RESIDENT MAGISTRATE’S COURT.

Wanganui Chronicle, Volume XIII, Issue 1022, 4 May 1869, Page 2

RESIDENT MAGISTRATE’S COURT.

WANGANUI. Saturda r, May 1. [BefoieW. L. Buller, Esq., R.M.] CIVIL CASE. Bett & Robertson v. Joseph Kennedy— Claim, £SO for timber sold and delivered. Mr 11. B. Roberts for plaintiff, and Mr C. H. Borlase for defendant. This case had been adjourned from the pievious day. On Friday the plaintiff’s case closed and the defendant called a witness, William Collopy, who deposed that he had ordered the timber, and had paid a portion of it for himself, afterwards handing over the timber without responsibility on the part of the defendant for the residue of the debt. This witness had afterwards become insolvent. The case was adjourned till Saturday for the production of some books the witness stated he based his evidence upon. William Collopy, cross-examined by Mr Roberts, deposed : The first entry in the book [produced] is April 1, 1867. At that date Kennedy was engaged at £1 a week. The second entry is October, 1868, when the engagement terminated. I think it was before that date that I spoke to Messrs Bett & Bobertson about the timber. I had also sold him cattle for £3O that a few days before I had given a £SO bill for. That bill has never been paid. I also sold him another lot of cattle for £45 ; that I had given a bill —since dishonoured —for £sl. I also sold him 6 head of cattle for £lB. I sold him a house in the town mortgaged for £IOO for £SO. I also sold him 3 horses, 2 carts, and a set of harness, for £35. The harness I had got a few days before from Mr Liddell for £9. That has never been paid. By these means 1 must have sold him £252 worth of stock &c, besides making allowance, in the timber I got and the £lB worth of stock, for his wages. I allowed him besides £7 on one of the cattle transactions. | Re-examined by Mr Borlase. —The receipts [produced] represent the various cash transactions. On the application of the Official Trustee in Bankruptcy, the book was impounded in Court, as were the other documents produced in this case. Joseph Kennedy, defendant, deposed that he had had several transactions in cattle with the last witness. He (Mr Collopy) had owed him £IOO when leaving in October. He had not then the money, but it was agreed that Mr Collopy should supply him with timber to build a house, which, with a few cattle sold, was considered equal to the same thing. On going for the timber, Messrs Bett & Robertson would not give it without a payment had first been made by Mr Collopy. This had been done. They afterwards required an order from Mr Collopy before delivering the first lot, and on another supply being required a fresh order to deliver to bearer was necessary. Judgment in this case was postponed till Wednesday.

Monday, May 3. [Before W. L. Buller, Esq., R.M., Major Durie, J.P., Capt. R. W. Smith, J.P., and Thomas Harper, Esq., J.P.] civil case. Ail adjourned case in which Edward Lewis, merchant, of Wanganui, brought an action against Capt. Maynard, of the schooner Lady Darling, for the sum of £42 14s was resumed. The damages were claimed on goods shipped in good order and condition in Melbourne to plaintiff’s order, and landed at Wanganui in a damaged condition. For the sake of continuity we here epitomise the previous evidence in this case. Edward Lewis, plaintiff, deposed that he received, ex Lady Darling, among other goods, 27 bags of flour and 8 bags of sugar, which, from a survey made upon them, were found to be damaged from kerosine and salt water. In accordance with the surveyors’ report the goods were sold by auction, and the sum sought to be recovered represents the difference between their invoice price and the actual value realised.— Thomas Powell deposed to having surveyed a portion of the cargo by the Lady Darling, under instruction from plaintiff, and found the goods were greatly damaged by kerosine and salt water ; the goods were unmarketable. In conjunction with Mr Beaven, the co-surveyor, a report was adopted. It recommended the goods to be sold by public auction at the risk of whom it may concern. This evidence was corroborated by George Beaven. —Capt Seymour, of thes.s. Rangatira, stated that kerosine, as cargo, is always carried on deck in steamers. He was aware that kerosine tins were liable to leak, and that bilge water sometimes damaged cargo, especially in stormy weather.— Frederick Lewis deposed that some of the flour and sugar was damaged. A marine insurance would write a policy on goods on deck under certain provisions. The damaged goods were conveyed to the store, and placed on one side. This closed the case for the plaintiff, and without entering on the defence, Mr Roberts took exception to the action on various legal grounds. He contended that the cause of action, if any, did not lie between the present parties to the suit but between the consignor and the captain ; he besides applied for non-suit on the ground of there being no evidence of neglect on the part of the defendant before the court. After hearing the other side, the ruling on the points raised was adjourned till Monday morning. On sitting to-day, the R. M. stated that on the first plea he held that the action did properly lie between the present parties to the suit. That the evidence of the bills of lading clearly proved that from the time the captain signed these documents he became the responsible party to the consignee and answerable for any wilful neglect on his part in the transmission of the goods,

except in so far as the terms of the bills of lading protected him, namely, “ the act of God, the Queen’s enemies, lire, and all and every other dangers and accidents of the seas, rivers, and navigation,” &c. This, then, disposed of the objection. He considered tfiat so far there was a prima facie case that damage had been sustained, it was now the part of the defendant to show that such damage arose from no wilful neglect on his part. The following evidence for the defence was then called :

Capt. Maynard, deposed that he was master of the schooner Lady,.Darling, which left Melbourne on the 18th of March with a general cargo. The goods were carefully stowed and sufficient dunnage allowed. The plaintiff’s sugar was at least twelve feet from the kerosine, which was all stowed in the bottom of the vessel, and was on a higher level. On the 31st of March heavy weather was encountered which continued two days, part of which time the vessel was hove to, and strained and laboured fearfully besides shipping heavy seas. Dashed about as she was the bilge water was sure to have washed over some of the cargo, and if the kerosine tins leaked the oil must have floated on the water and come in contact with some of the cargo. By my receipts only 9 bags of flour are shown as damaged. On reaching Wanganui, I went to a notary public to guard against any actions, by recording the stormy passage from Melbourne. [The document was here produced, but being unstamped was ruled not to be ad missable. ] The mate reported some cargo damaged and I immediately had a survey executed.. Messrs T. B. Taylor and R. S. Low were the surveyors. Cross-examined by Mr Keon : I have got no freight from Wanganui. I had no claim for damages made before dropping down the river. Mr Lewis only stated that he had goods damaged, but did not know when I applied to him whether there would be any claims. Robert S. Low gave evidence of the survey [report put in]. He considered that the cargo had been properly stowed and had been discharged in excellent condition. In his opinion the goods surveyed had been damaged by bilge water, and w ? as such a case as might have happened to any ship in a storm. Had there been no storm he considered that all the kerosine might have leaked and never damaged any of the goods stowed above it.

John Gourlay, mate, and Henry Ives, seaman, gave no farther evidence but substantiated the above. Thej could only account for the damage by the storm at sea. Mr Keon then, with the permission of the Court, called the following witness : John Duthie, who stated in evidence that he had found that forty gallons of the kerosine he received from the Lady Darling had leaked. He had complained to both captain and agent in consequence. 'Edward Lewis, re-called, explained that at his interview with the captain he had said that in the absence of the surveyors’ report in writing he could not make a claim for damages, but intended to do so as soon as possible. This closed the case. Mr Keen having addressed the Court, the magistrates retired to consult upon their decision. On returning into Court, the presiding magistrate said they were unanimously of opinion that there had been no want of care on the part of the defendant, for whom they gave judgment accordingly, with costs.