fetched some six or seven bag& of oats, one of which was emptied into the corn bin. On being given to the horses they reused to eat them. He sampled all the bags, finding them equally bad as the first. By next mail he wrote a letter to plaintiff stating that he would not have the oats, and he sent back the bags he had got to M'Kays. Before the bill was dne, he met plaintiff, who asked " what about the fakement." He (defendant) told him he would not have the oats for nothing as the horses would not eat them. Plaintiff never presented the bill for payment. He procured a sample of the outs (produced) from M l Kay's, and gave it to Mr. Hayes, who brought it to Lawrence in his buggy. The sample had been lying at Mr. Hayes's office ever since. Cross-examined— Plaintiff at the time of sale, said he had not seen the oats for a long time, but that they were good. He(plaintiff) also stated that Douglas Brown said they were good. He (defendant) said he would not have tha oats imlesß they were good. W. Sheath, farmer, and S. Searle, livery stablekeeper, stated that the sample of oats produced was unfit for horse feed. This concluded the defence. Mr. Mouat said the sale was completed, and the property in the oats passed to defendant when the bill was given. Mr. M'Coy said if the bill had not been given no action for the amount the oats were sold for would be maintainable. This amounted to want of consideration for the bill. Mr. Pyke remarked that in all sales of merchandise it is implied that the articles are good of their kind. Mr. Mouat said that no evidence had been brought to show that the oats were not good at the time of sale. A bill of exchange set up a new contract, to which it was no reply that the orginal. contract had not been completed. After the oats had been constructively iv defendant's possession so long, it wjis not competent for him to return them If the oats had been accidentally damaged after the bill had been given, theloss would certainlynotfall on the vendor. It was not inconsistent with the evidence that the oats might have been good at the time of sale. Aq action for a breach of warranty might lie, but then it was absolutely necessary to show the condition of the oats when they were vested ia defendant. But a claim of that sort could not be set up as a defence in the present action. Mr. Pyke intimated tbat he wonld reserve his judgment till Tuesday next.