SUPREME COURT.

Colonist, Issue 86, 17 August 1858, Page 2

SUPREME COURT.

Friday, August 13. Before Mr. Justice Gresson". This day the cases brought before the Judge were not of any public importance. The first case was BRADSHAW V. POYNTER. This case turned upon the power of an attorney to receive money to put an end to a suit. Mr. Stamper, the agent for plaintiff, had refused to accept certain monies tendered by Mr. Adams, the solicitor for the defendant, who had wished to recover his costs as lawyer in another manner, the monies tendered being the amount of costs which, he had deducted in paying over tho principal. Several amusing incidents happened during the hearing of this case, such as the learned counsel for the plaintiff adducing cases which told directly against him; and also some quotations from the learned gentleman's correspondence in the following legal phraseology occurred—» To err is human, but you had better fork out." Verdict for the defendant. Mr. Stamper said he should tender a bill of exceptions, which the Judge said, he would accept; but hoped he would give it his consideration before he added to the already heavy costs in which he had involved his client* STAMPER V. CROWTHER was made a case for a Special Jury. BETTS V. BETTS was to stand over on the application of Mr. Travers. karsten v. berry. Karsten sued Berry for the performance of a a deed of award drawn up by arbitrators mutually appointed. The arbitrators elected an umpire, who made the award; and this Berry questioned, because the deed under which the umpirage was appointed had been altered subsequent'to its execution by Berry and Karsten. Jury 'found a special verdict, that defendant did not. agree to the appointment of umpire because the deed was altered subsequent to .its execution, and, therefore, verdict for defendant.

Saturday August 14. hargreaves v. foy. The action was brought for damages which the plaintiff had sustained by reason of his apprentice being induced to work for another master.

Mr. Stamper, for the plaintifjFjsaid that through life he had wished to act the part of an, honest man, and especially an honest-solicitor. He was charged by the,public Press,,!-that he was pettifogging; and alluded to yesterday's case, ia which the Resident Magistrate was interested. The Judge interrupted, and.said that the learned gentleman ■ would only confiise-tlVe jury if lie mixed up yesterday's cases. V Mr. Stamper! said the reasons why he had not brought this case "in the •■Resident Magistrate's Court was, that it might be found that, he was interested in,;this case also. Hethen opened the case, by alluding to the evidence about to be proj duced, and called ..,,"- Henry Hargreaves, the plaintiff, who deposed— I am a butcher; produce aa agreement of apprenticeship; this is my signature; it was signed by Henry Barnett and myself; the,father of Barnett attested it; produce a second agreement, which we entered into aficr Barnett had.been in my service about three years, by which I agreed to give him 2os. per week, he only having had 9s. per week previously; Mr. Stamper was the attesting witness; Barnett has signed by a mark ; it was read over to him several times before he affixed his mark; William Barnett, the brother, was also present and was a vyitness. (The agreements were then, put in and read.) Never agveed to release Henry Barnett from the effect of these documents; continued to teach him his business while he remained with me; Henry Barnett asked my leave to go to the gold diggings; cannot state the exact time; he asked for one months'leave of absence, and I gave him two; it was arranged that I was to pay his wages for a substitute during the time ; he returned in about three weeks ; the substitute had been engaged by me for two months according to the arrangement; it^ was a month befijreXs|iw^ilu.,a?}4re?'^ hhthir cquld not afford to pajrhirtiAvages, but if he had no where to go he might cotrieio my house and live there for the month ; he said he would return to me on the following day; he did not come, but came to tea on the Saturday evening; he said in the course of the evening that Mr, Foy had applied to him to engage with him, when my wife said,1 "did you not tell him yon were an apprentice," and he said he had not; he left my house that night and I did not see him again until he was in Mr. Foy's employ; saw him in Foy's service before the two months had elapsed; afterwards saw Thomas Henry Foy, the son and second defendant, and j told tiirii that Henry Barnett was my apprentice ; he replied he was'nothing of the kind; he said J^ had no claim upon him and should not have him ; have frequently seen and spoken to since that time Henry Barnett; in Foy's service he remained until the commencement of this action : he was, while in my employ, in the habit of attending my customers;, and could do anything in the business as well as I could; he was in the habit of calling on my customers for orders; have since seen him; "there was an evident falling off of my custom at that time; it was at the time a great loss to me when I first'allowed him to go; cannot state the amount; have since had to give £3 3s. per week to another man not- so good; Henry Barnett was worth more to me than any one else I could get; gave a letter, which I received from Mr. Stamper, addressed to the defendants to William Broker and desired him to deliver it to one of the defendants; this was soon after Henry Barnett went to them; this was before the two months had expired. By the Judge—Am not sure that I gave the defendants notice not to harbour my apprentice after the two months had expired. William Broker—Am in the employ of Henry Hargreaves; received a letter from him to deliver to Mr. or Mrs. Foy ; delivered that letter at Mr. Foy's shop to one of the two ; can't say the date; never had but one letter to deliver and that was the one I then delivered. • Cross-examined—Can read, but not writing much; did not read the writing on the direction; do not remember to whom it wSs>directed. William Jones—Am book-keeper to Mr. Hargreaves: paid Barnett his last wages on August 31st last; then paid him the balance due to him to enable him to start to the diggings; the; arrangement was that he was to go for/two months, provided he could find a substitute; he was to return to his service in two months time; he was away about a .fortnight at the diggings; 'M called in about ten days after his return bit plaintiff ;\he was told he had made a short stop, and plaintiff-said he might come back and board in the honse until the expiration of the two months^ but that he could not afford to pay him wages; he said he would come in a few days ; this was on Thursday or Friday ; i on Saturday following he was in the store ; heard nothing more ; he had tea with;the plaintiff; saw him afterwards in the service of the defendants; they commenced business shortly after his return; think it was before the two months had expired that I saw him in their employ ; from the beginning of November last till about a month ago I have seen him continually in their employ; suppose Barnett's services, judging from the men since employed, to be worth £3 3s. a-wctk; have had no conversation with Mr. Foy on the subject. Henry Barnett —I was in plaintiff's employ under those contracts; did not ask Hargreaves' leave to go to the diggings; he gave me leave without my asking; it was for two months; it was agreed that a nlan was to be got during my absence ; returned in about a fortnight; met plaintiff opposite the Trafalgar, it might be about ten days after, and told him Foy wanted me to go arid live with him ; he said it was strange Mr. Foy did not ask him about lit; Hargreaves said I might come back to my victuals ; Mr. Foy sent word to my father that I was to come and live with him; then went and saw Mr. T. Foy; he asked what Mr. Hargreaves was paying .tne a-week,-and I told him, so he said he would give me the same ; agreed to that; it was not for any period; have heard defendant say that he had received,complaints about my being in his service. Cross-examined—l remember putting my mark to a document at Mr. Stamper's office ; think it was the week before Christmas last; it was before I entered Mr. Foy's employment.; cannot say what month that was in; was at Mr. Ridings' as a servant; left him to go to Mr. Hargreaves; that was the time J signed the paper marked No. 2; J that was on the 4th March ; my; brother was with me ; he asked me to go ; it was read over to me; it was explained to me, and told me I was to have 255. a-week^ and paid every month; that was all that I was told ; do not remember his saying that1 it had any, reference, to the former agreement; he said that it was to bind me as an apprentice, until my old time was up, at 255. a-week; did get my wages, but not monthly; Mr.: Hargreaves had a pretty fair business when I left for the diggings; he hired a person in my place when T went to the diggings ; rhe told ihe lie should be obliged to hire a person"; he had turned me away before I signed the second paper; had been to the Waimea for a load of meat, and when I returned, he said, I do not want you any more, if I had the pluck of a man I would not stop; this was before going to the diggings; left after unloading the cart, and went home to my father's; remained with him about a month ; then went to live with Mr.. Ridings; lived there about seven weeks; then went back to Mr. Hargreaves, on the 4th March ; he went to Mr. Ridings' and told me that he would allow me to go, and told me to go and kill some sheep for him ; after killing the sheep, I took the pony home, and had supper with him, and then went back to Mr. Ridings; plaintiff did not then say anything about my going back ; next day saw plaintiff at his shop ; he asked me to go back, and that he would give me 255. a-week; in consequence of that I signed agreement No. 2; thought I was going back as a servant; it was the extra wages induced me to go back ; supposed that I could leave him at any time if he did not pay me my wages; did not then know the difference between an apprentice and a servant; found out the difference by his using me so bad; when he used me badly, he told me that I was his apprentice ; at the time 1 signed the last paper I did not know^ that I was going to be an apprentice again; Mr. Stamper did not mention that I was to be an apprentice; during the second period I was with him I never heard him speak of Me as an apprentice. Re-examined by Mr. Stamper—l remember calling on you, and meeting Mr. Hargreaves; you drew up the document then from what was stated Ibj Mr. Hargreaves in my hearing; did not consider

myself an apprentice when I went to the diggings, but that I was bound to xome back to him arid serve out the term, as jjjpfcas lie paid me. my money; found out the difference between an apprentice and a .servant the second time I was 'with plaintiff, because he used me better. . Mr. Stamper sworn, examined by Mr. Connem —I am plaintiff's solicitor; wrote a letter addressed to Mr. Foy, one of the defendants, dated 9th October; drew up the agreement between Hargreaves and Barnett, of the 4th March ; have no doubt but that Barnett fully understood-the \ meaning of it; they handed me the original agree- \ ment of three years before, as part of my instruc- j tions to .draw up the second. * I Cross-examined—The object of the second agree- : ment was to vary tlie amount of wages; this was the only object; do not, suppose tliat agreement No. 1 was attached to No. 2at that time; did not explain to Barnett the effect of the second agreement with reference to the first. / By a, juror—Barnett was fully aware of plaintiff's having handed mo agreement No. 1. William Barnett, the father was called, and stated—l live at Wakapuaka ; some time ago my son was bound to Mr. Hargreaves as apprentice,, srid remained some time ; .that is the agreement; Henry did not stop his full time; had conversation with plaintiff about him; he wanted to see my son; I said, you hare turned him away and he shall stop at home,;, my son stopped with me about 6 weeks ; he then went to Mr. Ridings'; told him he might,go; he stopped there about 7 weeks ; did not know he entered into a sesoul ap- ' - prenticeship ; my son William told n# he had seen a document and that it. was an agreement for ■Henry to finish.' out : the rest of his time ; rill not consent to it; my,,son entered into this contract without my consent; told him he was at liberty t« leave plaintiff's... '.sejirvice, at any time; it would require 'nvs;ft*n^afi^jQ^^ - Mr." Foy, junr.; applied "to me to know if I had any objection to Henry serving his father ; consented : told Henry -next day: my son was to make his own agreement as to wages: authorised my son to engage.with Messrs. Foy. By the Judge—My-'son is just turned 20. Mr. Ridings examined—-The youth Henry Barnett was in my service : do not remember sny conversation with plaintiff abou1. him: he left me to go back to the plaintiff: no reason wis alleged for his return that 1 know of: he lived with me . as servant: plaintiff never ol jn.-ted to me of his J being with me : plaintiff was managing a butcher's • shop for me at the time Barn?tt left me; the V wages were paid by the plain)iT: he was liable for them : he himself was .receiving; a commission. I Gross-examined—l paid Henry Barnett his j wages whilst in my service: did not account to Hargreaves. . . ' Thomas Foy, one of the defendants—l had con- I versation with Barnett, sen,, about his son Henry: i asked if he was at liberty, and he said he was: asked if he wanted a situation : he said he was very ujseful. at home, and that he could ill spare him: offered a situation for him and Henry Barnett came to my shop and I engaged him at 255. a week: he entered my service the Monday folio wing,'and remained some time : have since discharged him. ....... Gross-examined—He leffc about a month ago: he remained all the intervening time : was satisfied with him: he appeared to understand some parts of his business. By a juror—l was made aware that Mr. Hargreaves wished him to go back, and that he had no further claim on, him as an apprentice: received a notice from plaintiff stating that he was his apprentice, but that notice only referred to agreement No. 1: knew that because it mentioned only that he was Hargreaves' apprentice, and I only knew of the first agreement, and was present when he was turned away under the first agrerment: plaintiff himself told me that he had turned him away, from which I concluded herhad no further claim on him : did not know of the second agreement until this trial was going on: Mr. Conneli, rose, and shortly referred to the evidence produced not being relative to the case. The issues were only five in number, the old agreement was valid; was he apprentice at the time of its being signed? was* this indenture cancelled afterwards ?,. (Quoted Chitty's Burns, to shew that the written consent of all parties signing the agreement.: mu'it :ba-obtained to*niake it valid.) The whole" cr.so, the learned 'gentleman argued, depended upon, the point, as to whether there was a subsisting apprenticeship at the time that he signed the second paper, and .as to whether j Henry Barnett considered himself bound ; and referred to the leave given to him to go to the diggings, and the payment of a substitute^ the offer made by Hargreaves to find him home and diet until the expiration of f.he two months, and did Foy know for a certainty that he was free from Hargreaves ? The learned gentleman then referred to the amount of damages, and called to j their remembrance the value sworn to by Mr. ■ Hargreaves and Mi*. Jones. Mr. Travers referred to Judge Stephens'comments on English apprentices, and referred to < authorities, and would prove—tliat it was for the',-■ benefit of the infant tha^the apprenticeship should be cancelled. He then: entered into a lengthened argument, but so entirely legal as to be uninteresting to our readers; after which \ . The learned Jtjpge summed up at s6nie length, and a verdict was returned for the plaintiff. Damages, £32 6s.'