RESIDENT MAGISTRATE, COURT.

Westport Times, Volume V, Issue 792, 23 March 1871, Page 2

RESIDENT MAGISTRATE, COURT.

Westport, Tuesday, Mabcii 21

(Before J. Giles, Esq., E.M.)

Renewals publicans' licenses were granted to John Derunga and James Grant.

The application of Timothy Gallagher for an accommodation license, for a house situated at Addison's Flat, was struck out, owing to the applicant not appearing. "William Turner, who had applied for a license for the Niagara Hotel, Palinerston-street, requested permission from the Bench to withdraw the application,- in consequence of some difficulty having arisen with respect to the transfer of the lease of the property. His Worship, in granting the withdrawal of the application, said that the present application had- been objected

to by several parties. He wished it to be known that it was the first application for a license in Westport that had been objected to. CIVIL CASES. M'Phadden v. Hendorson—Claim for £3O for goods delivered. The defendant admitted the liability and produced a " Gazette " notice of insolvency to bar execution. His Worship informed the plaintiff that the insolvency of the defendant would not deprive him of judgment, although it would not be likely to prove of much service. It would rest at the option of tbo plaintiff [whether .he proceeded to have judgment entered up against the defendant. The plaintiff preferred to obtain judgment, which was accordingly entered for the amount claimed and costs. M'Enroe v. Honderson.—Claim for £B. The circumstances of tho case were similar to tho preceding one, and judgment was confessed for the amount claimed and costs. Powell and Co. v. Donlan.—Claim for £9. Judgment for tho plaintiffs by consent in the amount claimed and costs.

Donlan v. Byrne.—This was an action to recover tKe sum of £SO for alleged damage caused by the defendant having illegally taken possession of a horse, a quantity of plush and other articles, necessary to the plaintiffs in tho working of bis claim, situated at Addison's Flat.

Mr Pitt for the plaintiff, and Mr Home for the defendant. Mr Home desired to direct the attention of the Bench to the fact that an action grounded on the same cause of complaint had been tried in the Warden's Court when the present plaintiff was nonsuited with costs. These costs had not been paid. Ho would respectfully urge that a rule ia accordance with one in tho Superior Courts might be very beneficially established, excluding a plaintiff or defendant from incurring furtherjcosts until the previous costs had been satisfied.

His Worship was of opinion that such a rule was both just and convenient, althougfi he was not prepared to state that he had the power to establish it. The present case, however, differed, inasmuch as the costs referred to had been incurred in the Warden's Court, while the present action laid in tho Ecsident Magistrate's Court. Whatever rule might be established in respect to the rehearing of a case in tho same court, he did not think that it could be made to apply to a case tried in the different Court. The plaintiff had mistakeu his remedy in bringing the case into the Warden's Court and was nonsuited, but the question of previous coul! not be entertained no\i that the case had been brought into the Resident Magistrate's Court. The plaintiff was then sworn and stated that he was one of a party of five holding a claim at Addison's Flat. He bought into the clam on Januajy 2nd. On Monday, tho 13th instant, about 8 o'clock a.m. he went to tho stable at the rear of defendant's premises for the purpose of getting the horse. Defendant asked him whither he was going, and stated that ho had taken possession of all the things. Tho property detained consisted of a horse of the value of £2O, 18 yards of plush worth £lO lGs, a truck £2, and four bags of horsefeed, worth £3. The balance was made up of damages caused to the plaintiff who had been unable to work his claim in consequence of the action of defendant. Witness then went away for the pur-' pose of taking legal remedy. Mr Home contended that the plaintiff must be nonsuited in consequence of informality in laying the action. Tho defendant was sued for damage causedjby withholding certain property, and the action is brought in plaintiff's name only, whereas, there were four other parties whose names should have been insorted.

Mr Pitt replied, stating that the four remaining shareholders had abandoned the property, which consequently became vested solely in the plaintiff. Even assuming that these parties had not abandoned the property it was competent for the plaintiff to sue as a bailee. Mr Home in reply said that the plaintiff had distinctly stated in evidence that he was one of five shareholders, and not a word had been said about his being a bailee. There was no proof whatever of the alleged abandonment. If it were the case that the men had gone away, they might very reasonably have taken advantage of the dry weather to visit some portion of the district for a few days. His Worship stated that he would take a note of the objection, but would prefer to proceed with the case. Miles M'Phaddeu, storekeeper at Addison's, stated that he had supplied Donlan and party with goods. Witness heard Byrne say that he had taken the horse and other articles. Witnesa replied that he had no right to have taken the plush,' as witness had supplied it to the party. He valued the horse at £lO.

James Towell, storekeeper, Westport, was called to prove the value of the horsefeed. It had been forwarded to the plaintiff on the 12th instant, and was invoiced at £2 ss. The packing would cost 17s 6d extra. The goods wero supplied to the party, and were entered to Sands and party. Mr Pitt then called the defendant. Mr Home objector!, as the defendant had not been subpoenaed.

His Worsbip said that any person in Court could be called to give evidence, although not subpoenaed. Mr Homo would contend that the course was most unusual, although one constantly adopted by the plaintiff's counsel. Tho defendant was then examined. Ho stated thai ho had taken possession of all UB articles excepting tho truck. done so in consequence of being instructed by a porson to do so. Shortly after daybreak on the 14th he was awakened and told that Sands and party wore going, and if be wanted to get anything he bad better take possession of tho things. There was another person present when that was said. Witness immediately jumped out of his bunk, but the party had gone. He could not say who he was, but assumod that he was ono of the party. Duncan M'Lachlan, carpenter, stated that he was asleep in a bunk below Byrne. He was awakened shortly after daybreak on the 14th instant by some person calling to Byrne. The party said that some diggers were off, and that if he wanted to get anything, he had better take possession of the things. He did not see the person, and did not recognise tho voice. He Ifcew two of Donlan's party. Counsel then addressed the Bench, and judgment was reserved until the following Court day.