Untitled

Colonist, Issue 86, 17 August 1858, Page 2

Monday, August 16.— Special Jury Case. Thomas v. , empson. Mr. Stamper, for the plaintiff, opened the case by stating that although the damages had been laid at .£SOO, it had been so done as a nominal sum to cover the expenses, &,c. f and it would be for the jury to assess.'the real amount. ' The question was concerning a bill of sale uponthe schooner,' Rapid. Edward Thomas, the plaintiff—On 9fch April, 1856,- had a/letter written to Charles Empson proposing to purchase the Rnpid: retained no copy: \ in consequence of this had a conversation with Mr. \ Empspnyon the subject: defendant stated his 1 terms, which were £50 down, £50 in six months, and £100 in twelve months : the first £50 was to> J\ be £25 cash and £25 acceptance of Mr. Travera "V due in one month, and undertook to give me a free A 1 bill of sale on my making over to him three houses, ,r vj which I possessed as security for the payment of the two unpaid bills: Mr. Empson was about leaving for the Wairau on, Sunday, and as it was after hours he could .hot go then to the Customs: j this was on the Saturday : he could not he said stop till Monday to give me the bill of sale, and that I was .to oblige'him by getting a bill of sale and send it to the Wairau for him to sign and remit back by first posi> : he.told methat; he-had been to the Customs and asked them to give_me a : license to run the vessel until the completion of the bill of sale: procured a blank bill of sale from the customs, I believe on the Monday, and took it to Mr. Stamper who vfiHed jt up, and I then took it to the Collector of Customs and asked him if that would do : he said yes, and that I was to send it to the Wairau and get. it signed bef.ne a Resident Magistrate and have it returned:. Mr. Empson said I could take the vessel and .do what • I liked with her, and hoped she would do as well for me as she had done for him : wrote to the defendant 12th April, 1856 : believe I gave this to Captain Blackmore to take to him: defendant called on me afterwards: he said he had come for the £50, part of the purchase money of the Rapid, viz., the first instalment: this was on a Saturday, 3 days after writing the first letter: paid Mr. Empson the £50 and received from him an order upon the" Collector of Customs for alicense to run the vessel: at that time I had transferred my land and houses to defendant as security'for the. payment of the bills for the balance: there never was any tinderstanding between us that those bills should be endorsed "by any other person: Mr. Empson was quite satisfied with the security for the. balance: , performed my part of the agreement by giving £25 cash, and £25 acceptance and security for the £150: the day after I had given the security on the land I gave defendant £25, and Mr. Travers* acceptance for £25 which was taken as cash, and two acceptances, one for £50 and one for £100. Mr. Empson was then perfectly satisfied : nothing was said either then or before about the billsbeing endorsed by merchants: sent the bill of sale to theY Wairau, but did not receive it back again: wrote several letters: in about five months after - "'

saw Mr. Empson in town, he had just retnrned from the Wainm^asked him if he had brought the bill of sale*Wls said he had quite forgotten it: told him I had been put to great inconvenience : said his reason for not having sent it was the distance he was from the Resident Magistrate, before whom he had to sign it: he asked me to get another blank form and get it filled up, and he would sign it: did so, and took it to him : told me he would look through it and meet me at his agents: called there and saw defendant, who said lie had not had time to look over it, I must call next morning : did so, and he repeated this again ; was then asked into Mr. Fell's office, when he asked me if I could not get the bills indorsed as he did not think the property he had taken was sufficient security for the £159: asked him what he meant by it, and said he had accepted the bills without any talk of endorsement: he repeated it, and said the property was not insured: said this was a long time after to talk about insurance, and lie asVed me to get the two bills endorsed by two respectable merchants : told him that was no part of my agreement, but that if he re-transferred my Jrope'rty I would get the bills endorsed : told him should enter an action against him for the damages he had done me by not giving me the hill of sale: after this, in a few days, I met Mr. Empson again, and aske 1 him for the bill of sale, a3 agreed upon :he refused to sign it: when I presented it in the presence of witnesses he then said he would never sign a bill of sale at all: he did not say why: I am not aware that any thing was said about the endorsements then : entered an action which I afterwards abandoned: the reason I began it was to get the bill of sale : the vessel was idle, and I then had to pay the crew their wages: she was eight or ten weeks idle : altogether I paid about £20 for wages: she could have earned JBOO or more had she been running.;. JMr^Loci^ hart would have given me' 3260 for her had I received the bill of sale. . Cross-examined—l abandoned the previous suit on May 20th, 1857. I signed it when I concluded an arrangement with Mr. Adams : then received the bill of sale for the vessel: paid on. that day a portion of the outstanding balance : it was Mr. Adams' office where this took place : had an interview with Mr. Stamper previously: it was by his advice that 1 went: made no mention of another action: when I received the bill of sale I instructed Mr. Stamper to commence a fresh action. Re-examined—l abandoned the action then pending: there was nothing said about further proceedings being taken: only intended to abandon the action for damages that 1 had then sustained. By the Judge—l gave Mr. Adams no noticeof a second action: think that the defendant was induced to sign the bill of sale by my abandoning the first action. (The declaration in the first action was then read, and also that of the present.) Mr. Stamper here rose, and said that he was not satisfied about the abandonment; and The learned JuDGE-said that he was not astonished, and felt sure the jury were not satisfied either. The Court having adjourned for half an hour, Mr. Adams was called and likewise Mr. Sharp, •who both gave evidence to the effect that the plaintiff had, when abandoning the former suit, given up all claim upon the defendant. Mr. Travers declined addressing the Jury. After the learned Judge had summed up, the Jury, who were absent about three quarters of an hour, found a verdict for the defendant.