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LAW COURTS.
Mount Barter Iiocal Court.
Tuesday, Januaby 13.
[[Before Messrs. O'Halloran, Weld, and
Williams, J..J.P.]
A DISPUTED ACCOUNT.
Dalley v. Keabnax—Claim for £20 6s,
balance of account for goods sold and delivered.
Mr. von Doussa for plaintiff; Mr. Acraman for
defendant.
John Dalley, storekeeper, Kanmantoo—Know
Kearnan (defendant) and his son. The defend
ant- had goods to the value of £20 6d, new sued
for. No portion of the balance has been paid.
Cross-examined—The account for £18 12s 21d !
has been rendered repeatedly. Mr. Sex! on
delivered it. Did not sue young Kearnan for the
account. Applied to him for payment on
recommendation of his father. Never supplied any
item of the account (£18) to Thomas Kearnan, I
jun. (Mr. Acraman subjected the plaintiff to a |
long cross-examination on the various items in his |
account.) I
Tins concluded the case for the plaintiff.
Mb. Acbamaw applied for a nonsuit as plain
tiff was not able to swear that the goods were
actually soid and delivered. The S.M. said
plaintiff swore to the delivery, and defendant
would have to call evidence.
Thomas James Kearnan, contractor, Kanman
too, deposed My father was acting as my agent
when the goods included in £18 12s 2id were
bought. He was my overseer on a contract 1
was carrying out in 1S79. Mr. Dalley rendered
me an account for £18 12s 2£d at Springtonsome
years ago.
Cross-examined—My father and mother were
at Callington, and I was in the North when the
goods were supplied. My father was managing
for me, and I came down once a fortnight. My
father and I were in partnership about 12 or 18
months prior to opening this account. Never asked
Dalley to send me the account, nor did I ask my
father to see that, it was sent. I paid my father
for managing for me. I supplied father, mother,
and brothers with groceries during the continu
ance of the contract. I saw Dailey after the
contract was started with reference to opening
the account. Paltridge sued me on account of
Dalley, and obtained a verdict before my insol
vency.
Thomas Kearnan, defendant-, deposed—Dalley
never rendered an account for £18 l2s 2|d to me.
Do not owe Dalley anything. The bulk of the
articles were supplied at my place while I fetched
some bran and pollard from the shop. Dalley
knew the articles were for my son. Everything
that came to the place was for my son. My son
was supporting me at the time.
Cross examined—The goods -were used on the i
works I was superintending for my son.
Martha Kearnan, wife of defendant, deposed—.
Bought goods at various times from Mr. Dalley.
Paid him all we owed him. Was never in his ;
debt for more than £5. Have nothing to do
with, the claim of £20 6s. Paid cash for some
of the goods as I got them. Paid the original
account—about £5—by instalments, the last
being £1 Os 8i<i in 1882. Did not subsequently
have any dealings with him. Did not get receipts
for any payments but the last.
Mb.. Acbaalak said the case was evidently
trumped up against the elder defendant, and the
weak evidence of the plaintiff was altogether
uncorroborated. He could not identify his own
handwriting and was generally unworthy of cre
dence. Young Kearnan swore that he had kept
his father and mother when the debt was con
tracted, and that he was liable for it. Mr. and
Mrs. Kearnan gave similar testimony, and they
were borne out by the receipts produced. In cases
where plaintiff and defendant swore diametri
cally opposite things a nonsuit was generally
entered. In this ease the defendant was sup
ported by other evidence, and by the receipts.
He confidently asked for a verdict for defendant.
Mb. vox Doussa said that the case was not
" trumped-up" was proved by the fact that the
elder Kearnan's name was in plaintiff's books from
18*79- Had there been any arrangement by
which the son was to pay, it is natural to suppose
that the plaintiff would have preferred to enter
the goods against-the more substantial man. If
the general denial of indebtedness were to be
allowed to weigh ag dnst a tradesman's books, the
much-deprecated credit system must really stop
altogether for a business man would never be
safe. Young Kearnan having escaped liability
for bis own debts, wished to shield his fattier
also. This was a fiiial act which he hoped the
Bench wmild not countenance.
Nonsuited without c-osts.
THE MICE OF A BCT.LOCK.
Watts t. Pjaffobd.—This was an action in
which Luke Theophilus Watts, of Littlebampton
sued the Hon. Tinunas Playford, Commissioner
of Kail wars for £19 19s, the value of a bullock
alleged to have been killed on the Railway line
near Litllehampton. The plaint was as follows :
" The plaintiff sues the defendant as such
Commissioner as aforesaid for that the defendant
on or about- the 27th day of November, 1883,
suffered the line of railway from Adelaide to
Nairne at or near Littlebampton to remain
unfenced and unenclosed, whereby a bullock of
the plaintiff's, then lawfully being on the close
of the plaintiff adjoining or near to the said line
of railway escaped from the said close on to the
said line of railway and was killed, and thereby
lost to the plaintiff. And for that, the defendant
by his servants so negligently and unskilfully
drove and managed an engine and a train of
carriages attached thereto upon and along the
aforesaid line of railway on or about the date
aforesaid that the said engine and train were
driven, and struck against the aforesaid bullock
thereby killing the same, and causing the same
to be lost to the plaintiff, and the plaintiff claims
£19 19s."
Mr. Fleming appeared for the plaintiff; Mr.
Hay for defendant; while Mr. von lloussa
watched the case for Messrs. Walker & Swan,
Railway Contractors.
Luke Theopliilus Watts, storekeeper, Little
hauipton, deposed—Remember the opening of the
railway to Mount Barker. It was in November
1883. It was a Tuesday. On the following
Friday morning about 7.30 or 8 o'clock, in conse
quence of something I beard, sent up two of my
serv mts to remove my bullock. Saw the carcase
at home, but did not examine it. The meat
could not be used. Estimate the value of the
bullock at £20. They were more than half fat.
Saw Mr. Reid within two or three days of the
accident. He was resident engineer—Mb.
Hay submitted that what passed between
Mr. Reid and plaintiff was not evidence. Mb.
Feeming said Sir. Reid acted as agent for the
Government in connection with the railway. Tiie
S.M.—The proper course would be to call Mr.
Reid. Mr. Fleming— If the agency is estab
lished, it is precisely the same as if the
Commissioner himself were called. Mr. Reid's
words and actions bind the principal.—
Mr. Reid said he was afraid of an accident at
this place, and he had given Walker instructions
to fence. The line adjoins the paddock in which
bullock was, and he got in because fence was
down. The fence was put up three days after
wards. It was a Government mail train which
went down that morning. I delivered the mail
bags.
Cross-examined—The paddock adjoined tlie
railway and was well grassed. There were two
bullocks there. They were put in about a fort
night before. Sent a man every day to water
them and put them back in the paddock. Sketch
(produced) shows paddock. The paddock is the
Mount Barker side of ballast pits, immedi;;telv
behind Littleliampton. The bullocks were
watered at the creek, and it is not nceessurv to
cross the line to get to the water. The bullock
weighed 15 cwt. and the two were equal to a
team. Would have got £25 for the buliock when
fat. Got the carcase, carted it two milcB, and
threw it away. Got the bullock directly after it
was skinned. There was no time lost. Went, up
in the evening to see how the bullock got on the
line. Saw no tracks except the blood where he
was killed. Two panels of the railway fence were
capsized. It was leaning over very much towards
the embankment of the line. The paddock here
was rented by Mr. Monks, and had a light crop
of oats. Think it had been cut. There is an
opening from my paddock into that rented by
Monks. A man named McGrath was working on
tlie line. Do not know where he is. Believe he
is a ganger between here and Callington. Did
not think McGrath knew too much about the
case. Should not mind his being here to-day.
[In reply to the question " why was the action
not brought before? " Mb. Tj-ejiiitg asked to be
permitted to state that the Hon. C. C. Kingston
t'.w." A' tor:-vv - G??>era!) was firat emnloved in
merit. No reply had been received when he took
office in the present Ministry, and the cose was
transferred to Fleming, Boucaut and Ashton, who
again wrote to the Government last September.
Mr Fleming put in (1,) letter from Messrs.
Kingston and Kingston—dated December 4th,
1883—applying for compensation; and (2,) letter
written by Messrs. Fleming, Boucaut and Ashton
—dated September20th, 1881 - to the same effect.]]
Amelia, wife of Frederick Fleet of Littlehamp
ton—Remember Friday, November 30th, 1883.
Was a passenger hy morning train to Adelaide on
that occasion. Paid my fare to the guard. Knew
two large bullocks belonging to Mr. Watts. Saw
them at the side of the line that morning. They
started away at the approach of the train and ran
some di-stance in front. They came to a creek,
and jumped the fence. The white one got over,
the red one caught the fence and fell.
Cross-examined—We had fetched the bullocks
from Nairne for Watts. Recognised the bullocks,
having seen them worked repeatedly. Came on
the bullocks between Littlehampton and the
Junction. They were on the side of the line.
Was looking out of the window. Kuow Monks'
paddock. It was before the train reached it that
we saw the bullocks. The bullock attempted to
jump the fence before the paddock was passed.
Thomas Crocker, labourer, Littlehampton—
Remember Tuesday November 30th, when i
accident happened to a bullock belonging to Mr.
Watts. Saw the carcase on the paddock side of
the fence, caught in a wire. His horn was
broken. Tried to deliver him, but could not.
Tiiomas Fleet, laborer, Littlehampton—Was
sent to see a bullock on railway line on November
30th, 1883. Was sent to skin it. Its neck and
horn were broken, and its front leg was twisted
right round. This was just the other side of
Tara Farm.
Cross-examined—The bullock was in Mr.
Rounsevell's paddock. Believe Watts rented the
gr-jss. There was some wheat in the paddock.
Harry Paltridge, Auctioneer's Clerk—Hare had
experience in valuing cattle. Knew Watts had
two bullocks. Do not know which was killed.
They were each worth £17 or £18. They were
very large and very fine bullocks. Tried to sell
Watts another for £16; it was not big enough
or he would have had it.
Cross-examined—In November, 1883 bullocks
were worth 25s a hundred. These bullocks would be
worth nearly as much as workers. They were more
than half fat. Never sold a working bullock for
£20. It is exceptional to sell one for £15. About
£12 is a good price for an ordinary bollock.
[ Watts' bullocks weighed nearly loOOlbs., there
| wasn't much to choose between them. The hide
i would be worth about 30s. This is not counted
when butchers buy.
Mr. Hat asked for a nonsuit. There was no
evidence that the fencing was defective. The
j plaint contained two clauses. One was under
Clause 63 of the Railway Consolidation Act,
which rendered it compulsory for the Railway
i Department to make and maintain fences for pro
tection against trespass. The second was a plea
that there had been negligence in the management
of the train. The counsel for plaintiff had not
touched the latter plea, while there was nothing
to show that the fencing was not in' good order.
Ma. Fleming said Watts distinctly swore that
there was no fence. Beside which there was the
conversation* with the Resident Engineer, who
had promised to get it put up. The S.M. thought
Mr. Hay had better call evidence.
Thomas Walker, Railway Contractor, deposed
—On ^November 30th, 1883, the railway was as
ifc is now. A buHock could only get on the line
from the adjoining paddocks by jumping the
fence. There was no opening in the fence. There
was a live fence running to the wire fence. The
fence was complete as it is now. Know the
plaintiff—He had a sub-contract under me, and
turned his working bullocks on the line. There
was good feed on the railway. There is a level
crossing near the Littlehampton brewery, and
another higher up. One is a quarter of a mile
above, and the other a quarter of a mile below
the place where bullock was found. Have seen
cattle get over the cattle traps. There was a man
camped at the ballast heap close by. He was in
McG-rat-h's gang. McG-rath was there also. He
made a communication to me on the subject.
McGrath went away to Victoria at the end of
1884-.
Cross-examined—Got an order fram the Engi
neer that the line could not be opened unless
the ballast was fenced round. The ballast
formed part of the fence. Saw part of the
entrails of the bullock, and where the wires were
cut.
Re-examined—The fence and ballast heap
formed a natural enclosure. Shifted the fence back
as the ballast was moved.
Thomas Fleet, recalled, deposed—Saw the place
where the accident happened. A portion of the :
line was not fenced.
Cross-examined—Part of it was a ballast heap.
Cattle could not have got past.
Re-examined—There was a space there which
cattle could have passed.
By Court—The space was between the ballast
and the farm. There was no fence at the back
to my knowledge.
Counsel did not address tha Bench. A verdict
was given for the defendant.
Ma. Fleming.—Will your Honor state on
what grounds?
The S.M.—There has been no negligence shown
on the part of the defendant, while plaintiff's own
evidence went to show that the ground was prop
erly fenced.
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