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Ashburton Guardian, Ashburton Guardian, Volume 1, Issue 121, 3 July 1880
to Mr. Harris for the sum. The amount owing when the arrangement was made was Lli 13s. 9d. I do not remember suing Mr. Harris for this amount.. Some of the entries in the bill of particulars are entered in my own handwriting, but those that are not in my handwriting I can ■swear to as being correct. Mr. George Allen made the other entries. Mr. Giles was not in our employ at the time. William R. Boyle, sworn—l remember Mr. Harris giving me an order to collect • certain moneys, and to pay Weeks and Dixon’s account. Mr. Ireland said he had no evidence to call in the matter, beyond the evidence ho had to give himself, which was to the effect that an arrangement had been made by which he was to bo exonerated from liability on giving a jiromissory note for a portion of the account. Judgment for plaintiffs, with costs, L2 11s. Weeks and. Dixon v. Harris.—Claim, L 6 16s. 3J- Mr. O’Reilly for plaintiffs ; Mr. Ireland for defendant. A set-off was put in of L 8 16s. Gd. The Clerk read the evidence of Mr. Harris given in the Dunedin R.M. Court. Judgment for L 4 19s. r 9d. and costs, amounting to L2 2s. A setoff to the amount of LI IGs. 3d. was admitted by plaintiffs. JAMESON V. FIELD. Mr. O’Reilly .applied for immediate execution to issue in the case of Jamieson v. Field, inasmuch as defendant had called a meeting of his creditors, therefore, it would bo presumed the requisite bond would not bo entered into, nor the appeal proceeded with. His Worship said he had received an order from the Supreme Court, directing the issue of a distress warrant, but allowing a week to the defendant to find sureties, pending which week, the warrant was not issue. He could not go outside the order of the Supreme .Court, and therefore could not grant the application of Mr. O’Reilly. EE-INSTATED. Orr and Co. v. Bidden.—Application for re-instatement granted. Hearing adjourned till 9th July. A THRESHING CASE. MR. PURNELL COMMITTED FOR CONTEMPT OF COURT. Grigg v. Luscombe. —Claim, LSO. Mr. Purnell for defendant. Mr. Purnell stated that Mr. Grigg had employed defendant to thresh grain at so much per 1,000 bushels. Mr. Grigg had warned defendant not to thresh in bad weather, but defendant had done so, to the detriment of the wheat, and had also threshed very badly. To recover damages this case was brought. John Grigg, sworn—l engaged defendant verbally in January last. Defendant was to get the gang together, and to have sole management of the machine and hands, plaintiff only directing in what particular paddocks the work was to be done. Defendant bad full control over the hands, both as regards employment and discharging. He was perfectly competent to do the work, and ho threshed altogether 54,000 bushels. Witness gave defendant special directions about the paddock on which the damage had occurred that was now sued for. It is always dangerous to thresh wheat too soon after rain, and defendant was cautioned not to thresh too soon. Defendant was alone to be the judge of the proper state of the wheat for threshing. Saw that the threshing had been done too soon after ram, for looking at the stacks it was apparent that the machine had been opened too wide, and that the threshing had not been thorough. There were many places in which the straw had been untouched, and at least 10 per cent, of the grain had been left in the straw. I estimate that 10 per cent, on 2,900 bushels threshed on the “ bend” paddock had been left in the straw. I sold the whole quantity of my wheat at 3s. 7d., and this was as first-class a sample cf Tuscan wheat as I have ever grown. I paid defendant LI per 3,000 bushels for-his work, and the driver had the same, while the others had 14s. per 1,000. I have paid him as much as I consider due, holding myself for the balance, ponding a decision in the District Court. By. Mr. O’Reilly—There is a balance owing to defendant. I am perfectly prepared to pay it whenever it is asked for. Mr. O’Reilly—Then hand it over now, please. Witness —Yes, I will. Mr. Burrell —No, don't, Mr. Grigg ; we mightn’t see it again. Witness, thus advised, didn’t hand it over, and the cross-examination was resumed —There was a suit in the District Court, but the bill of particulars was not complete and another action was to be taken. Mr. O’Reilly wished lo know why this case was brought in the R.M. Court while another' was pending in the District Court' on precisely the same question now before this Court. Mr. Purnell objected to witness being cross-examined on a question of law. Witness said he chose the cheapest course, and the answer to the question was the fact that he was in the R.M. Court now. The case in the District Court was another case altogether. Mr. O’Reilly said the movement was a flank movement on Judge Ward. This action now before this Court was pending before the District Court. After a passage-at-arms between counsel, cross-examination proceeded. Witness—l was disposed to be lenient with Luscombe at the time I paid him the portion of wages he has got. Mr, O’Reilly—Then you acted as judge in your own case, assessed your own damages, and retained the money ? Witness—l did so in the hope that the matter would be amicably settled, believing that the damages could be put in as a set-off. lam not prepared to accept any more now than the full damages. I would have been content with half of those at the date of the account produced by Mr. O’Reilly, but not now. Mr. O’Reilly—You would have your full pound of flesh, in fact! Witness—l stopped L2O of the feeder s wa"cs at the same time as Luscomhe’s was stopped—L43 in all—but lam not suing on that account. lam perfectly prepared to pay that money, which I hold in trust for defendants, but I claim for the damage I have sustained through Luscombe’s carelessness and bad threshing. Some sparring here occurred between the lawyers on the legality _of the Court hearing"a question of law in the middle of a witness’s examination, in the course cf which Mr. O’Reilly pointed out that Mr Grigg had retained the men’s wages, - and that a suit by the men against him was pending in the District Court, and
are innocent. P^Bl^^Oktleilly—You read a paper recently at the Agricultural and Pastoral * Association, and you spoke of heavy 1 crops being taken off land in your district 6 —Mr, Cochrane's for instance, who got s fifty bushels per aero. How comes it that 1 this paddock of yours yielded ten bushels c to the acre '? ® Witness—l sowed clover, which grew as high as the wheat. This was a mistake. J I saw a little rust in a portion, of the crop r in the paddock. There was nothing the. matter with the wheat in question until after it was threshed. j , Mr. Reilly—You made rather a mess of it then, though you undertake to teach J agriculture 1 Witness—Yes. A small portion of the „ wheat was shrivelled—a portion of all ‘ wheat is so. The shrivelling of a small quantity of wheat in a crop would not mate ten per cent, remain in the straw at the threshing. Two per cent of the ten per ceirt might have become seconds j wheat. I have employed Luscombe before, and knew he was perfectly competent. The machme was too widely set, and if it ( had been properly set it could not have ' threshed as it did. I did not see the ' threshing done, nor did my manager — Button. I don’t know that Luscombe’s - machine was the last to start in the - morning. This wheat was in the stock, ‘ and wheat when in condition for threshing 1 is in better condition when in stock than ( in stack. , His Worship—This is a mere matter of \ opinipn. , ‘ Witness—lf the wheat had been in stack it would have been better for thiesh- , ing on the day that it was threshed. It ‘ would take the wheat time to dry accordding to the dryness of the air. Luscombe was specially ordered not to thresh at the j time he did until the grain was in condi- 1 tion. I rode ten miles to tell him so, but I don’t know when he began. He evi- j dently disobeyed my orders, and com- . menced threshing. lam assured of this ’ from the state of the straw. He was , thoroughly competent to judge of the j condition of the grain. Only dampness , of the grain could have produced the ‘ whole damage. The buyer very nearly j rejected the sample because of the num- , bor of haulms left on the wheat—this arose from dampness, but the unthreshed ‘ grain arose from the wideness of the ‘ machine. To the latter cause, I attribute 1 the loss I have sustained. I looked at a j portion of each of the two heaps of straw, and judged from the straw that 10 per cent, of the grain had not been threshed, but I do not make that estimate on my judgment alone. I paid Luscombe ss. to Gs. per 1,000 bushels extra on account of ) his position as overseer of the machine. By Mr. Parnell—The amount I detained from Luscombe was due to him for J wages, and I detained them because 1 sup- , posed I had a legal right-to do so as a set- } off against the damage, but I have learned , that I cannot do so, and have brought this j action, < Mr. O’Reilly then said he applied for the case to be struck out, or the plaintiff ( nonsuited, on the following grounds ( 1. That defendant brought an action last , month in the District Court against Mr. Grigg for the amount which he (Mr. ( Grigg) had detained from Luscombe as damages. Mr. Grigg had taken advantage ; of the fact that Luscombe had not served a copy of the particulars with the sum- ( mens, and he had the case struck out. A , new action was now pending in the Dis : trict Court, and would come on for hearing on the 15th inst. Mr. Parnell here stood up and objected to these matters being gone into. • 1 Mr. O’Reilly insisted on his right to state his nonsuit points, and eventually his Worship decided to hear Mr. O’Reilly. Mr. O’Reilly then requested that his Worship should stop Mr. Purnell’s continued interruptions, and order him to sit down. His Worship told Mr. Purnell to sit down. Mr. Purnell declined to obey the order , of the Court, on the ground that the Court could only give legal orders. He ■ was not a solicitor of this Court, but of , the Supreme Court, and therefore an officer of equal standing with his Worship, i There was a time to hear such arguments as Mr to urge, but it was not before the conclusion of Mr Grigg’s evidence. With all deferent?© t© tb© bunch he would decline to sit down, but would stand up as a protest against the irregu- • larity. , 1 His Worship—You put yourself in a very peculiar position —in that of contempt ! of Court. . Mr. Purnell —With due deference, I de- 1 dine to sit down, as the order is unlawful. 1 His Worship—Then the only course ] open for me is to commit you to custody 1 for contempt. ] Mr. Purnell —You may commit me to ] custody if you like. It would not be the ( first unlawful thing done in this Court. His Worship Constable, take Mr. 1 Purnell into custody. 1 Mr. Purnell (to Constable Warring)—l wish j r ou to understand that I hold you personally responsible. i Constable Warring—l can only obey the i order of the Magistrate. ’ His V. orship—l will give you half-an- ; hour to re-consider your conduct, Mr. j Purnell. < Mr. Purnell —I want no further con- ( sidcration. ( His Worship—Then in consequence of | your persistent contempt of Court, I sen- ] tence you to seven days’ imprisonment. , Mr. Hurrell, make out a warrant of com- ; mittment. His Worship having ordered the Clerk ] to take a note of what Mr. Purnell had ( said in reply to his Worship’s orders, and , the language used by Mr. Purnell con- l stituting the contempt of Court for which ■ he was committed, Mr. Purnell protested ; against what was written down. His ( Worship said he would not have put down < just what Mr. Purnell liked, but what he ' (his Worship) ordered. Mr. Purnell was then taken away in 1 custody. 1 The case then proceeded. i After Mr. O’Reilly continued his addsess to the Bench. After he had sat down Mr. Grigg, who had, undertaken the conduct of ois own case, after being deprived of his counsel’s services, explained that the case was not in any way to be confounded with the case pending in the District Court. The amounts were not the same. Luscombe sued in the District Court for the money due to him ; Mr. Grigg in the R.M. Court for the money duetto him. The one amount was L 23 j odds, the other was LSO. i Mr. O’Reilly said the account rendered ] to defendant by Mr. Grigg showed con- c clusively that the ground of action was the same in either case. Mr. Grigg had < assessed his own damages and retained i the amount, how could he then come into £ [the Court and sue for the money he 1
here moncertainly the most he (Mr. O’Reilly) had "Ever heard of. His Worship would hear further evidence. Thomas Black, sworn - I know the “ bend ” paddock -where the threshing took place, and examined the straw carefully. The work was badly done. The straw had not been well threshed. About a tenth of the grain was left in tire straw unthreshed. Did not look much chaff. But when lifting the covers off the stacks of straw, the quantity of loose grain that was on the covers caused me to make an examination of the straw, and thus I found that it had been badly threshed. The wheat was good wheat. I saw it when growing and when reaped ; but did not examine the sacks. There was a little rust in the paddock, hut the rusty part was not cut —not , because it was rusty, but because it was a light crop on wet land, and not a bit of good. I am foreman ploughman. I suppose the wheat was not in condition for threshing, otherwise the damage would not have_occurred. The wheat was threshed too damp ; and it had evidently been given to the machine faster than she could thresh it. Shrivelled grain may have stuck to the straw, but good grain would have come out of it were it dry. The wheat was a good sample. Did not remember saying anything to Luscombe regarding the sample. Thomas Taylor, farmer, Waterton —At Mr. Grigg’s request, I went with Mr. Bishop to examine some straw in the “ bend ” paddock. Took up several bundles, and took 40 heads at random. Out of these we rubbed 76 grains. In another place, out of 90 heads wo rubbed 222 grains ; out of 21 picked heads we rubbed 127 grains. The straw is by no means clean threshed. Have never seen a worse job of threshing in my life—only one in my experience. The grain was a good sample, and we were struck to see such a quantity of a good sample grain left in the straw. Towards the centre of the sheaves the threshing appeared to be not nearly so well done as the outside, from the sheaves having been fed too thick. White tuscan wheat is the worst wheat to thresh in my experience. It should be in particularly good condition, but with careful werk, it can be threshed as clean as any other. It should be fed diagonally into the machine. A few heads of the grain contained shrivelled wheat, but very little. I only saw the straw last Tuesday, and I could not tell at that late date after the threshing whether the wheat was too damp. There was an average of 2J grains to the head left. I saw no rust, but plenty of rats in the stacks. James Bishop, farmer, gave corroborative evidence. John Hewston, fed the machine at the threshing. Luscombe had charge of the machine. He told me to hurry through the work. The wheat was very carefully put through the machine. There was rust in the wheat put through, and rusty wheat, being tougher than clean wheat, is not so easily separated from the husks. There was a slight cloud of rod rust coming out of the machine all day. I believe the concave was kept close during the oat threshing. It was put so close during the oat threshing that it knocked fire, and I don’t think Luscombe altered it for the wheat. Luscombe screwed it up closer than ever I have seen it closed, and I once had to sing out that it was knocking. I attribute the bad threshing to rust and to damp, but 1 could not say which was the most active cause. There was only one other machine threshing from the stock, and it always started before we did. We waited for it, in fact. It threshed winter wheat, which dries more readily than Tuscan wheat, so that the machine on the winter wheat could start earlier. The clover in the Tuscan wheat sheaves would help to retain the wet. I don’t think Luscombe started too soon after tbs rain. One grain to the head left in the straw would be a fair average, but two would be too high. By the Bench—ln conversation with Mr. Grigg, I simply denied any responsibility on my part for any bad threshing, as I was not in charge of the machine, but I did not admit that the threshing was bad. Mr. Taylor, recalled—l cannot think that there could have been mush rust in a crop that showed such a good sample as that I examined in Mr. Grigg’s paddock. One grain per head left in the straw would he too high an average. MR. PURNELL’S OFFENCE PARDONED. At this stage, Mr. - I'urncll, with the Mayor, Mr. John Orr, Mr. Branson, and others entered the Court. His Worship—l understand, Mr. Purnell, you have a statement to make. Mr! Purnell—Yes, your Worship. At the suggestion of friends I have come to make a statement, as there may be some misapprehension in your Worship’s mind as to the reason why I persisted in declining to sit down. I acted simply in the interests of my client, and had no desire to be guilty of contempt of Court. His Worship—l am very glad that you have seen fit to make even this qualified apology, and you are therefore discharged. The threshing case began again. Mr. O’Reilly then addressed the Court on another nonsuit point, namely, that in the evidence of Hewston, plaintiff s witness, it was conclusively proved that Luscombe performed his work with the greatest care, and the alleged damage was caused by tne rust in the wheat and the cla.'.ser in the crop—causes over which defendant had no control. Hewston was the only witness who could, from his own knowledge, testify as to the facts. He was plaintiff’s witness, and on his evidence a nonsuit should go. Mr. Grigg then addressed the Court. Mr. O’Reilly had adroitly made use of the evidence of Hewston, but his Worship would bear in mind that Hewston, though brought to Cuurt for plaintiff, was .really a partj to the defence. His wages had also been detained, and in that case his evidence was not of anything like the value that of two practical men was like Messrs. Taylor and Bishop. After Mr. Grigg had spoken, his Worship said he would hear more evidence before deciding on the nonsuit point, and adjourned the case till that day week. The Court then rose.
Ashburton Guardian, Ashburton Guardian, Volume 1, Issue 121, 3 July 1880
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