RESIDENT MAGISTRATE COURT.

Westport Times, Volume IV, Issue 726, 20 October 1870, Page 2

RESIDENT MAGISTRATE COURT.

Tuesday, October 13. (Before J. Giles, Esq., R. M.) CIVIL CASES, "VV J. Mailer v. Sykes. No service having been effected the summons was further enlarged. Simpson v. Temperly,—claim for £1 for coach hire. Mr Pitt, for plaintiff, stated that the action was brought to recover £l, being the return fare to the Half-way House and back. Ho would not anticipate the defence but would call the plaintiff, who would prove that for the purposes of the present action he was the proprietor of the coaches.

James Simpson: lam the plaintiff in this action and know the defendant. On the 30th of September last I was conducting the lino on my own account, and keeping an account of the proceeds of the business. I saw the defendant on the 30th, and he travelled by the coach from Westport on that day, meeting the return coach on this side of the Totara. Half-way and back are equivalent to a full fare, 20s. The defendant did not pay his fare aud he was charged in the weigh-bill. Mr Limbrick, in my employ, makes out the weigh-bilis ac this end, and the driver, at the other end ; Mr Limbrick made out this particular weigh-bill in which the dei'endaut is charged 20s. By the defendant: I cannot swear to the day of the week or month from recollection, but, on seeing the weighbill, I swear to the 28th being the day you travelled by the coach. Mr Home went down that day besides yourself, also one or two police. I "think I recollect both Sergeant Kiely and Constable Hunter goin<j by coach that day. Tou told me you had bought Mr Kiely's interest in the coaches, hut I declined to recognise you at all. There had existed a partnership at will between me and Kiely, but we had dissolved. Kiely was to have come, on the day you went by the coach, and pay the sum that had been agreed upon for my share, viz., £l5O and take over all responsibility. That was to have been done at 12 o'clock noon. I offered the same terms for Kiely's interest. That was the same day you said you bad bought Kiely's interest. Kiely and myself have submitted our affairs to arbitration. Kiely was in gaol when he signed the agreement to refer to arbitration. I paid the amount of the warrant to release Kiely from prison. I told the driver of the return coach, in your presence, to collect your fare. By Mr Pitt: T\Te have submitted our affairs to arbitration. I have carried on the coaches myself since May 20th, 1870, when a notice of dissolution was advertised. Kiely, lam aware, knew of that notice. Mr Pitt said that was the whole of the evidence he should desire to call at present, further witnesses could be produced, if the defence set up should require their being called. John Temperly stated that he was the defendant, and had been sued for a return passage by the coach on September 30th. He would swear, most positively, that it was on the 28th that he went down. He had purchased Kiely's interest on the 28th, and tho latter went with him and gave up possession. Simpson was present at the time and witness told him that he had bought Kiely out, Kiely corroborating tho statement. Simpson commenced cursing and swearing.

By tho Bench: The cursing and swearing would amount to a repudiation.

By Mr Pitt. Simpson said, on the road, that I ought to have said I had bought out Kiely before I started. I did not cross tho Buller by the passenger boat. No further conversation took place. I produce a sale note for £l5O bearing Kiely's signature. I paid a deposit of £ll cash, and the balance was in bills at 3, 6, and 9 months—being one £36 and two £SO bills. The money was paid in Mr Martin's presence. The money was given to Martin and he still has it I suppose. I read the sale note over to Kiely before he signed it. it was signed on September 30th. I did not ask Kiely for an authority to draw the money for carrying the mails. I am not aware that Kiely refused to sign such an authority. I gave notice to tho Postmaster not to pay £45 without my authority. I did not go on the 25th September to take possession on Kiely's account. I accompanied Kiely. He turned the horses out of the stable.

The defendant then called Cooper, the acting bailiff, to prove that it must have been prior to the 29th of September that Kiely had «iven the defendant possession. Cooper stared in evidence that he had arrested Kiely on the 29th and lodged him in gaol, but he could not say where Kiely was on the 30th of September. John Martin : I am a storekeeper. I recollect the 28th of September. I was witnesss to a sale note that day between Kiely and Temperly. By Mr Pitt: There was no cash paid at the time. A cheque was given for £l4, at least I cannot say it was a cheque, as it was not drawn on any bank. I think it was a draft, but I cannot say upon whom it was drawn. It was, however, understood at the time that it was to be regarded as cash, and the amouut was paid some few days after. I cannot recollect the exact day. By the defendant: I agreed to be responsible for the money, and I accepted your undertaking" to make good the draft.

Mr Pitt asked leave to call further evidence, and produced James Kioly, who stated: I was in partnership with Simpson. I signed the sale note produced at Temperly's request. I never read it, and it was not read to me. I received no money. All Icanrememberwas a scrap of paper on the counter. I do not know what it was. I recollect signing a submission to refer matters to arbitration on September 80. I remember seeing a notice of dissolution signed by Simpson, in May last. By the defendant: I did not read tho sale note. Martin might have read it, r.nd I- believe he did read something. I do not recollect Martin stopping me from signing until the business had been fully explained. Mr Pitt said that the plaintiff was prepared to admit that there was an error as to the date. Temperly was debited on the 30th September, but the service had been performed on September 23. He should ask to amend the account. His Worship did not think he could consent to an amendment at that stage. G-. W. Lirnbriek: The weighbill of September 30 is in my writing. I was instructed on that day to debit Temperly. Temperly did not book in the Westport office, or go over in the passenger boat, on September 28. I always see the boat off, but do not start the coach on the ot ier side of the river. Any passengers might join the coach on the other side of the river, and I should not know it for between one and two days, or longer if a Sunday intervened or communication was stopped by bad weather. Mr Pitt having addressed the Court His Worship gave judgment. He was of opiuion that the charge having been made for a service rendered on September 28 th, and evidence given by tho plaintiff directly proving that to have been the date, that he should not be justified in allowing the bill of particulars to be amended. But there was an additional reason that should induce him to give judgment for the defendant, and that was the absence of any express contract. It is very true that an express contract in ordinary cases would not be necessary, that it would be implied ; as it could be contended that no person had a right in a public conveyance except as a passenger. But ho did not think that this was an ordinary case. The defendant had notified to the plaintiff that he c'aimed a share in the coach, and it appeared that the plaintiff had permitted, the defendant to exercise any imaginary or real right he possessed tbat is to say, he had suffered him to ride in tho coach without prejudice to himself in any future action with respect to the ownership. The judgment would be for the defendant.