WOODHOUSE V. MARTIN. [Special Jury.]

Daily Southern Cross, Volume XII, Issue 803, 9 March 1855, Page 3

WOODHOUSE Y. MARTIN. [Special Jury.]

Mr Mcrriman" appeared for the Plaintiff and Mr Whitater for the defendant. This was an action to recover the value of ten lihds. of rum, alleg d to ha,ve been wrongly discharged by the defendant, who is the master of the steamer Nelson, from that vessel on the 7th Dec. last, in consequence oJ which the* whole was destroyed. James Buchanan sworn, stated, I am a merchant residing in Auckland, I had authority from Mr. Woodhouse to transact business relating to the rum, Mr. Woodhouseis liable for my acts. About h past 11 o'clock on Monday morning I first became aware there was rum on board the Nelson consigned to Mr. Woodhouse, on the receipt of letters, I passed the usual entries and signed a bond at the Custom House, they wen all complete before 12 o'clock; Mr. McDougal was acting as agent for the ship, he informed me that drays were going out with goods to the ship the next morning, he pi ned out a drayman by the name ol Pollock whe ■was to take the goods out, it was about 12 o'clock in the day, I used more despatch than usual as it was a steamer, I engaged Pollock to bring the rum back ; you cannot land goods without passing entries at the Custom Hou*e, entries cannot be passed until after the vessel has entered inwards. The Custom's hours for landing sojds are between 10 and 4 o'clock, spirits are noi allowed to be landed after 1 o'clock; I made nc arrangement at the Custom House for landing these < t o kls. Cross-examined by Mr. Whitaker. I called at Brown and Campbells office for the order before 1 2 o'clock, I made no arrangements with Mr. Young of the Custom's with reference to the rum ; I agreed to give Pollock 30s per load to bring the rum in ; I could not have bi ought the rum in on Monday ; I do not know Mr. John Foibes ; I do not recollect asking how the rum could be 1 nded, I concluded I should have to pay for the landing ; I thought the cargo boats would bring it ashore ; I do not recollect asking what would become of the rum if landed ; I do not recollect asking a qustion about Mr. Rich's store ; it was arranged by a Mr. Pollock in presence of Mr. McDougall, that Pollock should go out for the rum the next morning ; I do not recollect anything being said about a cargo boat ; lam not positive* ; the boat note was to be given to the chief officer of the Nelson ; I thought a cargo boat would bring the rum ashore to the usual landing place for the steamer ; I was not told that the rum would be landed that day, lam positive I was not ; the boat note was to be presented to the Chief Officer ot the steamer at 10 o'clock on Tuesday morning I suppose ; at the commencement of the Custom House hours ; I expected the cargo boats would go alongside and land it the same as at Auckland ; the chief officer would not deliver the goods without an order ; Ido not know that cargo is landed from the William Denny without an entry being passed ; I did not know that cargo could only be landed at high water at Onehunga; it would have been '25 hours after the vessel arrived before the boat note could have been presented, I could not land rum after the Custom House hours, if persons landed it they wouid have bean liable to the penalty. Cross-examined by Mr. Merriman. Only three Custom House hours would have passed ; if I had landed it on Monday both bonds I imagine would have been put in force and the goods forfeited ; the mate had no right to land goods without the consent of the Customs ; I did not assent to have the goods landed and stored at Rich's, if the rum had been landed it would have been imp'>ssib'e to have brought it to Auckland within the Custom House hours that day ; good rum at the time was seUing at 9s. 6d. per gallon in bond. William Young -worn, said, I am Collector of Customs at Auckland ; ships arriving at Onehunga report at Auckland ; I remember the Nelson arriving in Nov. last ; that is the en«ry for the 10 hhds. of rum which I now produce ; it was under bond from the port ot Nelson ; an entry for goods cannot be passed before the vessel has entered inwards ; the hours for landing spirts are between 10 and I o'clock, except by special permission ; lam not aware that the time has ever been extended ; the ship has no right to put goods from on board until an entry has been passed ; it is breach of the Customs Oidmance, and the goods are liable to seizure ; and the bond cm be put in suit ; I was applied to on Monday by Mr. McDougal to allow the Queen's Warehouse to be opened the following morning at S o'clock lor the purpose of dispatching sundry customable goods then in the Warehouse to shipped on board the steamer Nelson ; I cansented remarking that the officer in charge of the drays should return with the 10 hhds. of l urn; I instructed the assistant Looker to be there to open the warehouse, and I also told the tidewaiter to go with drays. CroS'-examincd by Mr. Whitaker. The bond was made after the vessel had entered. (Bond produced.) M-. Whitaker remarked that it purported to be by three parties, while it was only signed by one, and it was not witnessed. Cross-examination resumed. There is no Custom House at Onehunga ; I presume the Customs hours at Auckland apply to Onehunga ; ships have no right to go there, it is not a port of entry ; the entry was complete before 12 o'clock ; the goods might have been landed before 1 o'clock ; there could have been no forfeiture if the goods had been brought to Auckland and warehoused ; if the goods had been brought within a reasonable time there would have been no forfeiture. Cross-examined by Mr. Merriman. The goods were cleared under bond to be re- warehoused. — John Mathews sworn, said, I am under locker in the Customs ; I received orders from Mr. Young to be at Queen's Warehouse, at 8 o'clock, to deln er goods to be forwarded to the steamer Nelson ; I delivered them. Captain Dacre sworn, said, I have had considerable experience, both here and in Sydney, in mercantile matters ; the arrival of a vessel dates from her entry at the Custom House ; no deviation is made in respect of steamers with bonded goods ; steamers can land duty free goods fi om coaswise at any time. Cross-examined by Mr. Whitaker. A policy of insurance terminates as soon as the anchor is dropped ; I have no knowledge of the Customs at Onehunga ; if there was no special agreement, I should sayavessal had arrived when she dropped her anchor. John Sangster Macfarlane sworn, said, I am a merchant, residing in Auckland ; I imagine the arrival of a vessel dates from the time of her entry at the Custom House. Cross-examined by Mr. Whitaker. A ship arrives when she drops her anchor ; if I was a passenger I should then go on shore ; I consider dropping the anchor and arriving as the same thing ; as relates to bills of lading, I have before explained : it would be just as easy to say 12 hours after the entry at the Custom House as 12 hours after arrival ; after the present case, I should think that would be the proper way ; I never knew a dispute of the present kind before. By. a Juror. If the vessel was placed in quarantine the arrival would count from her entry inwards. This closed the case for the Plaintiff. Mr. Whitaker, for the Defendant, called the following witnesses : — John McDougal sworn, said, I am clerk to Messrs. Brown & Campbell, Auckland ; I recollect the ai rival of the steamer Nelson, in November last ; Mr. Woodhouse had a consignment of rum in her ; I saw Mr. Buchanan at the^offiee on the Monday after her arrival about midday ; he asked for an older to the chief officer to deliver the goods, which I ga\e him ; the conversation continued ; he asked about a boat to bring the cargo on shore, whether he would be obliged to send out to hire one ; I told him I did not think it was necessary; it had not been necessary previously ; some chance boat went alongside ; he then asked about cartage ; I said Mr. Rich generally sent in his drays with the cargo; thatjs the course which has usually been adopted with the steamer Nelson ; I said I did not think Mr. Rich had enough drays for this time, but that Polock the carter was going out and perhaps he could do it on his teturn ; he went down the street with me to see Polack ; we saw Polack ; Mr. Buchanan spoke to him about bringing in the rum, Polock consented ; Mr. Buchanan asked when the rum was likely to be landed ; I replied that most likely a boat had gone alongside that morning, and that most likely it would be landed by her ; he asked if I was certain ; I said I was not : at that moment, John Forbes appeared coming down the street ; I said, here com"S John Forbes, most likely he can tell us ; I beckoned .him, when he came I asked him ; he replied, I believe a boat has gone alongside, but I cannot tell at what t me of the day it will be landed, or whether it would oe landed that day ; Mr. Buchanan asked if there w&s any place to put it in, supposing it came on shore and the carts were not there to receive it ; Forbes replied, that there was Mr. Rich's store, Mr. Buchanan thea told Polack that he might put off go-

ing till the morning ; Mr. Buchanan made no objection to the goods being stored at M , Rich's Cross-examined by Mr. Merriman. I do not remember wb.eih.er any goods have been brought under bond by the steamer pieviously ; I know nothing about the boat until I saw Forbes ; I gave the order fixst, the couvcifaation took place afterwards, I did not say it was useless sending tor it that day ; Mr. Buchanan with my consent detained Pollock until the next day; I think Mr. Rich's store was a sufficient one to store goods in for a night ; 1 do not know by whose older the rum was placed at high water mark. Cross-examined by Mr. "VVhitaker. Mr. Buchanan expi cssod no dissent when Forbes replied they can be put in Hich's store ; I gave no diiections ;it was arranged between Mr. Buchanan, and Foibes ; it was no business of mine. ltobert Pollock, sworn, said, I am a carter residing in Auckland ; I recollect the steamer Nelson arriving in the month of November last ; I was employed by Mr. Buchanan to fetch goods from her ; he spoke to me on Monday the 6th ; I met him and Mr. McDougall Cv>ming down the Crescent when I was going up ; Mr. Buchanan asked what I would take per load to bring 10 hogsheads of rum from Onehunga. Some conversation took place with. Mr. Buchanan, Mr. McDougall, and myself with respect to the landing of it ; John Forbes- came and said there was a boat alongside, but he did not know whether the goods would be landed that night or not ; Mr. Buchanan asked if they were landed that night, was there any place to store them in ; Forbes replied, that the usual place for putting goods was Mr. Rich's store ; Mr. Buchanan agreed with me to go out in the morning for the rum. Cross-examined by Mr. Merriman : — Mr. Buchanan gave me an order to receive the goods, addressed to the chief officer on board ; the conversation took place opposite O'Connell street. By a Juror — Mr. Buohanin did not object to the rum being placed in Mr. Rich's store. By Mr. Whitaker. — I considered the thLf officer would be ashore with the rum. John Forbes, sworn, said, I am a carter residing at Onehunga ; I recollect the steamer Nelson arriving in November last ; I was in town the following Monday ; I saw Mr. McDougall and Mr. Buchanan as I was coming down the street ; I saw them talking together ; Mr. McDougall called me over ; he asked if the goods would be ashore that day ; I told him that a boat had gone off; Mr. Buchanan a^ked if there was any place to put the goods in ; I told him Mr. Rich, had a store, and they could be put in that. His Honor in summing up, pointed out to the Jury that certain statements had been agreed to by both p irties, viz. : — that the vessel had auchorcd at 1 1 o'clock on the Satui day ; that she had entered inwards at 11 o'clock on Monday, and that the goods had been landed at 4 o'clock in the afternoon of that day. The principal matter in dispute, was at what time a vessel -\\as supposed to arrive, whether at the time she anchored, or at the time she entered inwards at the Customs ; they had also to consider whether Mr. Buchanan had agreed to the goods being landed and put in Mr. Rich's store : or whether finding that they were being landed, and that it would be useless opposing it, he had made no objection. Veidict for the plaintiff.— Damages £142 10s.