RESIDENT MAGISTRATE'S COURT

West Coast Times, Issue 264, 28 July 1866, Page 2

RESIDENT MAGISTRATE'S COURT

(Before a. G-. FitzGerald, Esq., R.M.) Thuhsdav July 26.

Drunkenness and Disobdkrly Coxduct. — William Quinlan was fined os for tho former and 15s for the latter offence, or in default 48 hours imprisonment. Matthew Barry for disorderly conduct was also fined £1 or in default 48 hours imprisonment.

Larceny. — Joseph Craven was charged with this offence. Dr Ryley appeared to prosecute, and asked to be allowed to withdraw the charge of larceny. It appeared that Craven had been a patient in the hospital, and left there on Tuesday with the hospital clothing on, without giving notice to Doctor Ryley of his intention of doing so, thereby infringing one of the rules of the institution* The man bad been seen in the town by the ■ boatmen of the hospital boat on Tuesday evening, when he told them he would return with them in the boat, but meeting some friends he got on the spree, and did not return that night. Dr Ryley stated that he did not wish to press the charge, but had brought Craven before his Worship as a caution to others. Prisoner was discharg ed accordingly.

John Mowbray, committed to the hospital by the Bench at Greymouth on the 21st of June last, charged with being of unsound mind, was discharged to-day on the medical evidence of Doctors Ryley and Harold.

CIVIL CASKS.

Donne v. Kilgour — Mr Barton appeared for the plaintiff, and Mr Rees for tne defendant. It will be remembered that the plaintiff in this case, Mr t)onne, brought an action against Professor Stevens in the Resident Magistrate's Court, on Thursday last, claiming LIOO damages for breach of „ contract, and obtained a verdict for that amount. It appeared then that Professor Stevens had eutered into an agreement, by which he was to travel from place to place as directed by Mr Donne, and to place his exhibition under that gentleman's control for a period of thirty-six nights ; in consideration of which, he was to receive the sum of LIOO, Mr Donne paying all expenses connected with the performance, as well as those of travelling, &c The Bench ruled on that occasion that Mr Stevens bad broken his agreement by playing for Mr Kilgour, at the Grey, being of opinion that the Stevens' troupe was for thirty-six nights under Mr Donne's direction, and gave a judgment for the amount, LIOO. Mr Donne now sued to recover a similar sum from Mr Kilgour, for damages sustained "by reason of his having enticed from his (plaintiff's) service, i his servant, Henry Peter Stevens." Mr Barton called John Lo^kyer, who deposed to the fact, that when defendant' aaked Stevens to play ou the night of Monday, the ninth, he (Stevens) replied tbat ho could make no arrangements, and referred him to his employer, Mr Donne. C. F. Evereste proved that later in the day he, at defendant's request, saw Stevens, and requested him to wait ou Kilgour, aud that it was immediately after this interview Steveus stated that Kilgour had , offered him LlO to perform on tue Monr

day night. Another witness, Griffiths, said that he had been employed, subsequent to the action brought by Mr Donne against Stevens, to perform as a musician, in company with the troupe, at Gilmore'a Hotel. Griffiths further stated that S,tevens had left the Grey, for Melbourne, on Sunday last, in the schooner Murray. Mr Rees contended that no malice had been shown on the pairt of Mr Kilgour, and that the nature of the agreement existing between "Mr Donne and Professor Stevens had not been revealed. He further held that Professor Stevens could not be looked upon in the light of a servant to the plaintiff in this action. It may be here remarked that it was clearly proved in evidence that not only had Mr Donne revealed the nature of his agreement with Professor Stevens, and cautioned Mr Kilgour against entering into any arrangement with Stevens, but had told him that, in the event of any such arrangement being made, he (Mr Donne) would hold him personally responsible. Mr Barton contended that, as shown by a letter (produced^, Mr Kilgour was distinctly aware of the fact that an agreement was id existence between Mr Donne and Stevens, and that the services of Stevens were Mr Donne's. The learned counsel held that Mr Rees was wrong in his statement, that the common acceptation of the word servant was the same as the legal acceptation, and cited several instances of actions in which parties were treated as servant/f • for the purposes of the action, and instanced the case where a father sued for the seduction of his daughter, in which the form of action was for losing her services, even though she was at the time ago Verness in the service of some other person. Mr Barton also remarked that the defendant had rented the room to the plaintiff for a stated period, and during that interval had employed the troupe; and, further, that he had, subsequent to , the action of Donne v. Stevens, when the ■whole facts of the case came out, employed the troupe. Mr FitzGerald reserved judgt ment in the case until this day. \ De Costa and Co. v. Marsdcn — For goods supplied. ' Judgment by default for - L 37 0s 8d and costs. Amos and Badger v. Suniner — For goods supplied. Judgment for L3B 7s 9d and costs, 11s. v. O'Loughlin — For goods supplied. Judgment by default for L 43 2s 5d -and costs. 'Cassius and Co. v. Lowe — For goods supplied. Judgment for full amount claimed, L6B, and costs. Fraher v. Brien and party — For goods supplied. Judgment by default for LSB 3s 6d and costs. Dovore v. Howarth, Barton and Howarth — Mr Rees appeared for the plaintiff, and Mr Harvey for the defendants. This was an action brought by Albert Devore, at present a clerk to Mr Rees, barrister and solicitor, of this place, against the wellknown firm of Howarth, Barton and Howartb, barristers and solicitors, of Dunedin, to recover the sum of L 57 9s, for commission alleged to be due from the defendants to the plaintiff, and for work and labor done by the plaintiff ' for the defendants, and upon an account stated between them. Mr Reea stated that it was his intention to give evidence of the contents of a certain certificate, which was material for his case, to prove the amount of the commission sued for. Mr Harvey stated that, in order to save the time of the Court, he would take an objection to the counsel's opening, as he would have no right to give such evidence , the notice to produce the document not having been given in sufficient time to enable the defendants to produce it, they having been served only two days ago, and the document being, within the knowledge of the plaintiff, in Dunedin. This objection the Resident Magistrate held good ; whereupon Mr Rees stated he would endeavor " to get on" without it. The facts of the case were as follow : — On or about the month of October, 1864, it appears that the defendants made an arrangement with certain of their clerks, beads of departments in their office, and of whom the plaintiff was one, to allow them a small per-centage upon the cash receipts, iv order to stimulate their exertions. The plaintiff alleged that this was a commission to which he ' was entitled under that agreement. The 1 defendants, on the other side, alleged that > it was to be a mere gratuity, to be given or withheld at their option. Plaintiff stated that at the trial of Hawkins v. Howarth and others, , tried in Dune- \ din, he had given evidence that j he understood it to be a gratuity, but . that he bad since changed his mind. He then said that on seventeen nights he had ' done overwork from two to two and a half hours each night ; that the value of that overwork was worth 5s per hour ; and that after the trial of Hawkins v. Howarth aud others, Mr Barton had promised him that l he would pay the commission " when money came in." Mr Hawkins was called j for the plaintiff, but he proved that he was not present, and that ho bargain was made with the plaintiff in his presence. Mr -'Barton was then called, and stated his version of the arrangement made ; and Mr Rees asked him, amongst other questions, " whether the plaintiff had stated truly the 'contract made," to which Mr Barton replied that the plaintiff had altered his mind since he gave evidence in the case of Hawkins v. Haw orth and others in his (Mr Barton's) favor, and had probably improved his recollection under his present employer (Mr Rees). Thereupon a scene ensued, Mr Rees stating that Mr Barton should confine himself to answering questions, and the Resident Magistrate ruled that Mr Barton had answered the question. Mr Rees replied on behalf of the plaintiff. Mr Harvey declined to make any reply, saying that after the evidence given, and proof that plaintiff had received additional salary after Mr Hawkins left, he would "not waste the time of the Court in talking further about the matter. The Resident Magistrate gave judgment for the defendants, with costs, remarking that as to the commission it was clearly a gra- . 4uity, and that, after the evidence given by Mr Barton, the plaintiff was not entitled to overtime.

t Friday, Jdlt 27. Drunk asd lncapable. — William Thomson and Stephen Roberts were both fined ss, or, in default, twenty-fcur hours' imprisonment. CIVII, CASES. In tbe case of Donne v. Kilgour, heard yesterday, judgment was given for the defendant, on the ground that plaintiff had not pro» ed his case. Judgment was also given for the defendant iv tiic case of Reeves & Co. v. Trustees iv Estate of Ferris & Co. (Messrs Clarke and Eicke).

Boyle and Co. v. Carey and Gilles — Mr Harvey appeared for the defendants. The plaintiffs sought to recover the sum of L4B 2s 9d for loss and damage sustained by reason of defendants refusing to deliver to plaintiffs twenty bales of chaff and a chaff-cutter, shipped on board the Keera at Dunedin, the plaintiffs having tendered the defendants the freight for the same. It appeared that plaintiffs refused to sign bills of lading in Dunedin, stating that they had entered into private /arrangements with the agents respecting freight. Defendants stated that the plaintiffs had not proved their title to the goods in question, and further, that freight was chargeable on the gross weight, whereas plaintiffs had only tendered freight on the nctt weight. Witnesses were called by Mr Harvey, who deposed to the fact that it was customary to charge freight on the gross weight. Judgment was given for the defendants with costs.

Ryan v. Morgan. — Mr South appeared for the plaintiff, and Mr Oakes for the defendant. The plaintiff claimed to recover the sum of £100 damages for non-fulfilment of agreement. This case was devoid of all public interest. It appeared that the defendant had sold plaintiff a public-house at Rosstown, and had failed to give possession on the day named. Damage was assessed by the bench at L2B 125., and a verdict given for that amount with costs.

Hawkes and Strouts v. Leary— Mr Oakes appeared for the plaintiffs ; Mr South for the defendant. The defendant ' in this case was mauaging clerk to Messrs R. Reeves and Co., on the 13th of June last, when it appeared from the evidenco of Mr Lougbotton, manager to the plaintiffs, that he called upon the defendant and placed certain goods in his hands for sale, and for which the defendant undertook to become personally responsible. This" transaction was apart from former transactions which Messrs Hawkes ami Strouts had had with R. Reeves and Co. The goods, consisting of furniture and bricks, were sold,and account sales rendered, accompanied by a cheque for the amount realised by the furniture ; but the value of 7200 bricks— L64 10s had never been accounted for. In cross-exa-mination by Mr South witness admitted that the account sales were signed Reeves and Co. Mr South applied for a non-suit, on the grounds that the fact of Mr Longbottom receiving those accounts sales was tantamount to admitting Reeves and Co. as his agents. The non-auit point was overruled, and Mr South called the defendant, who denied having stated that he would become personally responsible, but merely received the goods as he had done those of other persona, on behalf of Reeves and Co. Judgment was given for the defendant with costs.

The Court was then adjourned until eleven o'clock this day.