51

C—2.

this run, acquainted with the fact that it was utterly valueless, acquainted with the fact that the addition of 17,400 acres of absolutely valueless country made it worse than ever it had been before—■ yet Mr. Eitchie, who had determined to have nothing to do with this run on behalf of the company, gets Mr. Scott to act as dummy for the purchase of this run, and agrees to indemnify him from the consequences of any purchase that he might make. That is the reverse of the position my learned friend puts to you. I submit that it is absurd and ludicrous in the extreme to imagine that Mr, Eitchie or Mr. Henderson ever made a bargain with Mr. Scott to indemnify him against the consequences of the purchase, thereby putting themselves absolutely in the position of purchasers. Is it probable that Mr. Scott asked that he should be indemnified, or that there was any understanding at all between him and the company that he would require to be indemnified ? If Mr. Scott had asked for an indemnity there were thirty other people who could have been got quite easily who would have done what was required without indemnity. The run was open to application by anybody. What easier than that one of the shepherds employed on the run, or on some other run, should put in an application; he was as good as anybody else, and he would not have asked for an indemnity ; he would have been glad to do it for £10, £15, or £20, whatever the sum offered, to do exactly the same thing that Mr. Scott did; and what could have been said then ? I submit that the only story that is credible at all with regard to the matter is, that it was because Mr. Scott had nothing to lose, and was willing to take the risk upon himself, that Mr. Scott was asked to do, or allowed to do, what he did. What possible gain could it be to the company ? What possible advantage, I should have said, could it be to the company to employ Mr. Scott to purchase this run for them if they were to be responsible to indemnify Mr. Scott against all the consequences? I say, if the bargain is considered in the light of the probabilities, that the probabilities are all in favour of the story told by Mr. Eitchie and Mr. Henderson, and diametrically opposed to the story told by Mr. Scott. Why, the very first mention of holding him harmless against the consequences of what he was asked to do would at once have induced Mr. Eitchie or Mr. Henderson to have said to him, "If that is what you want, you are not the man for us; we might as well take it up in our own name as take it up in yours, and be responsible to indemnify you against the consequences" of taking it up. If we are to indemnify you we may as well take it up ourselves. If you are prepared to take the risk yourself, to let us have the country for the short time we want it, on our paying you the rent for six months, and giving you £20 or £30 for yourself, then you take it up; otherwise don't." That, I submit, is the natural view to take of the position, and not to suppose that the company were driven to employ Mr. Scott to take up the position he did take up by a promise to indemnify him against the consequences of his so doing. Now, my learned friend asks, Has Scott so contracted with the defendants as to deprive himself of the indemnity he was entitled to? I do not admit that Scott was ever in a position to ask for an indemnity, and the story, as told by Henderson and Eitchie, is that Scott never was in a position to ask for an indemnity. Scott was the purchaser of the runnot the bona fide purchaser perhaps, but he was the actual purchaser of the run, with a full knowledge of the position of matters, and prepared to take risks upon himself which the company would not take, relying upon the fact of his being a man of small means as protection against the law being enforced against him with the same rigour as against the company, and believing that nothing worse could happen to him than his being compelled to go through the Bankruptcy Court, which he had done before, and might do again. What I submit is that it is not a question at all of Scott having contracted with the defendants so as to deprive himself of the indemnity he was entitled to ; it is, a question of what the actual position of parties was—the question as to whether Scott is to be believed in his statement of what took place, or whether Mr. Eitchie and Mr. Henderson are to be believed. When it comes to dealing with a matter of that kind, I submit that the Court must take Mr. Eitchie and Mr. Henderson's account of the matter as against Mr. Scott's. Mr. Eitchie and Mr. Henderson's account is clear and consistent in itself. It is supported by documentary evidence, so far as the documentary evidence goes, and it is only contradicted by the plaintiff, who admits he has no memory whatever, and can give no connected account of any conversation he had with anybody in connection with the matter; and even denies that he had any interview at all with Mr. Eitchie previous to the purchase, when that interview is distinctly sworn to both by Mr. Eitchie and by Mr. Henderson, and details of the conversation are given. It is possible that a man may forget what took place at an interview, but hardly probable that he could forget altogether the fact of such an interview having taken place, the more especially when the details of what took place at that interview are given in his presence, and when the circumstances as to how the interview was brought about are brought under his notice. I should have thought that Mr. Scott, after hearing the evidence of Mr. Henderson and Mr. Eitchie on the subject, would have said, or at all events have told his counsel to say, that he was satisfied now he was mistaken in saying the interview did not take place, although he had forgotten about it at the time he gave his evidence. Now, my learned friend says the burden is on the defendants to prove that Scott so contracted as to deprive himself of indemnity. I say no ; I say that is not so —that the burden lies on the plaintiff to prove his case, and, in the face of the evidence, that the defendants were the agents of Scott, and not Scott the agent of the defendants. The burden of proof is undoubtedly with Scott; and I take the very instance my learned friend put as showing that his contention was the correct one to show that it is not. My learned friend put it that if this run had gone up in value the company could have compelled Scott to give it up. Now, I say that the fact is not so at all. I say that the company could have compelled Scott to give it up if the fact had been that Scott was merely their agent, and had bid in his own name; but they would have had a very difficult task, no doubt, to convince the Court that under all the circumstances proved here they and not Scott were entitled to have the run. Of course, their own conduct would have been against them very much; the fact of the run having been bid for in Scott's name would have been very much against them, and the only point they would have in their favour would be