RESIDENT MAGISTRATE COURT.

Westport Times, Volume III, Issue 564, 7 October 1869, Page 2

RESIDENT MAGISTRATE COURT.

Monday, Oct. 4. (Before J. Giles Esq., E, M.) CIVIL CASE. TVOOLFE V. FRF.ETH. In tbis case the plaintiff was Wallace Woolfe, lately of the London Butchery, Westport, aud the defendant was Isaac Freeth, of the firm of Freeth and Greig, cattle importers. The claim was for £GO, the value of a butchering plant and other fittings. The particulars of demand contained two counts:—lst: That, incon-sidera*ion of the plaintiff delivering to the defendant these goods to be kept and taken care of by the defendant, to secure payment by Alfred Smith of a bill of exchange, drawn by the plaintiff upon and accepted by Smith for £GO,and on payment thereof to deliver the goods to Smith,and in the event of the non-pay-ment at maturity to redeliver the goods to the plaintiff on request, the defendant promised the plaintiff safely to keep and take care of the said goods, and to deliver the same on payment of the bill to Smith, or on nonpayment thereof to deliver the goods to the plaintiff on request; and afterwards tiie plaintiff, the bill not having been paid at maturity, requested the defendant to redeliver to him the goods, yet the defendant, a reasonable time having elapsed, did not redeliver the goods, whereby the same are lost to the plaintiff. 2nd: That the defendant, by fraudulently representing to the plaintiff that the defendant would safely keep and take care of certain goods, to secure payment by Alfred Smith of a bill of exchange drawn by the plaintiff upon and accepted by Smith for £6O, induced the plaintiff to forego taking other security for the payment of the said bill, yet the defendant did not safely keep and take care of the goods, but fraudulently caused the same to be seized and sold in execution, whereby the plaintiff has wholly lost the goods and his security for the payment of the bill. The plaintiff was not represented by counsel. JFor the defendant Mr Pitt appeared.

The Court was for several hours occupied with the hearing of evidence, the witnesses examined, besides the plaintiff and defendant, being Messrs Draghicavich, TTranck, Suisted, Cooper, and Limbrick.

Mr Pitt contended that, upon the evidence, the first count had evidently broken down. As to the second, it was about as weak a count as could be put on record. The evidence was altogether deficient, and the plaintiff must be nonsuited on each of them. He considered the evidence justified the action being described as an afterthought or " trial " on the part of the plaintiff, or, at least, the result of his own bad business habits.

The plaintiff, who was complimented by Mr Pitt upon the intelligence with which he conducted his own case, addressed the Court iu reply. He had had large transactions with the defendant, having probably paid him £60,000, and he had faith in the defendant's integrity of action towards him. There might consequently have been less precision in their business arrangements, but he contended that the whole surrounding circumstances proved the case he put before the Court, and it would have been*more fully proved had the evidence of Smith been forthcoming. The Magistrate said: In this case the patent facts are that in July last the plaintiff sold the goodwill and interest in the business of the London Butchery to one Smith; that he took Smith's acceptance for £6O for the plant; that this transaction took place in the presence of the defendant and Mr Draghicavich ; that, after that, this bill being dishonored, the defendant sued Smith for money due to him, and seized this plant in execution, having prior to that obtained an assignment of tbe same plant forother money due to him. With these facts the plaintiff attempts to connect certain conversations and so on, the object of which is to show that the defendant undertook a certain responsibility at the time the arrangement was entered into, and that, having taken possession of these goods, he is responsible for the amount. Of course, if it were shown that the defendant was a party to the transaction by which the goods were left at tbe Butchery as security for the money, or that he conveyed that impression—so that there was an honorable understanding among the parties that they should remain till the money was paid—the fact of his having "afterwards taken these goods would be conduct very injurious, in the ordinary sense of the term, to the plaintiff, and conduct of which he might rightly complain. But it is one thing to say that such conduct exists, and another to say that it is actionable. We must look to the facts. This bill of particulars lays out two separate counts, in consequence of certain legal difficulties. The first I take to be an allegation of bailment—that is to say that the defendant received into his custody certain goods, and, having them so in his charge, he failed in the undertaking he made. If that were made out he would be in the position of a gratuitous bailee, who would be bound to take reasonable care of the goods. The second count is that the defendant fraudulently represented that he would keep and take care of gooc*s in ore'er to secure payment of his money, and that, by so doing, he induced the plaintiff to forego taking other security. In that case it would not be necessary to show that he actually took them into his custody, but that he had undertaken something concerning them. It alleges a fraudulent representation, but I do not think that there was any fraudulent representation. It amounted to merely a promise. If he did promise this, what was the consideration for it ? It is very difficult to find a consideration for such a promise, but the only thing that could be so interpreted would be the refraining of the plaintiff from taking other security. What has to be considered is if there is evidence that the defendant contracted either one way or the other. Did he euter into a contract, or put himself in the position of a bailee ? As to the bailment it is quite clear in the first place that these goods were left, not on the premises of the defendant, but on the premises of Smith. If there were any bailment at all to the defendant, it must he constructive, and it must have the very strongest evidence to support it. The only evidence is that of the plaintiff, and I do not consider it is sufficient. Neither is there, in my opinion, sufficient evidence of the defendant's contract, even if we could get over this difficulty of a consideration. Tbe utmost it amounts to appears to he this—that the plaintiff was under the impression that Mr Freeth had in some way aided in bringing about the understanding that these goods were to remain as a security. Perhaps Mr Freeth might have made some remark calculated to lead to such an impression. But, whatever interpretation might have been put upon his words, certainly there is no contract to hinge upon ; and that is the foundation of the case. Therefore, I have not the slightest doubt that the verdict of the Court should be for the defendant.

Tuesday, October 5. Thomas Dewdney was charged, on the information of Elisabeth Anderson, -with making use of insulting and provoking language, and the informant asked that he should "be bound over to keep the peace. The defendant asked for an adjournment, so that he able to- adduce evidence on his own behalf. Inspector j ■ stated, • that- the informant complained 'of porsiaent annoyance

and provocation, extending oter a period of several months, and, from the defendant's conduct hitherto, she was in serious fear of being assaulted by "him. The Magistrate said that, if the complainant made that statement, he would consider it necessary to put her at once on her oath, unless the defendant was willing to enter into his own recognisances to keep the peace towards her until the day when the case should be heard. On that understanding, the case would be adjourned. The defendant expressed his readiness to enter into recognisances, and the case was adjourned until Friday week.

CIVII, CASES. Stitt Bros. v. London Bros.—A claim fur £6 Is, balance of an account. This was the third time the case had come before the Court, are-hearing having been granted on the application of the plaintiffs, and an adjournment on the application of the defendants, who are stor/ucsepers at the Caledonian Terrace. The dispute was as to the receipt of some goods—eggs, herrings, and paper. The plaintiffs produced evidence of the goods being sent out from their store, along with the packer's receipt, and the defendant's receipt to the packer. The defendants alleged that, though the way-bill happened to be signed, when the goods were examined, the eggs, though equal to the weight charged, were deficient in number, having been packed in salt. An other package was received, but not the goods charged. There was associated with the hearing of this case a large amount of matter irrelevant to the issue. The result was a judgment for the plaintiffs for £5 Is. The Magistrate said that, on the last occasion, there was a claim set up by the plaintiffs for £1 paid to a packer on behalf of the defendants. The question as to the liability of the defendants for such an item was not then distinctly raised, and now the item was abandoned. With reference to the other items, the receipt of the defendant should weigh very strongly. Although a receipt was not a final or conclusive thing, if this receipt were given under such a mistake as the defendants alleged, it showed gross negligence on their part in the receipt of goods, and must shake reliance on their evidence. The evidence for the plaintiffs was much clearer, and he must hold that the items had been received. About the delivery of the eggs he had some difficulty, but he thought the case for the plaintiffs was better substantiated than that for the defendants.

Adams v. Kennedy.—A claim for the value of some underclothing not returned to Nelly Adams, a "young lady " living at the Theatre Royal, by Mrs Kennedy, professional washerwoman. The Magistrate gave judgment for the plaintiff. There had been a previous cross-judgment for the same amount as was claimed, and for washing which had been done by the defendant in this case. De Loree v. M'Coll.—The defendant, who was summoned to show why he should not satisfy a judgment against him for damages done by him to the plaintiff's property at the Caledonian Terrace, promised to pay at the rate of 7s per week. The plaintiff accepted this, and said he would pay the same into the funds of the Hospital.