WESTLAND DISTRICT COURT.

West Coast Times, Issue 644, 17 October 1867, Page 4

WESTLAND DISTRICT COURT.

.» CRIMINAL SITTINGS. (Before his Honor Judge Clarke.) Wednesday, October 16. The Court re-opened this morning at eleven o'clock. SENTENCE. George Thomas Osbaldiston, who had been found guilty of larceny, was brought up for sentence. Mr Harvey asked that the prisoner be remanded, as he expected witnesses as to his character to arrive from the Grey in the cdurse of the day. His Honor remanded the prisoner until the close of the criminal business. STABBING. John Clifford was indicted for having, on the Bth July, 1867, feloniously and maliciously cut and wounded one Alice Holt, with intent to do her some grievous bodily harm. The prisoner, who was undefended by counsel, pleaded Not Ghiilty. The Crown Prosecutor said that before the case went on he wished the witness Alice Holt to be called on her recognizance. The witness was accordingly called, but did not appear. Reginald Henry Kemp Bennett, John Walsh, and Samuel Ferguson were called upon their recognizances. The recognizances of the whole of the witnesses were directed to be estreated. The Crown Prosecutor said that he was not prepared to offer any evidence in thia case. The jury, by direction of his Honor, returned a verdict of acquittal. Charles Sarrein was discharged from custody on the application of the Crown Prosecutor. SENTENCE. George Thomas Osbaldiston, found guilty of stealing a watch, was again brought up for sentence. j His Honor said that the prisoner had been convicted upon the clearest testimony, and he had greatly aggravated his offence by the defence he had set up, by which he had tried to take away the character of an honest man. The sentence of the Court was that the prisoner be imprisoned and kept to hard labor for two years. This olosed the criminal sittings. CIVIL SITTINGS. TUKBRIDGB T. HOPS. Mr Harvey, for plaintiff, moved that the hearing of this case be adjourned, in consequence of the absence of defendant, who could not be found to serve the. subpoena upon, but whose evidence was necessary to prove his signature to a dishonored cheque upon which the action was brought. Mr Button, for defendant, would consent to the adjournment on payment of the costs of the day. Mr Harvey replied, and contended that the plea of ".not indebted " wai bad, inasmuch as dishonored cheques were to be regarded as dishonored bills of exchange. His Honor said that he thought the plea was bad, inasmuch as a plea of that kind could not be put upon the record with regard to bills of exchange and cheques. He would adjourn the hearing of the case until next Bitting, with leave to both partiei to attend. O'bBEEH T. MOBAK AKD JTEABS. Mr Button for plaintiff. Mr Sees for defendants. This was an action to recover the sum of of L 199 2s, the balance due on certain spars and round timber supplied by plantiff to defendants, as per agreement. Defendants pleaded not indebted, and that the matter in dia6putehad been referred to arbitration, and by the arbitrators award L2l los was directed to be paid by defendant to plaintiff, and that the said sum of L2l 10s had been tendered to plaintiff, and refused by him, whereupon defendants had paid the money into Court. Mr Button said that there was no arbitration, no agreement in writing was made to submit the case to arbitration, neither was the award in writing, but merely verbal. Plaintiff was being examined in support of bis claim when Mr Rees submitted that the ease was out of the jurisdiction of the Court, being on part of an unfinished contract, the whole of the «ontract being for the sum of L 344. Mr Button contended that defendants not having performed their park of the contract ; plaintiff, as he had » right to do, had rescinded the agreement, and was now suing on a quantum meruit. Mr Rees argued that as the only evidence that could be given waß ujxm the contract. Plaintiff could not now abandon the contract and go upon a quantum meruit. His Honor said that it was not in the power of one party to rescind the contract. He thought that the declaration should have contained a count for the violation of the contract. Mr Button contended that when a contract was broken, th» party against whom it was broken might either tender performance or rescind the contract and sue as upon a quantum mervit, and in that ease it was not necessary to set out the special contract. Plaintiff, in the present case, only wished to recover so muc|i as he deserved. Had not his learned friend stopped him he should have been prepared to prove that the contract had been rescinded, and such being the case, plaintiff was entitled to sue assmnpsib in dehitatus. Mr Rees replied, and argued that the con- ! tract being still open, the case was outside the jurisdiction of the Court. His Honor said that he should not stop the case. Plaintiff deposed that ho applied to defendants for a fortnightly payment, and they replied that the money they had would be of no use to plaintiff as it was not more than L 5. Plaintiff said that he would stick to all the timber, which he did, for two or three, when Moran put witness off by force. The Warden ■aid that the matter had better be referred to arbitration, and two assessors were appointed, •who valued the work actually done at Ll2l 16s 6d. Witness delivered 164 spars. Cross-examined. — I delivered the spars on the Company's ground. Moran did not tell me where to deliver them. The question for the arbitrators to decide was the value of the timber on the ground, not the value of the work done. I did not receive notice to go on with the work since the arbitration ; I did receive one before the arbitration. I did not go on with the work because the defendants had no money . lam not sure whether on the day the arbitration was completed defendant offered me the amount awarded by the arbitrators. By the Court— Nothing was said about the agreement continuing in force. Mears told me that they were going to do the work themselves. I could nob go on work after Arbitration, as neither I nor defendants had money. Patrick Maloney deposed that, after the assessors had given their award, Mears told tritness that defendants would give LSO if O'Brien would let them leave the timber that was on the ground. ' Cross-examined — The assessors valued the whole of the timber that was delivered. When O'Brien found he could not get any money he tried to keep possession of the timber. Peter Henderson gave corroborative testimony. On his cross-examination this witness sH f ed that plaintiff had told him that defendants took the timber by force, and he summoned them for assault, £enjamw Qnwtay, m» of I&9 w«j»»»or«,

fad that the timber pointed out for them to value was 126 spars, anil the value fixed was £121 18s 6d. Tho assessors did not value the whole of the timber on the ground, because Mr Moran would not have it valued. No award was given. Cross-examined— Mr O'Brien did not order us to value the other timber. I know nothing when the contract was to cease. Both Mr Moran and Mr O'Brien said they were satisfied with us. This closed the plaintiff's case. Mr Rees submitted that plaintiff must be nonsuited, as it was clear from the evidence that the contract had never been rescinded, and the special contract being open and unfulfilled, he would submit that either the plaintiff's claim must be outside tho jurisdiction of the Court, the amount being beyond what the Court had power to deal with ; or if it was held that the special contract was still open, that plaintiff must he nonsuited for uonfulfilling the terms of his contract. Mr Button submitted that the payment into Court admitted all the material allegations in plaiutiif 's declaration, and therefore he would not bo nonsuited. His Honor said that he could not nonsuit plaintiff, but he would reserve the point as to the jurisdiction of the Court. Defendant Moran was examined by Mr Eees as to quantity of timber delivered by plaintiff. When plaintiff asked witness for LBO witness told him he could only give him about Lsor L 6, and that would be of little use to him. On the following Monday plaintiff took possession of tho timber, and prevented the men from working for two days. Witness then took forcible possession of the timber. Witness spoke, to Mr O'Brien, and told him that he should put on men at his risk. Mears, the other defendant, was then examined, and gave similar testimony, but stated that ho did not remember plaintiff say any thing about the 161 pieces of timber claimed for. Cross-examined — We still hold possession of the contrast. By the Court — AH the timber delivered by Mr O'Brien was of use. He only delivered 126 pieces. James Connell, the other assessor, deposed that he valued some timber, in company with Mr G-urney, and they valued it at Ll2l 18s. By the Court — We put the value on 164 pieces. There might have been as much more on the ground. I cannot say that any of the timber was useless. I saw Mr Moran shew a piece of timber to the Inspector of Works, and he passed it. William Matthew deposed that the work was stopped on the 2ud September, for want of braces and longitudinal beams. When O'Brien was told he had not delivered the timber he said that he delivered it on the ground, and that was sufficient. Both the learned Counsel having addressed the Court, His Honor said that lie had mado up his mind that this contract was put an end to by both parties previous to the arbitration. He should give a verdict for plaintiff for L 143 16s, including the sum paid into Court. The Court adjourned sink die.