THE COURTS. SUPREME COURT.—CIVIL SITTINGS. Tuesday. (Before his Honor Chief Justice Sir G. A. ANEY )

Daily Southern Cross, Volume XXV, Issue 3716, 16 June 1869, Page 4

THE COURTS. SUPREME COURT.— CIVIL SITTINGS. Tuesday. (Before his Honor Chief Justice Sir G. A. ANEY )

His Honor took his seat upon the Benoh at 10 o'clock, when the following special jurymen were empanelled to try the case of Eoberton Morrin:-— W. J. Dalton (foreman), George Mitford, A. Taylor, G. Wynyard, Thomas Stephenson, J. M. Shera, William Percival, E. Keals; G. Yon der Heyde, S. 8. Weir, George Dacre, and H. H. Turton. JOHN EOBEBTON Y. WILIiIXM MOBBIN. Mr. Gillies and Mr. MacCormick appeared for the plaintiff; and Mr. Whitaker and Mr. Russell for the defendant. The plaintiff's declaration set forth : 1. Did defendant purchase certain sugars from Mr. Morrin P 2. Did he pass entries for the same ? 3. Did the plaintiff deliver the same to the defendant P and 4 What sum, if any, ia the plaintiff entitled to receive ? To these issues the defendant pleaded— l. That he did not become the purchaser. 2. That he did not pass entries. 3. That the sugars were never delivered to him by the plaintiff. This case arose out of the fire at Grahame's bonded stores some few months ago. Sugars which had been sold a few days previously by the plaintiff to the defendant were in that store and were consumed. Defendant then denied his liability, as he denied that the goods had even been delivered to him. The preßent action was therefore now brought to recover the sum of £950 ss. 6d, damages. In opening the case to the jury, Mr. Gillies ■aid that no doubt several nice points would arise in the course of the trial upon which they had now entered. It was one of those commercial questions whick had to be decided by them, the main point to be decided by them boing, when did these sugars become the property of the purchaser, and when did it cease to become the property of the seller P There could, no doubt, be several views taken by the various parties engaged in the case ; but the question which would be for them to found their verdict on was, what were the views of the principals themselves on the ques- j tion of the sale of sugars at the time of the fire? Whose property was it, and at whose risk was it at the time of the fire in Fort-street, by which it was consumed? The sugars were j gold in bond, delivered at the ship's side, and afterwards delivered at the bonded store, and as soon they entered the bonded store they became the property of the purchaser. The learned gentleman then proceeded to detail the facts of the case as brought out in the evidence below. The following witnesses were called on behalf of the plaintiff's case :—: — John Eoberton deposed : I am a merchant, carrying on business in Auckland, and plaintiff in this action. In December last I imported a cargo of sugars by the •Au Eevoir,' and employed Mr. Stannus Jones to sell them on credit j on commission. At the time of the sale the j sugars were on board ship, and they were simply sold by marks and numbers on samples. They were sold, under conditions of sale, on the 18th of December. After the sale Mr. Jones furnished me with a list of the purchasers, and in one instance the bond at which the purchaser required the sugar to be sent. This list is produced. Among the entries there are three lots sold to Mr. Morrin— " E, balance, 3?d, Jonts's bond ; L, lot — , 4f d., Jones's bond ; L, 25 mats, 3|d., Jones's bond." All these are marked to Mr. Morrin. X wa9 instructed to deliver these goods to Jones's bond. The morning after the sale Mr. Morrin called upon me and asked me w.hat arrangements I had made for weighing the sugar. He then said " By-the-by there is a change of bond from Jones's to Grahame's." I said I had heard of it, and asked the clerk if he had made the alteration, and he said he had. I then told Mr. Morrin that it had been done, and that it was all right. I caused a warehousing entry to be passed for these sugars. I passed an entry specially for Mr. Morrin — of the three lots which he had purchased. I engage Pollock the carter to weigh the sugar, and told him of the different lots. Before the sale took place I ascertained from Mr. Graham that he had room in his bond, and finding that he had I arranged to send sugars there, and told him that very likely the sugars would be sent there on the purchaser's behalf. I gave Mr. Grahame a list of the names of the parties whose sugars were going to be sent there. I had one interview before the sale with Mr. Grahame, and one afterwards ; and we agreed — Mr. Whitaker objected to any arrangomentß between the plaintiff and Mr. Grahame. The Court thought Mr. Gillies was justified in his present line of examination so long as he did not go into conversations. Plaintiff contiuued : I furnished the defendant with a memorandum on the Monday after the sale, which took place on the Saturday. No •ugars were delivered at Mr. Grahame's bond at that time. I gave Pollock a list of all the purchasers, with the names, marks, quantities, and where they were to be delivered. After the delivery of the sugars Pollock gave me an abstract of the weights. I don't know of my own knowledge as to the delivery of the sugars. On the 28 Lh December a fire broke out at Grahame's bond, and consumed a portion of the sugar, winch was then delivered. I rendered my account to Mr. Morrin, but it has not been settled. By Mr. Whitakor : The entries produced were made by my clerk by my authority. There is nothing on these papers. Plaintiff : I never used such a form as this on any other occasion, and I used it on thiu occasion because it gave the date of warehousing and the weight of the sugar. This was the first time I had entered the words I " Eoberton, agent of William Morrin," on such a document as this. Mr. Whitaker : Who constituted you the agent of William Morrin P Plaintiff: I assume, by doing all this work on account of him, I was simply acting as his agent in the matter. I did not think much of the matter. It was simply a memorandum made at the time. It was about the sth of January. I cannot say how much sugar was delivered at the time the fire took place on the 28th December, unless I looked at the policy. When the sugar was delivered at Mr. Grahame's bonded warehouse I gave certain instructions to him. I told him I had passed Custom-house entries for certain purchasers of sugars, mentioning their names, and that he was to deliver the sugars to them when they came for them. I considered that at that time the sugars belonged to the purchasers, and I did not afterwards interfere with them ; but I will explain what I mean by that to show that Mr. Morrin was connected with those sugars in any way whatever. They are the warehousing entries. The memorandum of weight is produced. On the bottom the words " Agents on acoount of Messrs. Morrin" are written. They must have been written about the sth January, fully eight daya after the fire. It is not a common way of making a [transfer, A transfer ia never made in this form— it requires additional matter. I simply acted as agent for Mr. Morrin in the matter, passing entries, &c.,and this was merely as a memorandum for Mr. Jones. I assumed I was looking after these things for him in this matter. I cannot give you any further answer than this. 1 did not send these bills to Mr. Jones. I sent several iimilar memoranda to other persons at the same time. I never sent such memoranda before this time. I don't remember any other oeeasion'of doing the same thing. Mr. Whitaker: I want to know why you deviated from your usual course. Have you never had similar sales before ? Plaintiff : Not under similar circumstances. Mr. Whitaker : No, you never had sugars burnt before. There were five bags of damaged sugar which, were delivered to Mr, Morrin, and

I passed an entry to get them out of bond, as damaged sugar, and did so. Mr. Whitsaker : Then after selling and delivering sugar you took it back again. What did you do with that sugar ? Plaintiff 1 : It was sold on account of insurance. Some of the sugar which came by the same ship may have been bonded at Lewis's store, but I dou't remember. I recollect one of the Messrs. Lewis coming to me to make some alteration in, 1 something or other. He did not make known to me that he wanted me to make an alteration in the entry in order that Messrs. Levy and Goldwater might get their sugar. 1 think I did what he wanted me to do. He wanted me to secure him in having performed a certain act.; It was not an authority to deliver certain sugar, I complied with his request, although I said I did not see the force ©f it. Some of the sugar sold was to Mr. Phillips, and was placed, T believe, in Mr. Grahame's bond. I don't know if Mr. Phillips made an applicaoation to get his sugar from the store, and that he could not get it. Morrin might have taken away the sugar from the store bag by bag if he pleased. The buyers were at liberty to take it away from the bonded store before the promissory notes or bills were given. Mr. Whitaker: Then what was meant byapproved bills ? I Plaintiff: I had nothing to do with that ; it was left to Mr. Jonea to look after that part of the arrangement. I had a conversation with Jones in reference to his giving up the sugar to th© purchasers. Jones asked me about the ownership of the «ugar. I said that I had passed the entries in my own name. He then said, " Supposing you pass the sugars in your name, are they not yours ?" and I think: I replied, "If there are no surrounding circumstances to the contrary, it would be so." _ As I knew he was running the risk of selling, I ended the conversation by saying, "It will be all right — suppose I hold the sugars." Mr. Whitaker : What do you mean by that ? Plaintiff: It was simply endeavouring to j ease his mind. It was five or six days after the sale of the sugars. By Mr. Gillies : The warehousing entries are j signed by my clerks — none by myself. 1 don't know that they had any special object in signing them one in one way and one in another. I first became aware of Mr. Morrin's declining to recognise his liability to pay for this sugar though Mr. Jones. Messrs. Whitaker and .Russell, on behalf of Mr. Morrin, wrote to Mr. Jones to that effect on the 6fch January. The memorandum of weight had been prepared and signed before Mr. Morrin refused his liability. In filling up this memorandum, I had no intention of making it a Custom-house document. The sugars that were sold at the sale per sample were to be sound and in good order. The five bags I have spoken of were damaged according to the surveyor's report, and that is the reason I got them back, because they were not in accordance with the conditions of sale. There was no occasion to give transfer to any of the purchasers o£ these sugars to enable them to get them out of bond. Mr, Morrin was never applied to for payment of these sugars until about the 4th or sth January. This matter was discussed with Mr. Morrin the day after the fire, but there was no definite refusal at that time. Stannus Jones deposed : lam an auctioneer, carrying on business in Auckland. I was employed by the plaintiff to sell sugar, ex 'Au Revoir,' on the 18th December last, on crediting commission, according to the conditions of sale, which have been read. Mr. Morrin was the purchaser of three lots, I believe in the first instance he instructed my clerk to send it to Hobson's bond, but on the day after the sale I can't say that I saw Mr. Morrin. The sugars were flot delivered at the bond, as Owen Jones, the keeper, declined to take them. Mr. Morrin was, I believe, made aware of it. Ido not remember Mr. Morrin asking me about the weighing. I was aware when the sugars were •being knocked down to Mr. Oruickshank that they were being bought for Mr. Morrin. I authorised my clerk to tell Mr. Morrin that the sugar could not go to Hobson's bond. When Mr. Roberton gave me the weights of the different parcels of sugar I made up my accounts and sent them in to the purchasers, and among them to Mr. William Morrin. I drew the promissory notes and sent them with the accounts. The amount claimed was £954 7s. 6d. After I sent the notes I received this letter from Messrs, Whitaker and Russell. Mr. Morrin has refused to sign the promissory notes, and they were returned in the letter in question. (Letter read : it stated that Mr. S. Morrin declined to sign the promissory note until he had received the ■ugars.) Cross-examined by Mr. Russell : I hare previously sold sugar. I don't remember ever having previously received memoranda as in this case, but I have frequently received them without the signature at the bottom. The document in question is peculiar. I don't remember such a document before. I have never had occasion to receive such a document before. I have received such documents to sell from, but not as memoranda of weight. Mr. Gillies submitted that this line of evidence was irregular, and the facts elicited were not evidence. Witness continued : On the day of the tale I had a conversation with Roberton as to whose name the sugar should be bonded in. My impression was that he intended to bond in the names of the different purchasers, and I suggested to bond in his own name, which he did, — as he says, as agent, but I don't know. Of the conversations before the fire I don't recollect much. I remember more of what took place after the fire. His Honor : That threw a light on the subject, no doubt. Re-examined by Mr. MacCormick : I told Mr. Roberton that it would be all right. I had satisfied my own mind about the bills, and the purchasers could get their sugar. It was not for Mr. Roberton's protection I did this, but it was for my own. J. M. Calvert, clerk to Mr. S. Jones, deposed: Mr. Morrin gave instructions the day after the sale that the sugar should be bonded in Jones's bond. The storekeeper there refused to take it in. I informed Mr.Roberton of this.and was then ordered by him to send the sugar to Grahame's store. I did not inform Mr. Rocerton of this. Joseph Potter, clerk to Mr. Roberton, deposed : I was instructed by Mr. Jones, on the afternoon of the sale, to pass the entries for Grrahame's bond, aa his brother, Owen Jones, could not take them in. Some time afterwards, during the same afternoon, Mr. Calvert (last witness) came in and told me the same thing. On the next morning, Mr. Morrin and Mr. Roberton had a conversation, but I do not know what passed. Mr. Roberton came to the office-window, and said to mo, in the hearing of Mr. Morrin, "Has the alteration been made from Jones's bond to Grahame's bond for Mr. Morrin's sugar ?" I replied that it had, and Mr. Roberton at once turned round to Mr. Morrin, and said, "It has been done." The Customs entries produced for Mr. Morrin s sugar were passed by me— to be warehoused in Grahame's bond. I prepared this book from the list of Jones's sale, and supplied it to the carter. 1 told him the sugars were to be weighed, and where they were to be sent for each party. That was before any sugars were delivered from the vessel except the samples. The persons who have to pass the entries are the importers. George Cameron deposed : I was formerly in the employment of Mr. Roberton. I superintended the weighing of sugar on the 'Au Revoir.' I remember receiving a book (produced) from the carter. Those sugars which were purchased by Mr. Morrin were put on a carl; and sent off to W. S. Grahame's bond. Delivery notes were sent with them in the ordinary course of delivery. Some of the sugars were delivered to Mr. Morrin, some to Mr. Grahame. As the sugars were delivered receipts were given to the carter, (Receipts produced.) At the time of

the fire all the sugars were not delivered at; Grahame's bond, but they were subsequently. W. W. Wilson, locker, of H.M. Customs, deposed: I remember receiving sugars from, the 'Au Revoir' in the ordinary course of business. I remember receiving 47 bags, marked L 717 ; 299 bags, marked Ll7 ; 25 bags, marked L7lB. There were no other bags of those marks in the bond at the time. By Mr. Whitaker f All the sugars from the 'Au Revoir ' were bonded in the name of John Eoberton. There were afterwards four bags taken out — I cannot say by whom. By Mr. MacCormick : I get my information from the entry in the book. Cannot say who were the owners of the sugar. I only speak from the names contained in the entry. Walter Grahame deposed : lam the keeper of Grahame's bond. I know the plaintiff in thia action. On the 16th or 17th December Mr. Roberton called upon me and informed me that he had a cargo of sugars to arrive,— that he intended to dispose of them by auotion. After the sale I saw Mr. Eoberton at the stores, and he told me that he expected some of the sugar would be up on that Saturday afternoon. In consequence of his previous conversation I requested him to send me down a list of the names of the purchasers. I sent up 1 on the Monday morning, and Mr. Roberton Bent me the list produced. (List of purchasers' names read.) When the sugars werejplaced in my bond those portions which I have mentioned I considered to be the property of Mr. Morrin, and I held them at his disposal. His sugars were kept seperate from other parties'. I remember the fire at the stores. Mr. Morrin could have removed these sugars from the bond before the fire. By Mr. Whitaker : Some damaged sugar waß taken from my store by Mr. Roberton. Mr. Whitaker : Then do you permit people to come to your store and take away other people's property ? Witness : After the explanation of the clerk I had no hesitation in giving him the damaged goods. The Customs officer on the wharf is obliged to send up all goods, damaged or not, to complete his number. When goods are placed in my charge for a particular person I do not allow other people to come and take them away. Ido not think we parted with the five bags till after the fire, but I could not say for certain. By Mr. MacCormick : There wbb no need of any transfer from Mr, Roberton. to Mr. Morrin to enable the latter to get hii sugar out of bond. Upon any locker's order signed by Mr, Morrin or his authorised agent, he would have received the goods. There was no transfer in the case of Mr. J. C. Morrin, whose sugars— or at least a portion of them-^-were delivered after the fire. This was the case for the plaintiff. His Honor asked if it was likely that the case would be concluded that evening. Mr. Whitaker replied in the negative. He had several witnesses to call, the first one being Mr. Morrin, whose examination would probably last some time. After some discussion, it was agreed to go on with the case and hear Mr. Morrin, and afterwards adjourn and conclude the case to-day, Mr. Whitaker saying that, even with Mr. Morrin's examination that evening, the case would probably last two-thirds of to-day. Mr. Whitaker then briefly opened the case to the jury, and afterwards proceeded to call William Morrin, who deposed he was a merchaat residing in Auckland, and was a purchaser of sugar at Mr. Jones's sale on the 18th December last. After the sale he was not aware that his sugar was in Grahame'B bond — indeed, he never heard of the bond until after the fire. (He had thought the sugar was bonded elsewhere. Never made any alteration with Mr. Roberton about the place where the sugars were to be bonded. Had been a merchant for many years, and had had a good deal of experience in Customs matters. The entries were passed on account of John Roberton. (The paper produced.) The home consumption bond was signed by Mr. Roberton as his agent. Saw Mr. Roberton on the morning after the fire, and said to him, " This is a serious matter — it is, of course, your loss," and they botTa agreed that it would end in a law-suit, or a seriouß misunderstanding. They went to see Mr. Grahame together, and told him to re-bag what was left of the sugar to whom it might concern. Told Mr. Stannua Jones immediately after the sale that his goods were to go to Owen Jones's bond. Mr. Jones said that he had told Roberton to bond the goods in his own name, and give transfers for them in the usual way. By Mr. Gillies : Swore most positively that he did not know Grahame's bond — that was, he knew W. S. Grahame's bond in 1862. Knew the building as the Custom-house. Did not call upon Mr. Roberton's store to inquire whether the change had been made from Jones's bond to Grahame's bond. Had heard the evidence of Mr. Potter and Mr. Roberton on that point, and was quite prepared to say that nothing of the kind occurred. Denied that he was in Mr. Roberton's store at all the day after the fire. Swore most distinctly that he did not know the sugars were in Grahame's bond until after the fire. On the night of the fire, Mr. John Morrin asked witness, " Is your sugar here ?" To which he (Mr. Morrin) replied, l( No, it is in Jones's store." Robert Pollock deposed to the delivery of the sugars. Mr. McEellar, Collector of Customs, deposed to the passing of the entries. By Mr. Gillies ; It is the duty of the importer to pass entries, It; being now six o'clock, the Court adjourned until ten o'clock thia morning.