LAW AND POLICE.

New Zealand Herald, Volume XIII, Issue 4425, 19 January 1876, Page 3

LAW AND POLICE.

SUPREME SrnrHae. Tuesdat, 18th Jai.-u.aiit. [Befoie His Honor Mr Jmtice Gillies and a Speciil JnifJ ; His Honor took his seat on the bench at 10 o'clock. VICKERY T. SOCTER AND JIACKT. —The following gentlemen were sworn special jurors to try the cause :—Thoma3 Hunt Ivey (foreman), Jame3 Carrol Seccombe, William Henry Heath, Henry Owen Gunsford, John Soppet, Hugh Reid, Henry Solomon Myers, William Alfred Ricketts Ryan, Frederick Ireland, John Nokes, Jeremiah Casey.—Mr. Rees appeared for the plaintiff; Mr. Hesketh for the defendants.—The plaintiff in this case is a well-known mechanical engineer, and the defendant Souter an equally well-known battery owner. The second defendant was only nominally a party to the cause, hairing been joined for reasons given by the first-named defendant. The action was brought to recover £496, money alleged to be due to the plaintiff by the defendants upon the state of facts adduced by the plaintiff. The questions in dispute will be best understood from the issues put before the jury, as follows:—(1) Did the defendants employ the plaintiff at a salary of £10 a-week. (2) Did the plaintiff enter upon and continue in the employment at and for the salary of £10, from the 13th of July, 1874, to the 3rd of June, 1575, or during any portion of that time ? (3) Was the plaintiff, on or about the month of August, 1874, instructed by the defendants to employ a draftsman to prepare and copy certain plans, and did the plaintiff employ such a person for the purpose aforesaid. (4) Did the plaintiff pay a sum of £30 2s, and was this a reasonable sum to pay for the said services. (5) Was the plaintiff instructed upon divers times and occasions to proceed from the Thames goldfields to Auckland in respect to certain plans, &c. ? and was the sum expended and charged upon this account a reasonable charge? (6) What sum, if any, is the plaintiff entitled to recover? The plaintiff deposed to the following facts: —That in the month of July, 1874, Captain Souter spoke to him about removing the Flora Macdonald and Russell batteries from the Tararu Creek, and reerecting them at the Karaka Creek. The conversations were first as to the cost of such removal and re-erection, and the result of these conversations was that the cost would probably be between £10,000 and £12,000. It was contemplated that the proposed new battery would be employed by the Bright Smile Company, who had not at that time a battery of their own. Captain Souter asked witness what he would superintend the removal and re-erection of the batteries for, and draw up the plans, specifications, &c, &c. The witness explained that it was the custom to ask 5 per cent, npon the outlay. It was assumed that the work would occupy from four to six months, and Captain Souter calculated the commission that would be charged at that rate, and said that would never do, —it was equal to £100 a-month. The defendant (Captain Souter) proposed 1\ per cent, with certain conditions ; but this the plaintiff declined. The same defendant said : " You shall have a good screw, Vickery," and it was eventually decided that the plaintiff was to have £10 a-week for superintending the work of removal and re-erecting the batteries, drawing plans and specifications. The witness proceeded at once to draw plans for the boiler and engine, with a view to I calling for tenders. There were a great .number of separate tenders to be called for, I "as—(l) for boiler and engine, (2) for chimney to be built of bricks, (3) taking down and. putting up the same, (4) for boxes, (5) shaftting, (6) tables, (7) reservoir flume, &c, &c. The new battery was to be built on a piece of laud belonging to Mr. William Rowe, the purchase of which was being negotiated by the defendant Macky. The witness took an office in Mary-street, about midway between the site of the batteries at Tararu, and the site where they were to be re-erected. Witness had frequently asked for some payment under the agreement. When he asked Souter, Souter sent] him to Macky, and Macky sent him back to Souter. He had heard they had to get the money from Auckland. In respect to money, the witness said they had conversations upon that point. He told Captain Souter that the work might be done in four months, for men could be found if the money were forthcoming. Captain Souter lid the witness to believe that the money would be forthcoming, and that there would be no difficulty in that respect. Witness had been engaged on the plan , ?, had engaged a draftsman, and made several journeys to Auckland on business connected .with the undertaking. He did not know anything of the repudiation of the agreement until he received a letter, dated the loth of April, 1575, to the following effect: —"The agreement you jefer to cannot be of use to you, ss it was only a memorandum, and not stamped." He heard that Messrs. J. S. Macfarlane, Thomas Morrin, and William Souter (defendant) intended to sell the batteries to a company. That it was also proposed to erect the batteries at Ohinemuri, and not at the Thames. He had not received any discharge from his engagement, and no notice from the defendants that the batteries were not to be erected. The defendant, Souter, had offered him £50 as a settlement, but the witness declined to accept. Witness had sent in an account on the 4th of March, to which the letter of the loth of April was an answer. [A memorandum of the instructions upon which the plaintiffs commenced the work was put in and read.] The first tender called was for the beiler and engine 65-horso power nominal. Sent in an aceount for £193 to Souter, in November, and an account in March for £319. Witness charged up to June, because he was kept out of work. He ceased to make a charge when he got other work. — Mr. James Macky, the nominal defendant, confirmed the evidence of the plaintiff in the most essential particulars, viz. : That the result of the conversations was, that Vickery was to be paid by the week (£10), and not by commission.—The defendant, Capt. Sonter, was examined, and denied positively that there was any contract or agreement such as that set up by the plaintiff. He paid that the plaintiff knew the actual position of these batteries, and the proposed removal and re-ereetion of them from the commencement. —The witness admitted the general tenor of some of the conversations, but denied that there was ever any instructions to Vickery under the agreement alleged. The question of cost of tlie whole work depended very i much upon the cost of the boiler and engine., and Vickery was told that he might go to work upon the plans for these. It was understood that if the whole work should go on, Viekery was to get £10 a-week. The £10 a-week was calculated upon the commission that would accrue if the work went on to completion. The whole arrangement was contingent npon the work going on, except the plans for the boiler and engine. For these Vickery was to be paid in any event. Vickery knew, although the proposals with regard to the company who were to take up the shares, and what shares were to be handed over to the public. When the Bright Smile Company resolved to have a battery of their own, the project was abandoned.—Counsel on either side having addressed the jury, His Honor summed up the evidence. He said there was not a title of evidence against the defendant Mackay. His Honor commented upon the evidence at considerable length:—The jury retired to consider their verdict, and, after a short deliberation, returned into Court finding— (1) That Souter employed the plaintiff; that Mackay did not emplpy_him. (2). That plaintiff continued in Sonter's employment from 13th July to the 10th , November, 1874. (3) That plaintiff was instructed by Souter. to employ a , draftsman.- .(4) r.That plaintiff paid the said draftsman. (5) That plaintiff was instructedto 'proceed on divers, occasions to Auckland— by the defendant Souter. (6) That, plaintiff,is entitled to; recover from Souter £193125'6d. ' "

LUSK AND BnTEEE-T.- MACFABLAIfE ASD Othees. —Mr. Hesketh (for the defendants) applied Jto His Honor to certify for a special jury. His Honor said the practice was to make the application "immediately" after

trial bnt the authorities construed the words to mean a reasonable time after. He thought the casie a proper, one -to be tried by special jury, aad certified accordingly. ■ ■ • This concluded the business of the Circuit Court, which was adjourned sine die.

POLICE COURT.—Tuesday. B«fore James Baber and J. M. Beatham, Esqs:, Justices.] Drunkinitess.— One solitary inebriate was subjected to the usual choice of paying a fine or undergoing a term of imprisonment.. The Effects of Dbejk.—A man named Alexander Henry Guppy was brought before the Bench, having been found near the Junction Hotel, evidently suffering from delirium tremens. Sub-Inspector Pardy was of opinion that if the unfortunate man was remanded for a week he might then be in a fit state to be discharged. The Bench took the same view of the case, and granted a remand till Thursday.

Education Hate.—Several cases against persons for non-payment of the education rate were remanded till February 3. Assault.—John Murphy, a barman, employed in the Masonic Hotel, w,v charged by Mary Murphy with having assaulted her on the 14th instant by catching hold of, and 'kicking her. Mr. Thome appeared for defendant, and pleaded not guilty on his behalf. Mr. Laishley had been retained for the prosecution. The parties concerned, although bearing the same name, are in no waj related to each other. Mary Murphy deposed that on Friday last, the 14th instant, she went with Mrs. Croskie into the bar of the Masonic Hotel, and called for drinks. Defendant

served them, and on .receiving change of half-a-sovereign, she told him his charges were excessive, especially as he had not accommodated them with seats. She also

said that where she had come from, a room was provided for customers to sit in. The defendant answered, "Yes; but not for people of a certain class." He then used some abusive language towards her, in consequence of which her husband went away to procure the services of a constable. After her husband had left, defendant continued his conduct, and told her to clear out. She said she would not until her husband came back Defendant replied, "Your husband indeed; he's not your husband." He also put a shilling on the counter, and told her to take it and go away. She went to the door for the purpose of looking if her husband, was coming, when defendant came to her and called her a robber and a prostitute. He then caught her by the shoulders, shook her, and kicked her on the small of the back. In consequence of the treatment she had received she had had to take medical advice. Did not think defendant was sober at the time the assault was committed. Mrs. Croskie gave corroborative evidence. John Murphy, husband of prosecutrix, and an entirely different personage from his namesake (the defen dant), also gave similar testimony. John Murphy, the defendant, then deposed as to the liquor he supplied, the money paid, and the change given. He was compelled to put complainant out, in consequence of her foul language and behaviour. The only force used was in taking her by the arm ; and he positively denied having kicked her. In answer to a question from Mr. Laishley, witness stated that he had not himself sent for a constable ; the other Mr. Murphy went for one; and in answer to the Bench, said that he had only used force sufficient to put Mrs. Murphy out of the house. Had seen neither of the women before. Messrs. J. C. Morrin and George Johnstone gave evidence as to the good character defendant had always borne. Their Worships, after a short consultation, came to the conclusion that the defendant had used violence towards the complainant, and mulcted hini in the sum of 20s, and £3 3s, 6d costs.