SUPREME COURT.—CIVIL SESSION. Friday, December 13th.

Otago Witness, Issue 838, 20 December 1867, Page 5

SUPREME COURT. —CIVIL SESSION. Friday, December 13th.

Before His Honor, Mr Justice, Chapman.) action for money lent— a mining partnership. Simpson v. Fuller and Others. — The plaintiff was William Lawrence Simpson ; and the defendants on the record were William Fuller, Richard Creeth, George Francis Bullen, and ■Joseph Faren ; but the action was not -against Faren, as he had not been served. Mr James Macassey appeared for the plaintiff ; Mr James Smith was for the defendants Bullen and Creeth ; and Mr Henry Ho worth appeared for Fuller. The action was to recover L2OG, money advanced ; and the three defendants who had been served, pleaded a general denial of all the material allegations. Mr Macassey stated the case. He said that some time ago, an action was commenced against Fuller alone ; but upon an affidavit that the liability was a joint one, upon the partners in the Golden Gate Water-Race Company, that action was abandoned, and it was determined to raise the question, whether it was not fairly a liability upon the Company. Mr Fuller did not deny his joint- liability ; and upon his evidence, the plaintiff now mainly relied. William Fuller, commission agent : I am one of the defendants, and I know two of my co-defendants, Bullen and Creeth. We have been and are in partnership, under the style of the GoldenGate Water-Race Company. The office of the concern is at Mr Creeth's, Temple Chambers, Dunedin. The race terminates at Blacks, No. 1. I know the plaintiff, who lives at Blacks, and is Warden for the district. I went to Blacks, at the end of November or the beginning of December last year, to take' the management, and I had it about four months. By Mr Smith : The arrangement be•tween myself and co-partners was in wilting. Examination continued : I produce the writing. Mr Snrith claimed to have the document read; s and there was some argument. Examination continued : There was a flume or suspension aqueduct to be put up"; and I went to do that. There was a sum of LSOO advanced by one of the partners. I went on the works, and had a great number of men on. 1 got several small sums from Mr Creeth, who was the holder of the LSOO. The sums were to pay wages, but were not sufficient. I ■wrote to Mr Creeth, in December, and I got an answer. I have not his letter here, but I think I have it at home. I had not the means to pay the 1 wages of the men. I had at one time, 40 men, I think, on the work. I applied to the plaintiff, in February, this year, to advance me money. It wa3 en the 23rd February, and I borrowed LIOO from Mm. I explained to him that I wanted it for wages — that the men were surrounding me continually for what was due, and that I had not the money to pay them. I gave him at the time the two months' bill now handed to me. I applied the XIOO, every penny of it, in paying wages and necessary expenses. While that bill was running, on the 16th March, I got L 52 more from the plaintiff. It was all applied to my own expenses and wages. I repaid that sum out of funds of the Company that came into my hands — funds derived from the sale of water. I got a third advance, of LIOO, from the plaintiff, on the 15th April. It was all applied to the works, and my own expenses. I did not repay either of the sums of LIOO ; and Ido not know tkat anything was ever paid on account of ■either of ' them. After the works were finished, we had a meeting, at which ac■covmts of all the expenses were produced. Mr Creeth got them ; and those handed to me are the same. The accounts show L 453 of expenditure, and that I received about L 123 from Mr Creeth. The accounts were produced to Mr Creeth and Mr Bullen, at Creeth's office, Temple Chambers, Dunedin. I think the meeting was in April, before either of the bills became due. We went through the accounts now produced, I producing all the receipts. There was then a dispute between us as io charging me with expenses consequent upon a breakdown of the aqueduct. Mr Bullen said that I should he charged with the cost of the re-erection. I spoke of the debts to the plaintiff. Mr Bullen said that he would not find more money, and that Mr Creeth and myself would have to pay it. There was warm disputing ; but as to the plaintiff, Mr Bullen said, " No doubt, the man should get his money, but I won't find any more." I don't remember anything Mr Creeth said on the subject then. 1 had had several conversations previously, but after the completion of tlie works, with Mr Creeth. He never questioned the loans, but he always shirked the .matter until Mr Bullen came «down. After the meeting, I several

times, in Dunedin and at Blacks, asked Creeth, " What's to be done about Simpson's money?" He said, "I don't know : Pve no money." At Blacks, I said, " I suppose we must see Mr Simpson 1" He replied, " I don't care to see him ; you've had to do with that." On this occasion, when Creeth came to Blacks from Queenstown, I told him that I had sold water in ■ advance and had appropriated the money to taking up the L 52 bill of the plaintiffs. He acquiesced, and I said, ' ' Now, how about the other bills 1 Wo must see Simpson." It Avas then he said he did not care to see Simpson ; but on another occasion, he said, "Simpson must wait : there are small accounts, that must be paid before his. " I made the plaintiff aware of the terms of the writing before mentioned ; but the plaintiff knew, previously, that I was a partner, for Creeth and myself had gone together to buy the race. By Mr Smith : I think it was not more tban a day or two after I took up the L 52 bill, that I told Creeth I had done it, and how I <rot the money. Mr Smith said that he had asked Mr Creeth whether he replied to the comma- 1 nication as to the L 52; and he learned that Mr Creeth did not reply to it, in any sense of repudiation. That being so, he (Mr Smith) was not prepared to contest the case further, so far as Mr Creeth was concerned. The document produced by Mr Fuller was read, as follows :—: — Dunedin, 13th November, 15(56. Mr Joseph Faren, Mr G. P. Bullen, Mr William Fuller. Gentlemen — Having purchased the Golden Gate Water Race, with plant and utensils, for the sum of LSOO. I hereby undertake to divide the said property in four equal shares, one-fonrth to be h<-ld by each of you, namely — Joseph. Faren, oue-fourth ; George P. Bullen, one-fourth ; William Fuller, onefourth ; and the other fourth retained by myself, on the following conditions, namely — Mr Faren to pay down LSOO for the cost of the race, and Mr G. F. Bullen to pay in a like sum of LSOO (if required), for the completion of the fluming and race, the said sums to be a debit against the property, and to be repaid out of the first returns from the race and claims. Mr William Fuller to devobe his time to superintending the construction of the fluming and race across the Manuherikia river, and portion of the race on the Blacks side of the river, without any remuneration, but to be paid reasonable hotel expenses and coach fare. Richard Creeth. Mr Smith submitted that there was no evidence against Bullen. There was no evidence to show that Bullen was a party to the agreement. It did appear that he attended a meeting, and was informed that a certain amount of money was needed to cover disbursements ; but that ne had limited himself to saying, " I will not find any more money." There was nothing to show that Fuller had authority to pledge Bullen' s credit for the loans. A mining partnership was not one which involved, as .i matter of course, authority to the manager to borrow money. Such a partnership must stand on the footing of many other kinds of partnership, which were clearly understood not to imply authority to borrow. A manager in such a partnership might have authority to 'engage necessary labor ; and if persons had been so engaged, and had not been paid, they could sue the pariners. But it was wholly different when a volunteer came forward and lent money. The Judge asked what was relied on to show Bullen's assent to Crccth's letter. What had been put in was a copy of the letter, and there was no evidence that it was delivered to Bullen at all. - Assuming for the present that there had been delivery, what evidence was there of acceptance, so as to constitute partnership % Mr Macassey did not rely upon the document. There was the evidence of Mr Fuller, at the commencement of his examination. A partnership could be proved dehors the instrument creating it. There was also the evidence as to Bullen's taking part in a meeting, when the accounts were discussed. The Judge thought there was enough evidence to go to the jury. Mr Smith addressed the jury, contending that, if Bullen was a partner, he was not as such responsible for money borrowed by the working manager. To borrow money, as had been done here, was not a thing to which one partner could bind another, as being within the legitimate scope of the partnership. He was not prepared to impugn the statement that the borrowed money had been properly employed ; but the power of borrowing would be a most dangerous one to put into the hands of a manager in such a partnership. He admitted that Creeth's silence on hearing of the L 52, "was a consent amounting to ratification; but there was no evidence that Bullen ever heard of, much less, sanctioned, the borrowing. The defence, in Bullen's case, was based upon tha law — which was here pre-eminently synonymous with justice — that a man should not be held responsible for a loan which he never authorised.

Mr Macassey said that there might have been force in the denial of knowledge, if Bullen had been put in the box.

Mr Smith said that ha had omitted the point; but he could produce evidence that Bullen was not in the Province.

The Judge : Of course, upon the point of comment on the absence of a party, the statement of Counsel will be accepted. Mr Macassey said that Bullen's evidence might have been taken by Commission, had such a thing been desired. It was granted that if there had been an excess of authority, on Fuller's part, Bullen could not be held responsible ; but what had been done was within Fuller's implied authority. The evidence of Fuller, and the absence of evidence on the part of Bullen, sufficiently established ratification. The Judge said that the jury would find a verdict for the full amount, against Fuller and Creeth. As to Bullen, there were two parts of Fuller's evidence which touched him. "Of course, Simpson must have his money," was a proposition in morality, rather than an admission of liability. But there was more in another point. Bullen seemed to have complained that a certain accident resulted, it might be supposed, from negligence on the part of Fuller ; and he also said, "I'll find no more money." What did that mean ? That he had provided some money for the partnership. These two pieces of evidence, coupled with Fuller's statement that Bullen was still a partner, were sufficient to go to the jury, in order that they might say whether or not a partnership had been created. The general rule of law was, that one partner had authority to bind another, within the ordinary, or legitimate, business of the partnership, but not beyond it. Ordinarily, borrowing money — financing, as it was called/— for the general operations of trade, was a tiling as to which one partner might bind another. As at present advised, he should instruct the jury that these two sums of money having been borrowed by Fuller, and applied by liim to the payment of wages, for partnership work, such borrowing was within the implied limits of partnership authority. As, however, the point was not absolutely clear of doubt, he would give Mr Smith leave to move to enter a verdict for Bullen, on the ground that the direction now given was wrong in point of law. Mr Macassey said that as the leave to move was wholly founded on His Honor's view as to implied authority, he would ask that a question should be put to the jury — Whether there was ratification on the part of Bullen. If the jury thought that, "No doubt, the man should have his money, but I will find no more," amounted to ratification, such a finding would dispense with the necessity for moving to enter a verdict. The Judge said he would put the question. There was just enough on which to base such a question — but it was weak. The jury, without leaving the box, found for the plaintiff — damages, L2O0 — as against each of the three defendants ; and they also found that there wa3 a ratification on the part of Bullen. SLANDER. Gedpes v. Ryan. — Mr Smythies appeared for the plaintiff, James Geddes ; and Mr B. C. Haggitt was for the defendant, Patrick Ryan. The parties are miners at Mount Benger ; and the plaintiff sought to recover L3OO, on tha ground that the defendant had, on the 3 oth September, falsely, &c. , spoken and published of the plaintiff the words, " He (meaning the plaintiff) has stolen my gold (meaning gold the property of the defendant), while carrying it up from the claim to the hut. He (meaning the plaintiff) is a thief, and it is not the first time nor the second time that he (meaning the plaintiff) has stolen gold. It is no new trick of his (the plaintiff). If I (meaning the defendant) cannot pi'ove that he (meaning the plaintiff) has stolen gold b}' fair means, I (meaning the defendant) will prove it by fonl means." — The defendant pleaded a general denial. Mr Smythies, in stating the case, said that there was no plea of justification ; but, as the plaintiff wished that he might not hereafter be met with such words as, " I could have proved my charge, but for a technical difficulty," the plaintiff courted an attempt at justification, if the defendant chose to make it. The Judge : I would not admit such evidence. Mr Smythies : If the learned Judge does not think it right The Judge : You know it is not right. It is only a waste of time to talk of it Mr Smythies: All I can say is, that, so fai as we are concerned, the defendant may give any evidence he pleases. James Geddes, the plaintiff : I am a miner at Horse-shoe Bend, Mount Benger. I was at church on Sunday the 15th September. On returning, I saw the defendant. There were a good many people present. I was stepping into the boat to bring Mrs Dale across the river.-' The

defendant called me, and said, " Geddes V I said " What ?" He said, " You've robbed me of my,gold." I said " Have I ?" and I said to Mr Moffatt, who was standing by me, " Moffatt ! He's charging me with stealing his gold." He wanted me to fight. I spoke to three mates who were near, and said to the defendant, " You saw the gold dried, blowed, and weighed, before your eyes. How could I rob you." He said, "Yes, I'm satisfied of that, but you stole it as you was coming up from the work to the hut." We went across the river, and the defendant followed. There he was talking with Mrs Dale, and I said, " Patsey, you had better come up to the hut and see the gold weighed. It's been weighed three times before your own eyes ; and though there may be a mistake, I can't see how it can be." He said he had seen enough, and he wanted to fight me. On the Monday morning, I went to Moffatt's hut, and we crossed the river to the defendant. I said to his mates and himself, " It's" a very serious thing we have ceme after this morning." I asked him. to come across, saying that he should, have the same quantity of work as was done on the occasion wLen the dispute arose, and leave him to deal with the gold, so as to judge whether there had been robbery. He said, " It's not the first time nor the second, you've done it. It's an old trick of yours, and I can prove it. " He would not come across ; but he said, "Geddes ! I'll forgive you, from the bottom of my heart, if you'll turn out and fight me." At the time when I say the defendant saw the gold weighed, I settled up with him. He said he was goingacross the river to work, but I strongly advised him to stop and have another week's work : that I was sure he would make L 3 for the week. When the defendant wanted me to fight, Patrick M'Cann said, " That's not doing the man justice. " I said to the defendant, " Patsey, I'll give you to Thursday to retract your words. If you don't do it by then, when the mail starts, 1 shall go or send to Dunedin, and have this brought against you." By Mr Haggitt : We washed up this gold on the 22nd August. The defendant, Robert Mafcheson, and myself, were all that had to do with it. After the washing, I held up the dish, and asked them how much gold there was.. I was mates with the defendant about two months. The defendant was not at church on this Sunday afternoon. I saw him as I was going; and, by the look of his eyes, Ibelieved he had been drinking during the week. John Thomas Moffatt essentially corroborated the plaintiff ; Robert Matheson was asked two questions ; and Patrick Gamble and Robert M'Leod, were tendered as witnesses. Mr Haggitt called for the defence, William Orr, who said — I was with the defendant on the 15th August, near the Molyneux. I heard him call the plaintiff, and say, "You have robbed me." The plaintiff asked, " What of ?" He answered, " You have robbed me of my gold. It is not the first time you have done it." The plaintiff then asked, could he prove it, and he said he could. The plaintiff said, " You can't prove it by fair means ;" and the defendant replied, " If I can't by fair means, I will by foul." I then took the defendant over the river. Afterwards, the defen- . dant repeated the challenge, and the plaintiff said, " I'll fight you any time." On the next day, the plaintiff came to our claim and said he would not fight the defendant ; and he said that the defendant should apologise. Mr Haggitt, in addressing the jury, said that they might wonder why, knowing what the List witness would say, he had called that witness. But he had done so in order to show that the plaintiff and his witnesses told a stoiy so different from that of Orr, and all the stories so differed from the words set out in the declaration, that it was impossible for the jury to decide what words were spoken on the 15th August, or in what spirit words really spoken had been used. Whatever the words, they had clearly not injured the plaintiff in the estimation of his neighbors ; for they were uttered by a half-drutikanman, who fancied hehadbeen wronged, and who desired nothing more than to have a fight with his supposed wronger. Even if the words alleged were uttered, the smallest coin in the realm would be enough, as damages ; and a farthing damages would be as much justification of the character of the plaintiff, as LSOO would be. Mr Smythies replied. The Judge summed up Comment had been made upon discrepancies in the evidence itself, and between it and the words — or the grammatical form — of the declaration. But the Court had power to amend the declaration, if necessary, so as to meet the precise words proved ; and all tha witnesses agreed as to the use of the words, " You have stolen my gold," or words to that effect, and they were quite enough to sustain the declaration. The jury found for the plaintiffdamages, Lls.