SUPREME COURT. CIVIL SESSION.

Otago Witness, Issue 658, 9 July 1864, Page 5

SUPREME COURT. CIVIL SESSION.

Monday 4th July. (Before His Honor, Mr Justice Richmond ) FAISK IMPKISONHKNT.

Stewabt v. Mills —(Special Jury).— T hp plaintiff was Wm. Stewart, and the defendant was Wil iam Mills. The action was for damage* for fafce imprisonment; and the defendant, amonest other pleas, pleaded that he had act"d in the discharge of his duty as Sub-Collector of Customs, anH that he h>d not received tbir y days' notice of the intention to bring the action to which he wa« entitled under the Customs Regulation* Act, 1853 The issues were— Did the plaintiff givfi to the defendant the r. qui-ed notice ; did fie defendant caiKtethe arrest of the plaintiff; did the defendant maliciously, and without lva'onable and probable cause, charge the plaintiff with felony ; did the plaintiff, while goods liable to duty wer' being removed from one bonded ■warehouse to anothpr, under the charge "f the defrn 3ant. take therefrom two bottles of brandy and one of ale, feloniously intending to ronvert, the s' me to hi" own use ; is the plaintiff entitled to any and whit damages ; werp the grievances complained of, committed by the defendant, bond fide in the execution of his office of Sub-Oollecto- of Custom«? The plaintiff eWmed 1500 damages. Mr Barton Bnd Mr James Smith w>-re for the plaintiff; and Mr Gillies and Mr James Prendergast were for the defendant. Mr James Smith stated the case for the | plaintiff. Mr Gillies submitted that there wa^ no case. Want of notice under the Customs Act had been pleaded, and that Act provided that no evidence should be given except upon points of which I notice had been given. This was provided by the 218 th section ; and the 217 th provided that no notion should be brought against an officer of tbe Customs for any thing done in the execution or by reason of his office, unless notice wns given one month before delivery of the writ. The decisions on that point were numerous. Mr Barton : So mimrrous, that I am astonished at my friend's objection. Mr Gillies argued that this protection o notice was specially meant to protect those offipers who mi^ht make a mistake in <he course of his duty. Then the 79th section prohibited persons meddling with unCustoraed poods. Mr Bsrton submitted Ibat the objection could not be made at this stage. It was a question partly of law and partly.of fact, whether the defendant was entitled to notice or not. The Judge said it was certainly not yet in evidence that the defendant was an officer of the Customs; but probably that might be admitted. Mr Barton Baid that even supposing h was proved that the defendant whb the chief collector it was a question for the jury to say whether be was, at the time of the giving into cuato y, acting in his official capacity Roberts v Orchard (33, L.J. 65, 0.P.) was very clear on this point The jury must say whether the defendant honestly believed ie the existence of such a set of facts as would, had they existed, have amounted to a justification _ Tbe Judge : That is in accordance with prp lious decisions. You deny his honest, be ief in such a state offsets. Mr Barton: Y.e; and the plaintiff said that whether an officer of the Customs or not, it was impossible the defendant could pretend that he was acting as Bitch, for the cbaree wns not <f removing undutiable goods, but of stealing spiritc. Mr Gillies said that no issue had been taVen as to whether the defendant was an officer of the Castoms ; but issue hid been specially taken upon the not giving notice. The Judge «aid that tha other sido bad not admitted enough to entitle the defendant to notice ; aud there hod been no evidence co warriut h : « holding that the defendant was so entitled. It would probably come out. The case must be proceeded with. William Btewart : I nm the plaintiff. Inm manager for Messrs T Robinson and To, machine m »kers, anl have premises at the corner of Hope street and Walker street. I have a power of attorney. Iwaaage't and sole manager on the 3rd February, when the ereat fire took place. My pri-cipals reside in Melbourne. We have a piece of ground oopotfte Casoer's bond, in addition to tbe corner place; and at the time of the flre I used ifc for storing thrashing machines reaping machines, &n. It is much, below rh" line of the Btreet. There was about L2OOO worth of machinery on the ground at the time of tbe flte. Casper's bond and many other places were consumed. There was a great crowd of people. I occupied myself in going from one of our yardto the other. Our premises were in imminent danger I never gave authority, but a large quantity of coods were brought upon our land. Afterwards when men came to remove the casks, &c, they trampled over the machines, and 1 we t, with a Mr Campbell, 'o move the machines, so as to save them and give more room. This was about two o'clock in the morning, and the fire was still raging. After the goods had been taken away, Campbell and me went to move the mac Dines again. Cimpbell pointed out to me three bottles, just under the wheels of a reaping machine, saving that they had been " planted " He picked them up, and said it would be a- pity to break them, and he handed them to tne, remarking that when we had got the machines right, wh could give the bottleß to the officer in charge, seeing we di>l not know to whom they belonged I had a coat, on and he had not I put one bottle in each outsi je pocket of my coat * and I was putting the othfrinto the inside breast pocket, when the defendant came up. He sail ' What have you g t there ? You've got a bottle." Jsaid, "Yes, I've three." He told me to take them out, and I did. He called out to a constable, "Take this man in custody for -felony" The officer toek me off at once. The defendant bolted without giving me the chance of a word and I did notknowwhohewas. He never asked whether I got the bottlea from Camper's bond. I don't know what was in the bottles. I never opened any of them, and they were rolled in paper. I was taken to the Police Office, in Princes street. I was put into the lookup, and was confined with a man taken up on suspicion of murder- be told me so himself. I was brought before Mr Strode at eleven o'clock. The defendant was there, ,and oould not tell whether I was tbe party concerned or not; but I admitted it.— [The in- ' f?^ 8«"n8 «"n T9T 9 *! ufc in and reßd - Tt w a 8 s 'gned "W. Mills,'' and stated that "William Stewart aid on the Brl February inst, feloniously steal, take, and carry away, two bottles of br» a oy, and pne bottle of afo, of the value of 7s 01 v TUg,

property of some person at present unknown, contrary to the form of the Statute.''] The defendant was examined on his o<tth, and <' r cami.bdl was ex 'mine for me. The ease whs dismissed. I afts* wards wrote a letter to Mi Mills. It was as f Hows :—

'Sir— t'regsing hu-iness engagements have nith-rti pre\eiste-i me from addresvirg you on a painful st bject bu to me one of vital importance

" I lefer to your causing my arrest on my own pro:> rty or rhat in ray charge, on behalf of ru\ employers, ou the night of the great fire in S afford a' d 3op<> stieets, for stealing three bottles, causi.-g therebt a disgra< eful imprisonment, and my sub equent appearance before the P'.'lioe magistrate on the followingm >rning. when I _w..s charged with theft hy you a>d arqnitted Simp c acquittal does not meet this case : my po-ition — co-'imercial and soehl-d-nianris more. You have grossly and wantonly irju eil my finest feelings and reputation hitherto unsullied nn I now beg to demand, not as a favor, but as a rieht, a written apology from you for rb> grievous wrortfc, with full liberty to use it as I may deem fit, in order to regain thac posiiion iv society a* a resp ctable member of it, which feel this grrss outrage h?3 deprived me of Thfa, uo gentl man, no matter what his position nvy be, wnuld refu-e when he found that he had committed an error, and that that error had cist a lasting stigma on the character of a man holding a position of grent trust. " I will not here enter into any controversy as to the merits of the matter— you know them alrea y, but I beg to inform you whom I am.

" For the last seven or eisht years I have been managing agent for the house of Messrs Thos. Robinson and Co., Manufacturers of agricultural Implements. Melbourne, residing during that, time in Geelong and Dunedin. and hitherto have borne an unblemished reputation, which ia too dear to me to allow you, or any one else, to wantonly trample upon. Although not a long resident in JDunedin I could bring hundreds of its first citizens to testify to my position and charaetar.

" Make, therefore, every enquiry you like about my precedents and recent conduct before giving your answer, but an answer in keeping with the terms of my rtquest, I will have, or will at once hnnd the matter over to my solicikr with directions to take such profeedinjrs against you as will not only reinstate me in my former spotless position, but obtain such substantial damages for my false imprisonment, &c, as a jury may seem fit to give.

"In conclusion. I will candidly state that I will be content with an ample npolopryas indicated previously in answer to thin, if sent by nooii on Wednesday, but should this be refused nownti thertime nor money shall be wanting to show you that even persons like yourself, dressed up with a little brief authority, cannot wantonly outrage the fec!'np;s and rights of pr^ite c'tiz^ns withoutbeing beld responsible by the laws for their acts. " I am. Sir, " Your obedient servant. , " Wm. Stewam. *• Walter aud Hope streets, -22nd February, 1864. "To Wiliiam Mills, Ksq , H. M. Customs. Dunedin." I got no answer. I went to a lawyer, and you wrote for me tuis letter :— '• Duneiiin, 2nd March, 1864. "Willinm Mills, Msq., Custom House, Dune<!iu.

•'Sir,— l am instructed by Mr Stewart, the representative of Messrs Thomas ifc.binson and Co, to commence profeodings ngainst you to recver damages for the injury he has sustained through your grnuQilless charge ag!iin<thim nf Btoalinfr bottles of spirits on the night of the five in Stafford street. Mr wtewart, in a letter win h he sent you, gave you the opportunity of apologising in writiuif, and thus affording him tb^ means of refuting hereafter aoy insinuations against his character.

" Before takinp out a writ again t you I again, at his reqiest, offer you the opportunity ot apologising, and for thtt purpose will be in my office at noon tomorrow to see you, sfcou'd you call. After that time my iostruations are to issue a writ.

" I nm Sir, " Your obedient servant, "a E. Barton. In consequence of what happened, I have hud communications with Messrs Kobinson. lam still in their employment. By Mr Gilli. s : the piece of ground was open, and is nearly opposite Ca-per's bond. Casks aud case^, and bi tt'es und crates were there. 1 did not see the goods bi ought there, nor did I see any one taking goods out of the bond. I was too much oc< upied in looking after our property. I was at the other place, packing up books, &c, when the things were put upon the ground. It was between one and two o'clock I think, when first I saw the goods upon, the ground. I cannot say at wliafc time 1 was on the eround before that, time— we were too much confused. I know nothing if "ft>-rs in charge, except that one man whom I have seeu on the, jetty as a Customs House officer, who wa9 standing by the goods. L do not know whether the goorls were, being removed under his instructions -he was not giving any instructions. A man in plain clothes seemed to be giving orders^ as .far as I noticed. 1 did cot recognise the defendant at the time ; but when i saw him in the Polios Court I recognised him as one I had seen on the Jetty. The man I recognised at the time was not present when I was given into custody. I remember that shortly before I spoke to that officer, J was grumbling about people having goods there • and the officer said, " Did nit tbe land belong to the Government." I said " I did not know who it belonged to, but we had leased it " I neve.r askesl what the cases contained ; but I will neither affirm nor deny that the officer said they contained wines and spirits from Casper's bond. It was patent to everybody that there were bottles about, for some of the casks were broken, and F saw that they contained bottles. I don't recollect seeing any broken cases. I swear it was tbe defendant who came up to me and gave me into custody ; and I •am not very sure that he had not taken one of the bottles from my pocket before I knew he waa there. I will swear positively it was not the man you now point out (Penman) who asked me •what I had In my pockets. He might have been near at the time, bnt I do not recollect seeing ,bim at all during the night. There was a man who eaiae down with the policeman and who carried the bottles. I don't know whether ho .signed the charge sheet, or whether Penman was 'the man. The bottles were not two in tbe inside /pockets of mv coat and the third in tny breeches pocket. I swear positively that one bottle was in my ousi:e pocket and oae ia my breast j but I

will not swear whether the third was in my outside pocket or not. I don't think I said I was goinc to put the bottles into a place of safety. Aa far as I recollect, the only words that pas^i betwren us. in adrliiio- to what I ha/estatd, tva- that the d Cendant said, " Where did you get them?" and I f-aid ♦ There, 3 ' pointing to a spot 18!t off where any other goods we> - e At that, time there were cases ami casks scattered through the yaid ; am 1 some of them rema ned there for days, if not for week*. I was eoing to aive up the bottles to anybody in <*har£e there ; we did not like deliberafc'Jy to brea't them. / did not give them to the Custim House officer becau'-e he was not in the yard at the time. H e may or may not have b> en up on the footpath. I h ivfi hf-ard tl at the defendant is an officer of the Customs; but I knew not hiug about him at the tin c he gave me into custody. There was a sh.3rt argument. The Juil«:e said that the evidence was directed to him, a:d not to the jury, on the question whe thr r the defendant was acting as a Custom House ' nicer. There was auother question whether the goods alleged to have been stolen came from the bond or not.

Mr Barton submitted that it would not lie upon the plaintiff t> prove that the g 1 'od9 did not come from the bond ; and hn apprehended tbat. it was for the defendant to show that he had made a charge within the Act.

The Judgo said that supposing the goods came from Casper's bond, and were in charge of a Custom House officer, then the defendant, as such, an officer, had given tbd plaintiff into custody for removing th°.m, the charge being of stealing the goods. Mr Barton would say that this waa outside the officer's duty ; but he (the Judge) was not so sure of it.

Mr Barton : I say it ia a question which the jury must decide.

The Judge was doubtful about it ; and he thought that Arnold and Hammell was in point/ and not the other case quoted. Generally, it was a question of the reasonable belief of the defendant—of his. bona fides; but his attention had been called to the fact that there had been no notice here, and Arnold v. Hammell seemed to settle the point. Mr Barton: In that case theie is a charge within the Act : here, the charge is not so. We oj>en that there had been no fraud upon the Customs. The goods might have come from any one of 20 places that were burned, and did not at all necessarily come from the t-ond. The Judge said it must be put this way. If the defendani could show that the goods were f; om the bond the defendant would say " It does not matter that larceny from the private owner was charged, because the revenue was beinc defrauded at the same time.

Mr Barton : If he wants to protect himself under the Act, he must make a charge that entitles him to the privilege. ' The Judee said the question was, whether it was not for him first to hear thfs evidence pro and con, whether nonce was necessary or not. Without troubliag the jury further, he wvited to know iiow far the position co dd be supported :— that tbe defendant was an officer of the Customs; that the c goods were removed from a bonded store, then on fire ; and that they remained in the custody of au officer of the Customs. Itfwas a perfectly unusual thing for - a Judge to^have to decide qu^tiona of face, but so it was provided, and he saw no way out of the difficulty. He calli-d upon the defendant to prove the faots upon which it was contended that notice was required. Mr Barton : rYe submit that the letters are a sufficient tiotl c.

Mr Gillies offered not to interrupt the plaintiff's case ; and the Judge allowed the evidence to be proceeded with.

Robert M'Knight : I am a police constable. On the night of the great fire in street the defendant called to me and I went up He pointed out the plaintift" and snH he had found him with three bottles concealed in the breast of his coat I asked the defendant to come with me and sign the charge ; mid he r^pfr'd he was so busy he could not go, but he w mid send one of his men. A man came with me »nd carried the bottles. The defendant was standing beside the plaintiff when I went up; I took the plaintiff into custody. By Mr Gillies: I saw the defendant frequently that night. Casper's bond was on fire; a great deal of goods wa' taken out and pushed down the b nk amone^t Stewart's machinery ; and I saw the defendant and other Custom House officers looking after the goods.

He-tx imbed : I think that no goorls were put on this land except what came from Casper's bond— it was the only store fronting Hope -street tbat was burned.

! John Campbell: Fam an engineer, at present residing in Oamarn. I was in i>unediu and assisted the plaintiff on the night of the fire We were going to move a reaping machine, and I observed something conceale t behind the large travelling wheel, a small piece of board baing placed as a screen I kicked away the wood and called to the plaintiff that there was some bottles. I said that it was a pity they should be broken, and that as he had his coat en he had better pocket them ad when we had moved the machine he could give them to the officer in charge. He lifted them, and put one in each outside pocket and the third in bis trreast. While ho had the last one in his hand, a gentleman enme up and said, " What have you got there? You've got a bottle. 1 ' The plaintiff said " Yes, I've three." The gentleman called out, " Constable, take this man iv custody for felony." By Mr Gillies : 1 might have picked up one of the bottles, but I am certain I did not pick up the three. I believe I moved them with m v foot, I waa a stranger in Dnnedin ; and I thought the plaintiff would know who whs in charge. J only know that the goods were brought from the opposite side of the street, and from several places there. Some men were there working who seemed to have authority Mr Gillies submitted that the evidence of the policeman showed that the defendant was an [ officer rf Customs, Bnd that the goods came from Casper's bond. The Judge thought there was hardly enough. Mr Gillies called

William Mills, who said : I am landing surveyon in the Customs at the port of Dunedin. On tbe night of the fire I was acting collector, the collector being off duty, through illness. I was on that night in charge of the goods removed from Casper's bond, which was on fit c; atd looking after other bonds that were in danger. A small portion of Casper's building was allocated for free goods : it was bulk-headed off There were no wines or spirits in the free store that night. The goods were taken out through the •roof of the bond, and we took charge of them as soon as they were put upon the street. We left tfcom on tbe opposite side pf $c street j j»4 wfeen

the path got full, they were rushed down the hollow so frequently. There were many cases of brandy got out, and I think that nea ly all of them were pushed over the bank Miny of the cases were broken. There were two or three offii-ers allotted to look aiter this portion of the plunder. I was not there constantly I believe I saw the plaintiff. I had come from another part ; and f saw a mau siea'thily sloop once, twice, and again, and pick up one bottle and two, and perhaps more. Whilst he was doing that, Casper's stoieman was stand -< trip near ; and in consequence of what T faiJ to him, ho vent down to where the plaintiff was. I followed the storeman, and when I got to the spot, he was getting the bottles disgorged from the plaintiff: one of them was taken' from hia breeches picket, and the other two were taken, from his inside co^t pockets. He waa buttoning his coat, ready to walk qujftly awa», I have nodouht. I don't know whether I gare the plaintiff 'into custody, or whether the storeman did so. I consider the gooils removed from the bond under my care; and I believed these bottles to be part cf what were so removed. When I gave the plaintiff into custody, and when I signed the charge, I was acting a* an officer of the Customs, Had I not beea such an officer, I should have been in bed.

By Mr Barton: I gave the plaintiff into custody for stealing three bottles; he did steal them. Ido not know who were the men who sot the goods frojn Casper's. I will not swear that I saw removed from the bond every package or bottle that was down this bank: I was not in the bond that night I will not swear that Mr Casper had not spirits and ale, in bottles and even in cases, in his free store. Very likely goods were removed from the free store; and 1 haye 1 no doubt that while I was walking round, goods were removed both from the bond and the free store. Tnere wa-i not a great crowd. Carts were coming to and fro aDd being loaded with goodß, and the crowd never prevented the carts being backed in. When the plaintiff stooped very stealthily, he was beside an agricultural machine; I did not see another man with him. A Customs officer waa standing near a pile of goods which was not fir off. 1 don't assume whenever I see a bottle that it belongs to her Majesty. I never caw an agricultural machine turned into a bonded store before, (Laughter.) The 'first instinct naturally was, under the circumstances, that these bottles came from the bonded store. I say that the plaintiff did not put a bottle in his outer pocket. 1 have heard him say that he did. I have luard him say that he holds a responsible position : but I don't know anything about him more than of the man in the moon. I received a letter from the plaintiff. I did not feel called upon to enquire whether the terms of that letter were correct. I may have spoken to John Hartley Jenkinson about the matter. I don't renumber that Jenkinson told me he knew the plaintiff to be a thor- ughly respectable man. I believe that every bottle of spirits down upon the place mentioned was dutiable.

The Judge remarked that he waa satisfied that the siving in charge was for a larceny, and not under the Act.

Cross-examination continued: When I returned to Hope street, I came from a temporary store, to which I had allowed Mr Casper to remove goods. I could n> t stop to make explanations onauch a nieht ; it was enough that I saw the plaintiff very stealthily removing bottles— > not machinery; Edwnrd Casper : I knew the contents of the bond called Casper's at the time of the fire. I had also a free store,' and. there were no ossed brandy in that part.. The goods were removed opposite and to Griffen's.

The Judge was not satisfied that the defendant might not have been acting ratime otitoii. There might be a larceny which was an offence against the revenue, and it was the doty of the Cus'ora House officer to pro-ecute that larceny. Mr Barton ; If it is within his dufy. The Judge said there was a penalty of LIOO for fraudulently removing un-Customed goods; but he presumed the defendant would say that the offence against the Custom House was . merged in the felony ; but that, still; in prosecuting that felony, his motive was toproteot her Majesty's revenue. Mr Barton said that that there was not a par* tide of evidence that the defendant had acted as a Customs officer ; and he argued that the defendant's sworn information completely shut him out from the plea that he was acting as a Cus« tows officer. • i Mr Smith was also heard. Be contended that the Act referred to the prevention of smuggling ; and under it the defendant could not justify what ,be had done, for he had no right to give the plaintiff into custody, the penalty of smuggling being forfeiture, lit misappropriation of gonds that hal been bonded, was a mis emeanor only, and a warrant must be obtained for" the apprehension of an offeaasr. Clearly, in this case, the defendant was to be treated as a private person. The Judge: I am satisfied that this la a case in which notice ought, to have been given. I am sati fied that the act was done dt reason of the office of the defendant— rations offlcH. If a Custom House officer has reasonable ground to think that bonded goods are being stolen, I think he is acting within the scope of his duties in giving the person whom be supposes to be the offender into custody for the larceny. It is quite true that this is not merely an offence under the Customs Act — that that Act is silent about it. The probable interpretation of that silence is, that it waa not considered necessary to make a specific provision on the point; for Her Mbj stj'a revenue would be protected in the same way as the property 'of any subject— by the ordinary remedies for the protection of propf rty from theft. If in the execution of his duty to protect the revenue, he sees what he supposes to be theft, end, believing that he is acting in his undoubted duty, he gives the person whom be supposes to be a thief into custody, it ia plainly an act done as an officer of .Customs. I hold that notice was needed in this case Now as lo the sufficiency of notice through the letters.

Mr Barton : This is a serious matter for the plaintiff. Will your Honor allow the case to go to the Jury, subject to what you have already said. It will bave a second, trial. The Judge: I have no objection to do it,. if the other aide will consent. Mr Gillies : I consider the point bo clear, that I think it would only be a waste of time to so to the Jury. , , ° t The Judge : I cannot say that I have any doubt about it. But it remains for.me to qualify what I hare said, so far as the ,plaintiff v concerned.

Mr Barton; The effect, I fear will be, that a verdict will be enured for (he defendant, an|

thus the plaintiff will bo shut up from ever gettng a verdict on his character. Mr Gillies was heard on the question of insufficiency of notic?, through the letteis. Tho Judge : I can only make a conditional notice out of the letters, and that is not enough. Mr Barton replied. He said it had never entered into the heads of an- body connected with the plaintiff's case, that the defendant had acted under the Customs Act. The Judge was quite clear that the question of the knowledge of the plaintiff of the character in which the defendant acted, had nothing to say to the case. , Mr Barton re-urged that the ease should be allowed to go to the jury. The Judge : I will consent, if the defendant ■will. But if he insists, I cannot refuse to give Mm the benefit, on a point as to which my opinion is clearly in his favor. Mr Gillies said the defendant must ineist on his privilege under thp Act. The Judge : Then there will be a verdict for the defendant ; but that says nothing as to the general issues raised -nothing is decided as to the propriety of the charge made against the plaintiff by the defendant. I proceed upon this ground — that the defendant bona fide believed he was, and that he was actually acting as an officer to the Customs. I decide no more than that he was entitled to notice, which he has not had. Gentlemen of the Jury — I feel it my duty to direct a verdict' for the defendant. That decides nothing of the merits of the case, but simply that the defendant was entitled to notice.

Mr Barton : W ill you allow me to take a nonsuit?

The Judge : The Act says, "the defendant in such action shall receive a verdict." lam sorry, gentlemen of the jury that you should have been called on a case which proves to be for me, and not for you to decide. /

The Foreman (Mr R. B. Martin) : We do not seem to be agreed, your Honor. The Judge : It is purely a matter of law, gentlemen. You have nothing to do with it ; and 1 could not take from you any other verdict than that which I have directed.

The jurors continued conferring. The Judge : It may be a very satisfactory thing for the plaintiff io know that he would have succeeded with some of the jurors, if he could have gone on. That's quite another matter. The jury still hesitated. The Judge : Enter the verdict for the defendant, and let the jury go. The verdict was entered accordingly. A COMPLICATED DISPUTE.

M'Laren v. Morse. — Mr Barton appeared for the plaintiff, Hugh M'Laren; and Messrs Prendergost ani James t'mith for the defendant, Henry Porson Morse. The case is a very complicated one ; and we can only hope that the report of the plaintiff's evidence given below ia something like correct, because he could not be induced to speak loudly, and not one answer out of a Ecore was fairly heard. The issues were— did the plaintiffs supply the materials anil do the work for the defendant, to tbe amount of L3Bl 16s 3 did the plaintiff, in pursuance of a contract stated, proceed to do 200 chains of fencing for the denfendant, at a cost of L 350; did the defendant wrongfully refuse to have that work completed ; did the plaintiff consent) to receive land to the value of L 250, in full satisfaction and discharge of any claims against the defendant ; is the plaintiff entitled to receive any Bum of money with respect to the work and labor done as set forth in the first count, and to recover any damages in respect of the contract set forth in the second, and, if bo, to what amount. The bill of particulars showed Ll3B 4s as still due to the plaintiff.

Mr Barton briefly stated the case.

Hugh M'Laren ; lam the plain tiff, and live on the Pine Hill Boad. In 1860 I agreed to do some fencing, for the defendant. The document banded to me is an account which I furnished of the work done- I gave it in to Mr M'Combe for the defendant's trustees. The defendant afterwards, when I met him, told me f had made s mistake as to the account ; he referred to this same account. He said 1 had made an overcharge of L3O. I agreed to do' 60 chains, but he stopped the work when 23 chains were done. I charged him L3Bl, which was at a lower rate ' than was usual at the time. There was another agreement by which I was to do two hundred chains of fencing at LI 153 a chain. When I had got the posts and rails ready, and bad got pome of it carried forward out of the bush, so that horses could get to them, the defendant told me that he was going to fail, and that it would be better for me to stop. The fencing was', to be on Glenurie. I had it bored ; and when he tcld me this, it was bo prepared that a man could put up, complete, more than a chain a day. I have never been paid anything except what I have given credit tor. The land at Pine Hill, which I got from the defendant was 6 poles short of 9k acres, and not ten acres. I got 7a. 26p. in connection with the agreement for the 200 chains. I don't know whether L3O an acre was a fair price for that land; but it was the price that the defendant himself " put in to the trustees."

By Mr Prendergast : I, or men paid by me, out 1600 posts and 1500 rails. It was to he a topfail fence, and wire was to be used. I believe that I wrote and gave to the defendant the paper now banded to me. I did so early, in October ! 1863 ; but 1 cannot say whether it wa3 before or after the talk about his failingr. I worked a long -while after that talk ; he said that I might not get paid— not that I would not. That was in October or November. Ho did not, after that, at his office, say, " Send in your account, that I may know how much I owe." One Sunday when I called at his house, he told me he should like to have a sketch of how I was getting on, and how the account stood between us. I thought at that time that he was one cf the richest men in Dunedin. What I handed in was only a an account at all. If the 19th, ;^rd> and 27th October are mentioned in the pa t -v er, it is a mistake. The defendant told me that <*t least 200 chains of fencing, certain, should be done; and he did not say one word about hid having the power to stop it when he ; leased. 1 never told any one that I was workng day labor tfnly ; I never told a man named Simpson that I had got land in settlement of my claim against the defendant. It is not likely I should, for we were against one another. I did get a letter from Mr M 'Combe, and I afterwards saw the defendant. I did not tell bim that the letter asked me to send in my account ; it only asked me to come in and see Mm. I did not ask the defendant, " What shall I do?" and be did not reply, "You know you

have no claim against me at all— that you have got a larger dividend, in the land, than any other has had." I got the land in June or July of last year. I often saw Mr Madriock on the matter ; but I did not, as far as I mind, tell him that the land was to be in settlement ol my claim. I lie lieve I have agreed to sell mv claim ; I don't know whether I'm alarmed about haviDg to pay a lons bill of costa. Ihe agreement to sell the claim is in wiiting, and the document is not in my possession or power. I made the agreement in town. It was ia Rattray street; ami in Mr Mac^regor's office. I doa't think I have told anybody about it ; I don't mind to have said that I had sold the claim for L2O. T have had L2O paid to me for it I his was the plaiutifl's ease ; and it being after five o'clock, the Court was adjourned.

Tuesday, July sth

His Honor too:c his seat at tea o'clock,

Henry Porson Worse: I am the defendant The plaintiff did some work for me at (Hen Uiie, in the Waikari distrirt, in anJ before 1861. That was paid for in money ami a half acrs of land in the Pine Hill district. The /and was taken a* worth L3O, and it went as part payment against the itfms referring to 1861, iv the account handed to me. in 1862, I arranged with the plaintiff to do fencing at Ll 15s a chain, payment to be (ake>i in laud at Pine Fill. Iv all, it was contemplated doing 300 or 400 chains, partly at my own freehold lenience, and partly in the paddock called Gfleu Uric. I did not make any agreement with the plaintiff to do 200 chains, at lenst; there was no such stipulation, nor was it expressly said that I had the right to stop tlw work at any time. I had the right, for he knpw that I was simply going on fencing as was convenient. The plaintiff never suggested that he had an agreement to do 200 chains at least, until he sent in in account to my trustees, about February, 18G3, The account I have in my hand was never supplied to me or to my trustees. About the end of October, 1863, I told the plaintiff I was in difficulti-s and could not go on with the fencing ; and I asked him to give me an account of what work he had done, adding that, as he had agreed to take land, the extent necessary to settle his claim for work done should be written off. He agreed to send in an account, and did not say one word rf specting any agreed quantity. He Bent in bis account about the end of October, and this is the document handed to me. Subsequently, he called at my office in Rattray street, and we went into the account, with a view of showing what land would cover his claim. He asrreed to take seven acres or theienbouts, in full settlement of his claim. Subsequently, I told him that I%ad, as agreed, set down the laud upon my statement of assets and liabilities ; I added that I had explained, or would explain, the matter to the trustees, and I thought he would get the land. I did not see him again until he came into Mr M' Combe's office and asked for the conveyance of the land. Mr M'Combe was* accountant to my trustees. Mr M'Combe asked him to render an account, and he did so. On another occasion when he came in, Mr M'Combe showed me the account and asked if it was correct, and Isaidit was not. I refused, so far as I was concerned, to go into the account unless certain overcharges were foregone, and the prices agreed with me were adhered to. Mr M'Conibs poohpoohed the idea of any claim for damages for breach of a contract for 200 chains of fencing. He was told that be would have to take the seven acres aa satisfaction, or have the account disputed altogether, and he tacitly agreed to take it. I remember that on the 24th or 25th September last, the plaintiff called at my house, and said he had received a note from Mr M'Combe, asking him to call upon him. 1 believe that my affairs had then been wound up, and that Mr M'Combe had no engagement with the trustees, He said that he h-td been, and that llr M'Combe asked him whether he would go in for a balance of account against the trustees. He asked whether it would involve me or not. I told him that he had no claim at all. lie asked me what I thought of it ; and I declined giving him any opinion. On the 7ch October, I received a writ from the plaintifi, as agaiast Morse and Orbell ; and on the Bbh, I saw him. He savl something about money matters— that I was well off; and as I was nettled about the writ, 1 said that there was some attempt at swindling going on, for that the claim had bsen settled.

By Mr Barton : I am the real defendant — not a phantasm like the plaintiff. I have a receipt for costs paid — the receipt U in my name. Sir Barton : Did not Mr Driver pay the money, and you get the receipt. Mr Prendergast objected that this wasirrebvant; and the Judge ruled with him.

Cross-examination continued : If the verdict is far the plaintiff, I shall have to pay. I have not an agreement with Mr Driver. Mr Barton : Is it not as well understood between you, as any of the conversations in this case?

The question was objected to, and ruled against. Oross-exauiination continued : The land was worth L3O per half-acre section. Nearly onehaH of the seven acres would go as roads owing to the steepness of the ground, and that portion had not to be paid for by the plaintifl. The subdivision of Glen Uric paddock. would have required 200 chains of fencing and more. 01 course, I expected f> have been able to do it, and I gave the plaintiff to understand that he was certain of having some of it to put up. He has been paid for all he did put up ; and he agreed to settle his account for all the work he had actually done. I do not know that the plaintiff did work lor me after this account had been delivered in October. He did cut a track and haul fencing ; but I cannot speak as to when that was done. My belief is that he did not work after I say there was an agreement to stop.

Henry D. Maidock: I was solicitor for the trustees of Morse and Orbell's estate. I was concerned for all the parties, in the conveyance of land at Bine Hill to the plaintiff; the conveyance being made on the joint instructions of the plaintiff and the defendant. When they were together in my office, I asked what the price to be expressed was ; and the defendant; replied that the sum stated before had been agreed upon as a settlement of accounts between them. Tlmb was the first I had heard of the matter, and I, from it, furnished an explanation to the tru->tees. This is my writing on the back of an account from the plaintiff, "Amount ot compensation for abandonment by Mr Morse of contraot with me." I do not remember the circumstances under which 1 wrote it ; but lam certain it was after the conveyance to the plaintiff, Be-examineii ; I am perfectly certain the

plaintiff said he accepted the land in settlement of all claims.

Water Simpson, settler : J bout 18 month" a?o, I had a conversation with th° plaintiff as to his land at Piie .Hill. I said I had hear.l lie paid L 6} an acre, and that it was a high price ; and he replied that he had paid for if. hy some fencing. I understood him to refer to just the same land as he now occupies ; we were on it at thfl time. I f ont remember any conversation with the plaintiff aa to a claim against the defendant.

Henry Driver : I was a trustee of Morse nnd Orbell's estate. The trustees at first refund to make a conveyance of land to the plaintiff, as they knew nothing of the claim. I saw the plaintiff in the presence of Mr Maddock, an<> I was told that the land was to go in settlement ot old claims, and that the conveyance ought to have been made before the failure.

By Mr Barton : Ido not remember the words used ; but I swear distinctly that I, a 9 a trustee was satisfied that there was a claim and that tdis settlement of it ought to be made. Ido not say tint I was present when L2OO was r«ad out as the price of the land to go in settlement. I did not hear of a claim for compensation for the stop - page of a contract, until months afterwards. I f!o not recollect anything of a meeting of creditors at which Mr Uattriy presided, and a motion by Mr E. B. Cargill was passed, directing the trustees to make a conveyance of this land. There may or may not hp.ve been such a raeetir g and resolution ; but such a resolution had nothing whatever to do with inducing me to sign the conveyance.

Re-examined : All documents relating to meetings, &c., were detained by Mr M'Combe.

James Gleeson : I worked with the defendant in October, 1862, in getting posts and roils. He told me he was to get paid for the work in land. In February, 1863, after I had been up the country, I called upon the plaintiff. We had a conversation, and he told me he had got seven aces and a little more, for his accounts from Morse ; and that he h&] 'bought two acres for money. I asked, what had be got for all the posts and rails in the hush ; and he said he had beenpa'd for all, and that it would be a settlement with Mr Morse when he got his deeds.

By Mr Barton : 1 did not in consequence of a row with the plaintiff as to country, teil a man named M'Garvin, that "before I had done with M'Lareu I would sue him in ." It isn't likely I should say so, for I shouldn't wish any man there, and much less myself thei 2 to see him. I never said anything of the sort. Mr Smith : It's a manifest absurdity that he should say it, seeing that he must be there himself.

Mr Barton : Well, he's seen the plaintiff in the next worst place— in Court. —(Laughter.) Edward Cuddy, clerk in the office of the Registrar of Deeds, produced and proved the registered copy of the conveyance to the plaiutiu", showing that the price of the land was stated at L 250.

Mr Prendergast summed up for the defendant; his contention being tbat the plaintiff was a tool in the hands of others, and the claim simply a trumped-up one.

Mr Barton "replied ; arguing that those circumstances of the case that could not have been invented were corroborative of the plaintiff story. Verdict for the defendant. The Judge certified that the case was a proper one for a Special Jury. This case was thfi last in^ tbe list; and the Court was adjourned at haif-past three o'clock.