SUPREME COURT.

New Zealand Colonist and Port Nicholson Advertiser, Volume I, Issue 26, 28 October 1842, Page 2

SUPREME COURT.

(Civil side). Before His Honor the Chief Justice. Wednesday, October 5, 1842. WATSON V. WADE. This was an action brought to recover from the Defendant compensation for false imprisonment. The damages were laid at £IOO. Mr. Hanson appeared for the Plaintiff, and Mr. Ross for the Defendant. This action arose out of the following circumstances. The Plaintiff acted as chief headsman fbr the Defendant at his whaling station at Wyderop, and had, for the purpose of performing the duties of his office, the use and custody of the articles jointly with the Defendant, which, it appeared, were of the usual character. On the 2nd of September the Plaintiff, who, as the Defendant alleged, had been previously dismissed for incapacity, went to the office of the Defendant, and having obtained the articles, was walking away with them, when he was stopped by the Defendant’s cleric, who, with the assistance of two other persons, took them from him by force, and the Defendant arriving at the time, gave him into custody, on the charge of stealing a deed. The Plaintiff was confined in the common jail till the following morning, when he was brought before the Police Magistrate, who dismissed the charge. . The Plaintiff rested his case on his right, or supposed right, .to the custody of the articles arising lrom invariable custom among whalers, and denied that the Defendant had the power which he had assumed to dismiss him. He also contended that an agreement under seal, and one which gave no power to either party to determine it, could not be cancelled by a mere expression of the will of either of the parties to it. The Court was crowded with whalers, who watohed the proceedings with great interest. The following witnesses were culled, by Mr. Ross for the Defendant: —

J. G.R. Dixon said—l am clerk to Mr. Wade ; I know the Plaintiff, who was eipployed by Mr. Wade at his whaling establishment at Wyderop; I heard conversation between Mr. Wade and Plaintiff as to. his situation at Wyderop; the conversation was held in Mi*. Wade’s office ; I was present; Mr. Wade told the Plaintiff he was no longer chief headsman; I do not know the Plaintiff’s handwriting; I do not recollect that there was any thing said at. that conversation which shewed that the Plaintiff was chief headsman; a person of the name of John Moles was made chief headsman in his place; the Plaintiff knew of this man being made chief headsman; Mr. Wade haying informed him thereof in my presence; I do not remember hearing the Plaintiff make any observation about this ; I saw the Plaintiff soon after this at Mr. Wade’s; Plaintiff was continually at Mr. Wade’s office ; Plaintiff came one day and said, Mr. Wade had sent him to me ; that he was going to ship a man to Wyderop ; he told me that he was in a hurry to get the man, and he. desired me to get the articles that he might ship him, and wished me to produce the articles; I asked him where the man was ; he said he was just outside, and he would fetch him ; he returned in about half an hour with a man ; Plaintiff told me he wished to look at the articles ; the articles were in my hand, and I was just placing them on the desk ; I was at this time in Mr. Wade’s outer offices; no other person was present at that time ; Plaintiff said he wished to see them, and when I put them on the desk before him, he snatched them up, and put them in his breast; he said they were his, and lie would keep possession; as far as I recollect, he said, these belong to me, and I shall keep possession ; up to this time I kept possession of them; I received them from Mr. Wade; I told him they were not his property, and desired him to give them back; Plaintiff refused to give them to me; I then called to my assistance two other persons in Mr. Wade’s employment who were in the store, William Eades and G. G. Wilson; they came to my assistance; and I then requested Mr. Watson to give me the papers quietly, or else I would take them from him by force ; I repeated these words often to him; I believe I repeated them at least six times ; Plaintiff did not give the papers up ; I then called upon Wilson and Eades to assist me in getting possession of the papei s at the same time, cautioning them not to use more violence than was necessary ; Plaintiff being a strong man, we were obliged to lay him on his back before I could open his shirt and get the papers ; the Defendant was not present at this time; I believe the Plaintiff was in liquor ac the time; after I had taken the articles from him, I dispatched a man for a constable; a constable came, and Mr. Wade arrived about the same time as the constable ; they came nearly together ; I told Mr. Wade Plaintiff had been stealing the Wyderop papers ; Mr. Wade gave the man into custody; the articles were in a perfect state before Plaintiff took them; I always kept them; I afterwards saw the man that came, with Plaintiff; he came, hut not to ship; I never heard him express a desire to ship. Cross-examined by Mr. Hanson—Articles dated 3d January, 1842; I took charge of them about last February ; they have been more than once lent out of my possession by myself and Mr. Wade to the chief headsman, when he

wanted to ship litcn, mid had to go down ihe heacli to find the men; they were sometimes in his possession an hour, sometimes more; they nuty have been several hours ; T believe they have been down to YVyderop; 1 do not remember that they were not a week in I’laintiff’s possession; I cannot swear they have not been a week at a time in Plaintiff's possession ; I gave the articles to Plaintiff 1 whenever be asked me for them to ship men ; I consider the articles belong to Mr. Wade; Ido not understand the practice of whale fishery; the men who have shipped always shipped under Mr. Wade. [The articles produced and read, dated 3d January, 1542.] lam aware that the men arc to obey the chief headsman; the articles would be of no use at Wyderop, but were obliged to be kept here to be produced before the

magistrate in ease of men’s desertion; I gave the articles to Mr. Brown to take to Wyderop

more than once; it was by the order of Mr. Wade, at least the man told me so; Ido not

remember Mr. Wade speaking to me on tire subject; Ido not recollect any particular conversation about the articles ; I have heard Mr. Wade say the articles belonged to him ; I would not give them up to any body; 1 gave them up on Mr. Wade’s account; I gave them up as acting under Mr. Wade ; I supposed I was acting right, and gave the articles to men serving under Mr. Wade, but I had no distinct authority ; I cannot remember whether I have mentioned my lending the articles to Mr. Wade : when Plaintiff came to Mr. Wade’s, and took away the articles, I was in the office next the sale-room ; the door was open : I do rot remember if any person was present; Mr. Taylor was present at the time of my taking the articles from Plaintiff; lie may have been present when Watson came in, but I did not see him; Plaintiff said the articles belonged to him ; I do not

recollect any other person to whom I have given the articles than Mr. Watson, Mr. Brown,

and Mr. Wade; Ido not recollect whether Mr. Brown took the articles for the purpose of giving them to Mr. Watson; Mr. Brown told me that Mr. Wade sent for them ; Mr. Brown did not tell me the reason ; I do not knowhow many days they have been out of my possession at any one time; they have been to Wyderop and back ; I always considered them safe, as being in the hands of Mr. Wade’s servants ; I do not, at this present time, remember whether it was Watson or Brown who returned them. Re-examined by Mr. Ross—When I first lent the articles, I used to ask the parties to bring the articles back, but afterwards I did not always do so ; upon all first occasions I did this, but not upon second applications, considering it was understood that they were to be returned; they were always returned; the Plaintiff had them several times, and returned them ; I never refused them while he acted as chief headsman ; upon the last occasion I refused to lend the articles, I did not consider him as chief headsman; on all other occasions I considered him as chief headsman.

Mr. Raphael said —l am a merchant; I was

employed as shipping agent in New South Wales, by the Water Shipping authorities; I am acquainted with the regulations of whaling establishments ; I heard the articles read; it is customary with owners who send ships to fish in the high seas, to give the articles to the master, but in the shore fisheries it is customary for the owners to hold the articles, or original

document; it sometimes happens that if there is an overseer upon whom the owner can de-

pend, a copy of the articles is given him, hut not the original. The practice is, that the cus- , tody of the articles is with the owner, and no other system is carried on. Cross-examined by Mr. Hanson—This system is carried on in New South Wales; I know John Jones well ; I shipped a crew for John Jones, for his station in New Zealand, in the Nova Scotia, the original articles remained with

Mr. Jones ; I do not recollect the names of the headsmen; it is the practice of owners to trust articles with the masters; I cannot recollect the names of the chief headsmen; the articles remain with the owners, so that they*may always be produced in case of any dispute with the men.

Mr. Hanson for the Plaintiff, called the following witnesses:— Alexander Fraser said—l am a cooper; I have been engaged for some time in the whaling business; I have been owner for three seasons ; there are regular articles between the owners and the men ; the chief headsman generally has the custody of the articles ; I do

not know whether the owner has a right to disrate the chief headsman; in case of difference between owner and chief headsman, I cannot say what would be done, as I have not known such a case ; I never knew a chief headsman to be broke; I have seen contracts in Sydney; the chief headsman always holds the articles of. fisheries belonging to Mr. Jones; I recollect the Nova Scotia, but I do not know if the master had the articles ; I have come down with several persons to Mr. Jones’ station, and articles were signed afterwards on the island at Kapiti; I was present. Cross-examined by Mr. Ross I do not know what the articles were; I suppose they were much the same as my own; I should think if a chief headsman was incompetent, that

lie could be disrated ; I never knew of a headsman being disrated.

John Guard said—l have been whaling for about twelve or fourteen years; I have been a whaler myself; when I was master of a ship or gang, I always had the articles; J always had them when I was chief headsman ; I considered myself entitled to them ; I consider it to be the general custom for these articles to be in the custody of the chief headsman ; I never knew an instance to the contrary; I never knew a chief headsman being disrated or broke, although I have been on the coast ten or twelve years.

Cross-examined by Mr. Ross —It is understood that the chief headsman has certain duties to perform; Ido not see how he can be disrated, if he docs not do his duty; I have been owner, and I have been chief headsman; if I were owner and chief headsman, then I should have the articles ; I have never seen articles signed under the owner; the form I have always used is similar to the articles produced ; the men always signed under me; my agreements arc something similar; I should think the chief headsman had a right to the custody of the articles; I have been chief headsman for Mr. Jones; Mr. Jones was at Sydney,- and I was fishing at Cloudy Bay ; I and all the men signed the articles ; it was necessary that I should have the articles, because I could not have had control over the men; I considered the men under my orders, as chief headsman, and not under the orders of the owners; all the owners that I am speaking of placed the orders under me.

Thomas Brown said —I have been chief headsman, and am now chief headsman for Mr. Wood at Go-ashore ; I have been chief headsman four or five seasons; the articles have always been in my custody ; I do not know any thing about disrating a chief headsman; I had a quarrel with my employers about my wages, and the gang would not work unless I was retained. Cross-examined by Mr. Ross—l do not think the gang would have remained if they were dissatisfied with me ; I knew the fishery at Otago ; I was ninety miles distant; I had the articles ; I could do nothing without referring to Mr. E. Weller; I first received the articles at Otago from Mr. E. Weller; if he had applied for them, I do not think I should have given up the articles ; the men agreed with Mr. Weller, as owner, and myself as chief headsman; a blank was left for the chief headsman’s name, and was filled up with my name, and I signed the articles. The Jury were addressed at considerable length by the Council on both sides, and the learned Judge, in summing up, remarked, that this was a case which would require their most serious consideration. Verdict for the Defendant.

SAME V. DIXON. This action, arising out of the same' circumstances, for an assault, was withdrawn.