DISTRICT COURT, CLYDE.

Dunstan Times, Issue 703, 8 October 1875, Page 2

DISTRICT COURT, CLYDE.

o - Monday, September 4th, 1875. (Before His Honor George William Harvey, .lodge.) C. F. Johnson v. Hazlett. Claim- -L73, balance of wages duo. Mr W. Johnston, solicitor for plaintiff, and Mr F. J. Wilsm for defendant. The facts of the case are, the plaintiff entered into the employ of the defendant, ns storeman and hook-keeper in his Cromwell store, in June, 1872. and remained till Apri’, 1875, hut no .nrrccmrnt was made cs to remuneration. Within a tew days of the termination of the service, plaintiff, at the request and in the presence of defendant, made out his Account, crediting him-

self at the rate of L 5 per week. To this the {defendant there and then demurred, hence the action for the difference between L 4 10s and U5 per week. Plaintiff's evidence proved the above facts, and ho produced the ledger ns kept by him. which showed in support of his claim an entry of the rate of remuneration at L 5 per week. In cross-examination, ho said he could not say exactly when the entry was made, but was sure it was within six months of entering on his duties. In further support ' of his claim he said he had received an offer of L 5 per week and a house to live in, which he refused, being satisfied with the employ he was in, and thinking L 5 per week was to be his remuneration. ■ Defendant also corroborated the above facts, and said no distinct understanding of wages was made. I thought of paying li 4 10s per week, the amount I was paying to the manager of my Clyde store. It was customary with me to look over the books weekly. As to the rate of remuneration, I never saw it until after plaintiff left my employ. Plaintiff, while in my services, always performed his duties satisfactorily. The general wages of storemen is L 3 10s to 14 per week. We had several conversations anil plaintiff wrote to me on tho subject of the difference; but I distinctly stated that on principle I would not ’ allow m'orO ’than. L 4 10s per week. Mr John Sherwood, manager of my Clyde store, after plaintiff left took charge of the Cromwell store, and first pointed out to me the item L 5. ; John Sherwood, aworti, said—l have been in the employ of Mr Haz’ett eleven years, the last few months managing the Cromwell store. For the last thieeor four years I have been travelling in addition to my usual duties. When visiting Cromwell my duty was to examine plaintiff’s books, give him prices, >.nd generally supervise. On one occasion, about 12 months or 18 months after the Cromwell store was opened, I looked ■over plaintiffs account and saw no rate of wages entered up. 1 told him then that it was foolish of him not to have made some arrangement. There was an'entry of “By Wages,” but no amount. Up to the time of my taking charge of the Cromwell store, my wages were 14 10s per week, it was then raised to L 5. It was after taking charge at Cromwell I noticed the amount L 5, filled in. Cross-examined.—l was plaintiff’s superior, ho having to refer all questions to me during Mr Hazlett’s absence from home which was frequent. I cannot say if entry '■of rate of remuneration was in ledger when I took charge of the Cromwell store.: The first time I saw it was about a fortnight afterwards. Mr Johnston, solicitor in support of claim, urged responsibility ot plaintiff’s position, having the entire management of a large business, to which the principal only visited once or twice a week, was sufficient to justify the assumption thatremuneratiori lor services would-be at the rate his client had charged an drift the absence of evidencefor the defence, that the plaintiff had performed his onerous duties in a satisfactory —in fact it being admitted that he had fulfilled his position in a more'than ordinarily satisfactory manner, he 'respectfully submitted that the verdidt mu'stbe far plaintiff lor full amount. ‘ Mr Wilson, far defence, said it was not attempted to he set up that plaintiff had in •other than a satisfactory manner performed. his duties. The only dispute between the parties was on the question now before the Court, and he held that from evi enco the plaintiff was only entitled ta the amount ■offered and paid by his client, at the rate of L 4 10s per week. Moreover, it must be remembered that that was the exact sum the plaintiff, who had power to pay himself, had drawn up to tho date of settlement. It was a coincidence, but such an one—when' it was further borne in mind that the evidence respecting the item of remuneration in the ledger was at variance—as to lead defendant to the assumption that £4 10s was only sought ; and further, it was admitted that Mr Sherwood, who occupied a superior position in defendant’s employ, and was plaintiff’s superior, received only 14 10s per week, it was therefore unreasonable to suppose that his client would think of paying a lower rate of wages to his head servant than he was paying to a junior. Ho would thus leave the matter in his Honor’s hands. His Honor—lt was decidedly a coincidence that tho amount drawn by plaintiff at tho time of settlement should have been exactly L 4 10s per week. He would take time to analize the accounts, and deliver judgment in the morning. Tuesday, sth October. Johnson v. Hazlett.—His Honor delivered judgment in the above case, and said ho had looked over the ledger to see hoiy the item L 5 remuneration was made.- He bad no doubt in his mind that the words “By Wages ’ was written at one time, and “ L 5 ” at a subsequent time, as the color of the ink was so different, but there was no evidence to show when the “L 5 ” was put in. Plaintiff says, within six months of entering defendant’s employ, while defendant and a witness say they did not see it till after plaintiff had left the employ. It was admitted on both sides that there was no agreement as to the remuneration—this was a great pity as it raised the action—and so, to ascertain what plaintiff was entitled to he would have to fall book on the marketable value of the article. He found it stated that L 3 10s per week and found was paid to Mr Sherwood, and L 5 is now paid for the performance of exactly similar services to that performed by plaintiff. He did not look upon plaintiff or Mr Sherwood as ordinary storemen, and he thought, from the responsible positions they held they were entitled to tho full rate of wages.—Judgment would lie for LCB and costs. Hastie and others (appellants) v. J. Holt (re loomlent). —This was an appeal against the decision of Mr Warden Simpson, wherein a fine was inflicted instead of forfeiture of a certificate of a water race for disuse. Mr W. Johnston, solicitor, for appellants ; and Mr F, J. Wilson for respondent.

On the day previous, when tho case was mentioned, His Honor said he believed it had been customary in this Court in appeals to take evidence. llta practice had been to hear argument only on the decision, that is, on points of law, and it was his intention to continue that practice in this Court. He mentioned this so that witnesses, if any were in attendance, might be relieved, Tho grounds of appeal were: Ist. That the decision bo reversed ; ■ 2nd. That the Warden had no jurisdiction. Mr Wilson said—As to the first ground of appeal he was willing the decision be reversed ; the decision was that the race was liable to forfeiture. His client wanted tho decree that the race was not liable to forfeiture. j had the ground of appeal been to reverse or vary it would have been different. His Honor—l have power to amend the summons, and will do so by adding “or vary.” On second point I hold that the Warden has jurisdiction. The sole point to bn argued was whether the Warden had power to exercise his discretion under Section 115 ot the Goldfields Act, aad inflict a fine instead of forfeiture. Argument was now entered into, but as a verbatim report would neither instruct or edify we merely give the judgment, or the gist of .it. The Judgment was as follows : His Honor—X think it is admitted that there has been a disuse of this race for mining purposes for. some time past, and the question arises can the Warden exercise the di scretion vested in him by the 115 th Section of the Goldfields Act, 1866 1 This race was taken up and granted under the Goldfields Act, 1862, and the regulations purporting to be made thereunder, which regulations were validated by the Goldfields Act of 1867, it is therefore under these regulations we are to test the respondent’s rights; whatever rights he then obtained cannot be curtailed by the Act of 1866, because that Act contains a saving clause. It does not bring the respondent under its disabilities, on the contrary, he is entitled to any benefits it may confer ;and the Warden having jurisdiction under the Act of 1856 had a right, if he saw fit to exercise his power under Section 115, and I shall not interfere with the discretion he exercised. I think, under all the circumstances, he acted wisely. With respect to the second ground of appeal,, it is clear that respondent’s right did not lapse up to the boundary of the Town of Clyde by reason of the proclamation which withdrew the Town from the go Idfields. I will not say it did lapse at all, an 1 if it did not, then these proceedings are misconceived, for, from the time of the proclamation, the Warden would have no further jurisdiction over the miners .rights and the interests represented thereby within the Town. I .have great doubts if the Warden would have ; hut, if so, then the present appellants have no right to go before -the Warden at all, and exercis his jurisdiction. 1 uphold the Warden. I make ' a further remark, although it is not necessary to the judgment,—Supposing appellants had been successful, and the Warden had declined the race cancelled, or rather, forfeited, if what position would the appellants be. They seem to think that the Warden would order them to be registered for the same right; but, I notice that in all the regulations made since those of 1862, there is one repeated in each, “That the Warden shall not grant any water that may be requited for purposes of public utility,” and I very much doubt, if the appellants had succeeded, if they would have been any better off. ' - I disallow the appeal, with costs to the respondent, and allow him professional fee of L 5 ss.