The Nelson Evening Mails. THURSDAY, MARCH 11, 1869. SUPREME COURT.

Nelson Evening Mail, Volume IV, Issue 58, 11 March 1869, Page 2

The Nelson Evening Mails. THURSDAY, MARCH 11, 1869. SUPREME COURT.

CIVIL SITTINGS. ' [Before his Honor Mr. Justice Richmond.] This Day. J. T. MACKAY V. N. G. MORSE. This was an action to recover the sum of £137 10s amount of wages said to be due, & small balance due on a runniug account betwen plaintiff and defendant, and £500 damages for wrongful dismissal. The following gentlemen were sworn in as a special j ury ; — Messrs Burnett, Dodson, F. Kelling, A, GL Jenkins, Goulstone, Lockhart, M'Tavish, W. C. Hodgson, Pollock, Sclanders, Cawthron, Edwards, (foreman). In this case the following were the issues submitted to the jury : — 1. Did the plaintiff 1 continue ia the service of the defendant pursuant to the agreement of lgt November, 1866, and if not, at what time, did •the service of the plaintiff under, the said agreement of ist November terminate ? - 2. Did the defendant wrongfully and without reasonable cause dismiss the plaintiff from his service? 3. Was the plaintiff always ready and willing to continue in such service, and had the defendantnotice thereof ? 4. Is the plaintiff entitled to recover from the defendant any, and if so what, damages by reason of such alleged wrongful dismibsal ? 5. Is the plaintiff entitled to recover from the defendant any, and what, sum beyond the sum of £26 18s 8d paid into Court by the defendant in satisfaction of the particular cause of action in respect of which the same was paid in ? 6. Did the plaintiff and defendant unusually agree with each other as in the first paragraph of the defendant's 6th plea? 7. Did the plaintiff and defendant agree that the agreement of the Ist November, 1866, set forth in the declaration should from and after the 31st October, 18t>7, be annulled, and was the agreement from and aiter. that date determined and put an end to by the plaintiff and defendant? 8. Did the plaintiff enter into the defendant's service as in the 2nd paragraph of defendant's 6th plea mentioned ? J. T. Mackay sworn: On Ist November, 1866, I entered into the agreement now produced with Mr Morse, who was the owner of the Wantwood Run. [The agreement stated that Mackay was to receive £550 and 100 wethers for managing the run, out of which sum he was to pay the working expenses of the station, three month's notice to be given on either side.] I took charge of the run^ and remained in charge until the run was sold. I knew nothing of the proposed sale. On the sth October, 1867, I saw Mr Morse in Waimea West, when he said " I've sold my run to Pitt and Cogle, and I expect you to deliver the sheep to them at the end of this month." I replied that I had just had a muster, and did not intend to have another until November or December, and I thought it unfair for him to insist upon it unless he made an extra allowance. He made no reply. I asked him whether he had transferred my agreement to Pitt and Cogle, and he said, "No, you cannot be in my employ and theirß at the same time ; you must deliver the sheep for me under my original agreement." On 12th October I received a letter from defendant suggesting that I should at once commence mustering, for which' l was to receive £10, and £2 a week whilst I was collecting the sheep from our neighbors. To this I replied that I accepted his offer for one muster, the next to be at his expense. On sth October I delived the station horse to Mr Cogle, and from then I had to find another. At end of October I delivered the bulk of the sheep. Prom then until March, 1868, 1 had charge of about 1000 sheep belonging to Mr Morse. After delivering the sheep to Pitt and Cogle I brought 500 sheep down for Mr Morse. On my way down I met Mr Morse when he told me to go with him to Blenheim, and he arranged with my servants to take the sheep on to Nelson. On 2nd April, 1868, I presented an account to Mr Morse. I saw him shortly after -and he said he could not settle the account until he had got all the station accounts in. On Ist June he disputed the accounts and offered me £100 as wages and £50 as a compromise for breach of agreement. Finding that I would not accept it he said, " I could have compelled you under the agreement of 1866 to have delivered the sheep." I never agreed to put an end to our agreement. I charged Mr Morse with Borne firewood cut for dipping purposes. By the Bench: On 29th September, 1867, the run was handed over to Messrs Pitt and Cogle. Cross-examined by Mr Pitt: Mr Morse gave a special order for cutting fencing and firewood for -which I have charged. I consider cutting firewood for dipping extra work. When I entered into the agreement Mr Morse said he might sell the run. I never said anything about its not being worth my while to take the run as he might shortly sell it. I don't remember his saying that if he sold the run I should be sure of my year's salary. About 2nd October, I saw Mr Morse at his house, he. then told me he bad Bold the run, nothing was said about delivery unfilnßih October. I Baid nothing about

its being awkward to muster the run so near the end of my time. I told him it would cost about £20 to muster the run. He did not then say he would give me £10 towards it. Nothing . was said about delivering the stragglers. He did not tell me how the .deliveries were to take place, I had no instructions whatever. After receiving the letter of the 12th October, I went to Wantwood to muster. About Bth November, I sawdefendant in the Waimea after delivering the run. I don't recollect when I went back to- the Wairau. I never told Mr. Frederick Blundell that I wished I had done with the defendant. I never told him in the month of March that I had one muster more and then I should have done with him. On the 2nd April I delivered an account to defendant. I sold to William Bell, for Mr Morse, 100 sheep, and gave nine more as compensation, for the sale was upset by Mr Morse's boys. When I was away on station business, I did not charge travelling expenses. When I presented my account Mr Morse refused to pay it, but agreed to give me £150. On the 30th July I received a letter from defendant saying — that at the advice of his solicitor he withdrew any offer he had made me. From the time of the sale of the run to that of my giving final delivery was about 13 w-eeks. Re-examined : When I presented my account defendant did not make any remark about the item for loss sustained by dismissal without a quarter's notice. This closed the case for the plaintiff, when Mr Pitt applied for a nonsuit, on the ground that it had been admitted by plaintiff that an alteration had been made in the origftial agreement. The application was refused by his Honor.