SUPREME COURT.

Nelson Evening Mail, Volume I, Issue 225, 24 November 1866, Page 2

SUPREME COURT.

CIA'IL SITTING. [Before his Honor the Acting Chief Justice anda Special Jury.] Tins Day. HOGG V. FIELD. Mr. Pitt for plaintiff, Mr. Hurt instructed by Mr. Sinclair, for the defendant. This was an action to recover damages for slander alleged to have' beon uttered by defendant, instating to various parties, that the plaintiff whilst in his employ had feloniously disposed of his malt. Fortius the plaintiff claimed damages, to ,the extent of £300. The defendant denied the allegation, and put in an agreement by which the plaintiff was bound not to mako malt for any other person than 'defendant' whilst in his employ. The defence was- in fact- a justification of the words uttered by the defendant, and which he contended he had reasonable _ cause to use. Mr. Pitt said he would undertake to show that the words were either maliciously or recklessly uttered, and called the following evidence-: — John Hogg.- 1 am plaintiff in this, case. I am a maltster in Nelson. I commenced business on my own account on the sth April last. I then, agreed with Mr. Field to make malt for him. The agreement produced is the one I entered into. I know Nothing of the erasure pointed out (agreement read). The agreement specified the quantity of -malt to be ; made and the terms to be paid. A piece" of paper, not signed, was pinned on the document. Mr. Field delivered me" r,447_, bushels oil the strength. of. this agreement, bushels by weight, barley is always weighed. Sometimes I took his word and sometimes I weighed it. , .Tho fixed weight of a bushel is 52lbs. In New Zealand we weigh barley- but not at home. I have traded here eighteen months, worked for two different firms, and always- understood this -was the taade usage. In England- there is a standard measure of capacity. Malt is generally measured ■40 pounds to" the bushel, but it was not in this- case. ,1 nevjar weighed ths malt back, but measured it, r and charged him , for imperial 'bushel of capacity. The bushel averages 401b5., and I charged him 2s. per

imperial bushel. It was his own wish to have the malt by measure, and gave me one of his own measures. He was present sometimes when the barley was weighed ; when he was not, I gave the total amount to him, gave him a receipt, and entered the amount in my book. I usually asked if the slip of paper I gave tallied with his account. I generally let him know the same night. I deducted Slbs. for each bag. When I delivered malt, I entered it in a book, got it signed by hira or his servant. On two occasions he complained of the quantity; in one of these I proved that I was right. AYe steep every four days, and the time it takes to make up depends on the weather. Barley decreases in woight and increases in bulk when converted into malt. The average decrease in weight is 12lbs. in a bushel of barley, but something depends on the quality. The average increase of bulk in malt is from 5 to 6 per cent. If I make malt for a brewer, I make it up to weight; the increase is less than when it is made for sale. I was instructed to make it for weight, and not for sale, in order to make better beer. I received some malt from Mr. Saunders in June, 113 bushels, to store and find sale for it. I received 200 bushels barley from the same party, which I have since stored or converted into malt. On September 26th I delivered the last lot of malt to Field. He knew I had Saunders's malt, a month previous to the 7th August. He came with a load of barley on the 26 th July, I think, and asked me if I was short of barley. I then showed that which Saunders had sent, as well as the malt. E told him I was to sell it and have half the profits. I told him I was to have sixpence per bushel more for this than for his, and that I was to return bushel for bushel of 40 lbs., which gave me the increase. He came on the 7th August.' 1 A man named M'Kenzie and another named Potter were there. Field asked" how much malt I had of his. I then pointed, to Saunders's malt left for sale, told him one heap was his and the other Saunders's, and said he knew it long ago. He said it was shot to mix with mine. I denied it, saying the wet had damaged it, and I was going to rcdry it. He then said I had broken the contract, which I denied, saying there was nothing to prevent me storing malt, I was only prohibited from making it. He asked me'if I had sold any malt. He said I was laying myself open to suspicion in selling malt. I said you knew I had malt for sale. He then tasted it and said the malt was uot made this season. He came on the morning of the great fire, which was the morning of my birthday. I instructed my solicitor to communicate with Mr. Fisld, in consequence of something I heard. The letter was read. It was in reference to the slanderous words he had uttered, and threatened legal proceedings unless a satisfactory apology were made. I received no answer to the letter, or apology.

To Mr. Hart: I produce the book containing the receipts of barley from Mr. Field, amounting to 1447__t bushels. I did not receive 75J bushels on April 10th. I received none from April 4th to April 2 1 st. I have not accounted for any that is not mentioned in the book. I learnt from Constable Dixon that defendant had said something to my injury. I received £ \ B •from Mr Field sometime in August I think it was on the 1 1th. 1 mentioned to him he had told Hooper 1 had been selling his malt, and I was a dishonest rascal. He said he had not told Hooper I had been selling his malt, and he would not send me any more barley. He said if Saunders' malt was not there he would probably have given me 500 bushels more to sell. 1 said I would remove the malt if it annoyed him, and if he would send me SUO bushels more. He said he would see about it. I went with Constable Bradcock, on the Oth August, to Mr. Crooke. This was four days after we spoke about the barley. I remember asking Mr Field to bring me a bag of potatoes from the l'ort. He did not bring them. On asking Canning, his man, why they were not brought, he said there was not rcom, or some other excuse.' I did not threaten to take more than the price of the bag of potatoes out of iir. Field's pockets. One of Field's own men was with him when he came to the malthouse on the 7th August. He then told me I had broken the contract, which I denied. I mijht have spoken to Walter Field on this business. He said I hoped I did not think the worse of him. He did not ask me how I would like to be in Mr. Field's situation, and found him selling malt. He did not ask me if I would be suspicious under similar circumstances. I said if Mr. Field had come in- a manly way, I would have given a satisfactory explanation about the malt I had in the place.

To Mr Pitt: At the interview between myself, Bradcock, and Crooke, Bradcock said Field had sent him there to see who he got his malt of. The transaction abont the "bag of potatoes was before the 7th August.

Constable Joseph Bradcock: I recollect seeing the defendant on the 7th August last, between S and 9 in the morning. He asked me where Sergeant Edwards was. I told him at the five. He said, you will do as well. He then took rae on one side and said he had strong suspicions against Jack, the maltster, of selling some of his malt to Crooke, the painter, and Jones, the saddler. lie said he wanted me to go to Mr Crooke and find out where he got his malt from. If Crooke bought malt from Jack, the maltster, it must be his, as he was under contract to malt so many hundred bushels of barley for him. I told Constable Dixon the circumstance, and he and I went to iir Crooke. Field was not with me. I went to the brewery and asked him about hii brewing. He said he bought his malt of Jack the maltster. I told Field what Crooke had told me about an hour afterwards. After this Crooke, in Hogg's presence, complained of my coming on his premises and making an inquiry. I told him Field had sent vie, and why he had done so.

To Mr Hart: Mr Field did not tell Dixon of this matter, tell me to go a second time to Crooke, or give me any further instructions after returning to him thefirst time. Sergeant Edwards did not tell me to

go to Crooke". I took Dixon with me as a matter of duty. >

Alexander M'Kenzie : I am barman at the Ship Hotel. In June last I was living -with .Hogg, and ceased to live with him about two months ago. I recollect 113 bushels of malt coming in June last; to Hogg's place. It was sold by Chant to Saunders and Hogg, and was placed there for sale. Some of this malt was sold to Mr. Jones, and some to Mr. Crooke. I assisted Hoggin taking the weight. I saw Field come to the malthouse in July last. I heard him ask whose malt that was. Hogg said it came from Chant, of Motueka, and that it was thore for sale. Field said do not mix it with mine. Field came again on the 7th August, and asked how much malt there was there. Hogg said he did not know till he had pulled it up. Field asked if the tliree heaps were his. Hogg replied two were his; Field said the malt was placed there to be mixed with his. Hogg said no such thing, it was wet and was put there to be re-dried. Hogg said so of the third heap. He said the malt had not been made lately. Field then tasted some and said he could see it had not been made that season. Hogg told Field he knew very well a portion of the 'malt was placed there by Mr. Saunders for sale.

To Mr. Hart: Mr. Field's man was with him when he tasted the barley; I think it was the 7th August. On two occasions Field was told there was malt there from Motueka. I do not remember the date when the first came. I was with Hogg from June tiU about two months ago. I think the lirst visit of Mr. Field was between the 10th and 20th June. I am not certain, but it was sometime in June.

The witness was reminded by his Honor that he said July before. He corrected his statement.

To Mr. Pitt: I recollect the date of the 7th August, as it was the day of the fire.

AY. Crooke : I am a painter, residing in Nelson, and brew beer. Before August last I got my malt from Hogg; I have not had any since the fire. I bought about 12 bushels a week from him. I recollect Bradcock and Dixon coming on the 7th of August. They told me they came to make inquiries about malt. I have had no malt from Hogg since, on account of the report and the constables coming, and I told Hogg so.

To Mr. Hart: When Bradcock and Dixon came the second time, I don't think I commenced the subject. I had told Hogg previous to this that I would deal with him no more. I think I told Hogg this when the constables came a second time. I heard no rumor of stolen malt till the constables came. They did not tell me their business when they came the first time.

To his Honor: I paid Hogg 10s. 6d. for the malt, and took about 12 bushels per week.

Mark Blythe: lam a maltster of 30 years' standing. Barley Avhen converted into malt increases in some cases and decreases in others. This refers to both bulk and weight, depsnding on seasons and mode of making. In ordinaiy seasons, what we call malting seasons, the barley does not make an .increase in weight, rather a decrease, 52 pounds of barley producing 40ibs. of raalt, and generally increasing in bulk. As a rule you cannot get 52lbs. of barley into a bushel, measure, it is not generally so heavy as that. I have seldom known more than 7 per cent, increase in bulk of malt over barley in New Zealand, and in England 5 per cent. In making malt for brewers we think of weight, and in making for sale we think of measurement. The increase in malting for sale, such a season as this, is probably from 6 to 7 per cent.

To Mr. Hart: AY eight always depends on sample, both as regards malt and barley. If it is a light barley it is light in measure. It is not easy to fix an average.

George Mathews : lam a maltster, working for Llr. Harley, of 25 years standing. In England, when working for a brewery, we worked for weight, and for increase when working for sale. The increase depended on the season, the most was five bushels to the hundred in England ; iv some cases we could hardly measure. I don't know the rate of increase in Now Zealand.

James Hooper : I am a brewer, residing in Nelson. Hogg is iv occupation of a malthouse belonging to me. In April iast, I called on Field in reference to an agreement with Hogg. My object was to ascertain the quantity of barley ho would give to Hogs for malting, in order to know

how to proceed in repairing the premises. Field told mc he was going to give Hogg, from 1500 to 2uoo bushels. Nothing was said of price. I have known maltsters charge 2s. 6d. I think this was lower. The average price for barley was Gs. 6'd., I think, and colonial malt 10s. to lis. Field said he should consider that; till Hogg had made the whole of his malt up, he should make no malt for any one else. Nothing was said about Hogg selling malt. I never promised Field I would inform him if Hogg sold malt. I saw an agreement that was not consented to. Sometime in August I saw Mr. Field, who asked if I knew what was goiug on at the malthouse. I said I knew of nothing uncommon. He said, do you know that lie is selling my malt 'i I said I knew nothing of the kind.- I told him Hogg was selling malt, but not his. He was selling mult he bought from a man named Chant. Field said I shall give that man no more work ; this he said in an excited manner. I consider the conversation referred to Hogg. He said he did not believe the malt had been 'nought from Chant.

To Mr. Hart: Field said it takes a slice out of his character. 1 told him to be careful what he was saying, tarn certain Field said, "Do you know .he is selling my malt." I asked for no surety for the 2000 bushels. I went to Field because Hogg was a stranger to me and the firm, but Tasked for no guarantee. . Field said he would give him more barley than that if he made up the goods to his mind. I did not tell Field, Hogg had no money to buy malt with. . I heard nothing said of Hogg's selling; malt, if there was I should have said he had a right to do

so. I sa\i Field" at '.His premises and inithe- street, -and conversed respecting the " malthouse." '"Oa~the''s'e'c<frid occasion Field said he wduild'give Hogg barley if he made the malt to his mind. I don't think I told Field that they had no moneyeto : - buy malt with, when he said he had been selling malt. My object in going to Field was to secure" the ser'vicesif the rriailtster, and to fill up his "time duringjthe season.-- I never told Field I would let Kirn know if Hogg was selling malt. ."■" '..'

This was plaintiff's case,

Yesterday the cadet corps, whicli has been for some time under the training. of Cnptain Lockett, were- inspected by the Hon. Major Morse, accompanied by the Hon: Lieut.-001. Richmond, C.8., Col. Thomas, and 1 Captain Simeon. The youthful volunteers, who Were 60 in number, went through company drill, skirmishing, manual and platoon,, relieving skirmishers, and changing front. The style in whicli the various movements were effected gave great satisfaction to the military men present, and the young soldiers were complimented by Major Morse on the efficiency of their exercise. There were present:, besides the inspecting officer, his Honor the Superintendent, the Resident Magistrate, Mr. Blackett, and other Government officials, and a large number of ladies and gentlemen who appeared well pleased .with the mimic warfare, whilst due praise was given to the cadets for their progress, Captain Lockett was complimented on the result of his exertions in " teaching the young idea" iv Nelson, "how to shoot."

We regret to learn that on Thursday last Mrs Kealy, of Takaka, was drowned whilst crossing the Waikarra river on horseback. It is supposed that the horse must have stumbled against a boulder and thrown the rider into the stream. She was picked up shortly after the accident occurred, but life' was quite extinct. It is singular that the.husbaud of the unfortunate deceased was drowned some years ago in a similar manner.

The Provincial Government of Nelson announce their willingness to redeem the debentures issued under the Nelson Debentures Act, 1858. This shows well for the pecuniary position of the province, and presents it in favorable contrast to that' of /several other provinces, which, having., got deeply in debt, are now suffering all the inconveniences of their disagreeable situation.

A rather curious case of "mistaken identity" says the W. Advertiser occurred in the local columns of our contemporary.' It would appear that a gentlemen named' Mr. Walter Douglas was a passenger by the. Ruahine, from Sydney, bound homewards by way cf Panama, and our contemporary, having an. eye to matters spiritual and fashionable, jumped hastily to the conclusion. that he must be au old friend whom they flatteringly describe as "the earnest, but eccentric preacher who was in Wellington last year. The surprise of the real Mr. Douglas, who is an entire stranger, on seeing such notice taken of his arrival, cau be better imagined than described, and we need only add that he took the earliest opportunity for contradicting a statement which attributed to him an earnestness he knew nothing of, and fixed him in a profession at the same moment.