SUPREME COURT.—CIVIL BUSINESS.

Lyttelton Times, Volume XVIII, Issue 1055, 20 December 1862, Page 3

SUPREME COURT.—CIVIL BUSINESS.

Fktoav, Dkc. 12. [Before Mr. Justice Richmond and a Special Jury.] The Queen v. McLkan. This morning at ten, the Court opeUed, and the case of •' The Queen v. M'Lean, 1 ' was resumed. Mr. Travers commenced his address for the Crown. He said the present proceedings wore of the nature of on action of pioctineut aud for damage for unlawful intrusion, and the defendant was bound to shew a clear title to the occupancy iu order to purge himself of the wrong alleged. It was bis duty to shew not only that his title was good in fact but also m form ; in his pleadings he had asserted this, and it was for the jury to aav whether the evidence adduced harl proved a title sufficient lo bar the title of the Crown, and to defend him against its claims for damages. They might flud a special verdict as to the facts proved, leaving it for the Court to deuioe whether those facts furnished a sufficient bar to the title of the Crown. He wonld call their attention to the facts. Sir George Grey appointed Col. Campbell to be a Commissioner of Waste Lauds of the Crown, under Regulations issued in 1851, under the provisions of an ordinance of the Legislative Council passed iu 1849 aud amended in 1851. That ordinance and the regulations could not set aside an Act of the Imperial Parliament. Jsay more, their ouly potency could be dorived from the Letters Patent issued iu pursuance of the Imperial Act of 1846. Now by the Letters Patent the Governor of New Zealand was empowered to deal With the waste lands of tho Crown in this way. All lands in New Ulster and New Munster could only be alienated by a grant which had passed under the public seal. The lands outside the Canterbury block were under this law, and mii?ht be alienated by grant of tho Governor under the public seal if he strictly conformed to the rules prescribed by. the Letters Patent. A grant might be limited or in perpetuity, »ud a depasturing licence' would come under that denomination. By the Charter of 1846 it is laid down (clauses 12, 14, 15.) " And w« do hereby authorise, empower, and require the Goveruor-in-Cbief of New Zealand, and the respective Governors of each of the said provinces respectively, to keep and use a public seal for the sealing of all things whatsoever. • • • • And we do hereby give aud grant to tho respective Governors of the said provinces respectively full power and authority to make and exocute in our name and on our behalf, under the pnblic seal of the said respective provinces grants of waste lauds to us belonging. • • • • Provided alwaysthat iu the exercise ol the powers lost aforesaid the respective Governors of the said provinces respectively shall strictly conform to and observe the rules for their guidance pre scribed in and by the said instructions hereinbefore mentioned." The 14th section of the Bth chapter of Instructions stated that no lands of the Crown should " be alienated either in perpetuity or for any definite time, either by way of grant, lease or licence, except upon, uuder and subject to the regulations hereinafter prescribed." And the 24th section, same chapter, prescribes that no purt of the said demesne of the Crown shall be alienated in any way unless three caleudar months' notice be first given by proclamation of the Governor. The learned counsel proceeded to shew by extracts from Bacon's Abridgement, supported by an anonymons case, that a lease is like nnio a licence, and the alienation must be by record with the Royal seal upon it, made by an authorised agent, under Letters Patent, and this doctrine was further maintained in a passage quoted from Blackstone. He read portions of the Regulations of 1851, and assumed that Sir George Grey in them had not conformed to the instructions made binding on him by the Letters Patent, and that if the licence now in dispute had been issued by Colonel Campbell in strict conformity with Sir Georgatfrey's instructions of 1858, such licence would not in strict law be valid as against the claim of the Crown. Mr. Travers proceeded- to argue that the Governor had no power to re-delegate to a third party his own delegate power to grant and seal personally all alienations of the Crown demesne. (His Honor: The Governor wonld need to be übiquitous) He did not wish, to contest the validity of Sir George Grey's Regulations in their general application to this case, but they could.not be held to be in force in those particnlars which are in conflict with the principles of statutory or common lawi Those Regulations vrert- in the nature of powers conferred upon agents, and he Bhewed by a quotation from Storey what is the distinction between public and private agents. The undertakings of the former were not binding upon the principal, if snch undertakings bad been made beyond the. authority conferred. Now, he brought the grant of McLean's licence to that test. ColouelCampbell had no power to make any regulations conflicting with the instructions by which his own delegated authority was limited, and could not legally issue any licence (so called) nntil all the preceding conditions had been fulfilled. It was assumed by the law that all persons taking licences knew what powers the age at had, and this brought them to the inquiry what was the fonn of the licence issued by Col. Campbell, and what the application that defendant had -made for the same. The defendant's counsel had not accepted , the Judge's, suggestion to rely on the license as prima facie evidence of right, but would contend that Col. Campbell had carried out his instructions, —believing {as he felt that he should believe) that the onus rested upon him to prove that; but he had got no further than assuming it. Had he produced a valid licence and relied exclusively on that, his plea would have been different, and he (Mr. Travers) would have been bound to controvert the power of the licence to bar the title of the Crown. Sot- no-irach licence had been produced, the documeut put in, as his learned friend knew, was not worth the paper it was printed on, in the absence of proof that the preliminary steps had been taken to render (he issuing of such a license legal. The commissioner had no power to licence a run unless an application in the following form were first presented. (The learned counsel here read the form of application prescribed by the regulations in schedule 8., which demands that the situation, boundaries, and estimated extent of the run shall be inserted, together with the number and description of stock.left upon it.) Had snch an application been put iu by the defendant ? There was no evidence of it. If such an application had been made, why was the defendant not put into the witness box, that he might swear to it ? They would be told he was in Otago, looking after his sheep. He was not here, -where he ought to be, and why? He (Mr. Travers) knew why, well enough'. Had he been in the witness box, the learned counsel on the opposite sideknew well.that his first words would have put them out of court. The learned counsel's efforts to remedy this defect in his case, reminded him of the struggles of a young acrobat' 'learning to walk upon a rolling-globe, wriggling from side to side and all round, feeling his foundation slipping, and no balance.pole with which to keep'his equilibrium. (Laughter.) He called Mr. Boys; he called Mr. Cass ;he called Mr. Brittan; be bad coaxingly chatted with them and then put them under examination;-and what had he produced? One copy of one application made—not by the defendant —not for a run described as the l.aw required—not for one run merely, hut for three runs, anywhere) that had been ajjybody's; three runs which it was hoped the kind-hearted, poor old commissioner might some day pick up for Allan McLean and his two brothers. (The learned counsel here read the application, as given above, and shewed what the form ought to be.) The boundaries were* required to be marked, in order <o avoid trespassing upon neighbouring holders, and the regulations further required that three months' notification of such application should be published, to enable the. public to urge any objections, and so defend their rights under the common law. In this case, he would shew that not-only the letter but the spirit of the regulations had been violated. The 17th of August was . the date of the so-called application by Allan McLean; the fact of such application was first made public in the ' Lyttelton Times' of the 15th of October followiug, by an instrument dated the 27th of September. In that advertisement Colonel Campbell announces that 41 on the' Ist November next, licenses of runs for 7 years will be issued to all the applicants whose names are given in the following schedule," one of the applicants named in such schedule, being Allan McLean., Now the Ist of Novoraber was 17 days within the time required, computing the three months from the date of thesopcalled applicotion. Here then vasa gross violation of the spirit and letter of the law. But there was something more yet. Referring to Mr. Brittan's evidence, they would find that the country in question had not been stocked for IS months'after the license was issued t the regulation suppose parties to a licence have done all things necessary to make the granting of a license valid, and in the sth clause it is assumed that if a run is not sufficiently stocked within four months after being granted, the holder has abandoned the same, and forfeited any ri|iht in it. Aud here the jury would perceive a strange discrepancy between the regulations of Sir G. Grey and those of Col. Campbell,the latter assuming the power to set aside the sth regulation, and allowing not four-but 12 months for stocking a run after licence granted.. If. tho neglect, by defendant to stock the run ifithin the period and in the manner prescribed by the regulations of 1851, were the only ground of objection to Mr. McLean's licence, he would take no advantage of that, and allow that it bad been condoned ; but it was in evidence by Mr. Britten that defendant had infringed tho instructions of Col. Campbell, and failed to stock his run within the time prescribed by that most easy, of all commissioner*. Again, they were aware that the acreage of a run must be determined by the number of sheep or great cattlqp remaining upon it. " Remaining upon it" was a vague term, but it was no doubt intended to mean the number of cattle placed upon a defined area to depasture It. By the law of Sir Geo. Grey, there were no power to grant a licence for a run without that condition were first complied with, and Col. CampbeH had no authority whatever.to grant a run to the defendant until he had proof that sseh run were stocked. Aud yet, though the jury had it in evidence by Mr, Brittan that the country held by the McLeans had never been stocked up to August or September, '54, Col. Campbell gives this paper, assumed to be a licence, in flagrant defiance of the letter aud spirit of his instructions; aid the defendant knew a'so that he bad not complied with the requirements of- the law to make his occupancy legal when ho took this p*)'«r. Under these circumstances the licence is void against the claim of the Crown to the land in question. (His Honor did not see from Mr. Brittan's evidence that Allan McLean's run had not been stocked prrvious to that witness s visit in '54. To clear np the doubt it was decided lo recall the witness, when Mr. Travers concluded his address.) • licence that had been produced in Court, and on which the defence rested, was dated Ist Oct., 1853, not Ist November, at appeared in tho circular of the commissioner published in the »LytieUoa Times.' Had the licence bero issued on the 1« Nov., it would bare been only 15 day* after the notification instead of three months, the lime prescribed by the instructions • to the commissioner; but here was auother fatal objection to ; the validity of the licence, that it was issued 14 days before the notification was made pablicl The note at the foot of the licence wan further proof that Col. Gam pall had set at noug and utterly disregarded the: instntction* accompanying his delegated powers. The defendant know that, and based bis r 'ght, not on complying with the law, but on the rashness of the commissioner; and the former's contumacy to tho Crown callea for substantial damages. which be bad brought before them. (The speech of Mr. Travers occupied two-and-a-half hour* in

tho delivury, and appeared to tnnko a deep impression on all in Court, Consisting chiefly in analyses of law and arguments thereon, our reporter doubts whuthet he may not have doue tlie learned counsel injustice-111 the übovo abstract of the speech. If no, his only excuse id his ignorance of the laW.) W. G. Brittau reculled: When John McLean »ai(l he had not stocked the country, I understood him to mean all the country on the south hunk of the Ashburton held by the three brothers MeLeun. There wus no stock at all on the country nam'ed for twelve months after McLean's licence was granted. Of my own personal kuowledge I cannot say there had been no stock there before; but to the best of' my belief there had not. . By Mr. Bealey: Rent lias been tendered by Mr. McLean to rae as Commissioner, but I have always declined to take it. By Mr. Hargreaves: Bent has been paid for this run by Mr. Hall. By Mr. Bealey: I published a notification that all runs not stocked according to tho conditions of the licences issued by Col. Campbell would be forfeited. This closed the case for the Crown. Mr. Dampier replied for the defence. After expressing tho heavy responsibility he felt not only for the interest of hi* client but to all licensees under tho Rotations of 1851, ho attempted* to controvert the arguments of Mr. Travers that the. licence was bad in form and iu law; and said, that whatever opinion might be entertained as to the validity of the Regulations themselves and the legality of the Commissioner's proceedings, the facts remained that the defendant had sent an. application to Colonel Campbell, on which the latter had granted the licence produced iu Court. He would pass by Mr. Travers' dictum that a licence to be valid should pass under the public seal, as that prescription of the Letters Patent could not apply to licences granted for pastoral purposes. It was the duty of the Commissioner to see that tho obligations upon the licencee were fulfilled, and he apprehended that the possession of a licence so granted was good agaiust the Crown uutil the latter proved it to be bad by reason of its being obtained by falso representations; and then the licence could be made inoperative only by a legal process. The publication in the ' Lyttelton Times' was a parole licence; and the only objection on the face of the licence itself was the note at the foot: "or by any law or regulation which may be hereafter established." Those words were only in excess, and did not vitiate the es>ential part of the licence. The learned couusel then combaited the argument that pastoral licences should be signed by the Colonial Treasurer, asserting that such rule could only apply to Timber-Cutting .Licences and short licences withiu Hundreds. (His Honor argued that if the rule had any application at all, it applied to pastoral licences, as shewn in the 23rd Regulation.) Then defendant would fall back upon the ordinance which clothed the Commissioner with power to sign licences; and though exception were taken to the form of the licence itself it was proof that the agent of the Crown had granted permission to occupy and was therefore a parole licence. (His Houor questioned that opinion; but if a parole licence could be thus established, it would have i o force to resist the right of tlie crown, though it might be pleaded in an action for damages.) As to the licence being dated the Ist of October instead of the Ist of November, as notified in the ' Lyttelton Times,' Colonel Campbell had exercised a discretion in the matter, and had signed on the Ist of October to preserve uniformity in the issue of pastoral licences, thinking to serve the public convenience. (His Honor: It does not signify what Colonel Campbell thought, the law prescribed three months' notice.) The license might be issued before that notice expired, but still subject for three months to any opposition which might be brought against it within that time; and only on the ground of the run not being stocked within the time prescribed, as reckoned from that da.ej could the licence be made void. (His Honor pooh-poohed this opinion.) As to damages, which would have to be considered only in case of the licence being declared void, —when the jury remembered that his client had acted in bona fides, they could not assess them at a higher sum than would have accrued to the Crown from the rent of the land, had the licence been held by another party. (His Honor denied that assumption) It was nine years since the licence had been issued, during which time the Crown had been laying by. (His Honor: The defendant was surely meant; he had been paying no rent for this valuable property; and it was to be supposed that he had been laying by.) The Crown was indifferent as to the issue, and would not look for other than nominal damages. (His Honor differed from the counsel; the nature of the action brought shewed that the Crown sought damages for trespass and for eating the grass, catting trees, ic ) There was no proof that the herbage had been eaten. (His Hodor: In the pleadings, the depasturing is admitted.) With those remarks he would leave his clients' interest in the hands of the court and the jury. |

His Honor Mr. Justice Richmond, in committing the case to the jury said: Gentlemen,—This case is one of considerable importance,*as it affects property of great value, but your duty iu regard to it will be a very simple one. The action is an injunction of intrusion preferred by the Attorney-General, on behalf of the Crown; against the defendant, Mr. John McLean. The information charges that the defendant, on or near the 12th May, 1855, entered and intruded upon the run.iu question, containing 22,500 acres, aud has continued in possession until the filing of the information. The defendant's pleas justify his entering and occupation under two depasturing. 1 censes, each comprising 20,000 acres, alleged to have been issued by the late Commissioner of Crown Lauds in this province, Col. Campbell. One of these licences is to have been granted to John McLean, and contains 12,500 acres of the country in dispute, being that portion colored red injhe plan annexed to the plea. The other licence is alleged to have been granted to Allan McLean (the defendant's brother) and is stated to contain the remaining 10,000 acres of ihe country in dispute, being that portion coloured yellow in the plan annexed to the plea; and the defendant justifies his occupancy of the last 10,000 acres as agent and servant of Allan McLean. The Replicator of. the Crown takes issue upon all the material allegations of the pleas. Upon pleadings such as these, the burden of proof is admitted to rest upon the defendant, who has to day produced the licences upon which he relies. The case wholly turns upon the validity of these licences, and is purely a question of law. No fact is in dispute between the parties, unless indeed it be thought that the question whether the run was duly stocked is one on which there may be a difference of opinion. At all events nothing turns upon this poiut just now. The only question being one of pure law, t am bound to give you, and you are bound to take, my o, inion upon it. I dare say some of you may be very well able to form a sound judgment upon snch a question, and it is certainly rather absurd that you should have had to listen to lengthy arguments, and then be told, as I am obliged to tell yon, that you must receive my conclusion. It would be useless to trouble you with the reasons upon which I base my opinion. I shall therefore only tell you that, upon all or some of the grounds t toted by the counsel for the Crown, I am of opinion that the licences are void, and that it will be your duty to find a verdict for the Crown. It remains for you to consider of, and find, the amount of damages sustained. There is a difficulty expressed by the witnesses in putting an annual value upon the country owing to the fact that unstocked runs have been rarely let iu this province, aud cannot be said to have any definite market value. Ido not think however that you will find much practical difficulty in the matter. It is said the country without the stock is valueless. But land is always valueless except as a medium for the employment of capital and labor. If from the annual profits of the run and stock together, you take away the profits of the live stock by itself, the residue should be something near the annual value of the run. Now, the annual value of the live stock by itself can be arrived at by the usual conditions on which sheep are let outou terms; which, if one of the witnesses who has spoken to this matter be correct in his figures, would appear to give about 2s 3d of the entire profit to the stockowner, and Is 3d to the runholder. This computation, however, as entirely belongs to yon, as d es the question of law to me, and what I say upoii it is merely by way of suggestion. I think that it would not be fair to the defendant that you should calculate the. aunuul profit ,of the run at the amount Which it might have yielded, with our present knowledge of the country, to a person fully availiug himself of its capabilities. If it be the case that there provailed at that time a general ignorance of the capabilities of this province for sheopfarming, and that stockowners in general during the period referred to, did not fully avail themselves of those capabilities, that circumstances should be taken into account in your estimate of tho value of the country in question during that period. It is as if there had been an undiscovered and inexhaustible mine under the land. It would not be fair to charge the defendant with the profit of such a mine. The damages you ought to give should, I think, be computed upon an estimate of the nc'ual profit ordinarily derived from similar country during the period in question. From what I have said, you will understand that I think your verdict should bo for substantial damages. , Mr. Dampier here asked jf this wero not the proper time to apply to have, the point of law reserved. The Judge said he did not know what point to reserve. He supposed that the case was of so much tlitit the defendant would not be satisfied without taking the case to the new Court of Appeal. This the defendant could do by applying for a new trial. Either upon l)ie grant or refusal of : a rule niti the case coulo bo beard at once in the Court above. : After 20 minutes' deliberation tbe Jury returned with a verdict for the plaintiff on the Ist issue, and on the 2nd issue damages jf2ooo. His Honor, on the request of Mr. Travers, certified the case one for a Special Jury, Page v. Hodge.

(Before a- Special Jury, of whom J.-C. Wilson, Esq, C.B. was foreman.) Mr, Sewell and Mr. Slator wore for the plaintiff; Mr. Travers and Mr. Oakes for tbe defence. Mr. SEWJStI. stated the case. Mis. Hodge, a widow lady, was owner of a 50 acre section on the Ferry Road, which she had mortgaged. In June lust, the mortgagee pressing her for bis money, sho applied to Messrs. Burnell, Bennett, and Sprot to effect a sale of ber property. On the 9th July she gave them authority, with specific instructions, to sell; aud at thai time stated to Mr. Burnell the urgency of the demand upon her. A minute of her instructions wus entered in a book of the firm. (The minute referred to was here read. It wus to the effect that 33 acres of the back part ofth, section wns to bs sold at per acre, a five-acre puddock in front was to be sold by auction}and a houso and town section in Lyttelton were to be sold for any sum above an upset pr ce named.) That minute was written by Mr. Burnell in Mrs. Hodge's presence, and read toiler, She gave only general instructions that the agents might use their own judgment so as to effect a sale. "Mr. Burnell said he would try what ho could do for her and write io her as to the result. She replied "Don't write until you have 'got a purchaser ; and do the best you can. Mr. Page, the pUintiff, had previously boen attempting to negotiate for the purchase of the back land and one acre in front with a right-of-way from Ferry Road, but his offers had heen refused. Afterward* Messr. Burnell and Co. accepted from plaintiff the

offer of for the property mentioned, and the latter applied by Mr. Slater, his attorney, foi an abstract of title, but it was denied him, and Mrs. Hodpe refused to fullil the contract entered into between Messrs. Burnell and Co. and the plaintiff, aud this action wus brought to compel Mrs. I-ludgu to complete the contract made by her agents. The following witnesses were examined. Edwin Burnell stated that Mrs. Hodge hud previously to July last intimated to him a desire that he would strive to sell her property on the Ferry road, aud on the 9th of that month gave him particular authority to do so'. He proved the statement made by Mr. Sewell as to the minute entered in the book, and the expressions used by Mrs. Hodge at the time, who said finally, " I leave the matter entirely in your hands." He afterwards sold part of her property to the plaintiff on certain specific terms. (The terms were, jf345 for 30 acres of the back land, one acre in front, and an accommodation road half a chain in width, from the Ferry road, part of the purchase money paid in cash, the remainder by bills at 3 und 6 months.) By his Honor—l took acceptances uuder the general instructions, Joseph Honry Bennett and Mark Sprot, both present at the interview with Mrs. Hodge on the 9tli July, confirmed the pre* vious witness's testimony, and said thut they had consented with Mr. Burnell'to this business being done for Mrs. Hodge free of charge. A number of letters weve put iu showing that Mrs. Hodge was anxious thut Messrs. Buruell and Co. should effect a sale to relievo her from a pressing difficulty; but they none of them contained a specific authority to sell the front land, though oue of them suggested the propriety of disposing of part of the front land at £50 per acre. Mr. TnAVKBS, for the defence, pointed out that the special instructions recorded in the minute read had been departed from -by Meters. Burnell and Co. in their contract with plaintiff, aud that therefore defendant wus not bound to ratify it. He showed by plans of the property-thatnot only was Mrs. Hodge desired to give up an acre of the front land for jfli (which she never intended to sell at all), but to give an acre and a half of the best part of her laud for a road which could be of no benefit to the part she retained, if the contract ■were co .seuted to. :< Mrs. Hodge was examined, and testified that she had given no instructions to sell any portion of the front land, except by auction, nor had she given any special authority to receive the purchase money for any part of her property. Mr. Chas. Hodge gave some corroborative evidence; after -which the counsel on both sides uddressed the jury at great length. His Honor pointed out clearly the law of the case, and told the jury they would have to say whether the agents in their contract with the plaintiff had exceeded the authority given to them by the defendant. The jury utmost immediately gave a verdict on all the issues, in favor of the defendant. The Court then adjourned to Saturday, at 10 p.m.

SATURDAY, DEC. 13. VOUHT V. JOHNSTONE & ANOTHER. (Before a Special Jury, of whom J. C.Wilson. Esq.,was foreman.) Iu this case plaintiff, a German, sought .1500 damages from plnintiffs, Messrs. Johnstone and Williams, ou the ground that by their negligence he had suffered loss, he having retaiued : them to settle a writ issued against him at the suit of a person : named Haskins, and then putting in no appearance, had allowed judgment to go by default. Mr. Slater was for the plaintiff; Mr. Duncan for defendants. Mr. Seatbr, in stating the case, said he was called upon to penorm a most painful but necessary duty, and when he had fulfilled that duty he had no doubt the jury would concur with him that the defendants had been guilty of gross negligence, and that his client was entitled to substantial damages. The ""plaintiff, Jacob Voght, was a foreigner ; he had, prior to 1859, some business transactions with a storekeeper, at Papanui, nam> d Haskins, which terminated iu the latter issuing a writ against the plaintiff for £43 7s. 2d., the correctness of which claim Voght denied, and engaged Messrs. Johnstone & Williams to see him .righted. By the pleadings, defendants deny that they had been retained by plaintiff, and the proof of this was the gist of the question at issue. A retainer was not necessarily in writing, as he shewed by a maxim in Chitty's Queen's Bench Practice, Vol. I, page 71,10 th edition; and in Roscoe it was laid down that a retainer might be proved to have been given by shewing that- a client had been at an-attorney's office, and given verbal instructions to defend a case. As to a charge of liegligeuce agaiust an attorney, it was laid down in Archibald Queen's Bench Practice, that an attorney should use skill and diligence in conducting a client's case. That, he admitted, was somewhat vague; but there could be no doubt that allowing a case to go by default was gross negl'gence, for it was laid down in Selwyn's Nisi Prms that it was no justification of default to say that there was no sufficient defence. The learned counsel, ufter quoting other authorities to shew that a client has a to expect ordinary skill and diligence from his attorney, and to receive damages where disappointed, proceeeded to shew the facto of the case. In 1858 there had been a settlement of accounts between Voght and Haskins up to Nov., and their trading transactions continued tip to the end of '59. About Sept. of thai year, Voght -pressed Haskins several times to furnish bis accouut, but he did not comply until Nov., when he sent iu a bill amounting to .<'s9 15s" lOd, and a few days after sent a copy oi'a writ for the same less some, items for interest, reducing the amount to 17s 2d.' Voght questioning ihe uceuracy of both, went to the of the defendants and saw Mr. Johnstone, to whom he imparted some particulars of the transactions between himself and Haskins, and shewed that the latter's just claim amounted to only 12s Bd. Mr. Johnstone went into these particulars, and by his own figures was satisfied that the sum just mentioned was the true one,assuming Voght's statement to be true. Subsequently, the latter gave Mr. Johnstoue cash to pay the amouut, aud he said that be would see that Voght was righted. On three consecutive Saturdays afterwards, plaintiff called on 31r. Johnstoue to inquire whether the business were settled, and each-time, though he received a somewhat unsatisfactory answer, was encouraged to believe that the matter would be satisfactorily concluded. ■ About this time Mr< Johnstone was making arrangements to go to England, and did sail for the old country without settling Voght's affair with Haskins. The only construction that could be put on the matter was, that Mr. Johnstone had forgotten all about it; for, in February, defendant being then in the midst of harvest operations, en execution was made upon him for £61 10s to satisfy Haskins' claims, and costs. Amazed at this, Voght went to the defendant's offices to find , out how it had occurred, and found that Mr. Johnstone bad goue to England. He then went to Haskins' solicitors, Messrs. Wyatt and Harston, and learned that no money had been paid on his behalf by Mr. Johnstoue. Mr. Williams, on being applied to, said he knew nothing of tho matter, and refused to pay attention to Voght's complaint until he produced Mr. Johnstone's acknowledgement of having received the £26 odd, when ho teiidered a cheque for the amount. These facts he (Mr. Slater) should prove in evidence, and shew one of the clearest cases of negli. geuce in an attorney that had ever come under his notice. At the conclusion of his remarks, he called

Jacob Voght, who said he was now a laborer, but in 1859 was a farmer at Papanui. He had dealt with Mr. Haskins, and their last settlement was made in Dec. 1858, up to 16th November of the same year. On .the 22nd Nov. 1859, Haskins tendered another account, which lie disputed. (The witness's evidence fully bore out the statement of Mr. Slater.) He further said that to stop the execution he was forced to sell his crop at 4s per bushel, and soon after had to pay 6s 6d per bushol for wheat of like quality. Caroline Voght, wife of plaintiff, corroborated her husband's statement that he had given Mr. Johnstone the jf 26 odd to tender in settlement of Hawkins' claira,«jid said further, that three weeks afterwards, when she saw Mr. Johnstone on the subject, he told her they need not waste their time in calling j on him again, as he would settle the matter. Mr. Harston (late partner with Mr. Wyatt) was called to | prove the serving of the writ by them, and the levying of the execution. No appearance waft entered for Voght, against whom judgment.was entered by default. Mr. Wm. Wilson proved having bought plaintiff's wheat at 4s. per bushel at the time alluded to, uud that wheat a few months afterwards was commanding from Is. 6d. to 2s. 6d, per bushel more. Mr. Duncan, for the defendants, denied that they had been ; retained at all, and said Mr. Johnstone had simply undertaken to try if Haskins would accept Of the £26 odd to extinguish his claim against Voght; he had endeavoured to do this, but < had failed. That was the limit of his undertaking, and he had neither charged or expected any fee for his trouble. He saw there was no grouud of resistance to Haskins' claim, and. had told Voght so. Failing to servethe latter by inducing Haskins to ste.y proceedings, he had left the money entrusted to him, with his partner, Mr. Williams, when he was about leaving for England.—Counsel.called Mr. H. B. Johnstoue, ihe defendant, who stated that the plaintiff called upon him and shewed him a writ which had beeu served upon him by Messrs. Wyatt & Harston, the attor- 1 nies for Haskins, which d -mand he was unable to satisfy. Plaintiff assured witness that he had no defence to offer; with one trifling exceftion, the items in the bill were correct. He : said that he had some counter claim against Haskins. which wituess advised him to bring before the Resident Magistrate's Court As plaintiff aud his wife appeared in great distress, witness promised that he would endeavour to persuade ]tfr. Wyati to accept the origiual sum, and, on account of the uoverty of the plaintiff, to waive his right to the costs. itness saw Mr Wyatt, who said that he could not do so without Haskins' consent. Voght brought *26 odd to witness's office, which he tendered to Mr. Wyatt, who refused to accept it, on the around that he had no farther communication with Haskins. Witness received the from Voght, with the understanding that if lie heard from Mr. Vfyatt that Haskins would take the money, it would be ready to be given to him Witness wrote him out a receipt for the money, as he witness) was going to England very shortly. (Receipt pro•lu 'ed l Witness positively denied that he was in any way. retained to conduct any action for Vogl.t; he /merely undertook: lo mediate in the!case between him,a«d Mr. Wyatt; he acted = entirely in the matter out of kindness to him, and. never made or intended to make any professional charge against him. (Wit-. ness's private memorandum book was here produced, to prove this assertion.) There never was any entry madtf in the cause book, or any other book belonging to the firm, relative to this transaction. Witness, previous to leaving for EiiglM. 'ne')tioiii/d all the facts of the case to his partner, Mr. Williams, und left the money in his hands, either to tender the money to Mr. Wyatt, or to returu It to Voght. * In answer to Mr. Slater, witness swore most positively that ho never received any instructions from plaintiff to defend tho Ca Mr. Wynn Williams was then sworn,'and, in the main, corroborated tho evidence of Mr. Johnstone; ,hi«i evidence wus to the cffect that no professional connection existed between the firm and the plaintiff.

Thomas Htwkiim wuh then sworn, but his evidence was immaterial. The Provincial Solicitor said that he'wus glad tlmt this case hud been brought, because Voght scumed to feul himself aggrieved. In every case, unless a retainer cun be clearly Hinted, the benefit of a doubt should always be given to solicitors. It was for the'jury to decide whether the'allegations made by Voght to the effect that he had retained tho defendant* to de- • feud him in an action could be reconciled with the evidenee of ; Mr. JohuHtoue, who had positively sworn that he had received no instruction* from plaintiff to do so. So far from there being ; any specific agreement between the parties that the action be defended, Mr. Johnstone ii. forma the jury that he- undertook the settlement of Messrs. Wyatt & Co.'s claim against'Voght puroly as an act of kindness. Mr. Johnstone's private memorandum book confirmed this, for there was no professional fee charged against plaintiff Mr. Johnstone evidently considered that the money was given to him to be tendered to Mr. Wyatt, and not to be paid into court with a view of defending the case. Mr Slater briefly replied) and then recapitulated the main features of the case as they had been stated in evidence. He ' expressed his conviction that from the evidence laid before them ■ the jury could not have the slightest difficulty iu finding a ver- | diet for the unfortunate plaintiff. The learned judge summed up the evidence, reading some 1 portions of it, and commenting upon it as l he proceeded. The jury retired far q short time, and finally returned a verdict for the defendants. John Murray and Alfred Ryder Homersham, two imprisoned' debtors, petitioned for rnlease. and their prayer was granted. This closed the business of the session.