RESIDENT MAGISTRATE'S COURT.

Otago Witness, Issue 256, 25 October 1856, Page 5

RESIDENT MAGISTRATE'S COURT.

Dunedin, 28th August 1856.

Before Alfred Chetham Strode, Esq., R.M., Charles Logic, Esq., J.P., William Purdie, Esq., J.P., and James Fulton, Esq., J.P. John Jones, merchant, being sworn, stated : — I was one of the attesting witnesses at the signing of the contract now produced. I heard Dr. Williams instruct defendant not to take the mounds up the old track, but to take it along the south side of the hill nearer the Taieri, to use stones in preference to turf where they could be obtained. I heard defendant say it would be impossible for cattle to knock down mounds similar to what was contracted for. Defendant was also to take the best line of road, in order to avoid the swamps. I travelled over the road before the work was completed. I found about two-thirds of them erected. I told the men working for the contractors that they -were not performing the work according to agreement, that they -were taking the mounds across the swamp instead of taking them across the hill. The mounds as erected would now confuse a horseman, and could not approach them on horseback, as his horse would be bogged. There are many places where stone could be got, instead of the turf mounds. The weather, I should suppose, has broken down most of the mounds. They were in my opinion erected in an improper and very slovenly manner, and not according to contract. Cross-examined by Defendant. — I examined the mounds which were down, not those which, were standing. Some of them were down as level as the floor, some of them just half down ; some were down before the whole were completed. Saw no marks of cattle feet about them ; the mounds were big enough ; those that were down had been filled with loose earth. Defendant was instructed to avoid the swamp. It was left to the contractor to take the best line. There was no instruction to take the shortest line When signing the contract, and as a subscriber and a traveller that way, I suggested to the contractors the best line of road. The mounds while standing looked well. After they were partly down the weather would act upon them more. lam a subscriber, but have not paid my subscription. Before paying it I would expect that the work would be performed to the satisfaction of the complainant. I told complainant, before they were finished, that he ought to go and look after them. I informed complainant that they were not made in a proper way, and that they had not taken the proper line. The swamp is about a mile long ; the part where they have taken the wrong line across the swamp is about 100 yards. By taking them round the swamp in the way I proposed would lengthen the line. They looked well at first, and I did not make any complaint then, and I did not say anything to Dr. Williams about putting stones instead of turf mounds. The mounds are high enough, and broad enough in the base, according to contract. By the Court. — I think that mounds put up according to contract would stand for a year or two. After remarking to the workmen, upon the road that the mounds that were erected on the top of the snowy mountains at the swamp were too far up the hill, they have been since removed farther down, or at least some additional ones have been, erected, but not so far as was required, and this position of the road is about 100 yards. On the occasion when I remarked to' the workmen that the mounds were not in the proper place, I was coming to Dunedin, and on the way met complainant going out, as I supposed, to see the work. I told the complainant it is time you were here,' those men are carrying these things on the old line. Hans Strain, settler, being sworn, stated : —I went over the Flagstaff and snowy mountains and examined the work contracted for. I examined the mounds and found them all according to contract. I

went into the hut. It was built of split wood, Tbtara wood; it was 4 feet larger than the specification ; it is not filled up with clay. The mounds which were standing were well put up. The award now produced is the award made by me. The rats have been making holes in the roof of the hut. I examined the mounds ; they were done in a workmanlike manner. In my opinion the mounds which were down were knocked down by cattle. Turf mounds could not be constructed to stand against cattle. Some were flat and some half down. Cattle tracks were upon them. In general there were no stones to be found about where the fallen mounds had been erected. I cannot swear that cattle broke down the mounds. In my opinion they would not fall down of their own accord. Part of the chimney of the hut was down. James Stevenson of Halfway Bush being sworn, stated : — I was asked by defendant to go along with him to examine the mounds over Flagstaff, to see if they were according to contract, of which I had a copy. The report shown to me is the re•port given in by me and Mr. Strain. By the word average, I mean to the best of my judgment. I did not measure all the mounds ; they were built as well as any other men could have built them. The mounds which were down had been built as well as those which were standing. They appear to have been knocked down by cattle ; there was no appearance of their having dipped by the weather. My opinion is that they were done in a workmanlike manner, and better than the specification. I could not see any other way in which they could have been done. On the top of the hill where cattle do not go, the mounds are still standing. lam acquainted with the road across Flagstaff; the mounds are erected on the old line. The line used is the line which has been used heretofore ; there is a swamp on the line, but the mounds leads you round it. It is the best line that could be taken ; the mounds are pretty close. I have been at the hut ; it is built of Totara slabs ; it is built better than trie specification required. No turf could be got there ; it is better than a turf house. I would not do the house for less than three times the contract price. Where the mounds were down no stones could have been got of such a size as could be used. A horse could be taken on the line used. I never took a horse over the line. The hut is as warm as colonial houses ; there are seams in it ; the splits are squared by the axe ; the roof is pretty fair, but the rats are making holes in it ; a little of the chimney is down ; it is made of as good material as could be got, and it is impossible that any of the material procured there could be built to stand. The contract was completed. James Loper, butcher, being sworn, stated : — I often go over Flagstaff and the snowy mountains. The mounds are not on a bad line, but they are not on the best. The hut is not comfortable ; it is built of split wood ; turf would have been warmer. I did not examine the mounds, I merely passed them. I thought from the appearance, of one of the fallen mounds that cattle might have broken it down. I think, by the appearance of those which were standing, that nothing but cattle would knock them down. You can go pretty near all the mounds but one ; the line is not far off the usual line. John Duncan, butcher, being sworn, stated — I am accustomed to go over Flagstaff and the Snowy Mountains on horseback. I follow the mounds lately erected. There are none on the other side which I could not go near. I have not tried them all. I can travel with the horse by the mounds on the new line. The mounds are in a sufcient and correct line to direct travellers over the mountains. I have never taken my horse close to the mounds. I generally take the old track in going over the hill. I have seen the hut ; it seemed pretty comfortable. Ido not think a much better line could be got. I saw mounds down. Cattle-tracks were about one of these. I suppose that the cattle knocked it down. I saw cattle going from it at the time. Samuel Perry, settler, residing at Sawyers' Bay, being sworn, stated — I was engaged by defendant to erect some mounds over Flagstaff. lam acquainted with that sort of work. The work was performed in a workmanlike manner. They could not be done better. • We used the best turf we could get. Defendant instructed me how to build them. The size he mentioned I considered too small to stand, and after one was finished and I took that one down, il made them larger. . One was then put !up at 5 feet, but finding it to be too small, defendant ordered them to be put up at 6 feet, and said perhaps they would give

something extra. The rest were put up at nearly 6 feet. They were all put up with turf round, and well beaten in the centre, and it was impossible they could fall of their own accord. They were built of the best turf that could be got, and in the best manner. I assisted to build the hut. It is built of "splits of cedar nailed to posts, put as close as we could put them. There was a chimney put up of the best clay we could get. Complainant did not make any objection to the line of mounds going through the swamp, but Mr. Jones did so. One was built before this in the swamp, and we took it down and put, I think, three others right round the swamp. Peter Crew at that time was directing us as to the line of road. When the work was finished, Crew went for complainant to see it. Complainant said he could not go out that day. I was present when defendant got £20 as part of the contract price. I think it was after we finished the job. I was present on another occasion when complainant said to defendant that some of the mounds had slipt down. He did not find fault with the work, but said that some one objected to it. The £20 was paid before complainant had been up to see the work. When complainant was up at the hut, he made no objection to its not being furnished according to specification. We built the mounds of stone wherever we could get them. It would have been as easy to build 3 of stone for 2 of turf. Stones, where found, were often so large that they could not be lifted. Francis Long, a settler, residing at Dunedin, being sworn, stated — I was present on one occasion in the Royal Hotel when defendant and complainant had a conversation about the work over Flagstaff. Complainant stated to defendant that some of the mounds were knocked down. It was after the work had been completed. It was after the men returned from the job, and had no more to do. Complainant said lie had been over the mountains, and said that he (defendant) would be settled with. I heard complainant say, " This affair will be settled some way or other." I may have mistaken the words previously used. John Frederick Hamilton, a settler, residing at Dunedin, being sworn, stated — I was present on one occasion when complainant and defendant were at the Royal Hotel. I heard complainant say he was satisfied with what was done, with the exception of some repairs which he wanted Millar to do about the hut. I think it was something which had to be done about the chimney. Defendant wanted money. Complainant said he could not get the money, and could not pay it. Mr. Jones was one of the subscribers, and he had not got the money from him and other subscribers ; consequently, he could not pay the money. This was after the work was finished, and after the parties were appointed to go out to inspect the work. This conversation took place in the evening. Robert Chapman, of Dunedin, Clerk to the Bench, being sworn, stated — I was present in the Court-house, Dunedin, when the matter of a case for breach of contract for erecting guide mounds over Flagstaff and the Snowy Ranges was entered into between Dr. Williams and David Millar, the parties in the present case. The parties nominated Hans Strain, of North-east Valley, settler, and James Stevenson, of Dunedin, settler, as arbiters, and Mr. Strode, Resident Magistrate, as umpire. There was no~* mention made of a deed of arbitration. The parties agreed to abide by the award of the referees or umpire. Cross-examined by complainant. — The reference was entered into in this room. There were other propositions made for arranging the affair, but the reference was entered into subsequently. Mr. Strode entirely concurred in the evidence of the last witness. The case was dismissed with costs.