SUPREME COURT.—CIVILSITTING.

Otago Daily Times, Issue 1051, 3 May 1865, Page 4

SUPREME COURT.—CIVILSITTING.

Tuesday, Max 2nd,

(Before His Honor, Mr Justice Richmontl.>

The Court sat at ten o'clock. Compi-icated Dispute as to a Smithy".

Morgan v. Poixock and Another. — {Special Jury.) Mr Barton was for the plaintiff, Patrick Morgan, a working blacksmith and farrier; and Mr Prendergast,. with whom was Mr Wilson, fo? the defendants, Thomas and James Pollock, landlords, of the Gorge Hotel,.Popotunoa The evidence for the plaintiff was continued and concluded.

The short ca3e for the defendants was-aa follows :—After the arrangement between. Mr Teschemaksr and t!*e plaintiff, in. Dunedin, Atkins, manager for Messrs Clapcott, came to Thomas Pollock and proposed that ho should put up a smithy for the plaintiff to work in. Atkins, or the plaintiff suggested that the smithy should be erected on a piece of the GLwernment ground ; b*ut T. Pollock said that it was not likely he could consent to that, and he put up the place) wi±h his own. timber and labor, in the inn yard, the smithy beingso placed that, it the blacksmithing did not succeed, the place could be used as part of the stables. The defendants did this, understanding that the arrangement as to getting the blacksmith was intended for the convenience of the whole neighborhood. For over four months, the plaintiff lived at the cost of the defendants, being allowed to incur sv

debt of £25 to £30; the interval being the one during which there was delay in the arrival of the tools from Dunedin. There were reasons which led Messrs 'Clapcott to resolve that the tools should not be given over to the plaintiff; but the defendants were, of course, anxious that his debt should be paid, to which end the plaintiff's working was a necessity. So Thomas Pollock went with the plaintiff to Atkins, who at first positively refused to give an order for getting the tools from Kedpath's store, 25 miles off, where they had been left en their way from Dunedin. However, Thomas Pollock said that if the order was given to him, he would have the tools fetched, and would be responsible for their not being made away with^ until the value of them had been paid. The plaintiff commenced to work, and continued until March. Then he got into trouble about a horse, and had to go to Invercargill. There was no pretence that the plaintiff stole the horse, but it was very probable that, in the course of disputes, Thomas Pollock suggested such a thing ; and hence, no doubt, the plaintiffs ill-will, and this action. During the plaintiff's absence, Atkins had told Thomas Pollock that the plaintiff was not to be allowed again to use the tools, until he had settled for them. On the evening when the plaintiff returned, Pollock allowed him to read an order from Atkins, to the effect stated ; and the plaintiff said it was all right—he would go next day and sec Ciapcott or Atkins next morning. Thomas Pollock found him in the shed,,and said, " Now you've not been to Atkins, and I tell you, again, that you can't work until you have settled up; you must go out." The plaintiff refused. Thomas Pollock put his hand on the plaintiff's shoulder, and the plaintiff then went out, saying that that was all he wanted, and the defendants should pay for it. Thomas Pollock several times told the plaintiff to take away whatever really belonged to himself; and after being pit out, he had many opportunities of going into the place and taking out what he mig'.it claim as his own. So far as the defendants were concerned, nothing further happened until the plaintiff* brought up a lawyer's letter.

In his cross-examination, Thomas Pollock aaid that he was no party to the agreement between the squatters and the plaintiff; and that he had nothing whatever to do with the matter until he gave Atkins a guarantee as to the tools. lie knew that the signed agreement was to the effect that the tools were to be given to the plaintiff, and that he was to pay for them by .his work for the squatters; but it wa* a fact that Atkins kept the plaintiff out of the tools near six months, and would have kept him out another six, but for his (Pollock's) interference. Decidedly, lie ■did think, that Atkins had not used the plaintiff fairly. He often requested the plaintiff to hand over to him his accounts for work done for squatters, in order that he (Pollock) might see about a settlement for the tools; and if the plaintiff would only have done that, there would have been no dispute, for he (Pollock) could not have had a better man about the house. It might be that the signed agreement said that " moneys received" by the plaintiff should be handed over; but there was an understanding that the accounts were to be handed over also, lie (Pollock) never knew that the plaintifl was keeping the book produced.

Counsel addressed the jury at some length. The Judge said, that however the case might terminate, it could not, to his mind, have a satisfactory insue. He wished particularly to warn the jury to distinguish between the merits of this case, and the possible merits of any proceedings between Morgan and Clapcott and the other parties named. Upon the admitted facts in the case, he should rule as a matter of law, that Morgan was no more than tcnant-at-will of the smithy, under the Pollocks; therefore, the defendants could not have been guilty of breaking and entering, seeing that when they willed that the tenancy should cea?c, the place ceased to be in any way that of the plaintiff. lie had given his best consideration to the agreement, or ■whatever else it was, between the squatters and this unfortunate man — for unfortunate he would be, in losing a good business, whatever might be the result of tlie action. In his (the Judge's) opinion, no property in the tools would vest in or pass to Morgan, until they were, as the agreement called it, " paid for"—that, before they ceased to be the property of ■whoever bought them from Murray, Kerr and Co, there must be a settlement of account as provided for. A wrong might have been done to the plaintiff in the delaying of that settlement, for which ■wrong the plaintiff might have a remedy: but the jury could now only deal with the question, whether there had been such a settlement as he hail mentioned. As to ■the goods which were bought by the plaintiff and left in the smithy, he must tell the jury that taking possession of the smithy, and consequently of the goods in Ihem, without exercising a right o( ownership over these particular things, would pot amount to legal conversion. To make it so, the jury must believe that there was an actual demand of the goods from the Pollocks, or one of them, and a refusal to deliver. He was anxious to prevent further cost in this unfortunate case, and he would therefore ask the jury to do something which might not be necessary to answering the issues—to assess the value, at Popotunoa, of everything they believed was comprised in the invoice from Murray, Kerr, and Co, as distinguished from the value o£ anything purchased with the plaintiffs own money. His Honor further dealt with the quostion of conversion, and the evidence on it. He wps inclined to think, with Thomas Pollock, that the plaintiff had been hardly dealt with by somebody; but he thought he had, so far as he could, assisted the jury in this complicated and vexatious case—as it was, in fact, to all who had anything to do with it. °

The jury, after an absence of about an hour, returned a verdict for the plaintiff damages/ £1 00. In reply to the Judge the Foreman said that the jury had not considered the question whose property •the tools named in the invoice were.

The Court was adjourned.