SUPREME COURT—CIVIL BUSINESS

Otago Daily Times, Issue 271, 1 November 1862, Page 5

SUPREME COURT—CIVIL BUSINESS

Friday, 31st October. (Before His Honor, Mr Justice Gresson.)

THE GREAT SHEEP CASE.

Teschemakeb and Another v. M'Lean. — {Special Jury).—lit Gillies and Mr Cook for the plaintiffs; and Mr Howorth and Mr Barton for the defendant. *

Mr Justice Gresson took his seat at ten o'clock this morning. The case for the pontiffs was resumed. Wm. Henry Tesehemaker, one of the plaintiffs, was recalled by the Judge. He said that he had no notice of any agreement between the defendant and M'Andrew. When he presented the undertaking, he had no notice that the ewes had not been paid for.

Wm. R. Jeffreys, clerk iu the Union Bank, produced a cheque by James M'Andrew and Co., dated 24th September, 1859, for LI.OOO, which Avas paid to the credit ofthe defendant's account.

By Mr Howorth : M'Andrew kept an account with the Bank, and always signed his cheques, "James M'Andrew and Co." He believed that M'Andrew ceased to bank with them about the end of 1860. and that he then transferred his account to the Oriental Bank.

lie-examined: M'Andrew ceased to hank with them about the end of 1860, or some month before. Frederick Greer said tliat the firm of James M'Andrew and Co. was determined in January, 1860; he (the witness) purchased the business, and'he and M'Andrew jointly issued a printed circular regarding the change. The circular produced was the one. [The circular, after setting forth other matters as transferred to Greer, concluded, " and relinquished in his favor our colonial business as commission agents."] M'Andrew had at that time taken office as Superintendent of the Province. In 1859 he was employed by M 'Andrew and kept a portion of the books. The book produced was an original cash book kept by him'-elf.

Mr Barton objected that an entry made by the witness at the request of M'Andrew could not be evidt nee against a third person. M'Andrew could come aiid state facts within his own knowledge; the witness'? evidence from the book must be merely the result of hearsay. The objection was overruled.

Examination resumed :He knew that in September, 1859. a cheque for LI,OOO, was paid to the defendant by M'Andrew—that was, he knew that there was a block in the cheque hook to that effect, and he rather thought he himself drew the cheque. It was numbered 913, and was the one produced. The defendant was occasionally in M'Andrew's ofiice about that time. On the 23rd September, 1859. he made an entry in M'Andrew's book of a payment of LI,OOO to M'Lean Brothers, on account of 2,000 sheep placed in M'Andrew's hands for sale. Mr Barton made repeated objections to the admis- i sibilifcy of this evidence. The witness could not tell whether what was referred to in the writing was factor fiction. The Judge said the evidence would begood ifM 'Andrew were dead, but he was very doubtful about it at present. Mr Gillies would not contend for it; although he believed it might be supported. He had the cheque signed by M'Andrew before the Court. Examination resumed: The book handed to him was the bills payable book. In it he made entries; of all bills drawn upon and accepted by M'Andrew and Co. Mr Barton urged that the same objection applied to this evidence. Mr Gillies said he- wanted to prove the loss of a document; and The Judge said The would allow evidence necessary for identification. - Examination resumed: He could not remember seeinji a bill for L1,500, drawn by M'Lean Brothers j on M Andrew; on looking at an entry in the book his impression was that he did see such a bill, but he ' could not be sure. \ The Judge doubted whether this evidence could ! he of value. continued : He had no doubt that he did see such a bill. It was cancelled on the 27th September, 1859; he did not know.where it was now. From the entry he made at the time, he presumed that the bill was destroyed. The^ Judge said the evidence would not be good unless the witness could, apart from the entry, satisfyhis conscience that he remembered the destruction of x £■ v J* 1 w-as a Bort of argumentative conclusion to wnicJi the witness was coming. -M* Gillies submitted that the evidence was admis* able jnst as evidence of witnessing a deed. ?T e £"s&* d there was S^B* doubt ab<rat **• Mr (iuhes (to the witness).—From your universal practice in keeping that book, have you the slightest doubt upon your mind as to that bill being de-j stroyed] . !

The Witness : No, I have no doubt. There was another objection, and more discussion. Ihe Judge said the course of examination tended to make the entry evidence, not the witness's recollection: and the former was not admissible. Mr Gillies quoted Taylor " On Evidence," and the Judge allowed the evidence subject to objection. .Examination resumed : On referring to the book, be could say that the bill was drawn by M'Lean Brothers; he could not remember the fact without such a reference. The sale note produced, and dated JStfi Sept mber, 1859, was written hy him, and Slg?? d »y ' PerProcuration, "James M'Andrew -end Go. M'Andrew made the sale, and he (witness) ™ Jm?. 00"^' Tbe run was sold on account of Mr William Mills. [As to the sheep, although Mr Gillies put several questions, the witness could state no more than that M'Andrew had told him certain things.l By Mr Howorth: The commission business relinquished to him in January, 1830, was M*Andrew's JVew Zealand commission business. There was a clause in the agreement that M'Andrew should not longer carry on business, except as to some emigrant ships coming out, which he had contracted for. M'Andrew might have subsequently drawn bills and cheques in the name of M'Andrew and Co; no doubt be dd, but only for the purposes of liquidation. He (the witness) had part of M'Andrews offices, and in another part M'Audrew had Mr Douglas and other clerks employed through 1860 ; it was most probable that they were so occupied until M'Ai drew made an assignment. In the bills receivable book, there was an entrv, January 26th, 1850, as to LSOO, but it was not made by him, and he did not know anything of the trausaction referred to. The upper part of the paper produced was in M Andrew's handwriting. It was dated " Dunedin. 30th May," and was as follows :—

e " Messrs John and Allan M'Lean, ' Dear Sirs,—ln terms of your instruction, we beR to advise having sold to Hugh Stafford, Esq., 1.000 ewes, from two-tooth up to full-mouthed, none broken ; to be fairly run off your whole flock. Delivery to be taken at any time within two mouths from this date. Lambs, if any, not to count. M'• Stafford has granted us his acceptances for L775 at four months, and L760 at six mouths, which amount we now hold at your disposal.—We remain, &c, "James M'Akdrv.w fe Co." He did not know whose writing the lower part ot the document was: but the writing at the back was the defendant's. Tlie LI.OOO of which he had spoken did not refer to tlie sheep mentioned in M'Andrew's writing. M'Andrew went to Melbourne in 1859 and left him (witness) in charge of the business it must have been the end of September or the beginning of October. He had some correspondence with Mr Stafford with reference to acceptances given for shrep which had not heen delivered; the letters from Mr Stafford related to the 1,000 ewes referred to. Mr Stafford's acceptances amounted to the whole of the cost price of the ewes. The letter acknowledged two acceptances held to the account of the defendant; but he believed they had no connection at all with the LI,OOO. He made an entry in the cash book, on the subject, by M'Andrew's direction. It was only from what he heard from M*Andrew that he knew anything as to what the Ll,ooo was for. Ite-examined : The first of the hills would not be due until the 3rd October, and the 2nd until the 3rd December; the LIOOO cheque was paid in September By the Judge (for Mr Howorth) : One of the hills was discounted ou the day it was drawn ; the other on the Ist August. By the Foreman: He might have cancalled a i cheqne in the book without seeing the cheque, if told to do so by M'Andrew ; but he had no recollection of ever having done such a thing. This was the case for the plaintiffs. Mr Howorth applied for a noii-suit; but the Judge said that he could not see the slightest ground for such an application. <

Mr Howorth proceeded with his opening statement for the defendant. The evidence already given by po means supported the allegation that the defendant had improperly stood by and allowed the plaintiffs to be misled as to the relative positions of M'Andrew and himself. There was no agreement between them except that some sheep should be delivered when they were paid for; aud as soon as the plaintiffs applied fo.' the sheep, the defendant's brother expressly told them that M'Andrew had not paid, and that no sheep would he handed over till he had. What the plaintiff ought to have done was to present to the_ defendant M'Andrew's delivery order in their favour, or to have given notice of it. The sheep were not deliverable until November; and if the defendant had actually gone so far as to have agreed to hold for the plaintiffs, so long as M'Andrew had not paid for the sheep, there was nothing in the case to warrant the suggestion that the defendant had parted with possession, or forfeited his right to a lien. The case for the plaintiffs simply asked the jury to believe that the defendant was so had a man of business that he would undertake to deliver L3,000 or L4,000 worth of property, irrespective of payment. John M'Lean, the defendant, said that in April, 1859, he authorised M'Andrew to sell 1,000 sheep. The sale was effected, and delivery was made to Hugh Stafford, as was understood for his brother and F. Dillon Bell. The top part of the document produced informed him (the defendant) of the sale; and the other part was an order from Hugh Stafford to F. Dillon Bell to appoint some one to take delivery, Thomas Newton being afterwards appointed. The sheep were delivered pursuant to the instructions. In September, he thought it was, when he was in town, M'Andrew gave him LI,OOO on account of bills referred to in M'Andrew's writing, and the balance, he presumed, was parsed to his (the defendant's) current account with M'Andrew. The cheque produced was, he be lieved, the one given to him by M'Andrew for the LI.OOO. During^ the same month of September, M'Andrew gave him his acceptance for"Ll.soo, he believed, at a month's date, for the purpose of remitting to Canterbury. M'Andrew knew that the acceptance was for his (the defendant's) accommodation. He took it to the bank and asked the manager, Mr Jackson, to negotiate it. He got no money. °On the next day, or the next day hut one, he realised about L3.000 on a sheep transaction with Mr Wm. Campbell, of Victoria, and he lodged the money in the bank, drew M'Andrew's acceptance, and took it to him requesting him to cancel it. He believed M'Andrew did as requested, for he never heard any more ofthe matter. In October, 1859, M'Andrew applied to him t6 supply 2,000 sheep. If delivered in January they were to be 27s 6d each; but if taken before shearing, then the price to be 30s. The agreement was not in writing. The sheep were to be paid for in cash on delivery. He was leaving home about the end of December for Auckland ; and he ininstructed his brother not to deliver the sheep, unless he sent him directions from Dunedin to do so. He had distinctly informed his brother of the terms of sale, and the name of the party to whom the sheep had been promised. M'Andrew and Co was the party, In January, whilein Dunedinonhis way to Auckland he saw M'Andrew, who did not pay forthe sheep, and in consequence he (the defendants wrote to his brother not to deliver. He returned to Dunedin from Auckland about the first days in May; and the day after he arrived M'Andrew came to him. and he assented to a proposal which M'Andrew made. He signed two documents which were written by M'Andrew, one of them being also signed by M'Andrew. The words " Terms, cash on delivery, 37s 6d each," were written by M'Andrew before the signatures were attached. The object was to show upon what terms the sheep were to be delivered; but the endorsement at the hack to the plaintiffs was not there when he signed. He never sa%v M'Andrew on this subject after signing the memorandum. The same day or the next, Tesehemaker spoke to him in the street, and asked him if he had promised to M'Andrew an allowance on the price of the sheep if he did not take them until January. He understood that Tesehemaker was to get the sheep from M'Andrew, on the same terms as he (the defendant) had promised them to M'Andrew. He replied that he had made such a promise; and Tesehemaker asked, " Would you mind giving me a memorandum to that effect T He replied that he.had ho objection, and that Tesehemaker might write what he wanted to that effect, and he would sign A it. They went into M'Andrew's oflice, and the memorandum on the undertaking-was there written by Tesehemaker,- and signed by himself. But after signing, he told Tesehemaker that the allowance was not made to him but to M'Andrew, to whom the original "promise to supply the sheep was made, and that he was dealing with M'Andrew alone in the matter. Tesehemaker said-that .he understood, it that way. On leaving the ofiice, Tesehemaker made a remark that M'Andrew had already disappointed them; and he replied that he had nothing to do with that, and that Tesehemaker knew why the sheep were not delivered. Tesehemaker said he suspected it. When he (the defendant) Baid that he was making the allowance to M'Andrew and Co., he added "when they pay me for the sheep." Tesehemaker said that he wanted the memorandum to know what they were to get back from M'Andrew, for thev had paid him for the sheep. This, he thought, w inimediateiybefore he parted lrom Tesehemaker on leaving the office.^ He made the remark that the allowance was to M'Andrew and Co., and not to Tesehemaker and Strode, because, he saw the word "gentlemen" at the head of the memorandum, w™*ould apply to either party, and-he spoke so that Tesehemaker should not apply it to himself and btrode. It was not true that before signing une - memorandum - M'Andrew* introduced Teschemakerto him in the street; nor was it true that in jP_c«=r«eti in the presence of M'Andrew, he said You don't suppose; Mr Teschemaketfthat I-stionia* [ wow sheep to l&deUvewd when I vas fiw» home,"

nor any words to that effect. 1! ■•. ■. • , or *aid at ••-■•• time, that, he should prefer giving o^ for kmM Andre v was not present at any lime during i' . interview between him (the defendant) and T«chemakerm the street. He never said to TescKmaker that he should prefer delivering 2,000 sheep in January rathe.- than November; it was quite immaterial to him when he delivered. He did not think that anything of the kind was ever said hy himself or Tesehemaker. When they met in the street leschemaker might have had a paper in his hand but he certainly was not exhibiting it. Before (t»e defendant) signed the wool memorandum, Tesehemaker did not show him any endorsement on the undertaking; nor did he ever seethe endowment uutil ia January, 1661, when the undertaking was presented at his own station and the sueep demanded. He remembered meetin"Tesehemaker near Oamaru, in January, he thought Tesehemaker said, "Air M'Lean, we are going to send for the sheep;" and he asked "What shcpp?" Tesehemaker said, " Tho^e you sold to M'Andrew " He replied, "Mr Tesehemaker, you know I never recognised you in that transaction. If vou come with M'Andrew's order, and pay forthe sheep, you can have them." Tesehemaker said, '• Wc certainly will not pay for them; we have paid already. 5' 'Very well," he replied, " you can't have thein." Tesehemaker said, " You know that delivery was to be irrespective of payment;" and he replied* that he knew nothing of thai, for his'agreement was, cash on dehveiy. Between January 1860, and this time, no application was made for the sheep. When he signed the undertaking, his flock numbered about 18J000, young aud bl 1, running in various large lots. No 24u0 sheep were evevfiet apart to supply the contract with M'Andrew. Of course he would have "culled" his whole flock, in delivering under such a contract as that witli M'Andrew, "and thev could not be culled" without drafting. In drafting, the sheep were .run through the yard, and all the worst would be put aside; that was " cullintr."

hy MrGiliies: As long as they were within the specified ages, and not unsound, a purchaser under such a contract could uot reject them; he niio-ht in auy case, reject at his own risk. It would bekib'out the beginning of October that M'Andrew told him of the sale of a run and sheep to Tesehemaker; it was at tlie same time he asked forthe promise of sheep from him (the defendant), so tint he understood thev were for the purpose of stocking the luu, unless M'Andrew bought elsewhere. He did not desire to sell, for lie had disposed of all the sheep he wanted to be rid of; and he made the promise only to oblige M'Andrew, who pressed much for it, saying it would be a convenience to get the sheep at Morven. Thepromise was made during the same visit to town as that on which he got the LIOOO from M'Andrew, bat subsequent to that transaction. He never signed as for " M'Lean Brothers ;" there were different stations in charge of different brothers, and each was interested in ;di. His hrother Robert was in charge at Morven during his (the defendant's) visit to Duiiedin and Auckland. He saw the undertaking and the duplicate written and signed at the same time. He swore that the mention of terms in the duplicate was written before signature. M'Andrew said that he wanted the undertaking only to satisfy Tesehemaker that he (the defendant) Avas still willing to supplv the sheep, if he (M'Andrew) did not get them elsewhere. It did not occur to him that a statement ofthe terms in the document which M'Andrew to;>k for that purpose, would have any ciiect whatever ; Tesehemaker knew tbem. It must have been before the shining of the undertaking and memorandum that he first, heard that Strode was interested with Tesehemaker. The first positive knowledge he ha 1 of the fact of the partnership was from Teschemaker's statement a. January. 1861, that he and Strode had paid for the sheep. When Tesehemaker spoke to him nenr M'Andrew's office, he knew that Tesehemaker and Strode were iu some way connected, but not in this transaction. He believed thnt Tesehemaker told him, in M'Andrew's office, and before signing the memorandum that he had paid M'Andrew for the sheep ; and he would not swear that he had not been told it previously. When a sole was to he insisted oh, bought and sold notes were, of course, passe 1. A man who was buying a thing, would not sign a note, " I undertake to deliver." When he asked Tesehemaker at Oamaru, " What sheep V his object w.-is to get him to state whether he looked unon them as his own tdieep jr M'Andrew's: he '"• defendant) hid never acknowledged Teschemake. :'•••* transact-'■■•-. He thought that M'Andrew had :: >t, that tin.-' . " smashed ;" at least he was not an.. .." it. but Jihad unders* oorl that M'Andrew was in diffieiuJe". The statements by Tesehemaker and Strode, as to the former going away to consult the latter rerpeetiup, tlie wool money memorandum, and returning to him (the defendant), and about his saying that lie had signed the memorandum, were not, according to his belief, correct. He swore that, to the best of his recollection and belief, such things never occurred. To +he best of his belief he was not at Sibbald's Hotel with Tesehemaker, on the day when the wool memorandum was signed. He believed that at the time, the balance of account was in his favour and against M'Andrew. Runholders were then in the hahit of drawing against merchants, and the LSOO paid in before he left Dunedin was to protect M'Andrew against, such drafts. Without seeing tlie vouchers, he would not undertake to say to what amount he drew upon M'Andrew and Co. after October, 1850. He had seen a statement by Mr Howard, of account-current between himself (the defendant) and M'Andrew. That statement showed a balance against him, in November, 1800, of LlO5 ; hut he altogether denied the correctness of the account—it was no account at all. Before signing the woolmoney memorandum, he did not. know that he told Tesehemaker that he had not been paid for the sheep and would not deliver until he was paid ; if he had heen asked he would have told the facts. The 450 sheep were added to the original 2,000, hecause M'Andrew said he was obliged to allow Tesehemaker for increase ; f'at \va3 M'Andrew's reason for asking the 450 sheep from him. It would be safe for!j the station master to allow 45 per cent, increase of lambs, and one sheep for every two lambs would he a safe equivalent. Re-examined : In the account mentioned there were charges against him for things he never had, commissions that ought not to have been charged, and some charges made twice. On a true aecount he was satisfied the balance would be against M'Andrew.

Robert M'Lean said that when he told Tesehemaker, at the Morven Hills Station, that M'Andrew could have the sheep if he paid for them, but that his (the witness's) brother had given positive instructions that they were not to he delivered until paid for, Tesehemaker said that it was only as he had known M'Andrew serve other persons. The next morning, Tesehemaker asked him whether he would sell 2.000 sheep, and he replied that he would at 30s. Tesehemaker and Strode declined to conclude until they had seen tbeir country; and after a few days' absence they returned and said that they would not need the sheep. He signed a letter which Strode wrote, for the purpose of showing M'Andrew what had passed. He did not then, nor did he now, know anything ofthe stote ofthe station account between his brother and M'Andrew; he simply superintended on 'this occasion, durinerhis brother's absence.

By Mr Gillies: He could produce the letter written from Dunedin by his brother. It was-" Hear Robertson,—l have seen M'Andrew. The sheep are not to bo delivered at all, so that you and Wilson can place them where you think best." No doubt the words "not to he delivered at all," referred to the 2,000 sheep. He never talked with Strode about M'Andrew's affairs; he never knew anything of those effairs. To the best of his belief he never said to Strode, with, reference to M'Andrew, "Thank God we are on the safe side of the ledger;" but if he did say it, it was an untruth, for he never knew anything about the ledger. When Tesehemaker and Strode came up, he had 4,000 sheep drawn for a purpose; and if a delivery order from i o £™ w }** been presented, and payment made, r «£' m sheep wonW have been drawn from that 4,000. This concluded the evidence for the defence • and at half-past five, the Court adjourned to ten o'clock on Monday morning.

Fali. of Fish from the Clouds.—As- to the actual fall offish from passing clouds, the evidence 13 such as to leave no doubt of the fact. Well-attested instances are numerous. The late Dr Buist, of Bombay,, made a collection of those that came within his observation. For instance, at Merut, in 1824, fishes fellontheroenof the 14th regiment when at drill, and were taken up in numbers. On the 19th Feb. at noon, a Leaver fall of fish occurred at the Nekulhatty factory, in the.. Duccah zillnh; they were all dead ; mos' of them were large; "-',■ ,-> nf them we^c fresh. Others were rotten and • i-, A»d On r >° 16th and 17 Ji of May, 1833, a fall. ■ ;.. -.ccurred "« thezillahof Futtehpoor, about three '•[<.? north e: the Jumme. after a violent storm of wind and iain' The fish weie from a poupd and a half to three pounds in weight, ind of the same species as those found in the tank in the neighbourhood. They were all dead and dry. On the 20tli of September, 1838, after a smart shower of rain, a number of five fisb, about three inches in length, and all ofthe same kind, fell at the Sunderbiinds, abont twenty miles south of Calcutta. On this occasion it was remarked that the fish did not fall here and there irregularly over '. the ground, but in 'a, continuous straight line, not mor-* than a span in brea&th.—St. James's' Magazine. ■ Negroes pob Gotton Gro^wing.—Advertisement have appeared in ..the Canadian newspapers, calling 1 for lOO.negroes jto enter the service of the Australian |. Cotton-Association iuNew-Sonth Wales and Queens* |lan<L?/.The .terms? are aJfreo passage and £ftH pep annum, with rations.— T<m Courier*

ORIGINAL CORRESPONDENCE. 7^A Wl,f, L AND CfigRGH TRUSTEES, -bir ir e L'i dor °f Me Otago Daily Tom.) S">--Mav I request you to publish the enclosed extract, and these few introductory observations. There can be no doubt that the letter which appeared m the Colonist of Saturday last, signed ,P; U;», , m "ircct connection with the decision ofthe Church Trustees of the same date. Some think that this connection is very close. I know that the trustees have come to their decision mainly on the grounds mentioned in that letter. What I complain of is this, that by their action the trustees have seriously reflected on tny honor, and stultified the whole church. The church ask-d them to make arrangements for my expenses. They allow more than five weeks to pass, and then what they say is ju«t this. "It is not expedient to do so." What had they to do with the expediency ? The church decided this for them. They were instructed to make the necessary arrangements, and with the expediency or inexpediency they had nothing in the wide world to do. They might have said, we cannot do it, or we will not, but beyond this had nothing to do with the subject. Two of the five trustees who decided on the case on the 25th instant, had. in conference with the Presbytery, concurred ia defraying the expenses of the Presbytery's agent from the trust funds. True, ifc has been alleged that they did not understand this. Well, if they are not able to understand what is done before their eyes, or if they give so little attention to the Church's proceedings as not to remember what she has done, it need not he thought very strange, though I should refuse to obey them when they step beyond their sphere. The assumption of power on the part of tiie trustees at present, has simply and necessarily this effect. It places the trustees above the who'e church. It charges Mr. Will with having misled and deceived the church with false information, and the Presbytery with being so ignorant of its duty, and the affairs of the church here, at home, aud in Australia, as to be easily misled and deceived by him. Shall Iby my own action submit to this '! Ne\ er —no, never!