DISTRICT COURT, HAMILTON.

Waikato Times, Volume XII, Issue 1005, 30 November 1878, Page 2

DISTRICT COURT, HAMILTON.

(liofore Hia Honor F. D.'Featon, Eaq., Judge.) ?i NovaMßßa 28 raj 1878. Beauchamp v. Seddon. Judgment. Messrs Whitaker and O'Neill for defendant; Mr W. M. Hay for plaintiff. In giving judgment in the above case, which was heard last Court day, claim, ,£SO for a dog shot by defendant, His Honor decided that the defendant was perfectly justified in killing the dog, being at large in an enclosure in which there were

sheep. The question arose, whether defendant, not having pleaded the defence, as it was a statutory defence, could benefit by it. Right, justice, and Jaw was on his side, and he, the Judge, did not feel inclined to be bound by the words "statutory defence" to give an adverse verdict, in the face of equity. He would therefore give judgment for defer* danfc, with costs £4 lis. ,- *" Mr Hay, on bahalf of plaintiff, gave notice of appeal. Reynolds v. Haddon. Messrs. Whitaker and O'Neill for plaintiff; Mr Hay for defence. Claim .£6O, for damage done to goods while in defendant's charge as a public carrier.

Andrew Hddon, sworn, said he was a bush man, residing ab Taupiri, I agreed t) take up grass seed, &c, for plaintiff, at the rate of £1 per canoe load. I made the contract for myself and brother, and we received 30 bags of grass seed for transmibion.

Henry Reynolds, deposed : I am manager of the Swamp Company. I confracfced with the brothers Haddon, to carry such gi'ass seed as required, to be delivered at 153 per ton at the Company's landing, on the Mangawarra creek. They were not delivered at the upper landing 1 on account of the lowness of the river, bat four miles lower down.

To Mr Bay : There is no shed afc either landing. The weather was very fine, and the niter the bags were carried was quite dry. I do not know whether the goods were delivered iu good order and condition. The contract was to cairy by water only. The Haddons were to deliver them on the landing. Th-i grass seed was not made use of, but was thrown away. Clark is my foreman for that part of the property. He has authority to direct when goods shall be brought up. Leaving grass seed out for a whole night's raiu would injure it very little. If a sack of grass seed were put in water for a quarter of an hour it would be injured, it would grow if sown immediately. Louis HaddoD, sworn : I was in. the canoe when the grass seed was taken up. We ran on a snag ; some water came into the canoe and wetted the grass seed. I took it ashore afc once, and got a canoe within ten minutes. The creek wasdeop where we struck the snag ; T am accustomed to navigate the creek. I baled the canoe out and re-loaded it. We landed the sacks where ordered by Mr Clark. Having landed them, we went home ; we met young Drabblo on the way home and told him of the accident. We did not give notice to Sir Clark. Mr Keynolds was in an other room of the same house I went to. We did nob give him notice. J. P. Clark, deposed : I am manager for the Mangawara end ot the Swamp Company. I got no notice from defendant of the grass seed being injured. The seed was wet and mildewed when I saw it on the third day. It was not fife to sow. T opened the bags, got what dry seed I could and threw the rest away. One night's rain would nob so have affected the seed. I value each bac* at about £2. °

To Mr Hay : I did not tell defendants the jrrass seed must come up rain shine. I threw the seed out. I sowed the dry bags. I don't think two nights would so injure ic—a f heavy rain of a few hours might do so ;"being in water ten minutes would do so. T don't think a bag of seed would get wet to the centre m that time. Re-examined: There was a portion of the night rainy, but not sufficient to sause the damage. Robert Drabble,. faim?r, was workinc at the Mangawara on the 9th April last. I recollect their delivering the grass-seed. When I saw it in the Company's shed on tlie 11th, the bags of seed were wet .We could not dry it. It was not then fit to sow. There was a little rain the night it lay at the lauding, but not sufficient to wet the seed as it was wetted. Both defendants entered into the contract with plaintiff. I got no notice that the seed was damaged. I heard of it from my son on the 10th. The bags went on the morning of the 10th to the shed. To Mr Hay : Ic was examined the same day, and wheeled away as rubbish. It AVas on the 9th the goods were taken up. Some of the seed thrown away is growing William Lovell deposed to delivering 30 bags of grass seed to defendants on or about the 9th April. To Mr Hay: It rained heavily during the night of the 9th. . Grass-seed left out in bags that night would have been seriously damagod. As soon as the sack got wet, the rain would continue to run into it. Re-examined: It might be raining hard at Taupiri, and not so hard where the grass-seed lay, seven miles oif. To the Court: The seed was all right when I delivered it. Mr Hay, for the defence, called Andrew Haddon. My brother was never a partner of mine. I did not make the agreement conjointly with him. I made the auTosment, leaviug_ it to my brother to help Tno, for wages, if ho. would. I (ia not pursue the business of a carrier. I nuyor advertised tu> tt carrier, 0 r

held myself out to the pubhcagarner I-did'this for Mr KeynoWs, jj«9£* favour than anything else. Mi Ua k, 0 i the 6th, asked mc to take this lot of grassseedup if it was hnc -He saia it ™ ... f £ lauding. The 30 bags was not an metload i£ the canoe **-•*£££ j. wovua «it j took in some water, canoe listed over, and too*. , remaining so ahout a Ten bags°at *ho bottom of ca n° e %t wet,' leaving 20 bags dry. I had only 30 bags in it The wetting it got, would not penetrate to the heart of the bags. 1 shifted them into the other canoe immediately. Going up, we met young Drabble. His cart and horses were at the landing. He said he would return m an hour, but did not till next day. We left the bags on the bank, and put two spare bags on the top. It rained very hard that night. It rained steadily for two hour?, and again at sunrise. Twenty of the bags, when placed on the landing, ware perfectly dry. We informed Drabble of the accident, when we met him, as we were going up. I have not been paid by Mr Reynolds for the carriage. The rain was sufficient to penetrate into the bags. To Mr Whitaker: It was on the Tuesday I met Mr Drabble. The bags were not mora than five minutes in the water. ?% brother swam ashore, ran a mile, and Saddled a canoe a mile up to the place efcruok. (A letter was handed in, writtent by A. Haddon, in his own and brother's name, in reply to the claim for damages.) To the Court: I knew the snag well. I have often been on it.

Louis Haddon deposed to being present at an agreement made •with plaintiff, to take goods up the creek. I told him my brother owned a canoe, but I did not. I never was in partnership "with my brother. It lay to my option -whether I joined -with my brother in this contract. Mr brother agreed with Mr Beynolds. Clark, on the Gth or 7th, ordered us to bring up the grass-seed, rain or shine. I declined to have anything to do with the contract, as the price was too low. JMy brother paid me wages to assist him. "Witness gave similar evidence as last witness, as to the accident, &c, but stated he kept a sharp look out for the enags. He kept the usual course in going up creek. When I swam ashore, and fetched Lovel's canoe, I was away, perhaps, a quarter of an *iour. Ten sacks only were wetted. The rest were perfectly dry. There were not 45 bags of grass seed, there was only 30 bags. We took 15 bags up the day after, and landed them at the same place. 'J he 30 bags had then been taken away. A month after, I saw the same grass seed lying about Drabble's place, and growing, matted together with shoots six inches long. Witness wan put through a searching cross-examination by Mr Whitaker, and contradicted his former statements as to the distance of the accident from Taupiri, and the damage likely to bo done by water.

To the Court: When we took up the lu bags, the 30 bags had been taken away; this was about 3 p.m. the day after.

Albert Wallford, sworn, deposed : lam a settler on the Mangawara Creek. On the Bth April last, I heard the men landing something about 7. p.m. I saw the grass-seed there at six o'clock next morning. It had been raining heavily during part of the night. Aa a skilled farmer; I think the seed would not have been damaged if sown within three days. I think enough rain fell to penetrate through the bags. It could have been {■own by hand when wet, but would be more trouble to sow than when dry. Cross-examined: 30 bags would sow 130 acres if it had clover seed with it; a bag will sow between four and five acres. The land .would have to be ready if the seed were to be sown within three days. Benjamin Stubbings, a farmer at Taupiri, remembered the delivery of the grassseed at Walford's landing one evening. Could not remember whether it rained that night. Such rain as fell to-day would penetrate a good distance into the bags. Loose bags placed over the bags would save them to some extent.

Mr Hay denied liability, as defendants did not undertake the duty as common carriers, and that ordinary care, such as is requiied from private carriers plying for hire, had been used. Plaintiffs, too, he urged, were guilty of contributory negligence. Mr Whitaker denied that it had been ever alleged that defendants were common carriers. His client relied on a special contract, and argued that ordinary care had not been exercised by them. The Court thought the matter was simply one of contract, which ought to have been carried out. The goods had been damaged, and somebody must be liable. The Court thought that, knowingthe snag well, defendant' ought not to have got on it. He could not, however, go the whole length of the claim. It was evident that, at the time of landing, only ten bags were damaged, the other damage arose from no fault of defendant. The ten bags must be paid for by defendant, to the valuo of which, £2O, the Court would give judgment. The Court would, not certify for costs. Mr Hay applied for costs, on account of Louis Haddon, against whom no case had been proved. . .TV. Cumming v. J. Canning.—Claim, J»4565 9s 2d, for beer supplied. Mr Hay for plaintiff. There was no appearance of defendant, and the Court gave, judgment for the amount claimed, and cost, £5 2s. McGrlynn v. Jaggar and another. — Claim, £6O Bs. Mr George for defendant, Mr Whitaker for plaintiff. This was purely a question of accounts. Defendant proved a, set. off of £2l 9d, and judgment was given for plaintiff, for £29 7s 3d, with costs, £ll 17s.

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