Resident Magistrate’s Court.

Marlborough Express, Volume III, Issue 149, 19 December 1868, Page 5

Resident Magistrate’s Court.

BLENHEIM, MONDAY, DEC. 14th, ISGS. f [Before S. L. Muller, Esq., R.M.] SILVIUS V. WALL, MURPHY, AND REEVES. This was a claim for £l6 95., being wages due to the plaintiff, for work done as a laborer at the cutting near the Breach. Mr. Nelson appeared for the plaintiff, and Mr. Pitt for Mr. Murphy, the other defendants not being defended. \ Henry Silvius, laborer, in examination detailed the particulars of the case. He stated that he was engaged by Wall in the name of the Breach Committee, five of whom were present at the time in Wall s house. Eight days after this he went up to the work, where he was employed (mostly in ihe water) in keeping up the dam while Spencer’s contract for cutting the creek was going on. The claim was for 35£ days, at Is. 2d, per hour, which Wall agreed to pay, but of which he had received no portion. The working committee were Messrs. Wall, Murphy, and Reeves. Murphy was present with Mr. Dobson when the work was to be passed, as well as Reeves, Murphy said he was still a committeeman, and had a right to be there, as his resignation had not been accepted Reeves told witness that if the contractor had as good men as the Committee had, he would make money by the contract.

By Mr. Pitt: No one else was present in Wail’s house when he was engaged; when all were present, it was to open the tenders. Everybody knew they were a committee; they knew it by the Marlborough Express, which said Dodson, Ball, and Boraford were a Committee, and Wall, Reeves, and Murphy a working Committee. Did not know it any other way, and thought that was enough, was engaged a few days before August 18th, to the best of my knowledge. Did not see the Marlborough Press; never read it; nor the News. Did not see it; never do; Never heard of Murphy’s resignation till last Court-day. Did believe what Wall said was true. Did not think an Englishman would tell a lie. Believed Wall, because he was respected in Blenheim. He didn’t show me any authority; only saw it in the Express. Thomas Wall gave evidence to the effect that he was with the other two defendants, the working Committee. They afterwards met together on the ground. At a public

meeting, it was proposed that an overseer should be appointed, with power to employ and discharge laborers. The rest of his evidence went to show the nature of the work done, and necessity for employing laborers. Also, the part taken by Murphy in the arrangements. Charles Spencer described the nature of his contract for work done at the Breach, and the necessity for the employment of the plaintiff. George Slenhouse deposed to the same e ff ec t. Edward Reeves knew nothing about its being the duty of the working Committee to keep up the dam, but considered it was the duty of the finance Committee, because they had to find the money. Wall’s duty was to walk up and down, and inspect the works. Henry Dodson remembered the meeting when Wall and the others were appointed a working Committee. Never saw them together except when the tenders were opened, but saw them separately. The contract was not let the first day, but new tenders were called ; and next day it was let to Spencer. Saw Wall’s name as chairman attached to the advertisement calling for tenders. Reeves and Murphy did not tell him what Wall’s duties were as chairman, but he conceived they were to layout the work. During the day a conversation took place, in which Reeves and Murphy took part, when it was considered the best to do part by day work, and part by contract. These were the terms Spencer’s contract was taken on, and he could not have gone on with it unless such was done. He (witness) paid over to Wall so much money, without considering how it was to be expended, and paid him because he considered him the proper person to engage and pay workmen. The finance committee handed over money as long as it lasted. Both told him they had defined Wall’s duties, and he should do nothing without their sanctionMurphy told him before Reeves, saying the work was not being carried on to his satisfaction. This led to Murphy’s resignation, as he saw the channel was being cut in the w'rong place. They had originally laid it out together, and the line had been moved. He told him in general terms that it was too late to resign. He may have said it was partly in consequence of Thompson’s not getting the contract that he resigned. After that paid money to Wall. The work was necessary to the performance of the contract, and it was well known that it had to be done. Got a written notice of Murphy’s resignation, and another from Reeves, that he would not accept it. By Mr. Pitt: Don’t know the date when the meeting was held. Have had to do with several committees. Have known many committees which have not been convened. It is usual to keep a minutebook. Was present when the tenders were opened, but not when accepted ; but they knew of it beforehand. Murphy did not agree to it. They treated Wall as chairman. Being chairman would not give him power to bind the rest of the body. I also saw his resignation in the paper produced. Do not know that they ever gave him authority to pledge their credit. Looked on Wall as appointed to supervise the work up there on the part of the public clearly. Treated him as such. The contract being entered into with Spencer, it was certainly the duty of the committee to keep the dam good. I should feel justified in doing so, as Spencer could not have carried it out without. On this belief, I have paid all demands for labor and materials. By Reeves: I guaranteed that £345 for the contract, and £SO for day labor should be forthcoming. Both Wall and myself saw the second tender. Know that things went up to the Breach. Wall ordered all the things I ever saw go up. I guaranteed the contract to Spencer on my own resporlsibility. The resolution was the effect that £3OO should be raised. I consider that I have exceeded the powers given at the meeting. We were to draw 80 per cent., but the notes only reached under £3OO, and we shall be £7O or £BO short. I guaranteed the £345, and £SO for day labor because I thought it was required. You objected to the contractor being paid, and Mr. Dobson went up at my expense to inspect it. At this stage, the Court was adjourned till-next day.

TUESDAY, DECEMBER 15th, IS6B. Mr. Pitt, for defendant, sought to prove that no authority was given to Wall to engage the plaintiff, and relied solely on that point. Mr. Dodson had told them that he was privately liable to Wall out- ;j side the contract, and would see it paid.. The utmost extent the working committee were to was £3OO, and anything Wall did

was contracted on his own private responsibility; and in conclusion quoted Chitty on Contracts to prove his position. ■ Cornelius Murphy was not present at a meeting to carry on works at the Breach, but was elected a member of the committee; afterwards resigned on August 12, giving it to Millington on that date, which was the same on which the contract was let. Was a party to it in part, but disagreed with every step Wall had taken from first to last until he resigned. Since that time he had not interfered in any waj T whatever until the works were ended. Never authorised Wall to enter into any contract on my behalf; on the contrary, it was distinctly told him, and understood, that he was not to enter into any arrangement without my consent, and Reeve’s. By Mr. Nelson : Was not at the work till finished ; did not see Silvius, nor know who was engaged till summoned. Might have seen him there, and spoke to him, and Stenhouse also. Did not say I was still a committeeman ; went on behalf of some of my neighbours ; went for Reeves, to counteract Dobson’s evidence; might have said so in mockery ; I did not go as a member of the committee, I went there on behalf of my neighbors. Won’t vouch for a good deal of what 1 said in contempt and mockery of the whole affair ; said my resignation was not accepted ; sent it to the public press. Believe I had something to say about it to Dodson; I resigned, and made up my mind to it on the night of the contract; it was not because Thompson’s contract was not accepted ; tried to direct it to Thompson, because he had a large property at stake. Did not believe the scheme would do good; believed the contract was given on the 11th, and resigned on the 12th. Dodson told me of the contract, and I said I would wash my hands of it. Don’t know if any one was present; spoke to him two or three times The first time Reeves, Wall, and Thompson were present. It was not in a huff; told him it was a swindle or dodge. Left no authority with Dodson to accept Spencer’s contract, and was no party to it. Wall told me nothing of the consequences. The position I occupied in my own mind, after the public meeting, was that I was a member of the committee. Was present on the ground, and saw the lots marked out, but did not approve of them. Left no authority with Dodson about calling for amended tenders. Wall changed the line without teliing me. Was present when the tenders were amended ; did not see the specifications ; believe I gave it Reeves; consented that the tenders should be amended, but contended that Spencer should not be allowed to tender again, but that all the tenderers should. Left Reeves, Wall, and Dodson, but told them I would have nothing more to do with it, as it was a lost game. If Wall said it was left to them, I did not hear him say so. Did not go to the Breach and tell Spencer that I would not be responsible for his contract, nor inform him I was not a member of committee, nor tell Reeves, nor Wall, as I remember, except the notice in the paper; yet went to tho Breach, and told them my resignation was not accepted. Don’t know whether Dodson accepted my resignation, nor care either ; mean it was not accepted by the committee. Believe Reeves wrote to Bomford that he would not accept it; heard the same deny that Spencer got the contract, and saw them all; asked W all who got it; he did not tell me. but I did hear ; my notice of resignation was that I told Dodson, Wall, and Reeves, in their office, and the notice a dav or two afterj after that I went to the Breach. Reeves sent for me to go, as Dobson was going up, and he had no one to help him against Dobson. The flood was up bank high; was curious to see the specification, and got it from Reeves, and afterwards put it in my pocket; don’t know, except from hearsay, that Reeves was working day work at the Breach. Reeves got it again, nor read it untill this morning. Don’t know whether my evidence is in conformity with that given in the first case against the whole committee. Always swear what I believe to be true, but don’t remember what it was.

By Mr. Pitt: All were present when I gave notice to them—that I would not have more to do with it. The contract was not signed till next morning. When I went to the Breach it was more as a witness than any thine else, but not as a committeeman, and told Dalziel when he wished me to go. Timothy William Millington deposed he was editor and publisher of the Marl borough News. I inserted the advertisement produced at the wish of Mr Murphy, 'and wrote it out for him. It appears in the issue of the Istb August. ! James Dalziel deposed that he heard Murpby went up to the Breach, but he

did not tell me what cause he went up for. Brought a message from Mrs. Reeves to help her husband, who was going to work for the good of the public. Mr. Pitt contended that he had proved that no authority flowed from defendant to Wall; and he had further showed that he had resigned, by notice which was given to the public on the 12th, while the contract was not begun till the 18th. There was nothing unreasonable in his going to the Breach, to bear out any statement to be made hereafter by Reeves; he went as a subscriber, hut not ns a committeeman.

Mr. Nelson replied that there was no evidence to show that Wall was left in authority. Reeves was there as a workman. Murphy’s statement was new, that he resigned in Dodson’s office. Defendant was a party to what was done in appointing Wall. Murphy was a party to the calling of tenders, and did not take means to repudiate the responsibility. It was proved in evidence that Murphy declared he was still a committeeman. The Bench said this was the third of these unfortunrte cases. It appears that the facts were proved that a committee wtjs appointed consisting of Wall,Murphy, and Reeves. Tenders were called for, and sent in to Dodson’s office, but owing to some difference of opinion were ordered to be amended. Others were sent in, and Spencer’s accepted. This work, now under investigation, was part and parcel of it to keep good the work ; he believed Murphy’s evidence wa true, but he did not take proper means to free himself. They were liable under Spencer’s contract to keep good the dam. Wall was appointed, and liable; Murphy took what he considered necessary steps, as he thought, by telling his fellow-committeemen, hut he ought to have told the contractor also. He believed Reeves and Murphy told Wall he must not do anything without consulting them, but did not tell Silvius; the committee were, therefore, to he held severally and collectively liable to the public, as represented by the plaintiff Silvius. He had come to this conclusion, therefore, that the plaintiff should have judgment against the committee ; the work done by plaintiff was necessary to Spencer's contract.

Mr. Pitt asked for leave to appeal on the same grounds as in the case last ueok. The Bench held that the liability was proved, and the judgment was given on facts proved in evidence ; what took place was not sufficient notice to the public. Unfortunately, these persons who were banded together for the public good had rendered themselves liable. Mr. Pitt said there was no evidence of direct authority. Pie appealed on the point of law. It was understood that the counsel should arrange the terms of case for appeal ; and in ■ case of disagreemen the Bench to decide.

Judgment for plaintiff, with £6 2s. costs, but in the event of the case being reversed on appeal, defendant’s costs to be £3 2s. EARLL V. SAME. A claim of £l7 10s. for carting goods to the works at the Breach. In this case judgment was confessd, subject to the decision of the appeal on last case ; costs, £3 6s.