SUPREME COURT-CIVIL SITTINGS.

Southland Times, Volume I, Issue 24, 26 July 1864, Page 3

SUPREME COURT-CIVIL SITTINGS.

i | SAT^AYtI-Si^^U^tfY; 186^ 4 r : (Before His Honor Mr. Justice 'Chapman.) ;The CcAirt resumed at ten ' ir b*clp^'pre,pise|y.« : ; M'cLxkb-TT t:' YdK niMiiEit 1 Ami anotilei^ ; ; 5 j Tliis case arose out of the one previously trie V jbetween the parties, and plaintiff called the d< '■ |fenda"ntß.,'tp:iaccpun^ .for. the ; . proceeds 'pfjtli ■ paddock, which'' he alleged was' 'riot 'their',.bw property, but that he, the said Yon Hairime: was only.- acting- as manager. . for plaintiff, in th L . matter; 1 c^" :' ; ' : '"' '--':- v ";'--• •--;' ■'• . m-.^»-v-v-./'-''>»'•- --" iThe defendant denied all the. material allega ' tibns^ I '^^^; "■ ' ' : - ; '''''-.'•■'•'■-•'»' . ; /r;..;.-i- "?-^;-;j 'Messrs. Harvey and^. M. South; appeared; fp the plaintiffs; and Mr. Button - for the defence ' ■Ih : the^coirrso bfthe eviidencejhvhich.vva3iin.a] 1 respects similar to the previous case, His Hono stopped the proceedings, and directed that al ( ftn'attersin :dispw.te,'between;. plaintiffs -jand^defend lants, in this as well as other actions pending, ? -bi referred to arbitration. The Court' thSirro'sPr ""' *-"' "— : "*- ' " "*"' [■ A "'"' '-•'■"•'''- *"^' t 'Monday,' 2sth Jitiy. |His Honor took bis* seatTon tie '."bench punctu ally at ten o'clock 1 ; ' ''* " ! -* • v - " ' " • ACKERS J: "CAMERON, r 'Messrs^ S: M/vSbutiilaria v iStuart * appeared : -fo: '■ pkintiff;. and,Mr..C.JE. Button for., the defend ; ,ant. iPfeyiou.st6itheJcase 'being .submittodj :Me, C. -E "ißut'ton explained that the case was brie of partner sliip accounting,' arid that: the : evidence jextendec oyer a period of five years, so that he considered if* His-^Hohbf agreedi^ti^lpropervcoujse'wpulc be to send the case to arbitration. *•■■<'>•: '■• >> ■■''•' '- : -'■ ?His Honor, on, looking. over the case, and tin ! evidence proposed fb ! be^taHld^ concurred; and di ..rectedthat the merits of 'the case- be-,-tried.by tw< 'arbiters,.. with a.tliird chosen by themselves. . .._. (This b'eiiig satisfactory to parties oh both «des tlie case was struck .0ff. ..-. . , „. . ■>< I * : "'''~ i ''-G^AW'Y.'LqwE. ; "' '' •" ,: : '"' „ JTliis was "an" 'action foi- the recovery a salary ,and .wages as general manager, clerk and^ assistant, and/- the Ksum 3br 'was £248 17s. 3d. r\- : r ;ry.Vy;r ; ?Mr. Button appeared for tlie'dofendant, and Mr e S; ; M. South appeared for the plaintiff, i-; ■ - ; t i JMr. Button ap J piied s that 'tliis' cas'e also should'be referred to the decision of arbiters, it being clearly .6he,bf accounting; .", ;.•:,/* „!;',, ';...: *,! ;-:J V- *'• Mr^South„ J diffei , ed, ; : I .and;.meutiQned, /^ the 'action: was siniply one., whereby .plaintiff.; sought, to .reepver his salary .and .wages. .,. , .;,/ y^i; j - "' His Honor decided that it was really no ; case ; >iiich.could. not properly be tried before a jury, "and : 'airec'M"-hat the'^case^^ shouldgo onl' ': iMrI'STM. South'opened the case for the plaintiff, .and.. called ,• \ . •■- ■-■ - - • i'Peter Grant, deposed! — I know 'defendant. He is a saw-mill owner at Riverton. _ I saw him hi April, 1863. Ilentered' into a contract with Mr. Lowe to cart wood, and supply him the ' tijnber at the rate of 9s. perlOO: Seeing that it would.be more advantageous for him, Mr. Lowe subsequently -agreed that T 'should be- manager for him, and do all his business. My wages were to be £1 per day, and to comnience on Ist April. I have continued 350. working ..days, in his employment. The "item £69 is credited by me for board and lodging, and the account of £9 16s. 9d. 'is also credited. Likewise. £16 65., an account due by rrie' to J. -Patsrsbn arid Co.; and £1 2s'.- 9d. 'is, also credited for cash received. I was engaged until the ;sawrniill., commenced; to work by .my contract V but' Avh'en I 'waived my contract m ; favor of wages, -tliis was altered. It commenced ' in : Jime, but' not regularly' till Ist July. I had sometimes twenty men working under^me. I- sometimes paid the wages. The men were paid by cheques, which were signed by Mr. Lowe.-. James Curtain -was paid ...at, . rate of 14s. per day, with free house and firewood. John Cumnring was also .paid at same : rate. I consider '20s'. per day isi'frorii my experience, a fair salary. I put up the first sawrnhll in Otago. It was put up for Mr. Macandrew.'l got" £100 pound a year and found ; and I got a. present of £50 when I finished it. This was six years ago. Wages were low then.?,-' f Th,ey.~aresdpuble since/in many/ cases. ;ry Ii -app'hed for wages to Mr. Lowe when my board icame due. He, always, said he would pay it ; and I*didnot keep asking him continually for money. I? have given hi-m credit .for all sums wliich Mr. Lowe has paid on my account. - Cfross-exammed.— (Bemg,.shown Mr. Paterson's account). : The'£ii is 'for 'inOney I spent on Mr. 'Lowe's business., I got £12 from Mr. Lowe, when Ileffc'for Dunedin. I was a week there. " ; Mr. Button— Then these two sums are the only ones in dispute. v /, ' y ; ; Cross-exarnination continued. — The £6 I gave ■credit for -is on my.. orar; account.. I never .received a "copper " more. I never agreed to work •for my board and lodging till the mill started. I .superintended^ the, works there.; , Mr, Lowe only gave some orders when I /was absent. I sold all the tiniber at ; Rivert6ri. . ; "Mr; Lowe sold the timber to .rnyercargili and the Bluff. " I agreed, when riiakirig' by er, the contract, to Mr. Lowe, that my wages'were to be a3 clairhed for. . ;- ; . i - James Curtain deposed.— l was at the' sawmills at" Riverton; -in June, IS64^ Mr," P.-Grant -was manager., j He ; looked ; after the whole busiriess. I was working for_l4s. a day, with free lioiise and frrewbod". " "Two others were working : along with rrie ; still the mill was hi working order. • Cross-examine<L- T :i am a sawyer and a tradesman. . . !'"" '"" j John Citannhigigaye^pprroborative e,yid.ence. ': Cross-examined.-— We^worked the mill by contract. We were working piece-work. Mr. Grant sbmetimP'S'gave.brders, and ! Mr^ Lbwe also gave vorders:^; '"- j ; ' ;J4: ■■■'^y : * •- '•■•• . j Mr'JiM-'DoriaH, auctioneer, deposed— l consider _|Os;-a*day'for- r as.'genbral' rhanager ni a saw -mill/ where;twenty-mcn;were -usually -working, is a fair salary; that is, for general management and: superintendence. £300 a.year, is ;what I. consider a fair salary. I name th%s,iun to i exclude Sun-; ( 'days. , , -„--,:■_. i Norman' "CampbeU;- a contractor, deposed— ;l '. consider that' in 'the c 'abs"erice ! bf Sriy v specific J agrepment, 20s. a day a fair salary for a manager of a sawmill. k>Tlie: sawyers' - get :l'4s,;;-and;,l,ss;, twet a/nd dry. I have fifteen years' colonial experience^ \ i CrQss;exajnined^l-«liave-iad^^ t0. ..d0, with a saWjjniil in this cbuntiy. _ -iL l This'was the case,;fp'r the:^laintiff. iMr Button opened^the':casg : fbr the defence, and called y-y yiy* &..VsC , T „ . j MjT.C.Lowe,tMdeferidant;depbsed:— lfirstsa.w Grant'at'Lake "Wakatip- '..-I /first made an agreement' with Grant/. who? cahfe dbwn^tq Riverton in consequence of a letter /sent>' liiin. ,. This was lotJweerisiit^na'lOtli A.\>vti,'i I-Aaßked-him i*. M'Gregor, whoJiad.wTitten. up,tQ him, had explained what I'offered f b'do with' Hm. He said, that M £ Gn*prir^saidXthat /ifiShe^cameudown to Riverton and superintende_d.the erection of that I would pay his board. I asked . if Jie were , agreeablei': '-He ,r said r 'ne ; w"as: '-i paid-'fpr '-his -hoard. 'jFor soirie ; we'eks' 5 there' ".was' r ri'6tfimg done,' as we-had hot the engirieSfrbrii'Duriediriv' arid the^ ; place-for thermi.U,was>-inbt fixed, uporiw -The >rriiU . wasvstarted on Ist July. I bnly-.-chargei-liis board in the accounting, from/ Ist July.! ■* .Up;. , to that. tDnehe was "doing a' liMeliri assisting. ;tp ;putup..thp r ;mill,. There iwas noagre'emeritatthe^e^/ha^his wage .£ were 'to.b^:^/Aftef '^e>milL ; started l , ( asked him what lus wages were "to/be, arid hesaidhe wonldbe qui^^jOlmg toi^ift wlrateyer Ltivpuglvt lrim,worth, Thejf.eH;W^V' rio^^rrangemeritij about/, •20s.;.u,.day. There'^as'rrio iarTangeinent/that jKft.^s^ vp.rl piece-workl':' 'His'dut^^ wobd'wheri cutV'to" Metlie;^£f.si^ement;^aiid he sold,any f wpodj, to? partie^ 'whp.;canie to,,thp,mi.l}.. tPhp ; b'y ;cpntiact; ; ;, anA.Gran^had nbi^gl.W'do'^ithit..'. , He'was merely p,fp)sj\fa£ man^ed.tb.e ; busmess;myie^ Dun^diri/ijarid'^nver^ per day was/th'e^averiaga jvvagei, ;bf r (^ ipersbn^n. Iu; bapa'city^^n^e^^ges/.^.^ M)} AxIMM begin' on 'liV tTuly;.:, ,l ■■hftv t e;;paid.^p/ ) accjsptanfiej pPaterson^an^.uned^^TO auth ( br^se;l gjjjna ™ii a^p .oicr^itiijit; {Mf^^m jgivorite ho account Of it. Paterson arid 9°iifTilS So pay all ex|?e/ise,S3ConnQcted i w|Jh bbiTer. . [paid, G^nt%explaß^f, : to,jand L |- om' Dunedin, an< iM6*h'virig there, ''y'-l 1.-. ■■' --.- -„-. ,,-„ „ .„t

•rra -*?g^|^{£^^ except on onebrt t^b^ccasiQrisA I hwdedthi cheques •-■■- to ,plaintiff v .„He.„kejgt_the_ „books after the mill started. He merely assisted hi putting 1 tijvthe I mill, b e ft»re .Ist-f J/uly,'i :i -.and did/ not manage the •j- erection from ist^Aprilto-lstiJuly.- -.-/;..;-, ; „ J 3. JbhniMacgregor,-^^ a •rrun-hplder/an.dfsettler, de- [ e ,. pbspd-^I ath- J a,sbn inlaw , of defendant's,,, , L -saw n ' |Grant.-at''the Lakenn i; consequence /of a letter-I {. from jVtr.. _L0w,e.. ; ... , It .was about the endpf q March or beginnmg of "April. .Grant was. put, of work then, /and I told him he might have wori at k . Riverton 'fprbis/bbarcl,'u'ntilthe mill : started; ! He i:: iwent'dpwri^'few '.days aftenvards. / : : ' /.'■%.'." ; ''".'" u- , „. . ; cViso-exfimitfed.— -It must' have been ' about tlie r s 'end of March"" , br'begmning ;t April when' I -saw H, Grant. I doivt^knpw4ha.t he ij;ached-;RiTertonon r 6th March. ' " '".. . _.. / ... u - -John M'Kissock,"' owner of a saw mill and tini- [. be'r ? m^rchanl|''aeposed-^rd6h^ e " I enSplbyiriOcriiariager .late "myjs&Vimill. h ,There-/is -'• -a iman- employed to look after-the timber. The .-> .wages pf a person to dp tliis work, keep the books, andcpiiect*ni6nfey,/paid by'iis'is 10s; a; day.' '.£4i li ia.week'for a'riiariager would be a fair wage 1 in this ?year. ! Cross-examined.^-^Considering 5 that wages are now; lower.. than in April, ,1863, .1/ should consider £4,a week ,a.fiih^wage_,eyenJlien A „.„,„_, _ „„. ...,, r jTliis was the whole case*" "Mr. Bvitton ieft'thc" . case in the hands of the jury, afterj which ,-,., "' JMr. S^M. "South addressed tlie court." : "■ :His Honor then-siunmed up briefly j r " :The jury then retired, and returned, with a.verj diet of £232'10s.'Tld.'forthe plaintiff, in full, 'of his claim for wages, and salary, less £16 65., I ■■ ■■' : PTJETTELEOW V.'- MACKAY A^D ' bTirEES.' 3 I Tliis was an action raised for specific,.perfor- " mance of contract. (• , . ■■-..: i 5 j Tire, plea ,for,pkiiitif£ set forth that, in the lease ..pf the ground to the Union Bank, there was a > -clause in it, which, stated .that,, on the expnw ; of that lease the plaint iff r was to have the .option. 'of leasmg it; or it was, definitely '.agreed that" the f ground was thereafter to, be .pecupied by the plain- > tiff at the same rate (£3 per foot per arinuin), as '■ tlie bank paid.. , Further, that the agreement was signed by-deferidarit'iii presence' of witnesses, and • that he was the real pwnqr, of the Jand. j'The defence put in was, that the defendant, if ! he signed such agreement, was so helplessly r intoxicated, that lie did not know what lie was ; f about.,,; /.,.,..- - . . ... ( ':. ; Mi*. Button appeared for the plaintiff, and Mr. >.-: -Si M.- 'South for the defendants. '" „- Mr; -Button -opened -the case for the prosecu--1 tion, and called , -,- ; Francis Walter Scott,' Crown Grant Clerk at Invercargillr deposed-. — I know Robert Maekay. He is entered as purchaser of section,l2, block 11, . and is entitled by the 'certificate I now produce to a Crown Grant. The Crown Grant is being prepared now. The land hi question is situated at the corner of Tay-street and 'Kelvin-street. ' Auguste Henri PuettelkoW, bf the Provincial. Hotel, deposed.' — I know Mr.' Maekay, the defendant. I entered into an agreement with him about Ist October, 1862, whereby I should have the option of buying the said land (on the expiry of the lease) to the. Union Bank, at the rate of £3 per foot per, annum. It was signed in the presence of the parties. Mr. Maekay was quite sober. -when .he signed, the agreement. .The bargain was made three or four days before it was signed. It was signed hi the shop of Smith and Fairweather, bootmakers. The Union Bank left the gromid in July, 1563. When I knew this I ■' went to M'Donald and Russel, solicitors, to have a lease prepared. A lease was prepared which I tendered on the day T offered £12 as a quarter's rent in advance. It was on 15th July I said to Maekay,." Hero's the quarter's rent in gold." He replied, " I won't sign it. I won't take your money I have nothing to do with you. You have' forged inv name." Cross-examined by Mr. South. — I became acquamted with defendant after 20th September,. 1862. lam not aware that he is almost always intoxicated. I have seen him the worse of liquor, but I have also' .seehVhim .perfectlyisober. I swear - .tliat Maekay "was perfectly- sober -.when he,_sigiie.d, the agreement. No one held his arm when. he/, signed.' "■ When I tendered him the quarter's rent, he was also perfectly sober. He might have had a glass the day he signed the agreement. He came into my bar and was : excited, and abused, me. He called me a forger. Mr. South. — Could you not see he was more half seas over then ?-..-. Witness.— He was perfectly sober. : > Mr. /South— From the situation of your bar, ■s of course you could tell if he were intoxicated ? Witness. — I am a pretty good judge of that, ahdyoutoo.-areawareof.it. , ■-■ •-,- -;.:-'* : Mr. South!— You don't' mean to say that from frequent calls of mine. ' (Loud laughter) . 3, M. Anderson deposed -to the tendering of the '. rent by Mr. Puettelkow in bis presence and that of-MrVSchweinfuitli; and to Mr. Maekay being 'perfectly sober. C. J. Howard, clerk in the Land Office, deposed 'to defendant being entitled to a Crown grant for the section of larid'at' issue.. Mr. -'Maekay has never applied for his certificate which is issued on purchase, but he is entitled to it. He became entitled' to it loh; 18th January, 1858, when the purchase money was paid. / J. S. Johnston, registrar' of Supreme 'Court, "deposed,: to, -having registered the agreement of lease referred- to'. . ■ . .' <J~-'. ': D. M'Donald, manager,- of the. Union Bank, at Invercargill, .deposed .:— I know- the parties*. The Union^Bank was in; possession of- part of section. - 12, 'block' LI,-/-in 1862, The Bank, gaye it up in ■" July/, 1863,-; Al- know Mr. Mackay's 'Being. -.shown .-.agreement, I /certify, it as his usual It is not the signature of ;a drunken ' -person. I rknow Mr: Maekay's. signature when : drunk. . y Tliis is not like .it.- ' : ■• '.'■ -.-, o:/: Cross-examined. — Mr. Maekay had an account t with the Union Bank; L would have- paid his cheque 1 Ihi that manner unhositatingly. His- signature, when drunk r -ia- scarcely— recog-- : hisablc. I would not. then honor them. Maekay "agreed to let the -bank Have the ixse'bf -the place for about.a.mpnth after the first.lease expiree^-. , % y\ : Alfred" '"Matthews depost'd.— lnlJuljf ? . , 1863 , # I| . was a clerk to Messrs. M'Donald and Russell. I then stamped in the copying book aUetter addressed to defendant. I took it to,liini.. He asked me to read it to him. When I/did' so, ho got very excited, and said he would finelM'D'onald and Russell £2,000. I could npt, imiddrstand much that he said. He. wasjiot drunk. . , . ( ... i The evidence of J- B' Sands to the execution of the agreement between/the" parties .was 'read; havC ing been taken at Melbourne before a justice of the peace there. i/£ r V ' ,;->. V/ . t.- .. '_-.' j This was the case for the prosecution. I S. M. South opened the case for the defence, ' and was proceeding to comment on the -inebriate condition of "tlie defendant 'when he signed the | agreement, -when- ■---•- — - — ■ \ His Honor said that if the defence is to hinge ■ upon jjhis -pbirit.*' it wquidibej heces/afyl to Jprpve .. that he (Maekay) had not an agreeing mind when s he signed the agreement,"and that he was so ins; toxic^tcd/a'slhot' t&ltnow whatlie was about.' \ /. '„ i His Honor /quoted; //froni/.ehotty, and Lord i Ellenborough on this point. l- I Mr. S. M. South then "called, j, \ (Rpheijfc Macfeay,.j.deßPsed :-rr^ & m abputj forty-, i ny|" pr.'* forty-six"! years f pf;.,age. : ; Tho,/prpperty ... belongs^tpr my brother, whobought and paid for .'! it;,, I;6nly,was to get my living -put 'of.it.- i .l;know '? 3% Puettglko>v. • J^pi,ca^n,e. tp. me r firflt„about the; T. the. : . i le^sing,of, i 'tho .iapd,,..! tplclhim I cquldnot ' u Wa*eV(4he n^d.'iT'(Being,,.shown the agreement),, . H ITJie^ignat^ paper, put .'■'. befbre.nie was niuchl 5ma11er. !•,,;,., ] „; . ,: , „-,..: . ;,,-.,)■ y W^^eximu^d;^!^ >J o;JUt^^eji" c p'n:it..;,;. 1 :._„';}',-, u ;< <: J.-.--.-,! ■.-^.-ii-i-'-i a : f Several other questions were r put , to tho, witr, Hi ness,v>utj,nothing ,pf^^anrmtelhgj^lp; s)'- 'ehcitp^i .oi-- 'OKLiyj) W±X .M if.', j Mr. South now addressed (> the,;. Court -forj.thO| '.'■i 'defence. --— '. y-\ ■'/ | Mr, Button followed fo// the prosecution, and-, L I Ti^'HdnoylionsufMc^ \ jjury 4 f tiai o all;;tbo<M.e's :S^ 1 P^Ji^wlSW'lffi^ •rbYurnM^ verdict >f or th'e r plamtiff. - v , ,^ '". ; -j r ;■' ! ':tii*M vh'P y,.rt>. !v:CI SMif-tijhxy., 'itSl- Ui^/ilk 'Ao<

[""''BtiS-HJofi'or "remarked,^^ on ;the' j yerdict''bein 1 returned, rthat^he-ihould- have., been .very jmuc . astQnished'if any other had' beeri returriod. ( [■'_ i ' ; This having concluded the business before th -Court the ju_7.,v/.{ißV.discharged, ; and thcvsitting

i adjourned sine die. :v „^ .._..-