SUPREME COURT.—Civil Side. Monday, June 7, 1852. Coolahan v. Low and Motion.

New Zealander, Volume 8, Issue 643, 12 June 1852, Page 3

SUPREME COURT.— Civil Side. Monday, June 7, 1852. Coolahan v. Low and Motion.

Tins was the only cause for trial, and His Honor the Chief Justice having takpn his seat at ten o'clock, the following Special Jury was sworn :—: — Messrs. A. Kennedy (foreman), J. C. Blackett, W. Brown, J. B. Bennett, D. Burn, F. E. Campbell, W. C. Daldy, J. Hargreaves, W. Mason, W. Powditch, T. Paton, and J, Salmon. This was an action brought to recover the sim of £300, as damages for the loss sustained by the plaintiff by reason of the non delivery by defendants of a certain quantity of fine flour, viz., 80001b"?.. or (hereabouts, the property of the plaintiff, being part of the produce of certain wheat contracted to be ground by defendants on plaintiff's behalf, and delivered for that purpose by plaintiff to defendants, on the l Oth July, the 3rd September, and the 22nd Decemler, 18.31, and the 21st February and the 28th Maich, 1852, or about those limes respectively. And the plaintiff says that, in substitution for the said flour not delivered as aforesaid, tlie defendants permitted ceitaiii quantities of bran, p ollard, and sharps to remain amongst the fine flour, the produce of the said wheat, deliveiing other bran, pollard, and sharps to the plaintiff, in lieu of the s.ud -SOOOlbs, so kept back as afojesaid, wheieby the said flour was so deteriorated in quality that the bread made thereof was condemned by a board of survey, and the plaintiff* wat deprived of the contiact he had entered into with ihe Commissariat officer, Auckland, for the supply of bread required for that department for one year from the Ist April last. By reason of which nondelivery and wrongful delivery aforesaid, the plaintiff hath sustained damage to the amount of £3' | 0. The defendants, for plea to the plaintift's declaration, aver that they have fully delivered to the plaintiff the •quautity of fine flour, bran, pollard, and sharps, the produce of the several parcels of wheat deliveied to them for grinding. The defendants also deuy that any substitution took place; that any bran, pollard, or harps were permit ed to remain amongst the fine flour, as alleged; that any deterioration in qmtitity took 'place therefrom, and that the plaintiff did suffer any Joss by any contract in consequence thereof. The Attorney-General and Mr. Whitaker appeared for the plaintiff; and Messrs. Bartley, Abraham, and Maiston for the defendants. The Attorney-General opened the proceedings by stating the circumstances out of which the action arose, and proceeded to call evidence to establish the plaintift's declaration. C. A. Hauhis, being sworn, proved an agreement between the plaintiff and defendants for grinding wheat belonging to him at their mill ; and a subsequent agreement made between them, to afford mutual convenience in carrying out the terms of the first agreement. He witnessed bothjjgreemenfca* - - # GlohgeAshbv, being sworn, stated — He is a miller, and has had experience of thirty-four year> in the business ; wheat is ground into flour, sharps, pollard, nnd bran, it may be ground into flour of either fine or coarse quality ; the quantity produced from a bushel of wheat depends on the quality of the wheat, and practicability of the millet ; the usual quantity taken is from 401 bs. to 461 bs. to the bushel ; the difference of colour in flour of these proportions is perceptible. (Produced samples to illustrate this.) lie had been some time, one year, eleven months, and one day, in the employ of the defendants at their mill near Auckland ; he was engaged at Sydney, in 18.)0, by Sbeppard and Alger, the defendants' agents there ; the dt fendants, he believed, were millers and flour dealers, and grind for the public ; when wheat was received at the mill, it was weighed, and allowed to stand aside until its turn came to be ground ; when ground, it was weighed a^ain, and taken away by the owners, or sent home to them— but it was not customary at the defendants' mill in all cases to return the whole of the flour produced— such had not happened in* any case during his time at the mill ; it was a general rule, made by his employers, that when wheat was ground for another, a portion of the flour should be kept back ; witness's instructions were, in all cases but in the plaintiff's, to give no more than 401 bs. to the bushel —and if the wheat produced 451bs. to the bushel, still the customer only got 401b<». ; there had been, in the course of last year, some wheat ground for the plaintiff at the mill, when tbe instructions given to witness by Mr. Motion was to give Mr. Coolahan 42lbs. of fine flour to the bushel ; the plaintiff's wheat produced 451bs. to the bushel ; the first parcel of the plaintiff's wheat, consisting of 393 bushels, was received at the mill in July last ; that parcel was ground in such a manner ns to produce 451b5. ; the whole produce of it was 18,2801b5. fine flo.ur, 13201b5. sharps, 9981b5. pollard, and 28841b'*. bran ; that was the grist in the first case — and the quantities of it returned to the plaintiff were 16,6501b5. fine flour, 18001bs. sharps, 13?0lbs. pollaid, 3340ibs. bran— waste 6001bs; the whole produce of fine flour was not returned to the plaintiff— eight 200lbs. bags, and about SOlbs. over, were kept back by the direction of Motion, and the weight walk made up with bran, pollard, and sharps, belonging to the defendants ; tbe bags kept back weie stacked at the back door of the mill, nnd remained there until the defendants' boat came up, when they were put on board along with flour of their own ; Motion and George Wood put the bagß on board tbe bout ; tbe second parcel of tbe plaintiff's wheat came to tbe mill about tbe 3rd S.'pt , consisting of 13?^ bushels ; it was ground so as to produce 451b5., and thrown off, and lay on the floor until the third lot arrived. Mr. Bahtley interposed to ask the witness what documents he was reading from ? \\ itness said, the memoranda in his hand had been copied by him from pencil notes of the quantities made at tbe 'ime of receiving or delivering the wheat. Mr. Bartley objected to the witness giving evidence from documents that were not made at the time of tbe transaction. By the Court : The documents in witness's hand were copied from the pencil memoranda on the night of receiving the wheat. By the Foreman of the Jury: When the giist was finished, witness made a note of the quantities produced, as well as when the wheat was received — and thedocu merits he was using to refresh his memory were correct copies of his pencil memoranda. 'Ihe Court decided that, bs the documents were the current memoranda kept by the witness during the progress of the work, he might use them to assist him in giving his evidence. The Attornky-Glni.iial resumed : Witness received another parcel of wheat from Coolahan in December, consisting of 357^ bushels, which he ground so as to produce 45lbs. per bushel — the whole of the produce of fine flour of the former lot, and of this one was not returned to Coolahan ; witness believed that of the two lots there were kept back ten 20Olbs. bags ; he himself sold 200lba. of this flour to Mr. Cochrane, and lOOlbs. to Mr. Clark, on account of Low and Motion, and the remainder was taken on board their boat to be carried to their store in town ; the full weight, allowing for waste, was sent to Coolahan, but it was made up of bran, pollard, and sharps, taken from Low and Motion's heap in tbe mill ; in February, there were two loads received at the mill from Mr. Coolahan ; the first load contained 15,02' MbB — the second, 15,3881b5.; this was ground to produce about 44 oi 451bs ; the whole was not sent back to tbe plaintiff — seven large bags and one small ojip were kept back, containing loOOlbs., and the deficiency made up of bran, pollard, and sharps, belonging to Low and Motion ; the flour Lent back wan put on board the deleudants' boat.

By the Foreman : Witness could not tell where it

was taken to. By the Aitorney-Guni rai, : The February lot was the last lot he had received from Mr. Coolahan. On being asked if he remembered any coming to the mill from Mr. Coolah.in in March, Mr. BARTr.rv objected to the manner of putting the queslion. It was directly leading the witness : he had stated already that he had not received any wheat Horn the plaintiff after February, and now the question was put if he did not receive any in March. His Honor remarked that the fact of something havin» been received in March was admitted on the record — and it was fair enough to ask the witness whether he knew anything of it. The Attorney-General said, as Mr. Bartley had objected to the question, he would not press it, but put another. Examination resumed. — Witness was in the employ of the defendants from July to April last, during which time he had the management of the mill ; he had received various parcels of wheat Jo grind for the plaintiff, and on no one occasion did the produce of these parcels go back to the plaintiff. Cross-examined by Mr. Bahtley. — Had 34 years' experience as a miller, and had now got to be a master miller, having rented a mill from the plaintiff; hns had a. quarrel with Low & Motion [Mr. Bartley here put in several documents, on which he wished to ground questions that he intended to put to the witness] ; would not swear that the document now shewn to him was in Ins hand-writing— afterwards he admitted it: others healso admitted ; admitted an advertisement in the newspapers to be his. (This advertisement announced that the witness had commenced business as a miller, and stated that the public would get back the whole oi the produce of wheat sent to him to be ground) ; the word whole had reference to everybody that should bring grist to his mill ; would not swear that it had no reference to the defendants; is a tenant of the p'aintiff's ; is on very good terms with him, nnd has given him various pieces of information in this cause ; Jroni the treatment received at the hands of thf defendants, he could not say he was exactly on as good terms with them as with the plaintiff ; was not hostile to them, nor does he bear them any malice : lie had a quarrel nith Mr. Motion, and they had smart words ; does not mean to make him smart for that now ; had no recollection of having said that, before he had done with Motion, he would find him (witness) a " pure lad ;" did not recollect ever saying so to George Wood ; witness might have said so ; Wood was in the employ of defendants; witness had endeavoured to get him into his employ, and had offeied him £20 a-year if he would leave defendants and go to him ; would not swear that he had used auy threats to the boy in relation to the present action ; witness might have made an offer to go snacks with defendants in the flour that was kept back ; he believed he had urged a claim on them lor share of flour kept back from customers. The following is the substance of Ashbys admitted letteis, handed in by the defendants' counsel, and read by the Registrar. These documents were put in evidence chiefly to shew thq animus of this witness towards tha defendants. 12 h December, 1851. Mr. Motion, — Your convei&aiion between me and yourself respecting [my wife, I cannot forget; the dishonour and reflections you cast upon my family 1 dare you to the proof. I cannot for one moment think that you wish to do me any harm ; but still, your conduct to-day was not becoming enher employer or gentleman. I speak to you in mild terms. 1 wish not to dialiustyour temper ; but you must remember that I have my own feelings ; however degrading my family may appear in your sight, still they are mine. I am aware that there is ill feeling between us, and has been some time, but 1 cannot tell when or how it originated. You, no doubt, is the best judge about that. Respecting my own conduct I cannot say that I have been strictly honest. You must be aware that I have been made the tool" and instrument to rob the public, all for your interest, on several different times. You can use this mite as you think proper — and you can settle with me to-morrow . (This letter bore no signature.) 6ih Apiil, 1852. (Letter to Messrs. Low and Motion.) Gentlemen,— This is a rough list of fie quantity of fine flour I h.ive been made the tool to rob ilie public of since 1 Have tfeecTTiT your implor, and half of the amount of which I consider I am entitled to as a matter of right: — From June, IB6o.— Kelly, 1401b5. ; his neighbour, 40 ; five Natives, 6 bags meal, 300 ; Lorrigan, 94 ; Carrulh, \lO; six natives from the Bishop's (five bags meal), 'J5O; Kelly, 150 ; Carruth, 65. July, 1851— Coolahan, 162b ; Missionaries, Bay of Islands, 600 ; Lorrigan, 1W); Williams, 196. Maich, 18J CJ—Coolahan, 1800 ; Ditto, 1000 ; Carruth, 122. April— Coolahan, meal and flour in mill, 2000 ; Coiruth, in mill, 118 lbs.— Total, 10,880 lbs. The number of 50 small parcels I have not named. These waa all made up with pigs' meat by me and others. (This letter was not signed, and the witness hesitated for a length of time before he admitted it to be his writing.)

Auckland, lOtii April. Mr. 'Motion,-— On the 7th of this month, you ordered me out of the mill, and called me a d d scoundrel, at ihe same time saying, you knew nothing about Mr. Coolahan's flour. fc>ince your memory is so bad, I must beg to remind you of it. On the J 4th of July you will find the first delivery ot (Joolahan's flour; you cannot forget. You must remember that you assisted to load the boat with the two bojs, .i>y son and Geoige . you must also remember that i took eight bags of fine flour and 501b5., by your orders, of which i hod your document, in your own handwriting, the quantity of flour, pollard, bran, and shirps I was to give him, -which was 42lbs. per bushel. You also as sisted in taking your tuin in wheeling these lrUU)ll)s.l r UU)ll)s. of Mr. Coolahan's fine fiour into your own boat, with the boys, as sta'ed above. Moreover, yon directed me to mark tlie bags with a black cross, as you took thpm to the boat, so that they might be distinguished fiom your own, as they were not quite so good as your own, and was sent by the boatman to your stoics. The boatman you employed at that time remembeis the circumstance quite well, so it is u&e'ess for you to say you know nothing about it. This is only one iem [ h.ive picked, to show you what I mean to do. You may well have fine horses and line s'de- saddles, while you can rob your neighbour, that places «onfidence in jou, of jC'25 wonh of fine flour out of one grist. The flour at thai date was £30 perton. Now ibis is a tiue statement. I can swear to the truth of this, and so will my son and George Wood. Those boys assisted me to weigh the shaips, bran, and pollard, to make up the lo'SOlbs of fine flour taken ouf ; but this is not one tenth part of what I have been made the tool to rob the public for you 'md your tribe. But now your game is stopped. You h.ive now in the the mill lout teen bags of meal, three bags of flour and pieces, stolen property, belonging to Mr. CooWian, and which he will send the police for on Monday. Mr. Canuth has also UBlbs. of fine flour on the s,ime loft, which was taken on' of his giist by your orders. George Wood and William Ashby took the fine flour out and put 106-bs. of hh.irps and pollard in the place. Likewise the last grist Carrnth had, you had 1221b5. of his fine flour out of his grist; it went to the stores with the rest. You remember the note I sent you on the 14th December last : if the contents of that no c was not true, why not prosecute me ? But jou know it was the whole tru h, and the truth will sand for ever. You had be ter bring this note to the Police Office, on Thursday, together with the nole 1 sent you in De» ci'inber last ; but no matter, I have copies of them both. lam going to w ute to the nusMoiiaiies of the Bay of Islands, on the part of the natives. I will prosecute you to the last item. The Bishop, Mr. W ll'ams, Mr. Carruth, Mr. T.onigan, Mr. Kelly, Mr. Claik, Mr. ILmilen, and about fifty others ; i will have them all here — 1 can swear to their all I eing robbed. P.S.— Should I get nothing by it, I shall still have the thanks of the public. Ashby. Mechanics' Bay Mills, May 18. (Letter addressed to Messrs. Low and Motion.) Gentlemen, — Did the spy you sent to my mill, get you the information you required respecting my character—whether I was a convict fellow, or not? You should have sent a more trustworthy man, for he not only told his errand, but likewise those that employed him. Gentlemen, jour undermining dealing with respect to me will bave no avail in the ca&e shortly to bs brought before the Court, lam surprised to he.ir, in my own bouse, the conduct you are pursuing against me. You cannot but be aware, that lam acquainted with all your proceedings and all' your ungentlemarily actions that you are doing toilogiaile me in the eyes

of the public. For why should you do so ? If the evidence that will be given is not the truth, am I not punishable bylaw? You, Mr. Low, told one person that if it not for the sake of my family, and petitions from parties that persuaded 'you not to do so, you would have me in the body of the Gaol long before this. You told another paity that, had I any money, you would ruin me, but that it was no use in throwing gooJ money away for bad. Now, gentlemen, what do you mean by all this? You cannotdeny that your conduct towards me is anything like gpntlemen, or men of standing in society, as you are. For why do you wish to prevent me from getting a honest living? Have not I a family to provide for as well as you? >Is there not room enough for us all to live? Forbear your I . slander, and let me alone. 'Through the whole of this transnclion you have found me bs manageable and as tractable as a child ; but beware ! I am more than n man when I am imposed upon beyond whut human infirmity can bear. As to Mr. Motion, 1 shall say but little. He cannot have forgoiten the six natives bringing 110 bushels of wheat to he giound, which 1 weighed and ground; they said that the wheat was weighed by the Bishop. Mr. Motion cannot but be aware that when the flour was dressed that he took from the said grist seven bags of meal, on the top-loft, and put in the ' place thereof four bags of sharps and pollard. —He cannot deny it. Mr. Motion is also aware that be would not allow me to weigh the said gribt off, but gave them what he liked. 1 could say a great deal more, but this ought to be enough -so let me alone. I bear you no malice nor hatred in my heart; all that 1 want is a living. Respecting the information you require as to whether I am a convict or not, [ refer you to Her Majesty's At-torney-General, where )ou will get all the infoi .nation yon may require. I am, gentlemen, your obedient servant, C. Asiiby,

Mr. BAniLry resumed. — Witness g.ive information to Coolalian, and in consequence of his doing so, this action was commenced; witness feared that his heart was not quite free from guilt ; lie °uve the information on account of the quarrel he had with defendants : he had the mill he now rented from Coolahan in view long ago ; he did once want to borrow flour from the defendants — tue loan of a ton or two might have made him as "tractable and manageable as a child;" it would not have influenced him in his evidence befcrj ihe Court ; forty bags of the plaintiff's wheat underwent a process of washing at the mill because it was smutty, and there was a great deal of waste upon it ; it was weighed after it was washed, dried, and smuttedwashing does not benefit wheat, but this wheat was good, notwithstanding; the last two grists that he received at the mill from the pl.untift were very weavelly — Jt had been a middling sample of wheat before the weavel got into it; he received a note from Coolahan'3 cleik requesting the wheat to be kept separate on account of one poition not being so Rood as the other ; he had sued the defendants at the Resident Magistiatb'a Court for wages, when the case was diomissed. A book was handed to the witness, which, lie said, was one he had kopt at the mill, and that it contained correct entiies of receipts and deliveries. The items of receipts and deliveries on account ofthe plaintiff were read by Mr. Ahiaham, and were found to correspoud with the weights nlivady sworn 10 in detail by Aahby, except in one trifling difference. During the course of the cross-examination the witness handed in a paper, which he had discovered in his pocket, with the weights of the produce of plaintiff's first parcel on it, as handed to him by the defendant Motion. By the Attornly-Glveual : Witness believed the figures he pointed to were in the handwriting of Motion ; they related to the produce ofthe first grist sent to the mill by the plaintiff, and to the best of his belief they were correct. The figures were read, and stood as follows: flour, 18,2801b*.. ; bran, 2,8841b5.; pollaid, 9981b5. ; sharps, l,3'.K)lbs. 13y the Coimit : The figures at the top of the page were in w itness's handwiiting in pencil ; he gave it to Motion on the day that the fir-rt grist was ground, who took it home with him that night, and leturned it to witness the next morning, with the figures corrected as read ; witness could not >-wear that tne figures were in Motion's handwriting — they might be his wife's; Motion had ab good an opportunity of knowing the pioduce as witness had. By the ArroRNEY-GrvnRAL : Whoever wrote down the figure^ they were given to witness h]fi Motion as the coirect amount ofthe produce. By a Jimon : It had not been the custom at the mill to keep a record of the actual produce— ?an account was only kept ofthe quantities received and delivered ; witness had kept the account in this paiticular instance, because he, never before Knew of such pioceedings as were carried on at this mill; he had not made it a general rule to keep notes of the produce and quantities kept back in all instances; he did not ake so much noocoof small quantities sent to be giound as be did of the large that had to be made up out of Ins em ployers' pollard and brnn ; the other cases that he had mentioned in bis letter to the defendants where flour had been kept buck, had only been put down by him at a rough guess. William Asuby sworn — Was son of the last wit-, ness ; bad been employed at the mill, and resided tin ro with his father; remembered, the first lot of Mr. Coola- ' ban's wheat that was received to be ground; taw it ground and diessed ; was aware that the whole of the produce of fine flour had not been returned to Mr. Coolahan; the deficiency in weight was made up out I of Messrs. Low and Motion's bran and pollard; the I second lot was received 111 September, and was" ground and dressed the same as the former; part of the flour of this lot was sent to Mr. Coolahan, and part of it to Messrs. Low and Motion's store; there were seven bags of 200lbs. each, and one small one of lOOlbs. taken to the boat by George Wood, to be carried to Low and Motion's store in town; the next parcel received was ground and dressed ; it was meal and five bits ot bags of flour that was left behind of that lot ; the rest wa< s>f>nt to Mr. Coolahan ; what was kept back was in the mill when witness and his father and family came away ; the difference in weight in the several instances was made up with bran, pollard, and bharps belonging to Messrs. Low and Motion. By Mr. Abhaimm : Witness had knowledge of the trai saction,, because he saw it done ; his father never held any conveisation with him on the matter since they left the mill — all that passed between them on the subject ofthe trial was just befoie he came into court, when bis father desiied him to tell thetiuth; he was not in bed at the time when the difference in sveight was made up ; the quarrel between his father and Low and Motion about stolen eggs oiiginated wiili Ins biother, and not with him ; some of the last wheat sent by Mr. Coolahan to be ground was weavelly ; the scales were opposite the dres>ing machine ; ' the bags filled with fine flour, to be sent to Coolahan, weie put on the scale and weighed— the other bngs were put away by the side of the back-door of the null. Charles Oakiord, sworn — Is a miller, and works for Mr. Parlin^ton, at the windmill; about two-and-a-half years ago he was employed at Low and Motion's mill, where he wrought about five months ; wheat, on being ground, is divided into bran, pollard, sharps, and fine flour ; <Wlbs. o',' fine flour could be produced, by a good steady power, out of New Zealand whent; dming the time he was employed at the defendants' mill, there had been no wheat ground for bakets, but for natives a good deal had been giound ; the whole ofthe produce of flour was not returned; the quantity kept back was 3 cwt. out of 20 bushels, and 3 cwt. of sharps put in instead ; that was as near as he could guess — he did not weigh it; he left the employ because he refused to grind bad wheat ; the defendants had then refused to pay him the wages that was due to him ; that wns neaily two years and a half ago ; his wages were kept from him until a short time ago, when the defendants paid him £0. By Mr. BAnrixv: The defendants received one shilling a bushel fiom the natives for grinding ; jthey were not to be paid in kuul — he saw the natives pay the money down before the wheat was ground ; lie never told anything of this bi'foie — nor would he have! dene so now, bad he not been brought before the Court j he would rob for his master if he was ordered to do so ; he had been a convict ; he got five years for cloaking his master's faults ; was never convicted but once; never knew Ashby in the other colonies, nor never saw bun till ho was summoned on this trial ; he knew nothing j of the matters relating to the present cause. James Nelson, sworn — Is a labourer, in the employ of Mr. Grahame; he was about twelve months 111 the employment of the defendants, and it was about a year • and five months since he left them ; while he was at their mill, they ground for ctheis as well as for themselves; the practice at the mill, while he was there, was to return to the customer 40lbs. of flour to the bushel of wheat. The AiTouN'K\-GLNEnAi. asked the witness — Was it usual for them to give up the whole of the pioduce to their customer? Mr Bar 1 ley objected to the admission of evidence on matteis not specifically alleged against the defendants in the decimation.

Mr. Aiin,\iM»i also argued against the admission of such evidence as this — it had nothing to do with the specific issue in trial ; such a proceeding was contrary to the piactice of Courts of Justice at home; it was utterly irrelevant, and ought not to he allowed. His lloNon thought that it would not he proper to go into particular cases, hut the enquiry as to the general practice at the mill was a very fair one : the defendants might perhaps prove to the jury that such practice was cu-tomary in the business. Examination resumed: The practice was to give 40lbs, to the bushel; witness could sny whether the wheat produced 401bs. or otherwise — all he knew was, that 4l)lbs. of flour were given to the bushel. By Mr. Abraham : If one customer's wheat produced 381bs. and another 401b5., and all got 40lbs alike, witness thought that some of them would get more than their own. W. F. Porter, sworn, stated that he is a settler on the Tamaki, and a grower of wheat ; that he had sent some wheat to be ground at Low and Motion's mill about four 3 ears ago — hut had not sent any more since then ; he had sent at that time some uncommonly fine wheat, in parcels of 30 t to 40 bushels, in his own boat ; the produce of flour he got back of the small parcels was from 38lbs. to 411bs. per bushel Mr. Bah 1 ley objected to the evidence, as being of the nature His Honor had said should not be received. The Court ruled accordingly, and the witness withdrew from the box. John Tomes. D.A.C.G., sworn, stated that he has charge of the provision department in the Commissariat at Auckland ; in April last, Mr. Coolahan began to supply the troops with bread ; he saw the bread on the .'Ust March that was prepared to be furnished on the Ist April ; it did not appear to be such as would pass if offered, and it was not presented for acceptance; bread was offered by Coolahan on subsequent days for inspection and acceptance ; on the 2nd, 3rd, and 4ih Apnl the bread supplied passed his personal examination ; it did not continue to give satisfaction ; that supplied on the sth was passed by him, but was afterwards condemned by a Garrison Boaid. Mr. Barilly heie raised an objection to the adraissibility of Mr. Tomes's evidence on the subject of a contract, the existence of which had not been proved before the Court. It was desirable that, as the contract had been mentioned, the document itself should be put in, that the jury might know the teims on which it was taken. The Attorney-General said there was a contract, which would be produced at the proper time. Examination resumed : A contract had been entered into between the head of the Commissariat Depaitmeut and Mr Coolahan for supply of bread to t 1 c troops, and navy in the harbour, for twelve month*, commencing the Ist April last, at l£d. per lb. or 3d. the 21b. loaf (Mr. Tomes produced the contract documents, which were banded in) ; bread furnished by the contractor on the Gth and 7th was passed by witness— but that prepared for the Bth was refused by him on the afternoon of the 7tb — it was not used by the troops ; witness purchased bread in place of it irom another baker; the loss to the contractor on the bread refused would be a \d. per pound, the difference between the contract price and the price paid for the other bread ; about 5501b5. had been condemned up to this time ; on the Bth, the bread was supplied, on Coolaban's account, by Douglas, and was passed by witness ; the loss on the supply of the Btb to the contiactor was about £2 Bs. ; Mr. Coolahan is still supposed to supply the bread through the agency of another party ; he is a loser by the transaction to the extent of about £52 to the end of the present month. By Mr. Bam ley : Mr. Coolahan has the contract at the present time; witness considered 1 £d. per lb. a low price for bread in the present state of the market. I'atrick Brodeiuck, sworn, sta ed that he was 'clerk to Mr. Coolahan, and was oware of wheat having been sent, in the early part of the year, to Low and Motion's mill to be ground ; on the 31st MarJi last, Mr. Coolahan baked bread for the supply of the troops — the flour used for that bread was ground at the de fondants' null; the colour of the bread was dark ; afterwards the flour was mixed wi h 0 her flour not ground at Low and Motion's mill j he took some of the flour down to Kelly, tie l>aker, to have it tried by him ; there was some of Low and Motion's grinding baked on the 4 h Apiil, for delivery to the troops on the sth but the bread was cendemned. By Mr. Abraham . Witness kept the plaintiffs books; he did not himself take the wheat to Low and Motion's mill, nor bring the produce back from it, but he sent it away to the mill and received what was returned ; knew Mr. Coolahan to belong to a Committee for the encouragement of a cfiscoveiy of gold ; knew that he had given three months' notice to the Commissariat Department of his inten ion to give up the con-

By the Attorney General : Witness had the ma. nagement o f forwarding the wheat to Low and Motion's mill, and also of receiving iht returned produce of it. David Callaghav : Was a baker for Mr. ( oolahan ; on the 31st March he baked bread for delivery to the tioops of the best flour that came from Low aid Motion's mil; the bread was very dark and would not be reseived— 'after that, the remainder of Low and Motio n 's flour was mixed with b tter flour; the bread, after jj- was baked, was given to Gallagher for delivery. F. qq a llagiier : Was strTant to Mr CooLilun ; his busi ness was to deliver bread to (he customers ; he recced tteh c bread (or the troops from Broderick and Ca]] a g] ian and del vered it at the Barracks. John K bllY » baker, slated that he remembered, ev]y j tl Ap u '> seeing bread wth Mr. Tomes that had keen baked * or lne "oops; the biead seemed to have been very well manufactured, in a tradesmanlike manner— if more offal had been taken out of the flour it would hive been of a better colour ; that was the only fault he found in it; a sample of flour had been brought to him by Coolahan's cleik, wh eh he wished him to bake, to test its quality ; witness took the flour into his bedioom that there might be no chance of mixture, and baked it with his own hands— it produced good bread, but of veiy dark colour (loaf produced) 5 (he fair market pike of flour, in July last, was £"16 for New Zealand and £'28 for imported; he bought fiom Low and Motion, in July, at •£! 6 per ton. The witness corrected himself, and said that New Zealand flour, in July last, was £27 per ton. By Mr. Hartley: South Australian or Hobart Town flour ranks higher than New Zealand, and letches a higher »rii c in the market. This closed the case for the plaintiff; and the Couit was adjourned at half past five o'clock, until the next morning, at ten. Tuesday, June 8. The Court sat at ten o'clock. Mr. Bartlky rose to give an outline of the evidence he intended to produce for the defence. It would be proved that the plain'iff never objected to the flour gio'tud for him by the defendants — thnt he opened one of the bags, tasted the flour, and made no objection | that New Zealand wheat would not produce more fine flour than from 4Olbs. to 4211>5. io llie bushel; that weavelly wheat would not ptoduce so much ; *md that if fine flour were mixed with bran, pollaid, and sharps, these ingredients would be easily de ec ed, being palpable to feel and sight. This was the nature ol the cvi denoe on which he would rely for the defence,— and he might also raise the inference of entire sali«fac ion with the flour delivered to him on the part of the plain t iff, fiom the fact of bis suttloment of the defendants' ac counts for grinding the flour without making any complaint. Mr. Abiuham then called Charles Uppington, who stated that he was in the employ of Low and Motion in December last ; he deli veied two dray loads from the mill at the plriintifl's s ore, about Chii&tmas last ; the plaintiff and bib clerk were present at the time he delivered the first load ; the plaintiff did not s.iy anything— he opened one of the bags and tas.ed the flour, but did not say whether it was good or bad ; no hing was said to him on the second occasion only to " look slurp and unlo d it. 1 ' John Bvciiorr, examined by Mr. Hartley, is a miller at Epsom ; the produce of New Zealand wheat was 401 bs. to -121b. of fine flour to the bushel ; he knew OA'ord ; lie had been in witness' employ : he never produced moro than 401bs. of fine flour for witness to his knowledge; good flour could not be produced from weavel eaten wheat — the reason was that the weavel eats away the flour out of the grain, and leaves little but bran and pollards, aud the flour produced from such giain would be dark in culour ; there might be sharps left in wheat, but bran or pollard would be easily discornable — no greatquanlityol the latter could beblended with it without being readily detected ; sharps might be mingled with flour and ebcape detection ; but bran or pollaid would be visible by pressing the Hour in the hand ; those who give 451bs of flour must leave sharps in it. By the Atiorney - General. — Had been engaged a longtime as a miller; went first to the business in ISS.3J-; his present mill is a wind-mill ; doe 9 not know whether tbeie would be a difference in produce fiomawateimill and wind-mill power. By a Juror. — He never weighed thp wheat, to ascortatn its exact pioduce; when lie said that from 40 to

42 lbs. was the pioduce of .1 bushel of wheat, he mennt that quantity as the usually undeistood pioduce in lloin ; he had not weighed a bushel of whe.it before gi hiding 1 it and the produce of it afterwaida, so as to estimate the produce of larger parcels ; the produce was not calculated by estimate, but by an anangement with customers to return 40 lbs. ; could not tell whether the bushel produced more or less ; he had once made an exact trial of a i'armei's wheat, and found it only turned out 38 lbs. ; native-grown wheat, when it is clean, turns out the best flour : the customers' bushel, scut to be ground, is supposed to be 60 lbs. J. M. Simes, baker, residps at Parnell : He could detect the eleventh part of sharps in fine flour by the feel of it, and bran or pollard by sight, and if it contained one-eighth, he would be still better able to detect it. If wheat was weavel-eaten, he should think the flour of it would produce dark bread ; bread cannot be made, to profit by it, at ljd., nor yet at 2d. per lb. A contract taken in April last at ljd. would not be a piofitable one; if witness had a contract at that rate, ho would not like (o keep it for twelve months, but would be glad to get lid of it as soon as he could. He kuew nothing about dressing flour. James Davidson, is clerk to Messrs. Low & Motion, and was present at the settlement of an account between them and the plaintiff; the account was made out by witness, and sent in to Mr. Coolaban, who settled it without any dispute or complaint ; the plaintiff had been very often at the store, but witness bad never heard him make any complaint in any shape whatever ; is not aware of the plaintiff having bought flour lately from the defendants; they cairy on a considerable wholesale business ; witness recullected Ashby coming to the store and asking for the loan of holf-a-ton of flour for a week or so ; the defendants were not at the store at the time, but he (witness) refused, on their behalf, to lend the flour. Thomas Douglas, baker, knew the witness Ashby ; had employed him since he has been at the mill in Mechanics' Bay ; had sent him 400 to 600 bushels of good sound wheat to grind : witness has only received but a small quantity of flour from him yet, in consequence of theie having been no water lately to work the mill; Ashby had not told witness what the wheat would yield, but he agreed to return him 42 lbs. to the bushel. Witness had the Commissariat contract last year; he did not think Mr. Coolahan's contract a beneficial one; it was not such a contract as he would like to keep ; witness had arranged with Mr. Coolahan to complete the contract for him to the end of the term of notice, at one farthing a pound advance on the price at which it was taken, and he would not now keep it longer at that price if he could help it. By the Attouney-Genehal. — Potatoes are always used in bread ; it cannot be properly made without them ; it is not profitable to use them, as it takes \ 2 Ib 3. of potatoes to male as much as one pound of flouv. Hh employed Ashby because he undertook to return him 42 lbs.; he had never got more than 40 lbs. before. This closed the evidence. The Anon.Ncv-GLNERAi. addressed the Jury in a closely reasoned speech, commenting upon theevidence of the witnesses, as collectively forming a case against the defendants which warranted him in anticipating a verdict for the plaintiff, which he reminded them would have a salutary effect in guarding the interests of the public from such practices as had been exposed during this trial. Mr. Barti cy, in his address on the other side, dwelt forcibly on the principal witness, Charles Ashby, as being on his own showing, so bad as to render his testimony wholly unworthy of credit. lie appealed to thejury whether, on such evidence as this they would ontail upon the defendants the ruin of reputation which a verdict against them would not fail to produce. He contended that the plaintiff had voluntarily given up the contract named in the declaration, for reasons with which the defendants had no concern, and that therefore he could not be entitled to any compensation on that ground. His Honor, in summing up, after referring to Ashby s evidence, remarked that, however greatly damaged that evidence might be by the conduct of the witness as shown out of his own mouth, and by bis \ quarrel with the defendant Mohon, yet it deserved to be seriously considered— and especially it was to be considered how far it was corroborated by other evidence. If Ashby came to complain and ask redress, it would be a different question. Here the question was, whether an innocent party had suffered injury. However the wrongful transactions might be detected — however tainted the channel of evidence might be -yet it should be borne in mind that the plaintiff was entirely unconnected with those transactions, Next, as to the special damages claimed by the plaintiff, as arising from the wrongful delivery of flour of an inferior quality. Even supposing all the preliminary facts to be established — that inferior flour was delivered — that the inferior quality was owing, not to any unsoundnpss or defect in the wheat sent by the plaintiff to the mill, but solely to the defendants' fault — that the bread afterwaids condemned was made of that very flour — and that the loss of the contract was caused thereby— still it remained to be asked, Whethpr that loss was the natural necessary result of the defendants' acts ? If not— if, on the ccntraiy, it could be fairly traced to the plaintiff's own acts, he could not recover anything beyond ordinary damages. If the baker could discern that the best quality of Low and Motion's flour (so the witness Callaghan describes it) was unlit for the purposes of the contract, and yet, will) Ilis eyes open, made bread of it, and sent it in, he could not throw on the defendants the consequences of his own acts. He might have gone into the market and purchased good flour of such quality and quantity as he ought to have received from the millers, and have thrown upon them the burthen of that outlay. liut supposing the millers to have broken their contract with the baker, the baker v\ as not thereby left at liberty to proceed to break his own contract with the Commissariat, and then to throw upon them the consequences of the breach of bolh tliOiSe contracts. If theie was enough on the whole evidence to satisfy the Jury that the pi lintiff's p operty had been taken from him, they would lake care to compensate the plaintiff; but they would he careful not to give him compensation for any loss which might fairly be traced to Ins own fault. '1 he Juiy retired, and after an absence from the Court ofubout five hours, returned, a verdict for the plaintiff of forty shillings.

TIJE CoiXEGFS AND THE TIIURIES DcCKEES. — The compulsoiy resignations of the Roman Catholic clergy holding offices in the colleges nry be said (0 have already commenced. Tup Dean of Residence in Galwayj(theltev. Mi. Mitchell) has not only absented banself from the college for sevaial weeks past, hut has formally resigned his po^-t by letter addressed to th« Loid Lieutenant, and there is no doubt that otheis will follow his example without delay. In connection with this subject w e may mention that Bishop Foran, of Waterfoid, has issued an address to the " Catholic people of Waterford," denouncing the National Model School about to be erected in thut city in tei ins the most unqualified. It is, in /act, a manifesto against any system of education in which the Catholic clergy have not tliH sole management and contiol, even as regards booKs of a jmrely secular character, and the decrees of the Synod of Thurles aie appealed to as wan anting the opposition raised against the national system. Right use or Lcaunusg.— 'lhe late Rev. Caleb Evens of Bristol, having once occasion to travel Jfiom. home, wiote to a poor cong egation to say that he should spend a night in their village, and that, if it were agreeable to them, he would give them a sermon. The poor people hesitated for soma time, but at length permitted him to preach. After sermon lie found them in a far happier mood than when he first enme among them, and could not foi bear inquiring into the reason of all this. ''\\ by, sir, to till you the tiuth," said one of them, •• kno wning that you were a very learned man, and that you were a teacher of young ministers, we were much afiaid we should not understand you ; but you have been quite as plain as any ministpr we ever had." " Ay, ay," the doctor replied, " you pntirely misunderstand the nature of learning, my mend ; its design is to make things so plain that they cannot be misumlei stood." Confutation or ScniPTunn. — Lieutenant Lynch, in his Narrative of the United States' Expedition to the Dead Sea, says: — " We entered upon this sea with conflicting opinions. One of the parly was sceptical, and another, I think, a professed unbeliever of the Mosaic account. After twenty-two days, close investigation, if I am not mistaken, we ate unanimous in the conviction of the truth of tbo Sciiptuial account of the destruction of the cities of the plain. I lecord with diflidence the conclusions we have reached, simply as a piotest against the shallow deductions of would-be unbelievers." Tiiuc UtNLioiENCc. — A traveller inAsia Minor, in a time of disttesing drought, found a vas>e of wtt'r under a little shed by the roadside for the refreshment of the weary traveller. A man in tin; neighbouihood was in the habit of bringing the wntpr fiom a ronsidemble distuico acid filling the \ase cveiy morning, and then going to bis woik. lie could have no ntome to do this but a liind regard to the romfoitof vsctry ti.ivellers, foi he was never ilipip to loepivp tl rir thnuLs much less their iuoikv. Thu» was bum.'voloi.u 1 ,