SUPREME COURT.

Otago Daily Times, Issue 298, 3 December 1862, Page 6

SUPREME COURT.

Tuesday, November 27th. (Before His Honor Mr Justice Gresson.) The Court resumed this day at 10 a.m. WHAT IS A KJ^TAUUANT? PonrKETT ajtd Kxianc v. Child asd Little.— This was a claim for L 250, which plaintiff* sought to recover from the defendants as damages for a breach of contract. Mr South appeared for the plaintiffs, Messrs Barton and Wa*d for the defendant:?. Mr South, in opening the case, said the action .•rose out of the following circumstances j—Plaintiffs wore occupying the portion of waiters in' Melbourne, and bavin,'; amawetl a li-tie money, they came over liorelbr the purpose of keeping a restaurant. They afterwards met "the defendants, ihe proprietors and Landlords of t!:e Exchange Hotel, in Princes-street, who offered to yive plaintiffs a portion of that buil-1-. ing to occupy as a restaurant, while th.y still cariied on their usuwl business in the ri st of the building. This offer was accepted by -plaintiffs, on defendants agreeing to furnish p!aintihV part of the hotel with nil ni.-t'tsjary furniture, to enable* them to carry on Ilia Ijus'ir'mj of a restaurant, for which they were b> p.iy LlO ;>er week as lent. The plaintiffs had fulfilled their part of iJie contract, but -'efendauts, instead of supplying such necessary articles.as sheets, knives, i\>'.li.->, .&c , refuted to do so, and plaintiffs had to in-vo-fctheir all in the purchase of t,ueh furnijuro tbem.seiv.fi, and thus were made completely powerless. Jii those cirenmstunces they asked for redress. They •were now out of employment, and fairly entitled to coiii{X'ji:;nfion. . Henry Pollykctt on bung sworn deposed : In conserjuencj of an advertisement in the Daily Times, Mr Knight and I had an interview with the defendants the msult of which was that we accepted the following offer: - " Dnnedin, 12th June, 1862 t " Wengi-oc lolot Messrs Pol ykett and Knight.aportif»n itit.'je lixubange Hotel, to contain rlevcn bedrooms on tiio yiuund floor, kitchen, long dining room up stai is, h vti hod rooms, large front room for cafe, the whole to he i'ltiriish.yl with everylhing requisite for carrying on tho bu.-jiio.-'.'j of a restaurant (with the exception of plate), for which Messrs Pollykett and Knight agroo to p:ty LlO per week, to provide board and residence for four persons belonging to the house, and rent to be paid fortnightly in advance. (Signed) Child & Little.'.' We wanted the dining-room or wife fumiflhed with tr.blefj and chairs, a stove, oil cloths and table cloths. About thirty chairs were re.|uircd. In the diningroom down s-tairs we wanted forms or chair?, and tab!(;«. In the kitchen we required a stove or kitchen range and dresser. A machine for raising dishes from the kitchen to rooms; upstair?, a call pipe, a pipe to take ti'.vav smo!;u or steam, wi-re also refjuired. In tic four bedrooms v/c wanted two bedstea>!s in each I'iOTii. (A. long <!iseu.°bion hern took \j\:ica on the question whether bedrooms wore attached to a resMurant, If, ended in the question being put to witncs.-. who stated that it was usual for a restaurant to have hodiooms.) Examination continue! : —There were .six. l.id.steiicls and bedding short, find eleven pair of r-hm.i:H for tho other beds. With the exception of one 0)' two, all the beds wore short when we .should ii;ivc taken possession. Everything was to be ready then, but there was nothing. My partner and I redded in thy place on tho 2-lth June. I saw defendant? and tnld them to get ready as soon as they could. Mr Little said he had not time, but if I could lind carpenters I was to send them up to the house. I j-x-nt .':ii!: and he waa put to work. I paid defendant-, a deposit of LO on the l*2th, and early ia July I u;:\vq Lls to pay the license. The money, they Baid, would make tip the fortnight's rent. -I.v August I p.iiii L2O on account of rent. I had L7O of capital then tv curry on the business. Defendants wished us to occupy the place before it was finished. They said everything was in they were going to furnish. What they did promise was not supplied. Up till a week later the kitchen was not fitted up at all; the stove was deficient, and there was no cull or steam pipe. "Wo lo'd Mr Little we must have these things before wo could take possession. He said he had got no iNwi<! money and could furnish nothing else. We did jiot commence then because we had not the necessary requisites Meantime :<• great many whom we knew applied for accommodation which we could not give. There_ would be us many .is fill the house, which could Judge twenty-eiirht. Our clu.rgps for beds wore X.i, 2« (id and 2s ; meals from 2a to 3.-: G.I. Had we cnt'ircd on iho2'liU the place would have been full for four or five weeks. Cross-examined by Mr Barton : During; the first month we wanted to go in, but afterwards, when defendants warned us to take possession, we refused, till the place was furnished. About the 30th July we gave _ thorn a list of articles wante I, and they v/orc furnished afterwards- We went into possession then on condition that a second list given defendants would be .supplied in a fortnight. We remained in ?)o;;e c:iio!i one month. When defendants applied for j-ent wi! handed them, by way of set off, a list of articles which we had bought for the premises. We never turned away lodgers for lack of accommodation after we entered into possession. I went with one of defendants to look at a store they were going to fit up, but did not approve of it, as it was not largo enough. I do not think defendants laid out LBOO in fitting up this place. The lodgers did not leave the house on account of my conduct to the servant girl. There was no noise or quarrelling, and I do not blame myself for loss of business. I "'took a drop when I required it, but did not take it to excess." I never was no drunk that I did not know what I was about. I acted as waiter. jAt the end of the month my partner audl left in the day time, not at half past'eleven in the evening. I did not; tell defendants we were ftoing. The rent war. duo the following day, for the ensuing fortnight. I remained in town, but did not go back to defendant-; to ask for damages. By Mr couth : I communicated several times with defendants, to obtain a settlement by arbitration. George Win. Knight corroborated the previous witness as to the place not being sufficiently furnished. The reason plaintiffs could not carry on business was owing to the absence of the furnishings. ;i;i:i tlu-ir loss in consequence would be 1.10 per week. Witness had boon a restaurant keeper for some years, and the general meaning of the term was a plr.ee to supply board and residence. In cross-examination, 5,1 i- Barton asked a question touching the moral character of witness. Mr South objected. If is Honor said it was a most objectionable feature to be continually bringing up these questions, which had happened so much during the present session. He quoted Lord KHenborough on the subject, but rulfd that the question might be put. In reply to the question, witness said he had been imprisoned on a criminal charge ia Otago, but he could prove his innocence. Jane Coss: lam married, and was in fie employment of plaintiff, as housemaid. The first six vresks I was engaged at sewing for Mr Pollykett. In July went out with plaintiff to look at the bedrooms. Saw Mr Little, who was asked to get the sheetings and bedroom things ready. He was out of • temper at the time, and said he would not get them as lie had no more money. Heard Mr Child say ho wanted a fresh agreement. Mr Barton after stating the case for the defendants, called Thomas Little, who being sworn, deposed : Iremember entering into an agreement with plaintiff. It was six weeks afterwards before they took possession of the premises. This was owing to a cooking stove being found fault with after it hud been approved. I saw'the stove advertised, and went with Mr Pollykett toseeit. He thought it would do> though a larger might suit better, and proposed takiug it temporarily, provided I would get a larger one if it did not do. A larger not-being in town, I purchased this one with his approval. Mr Knight objecting to it, I Eiiid if they would wait a few weeks, we would build a proper cooking range. They agreed, and it was done. It was not in the agreement to furnish the bedrooms, though they might use tho bedding in the rooms already. On receiving the list shown, we got the things required. For a fortnight before the plaintiffs took possession, there was amply sufficient things to carry oq their business. I define a restaurant to be merely an eating house, so that beds and bedding are not necessary. I made repeated application to plaintiffs to take possessiou, but they delayed on various excuses' They were staying at our expense at this time. They left at eleven o'clock at .night, on a Sunday, about the 6th September. Cros-examined by Mr. South': To the best of my knowledge they did not pay off the servants before leaving; and they did not ttate their intention of dling so. I cannot say the fittings were complete w'len they let. Plaintiffs waited about the place six weeks. 1 received L4O in the six weeks. John Child deposed to plaintiffs leaving the place about 11 o'clock at night. They tought the articles in list produced, and he had given credit for the amount. Defendant laid out about L3OO on the premises rented to plaintiffs. John Hadley defined a restaurant to be an eating and not a sleeping place. He took possession of the ! place on plaintiff's leaving, and had n6 difficulty in carrying on the business with the appliances of the house. ..' .' .t; ' John Halloran, Eichard Richardson, and S. GIsaacs, were next examined, but nothing further wa elicited. In reply to" Mr .South, the last said,.-" don't know what lam brought here for. All that know ia, I got my commission for the stove." Mr Barton then addressed, the jury for the defendants, and Mr South for the plaintiffs. His Honor summed up, and the jury retired. After nn absence of exactly an hour, they returned into court witli a verdict for the plaintiffs,, dsmage 25. The Court adjourned at 20 minutes past 5, till nex

FRIDAY, NOYJiMBEU 23. (Before His Honor, Mr Justice Gresson.) The court resumed this morning, at a quarter past 10 o'clock. y SMOEX DELIVERY OF SHBBP. "Walker v. Daly.—The plaintiff ia tlm action sought to recover tlje sum LUi 7s o\l as damages lor short delivery of a flock of sheep. Air. South appeared for the plaintiff, and Mr Barton for the defendant. In ojieniiig the case for plaintiff, Mr South said that defendant was a driver of sheep*/ au I on tho 10th December last lw received instructions from the plaintiff to driv<; 1,500 sheep from Totaro and ALoraikk to Wetherstoue's Gully, at Is 3d per head on delivery of the sheep ; it was found that the lot was 85 short, and it would be proved that the loss occurred from defendant's negligence, Henry .Walker, tanner, Green Island, gave instructions fr> defendant to drive 1,5t)0 sheep from Campbell's station to Wetherstone's Gully. The instruction* were in writing. (Here a discussion took place as to whether this document was to be put iv as evidence, and where it was. (Ultimately Mark Daly, the defendant, was put into the witness box, and sworn. The document he said had«befert lose with hid pocket book some time ago. H(|. admitted the agreement to drive 1,500 sheep at Is 3d each. He started in company with« James Bennett, to do so on 10th Dacemljer. ileccived 708 sheep at Totaro, and 720 at Moraikia. The distance to Wetherstone's from the first place was 100 miles. The number dcliveiel at Wetherstone's was 1,207. Took delivery on the 18th December. Drove the sheep at a regular pace, but was obliged to leave some at diifurent stations and one escaped at the Taieri. Camped at Deep Sfc:eain, which is a na-.ty place and the weather was bad. A storm caused the sheep to scatter, and next morning they could not well be counted. Delivered 1,267 and recovered 100 afterwards, leaving 64 unaccounted for. Met Mr Walker and told him to look for missing sheep ou Healey'.s run, and he promised to do so. Had been a driver U3 yeais, and could not ivoid the loss of the sheep. The ioas would be 5 per cent on driving sheep 100 miles. Had often lost, that and on four or live occasions more, but was never remonstrated with. Mr Walker considered the driver responsible for the sheep. About. 2 per cent, was the average loss allowed. This part of the country presented no peculiar difficulties. There was no rough country, and the streams were easily crossed. .Tliu average distance for driving sheep was eight or nine miles per day, especially on a long journey, J3y Mr .Barton : Couid not say whether some of the sheep had got rot. Hud a run for iive yeai-3 without a certificate. If sheep got mixed with an uucleau flock they could not be taken away. James .Bennett, sheep driver, started with defendant iv September, 18iii, to drive sheep. Told him he should not drive so fast. The Taieri river was crossed with great dillicuity, and the sheep were driven fifteen miles next day before twelve o'clock. Stopped in the hut at Heaby's out-station that uighb, ami visited the sheep half a mile distant at four next muming. Thought they were not ail there, and said so to defendant, who said there was no doubt about the number, and would drive the sheep on. Was confident most of the sheep were lost that night. By a Juryman : We took fourteen days to the 100 miles, because though some days we went from fourteen to sixteen miles, on other days we did not go above four. Mr Barton declined calling witnesses for the defence, as the jury were well abe to judge for themselves. He contended there was not proof offered of gross negligence, and pointed out where the evidence was defective, at considerable length. Mr South replied, and his Honor having summed up, the Jury reti/ed, returning in a short time with a verdict for defendant on all the issuer A fresh jury was then sworn, and the remainder dismissed till cleveu o'clock on Monday morning. CLAIM ON A BILL OF EXCHANGE. Harris v. Henderson.—This was an action to recover L'JO 15s on a bill of exchange. Mr Wilson attended for plaintiff, and Mr Cooke for the defendant. Mr Wilson briefly stated the case for plaintiff, and called on Charles Edward Young, who stated he was clerk to Mr rrendergast, and presented the bill refused at the Uank of New South Wales. Jt was dishonoured at once. Than asked Air Henderson to settle the amount, and he said ho could not do so till he sold his property. He never denied the bill, bub offered another for a short period; and said he would get a good jiame to the back of it. He named aMr Murray, who was worth thousands. Witness spoke of'^takiug out a writ; and he said it would be "a pity to have to pay the expense. Told him it would : have to be taken before the Supreme Court, as the sum was beyond the jurisdiction of the Police Court. Had it only been L2O ib could have been brought before tho Magistrate, when the cost would be only 9s. He then left to get Murray's name, but did nut return, and witness took out the writ. Meeting him afterwards, witness told him of what had been done, and he expressed regret, as he was going to have a lot of money in a day or two. Cross-examined by Mr Cook.—Harris called and introduced Henderson. The bill was produced, but defendant was not near enough to read it. The amount was not mentioned, bub witness said Mr Harris should secure himself.

George Harris, plaintiff, proved the bill which had been drawn at the office where he was employed. Through mistake it was drawn in copying ink. One of the signatures was that of Mr Henderson. Could see no alteration in the bill since it was drawn by Hayes for L9O 15s. Witness wanted another name to ib, and defendant got it endorsed by Henderson. Had not received any money. The bill was for money lent afc different times. Nothing was sai I about mves going out of the colony, and being in want of L 9 15s. Defendant said he was building some houses, and was about to receive the money for the work doae.

Til is was the case for tlie plaintiff. Mr Cook hail no evidence to offer for the defence except that of Mr Henderson, who mentioned that it was only a bill fur L 9 15s which he signed to oblige Hayes, with whom lie was acquainted. Win. Henderson deposed: X knew Hayes about four months. He met me in High-street and we veut into the Commercial Hotel. He showed me a bill for L 9 15s. (showing bill.) It .was the same as this, but the amoimt is different. He. asked me to sign the bill as he was going to Invert-argil!. I signed the biil for L 9 15s in two places at the bottom and on I the back. I read it over twice. Am quite sure the amount was L 9 ios. I had not the means of pajing a bill for L9O 15s. I knew plaintiff at that time "'and have seen him since but he never mentioned the bill till in was due, when he told me so. I met him in Mr Pi-endergast's, where I was asked if I would pay the bill. I said I had not the amount on me but would pay in a day or two. They wished for settlement, and F said they were surely in a hurry for such a small sum. I returned in a few days to" pay tli3 Mil, and only then was the amount mentioned by Mr Harris to be LOO 1&3. Told them I had not signed for that, at which they expressed surprise. I offered to give them a policy of insurance as security after- ■ wards. I swear distinctly the bill I signed was only f>v L 9 15s, and produce a note of it made at the time with the same pen and ink. By a juror: The policy was not entirely mine. j By Mr Wilson: I am part owner of the Octagon boarding: house. I will not take LOO for my share. Mr Wilson : What did you mean then by saying you were not worth L9O. By his Honor: I had "no dealings with Gillies and Street at that time, and had no intention of purchasing land. Mr (Jook then addressed the Court for the defendant, and Mr Wilson for the plaintiff. His Honor in summing up, went carefully over the evidence, pointing out that though defendant did not j appear to be very bright in the witness box, it was curious that he should offer an insurance policy for LSOO in security of a debt of L 9 155., and that he should make no remark when the bill was spoken of being for a large amount. At the same time lie might have signed it believing it was only for L 9 15s, and the entry in his memorandum book was strong proof of this, there being little chance of that being made for a purpose. To the conflicting statements of the witnesses there was also the supposition that the bill might have been folsiScd after being signed by Henderson," and before it came iuto the possession of Harris. The jury were therefore placed in a very perplexing position, and it would take probably some trouble to see their way clenly. The jury retired and returned after an absence of fifty minutes. The foreman-said they had been laboring under great difficulties. It was a painful case, but their unanimous conclusion was,,that the weight of evidence rested with the plaimiff. It was very distressing, bat they had no alternative than to find for the plaintiff. . .... On being asked by the Bench, it they thought the bill had beea altered after it was signed by defendant, they repliedy no. The Court then rose till Monday at 11 o'clock,

Mokday, Ist December, 1862. (Before his Honor Mr Justice Gresson.) The Court resumed this morning at 11 o'clock. BRKAOa OF AOREESIENT. Coxhead v. Foger.—-This was au action for alleged breach of the following agreement. Mr Wilson ap-', peared on behalf of the plaintift, and Mr Haggitt for defendant. "Memorandum of agreement made on 13th February, 1862, between J.W. Feger on the one part, and F, Coxhead and Mary, Coxhead, his wife, on the other part, whereby the said Frederick' Coxhead, in ' consideration of the ; pay merit hereinafter agreed to be made' to him, doth hereby agree with the said J. AW Feger' as follows: —That each, of the said P. Coxhead and Masy Coxhead shall serve the said J. W. Feger for six niontha'from thel7th March in the conduct and geiieVal management iof the Edinburgh Castle Hotel,, situate at Gayersham, and will obey all the orders oif Ji W» Pegeir, and discharge all the duties required to "be performed by persons emp'dyed as barmen and general managers in similar bouses, and when called upon render a true account of all monies taken in said house in the \ wwsf ?f l?*^?B3* wj| pay" tte wa? to

J. W. Vegcr or such persous a<j he shall Appoint,* and -will conduct themselves, and so manage :-aUI house as to preyeut the necessity of any complaint being made, and conduct the business so that it snail yield tlie greatest amount of. profit. And the said J. W. Peg. r, in. consideration of such service Ix-intr faithfully pa-formed, heivby agrees to pay F. Coxbead at the ivjt<; of ,£isi) por amum. (Signed) '• J. W. Fkser, " PREDK, COXKEAD." The following; were the issues put to the Jury :— Ist. Did theiietl-iKla-.it wr.mgiully dismiss the plan-' tiff* iroin his employ, or did the plain tiff voluntarily have? 2i:d. Is the defendant entit-edio £i 4s c-a account of £8 83 claimed for goods sol i a id uelivertsd: 3rd. What damage Of any) has the plaintiff sustained by the defendant's breach of the agreement ? 4ih. Is the plaintiff indebted to the defendant in; the sum of £19 9s "2d, claimed by way of set-off, or in any other, and whab sum. : Frederick Coxheai, plaintiffin the action deposed : Entered defendant.* employment ou i7th March last, and remained t'll 2nd May. My dutks were to manage the business within d00r.3. Though not agreed fur I never refused to do out-doou work. There were no compla:nts against me during that time. 1 received L9 ou account of salary. Defendant's account for meals against me is not con-jet. It was first turni-heu to me two years ag >, when I told him theu it was incorrect. Nothing iurthertjok place thou. Except fur eight weeks I had no employment after leaving defendant on 2ad May. I received L 2 per week at that time. My expenses for board and lodging self a:id wife were L 2 10s pai- week dvi ing the tiuie 1 was out of employment. Defendant accused me of not putting wine down to some cu.?toraers. On the 2nd May we quarrelled, aad iie discharged me. Imale up the money as usual and off.-red it to Airs Feger, when defendant rushed iuto the kitchen, took it, and ordered me home. Cross-examined by Mr Haggett. : This was about 9 o'clock, much earlier than the usual time for going. He said " go home now, and come in the morning when I will pay you. I have plenty of money which U more than you hive got." He did not say "from the way you are conducting my business you seem anxious to be off, so you can' go." The word? lie did say were " Do I give you L3UO a year to conduct my business this way I" Alluding to the men dancing before the bar, J said " You set fciiem the example in moving the tables, treating and inciting them to dance." I returned next morning and Waited till five in the afternoon. I did not work, but remained in the barroom. A barman asked if I would " turn to," and I replied not till I saw Mr Feger. I sent iv to him, and my messenger came back saying defendant was in bed, and if I returned on Monday I ■would be paid. I expected. then to be paid lor six months. I saw defendant on Monday. He said he was going into town and would be back in aa hour. I waited two hours, then received a verbal message thrit what ho owed me he would place to my account. Defendant on Ist May said he heard I had been gambling, but he made no complaint. I have'played cards with defendant, but not the best part of the day. I never neglected the business to make up a game of four. I played with a hawker on Ist May, and gave him cvedifc for 3s 6d ; but there was no order against giving credit. 1 could not have carried on his business if I had to consult defendant in every such case. It was not my duty t> look after the Taieri coach; if it had, the horses would have been fed, which they were not. I nevuj^ admitted the set-off account, save by paving L3 of it. The amount is monstrous, L22 9s 21; but after entering defendant's employment I consented to liquidate it by monthly instalments of L3, for the sake of peace and quietness. In the draft agreement the word " rations " wa^ inserted, but defendaut objected as it was treating me like a common servant, and it was altered to " board and lodging," which wt-iv, I supposed in the agreement signed. Sir Cantlon and Mrs Solomons give similar evidence as to the dancing at the bar. Tins was the plaintiff's case. Mr Ilaggitfe. for the defence, claimed a nonsuit, as plai-itiff had not proven fulfilment of his part of the agreement. 'Air \Yikon contended that a nonsuit could not be claimed, there being a set oil' for goods sold and delivered. His Honor decided against Mr Haggett, who, after a long expliinntion of the care, called John William Feger. the defendant.—l admit the agreement. The plaintill's wife never offered her services, A cottage belonging to me not being finished till two da., s after plaiiitiff left, she coul-1 not come. She offered her services aft.T plaintiff left. Repeated complaint* have been made to plaintiff about not properly discharging his duty. We hail a "wedding party, and I brought him an or .lor for wine, which he did not eater in the book. I did so.myself, and said, " If this is the way you manage my business you bad better leave, as you &vem to want to do so." I promised to pay Ills wagas in spite of the agreement. He returned tha following day and sent a ii:e>?age to me for money, which I refused to give till Monday morniug. Saw him on Monday, and told him I would settle in an hour or so on my return from town. I was going thero to ask advice ou the matter, and when X returned he was gone. I would not haye received him into my service agiin. (Defendant here entered into t!ie particulars of an account i'-r articles supplied plaintiff two and a half years ago.) In reference to this account plaintiff offered me some firevvoo las part payment. It was worth L 8 83, and I gave him half cash for it on the Jetty. Cross-examined by Mr Wilson : Lent L 2 10s' to plaintiff, which he has not repaid. Never came to my mind till afterwards that the L4 4s paid on tho Jettyj was part of tha account, for LS Bs. But for the agreement would have discharged plaintifl some weeks previously.

By his Honor : Would have dismissed Mm had my solicitor advised me that it would have been legal. Might have given him aaofclier trial, had my solicitor advised it.

Ey Jurymen : Nothing was charged plaintiff for board and lodging. In place of rations L3O per annum was added to the salary. There was also a womau attending on his family. Richard Turnei* was next examined, but his evidence contained nothing new.

Counsel for both sides were then heard, and. his Honor having summed up, the jury retired to return, after an hour's absence, without any verdict. The Foreman stated several difficulties, the chief were whether plaintiff did not himself l>re ik the agreement when he accepted work elsewhere after leaving defendant's j and, if the jury ought to find him entitled to the whole six months wages, deducting1 what he had l'eceived, or return a verdict for a lesser sum, if they thought fit] The first of these his Honor laughed at—asking if a man was to go idle six months, because an agreement had been broken 1 In the other case they were instructed to find for what amount they pleased. A hint was given that unless a -verdict was agreed on soon, they would have to be locked up. The TV<reman said he was very unwell and might easily have gofc a medical certificate which would rxcuse his attendance, yet he had sat on nearly every ca<-'9. His health, would suffer seriously by being locked up. A Juror stated there were nine to three, but there was little chance of agreeing- as private prejudices were at the bottom of it. His Honor: It is very hard, but I have no alternative, unless one or more of you produce a medical certificate that your health will be seriously injured. The jury then .retired again; and twenty minutes having elapsed, his Honor sent for them. The Foreman said they had not agreed. Three jurors held cue. Mr Wilson : My friend and I were going to consent to a verdict, and relieve you. A Juror: But they won't give even the wages. His Honor: The effect of not agreeing will be, that all the expense of the trial will go for nothing. It would be better, if possible, to merge your differences. The Foreman: We have yielded considerably, but they will not meet us. His Honor"; I can't understand the matter at all, or what you mean. I thought when ;rou got over the breach the rest was quite clear. The Foreman : The majority are quite clear on tho subject, and would not have been ten minutes in deciding. Hi 3 Honor : Ib is a great pity, but ssuch is the law ; and I must ask you to retire till you ai*e agreed. . I will go away for a short time, and if you agree before I return, I can be sent for. A Juror: We are no farther forward now than when we came in before. . The jury then retired, and his Honor left the.Court at ssveu o'clock, leaving instructions that he should be sent for when the jury agreed. About half-past eight the jury announced that they had agreed, and about an hour after\Yards flis Honor received the following verdict:-Ist issue—Defend dant did break the agreement. 2nd~Dafendant is entitled to credit of Li 4s. 3rd—Plaintiff is indebted to the defendant in the sum of Ll9 9s, 4th —Damages for plaintiff, L 39 9s.

Tuesday, 2kd December, 1862. (Before life Honor Mr Justice Gresson.) SIGNING A CONTRACT ON A SUNDAY. O'Brien v. Price.—The plaintiff in this case sought to recover £500 damages for breach of contract in defendant refusing to put him in possession of a store ■afteran agreement liad been signed by both parties. Defendant pleaded illegality of the document, it having been written and signed on a-Sunday, and also that the terms had been altered after he signed, it. Mr Barton and Mr Gillies appeared for the plaintiff: Mr South and Mr Ward for the defendant. Michael O'Brien, plaintiff, was sworn,- and deponed : I arrived here on 12th February last, and up to 30th June was employed by merchants in Dnnedin. I asked defendant on that day to Lit me the store mentioned in declaration, lie consented, and an agreement w.ts drawn up by which I wa3 to take the store for two years at an annual rental of £120 and pay a deposit of L5 on account of the agreement. On-, the Ist July I wrote an amended copy of the ment without altering- the ~date. ; I then, went to Melbourne, arriving there on the 15th, when I wrote defendant, saying that I wP£ seudipg gwtto to aM? Ritgon, who livsd witb

him when Heft, and:that he was to store them. I returned on the 2Abh, and found my goods in the stoi-e of J. L. and .0. Burke. I saw Price, and offered him £0 for possession of ihe store, but liSirefused, savin * he wa< not obliged to put up a store for me in that partieu.ar P !a-, n.ultU.-re was plenty *of room at the b:\ct. Je ikver offered me po^e^sion or any other store. _ Another w.t*ui assigned. w.i* tli.it I would not enter into partnership with Wm. Evans. I did not taue another shire; as one elsewhere would not have suited ms. I wrote to J. M'Gee and Co, Melbourio wao were sending mj gl)o .u to stow (hem. Another store couUi have o^n obtained, but the re-.t was too «7?'" } pald H* s tor s*ors^« t0 Messrs Burke and Al Landless. In Mr BurkeY store I hai not the same, opportunities of selling tny gooJ-. I took^hem afcerwan s to Tiiapeka, wh^re I gob as much for them us i could have got"in Dunedin. I had formed a connection with carriers to the divings in the viciiuty oi defendant's store. That I have lost now. Had this action not been going on I would have gone to the -diggings mysdf. / Cross-examined by Mr Ward: Mrs Price1 came nuothe room once or twice when we were talking about the store. Mr Dick was not present. When the alterations were made a-? to size of store, and rent, in the ne'reenunt, defendant was present. This was o;i Ist July, an I I saited for Melbourne the day tcu.owmg. The document was drawn up in presence of James Egan, ami Mr Dick was present with deleiidant wliai it was signed. That was on Tuesday. Mr Dicu read the agreement, and said it was not hi much account. I replied it wa* sufficient, for me, as defendant had. pledged his word. I gave him Lo when the document was siguel I asked him for possession of the store on tlie 25:h August, and he refused, saying it was let. I told him it he did not give mo possession T would enter an fiction. James Hgan deposed to seeing plaintiff write the agreement-.. It was on a week day, in tbe c irly pan of the week.

Michael ICitson deposed : When living with defendant, I received a letter from plaintiff/advising me that some good-s wore a-.-riving by the Gothenburg to my care. The store was not finished then. Before plaintiff arrived, I spoke to defendant about removing the goods into the store, but •he would not allow it' and expressed .himsoli: dissatisfied about the agreement I look the g)ods to 33urice's store. Saw plaintiff ofF^r defendant L5, but it was refused. Cross-examined by Mr South : I am not aware why defendant refused tin money. Do not recollect anything being said abjub a partnership with Mr Evans.

Jaine3 Keenan was next called, but his evidence was unimportant.

Tiiis closed plaintiff's case. John Price, defendant, deposed : I remember plaintiff coming to mo iv reference to a store, it was on a Sunday afternoon when he came to my bedroom. Hi: said he Vv'.is going to Melbourne, h-.d arranged wi'h Mr Evans 1.0 open a store, and asked if I was going to civet one. I said yes; and he asked if I could not let it to hint. I said we were strangers, but would lot it to him and Mr Evans jointly. He a*ked for a note to show Evans that steps had been taken to secure a store.

Mr Gillies here objected, and moved that defendant's evidence be struck out, as Mr South was trying to give a different construction by bringing in the man named lSvans.

His Honor ruled with Mr Gillies,

Examination resumed : Plaintiff came back with a written document and re.id it to n:e.- Tha jltorali'oas wore nob made i:i my presence. Tha signature lam in doubt as t > being mine. Witness gave further evidence at great -length, but it was not of i:aportai.ee.

Archibald Dick, accountant, who took the Scottish fonn t of oath, deposed I reside in defendant's house. On the afternoon of Ist Juue he came and asked me t) real t!ie document produced. There is an alteration in the rent and number ot'feet oi tho building. Thero was no alteration when 1 read it then. Plaintiff was present and paid ho wrote the document. Wiien I had read it defendant said a, principal name was omitted, and he wanted me to witness Uis signature. I refused as it was illegal being the Sabbath day and the document was not dated right. I suggested" thai ft convcl" one should be drawn out and signed on Monday, when the name of the principal party could be inserted. This was agreed to, as also to have duplicate copies. Plainti-f on Sunday offered Lo to defendant, who refused ab first, but ultimately .icceptcl it. I d.d cot see plaintiff till Sunday, 24th August.

Cross-examined by Mr Gillies—The alterations were not in the agreement when I read it first. I did not see defendant sigu it.

By Mr V/ard—On being called to witne?s the document, T said in the presence of both, " This is unlike your signature Mr Price, and I refuse to witness it." He said it wa-s his signature.

Patrick Nolan gave evidence as to plaintiff showing him .the'agreement on a Sunday, and Mro Pries, the next witness, generally corroborated l.«i- husband.

Win. Evans said he knew Mr Price from boyhood. Knew plaintiff, who showed him in Melbourne an agreement about a store, and proposed that they should join in partnership. Witness declined. ' This closed tlie case for the defendant. Council having been heard on both sides, his Honor summed up, and the jury retired.

They returned in twenty minutes with a verdict for plaintiff, damages LI4B -Is.

AN EASILY SETTLED CASE,, Wm. Skimming v. Urodie was next called, but plaintiff not appearing he; was nou-suired. The Court than rose till 10 next morning.