RESIDENT MAGISTRATE'S COURT.

Westport Times, Volume II, Issue 178, 25 February 1868, Page 2

RESIDENT MAGISTRATE'S COURT.

Before J. Giles, Esq., M.D., R.M. Monday, February 21. In the case Of Berry v. Bemiss the costs were to be paid by plaintiff and not divided between each party as stated in our Saturday's issue. Drunk and Disorderly.— James Burke was charged with this offence and fined 205.; Peter Dewar, for the same offence, failing to appear, forfeited his bail; James Duerc i , locked up since Saturday night was discharged, the Magistrate deeming this sufficient punishment ; James Jamieson, also forfeited his bail for a like offence. (Before T. A. S. Kynnersley, Esq., R.M.) ARTHUR BKAUCHAMP V. ROBT. MCDONALD. The defendant in this case failing to appear judgment was given by default for amount claimed and costs. WM. DALE V. M. MACLEAN. The plaintiff sued defendant for £3l 17s for work, &c, done to a house. Defendant applied for an adjournment for production of witnesses. Mr Tyler opposed the application, but the Magistrate adjourned the case until Monday next, ordering defendant to pay all costs up to this date. ILLEGALLY ILL-USING A HORSE.

Wm. Harvey sued Robert Parry and David and James Howell for ,£4O for damage done to a horse which defendants had ridden without his authority. Mr Tyler for plaintiff; Mr Pitt for the defendants. Wm. Harvey deposed.—l am the owner of a grey horse, which I turned out on the Pakihi between the Buller and the Caledonian. On Sunday the 16th I went up to the Caledonian Terrace to try and find out who had been riding my horse, as I had been told some one had lamed him. I saw the defendant Parry, and in answer to my question he said, " I helped to ride your horse up the terrace," and he also said. " two other men were with me; they are brothers, and are called Howell." He then went with me to their hut, when I called David out, and I told him 1 had found out that he was one of the men who had been ill-using my horse, and unless he made some arrangement with me I should summon him He said, " I was drunk at the time; I know I have done wrong." I saw Parry afterwards and he threatened me. When I served the summons on the Howells they made no remark ; but on Saturday last David Howell came down, and saying he and his brother were very sorry for what they had done, offered me £2O to make it up. I said I would not take less than £4O, but afterwards, as I did not wish to take the case to Court, I offered to take £3O and settle it. I was offered £4O for the horse just before I turned him out, at which time he was sound, he now has his shoulder put out, and is quite valueless.

By Mr Pitt—l swear I never turned out the horse for any other reason than that I had no work for him. The horse was never thrown down whilst with me. I gave £55 to Donald Eoss about eight months ago for him. He was quite sound when I turned him out. Long, who was examined instead of his wife, who was unable to come down, said—l keep the Half-way House between this and Caledonia. I know Harvey's horse. I remember Howell riding the horse over the creek. The horse was not right before lie was ridden ; he was lame in the shoulder, which seems out now.

By Mr Pitt—l have not examined the horse particularly ; he does not seem any worse now than tie did before Howell rode him,

John Graham deposed—l saw Harvey's horse on Sunday, when he was in a very bad state. I saw him on the Caledonian and brought him back to Long's ; he seemed bad in his hind quarters, and went lame. I would not have given £5 for him ; his shoes being off might account for his going lame. 1 knew the horse on the Buller before he was turned out on Caledonian track, and he then was more lame than now.

Patrick Smyth, deposed—On Friday the 14th I went to the Caledonian, when I saw a man riding Harvey's horse up the terrace beyond Long's ; another man was hanging on to the horse's tail. The place they were going up was nearly a precipice. I knew the horse in the Buller ,• he used to bring goods to my store. I never noticed he was lame.

Wm. Hall, a packer, said, I know Harvey's horse, and I have seen it nearly every day since it was turned out. On Thursday the 13th he was looking very well, and was not lame. I knew him in the Buller, and saw no trace of his shoulder being put out. By Mr Pitt—The horse was in very good condition when turned out, and was not lame. Christie, stated that he knew the horse in Charleston, and heard Mr Godfrey offer .£39 for him. "When I saw him about six weeks ago, he was a little strained and lame in tho fore feet.

David Howell, sworn—l am one of the defendants. I was at Long's on the 14th. I took tho horse away and rode it about 300 yards. I saw no one else use the horse, and I left it on the track. T did not see him fall whilst with me.

By Mr Pitt—l swear the horse did not fall, and I was not the cause of putting his shoulder out. When Harvey oame to me first abont it, he wanted .£7O for the damage. The horse -was lame when I first got on his back. By the Court—l offered the plaintiff £2O, rather than bring my mates down to Court. James Howell, brother of the last witness, said—l never touched the horse. I left Long's before my brother. I never saw the horse imtil I got on to the terrace. By Mr Pitt—l did not notice the state the horse was in.

Mr Pitt then addressed the Court for tho defence, and argued that do damage had been done to the horse by his clients, and that he was lame before he was ridden. He then called

Malcolm Stevenson, -who said, I am the proprietor of the track to the Caledonia. I know the horse in question. 1 saw Harvey leading him ; he was then very lame that -was about six weeks ago. Constable Pringle stated that he knew the horse, and saw him about six weeks ago; he then was gone in the shoulder, and in bad condition. On the 17th February I saw him again, when he seemed in better condition, but was more lame. Adam Porter deposed that a month ago the horse was not fit to work. Mr Tyler then addressed the Court in support of his case, and the magistrate then gave

judgment. Ho said the only question he had to consider was, what amount of damage had been done ; and he thought the plaintiff had only just proved that the horse had sustainod some damago by defendants' riding him ; lie then roviewed the ovidence and said in the absence of any proof of material damage, he should give judginhnt for plaintiff for £O, and costs.

SI'KNCE BKOS. AND CO. V. JOHN NICIIOL9ON. Mr Pitt for the plaintiff. Mr Tyler for the defendant. The defendant paid J250 into Court. This was a claim for .£97 odd for towage of the schooner Escort, of which Nicholson was the captain ; by the Southland. John Kirkputrick sworn, said—l am the captain of the Southland. I remember the arrival of the schooner, Escort, on the 15th. On the 16th I steamed over the bar in the Southland; the morning was then very calm. I went alongside the Escort, and I asked Captain Nicholson if he would tow in. I told him I was not sure about the water on the bar being sufficient, but I would sound as I went back, and would come back in the afternoon's tide and take him in and out for 15s per ton. He offered me £SO and I said I would not take it and left him On landing I had an interview with Mr J. Can, a partner of P. F. Smythe and & Co., and I told him the Escort was outside. I then told him what the captain had offered me. and of my refusing to take less that 15s per ton. We then went to Mr Spence, and he refused to let me tow for less than 15s. Carr than suggested that we should go out again and see the captain. 1 got up steam again and went out; it was then blowing a gale of wind. I went alongside and asked the captain if he would tow in. lie asked me what lvater there was on the bar. I told him more that 10 feet, and then said look out for my heaving line if you are coming. I then ordered the heaving line to be thrown on to his deck, he took it and hauled in and made fust my hawser to his vessel. Mr Carr was on the bridge with me, and he asked me if the captain and I undersrood the terms of towage. I said "Yes," I told him in the morning. I have since towed him over into the Lagoon. Our invariable charge is 15s per ton for vessels over 40 tons. By Mr Tyler—l have not towed the Escort out yet, but am ready to do so as soon as she is fit lor sea. By the Court—Our charge for towage is 15s per ton. We have towed small vessels out for less, and vessels of over 40 tons, regularly trading on the coast, never foreign vessels.

W. P. Hargreaves, the mate of the Southland, corroborated the captain's evidence in every particular, and added that Captain Nicholson himself helped to make their towline fast.

Thomas Watson, in the employ of Spence Brothers, deposed—l know the Escort. Her r gistered tonnage is 130 tons. She has been towed in before by one of our tugs. The Lioness charged her 15s per ton in and out. i'he towage dues are always paid before the vessel leaves, or else the agent guarantees the payment.

Carlisle, the engineer, gave exactly the same evidence as the captain and mate. Thomas Parry gave no material evidence, and Mr Pitt said this closed the case for the pro; ecution.

Mr Tyler went over the evideace, aud called the following witnesses in support of the defence :—■

Captain Nicholson, deposed—l an captain of the Escort. On the Southland coming alongside, Captain Kirkpatrick said, in answer to my question, that there was nearly ten feet of water on the bar. This was at 4 a.m. At 6he cane alongside again. I asked hirn his charge for towage, and he said 15s per ton in and out. I then said how is it you charge me more than other vessels. I said I will give you £SO, and no more if I lie here for a month. He then steamed away. He came out again in the afternoon. I then commenced to heave up my anchor. 1 said how much water have you, and he said more that 10 feet; take hold of that heaving line. I thonglit he had agreed to my terms when I saw him come ont. I had made preparations to stop outside if he had not taken me for the £SO.

Mr Pitt objected to any evidence being given as to any offers made by other steamer's agents to tow defendant's vessel in at less than 15s per ton. Mr Tyler therefore called— Jacob Wagner, a passenger by the Escort, who corroborated Captain Nicholson's evidence as to the offer made by him to pay £SO, and no more.

John Mayo and Wm. Ellis, also passengers by the Escort, gave further evidence corroborative of Captain Nicholson's evidence. Philip Butler also gave similar evidence. Griffith Jones, mate of the Escort, merely repoated the evidence of the Captain and the passengers, and Mr Tyler then addressed the Court for the defence.

Mr Pitt replied, and The Magistrate said that he had no hesitation in giving judgment in this case, as no contract was made by either party, which was either understood or agreed to by both ; he should, therefore, only have to consider what was a fair and reasonable charge, and the evidence before him was all on the one side with regard to this, and proved that 15s per ton had been paid by the Escort before. He gave judgment for plaintiff for full amount claimed and costs. HAJZELL N. HICKEY. In this plaintiff sued for amount of goods supplied to defendant. The magistrate disallowed a few items, but gave judgment for .£24 18s 3d and costs. The Court then adjourned until 10 a.m. this day.