CIVIL SESSIONS.

Star (Christchurch), Issue 3360, 15 January 1879, Page 2

CIVIL SESSIONS.

Tuesday, Jan. 14. Cleave v. Eing and Another.

(Continued from yesterday ) The plainjtjLffi Cleave in the box. - T« hii Hdjfor: I considered I was bound to pay all claims on account of that seed. I paid fchem after receiving my solicitor's advice! I Old not show him my invoice form, but I

IS?^ c „ t0 him aboufc ifc - I went to see M'Callum's, M'Donald's, and Riddell's. W. Johnson sand Taylor's I paidforfrom hearsay. James Thompson's I saw. Almost all of fchem are old customers of mine. Some, 10 or 12 years. I have used this form of billheads for aboufc six years. I send no others oufc. The form was a copy, I think, of Messrs Duncan and Sons of Christchurch, which I got copied in Dunedin. The price Gd did not; open my eyes to some inferiority in the seed, only to its wanting to be cleaned. The usual price is 6d to 6_d. I simply guess at the cosfc .of cleaning. There are a greafc many purple top yellows. In the telegram I received "purple top yellow Aberdeen" was mentioned. I could nofc get better seed. Sowing in light soil would nofc affect the crop in thafc way, it is the season of fcho year. I don'fc recollect reading tho letter accompanying the invoice. I might not have been at home. I accepted for it. lam not the only person in my store. From what the farmers told me, I know tliat the other turnip seed was good. One farmer to whom I sold, ploughed up 500 acres. Ifc was Mr Riddell, and I paid him £60.

To Mr Macassey : Yellow seed is looked for in December. In January they put in white. November is too late and too early for white. Had this seed been good it would haTe matured in due course. There would be no fault except in its keeping quality. The yellow keeps about three months longer than the white. At this stage the depositions of witnesses taken in Southland were proposed to be read and put in. Mr Holmes objected that the evidence should have been taken under Bection 340 of the Supreme Court Act, that adopts the Act 1, William IV. His Honor : The Commission is under my hand, and bears the seal of the Court. Mr Holmes argued that section 105 was entirely futile. His Honor ; Hore is the Commission, and the return to it. What moro do you want? Mr Holmes : I want to know under what authority the Registrar took evidence on oath. His Honor : By the authority of this Commission. Mr Holmes : I want to know how it is to be proved. His Honor : The document speaks for itself. If the evidence is inadmissible in point of law, you can object. Mr Holmes : We object to its admission. His Honor: You don't know what the evidence is ; how can you objeot to its admission ? Mr Holmes contended that as there was no legal enactment as to tho manner in which the enquiry should bo made, tho person who made the enquiry should be in Court to explain how he had taken the evidence. His contention, in short, was that the Commission was «Ura circs: that there was no inherent power in the Court to issue such a Commission unless upon proof that the witnesses so examined resided 200 miles away." His Honor quoted the 135 th section of the Supreme Court Act. Mr Holmes : The Court has power to issue the commission, but not to accept the evidence. His Honor : Is there any report of this objection having been taken during the last three years ? Mr Macassey said, in order to meet the difficulty, he would prove that the witnesses examined resided 200 miles from tho Court. His Honor was clearly of opinion that clause 135 gave him power to issue the Commission. . ■' Mr Holmes : At what time is it necessary for plauitiff to prove that the witnesses are distant 200 miles ? His Honor: I am not here to answer questions. Witness to his Honor : All the witnesses examined by Commission live 200 miles or more from Christchurch. Mr Harper here began to read the evidence taken by the Commission at Invercargill. A long argument as to the admissibility of a considerable portion of the evidence here took place between learned counsel. His Honor said he felt himself much embarrassed in dealing with the question of the relevancy and materiality of evidence without going into the wholo question. After further discussion, Ids Honor said that, unless Mr Macassey proved otherwise, he would have to rule that plaintiff's paying compensation to those who had purchased from him could not be taken as evidence that the plaintiff was entitled to recover from the defendants the amount of such compensation. The evidence might be admissible if the claim was for the return of the amount paid for an article which was not merchantable. Mr Macassey : That would come under the sixth issue. The evidence taken by Commission was then read, Mr Gamck objecting to many items, and Mr Macassey pressing their acceptance. At the conclusion of the evidence, The plaintiff, in answer to Mr Macassey, said that he had sold the seed at from lOd to 1 5d ; per pound. A good deal was thrown away.

William Elder, farmer, at Dunsandel, deposed : I have lived at Dunsandel for the lasfc five years. I sold in 1877, a quantity of turnip seed to Mr King. The signature to the guarantee produced is mine. Mr Dawson grew the seed. He lives quite 3 miles from mc. The seed was cut and threshed by me. I sold it afc the time. I gave nothing for ifc. There was something aboufc half a ton. I did nofc cut ifc all, but took the best of it. I could see the roots of the turnips. There were none to speak off. I left fche stumps in in the ground, I guaranteed it purple top turnip, guaranteed true to name. I got 'Id or 4_d a lb for ifc. . 6

Andrew Duncan, deposed : I am the firm of Duncan and Sons. I have been a seedsman and nurseryman over 30 years. 1 have had to do with turnipseed. There is not such a thing known in the trade here as purple top white. I know the purple top yellow. There is green top yellow. The whites and yellows belong to different classes. The former will not keep so long. There are five sorts, sown in the following order : Swede, green or purple top, Devon, Greystone, and the mammoth. Those which are sown latest are eaten off first. I have heard the description of the seed as given by the previous witnesses. I should not have bought it. I would not have had it in my place. I would not have taken, it for nothing. To Mr Garrick .- Provincially grown turnip seed, as generally understood, is rather shady seed, but as good seed can be grown here as can be imported. I think Gd a pound for provincial turnip seed would be too good to be wholesome. I should look upon it with suspicion. To his Honor : Growing seed is a regular business at Home, and not here, but I would trust some farmers to grow as good here as any at Home. To Mr Garrick : I should not buy Colonial at Gd a pound. The Beason of the year, and also the year itself, would greatly affect the turnip. This year a farmer sowed some of my seed in October. It came up then, and stood still till recent rains, when it ran off to seed. Some seed sold at the same time but sowed later, is bulbing well. If the seed were neglected it would soon rim back to the original wild state. White turnipsowed very late in the autumn, in the middle of, Msrcfi would probably not bulb at all, but run off to fm-n "? xfc fl se . ason - S ome farmers sow white tm mp in their wheat crop in the spring. If it is a good season they will bulb, but not otherwise. December is the best month fop ;he yellow. The white are sown after that it the white wero sown before January I don t think it would run to seed. To Mr Macassey : Assuming the seed described by Elder was planted, I should not be surprised at its running to seed. I should not expect to see much of a crop. If I we re offered seed at 4d a pound I should think it . decidedly bad. I don't think if all the husks Sced^Operctt. 8 "' ** Iloratio Bunting nurseryman on tho Wind- '»«« f l ' oa V cp ° Bed: * haTe been » nurseryman for three years here, a nurseryman and seed grower all my life in England. I know the ditlerencebetweenpurpletopyellowandpurple top white. The white is sown later thin the yellow. The white would bo sown about this ir^\°l ater> Iha ™ heard tho seed described by Elder. I think that seed was saved irom turnips which had not been transplanted. I should not think of buying or celling it. Had Elder given me tho same history of the seed, I should not have thought the seed a merchantable commodity Supposing such seed to be sown, I should not expect it to bulb. I don't think the time of year would have made any difference in the crop. 'The plaintiff here put in the interrogationa administered to the defendants; with th© answers to them.

Mr Maoassey asked to aubititute tho acta*