ARRIVAL OF THE ESCORT.

Otago Daily Times, Issue 507, 5 August 1863, Page 5

ARRIVAL OF THE ESCORT.

Yesterday afternoon about 3 o'clock, the Escort arrived in- town, having only brought gold from the Dunstan, as the branch escorts from the other diggings had' not arrived at the appointed junction when ifc left. The quantity of gold brought down was 3,272 oz 15 dwt.

SUPREME COURT.—CIVIL SITTING. Monday, August 3. (Before His Honor, Mr Justice' Richmond.) The Court sat afc ten o'clock. The Gseat "Cutting" Case.—Fifth Dat. Djsmpsy v. The Town Board.— (Special Jury.) — Mr Cook, and-Mr-Gillies for the plaintiff; and Mr James Prendergast and Mr Barton for the defendants. This case was resumed. Mi-; Barton moved to enter a nonsuit; but after a long discussion His Honor ruled that the case must proceed. Mr Prendergast opened the case for the defendants. During th*? opening address 3fr Gillies moved for leave to amend the pleadings, by stating an order in writing from Mr Millar for an alteration from the plan. His Honor declined to grant leave. It seemed to him at present that what the Engineer intended to do was not to direct an alteration, but to give instructions for the carrying out of the work—a further definition of what was ia the plan and specification. The amendment would be a perfect surprise to the defendants, and could not be admitted. The following evidence was given :— - Mr Charles Keid, Clark to the Town Board, was clerk before the contract wifch Dempsy was entered into. Mr Millar was engineer to the Town Board on - the- Ist-February,.lß63. _ He had only just arrived in the country, when he entered on bis duties'. He saw Mr Miller make the plan then before him in the ofiice of tbe Town Board, and, he beiieved. also the specification produced. It was the original specification, and wds dated the 9fch February. The Board determined to alter tlie plan of the Cutting-," and to take one foot more off the cap of the hill, opposite Mr Green's building, ou the 13bh February. Several alterations were made by Mr Millar after the Board meeting, which were distinguished from the original drawing by being made in red ink. Ail the contractors who tendered saw tlie plan before it was altered, and put their names clown in a book, as Mr Millar intimated that he proposed making an alteration- of a foot in the depth as soon as the Board agreed to it. The original line was erased after minute on the books of the Town Board of the 13th February, and anew gradient was drawn lower down the plan. He was positive the plaintiff"saw it .before and after it was altered. He believed he was told especially by Mr Millar that such an alteration was proposed, and thafc he should leave his name aad c .11 again. He was sure that the alteration was-to lower and not to raise the gradient line; and believed he was present at all the discussions which ensued on receipt of Air Dempsy's letters. He passed through the . Cuttiiig while the work was going on; bub did not know the number of mea employed. He was also present when Mr Cleve, the plaintiff, and Mr Miliar were together. He did not see Mr Dempsy spit in Millar's fa.cc. Mr Dempsy .asked Mr Millar who was the author of some letter that Mr Millar quoted from, reflecting on Ms character. He .told him he (Millar) did not know the man. He (the witness) lift the party when the dispute began, and did not jiear any choice language. He heard Mr Cleve's voice rather loud. Cross-examined by Mr Gillies—Mr Millar was making the plan from a field book, and from a section of Princes-street in the Town Board Office, left I by Mr Thomson. He thought he was enlarging ifc | from the small, one ia. the' Town Board Office. He Understood the letter from which Mr Millar was qaoting'fro'm was from a high oliicial in Victoria. ' BytheCourt: He believed the page sof the specification nofc being signed was an accidental omission. It was there where the spocifiafcion was signed by the contractor. The specification was in Ms possession until he handed it to Mr Prendergast for the purposes of that action. Mr Walter Sigley, contractor,, examined by Mr Prendorgasfc, said: He had been a contractor fbr fifteen year?, and was at present engaged in contracts for the Provincial Government. In February last he tendered for the Princes-street cutting, and remembered going to the Town Board Office to see the pa,pers, when he-was"told it was intended to tower the cutting, provided Mr Green consented.to ifc. In consequence ofthe alteration he was advised not to take out the quantities until the following Monday. He rsturned on that day, the 16tii February, and took off Ms quantities from the altered drawings. Ho identified the drawing produced as being the one placed before him at that time, and believed the memorandum .ia pencil to have been then oa the drawing. He took memorandums of tbe figures on the drawing, which he still possessed,' and on reference to them he found they ail corresponded bufc one. Tbat one was in the plan 2.19, while he had ifc 2/19. It was the one next Moray-place, The reason why he took 2.29 was that that was the depth, on the cross section. From his memoranda he believed the depths now marked were on the plan at tlie time Contractors generally ret cut their work from pegs put in by the Engineer, who would have to give a peg as a starting point from Moray-place, and another from the corner of Princesstreet and Ratlray-street, which would ba all that wa3 required when once the level was given. These two points were the starting and terminating points of the work. If it-was understood the door-step of any particular place' was to be the level of'the crown of the road,: ifc*would be sufficient. A bench-mark was not requisite. It was solely necessary in the Engineer's department. By the Court: What would you call the door-step of ths Criterion in this case if it were fixed on as the level of the ciown of the roadThe AVitness; The Engineer might call it a benchmark. Examination by Mr Prendergast continued: In addition tb the drawing- and specification, in order to do the work, he should require pe^s to bo put in by the Engineer from time .to time, as the work progressed. At the Iwist of the' road, opposite Mr , Green's for. instance, it would be necessary. If the Contractor were ordered by the Engineer to clo work not in the contract, he ought to know the fact. It the work were set only to take the level down a couple of feetj'he 'mi^lit not know it if the pe<?.s were put in by the Engineer, bufc to be told to '•' take the Uoor step of the Criterion for the crown of the sqad, aud continue the gradient to the other end, he could make no mistake," It was the Engineer's business to define the gradient line. ..- , Cross-examinsd by Mr Cook: Ha wa3 not given

to understand thafc; any part ot the .'road was to be askewat the time the'tenders were called for. j»y the Jury: Thedeepest parfcof the Cutting was given as 7.33. Ths top 'of the formation ot the road and the footpath appeared to be on a level by the plan;'".- By the .specification it .appeared that, the footpath should have a fall of five inches towards the road. , He should not take nine inches below_ Green's floor as a starting point from that specification produced. He should have felt. himself bound to go to the depth on the plan. It was usual to-take figures, when given, ia preference to. measurement by the scale. He never saw the plan then put into his hands at the tims the work .wa'3 tendered for. He should nofc consider the red lines on ths plan as a fair illustration of tbe original drawing. They must have been put on for a different purpose. By the Court;: It constantly occurred that adjust ments of the work. were.. necessary-jin carrying out contracts. If it was taken down.deeper at Green's building, according to that plan, -the contraator was entitled to be paid for the alteration. - - •-••-. * • "By the Jury: If in carrying out the work the figures on the plan had been marked 6.35 instead of 7°QB he should nave claimed for the extra depth of cutting.. '•'■•'-■ Pearcj: I have been a contractor for the last 23 years. 1 was one of the tenderers for the Princes street Cutting. I was aware thafc an altera-

tion was made m tlie original plan and specification, un these small cross-sections tlie crown of iheroai is shown level with the footpaths. > here was, according to the specification to be a fail of iin. to the ioot in the pavement. According to the original plan, the crown ofthe road was to be 9in. bjlow Green s floor. When altered it was sunV another loot, and Mr Millar told me such was to be the ef se- 1 see a ysiiow line, which I understand to be the floor line oi the Crite ion, and that level is continued beyond Green's buildings. The line from Green's buildings is carried ri^iit on to the- Criterion noor. I say that, from my knowledge of drawings, nofc from wnafc I have been told. I sse figures r•presenting the depth of cutting. I saw such a difference in the level of the two sides of ths street; and as tne depth is given in the centre, and I saw tli.^t the work wa-; so lopsided, I scaled out the quantities oi cutting ior myself. curing the progress of the worxs—a fortnight after they were commenced— I remember, ia passing, saving to Dempsy, " You are not; going low enough by"2ffc." Ho replied, " I know that, but I'm only taking off the rough of ifc." A. contractor makes no usa of a bench mark in carrying out works. I have been doing work for the Board m George street. 1 hava never used a bench mark there, and I cannofc say whether there i 3 one on the plan, if my tender for thi* work had been accepted, I should have found ample information on the plan. I don't think a boy who had been two years at work could fail to do the work according to this plan. Of course, I take the yellow line to represent the level of tho Criterion floor. If I had any doubt, I should have proved ifc by taking the height above the street as already formed. i'Ues. third clause in the specification as to re!aji„. v flagging refers to the height of | thei'ootvu. only, not to the centre of the road. In carrying as., he contract I. should have left the footpath.lft. 9in..abqyo';the .channelling, or about that. The centre of the road is nevt-r subordinated to the level of a footpath, but vice.versa. I should have made the road to plan, aud lefo the footpath 9in. below Green's floor. By the original drawing and speciication, ths crown of .the road was to be 9in. below Green's floor. According to them, I should not have required enlarged cross sections. I consider the clause as to Green's footpath to be exceptional, and as not influencing the general execution of the work • that flagging would have been excaptionably high as compared with the crown of the road. I remember our contract for excavation with Mr Roberts, i the landlord of Syms and Asher, Afc that time, Dempsy's men were working afc the footpath on the same ride. Our work did not interfere with them iv the least. I promised to repair any damage, but Dempsy never, complained of our doing any. I was in the Cutting every day during Dempsy's contract. I think tliat he would hays completed the formation of tlie road within the contract time. Ido nofc know what he wa3 doing as to metal aad kerbing. I considered hs was using due diligence as to the mere work of cutting. By Mr Gillies : I don't remember the amount of our own contract. I see nuw from the tender that the amount was L 1579 against Dernnsy's L 1155. We made the lOfi. excavation opposite Green's; and I swear tbat wo went 9in. below the floor. Ifc was done for Mr Green himself. We also continued tbat width and level, for Mr Farley. This side note was put into the specification after notice had been given to the tenderers. I don't say that Green's flagging wa* Din belo*.v the floor, bub we excavated to that depth. It was presumed that the 10ft excavation was down to the 'intended level of the street. I see nothing on the cross-section representing that level, with which the contractor had nothing to do,.but only the level to whioh the contractor had to go. The cross section does not show ■that any earth was to be removed under the flagging. The line of the crown of the road on;the longitudinal plan, shows by scale, that the crown of the road, is to be.9in. below Green's floor.' The plan shows the surface of the formation to be about 2ffc. Gin. below the floor. The plan shows 7.38 of cutting; the cross section shows the same depth to the top of the metal. We got the completion of the contract after it was taken from Dempsy, We never had the least difficulty in getting pegs, or anything else we wanted from Mr Millar. We never had a bench-mark nor wanted oni from him. I think wo had an order 'from Mr'Miliar to cart across the formation from Syms and * sher's'place. ■I should think JJempsy hid then completed the formation of the roadway tliere, because he wa3 working afc the footpath at the time, but Ido not remembei that it was so. I did not superintend our work there. I thought our carting was likely to injure the formation; aud I offered to make good any damage. I conclude that the yellow line on the plan, indicates the floor line of Green's, becausj ifc is tbe rule to take the flcor line aud not the base course—the floor is tlie most important part of the budding, or is so considered in making city improvements. I have been a contractor. 23years—ten in. Victoria and before ..then in Jersey, where my father was a contractor before me. When I tendered I did not understand, that the road was to bs skewed as ifc now is. Ido not know whether the centre of the road is now, at auy point, level with the Criterion ttep. Aquila Pearce : I am brother of thelkst witness, »nd foreman of works. . I superintended the work at A-dier and Syms's. Craven had then four men doing very little work, and one man shepherding the formation with a pickaxe in his hand. All that was to be done there conld have been done by four mm in three hours. Our carts backed in over about 30ffc of the formation. The weather was dry, and we did nob do any damage. I frequently, about this time, spoke to Craven. I remember soying to him that he had a jolly-billet—quite a sinecure —(Laughter). We were five or six days on Asher and Syms's work, anl ifc was in the early part of April. The man with the pickaxe went after two or-three days. He kept mea off the formation, but allowed women and girls to go over it. Their feet could not do damage. Dempsy's carts employed oa work for Drake were j constantly crossing the formation. I know that the I contract work was two or three times stopped—that | the men had their tools stacked, and would not go oa until they got their wages. This was before our contrnct with Asher. I think the firsfc strike was about the third week after Dempsy began. By Mr Cook: Several of the men told me they had struck for wages. I swear thafc foi"several days there wei'e only four men and the one with the pickaxe on the ground. If any one was to stats that there were 17 men employed daring the first week in April, or even 13, it would not be true. I swear that on four oub ofthe five working days'of that week (Good Friday being in the weskj there were only the five men there.

Wm Asher: I carry on business on the east side of the Cutting. 20ft on the B itfcray- street side of Graen's buildings.' I remember that, during the progress of Mr Dempsy's contract, soil was left opposite our premises for nearly a week—they sail ifc was sand. There was sand in it, but ifc was a very bad sample as a whole. Mr Dempsy offered to do the excavation for ns, or our landlord, but the landlord could not agree with him. WhenPearce and Packham began the work, Dempsy pub up posts and ropes to keep their drays 1 torn passing over the formation. Dempsy's carts for private work pa?sdd over it constantly. The drays for our work did nofc interfere with Dempsy's men. For ,the first ten days or a fortnight, he had 39 or 40 men afc: work, but for the greatest length of time therewwyeeye only eight or a dozen.yOn wet days, there was only one man, to guard the formation. About the time when the formation was being finished, only four to six men were employed.

John Gordon Diack: For nine months preceding the 20th February last, I was employed by the Town Board. During that time Dempsy had contracts for metalling Rattray-streeb and Maclaggan-street. I. measured all the metal; it was at different quarries in Maclaggan-street, and I gave certificates for ifc all. Aferwards I Tent with Mr Duthie to see some 'mefc.il. Duthie asked me to measure four heaps for which I had previously certified. This was several weeks after VU- Millar was engaged. I went because Mr Millar sent ;me a memorandum, stating that Deiup&y wanted metal measured, and he was anxious to know whether I had bet"are measured' any of it. I struck these four heaps out of a list sent by MiMillar. ■-.-.'■

By Mr Gillies : It was 3in. metal. One of the four heaps was oh the road, another was in a gully lower down the street, and two wers in a quarry wh- re Ganongate dips clown to'the; gully. _ I don't know how lons-it was between my measuring them and^my going at Mr Millar's request. I had left the Board's service a considerable time before I eot the request. I knew the stone again, because no more had been broken about those neighborhoods. Robert Duthie: Mr Diack went to Maclagganstreat, to slnw me the metal belonging to Dempsy. I went by Mr Millar's orders, and had a memorandum from him. The four heaps were afterwards spread in Maclaggan-street by the Board's men. Dempsy did not take much nobice of what I said about the metal, and Mr Millar gave me a note for him. Mr Dempsy brought the police to stop me fromcarting the metal, but the Board ordered me to go on. By Mr Gillies : I do not know whether Dempsy had then been paid for this metal. I was sure ifc had been measured. I don't know whether it has yet been paid for. By Mr Barton: I don't know whether ifc has been paid for twice o?er. (Laughter.) At half-past four there was an adjournment until seven o'clock, when the sitting was resumed. ■'John Roberts:"..l am a mechanical engineer, and with my sons I own the premises occupied by Assher and Syms in the Cutting, I remember thafc Dempsey gotcn well with his contract for a fortnight, but nofc afterwards. When he badcufc about half the road through, he offcrel, if I would give him ray excavation, and the alteration oi the building, to clear away

the stuff so as to get the place open three weeks before anybody else. I did not contract with him, and lie took away the st.uif for everybody eke before me, so that the place was the last opened by a fortnight. I wrote a letter to Mr Millar on the subject of how I was being treated. I stated that our tenants were being quite intercepted by the stuff lei"?, iv ths way. The shop was deserted, far customers could not gfifc to it. Assher and'Syms'are general grocers. The stuff was mere mullock—a mixture of sand, cement, clay and soft stone. I spoke to Mr Craven, who promised to remove it; but afc that time there were only lour men shepherding the claim— (laughter)— merely humbugging* I never saw 40 or 50 men there, and I was on the ground every day. I tniuk eight or ten men were the average after the first fortnight. Dempsey had a contract for Drake. Indeed he didn't shepherd that. He gotf it down finely, arid nearly knocked Taylor's house down.—(A laugh.)

James Lonnie :lam a contractor. My firm had permission to store asphalte bshind the Town Board Oflice, and had possession for 12 montlis. Dempsy had to throw spoil there. He'had a drain covered with wood. We got notice about the beginning of March to remove the asphalte, and began to do so as quickly as possible. We found Dempsy was covering the drain, and to prevent liim covering our asphalte, we commenced removing the timber from tao drain, thinking that would be a barrier, as he could nob choke the drain. Mr Millar desired rae to leave tha timber, and ordered Dempsy's men to tip the spoil further out into tne Bay until we could remove the asphalte. We did remove it as soon as possible and we left tbe timber, as Mr Miliar guaranteed us payment for it. I frequently saw the men at work ia the Cutting but did nofc pay much attention to them.

Charles G. Millar : I am son of the City Engineer and an assistant in his office. I had the out-door management of works during the contract About the 27th or 28fch February, before I was employed by the Board, Dempsy asked mo for a tracing of the contract plan, saying he., would pay me for ifc. I had it completed by the night of the 28th. I entered the Board's service on the Ist March. On the 2ad, Dempsy spoke to me, and the same day he got the tracing. My father would nofc allow me to take payment, and told me to get back the tracing, which* I did. He had had it nearly a whole afternoon. On the day afterwards, Dsmpsy, in the street, and beforemy father, said that he supposed I was afraid to trust him, bufc he would pay anything I pleased. My father said, " Dempsy, I'il not allow any one in my office to take payment for a copy of a drawing—l'll present you with a tracing" Mr Ballwia was set to do it, aad finished ifc in two days. Baldwin left the office at the end of the firsfc week in March. I believe the tracing was given to Dempsy before Baldwin left, bat I am not positive. I do nofc believe that the tracing produced was made by Baldwin. He put a star in the corner, printed in the "name, "Millar. City Engineer," ia a sort of italic. This tracing bears what purports to b2 a cony of the signature of Mr Millar. It is nofc a copy from the signature on the original plan—ifc does nob fall in the same place. I swear that upon Baldwin's tracing there was not a copy of the signature ; for I noticed the printing and said to him, " You'il get intoji row for not tracing the signature." Baldwin was not a very good draughtsman. I swear positively that Baldwin put a star on his tracing; I saw it. There is no star on the one produced. I have worked from plans as a contractor. I have worked from plans without a datum point or bench mark on them, as iv this case. I found no difficulty. Onthe 3rd or"4th March, I went with Mr Millar to put in pegs in the Cutting: thej were fixed for the crown of the. road to be level with the Criterion door step. I remember Dempsy having an appointment with Mr Millar, about pegs, one morning about halfpast-six". . Craven came but not Dempsy. We had to send a man for pegs, there being none on the ground. Dempsy came afterwards and said thafc pegs had been stolen from opposite Green's buildings. The pegs were put to the same levels as the former ones. On the 9th March we went again early to put in more pegs. Dempsy came late, ancl Mr Millar said "You're a pretty scamp, coming this time, when I and,this little man have been here for a long time." Dempsy used obscene language, and got into a great pass on, t-.ni I think we did not put down any pescs that morning. There were no ranging rods on the ground, and we had attempted to use crowbars. I rem jmber Dempsy saying that he did'notwant pegs— thafc he would rather take off the rough tir^t and then work to pegs. On the 21st March the level pegs were checked and found correct, and Dempsy and Craven were insolent, saying that we were retarding the works by taking men to dig holes. I remember when Mr Keys spoke to Mr Millar, during the early stage of the work, about giving him the new level for his house. When it was done for him, I held the staff at the Criterion door step till'MiMillar got a sight,/and I afterwards went with the staff to another point I remember Mr Millar telling Mr Keys thafc he could only give him the level approximately, because he could not get a sight of the staff from the instrument, and he could nofc take a fresh plant. It was quite a rough aftair, done to oblige him. There was no change of levels after that. I remember a conversation as to levels with Craven. It was when he was going back on his work. I said ifc was a pity he did not take it off at first, and Craven said, "Oh, yes. I knew I was not deep! enough bufc Dempsy would not let me go deeper." I looked after the spoil from the Catting. Dempsy was never left without a place to tip it. Lonnie lost no time in removing his asphalte, ancl then, there was plenty of space for tipping, until the spoil was wanted elsewhere. We wanted it in Stuart-street, but could nofc gefc ifc, and have not got it yet. It was wanted for.fiUing in footpaths from Oumberlaudstreefc, up. The foreman in Stuarfc-street complained three or four times that spoil was being tent into George-street, and that he and his men were bein.-- kept standing file. I watched the whole of one afternoon, by Mr Millar's orders, and saw that four out of five of all the loads of spoil were sent; to Ddmpsy's private job in George-street, and the fifth only to Stuart-streefc. I know Dr Hulme's culvert in Moray. Place. That was not the only part of Moray Place in which the spoil could be tipped. Dempsy had plenty of room away from the culverfc. The Board's ofiice3 are 18 chains from the Cutting; this end of Stuart-streefc is about the same; and to the culvert in Moray Place is 10 or 12 chains. I take the middle of the work in these calculations. Dempsy g.t on very rapidly for the first ten days; and then his progress became beautifully less. Onthe 27th March, which was a very fine day—l remember 1 was wearing buckskin hoots—Mr Millar sent rae to see how many men were at work. I counted seven. The previous day had been fine. When I reported this, Mr Millar wiote to Dempsy requiring that twenty more men should be put on. During the evening, Craven told me that the letter was nofc correct, for there were ten men employed. I told him I could only see seven. It is not true that the 27th was a wet day, and that the men were simply employe I letting off water. They were at work near Dowling-street east. On the next day, five additional men aad two drays were put on. .1 entered all these thinas in a diary, which I have no objection to show to His Honor.

The Judge: Thank you: I've no wish to see it.— (A. laugh.) .y .. Examination continued: After the first ten days, Dempsy did not get on at all properly with the work..-.'.-,-..

By Mr Gillies : The tracing I made lay about tbe office for a long time. It was good enough for Dempsy. I believe the tracing produced was not made ia the City Engineer's office. I ground that belief on the other belief that Dempsy gofc Baldwin's and that I never saw this one in the office. I served my time with my father, I have been, a contractor under the Public Works Department in Victoria. I know that Ihavesten plans from that department without a datum point or bench mark on them. If I had to lay out the work from the original plan, I would chain up from Rattray street to the phc3 where the cutting begins, and put in a boring peg there. I should sink holes and so could go on right up the centre of the road, before I began to cub at all. I should not have put:boring pegs in big holes, but: should have found about tlie .average depth.': I could carry out my gradient from such a . beginning. Suppose I did ..begin 2in. out, I should not get out more as I went on; I should carry fije y2in. ' right through. I distinctly remember that on the 27ih Maich Craven counted ten names from his time-book. lam most positive there were not twelve men at work in the Cutting on that day. I walked to and fro between the Cutting and the Octagon during the afternoon, when I say that four out of every live loads of spoil from the contract work were sent to the right-of-way in George-street. I cannot tell whether the quantity tipped tliere agrees with that excavated privately tor Drake. I do not know the quantity of either. On the 27th March, the excavation would be about three fourths done. I don't know whether Mr Logan's retaining wall was fit for the tipping of spoil on the 19th March. I cannot now state what the reason was for altering the place of tipping between the 19th and the 24th; nor do I know why the order was that on the 25th and 26th all should go to Morayplace, and afterwards to somewhere else. Ido not baiieve that there could have been a mistake of 2ft. in the level as given to Mr. Keys. The cross section produced was made in the City Engineer's Office, and was finished on the day of the Anniversary of the Province (23rd March). It was began I know within four days of thafc time. This was the first enlarged cross section made. It is dated the 9th February; many engineers adopt the rule of dating their plans as on the contract day, although they are not made on that day. The section was made on the datum that the pavement was to be nofc more than 9in, below Green's floor. She se«tiou wa3 made lrom

the brains of the mm that designed it, I suppose, not from the small cross section on the original pan. Richard Henry Brown : I am an assistant in the C.ty Engineer's Oflice. I remenib;r bang sent to watch where the spoil from the cutting was being taken. I watched one dray pmticu arly, as it was b-Jing loaded. I went on to the Octagon and saw tho dray taken down a right-of-way from Stuart-street— a right of-way from Stuart-streefc to George-street. I went and reported what I had seen. John Mi!la>: lam a civil engineer, and have been 30 from my boyhood, I left College in 1825, and immediately went as a pupil to Thomas Hopper. I had charge, under him, of what was called the Paddington Estate, and known as the Bishop's property I was surveyor of ifc and had charge ofthe footpaths. I had special charge of the publb; w rks of the town of I practised in Great Britain and 'reland till 1355, and was well known as a consulting engineer. I was consulted by the Government. I was consulting engineer to Sir Benjamin Hawes, alter Lord Llanover, Minister of the Boar lof Works, during tha whole time he was in office, l came to ths colonies in 1850, and commenced duty as City Engineer here on the Ist February last, i lie contract plan in this cas- was completed on the 9th. February. The specification is dated 7th February. The plan and specification originally provided tor the crown of the road to be Ift 6m below Green's ffjor. The yellow horizontal lines represent floors ; they are the only lines required or used in city improvements affecting the level of streets. The base cour.-e of a bu lding is never shown on such a plan. In consequence of a resolution of the Board to lower the road another foot, I, on the 13th February, in the presence of Dempsy, at the Town Board Office, scratched from the plan the original black line for a certain dis vmice, and roughly sketched a new one. All the tenderers, and Demp-y in particular, was. anxious to know what number of yards of excavating would be added by the extra foot; and I told him off hand that ifc would be between 400 and 5' 0 yards-not more than 500. I remember particularly working atthe alterations on the,l4th February, I had previously written a memorandum on the plan that tenderers were especially requested to-note the alterations that would be found on the plan, on Monday, the 16th. The depths of cutting wire originally mrel, but were altered to black, to show the alterations. The transverse sections did not require this, for they were oaly in pencil at firsfc. The scale was so diminutive thai I did not indicate that Green's pathway was to be left higher than the other; it is the custom to make large drawings of anything difficult of illustration. It is absurd to say that the clause as to u-reen s floor m the specification, was a general bench mark for the whole work. I made Dempsy read every word ofthe specifi nation before he signed iton the 25 th, Before this, in the Town Board office, Dempsy tra ed a portion of the longitudinal plan and the cross section, on paper wliich I gave him. On the 26th, the day after the signing of the contract, I told Dempsy that the Criterion was one limit of bis work On the first day I was out levelling (the 4th March), I had a plan with me which I afterwards gave to Mr Dempsy, as he asked me to do. [The plan was called for, but i ot produced. Mr Gillies said notice to produce was only given after the plaintiff had been examined, and he never saw the plan.

After a discussion it was agreed to allow the examination to proceed ; Mr Gillies being allowed hereafte ■ to recal such witnesses as he please I], I produce the rough draft of it. It is what is called a " pegging plan." On it there are the letters '•B M meaning bench mark, at the point "Criterion Hotel."

Mr Gillies protested against such a surprise as this. It wenfcto the very root of the matter. Mr Barton was heard in support of the admissibiliy of the copy plan. The Judge asked whether there was any limit to surprises inevidence. Parties were very often very much surprised at cases as made.

Mr Gillies said there was a limit. But he was not surprised at this attempt on the part of MiMillar. '

Mr Barton: And I'm sure we're not surprised that Dempsy sbould deny receiving the plan. The Judge said that it was now time to adjourn ; and he would reserve his decision upon the point until the morning, ' . ■ The Court adjourned at a quarter after ten o'clock.