SUPREME COURT.—Civil Sittings.

New Zealand Herald, Volume II, Issue 496, 15 June 1865, Page 5

SUPREME COURT.—Civil Sittings.

Wednesday, June 14. (Before Sir G. Arney, Chief Jußtioo, and Common Juries ) The Civil Sittings of the Supreme Court commenced yesterday. There was a very largo number of special and petty juarymen in attendance. The following cases were set down for hearing:—Hector Alexander Drake v. George Friend ; John McLeod v. W. Victory, and J. Masefield; W. Hunter, and George Dennettt. Peter Horrier Mackenzie ; John Trimble, sen , v. Frederick Moslieim; Donald McTnnis v. Daniel Sullivan ; Henry Robert Russoll v, George Perkin ; John Bolons v. Christopher Maxwell ; John Lundon v. Robert Graham ; Henry Lenson Brewer v. Robert James Creigliton ; William Bacon v. John Carsloy Morrin and W. Baker; Henry Kdgecombe v. William Edgecombe ; James Cruickshank, and another v. Matthew Reid ; Flizer Burch Grey v. Heron, David, and Co. BUSINESS OF THE COURT. nis Honor intimated to tho members of the bar, that ho was disposed so to order tbe businosa of the Court, a - would bo most convenient to all parties. He would bo glad to know from gentlemen in Bpecial jury cases, how they would take those cases. Mr. Whitakir said, with the permission of the Court, he would wish that the special jury case Russell v. Perkins, should be iaken ou Friday next, as several witnesses had come from Hawkes' Bay. J lis Honor : it bo so. Mr. Gillies applied that a common jury case, viz., that of McLeod v. Yickery and Masefield, might be fixed for Tuesday, as witness was a person employed nn 1 oard a steamer, which would arrive at tho end of the week, and would have to deport in a few days. Mis Honor: l.et that be so also. It was arranged liiat tho special jury cases, Brewer v. Creigliton, Bacon y. Morrin and Baker, should be taken in their order on Friday week —the 23rd inst. The common jury cases will bo taken consecutively in the order in which they stand, unless otherwise ordered by the Court. Tho first ease was called on. DRAKE V. FEtESD AVI) OTHERS. —THE AUCKLAND CLUJI. This was an action br n " V against the committee of management of the A u.Uaad Club for a balance of £90, under an allege I ycuv'y hiring, on the ground of wrongful dismissal. The declaration set out that plaintiff, in consideration of his entering into the servica of the defendants (the managing committee of the Auckland Club), for the term of six months, ,-hould receive £60 certain, and that lie entered cn that service for the above mentioned period. Tho d. i'endants promised in the event of the Auckland clu'i flourishing, the plaintiff should continue in tho service after the expiration of the above mentioned period for a further term of six months, and so on until he should bo lawfully discharged. That tho club did flourish, and that he continued for one year an J nine days in this service. That on the 22nd January the defendants promised thut if he would serve them one year from that date he would reeeivo £120 for a year's salary, and that he (the plaintiff) continued to serve tho defendants until the breach of that promise. That tho defendants wrongfully dismissed tho plaintiff. r J lie plaintiff received £lfio a year, being at the rate of £120 a a year, and £30 at the same late for three months in lieu of notice. Hector Alexander Drako, examined: I am the plaintiff'in this action. Iromember being engaged in tho service of the Auckland Club. That was on July 22nd, 1863. I was engaged for six months at a salary of £60, for that term. By Mr. Wynn : The contract was in writing, if so it ought to bo produced. Mr. Brookfield said ho had a right to ask the question. His Honor: Doe 3 a particular letter being written, having reference to an engagement, and upon which action is taken, preclude other evidence. Mr. Wynn said that was not his objection. If there was a contract in writing, that writing must bo t!:c evidence of it. It was—

His Honor; Then Mr. Wynn, do not hold a conversation with mo, but quote your authorities. Witness: The engagement was entered into in Auckland. I taw Messrs. Williamson and Friend in the club. I told them that Dr. Dalliston said to me, " "Will you beccmo the fcfecietary of the club," mid 1 but I said " yes." I had another interview with Messrs Friend and Williamson, on a subsequent occasion. I did not tell them of the terms proposed by Dr. Dalliston. I told tliem I should prefer having written authority ; I received this letter : — '■ Auckland, 22nd July, ISGo. " Sir, —We bog to acquaint you that at a general meeting held yesterday, you wire appointed Secretary and Manager cf this Club. Wo have to request that you will assume your duties as soon as possible. „ f James Williamson*. (signed) George Fiiienh." Witness: I entered on my duties as manager and secretary. I had 110 communication with any of the defendants as to the terms of the engagement until I was about to leave. I was in the service of the club in the capacity of secretary and manager until the first of August, ISGI. That wns a year and nine days. During that period the defendants were members of tho club. I believe that Dr. Dalliston was not a member of the committee of management at the time of the engagement. During the period I received no payment. On the Ist of August I was summarily dismissed. No cause was j-ssigned. I was dismissed by Harrison, Campbell, and Friend, the defendants. Those three gentlemen wero at that time members of the managing committee. Thov sent for me. They were in the same room when I came. I was asked if I had sliown a report wliii !i had been read before the general meeting to anybody not a member of the club. I replied " yes." Ho then said "you shall leave this day week." Captain Harrison was the spokesman. All three wore biil i'cr together. I wished _ to know why I was so £11: "inrily dismissi I said also, I did not think I coulu procure : " nisu within that time. I lived in the club house aw.li Mrs. Drake during the time I was there. X do not think that any thing was said then about the terms of the hiring. This con-ver-ation took place I think on the 25th of Jul}* tho weolt previously. I had no conversation in reference to tho terms of hiring, until the first of August. I had a conversation with all the parties, Williamson, Harrison, Friend, and Campbell, as to the terms of leaving. I stated the terms. I said that Dr. Dalliston had arranged with me thnt I should rcceive £60 for six months, certain. That at the exkiration of those six months I was to receive lair remuneration for my services, provided the affairs of the club were in a better position than they wore when I assumed office. Mr. Friend said that tho agreement with Dalliston was tluit 1 wns to rcceivo £120 a year, which statcmant was confirmed bv Mr. Williamson. r lhey ofi'eied me £100 on that occasion. The £150 was to represent payment for one year's service, and tlireo months salarv in lieu of notice. I declined to accept it. That same day 1 left the club finally. After my becoming manager of the club there was some improvement iu it. This happened on the Ist ot August. I received a letter on the Btli of .-lugiu-t, enclosing £100. (Letter read. It stated that the defendants, whose usmes were subscribed, enclosed to the plaintiff £100, £120 for one year's salary, and £30 for three months in lieu of notice. J lie defendants stated that this was for liquidation m full of all demands.) , . ~ Witness: I did not accept £100 in full of all claims. I kept tlio cliequc. I sent a reply to that letter to the following eilectl have the honour to acknowledge the receipt of your letter enclosing £150, bein" on account, and not, as yon state, tor liquidation "in full thereof. I beg to inform you that I shall take legal proceedings to recover the amount due to me." I was hired by tho year. I claim a balance of nine months' salary. Cross-examined by Mr. Wynn: I have not that cheque in mv pocket; I cashed it at the ban.*. Campbell, Harrison, and Friend wero present on ,Tulv 'Joth. Mr. Williamson, I think, was not present. Dr. Dalliston was a friend of mine. I once applied for an engagement at the club prior to tais arrangement. The arrangement was that wa * 'j 5 receive £t>o for six months certain. Had the club not flourished, I understood that the club was .o be broken up. and 1 was to be dismissed" It was uoi llouri»hin« when I left, but it had improved, and w:>s improving daily. In the report drawn up by the three gentlemen for the general meeting, there weio manv complaints. They wero very unaccountable complaints. I showed this report to Mr. Jackson, the solicitor. Ho mentioned to ilnjor <- ampbell thai; 1 d Re-examined: The club was in a batter financial condition during my management than when I caaio there. I cannot fay whether it was flourishing. I believe it had a greater balance at tho banker s. it

was greatly improved, I thought. It was so understood, I thought. Mr. Wynn addressed the jury on behalf of the defendants. He eaid that nothing had been proved to show what -wa°the nature of the engagement subsisting between the parties to this case. lie contended that there had been no yearly hiring, that if there had been a yearly hiring there bait been no damage proved, that it was a specific hiring for a specifiperiod, terminable and removable at the pleasure of the defendants at tho end of fiieh period. lie urged in proof that it was only upon the day of his dismissal that lie informed tlvmi of an arrangement "which, tho plaintiff alleged had been made with Dr. Dalliston member of the clnb, but not a member of the managing committee. The defendant could not havo been bound by any such ari alignment. Mr, Drake had accepted tho £150 cheque f nclosed to him, which notwithstanding lie had acknowledged the receipt on account, etill it wbb Font to him as liquidation "in full," anil being eo lie should have returned it and thai taken his action. The question was whether there was such a hiring from vear to vear as would entitle the plaintiff to a year's salary. The jury were to say whether the £30 in lieu of notice was a sufficibnt amount to satisfy all demand. Mr. J. Slacfail:iie examined by Mr. Wynn: I am a merchant residing in Auckland. lam a member of the Auckland Club. I know the plaintiff. He has resided thoro about a year. I was a member of tho club wh°n he was secretary and manager. I knew Dr. Dalliston. Tho plaintiff and Dr. Dalliston frequently called 011 me together in reference to the atfairs of the club for the appointment of secretary or other employment. I have been member of the committee for three months together. "When Drako was appointed it owed abut £560 or £600, hut its | assets exceeded that amount. When ho left I think jit owed about £800. Its condition was eti'l unsatisfactory, and it was proposed that i vti' or twelve members should put down £100 e icli to carry on. He proposed to put down £100 al*o. The proposal led to an investigation of the affairs of the club. Mr. Drake was dismissed for Mr. Brookfield objected to this question. Witness : —The position of the club was that it wo a doing n large business and was worse off. The result was a determination to carry 011 the plaintiff's management. A large sum of morcy was required, and not forthcoming. Cross-examined by Mr. Brookfield : This might have happened two or three months before the dismissal of plaintiff. There were so many conversations on the subject. The proposal to lay down £100 was about three or four months before the dismissal of plaintiff. The proposal was not reduced to writing. Several agreed to pay it; several refused. lam not aware of anv writing. I do not know whether I put it in writing. I ndopted Mr. Drake's ideas, and wished it to be done. Mr. Drake made a proposal that his salary should be £200 a year from 1863. I supported that also. Mr. 1 Brookfield put in tho witness 3 hand a proposal signed by himself to pay the £100. A paragraph, concluding several memoranda in the witness's hand writing proposed £200 n. year for the plaintiff after August 1563: that £1000 should be subscribed to carry out the flub. That th" secretary become a member of the club. That 10 per cent, he charged on all debts outitandi' g over tho month, due notice being given. Subscriptions to be reduced one-half except casual subscribers. These memoranda purported to be agre d to by Doctor Pollen, J. S. Macfarlnne, and Doctor Dalliston, members of the clubCapt. Harrison examined by Mr. Wynn : I reside in Auckland. I am a member of the Auckland Club. I took part in an investigation as to the state of the club before Mr. Drake left. I do not know what state it was in when Mr. Drako came, hut at this time it was in a very unsatisfactory condition. The result was Mr. Drake was dismissed. ?Ir. Wynn addressed the jury upon tho contents of the document put in. He admitted that the document which had been put in was Bigned by persons who were not parties to the action. The plaintiff had 110 right io support his claim against the defendants by something done, said, or written by other persons. The document rather proved that if there was any hiring, tho hiring to -k place not with tho authority of the defendants. 80 far as the document was concerned every proposal had been rejected by the general meeting and the committee of management. Perhaps the best course would be for tha jury to return a general verdict. His Honor said this was a record by -which the jury were boun l. Mr. Wynn said there was a rule enabling parties by consent to withdraw the issues and return a general verdict. His Honor left it to the jury to say whether there had been any general hiring. "He cited several authorities, from which it appeared that when there was no contract, the jury must be guided by the facts of the case, and the nature and circumstances of the services if any had been entered upon. Was there a contract here ? and if not, the jury were to consider tho service, and then say -whether tho plaintiff was entitled to what he asked, and if he were not, to ieluin their verdict upon tho general issue, with the consont of both parties. Verdict for the plaintiff. Damages, £30.