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LAW INTELLIGENCE. SUPREME COURT.

APRIL SITTINGS. Wellington, Wednesday, April 4, (CIVIL SIDE. — BEFORE CHIEF JUSTICE MARTIN.) HARRIS Y. FITZ HERBERT. Mr. Hanson appeared for the plaintiff and Mr. Ross for the defendant. This was an action brought to recover the sum of 23/. 4s. 4d., the amount of an order drawn on the defendant by one Alexander Antonio. The circumstances out of which this action arose are as follows :—: — The plaintiff, Charles Harris, was employed as cooper at Alexander Antonio's whaling station at Kapiti, at the rate of 11. per month. The defendant agreed to purchase the oil and bone taken at Antonio's station, and, as the plaintiff alledged, promised to accept an order for the amount of his wages upon his allowing him to remove the oil and bone upon which, by the custom of whaling parties, he had a lien to the amonnt of the wages due. The promise, it was alledged, was Contained in certain letters written by the defendant which were put in. The defendant removed the oil and bone but refused to accept or pay the order. The defendant pleaded that he was not liable ; that there was no such custom ; and that he had not promised to pay. Mr. Hanson opened the plaintiff's case and called Joseph Burrell sworn. —Is clerk to Alexander Antonio's whaling party at Kapiti ; lemembers receiving from the defendant the letter produced ; witness read the letter over to every one of the men separately ; saw a letter written by the defendant to Antonio ; the letter produced is the same ; he told the cooper that he was not to be a party to detaining the oil and bone ; that all just debts would be paid, and he consented to let it go immediately ; the order drawn (by Antonio in favour of plaintiff upon the defendant for 25/. 4s. 4d.) produced was written by witness by the direction of Antonio. Cross-examined by Mr. Ross. — Plaintiff is in Port Nicholson now, and not in the employment of Antonio ; he is already engaged for the next season to Mr. Robert Gillet ; the plaintiff is not going to whale at Antonio's station ; no money has been paid on plaintiff's order to the knowledge of witness ; cannot say what amount of goods the plaintiff had ; perhaps to the value of 21. ; witness had not been paid, and was requested by the defendant to speak to the men about the oil and bone ; he was requested by letter ; plaintiff had the goods about six weeks after the order was drawn ; defendant told witness to enter the things for him which plaintiff had in the book against his name ; it was the book in which he mads up the account of wages due. Joseph Hippolito sworn. — Was carpenter of Antonio's party laat year"; knows plaintiff ; he was cooper of the tame party ; remembers the Richmond coming to Kapiti for oil ; she did not take all the oil and bone the first time she came ; does not recollect when she came again ; she took only a part of the oil the second time she came, because the people had no security for being paid ; the plaintiff was one of those who were not paid ; iccollects the defendant sent a letter saying he would pay the orders ; there was enougli oil kept back to pay trie people the second time the Richmmd came ; the oil was shipped on board the Richmond ; witness saw it shipped ; after seeing the defendant's letters they told Antonio he might ship the oil if he liked. Cross-examined by Mr. Ross. — Witness was upon wages ; the cooper was on wages ; the last witness was on wages ; the cook was on wages ; the cook is not the tonguer ; some men in their party were on lay, but in every party the cooper is on wages ; no other men besides the four mentioned are upon wages. George Young sworn. — Is a licensed victualler residing in Wellington ; was formerly a whaler ; it is 1 1 years since witness was first connected with whaling ; it is generally the case for every man in a whaling party to have security upon the oil and bone ; no man likes to see the oil or bone go off the beach until all the men are paid ; the cooper in all shore parties is paid by the month ; the practice is to pay at the end of the season, or at least when the oil is shipped ; the security applies to the cooper ; has known instances of the oil and bone being claimed by the cooper in default of payment, and by every man in the fishery ; knows plaintiff ; remembers his coming to him in October last; he brought an order with him ; the order produced is the same ; witness had it above a week in his possession ; the defendant gave plaintiff an order upon witness payable when the oil and bone arrived from Kapiti ; he objected to it, and the plaintiff returned and brought the defendant with him ; he saw the defendant at that time ; defendant said witness was to let plaintiff have what he wanted to the extent of 5/., and he would give witness credit for it, which he has done ; he let plaintiff have 5/. in cash ; the defendant told him to let plaintiff have that part, but he would not think of paying the men till he got the oil and bone from Kapiti ; plaintiff was present when defendant said this ; witness did not hear anything more ; he let plaintiff ha\e the 5/. Cross-examined by Mr. Ross. — Gave 5/. to the plaintiff; got credit for that sum from the defendant; had no other order in his possession at this time ; the defendant, said let him have that sum and he would pay the rest when the oil and bone came round ; it was not till after the advance was made that witness had the order j the order was left with witness till the plaintiff came from Kapiti ; he paid the 5/. on the 25th or 26th of October ; has no interest in the order now ; plaintiff has never drawn anything on the order ; did not know the plaintiff before he came to his house with the defendant ; witness whaled at Kapiti and Queen Charlotte's Sound ; he was six months whaling at sea ; the order was put into his hands the same day, or the next day after he/ made the advance ; had seen the order before. Charles Samuel Cave sworn. — Is a whaler residing at Cloudy Bay ; has heen connected with whaling about 17 years in, a vessel and in shore parties ; if witness agrees for monthly wages he is of course paid before the oil goes off the beach ; if he were inclined to stop the oil no one could hinder him ; the custom is for every man to be satisfied before the oil is taken away. Cross-examined by Mr. Ross. — Has been whaling ] 7 years ; acted as cooper about 14 years both at sea and on shore ; he means by the custom as far as his

own experience goes ; it depends upon the agreement ; he never had any dispute about being paid. Charles Bedford sworn. — Is a whaler ; knows defendant $ remembers seeing him at Kapiti last year during the whaling season ; was not present at any conversation between the defendant and a third person on the subject of the wages due to Antonio's party ; has been connected with whaling 14 or 15 years 5 the custom with 1 regard to coopers witness always understood to be that they were paid first ; the cooper and the people employed on the oil are paid first; by the people employed on the oil witness means those who get it ; the custom is that the cooper stands in the same position with regard to payment as those who are on lay ; the cooper stands in the same position as the rest. Cross-examined by Mr. Ross. — The men on the lay are paid according to the oil procured ; if the cooper had 71. per month it would not matter to him what oil was got ; it is always a custom that the cooper should be paid with the rest ; sometimes the cooper is on the lay ; the cooper is always paid and must be by the rules ; whether it is a bad or a good season the cooper would be entitled to his 71. ; if no oil is taken, the person who employed the cooper or who supplies the station must pay him. This was the plaintiff's case. Mr. Ross stated the defendant's case to the Jury and called the following witnesses. John Wade sworn. — Is an auctioneer residing at Wellington ; has been connected with whaling 3 years ; is proprietor of some stations, and purchaser of the proceeds of others ; is acquainted with other establishments besides his own ; in a whaling party the cooper, oarpenter, and cook are generally on wages ; the other hands are on lay or share ; the cooper is on wages ; has no claim upon the oil ; never heard of such a custom ; no person on wages has any share 5 the cooper is not interested in the season ; he is paid or entitled to be paid if there is no oil taken ; never heard of such a custom as the cooper having a lien upon the oil ; has been agent for Mr. Jones, of Sydney, who has very extensive fisheries ; has been concerned for others. Cross-examined by Mr. Hanson. — First became acquainted with whaling stations in 1840 ; had direct communication with them ; was engaged in fitting out for Daymond of Sydney. John Howard Wallace sworn. — Is a merchant residing at Wellington ; has some experience in whaling transactions 5 has a station this season ; the cooper is usually paid by wages ; the other servants of the establishment are paid by wages ; the whaleis are paid by shares ; does Hot know of t.uch a custom as the cooper having a lien upon the oil 5 rather thinks there was such a custom before there were any laws or courts established here ; during his experience the cooper has been paid by wages, and has not been considered to have any lien. Cross-examined by Air. Hanson. — Has been connected with whaling establishments during the two lasl seasons ; indirectly connected for two seasons : the whalers are considered to have a lien ; has never known a case where the coopers wages have not been paid ; never knew any question raised as to the right of the cooper to detain the oil. George Duke sworn. — Is clerk to Mr. Machattie of Wellington ; is conversant with whaling establishments; has seen that business carried on for some years ; the cooper is sometimes paid by the lay and sometimes by the month ; sometimes partly one way and partly the other ; has never heard of the cooper having a lien upon the oil and bone ; the whalers have a lien upon the oil ; there are agreements generally between the parties ; a price is fixed in the articles and the whalers have the lay out of that ; a fixed price is put upou the oil and the lay is out of that ; the men are paid by an order for the amount due to them ; they have a lien upon the oil when they agree at a certain price per ton ; never heard of the cooper having a lien upon the oil. Cross-examined by Mr. Hanson. — Never knew an instance where the cooper was not paid ; has known instances where the oil was taken away before the season was ended ; cannot say that he know& an instance of all the oil being taken away before the cooper was paid. Andrew Brown sivorn. — Is a farmer at Kapiti, and superintends a mercantile establishment to supply whalers ; has been connected for four years directly or indirectly with every station at Kapiti except the one belonging to Mr. Jones ; the cooper is usually paid by monthly wages by the master of the fishery ; the cooper has no lien upon the oil according to the custom of those fisheries with which witness has been connected ; never heard of such a custom as the cooper having a lien upon the oil. Cross-examined by Mr. Hanson. — Remembers an instance where the cooper was not paid when the oil was removed ; the fishery was Mr. Frazers ; the men having a claim upon the oil objected to the removal of it until their wages were paid ; they applied to witness on che subject ; the cooper made no objection to the oil being removed ; this occurred during the season 1841 ; the headsman and pullers were the only parties who objected to the oil being removed; knows no other cases where a dispute arose ; knows Frazers station, Daymond's, Stinchmore and Jenkins; Fraser is whaling on his own account, Daymond on his, own account, Stinchraore on his own account, Jenkins on his own account. Re-examined by Mr. Ross. — They have generally applied to witness to write out their articles ; the cooper was never mentioned in those articles ; has drawn up their agreements ; their quarrels were generally referred to witness ; those referred to by witness were master whalers supported by some absentee ; the cooper is paid by monthly wages ; the labourers by lay. Newton Levin sioorn. — Is the master of the Susunnah Anne; has been four years connected with whaling establishments ; has visited most of the whuling stations upon this coast ; has been employed so latterly ; witness never enquired particularly, but believos coopers are generally employed by the month ; he never had a claim to the lien made to him ; remembers a season when he took the oil away before the close of the season and paid the cooper at the close ; the cooper made no objection. Cross-examined by Mr. Hanson. — Does not recollect hearing of a case where the cooper was not paid ; it is the custom to advance slops to coopers as well as the others. John Gun examined by Mr. Hanson. — Is a cooper ; was cooper at the whaling station of Mr. Fraser in 1841 ; allowed the oil and bone to be taken before he was paid because there was ample property left to satisfy him, and he had confidence in Mr. Fraser that he would pay. This closed the evidence. The learned counsel having addressed the Jury, his Honor, in summing up, explained how the law regards liens, and how they became established ; he said this was a case which would require their most serious consideration, as it would establish a president in amatterwhich involved the interests of many. It had been said by one of the wituesses, that the custom had existed before courts of law were established here, it was right that they should know that the law adopted and followed the cus-

I torn. The evidence ftas conflicting ; bill in considering the evidence of the merchants and the coopers, they would remember their different interests. They would give the evidence their serious consideration, and then they would be able to decide whether the custom had been proved. The Jury returned a verdict for the plaintiff' for 20/. 4s. 4d., finding that the lien had existed.

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https://paperspast.natlib.govt.nz/newspapers/NZCPNA18430414.2.10

Bibliographic details

LAW INTELLIGENCE. SUPREME COURT., New Zealand Colonist and Port Nicholson Advertiser, Volume I, Issue 74, 14 April 1843

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LAW INTELLIGENCE. SUPREME COURT. New Zealand Colonist and Port Nicholson Advertiser, Volume I, Issue 74, 14 April 1843

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