SUPREME COURT.

New Zealand Colonist and Port Nicholson Advertiser, Volume I, Issue 23, 18 October 1842, Page 2

SUPREME COURT.

(Civil side). Tuesday, October 4, 1842. Before His Honor the Chief Justice. W. E. WALLACE and J. H. WALLACE v. GUARD. This was an action brought to recover from the Defendant the value of nine casks of oil taken by him from the station of the Plaintiffs, together with the casks in which the oil was contained. Mr. Hanson appeared for the Plaintiffs, and Dr. Evans for the Defendant. It was contended by Defendant, that the oil was the property, and had been purchased, of one Charles Samuel Cave, who had a right to sell. To this the Plaintiffs replied, that Cave was their servant, and that Defendant knew 1 him to be such.

Mr. Hanson, for the Plaintiffs, called the following witnesses :—•

James Colder said—l am a whaler at Coalheaver ; I was headsman at Mr. Cave’s whaling establishment at Cloudy Bay; I do not know Mr. Cave’s hand-writing. Rumsey Forster sworn, said—-I know Charles Samuel Cave; I have seen him write; I believe that is his writing. • > By the Court—l have seen him write twice within the last few days : [Agreement and bond signed by Cave, dated 3d January, 1842, and Messrs. Wallace, pro-duced, read]. James Colder continued—l joined the party at Cloudy Bay, to whale, about the 25th of April, 1842 ; I resided at Cloudy Bay about a fortnight before ; I knew for whom the fishery was carried on, Messrs. Wallace; I understood it before, by Mr.. Wallace sending some? oars with me ; I was engaged by Mr. Cave ; some of these oars were employed by me in whaling; I remember a whale-boat being brought there by Mr. Guard; it was delivered, I think, to Mr. Cave, about the 15th of April, or thereabouts, before the commencement.of the season; we had sixty-gallon casks to put the oil in when taken, which were supplied by Messrs. Wallace; and Mr, Wallace and Mr. Cave both told me that Mr. Wallace sent the casks. We caught the * fish ■ (whale) somewhere about the 18th of June; the oil was put into the sixty-gallon casks, and the casks are the same as I have referred to as being sent. by Mr, Wallace; the.casks.with the oil were taken off the beach while Ifwas wlialing; Mr. Guard’s vessel was lying. iih'Gceah Bay, .‘opposite Mr. Cave’s fishery ;> I heard'that the , oil was taken when I-first came on shore ; the casks .with the oil, or part of them, were on,the beach when l went out; I saw casks alongside of Mr. Guard’s vessel wlien I pulled in; the casks ".appeared to me to be about sixty-gallon casksj> Mr.' Guard!? vessel did not remain long/opposite to';jtb fishery; she went away that evening,- or tl| following; day; I saw Mr. Guard', sometirf® afterwards in Cloudy Bay, about a month oi six weeks afterwards.. ,1 Cross-examined by Dr. Evans —l had live! at Cloudy Bay about a fortnight previous;, was there, about/six months ; I do not knoj how lpng Mr. Cave has lived at Cloudy'Ba|; I saw hiiri six months before, there; I did # ascertain how long he had resided- there;; * understood the whaling station, and. the boats were Mr. Cave’s; Mr.. Cave told me the whaling station belonged to himself; the whaling, seaso® commenced about 25th April,- and carried o® till the latter part of July; T signed articles t® Mr. Cave ; this was not the usual duration the whaling season, (from April to end of July}! the whaling season ; usuaUy terminates, about $ Ist of October; Mr. Cave discontinued # whaling fishery, because the men and myse® were discontented at the oil being taken ayyay andhot guaging it; I gave Cave ,nore&§°.! whatever Cave broke the fishery up ;•$$ Cave said he could not us,vvith prW sions ; the men did not express disSatisfactio®

fo Mr- Cave, but they did to me, on account of the badness of the provisions, and the taking n wav the oil; I did not tell Mr. Cave ; I told it to the chief headsman directly I came on shore and missed the oil; I had nothing to do with Mr. Cave; I expressed my dissatisfaction to the chief headsman; I heal'd Mr. Smith express dissatisfaction to the chief headsman, but n ot to Mr. Cave; all the parties disagreed about the loss of the oil and the provisions about the end of July; we procured some oil from the 18th June and the end of July; the men complained that the provisions (meat) were not (rood; the men received a daily allowance of half a pint of spirits; some dissatisfaction was experienced about the spirits at the end of July ; they found fault that there was too much water put in ; I cannot say if any spirits were supplied to the station after the 25th of April; the first time I heard the people under articles express dissatisfaction, was about the Ist of July ; I might have heard dissatisfaction about the spirits and provisions before or after the Ist of July, but I cannot say; all the parties lenocked off duty on account of discontent at the spirits being watered, and the provisions had. [A memoradum dated 28th July, 1842, signed by witness, produced and read.]

David Johnsto?ie said Hort & Co.; I recollect Mr. Wallace and Mr. Cave calling in the month of April about some beef and pork; Mr. Guard (defendant) was with them at the time ; the beef and pork was required for the whaling party at Cloudy Bay ; a cooper was in the store, and a cask was opened and examined, and approved of by all parties present; there was a deal of conversation about the whale fishery; Mr. Wallace asked Mr. Cave whether the beef would do, this was in the presence of Mr. Guard; Mr. Cave and some of his men called, and took away the beef; there was a conversation in Mr. Guard’s presence, to the effect that the beef was wanted for the station in Cloudy Bay, and was to go down in the New Zealander, Mr. Guard’s vessel. Cross-examined by Dr, Evans— Mr. Wallace was the purchaser of the beef; Mr. Wallace requested Mr. Cave to look at the beef; Mr. Cave said the beef would do, and Mr. Wallace purchased the cask; I cannot state, of my own knowledge, by what vessel the beef was sent to Cloudy Bay. James Spiers said—l am a boarding-house ■keeper; I was formerly, clerk to. Messrs. Wallace & Co.; I remember something respecting the purchase of a whale-boat by-Messrs. Wallace of Mr. Guard ; I heard - that the boat was to be delivered by Mr. Guard to Mr. Cave, for the use of the fishery; the casks were filled with goods, and supplies, consisting of prints, blankets, &c.; Ido not remember that there was any spirits skipped ; I believe the empty casks were sent by the Gem: I do not know how many gallons the casks would hold. Cross-examined by Dr. Evans —Mr. Wallace bought the boat; I cannot say any thing about thestate of accounts between Messrs. Wallace and Cave; I cannot tell what quantity of goods were conveyed by Mr. Guard to Cloudy Bay ; there were several hundred pounds worth; I never had any thing to do in making out Mr. Cave’s accounts; the goods were sent on board Mr. Guard’s vessel, and were directed to Mr. Cave; I think I directed some of them myself; Mr. Wallace always supplied the fishery with goods and stores, and Mr. Cave was to send in return the oil of it; Mr. Cave told me that he should make a,good thing of it for Mr. Wallace. John VPade said—l am an auctioneer and agent; in January last I supplied Plaintiffs with spirits; I thifik I paid £37 duty ; it would be about 148 or 150 gallons; it was sent to Cloudy Bay; 1 saw it on the wharf to be shipped ; I hnow the defendant; I have had some conver-

nations with Defendant: it was'generally about the subject of this suit. w Cross-examined by Dr. Sjpfeis— I have had large, transactions in oil ; I gave £l7 per ton for oil myself, delivered at Kapiti and Cloudy % at the ship’s side; the prices during this season have varied much;. up to the month of My a very large, price was given; in July £37 per ton was-given in this -place ; I am- not cogpant of ans : sales at the stations; I have sold "o be delivei&d at the end of the season at £l6; 1 have.since frefused.anoffer f0r.£1,7 ; the highest prices contracted to be given at the beginnmg of this season was £l3 per ton, the buyer to famish casks, and to advance all necessary applies, and he was to charge a good profit on those suppliesthe net prices .this season will he about £SO per ton; but if the season had been good, it would have been only about £l3; the merchant,, in .a bad season, has agreat loss, bat in a good season- the merchant has great profit; the highest price given for oil this year, 1,1 has been £6O per ton, about ss. per gallon,merchant's priceto trader. Cross-examined by Mjr; Hanson —The high Price of £6O for the oil was got about June or beginning of July. Alexander Fraser said—l am a cooper, and reside at Mana; I was at Nelson .in June last, Ihe 21st; the price of oil w-as £126 per ton; I in Nelson eight days. * Cross-examined by Dr. Evanjb— l-tpok two tons and 7 thirty-six gallons; :j do, ,not rkhbw the price of oil was at f that Pbrt Nicholson • I do not know shat*the> price*is

between the whalers and merchants ; the oil is taken by contract for the season; 1 have given £l2, and some got £l3 ; I bought the oil in Queen Charlotte’s sound ; I gave £2O per ton in money ; I sold last season 100 tons at £l7, and 72 at £18; the .average price given last season by merchants who furnished the supplied by contract, was £l2; in the lay party there is no charge for provisions; I gave £l2, and found the provisions, and afterwards sold the oil at £l7 and £lB, as before stated. Thomas Milne Machattie said—l am a merchant ; I have been connected with the whaling establishments for about three or four years ; the property, of the oil after it is taken at the whaling station, it is understood belongs to the merchant finding provisions; I have never known instances to the contrarv; this custom • • * is notorious.

Cross-examined by Dr. Evans —I am both merchant and whaler ; I have been engaged in it for the last three years; lam not a practical whaler, but I am a merchant supplying stations; the contracts between merchants and whalers are not always the same ; I agree to take the oil at a price ; the property in the oil vests in the merchant immediately when taken; this is generally understood; it may depend on the contract between the parties ; the accounts are adjusted between the merchant and whaler at the end of the season; the quantity is ascertained by guaging it when it is taken away; a merchant is not bound to pay for more than what is actually delivered to him; after the trying of the oil, and if the oil should by accident be lost or destroyed before guaging it and delivering it to the merchant, the loss would fall upon the whaler; the obligation to ship belongs to the whaler; loss might depend on contract where casks are stoved in taking it from the beach to the vessel; the average price of oil this season at my station is £l3, besides casks; I recollect buying oil last season of a Mr. Price; I believe he was whaling on his own account. William Potts said—l was recently mate of the brig Victoria; I was master of the schooner Ariel in July last; I went to Cloudy Bay (Guard's Bay); I went to the fishing station of Mr. Cave; no one accompanied me to Cave’s station ; Mr. Wallace went to Cloudy Bay; I went to Cave’s station for oil; I did not procure any; the reason given was, that Mr. Guard had taken it away to Nelson. Cross-examined by Dr. Evans —Mr. Wallace stated this reason; he was the person that went with me ; I went to fetch cattle as well as oil.

David Starke Durie —l am a storekeeper; in July last I purchased oil in this Port; I gave at the rate of £36 per ton; oil could not have been purchased for less; I have correspondents at Nelson; the price there was between £SO and £6O. Cross-examined by Dr. Evans —These were prices paid by the retailers, and arose from the scarcity of the article; I did not know what the prices were at Cloudy Bay; I bought afiout between one and two hundred gallons.

This was the Plaintiffs’ case. The Defendant called no witnesses. The learned Counsel addressed the Jury, and his Honor summed up.

Verdict for Plaintiffs, the value of the oil at £36 per ton, and costs.

HORT v. HAIR.

This action was brought to recover from the Defendants the sum of £34.145. 2d., being the difference between the price of certain sheep purchased of the Plaintiff at a public auction by the Defendants, and the price for which the same sheep were afterwards resold. Mr. Hanson appeared for the Plaintiff. Mr. Hair, one of the Defendants, appeared in person.

Mr. Hanson, for the Plaintiff, called the following witnesses:—

Mr. Levin said—I am a merchant and storekeeper; I was present on 19th of June, 1841, at a sale of sheep by Mr. Hort, the property of Mr. Campbell; I acted as clerk to Mr. Hort at that sale; [the sale-book, containing conditions of sale and prices realised, was produced, and conditions read] ; Mr. Hair was present, and pmchased some sheep ; I made the whole of the entries in the book—lst lot, 50 at 305.; 20 at 295.; 20 at 285.; 10 at 285.; 10 at 275.; the whole niimber is 110 sheep, and the amount £159. 10s.

Cross-examined by Mr. Hair —-I acted asclerk to Mr. Hort on that day ; I had not any connection with Mr. Ilort as to produce of sale; Mr. Robert Waitt was present; he made some purchases; I do not know the number; 170 sheep were knocked down to Mr. Waitt; I am not aware whether Mr. Waitt took possession of the sheep, or whether he was a bond fide purchaser. David Johnstone said —I am clerk to Plaintiff; I was clerk to Plaintiff at that time (June 1841); I was present at sale of sheep for Captain Campbell; I saw a lot of sheep delivered to Mr. Earp; the sale took place on Saturday, and the following Monday the sheep were delivered to Mr. Knight, one of the Defendants ; I delivered 108 sheep; the whole amount was £159. 10s .; I made out all the bills; that amount was accounted to Mr. Campbell; I made out the account sales to Mr. Campbell; the auctionduty was paid, on that amount; 1 am ; ip the habit of; making out the return of the auction duty, and I returned the auction duty on this sale to Mr. Murphy; the sheep wpre delivered

to Mr. Knight about 11 o’clock in the forenoon, Mr. Hair refused to complete his purchase, Mr. Hort sold therq on behalf of Mr. Hair; do not recollect .the exact amount without refreshing my hiembry ; [a note in witness’s handwriting prodiibed] ; the amount realised was £llß. Is. lOd.

Cross-examined by Mr. Hair — I was present at the sale; when you purchased the sheep, I remember Mr.‘ Waitt being present; 3ome lots of sheep were knocked down to him; I did not deliver any sheep to Mr. Waitt; the lots knocked down to Mr. Waitt were bought in ; I gave delivery of the sheep to Mr. Knight: I counted the sheep over with Mr. Knight; there were none others remaining after the delivery tb Mr. Knight; the sheep were just landed; there were one or two dead in the pen, and there were several killed ; there were some killed on Sunday, and some on Monday; some were killed by your man at Mr. Hort’s store ; I am not aware they were killed at Mr. Hort’s request; lam not aware they were killed on Mr. - Hort’s account: [Letter from Mr. Hair to Mr. Hort, dated 21st June, 1841, produced and read]. Examined by Mr. Hair—

John Wade said—l am an auctioneer and agent; Ido not remember the day of sale; it was on a Saturday; I purchased some sheep from Mr. Hort; I purchased them at the same sale as Messrs. Knight and Hair; I bought the sheep after the sale by private contract; I cannot call to mind the exact number, there were upwards of 200; I did not get delivery that day ; I got delivery on the Monday morning. I distinctly remember both Mr. Hort having written to me, and spoken to me on the subject of my having had the first run out of the fold; the exact purport of the letter or conversation I cannot now tax my memory with; I had the first run of the fold; I recollect a conversation with Mr. Hort which took place at Defendant Hair’s, who was dissatisfied with the sheep ; Mr. Hort did speak to me about your (Mr. Hair) being dissatisfied ; I refused to return the sheep ; it is usual at sheep sales that the first buyer should have the first run, should he appear at the proper time to receive such run; in his absence the second takes his place, and so' on in rotation; I got the order for delivery very early in the morning, but I do not recollect whether it was written or verbal; I cannot say that I saw any person belonging to Knight and Hair on the premises. Cross-examined by Mr. Hanson —lf the first purchaser does not attend and apply for delivery at the time appointed for delivery, the auctioneer delivers to the second, if he appears; and if not, to the next purchaser who does appear. If the conditions were that the sheep were to be delivered out indiscriminately at the conclusion of the sale - ; the proper time is as soon as the auctioneer can make up his account after the sale; if the first purchaser did nbt appear at the conclusion of the sale, or at the conclusion of making the accounts, the auctioneer had not a right on a subsequent day, to withdraw from the second purchaser the delivery of the sheep. Henry Welch said—l am a butcher; I was formerly servant to Defendants; I remember being at Mr. Hort’s store, and killing four sheep which I left there; this was on Monday; I did not remove the sheep from Mr. Hort’s store; I was there a little before seven; I did not see Mr. Hort; I did not see any sheep delivered while I was there.

George Hunter said—l am a merchant; in the discussion attached to the case before the arbitrators,' Mr. Hort admitted he was called out of bed at five o’clock in the morning, to give a verbal or written order for the sheep. Verdict for Defendant.