SUPREME COURT.

Lyttelton Times, Volume LI, Issue 5585, 18 January 1879, Page 6

SUPREME COURT.

CIVIL SESSIONS. Friday, Jan, 17, 1879. (Before his Honor Mr Justice Johnston and a Special Jury.) HENDERSON Y, THE NAPIER HARBOUR BOARD. This case was continued at 10 a.m. The Attorney-General gave notice that he intended to ask for the insertion of a new ptwog»fcj>lx in f-ha <lae!arftt ; i£m, .y:ith-^£farftnea to the alteration orthe site of the western mole. James Bichard Davies, whose examination in chief had beien taken oh the previous day, was again placed in the witness box, To his Honor: I frequently asked the engineer verbally for the test for piles. I continued to drive before getting the test, under instructions from the Board’s Engineer or his assistant. To the Foreman s The piles were of totara, 40 feet long and 12 inches square. They were supposed to be heart of totara. They were shod with 701 b shoes. The contractor had to shoe them. Cross-examined by Mr Macassey: lam the Mr Davies, senior, who was formerly a railway contractor in Southland. There was a dispute as to my son being my partner there. On three occasions I called Mr Weber’s attention to the alteration in the embankment, and he denied it. If he asserts that he did not deny it I maintain my statement. The statements contained in Weber’s letter to Mr Henderson and to the Harbour Board, as to what took place at our interview concerning the final certificate were not true. (Letters from WebertoHendersonandthe Boardagain read). I never heard it stated that the proposals were to be void until all disputes were settled. Mr Henderson went to Napier for the purpose of getting a settlement. The actual reason for his going was a commission. Mr Weber promised the certificate after these things had been done. The interview was on May 1. The Board meeting was to be on the following Tuesday, and I went away on Sunday. The arrangement was that the holes should be filled and that Mr Weber should supply the cross ties and deduct the cost, and that a contract should be made for removing the debris of the quarries. The clear understanding was that Mr Weber should send in his certificate on the Tuesday. I shall adhere to this statement though Mr Weber flatly contradicts it. I am a dormant partner, and am interested in this case to the extent of half the result.

Mr Macassey: Have you ever been told by a judge that your evidence is not worthy of credence ?

Mr Stout: You had better bring the Judge. Mr Macassey: If the witness had been convicted of perjury I could get that from him. If he had been convicted of prevarication—

His Honor: I don’t know that you can ask that question. I should advise the jury that if the witness refuses to answer they are not to jump to a conclusion that the fact suggested by the question is true. Is it fair to put the witness in such a position that if he refuses to answer a question the jury may have an unfavourable impression made upon their minds ?

Mr Macassey: The witness throws an nsfersion upon the veracity of Mr Weber, and ask; Did not Mr Justice Biohmond say, in a judgment in a case of Davies v. Connor, that witness (Davies) had proved himself wholly unworthy of credence r His Honor: This is a very important point. No man can come into a witness box prepared to answer questions as to his whole life, and what has been said about him.

Mr Stout: We shall not object to answer the question, but shall require to be allowed to explain to the jury all the circumstances connected with the trial of Davies v. Connor. Mr Macassey referred to cases. His Honor: The fact of the Judge having said this, would be no evidence against the witness. I confess I have very great doubt whether this question should bo put. If you press the question, and he chooses to answer it, the Attorney-General must be allowed to bring evidence as to the whole of the facts. Most Judges abstain from expressing an opinion upon the facts, still they bave a perfect right to express an opinion upon them. Mr Bees : I gather that this is a port of a written! udgment. It should be produced. His Honor How is that to be done ? The first _ question should bo—Did you hoar Mr Justioe Biohmond express any opinion aa to the credibility of your evidence ?

Witness; I never heard Mr Justice Richmond say with regard to my evidence in Connor and Davies that it was untrust W °Hh^Honor: That clearly comes under the uncontradiotable. . ■ „ Mr Maoassey: Did you ever admit m a Court of Justice that you had bribed the Engineer of a Southland Railway with a sum of money, £3850, and a house costing Witness: I never did. Mr Maoassey: Did you make payments ( Mr Stout: I submit that this clearly has nothing to do with this case. Mr Maoassey : Have you admitted that vou made payments to the amount I named. Witness: I admitted that I had made advances to the Engineer as a loan. I forget to what amount. Mr Maoassey: Did you assign as _ your reason for doing so that you were m his power and afraid of him. Witness : I cannot remember. Witness: I never admitted that I had made fictitious entries in my books for sums advanced to him as “ for plant.” I do not remember admitting that the only entries of such piyments had been made in Welsh patois. I know a few words of Welsh patois. I don’t remember swearing that having made these payments I concocted a n heme with him for selling a third share of an unpatented invention for the purpose of averting suspicion in case of enquiry. lam not aware that these things have been discussed in the Southland Provincial Council. Mr Maoassey: Did you as a matter of fact cone ct such an agreement for the purchase of a compound rau for £4000? Witness: Yes. I have seen a drawing of the rail. That is all I have seen of it. I paid him £IOOO more. I never received a shilling value in return for it. I lent him the money. I had a memorandum in my pocket-book. I should think I had in other books. I think it was all paid in bank notes. From the beginning to the end of the contract I paid him over £IOOO, over £2OOO. I can’t remember that it was over £3OOO. I built a house on a piece of ground for him, Or carted the stuff for him. I did not claim on the Government for it. The whole affair was not blown np through that. My son was not -mixed up in these cases. 1 accused Mr Weber, soon after I went to Napier, of being prejudiced against me. I then found that Mr Weber knew Mr Qeisow, who had been at Invercargill while I was there. I did not accuse Mr Weber of having his mind poisoned by Mr Geisow. He told me lie had. Mr Weber said he was put on his guard as to translations with me by what Mr Geisow had told him about those Southland affairs. Jt was arranged in Wellington by myself (hat the tender should be sent in for this contract. Mr Henderson was in Australia. He had an interest with me. I had no communication with him before sending the tender. It was arranged before he left that we should tender. I did not go up to see the work; I got the information from there. I don’t know that it was private information. Mr Hoadley sent me word and gave me information as to the works. I can’t say whether I wrote privately to Mr Hoadley before or after the contract. Mr Hoadley had been in Mr Brogden’s employment; Mr Henderson was manager for ;Mr Brogden. My only information was from Mr Hoadley, from the advertisements, and from my own knowledge of the place. The advertisements calling for tenders give the quantity of stone work as 60,000 cubic yards. The quantity I estimated in the tender, without having visited the place, was 34,170 yards. I came to the lower estimate by calculating the quantities from the sections on the plans. 1 knew Weber, I think, in 1872. He was engineer for the Government, superintending the works. I believe he was there when tenders were called for. I believed his estimates were exaggerated ; they are exaggerated still. He gave the borings and the caution with them. I made no borings ; I had made none previously. I did not consider it necessary after the engineer had done so. I estimated that there would be in the original west embankment 5000 cubic yards. In the altered embankment there were 12,000 cubic yards. I ascertained that when it was done. Without referring to the returns I could not tell exactly when we discovered that it would take a larger quantity, I think it was in March or April, 1877. The embankment was finished and file groin begun, I fancjvin the early part of May. There is a memorandum of driving the first two piles on May 13. Possibly a great storm may have carried away part of the work. I know there were certain storms, I went to Napier after leaving Wellington, on April 26. The shore end was not completed till after the other end. In January I accused Weber of having altered the line. I knew it for a fact in March. The whole thing was completed later on. M'Kay was manager at the commencement. He was armed with as full authority as myself. He used to send in the vouchers, I think. Mr Graham sent us copies at Wellington of the vouchers. No reference was made to extra works during the first six or seven payments, because there was no dispute. Mr Weber paid for all stuff put in to the works. It was not till April that we had the first dispute. Mr Weber paid for every truck load. We made no claim for extras till after a storm, because we had no reason to do so. We claimed for'the sacks which were put in £lB7, for repairs rendered necessary by the storm. That was the first claim for extras. It was in May. That was the first time there was a dispute respecting deviation. M‘Eay was our manager. The contract was made in July. I went with M‘Kay on Aug. 9, The pegs had not been carried away then. I did not see them because I did not go to the western mole. I should not have declined if Mr Weber asked me. I would not contradict him if he says he did. Mr M‘Kay is in Napier. He represented us when the works were laid out and until the time that I discovered that a deviation had been made. The reason why M'Kay is not here, I was told, was because he was frightened to come. He had been tampered with by the Harbour Board. He was in Southland. He worked for M'Kenzie there. To his Honors He did not know the deviation. He is a native of Nova Scotia. He has great experience, but these works were rather too large for him. I don’t think he saw the removal of the pegs. To Mr Macassey: I have knowledge of the removal of the pegs. Mr Weber told me they had been moved. The hand of man must have moved them. The sea could not have placed them in another place. To his Honor: Mr Weber told me that it had been done to avoid purchasing Mr Williams’ sections.

To Mr Macassey: I saw only two of the original pegs. I saw them in April, when Mr Weber admitted that there had been a change. Any person could have seen that a deviation had been made. I swear positively that Weber thrice denied that the line had been altered, notwithstanding that these pegs were visible. I made soundings, and the change put the embankment into deeper water. I swear that as a fact. The change did not take the embankment into six inches shallower water than before.

To his Honor: It had the effect of moving the embankment nearer the stream.

To Mr Macassey: Our contract was for a thousand feet on the western mole. We made a thousand feet, but the effect of the alteration to the Harbour Board was to shorten the length seaward by about 100 feet. That increased the amount of our work, as it was moved into deeper water. I asked Mr Bobertson to make a cross section of the embankment. I had not known Mr Bobinson before. I was told he was an engineer, and paid him as one. He is employed now, lam informed, in running out a railway for a private company. I was told that the Harbour Board bad several engineers, and I employed Bobinson. The reason why he is not hero is because it was impossible for any man to make the necessary measurements through silting up. Ho was engaged three days. I know Mr Bold. He is an engineer. I wanted him to come and give evidence. He gave me this letter. I did not employ him. Because ho was an engineer and resident there I asked him to look at the works and give his opinion. His opinion is in this letter. He is not ill, like Mr Henderson. Mr Henderson is ill. He declined to come.

Mr Stout; It would be no use to subpoena

him He would not be bound to come, as Christchurch is more than 200 miles from Witness continued : I asked him to come. Before May 1877,1 asked nothing for extras, because wo were paid for erery truck loa . Before May, 1878. the highest sum I asked for extras I cannot tell. I never chuoa® before the action was brought so large a sum as i*26,000s , •* • Mr Stout: That is not the amount claimed for actual work done. ~ . Witness : I could not tell the actual largest amount claimed before May, but we rendered accounts from month to month, I suppose that all we claimed was £!6°o for extr , a i before the action commenced. At the time of the interview I had fully utmost extent to which our contract had been affected by the alteration. Our monthly claims were rejected time after time. We made claims for filling holes } they vra re disallowed. Mr Weber allowed part of the claim for extra embankment. The voucher produced, for January 1878, is in Mr Graham s handwriting. My son was at the time superintending at Napier. The voucher purports to show the whole amount of work done, the total allowed, and the amount of work and allowance for the month. I could not say that this shows the whole claim. The item for “ filling hole ” appears in this. It hod been brought forward from April 1877 to January 1878, and each month disallowed. The item for extra stone work on the embankment was similarly brought forward each month and disallowed. The item for rubble stone, £546, is for stone put into the western mole. We always intended to claim for these extra works. It was stated in our correspondence. The Board was fully aware of it. They were not indirect claims. I could not tell what the amount of them would be. I am aware that the first section of the contract was to be completed by Jan. 11,1878. Mr Stout: —There were no penalties. Mr Macassey: It is just the reverse. [The conditions of the contract were here referred to,] His Honor: There are two ways of looking at that. The first that £2OO a week was payable for non-completion of each of the three works, the second t hat the same penalty was payable for non completion of the _ whole work. This can be left an open question for the present at all events. Witness continued : I was bred an engineer. I am, and have been, a contractor and engineer. The conditions and specifications hero on the model of those used by Government. There is a stringent condition about sub-letting. lam familiar with that clause. On Jan. 7, 1877,1 wrote to Mr Weber asking permission to sub let to Messrs Butterworth. I received an answer refusing permission. Mr Macassey : I ask you whether you did or did not in the the teeth of that refusal immediately sub-let. Mr Stout I object to the question as it is not pleaded. His Honor: Unless they are able to suggest that the conduct of Davies in this matter will tend to disprove fraud and establish bona fides. Mr Stout: How can it throw any light upon it? Suppose it was proved that the witness was a felon, that would not excuse a breach of the covenant.

Mr Macassey: I submit that wherever fraud is attributed to a person a wide latitude is allowed in order to prove bona fides. His Honor: Will you kindly show me to which of the issues this applies. Mr Macassey: It is to explain the natural attitude of Mr Weber towards the plaintiff.

His Honor: Is it not in the nature of a setoff for a fraud ?

(After argument between learned counsel the cross-examination was continued.) Witness: I had no disputes with Mr Weber or the Board as to subletting after I received the letter refusing permission to sublet.

Mr Maeassey: Were M'Kenzie and Butterworth engaged at the pile-driving subsequently ; and, secondly, were they subcontractors ?

Mr Stout: I object to the question. His Honor: After the answers just given I hold that these questions are inadmissible.

Witness: I was never resident there. M'Eay had charge. My son and M'Eay, and my son alone had charge subsequently. I saw letters from my son to Mr Henderson, complaining of obstructiveness on the part of the engineer. I saw one written on May 14, 1877, accusing the engineer of repudiating his verbal instructions, 1 think I wrote it myself. In others, dated June 5,6, 7,8, Oct 25, 30, Nov 2. I saw other complaints of the conduct of the Engineer. 1 don’t think there was any insinuation that Mr Weber was retarding the work in order to prolong his engagement. With regard to the position of the piles I have no sketch showing their original position. Mr Macassey : Does the sketch I hand you show where the piles are actually driven ? Mr Stout: I object to this. Mr Macassey: I wish to show that the work is not completed. Mr Stout: It lias not been pleaded that the work is not completed. His Honor: You say that the Engineer has “ fraudulently colluded.” They are controverting the fraud. This is not merely an action on a contract, but for a tort also.

Mr Stout: This is the first we have heard of the piles not being in line. We are taken by surprise. The word “ fraudulently ”is not used by us.

Bis Honor : I thought we were of one mind on this point. It seams we are not. It is admissible only on the fourth issue. Mr Macassey : I submit that it is admissible on several issues. (Learned counsel argued at length in support of his contention). His Honor thought that evidence as to the completion of the contract was admissible on the second issue.

Mr Stout submitted that the evidence was not tendered to prove non-completion of tho contract, but simply non-compliance with one of tho conditions, i.e., “in accordance with the plan.” His Honor ruled that the question was admissible.

Witness: I cannot tell whether this plan shows position of piles correctly or not. I know that some of the piles—a few—are out of line at the end of the eastern groin, a distance of 4ft sin., I don’t think a material distance. I told our people always to follow tho instructions of the Engineer, and have no doubt the piles were driven according to his instructions. Practically it would make no difference. One pile would be a little in, and others a little out. X don’t know what the appearance of the groin is, but it was impossible to drive the piles in a line. Where a pile was broken, another could not be driven in the same place. To his Honor: It is not to be used as a wharf; it is as a groin to direct the current. To Mr Macassey: The current is too strong for it to be used as a wharf. I have a model of the work here.

His Honor : Just what I have been longing for. (Model produced). Witness : This is a model of a portion of tho groin. (The witness described the model). The whole was filled up with rubble up to the cross ties. I don’t think the alteration of the place of tho piles would affect the stability of the structure. A slight deviation from the straight line would not weaken it. A deviation of 4ft. sin. would not. I dare say the piles all along are out of the straight line. The cross ties are to keep tho structure together. The piles tied should bo in a straight line. Otherwise, an extra pressure would fall upon the ties. I think Mr Weber complained of two pairs of cross ties being out of line in that sense. Possibly there were others. No doubt the ties have given way because they were fastened only with a spike. They should have been bolted. His Honor: I understand that it is the rubble which offers the resistance to tho sea not the piles. Mr Stout j It is so, your Honor. Witness : Our plans showed a regular line. The irregularities shown on the plan produced would not affect the stability of the work, (Drawing No. 2 produced.) The model is a fair representation of this plan. There was no dove-tailing. When the work was finished every joint was made according to tho plan. The value of tho cross ties depends upon the accuracy with which they fit. I believe they are very open. My attention was not drawn to that in May, 1878. I did not notice.

To his Honor : The diagonals should hav been either strapped or bolted. e To Mr Macassey : I did not notice anythin, in the plan to show that they were to K “ checked.” 0 A juror : The cross-ties are “ checked ” u, not the diagonals in the model. ’ Witness: Yes, the diagonals are rM “ checked.” Whether the plans show th a [" not the diagonals were not “ checked.” 4,0/ the storm a number of bags of gravel were pm

in. To his Honor: They were put in to over a breach made by a storm. The coutra c . provides that the risks from the »ea were ours. The sea was not the cause of this, p was the result of a scour, which might have occurred after a gale or might not. I hare no recollection of a clause in the contract placing on the contractor all risks from wind or weather. (Clause 16 of the contract read.) That was the effect of a scour, which was attributable to the embankment having been taken off the boulder bank. My experience tells mo of extensive damage done to harbour works in other places by the action of the waves, and from other causes. This, however was the result of change of site. With regard to the quarries, I consider them fairly cleared. They were not swept up. It would be an exaggeration to say that 1200 or 13r>j yards still remain to be cleared. I was no» compelled to take my stone from the Battery and Burn street quarries. I got some elsewhere. I paid a royalty for it. I was not bound to clear all refuse, but only all refu 3 .. that was in our way. That was my reading of the contract. We were advised to dear it all" My son made the contract for clearing the quarries. Mr,WebeTsaid there were 1200 yardin one and 800 in the other. It appeared to me to bo a great deal more than that. Wi;J that knowledge}! agreed to have them cleared. I am not aware that a great deal of dt.hr':--. remains. There is some stone which Mr Weber wished left. With regard to the piles we had to put several bands on them. Ihey were taken off again, having been put on merely to prevent the piles from splitting while being driven, I don’t know whether Mr M'Kay complained of no test for pile, driving before I did. I was there in Uct. 1876, when they were driving the 20th pile. On Jan. 22,1877,1 wrote a letter which refers to the sheet piling, and not the main piles. I asked Mr Weber verbally for a test on several occasions, I don’t remember Mr Weber pointing out that the monkey was 100 heavy and the fall too great. He lent us a monkey which weighed 30cwt and had a 16ft fall. The result was that the pile pave the sixteenth of an inch, and that, I believe, was from the giving way of the other end. ’ln a good many instances, Mr Weber allowed us to cut off a portion of the piles. He deducted for them. I suggested that with regard to the sheetpiles. I don’t remember doing so with regard to the main piles. He suggested that I should write to him, and I did so. (Letter? of Jan. 2-1 and 25 read). I couid not say that Weber adopted the same course afterwards with the piles of the eastern mole. The retention money is shown by Mr Weber as £2900. The whole of his certificates show that. It is not an inference, but an actual fact. The document produced is a copy of the recapitulation of all progress payments ; it is dated April 22,1878. It shows that the total amount then due was £-164, but in addition to that was the retention money. I think I have a statement showing the amount of work certified and paid for. I received an advance of 50 per cent, on my plant. He deducted that, I presume, at different times from the progress payments. I scarcely see that the advance was to be adjusted before the 10 per cent, could be. I don’t know the Harbour Board. I have spoken to Messrs Kinross, Yautier, and—l think —to Mr Smith. Ee-examined by Mr Stout: I don’t know cf any patent in England which rendered the patent for the compound rail useless. The name of the engineer in that case was Marchant. Mr Macassey was engaged in that case, and in “ Connor and Davies.”

Mr Maeassey: I was not engaged in “ Connor and Davies’.”

Witness: I never heard anj complaint as to the stability of the work till May, 1878. Complaint was made of a cross-tie which was broken. The Board has had possession of the works for six months, and has not repaired the cross-tie. That was the tie they agreed to repair at my cost. The cross-tie is covered with shingle now. The total amount of stone work was estimated at 34,000 cubic yards. The engineer has certified to 10,252, or one embankment. He has not certified to 60,000 yards in all, or anything like that. I aied Mr M’Kay to attend, but he said he was frightened it would do him an injury with the Harbour Board people.

To his Honor: He is not in the Board’,employment, but contracting at Napier, To Mr Stout: Suppose the piles out of line gradually on both sides, that would not affe-: the stability of the work. To the Foreman: Mr Weber never objected to a pile being out of the straight line. I don’t know of any piles being driven except under the inspection of the engineer or his assistants. The piles were driven where the engineer directed. The cavaties were maintenance work, as they were caused by subsidence after the contract was completed. To his Honor; The structure is not planked over.

To Mr Stout: The Harbour Board ha# taken possession of the work. I don’t know the cause of the scour.

Thomas Gore Graham deposed: I am cashier and book-keeper to Mr Henderson. I have seen Mr Weber's certificates.

Mr Stout: Are they correct ? Mr Macassey; I object to that question until I have seen the certificates.

Mr Stout: If we sire wrong the other side’s witnesses can set us right. Mr Macassey: If the question ’is left till to-morrow I shall have no objection. Witness continued : An advance of 50 per cent was paid on plant as it came on the ground. The £28,822 15s 4d included advance on plant and for extras. About £ISOO or £I6OO are included for certificated extras. Ninety per cent has been paid on the extra# as on the contract. I know the western embankment. The number of waggon loads that went into that embankment was 6330. A waggon load is equal to two cubic yards. They really contain more. The stuff put in the groin work was estimated by sectional measurements taken by Mr Davies in my presence. Ido not know that h:s measurements were correct. I was present at a conversation between Mr Davies, sen., and Mr Weber in January, 1877. It was about the alignment of the western embankment. 1 accompanied Mr Davies to the works, where we met Mr Weber. Mr Davies looked at the western embankment as it was coming out. It was in a straight line. Mr Davie# said he was sure it was coming out wrongly. Mr Weber immediately replied, “ 1 assure you there is no alteration or deviation whatever.” Mr Davies rejoined that he thought there was. InJ March another conversation occurred at the same place and to a similar effect, Mr Davies expressing himself more strongly. Mr Weber still denied it, using almost the same words. On April 2 there was a dispute (the first) about our quantities. This occurred in our office. It was in reference to the western embankment. Then Mr Weber admitted that there had been a deviation to avoid Mr T. O. Williams’ sections. Mr Davies rejoined that he should charge the whole of the embankment as an extra. 1 arrived in Napier about the middle of Nov. 1876.

To Mr Macassey : I keep a memorandum book, Tho number of loads of stone were 6330. In Jan., 1878, the embankment was hashed. j n the month of August, 1577, the other embankment was finished. Down to tho end of Feb., 1877, the quantity was 2277 loads. Wo were paid for * j * a daily tally. I was on the Work daily from the time the work began to its end. At tho end of January there were 1441 loads; to March 3, 836 more. I got the number from the captain of the punt. The Inspectors were on tho embankment. The Inspectors always came to me to enquire the number at the end of the month. There wore two cubic yards to each waggon, full measure. The £28,000 paid to the contractor includes tho 60 per cent, in respect of tho plant. That does not tell in favour of the

VoiTdon’t .com to under*tond the aiV (“ !: Maeasser: That may bo a clover u . ?l rer. but wc coutrftC tor was to find the « lU tvv don’t owe anything on the plant, them credit for the balance we have «’c P” ; ® h ; plant. Tools and machinery i.nt Wo hare receircd on accontract £26.800.13* Wd. ,n , mid back £lVlo 10s 6d. The ’ inid to us therefore is .€28,822 15s 4d. have been put in thoembankt- ' l on the western side. We have u u'tit prv ]9 00fi cubic yards on the i been l'-uu i# i«K)S yards in execs* estimate. The tolal , ~vciml for stone m the western n o. and groin would be £7602. less ‘’f U l k Witness read an entry from It cHrv. dated April 3.] That was 1 the time. 1 hare no note of con- ) madeintheofllce. The entry ; , “;>"wa« an admission of the mistake j 1 t 11 The o'her conversation* contained no J i c - .; , n Mr A. M‘Kay was manager. Mr ; - I. V r. pointed out to me the old alignment * • friiTiilr conversation before April 3. Mr j u- C- period in denying there had been | , I should not like to express j to Ur Weber bemga seimb o j • ‘ it was not mr place to point out the st.i L to Mr Weber; I « notto Mr 1 Hendtrson’s employment now, but m that of . M'Caulor, examined by Mr Roes, 1 ; “ j I am a' ships carpenter. I was i "‘'Vi pn this work from dept. 6, 1876. IS7S. when the work was completed, i ws«‘ rile driving on the eastern aide. I overv pile, with the exception of four j;, P ‘ main piles were driven under the : 0 f the Harbour Board’s Inspector, 7V'.to the last A great many of broke through not being seasoned * *;Wtc defective. More precaution was ;‘7‘,7-V, keep the piles safe than is ordinarily j 'when piles broke others were put ; V’.-c: v. c fp re or behind them as the Inspector j V. 5p that the piles could not be exactly • -Vstraight line across. I don’t remember j ~"]e driven except under the direction ; rrr; inspector. I never know any fault | ; V The limit of resistance was received j ! ■ Jn; ? 6. More than half the driving had bVVIore them. The limit was, “ when a . t w, Jd not sink a quarter of an inch with of 32ft with a monkey of 26 cwt." > ; p;..i not have lost half the time had I V-Vrel the limit earlier. There was a loss j • e and of labour. Before the test we | V; net average a pile ft day. Afterwards we j re two. three, and fourpiles a day. There j » r* st out 466 piles. I frequently spoke to f Inspector about getting a test. I saw a VVrcu June 6 from Weber to the contractor. Lftnr read. It gave the test,] The pile ;.. ;ur worked by a steam engine. The ran; cave four blows’ a minute. There were s;x men, besides myself, employed W the machine. Toward* the end of the ::tra : there were three engines at work. A :;.;d of the timber was green totem. A revwere dry. Those drove with very h:he trouble. They were tarred and charred. Ihit v .hi net help them to drive. Charring w:~i weaken them. We kept on driving as hn; a; •.;*« was any appearance of the pile j i::;. The 30 cwt monkey would rebound three fee; in some cases. The piles were broken klow. Sometimes the pile would eh. :f a boulitr. Then we had a difficulty insetting them perpendicular. j: Honor: The boulders are of soft ■onn stone. The shoes are not very sharp. I.Ur Sees; I had battens along the whole Fork and set the piles by them. I don’t think there is a pile the breadth of pile out jlace. The sea rolls in from the northed. After it was finished and daring con--trn.n.n one sea was forcing it towards the west. 1., h.s Honor I have seen the work con-.-onro.T s:nce i: was finished. 'Hie ends of the diagonal- are or>e n in some cases. On the eastern s:i-.- they are close; on the western they are open, I don't know that that weakens the work. The diagonals are fixed won spokes. They should be bolted or strapped. I remember the storm of Oct- 16, 1:77. It washed away a good many piles. They Lad only the wallings on. We were told ty Mr Hav;es. junior, not to put the cross-ties mo brace* until the sheath piling was on tnem. VTLen finished the top of the work was l:rt iron, the sand. A good many piles were no*. dr.Ten T.'ft, some not more than 20ft. me enmn-er, after the break of OcL 16, wnea we put me cross-toes and diagonals, told me I '■o dd not drove the sheathing piles close t; tne mam poles. I dr-.v? them. (Witneea •-ipuiineu fcv means of the model) My doing tons strtigtnenea tine work. I was not in .nargetons portion of the work before the - storm, suppos:n| tore sheath piling had gone f- ries and braces the work would ‘“X TlUi fa-' * of the storm. I. Mr MaeasH-y ; I Lad the selection of a targe nnureer of ph-.-s—sometimes 100 or 200. i o;-_u not make dry piles out of green ’p--'"'-'- -i -'-nve fold you that I selected the T:.ey were all green piles at first,except . m i On! of GuO there were only 30 dry t-re. I nai charge of the carpenter’s work, j n o-u .- ci often to Mr Bell and to Mr the timber was not fit to drive, i ore pules that were set aside for this no-v-. ivj saw what were rejected by the - ' onetimt wcrejrejected by the Board ■•' ar< f s u *ed by the Board, after ' ■ re-i-cted by other contractors. I ‘ h' p-ropwrtion was rejected. h -vrite quantity rejected, i sup--1 «•' ‘-'-d the best in their judgment. ■ ’ ; -revs selected it. I don’t know ■ -y ne knows anything about timber j-‘; Auer leaving Bavies’ employ- j 1 Fer.t into Mr M'Kjay’s cmj; don’t know whether I -" J ''■> hi* employment. I bare been p'-i-hyment for eight months. If Mr J *.uV -ii: 7 u '" e go back to him. The -.n.: .r nad to guard against loss of time 7 ’'; - • tne Board against lose of material. ; g tie Uot lessened the risk of both ( p fr? " i-’-c great advantage was to tbe con- • ‘ been accustomed to piie-drir-;;-'r!; r ?: -r<:e or four yean. A ram and a v-mtey tire tame thing. The contractor ■pyre ; tne ram and pile-driver, which were ; t: 'f gf°und when I went there. One - ri/? u¥iot! .? to the Board. (Some amuseP ' : - - r 'j/- iieved the dulnets of the Court, ,r ro 7fi‘ ’-uegs’ graphic explanation of t ! ■’l, ce between the “monkey” and • \ '' Tlie work was the same from i t 0 er ‘d. The tracing was in the I‘, ' 'upild look at it at any time. The *--,<v,tcr pointed out tire places wheie the to S°- The work was laid out. I aE( I put the piles in every six . , ‘ , 6 inspectors measured it afterwards, J tnat the work was done. I complained recently of the want of a test to Mr M'Kay j-- - to Mr Beil. A test is generally given on ~ ,:, JlJtrac^S- Tire men under me were the ■ yrretr and labouring m«n —sailors, some of ( ' T*ie answer from the employers was l “-. v ,;o ’hd not get the test from tbe •• i-.'-tor, 11 drive them or draw them.” n ;’ lafJden ’ e^ an iined by Mr Bees, de- ■ , am ft »hip carpenter. I went to - F.,rk on July 9, 1877. I was in charge .7 77 t i r ;‘b w work on the western mole. I 'ir* - 6 ll >ec ' 1877. As the piles were -■ . vii °ut to sea, we kept them secured with <-1-7,7i7- and “agonals from the first. We v ]\ ; oat all the waj. I don’t re* 7 j iV-‘ ;r K '«“g Mr Weber about Nov, 2 about ! -- aUU K ,le *‘ e *becting piles went on as ( all the way through. J^:i n , Frank > ‘-‘“mined by Mr Bees, dc- : r .‘77 a ““ er - I *top at Oamaru. I 1 f 7V 18/G - at l .\ le Tuanries at Napier. Mr bivie, here in the employ of young 11, -j ‘ remember Mr Davies and Mr r -memW \t oV °u S - t0 Na P ier year. I e- btr Mr Hamson coming to clear up i’oun» M r T) *: ' S a ' e U P the work. - -t W m 28 ttnd I men besides üboul three da™ * I B i treet quarry for ' irid sent some \o’ nLf d<! w • Dly men then working about n ne. i J - 1 ® lnL We were ei «ptihcUitcoanie t ftf i ‘i" Ul f! 1 those «en pul into the laFrMvn da J*- The stuff was P« on the^ S ?” ,c "b‘ c h was quarries audl e £ ?! £ UDt ‘ ( W« cleared the m, uisb“f ra fo , rit - J a naa a conversation

with Mr Weber, who said I had to take & few yards mOro where some stuff had come down. It was just at the corner of the quarry, I could not soy how much there was. The Government wheeled the stuff there. It was refuse, but not left by the quarrying of the stone for the harbour works. I know because I was working there all the time. The stuff was alongside of me, in the Government quarry. It was at the corner of Battery Point. I was told to do no more than clean the quarries. I did not tell Weber that I had been told to do no more. There was

no refuse left. The place was altogether clean. There were not 1500 or 2000 yards there. It might slip. It is coming down every day. 80-cxamincd: The side of tho qmrry is steep. The Government was taking stone for railway work, and wheeled the refuse close alongside of me. I cleared out tho refuse I had made.

| James Richard Davies, Junr., examined by • Mr Bees, deposed ; I am son of Mr Davies. I I went to Napier on April 26,1877. Tho | works were then in progress. I saw a letter ! my father wrote in May with reference to , deviation. X have heard moat of the evidence. • I took charge at once. M‘Ksy was there for ; a few days while I was there. The question j of the test forpile driving rested between my j father and Weber. That was in Juno. 1 ’ had charge of the works to the end of tho j time, with the exception of several business visits to Wellington. I remember tho storm iof Oct. 16 which swept away the piles. The cause of the damage in my opinion, was the non-placing of the cross ties and diagonals. That is on the eastern aide. Mr Weber said we would have to put the sheet piling in, prior to the ties and diagonals going on. I objected, and he said I should have to do it, as there was likely to be a great scour; but on the western mole it did not matter so much, as on that side there would be no scour. I tried to put the sheet filing in on the eastern side, os he wished it. went over to tell Madden Mr Weber’s instructions. When the main piles were driven the whaling was always put on. Mr Weber’s plan did not succeed at oil. We had nothing to support the engines. The work was efficiently done as long as there was fine weather, but when the storm came it broke the piles, and the pile engine and suspension p’atform went into the sea.

To Mr Macassey: I recovered them. To Mr Beee: I wrote a letter to Mr Weber telling him that the cause of damage was leaving the piles unbraced. (Letter road.) The inspectors or Mr Weber were constantly on the works. On the eastern work there were two inspectors, and on the western, one. All the piles on the eastern side were, as far as I know, driven under the direction of Mr Weber and the inspectors. On Feb. 19,1878, I wrote a letter to tho Harbour Board. (Letter read. It informed the Board that the works were complete.) I received an answer next day. (Letter read. It stated that Mr Weber considered the works far from, complete.) I answered that on Feb. 22. (letter read, it held to the notice of completion.) After that we went on filling in the work on the western side. It took more stuff than was in the contract. According to office records, the contract quantity was in place in December. The last stone in the western side went over, I believe, on April 16. I was in Wellington. On my return I went over the works and found them finished. (Witness here explained the matters complained of by Mr Weber in his letter of Feb. 20.) My father, Mr Williams, Mr Weber, and myself went across with Mr Henderson to the western embankment, and afterwards to the eastern work- Thence we went to the quarries in a cab. While we were in the quarries Mr Weber gave his estimate of debrit at Battery Point as about 1200 yards. Before my father went away I received instructions from him as to the quarries. In pursuance of those instructions I let a contract.

Mr Macassey objected to this evidence. [Here a discussion between learned counsel os to the exact meaning of the contract with reference to the quarry refuse ensued.] His Honor said the evidence might be taken, but if he found it inadmissible he could strike it off his notes. Witness continuedl let the contract for clearing the quarries to Mr Harrison. On May 61 met Mr Weber and told him that my father and Mr Henderson had gone away under the impression that the certificate would be given on the next day. I told him the holes were being filled up, and that the contract for clearing the quarries had been let.

To his Honor: The certificate has not yet come.

At this stage the Court adjourned, at 6.10 p.m., till 10 a.m. on Saturday.