SUPREME COURT, LAWRENCE.

Tuapeka Times, Volume VI, Issue 267, 13 March 1873, Page 6

SUPREME COURT, LAWRENCE.

Monpay, March 3. I (Before His Honor Mr. Justice Chapman and a special jury. Clayton and Others v. Morrison and '< Others. The examination of the last witness was completed at 10.30 a.m. 'The followare the speeches of counsel : — Mr. Barton congratulated the jury upon the near approach" of the termination of their labors, and announced his intention as soon as the case was concluded, to seek repose on the " Couch of the Angels," He first directed the attention of the jury to the oase of the Great Extended v. Hales, which was closely analagous to the present action The jury in that case did not agree upon a verdict, consequently the la\r laid down was not subjected to the revision of the Court in ban%^ k His Horror's summing up, however,wwas" very important, and from ths veryfS^'epQrt published in the TtJAEKKA. Times, %e,_quoted his Honor's sta + ement of the general law as follows : f'That, undoubtedly, every man has a right to use his ow n property. That is the first principle, but subject to this condition, that in using his own property he shall nut so use it as to do injury to others.'' His Honor made another statement of general law, which he (Mr. Barton) disaTecd with, and would endeavor on this occasion to make hia Honor change his mind upon the point. That statement was as follows :— " Therefore, where there are tv?Q adjacent proprietors, whether they be miners or- simply possessed of laud from the Crown, each of those proprietors has against his neighbor respectively a right to lateral support from the other's land ; and therefore if one cuts down within his own boundary without trespassing at all, but so that the laijd of the other topples over on his bit, a3 it were, the person whose land has fallen has a right of action, and a right of compensation for the done." He disagreed with the Jatter part, and would endeavor to show that it could not reasonably be applied to the Blue Spur. In his opening address, he had stated that "the law of England provided that a freeholder leaving hi 3 land iv the state God had left it, had a right to demand support from his neighbors ; but in mining, even in England, that law did not apply. The very nature of the tenure under which -a mining claim was held precluded the idea of such a law applying. The Crown granted a mining lease on the express condition th.it the ground comprise I within it was to be broken up, smashed, and washed away. It had been shown that plaintiffs were doing this, and yet - they demanded that their neighbors ihould keep their ground solid, in order to afford them ("the plaintiffs) support for their broken stuff. If this were the law, every miner who went ahead of anpther was liable to an action, and the whole Blue Spur would become one anthill of litigation. The question now before them, was merely one of negligence in mining. If the mining was carried on fairly, and in the manner understood, when the lease was granted by the Crown, the miner should not be held accountable for the ground coming down. If from natural causes, which ' neither party could- hilp, the ground came down, then neither was responsible. ' Supposing the law of England applied to the Blue Spur, plaintiffs were clearly out of Court. They had been mining themselve^—- breaking up and washing away the ground. Plaintiffs could say if thsir neighbors had not mined their (the plaintiffs') ground would have remained in its natural state. As he had atate.d in 'his opening address, plaintiffs had no right to expect that the surrounding claims should act as a basin for their pujp. With respect to skilled evidence, he quoted his Honor's opening l-emarks in thfi case of the Great Extended Co. v. Hales ; — " It is to be presumed in the fi_rst instance that a surveyor will make a plan as accurately as possible — the mere instinct of duty would induce him to make : the plan as accurate as the information at his command will allow. A plan of this description comes before the ijiry with a character which, entitles it to 'confidence, unless it is clearly 'shown to bp inaccurate. In the evidence it is attempted to be shown that it is inaccurate ; but it is not the sort of evidence which a jury should accept in snch a case. Where pne skilled perspn give 3 evidence upon a matter purely of science or connected ■with hJ3 own profession, the proper purse, if the accuracy of his evidence is questioned, would be to produce equally skilled authority who would tell their story and point out their reasons why the plan was^inaccurate. Pressed by such reasons he had brought skilled evidence to show that Mr. Adams' plans and doings, were not entitled' to the cr.edit that would otherwise attach to them. The jury, of course, had the right to impugn .the accuracy of the festinqqhy he brought, as well as that of Adams. ' ' 'He quoted again ' from his Honor's charge in the Great Extended v. Hales and Co. as. follows: — "But although the plan is constructed by an undoubtedly skilful person— probably constructed w.ith all {he care and skill the person is capable of giving it — it is not binding on theminds of the jury, who are entitled tq have it questioned and ex- . ' amined by the evidence of witnesses most interested in showing that it is fallacious, '- and are quite entitled to believe the evidence in preference tq it, if they think "proper." l ' The first issue the jury had to answer, was ambiguous. The declaration alleged the possession of two , claims -the one described in the" lease, and the other shown on Adams' map as ■ the result of a f ' ( more recent and accurate survey." The answer to this was the difference between Adams' aud Drum- " ifrond's survey. .An important question which underlaid this, but was not stated, _^as, whether Adain/s survey 'had not showed/ plaintiffs' claim hndily half way across defendant's claim at Speirs'. The ■ \ixry. wOjHld also have to find whether an vxv'uz'w-i took place, or whsfcher Speirs' a piece of ground from plaih".:f vll these i.npor.tant findings were '- ""-.!■• i' ' The learned counsel briefly -. -'•-- '\'t • 'ib?!- >' ice of the second and '... '■ • "-• -- ".' .-• hi tn-iinis wptq ac- "•.. ~ * ■•*„..£ vjVuiin 'ueir own land. He cavilled at :h*t iiw whioh would pvevont them, fr.om working until plaintiffs had worked their cUitn out, but this in ' fact,' was What plaintiffa wanted. If defend : ants were bound to do- this^ plaintiffs, if -gmtef ul, might keep them from "working

for an indefinite period— until, they were compelled to sell out. He was surprised that such a law could be propounded in a mining town to twelve men all more or less interested in or acquainted with mm- • ing. Was it reasonable that plaintiffs should have such power ? As he had before stated, the sole question for the jury to decide, was whether defendants had mined negligently, and he quoted definition of mining given in the Goldfields Act, 1866. It was rediculously absurd to apply the law of England regarding support to the Blue Spur. At Ballarat, Judge "Rogers had ruled in equity, that certain claini3 should be worked in a certain way. But here it was different. Plaintiffs wanted to stop his clients for ever. They had already been stopped for five months, for which they had no remedy. The 2nd issue had not been put in the declaration, or he would have demurred to it, and had it properly settled. It asked the jury to say not that defendants had worked in plaintiffs' grouud, but that they had worked in their own -ground, and did not supp >rt their (the plaintiffs') broken pulp. The 4th issue had been inserted by himself. lf.th£ jury thought plaintiffs themselves had worked so that the land could not stand of itself, then they were responsible, and a verdict for the defendants must "be found. If the jury found otherwise, the effect would be that the plaintiffs could work how they pleased, and the defendants could not work at all. Suppose the strata dipped a different-way, and the same operations were carried on. The' ground would then have fallen the opposite way, and the position of the parties reversed — the plaintiffs would have been defendants, and the defendants plaintiffs. Which of them was at creation to settle that dip ? The description given in the lease contradicted Adams' evidence as to. the position of plaintiffs' claim. If his lion or adhered to the decision he had given in the Taieri case, that the deed must prevail against the pegs, Adams' survey went for nothing. In the present case the matter was complicated by the deed describing the ground as situated in Mnnros Gully, His Honor would probably say that the deed could not affect the dispute. He (Mr. Barton) would say that plaintiffs had not got a lease of the ground at all . This affair promised a jolly fight — a battle of the pegs. But after all, Mr. Adams had fixed with a painstaking care the true starting point at peg 53. Having thus fixed the true starting point, away went Adams 10 degrees to the east, and away went a quarter of defendants' claim. 2 roods 4 perches was a very pretty slice to take out of a clai mof 2 acres in all. Mr. Barton here described Mr. Adams surveying procedure as detailed in his evidence. Why, he asked, did Mr. Adams add 42 links on to one line, and on what earthly principle did he add 62 links on to another ? Was it not downright monstrous, not only to change the shape of the claim, alter the direction, but to change the length of the lines ? These changed lines included the very ground in dispute. Another line Adams made, 500 four-tenth links, instead of 470 links. Common sense told him, as well as any surveyor could, that having once found the starting point, Mr. Adams' business was to- go round the lines given in the lease, in the direction given in the lease, and when he found the half chain missing, his duty was to fill up that half chain. If lie had done that, he would have found the acreage on the ground correspond with that given in the lease. But he had not done so. He gave plaintiffs 2 roods 4 perches on defendants' ground. The occult art of surveying was not occult when explained in a common sense way, and he did tiot think that any juryman could come to any other conclusion than that Adams' conduct in this respect was unjustifiable. Let them consider what a large amount of defendants' stuff would have to tumble in before any of plaintiffs could come down. The true position of peg 85 was 135 feet to the southwest of wherejit was placed by Adams. None of the other evidence made the distance back so great. But that that was the correct distance had been ascertained by a scientific mode which could not err. The reason others did not place the peg so far back as Trvine, was that the ground was imperceptibly slipping day by day, and those who knew the position of the peg were thus deceived. Scientific testimony was in suchacasebetterthananyhumanevidence. The peg had been placed by Irvine in the position indicated in the lease, and in the place Adams would have put it in if he had behaved as he ought to have done. Peg 85 had constantly a tendency to slip into the gully, which tendency Adams corrected by shifting it further down. Adams had accounted for the difference between his and Drummond's survey by saying that the latter used the magnetic meridian. Bub there was a perfect mass of evidence to contradict this. From evidence given by Irvine, it would be found that if Drummond had used magnetic bearings and Adams had corrected them to the true meridian, the claims would have been shifted to the eastward, but they found that Adams had plotted them to the westward. The traverse given by Drummond Avas incorrect, but that did not affect the discrepancies he now spoke of, all of which arose from the description in the lease not having been followed. Adams led them to believe that Drummond chained carelessly. There was ample evidence to contradict that. There were only two or three ways a surveyor could possibly make a mistake. First, by dropping out a whole or half chain. But that would not account for the change in the meridian. Irvine had found that Drummond hadmissedhalf a chain, and on his first plan Mr. Adams had made a half chain difference, and allowed for it. By adding this half chain, they tgot the piece of land described in the- lease. Drummond might have erred in another way. In surveying up and down hill, if allowance were not made for the inequalities iv the surface, the lines would be made too long. But here, iri3toal of being too long, according to Adams, they were too short — Adams had increase! the length of e,very line. One other mistake Orummond might possibly have made. He might have read off the chdiiirig so carelessly as to place it on the map different to his field book. But it was incredible that error should have occurred. 1 in 1000 was the limitrof error allowed by the Government. Here there was the enormous error of lin 17- It was impossible that the most careless surveyor should have committed such an error.

\daras had said Drumiuond's travei'se was impossible, but ho had placed his own traverse alongside of it. It was often the case ,that a traverse line was put in a place winch had not in reality been gone over but was a resultant of two other Hues. . Such a line might be stated by another surveyor to be an impossibility ; nevertheless, it might bo perfectly accurate, for it was an easy matter after finding out two sides of a triangle, to fill in the third. Druminond's traverse looked like the result of a triangulion. If they had his field book, it would have shown the true traverse. But where was his field book ? The erudite Thomson, despised it entirely, and it was impossible to get it. Had not Adams admitted the starting point, it would have been useless for his clients to have brought up a surveyor. Had he not known the starting point, Mr. Irvine could only, have testified to the accuracy of Mr. Adams' survey, but could not have said anything abqut the materials used by Mr. Adams. If they had Drummond's field book, they would have known the ground actually pegged. This was the whole battle — this was the dispute. If they knew where the pegs Drnmmond put in were, they did not require to ask the aid of surveyors — unskilled men could settle the matter. Drutmnond clearly did not peg out the lines as pegged by Adams, but pugged according to the lease. If' they knocked away Drummond's pegs, they knocked away the ground. Mr. Macassey had said the evidence in regard to this, was not reliable. Probably it was not, but who was it that had to prove the case ? The plaintiffs could not come into court saying loosely, our ground is somewhere "over there," and obtain £6000 damages, and stop defendants from working for ever. Yet that was what they wanted to do. There was evidence of several distinct kinds to show that the position of plaintiffs' claim, as laid down by Adams, was erroneous. , The starting point being clear, the scientific evidence, produced on behalf of the dofendauts, corroborated the other testimony, and fixed the position of peg 85 135 feet from where Adams had placed it. * dams had stated that when he went to the Blue Spur to put in the pegs, he was surrounded by a mob of people, who pointed out to him the true position of the pegs. He (Mr. Barton) could not be expected to call the whole population of the province to disprove that statement. He had asked every man who went into the witness box, who was on the Blue Spur in 1867, the question, and all replied that they had never seen Adams surrounded by a mob of people, and never heard of such being the case. It might happen that one or two might not know of such an occurrence, but it was a curious coincidence that not one had ever known— had not even heard of it. Adams' changing Drummond's lines, was a profitable matter for the lawyers and surveyor*. There would be lots of law and lots of plans wanted — in fact every claim on the Spur was a lawsuit. Adams' evidence had not been corroborated in a single instance. Was it possible that Drummond should have so blundered as to be wrong in every line he surveyed 1 The only peg Adams found was 53. The ground where the others were put In was constantly shifting and slipping. At peg 16 the ground had slipped so as to bring down plaintiffs' dam several times, and caused them to discontinue working there. Mr. Ledlie had sworn that he saw peg 85 seven years ago, Jong after it had been washed away. That gentleman had certainly developed clairvoyant powers of the highest order, and if he applied to Madame Cora, would, without a doubt, secure a lucrative engagement. But again to the pegs. Adams said he found the position of all the pegs from the various people on the Spur. If he had placed all the pegs accurately, according to Drummond's survey, he could have no object in first concealing, and then cutting off the ends of the copy of Drummond's plan. Adams had staled in his evidence that the pencil lines on that plan were first construction lines. But it was proved that those lines were drawn over the ink lines, and consequently could not be first construction lines. This threw a flood of light over the matter. Why did Adams draw those pencil lines 1 Why did he cut off the ends of the plan ? Why did he lock up the plans? And why was he in such a state when he found the defendants had a copy of his plans? How dared Adams lock the plans up? It was an unpleasant task for him to thus attack Mr. Adams ; but if that gentlemen placed himself in an assailable position and made statements in the witness box such as he had done, he could not blame him (Mr. Barton). Why did Mr. Adams explain about the mutilated plan before he was attacked upon it except he was conscious of having done wrong ? The story about finding the pegs was disposed of by 'Nicolson's evidence, which was clear and straightforward. 'One of the most remarkable facts in connexion with the case was that plaintiffs could only get evidence from their own shareholders to prop up their case, while defendants were flooded with outside evidence — had .witnesses entirely unconnected with them, who all gave evidence more or less important. From the enemy's camp they had secured important evidence. It was not likely that men in the survey department would impugn the skill and veracity of Thomson's "pets." Yet, if Nicolson was not forswearing himself, could the jury believe otherwise than that Adams had not found Drummond's pegs, or had not followed them 1 It was clear that if the various claims were surveyed according to the leases their boundaries would be conterminous — would not overlap. Instead of following the leases, Adams gave Clayton and Co. a piece of Morrison and Co.'s claim, and Clayton and Co. came now asking the jury to compel Morrison and Co. to give them £600.0 in addition. The jury must remember that it was not for him to prove plaintiffs were wrong, but it wa"s for them to prove that they were right. If he broke down their case, it was sufficient for him. He-w as entitled to rely upon his surveyqr.. Compare the two men — Adams and Irvine — Adams | was merely one of Thomson's petß. Who was Thomson? Nobody knew. But Mr. Irvine was a graduate of one of the oldest universities in Britain, and had an engineering diploma from that university. Surveying was an elementary part of the education of an engineer. It was absurd to say that Mr. Irvine was not a competent surveyor. It might

with equal justice be said he (Mr. Barton) knew nothing of the law of contracts, because he could not, if placed on the box, swear that he had read Clutty on contracts for twenty years. Yet he was dealing with that law every day of his life. It had been striven to break down Mr. Irvine's evidence, by insinuating that he had been connected with thepress, but that attempt had signally failed. Mr. Irvine knew his business thoroughly. If Irvine were a booby, he (Mr. Barton) was one of the cleverest fellows in existence, for he had beaten Adams in his own ground without skilled assistance. Tho letter written by Drummond on September 17, 1866, showed that a year before Adams came to the district, the pegs were unreliable ; yot Adam.3 swore that the miners showed him the pegs in 1867, and that he surveyed from those pegs. At this stage the Court adjourned, and resumed at two o'clock. Mr. Barton continued that Adams' statement that he followed the pegs was contradicted by a mass of evidence. The inference attempted to be drawn by the other side from the cross-examination of defendants, was that they had taken no exception to Adams' survey — had believed in its accuracy. A great deal had been al&o said about parties going to the survey office to see plans whenever transfers had been made. It had been shown that there had been no transfers of shares in Morrison andCo.'sclaim since Adams' survey, so nothing could be made of that point. A most imposing piece of evidence had been produced — a peg found in M'Clintock's garden. This was a class of evidence that very often impressed a jury. The learned counsel here related an anecdote to show the value of such evidence. Not a tittle of evidence had been adduced to show that the peg produced, had been taken from its right place, or was even a boundary peg at all. It Was a sort of Box and Cox affair. The jury were asked to assume that it was a particular peg, because a witness said that it was iiot that particular peg. The original boundary peg which the one produced purported to be, was placed where the cement was, 8 feet deep, wliereas, the peg produced was found in ground only 2 feet deep. It had been stated thab after Cormack received the tracing from Nicolson, he never complained of the survey. He (Mr. Barton), produced that tracing. No measurements were. given upon it. Morrison and Co.'s claim was left a blank. Speirs' claim was marked, but there were no measurements given of the lines. The area of plaintiffs claim was marked sa, 3r, 27p, but what man would take notice of that. It had been procured for the dispute with Hales and Co., whose claim was at the other end of the Spur. Cormack was not bound to prophetically know that a dispute would arise about boundaries with Clayton. Why should defendants be bound by every copy of a' plan from a public office ? What was the use of their disputing it? It was utterly against common sense that they should dispute the- map. In courts of justice, however, men were asked and expected to do the most ridiculous and absurd things, which they would never think of doing in natural life. It was notorious that men were always complaining of the inaccuracy of plans in the Survey Office. Only one of the plaintiffs' witnesses — Clayton— claimed to know anything about pegs— a witness who, in the first place, was interested. He said he put in peg 16, and that it remained till 1871. Speirs said he (Speirs) put peg 16 in, and Adams said, when he surveyed the ground in 1867, that peg was not in its original position, and that the one that went away was the one he (Adams) put in. Peg 19 existed only for a short time, and pegs 77 and 78, William Evans said, had shifted before Adams came on the gronnd. Peg 85] they knew all about, and 85a, which Adams said he put in, had, it was said, disappeared by the joint workings of both parties. After all they had only peg 53 left. It was not for him to place the pegs— it was for^the other side to do so, and for him to knock them out. He drew the attention of the jury to the two distinct classes of evidence he had adduced. The first were the measurements of people who were on the ground before it had shifted mnclr. All those who gave this evidence were unconnected with defendants, and most of them were old mates of plaintiffs. The second class was that of men who never saw the ground in its original position, but took the bearings as far as they could be ascertained at the time, and then measured the ground out. In the one class the value of the evidence rested upon the accuracy of the witnesses' recollection, for there was no doubt that they had actually measured the ground. One witness of this class had gone upon the ground, after being absent for years, and guessed where the old tailrace was, calculating his distances from it. The second class'of evidence might differ from the first, but the data of the first class were more reliable. Grieves evidence was of the latter class. Counsel for plaintiffs had pursued a course common to counsel having weak cases to conduct. They had found out the points a witness was called to prove, and then cross-examined him on points which he probably knew nothing about, and used his ignorance as a contradiction to his testimony. Such a course was most unfair. Speirs was as certain that he purchased a piece of ground from plaintiffs, as he was of anything that had occurred since his childhood. The sort of thing he had just alluded to, had been tried with that witness, but he felt certain it was useless and futile. Speirs had sworn that his tailrace was 24 feet to the north of peg 85. There, was a docixment of the sale of a piece of land by the Perseverance Co. to Speirs and Co. Did Clayton and Evans honestly confess that there had been such a sale ? Did they not endeavor to shuffle out of it in every possible way ? He spent hours in getting out of them what his witnesses proved to a mathematical certainty. It was a serious thing to get an injunction. No judge would grant one upon the ex parte statement of one side, unless a very strong case was shown. Evans, in his affidavit, swore that to the best of their belief or knowledge, neither himself nor co-partners knew of any defence that could be set up by Morrison and Co., utterly concealing the facts that they now admitted, that there was a transfer to SpeirSj and that' there was some sort of an exchange-'of ground between themselves and defendants. This affidavit was sworn on the 30th September, 1872. Yet

conversations on the subject of the exchange had been previously noted by Margettg. If plaintiffs knew what was in Margetts' notes of the conversation in Evans' house, how could Evans swear that he had no idea of what Morrison & Co.'s defence would be. Mr. Barton here read portions of Margetts notes not given in evidence, which were to the effect that Cormack said they had worked within the boundaries of the Perseverance claim as surveyed by Adams ; this Mr. Margetts construed into an admission that defendants were working their (plaintiffs) ground. Cormack, Mr. Barton said, always considered Adams' survey erroneous. On the 19th September, Speirs told Margetts and Evans about the purchase made by him from the Perseverance Co. Yet, having this knowledge, Evans, 11 days afterwards, swore to the statement he had quoted from the affidavit. He admitted that defendants had worked inside of Spelrs' purchase and inside the exchange ; and they did not deny that they worked inside of Adams' pegs. He had a high opinion of Mr. Margetts' probity and honesty, and did not like to impute anything to that gentleman. But if that gentleman's evidence did not tally with his notes, what value could be placed on his notes ? He was afraid Mr. Margetts had allowed his notes to be colored by his warped judgment. He had .colored them Perseverance color. He was there defending his clients' character, which, as well as their money, was at stake in this action, and would not shrink from his duty. His clients — men of wealth and position — were charged with meanly stealing other men's wash dirt. This might not be what plaintiffs intended, but it was what the action amounted to. Judging from their general conduct, were defendants likely to do such a mean action as had been imputed to them. What did they find? The statements of his clients never varied from the commencement; Was that, he asked, the conduct of dishonest men ? Margetts' notes proved that the actions of Morrison and his mates were those of honest and upright men — men who did not wish to wrong their neighbors. The evidence of M'Kenzie, who was brought from Port Chalmers, and M'Olintock, brought from Switzers, both old mates of plaintiffs', corroborated defendants' statements An important point in that evidence was that the cut so often referred to was constructed partly as a boundary, and partly to prevent the stuff from plaintiffs' claim falling into Speirs' tailrace. It would thus be seen that plaintiffs' stuff was slipping down long years before defondants' blast. Grieves evidence showed that the ground in the cutting was poor, and that the Perseverance Co. lost money all the 8 months time chey worked there, and that they continued working there fr'll their dam gave way. Was it not clear from this that if the blast of 3 871 had never been fired plaintiffs' ground would have slipped into defendants' claim? If the cut had not been nig.de, the ground would have slipped into Rp'eirs' tailrace. If such had been the case and an action been brought, what would have been the verdict ? Blue Spur cases, it had been said, invariably resulted in verdicts for .the plaintiffs. The present one, he hoped, would prove an exception to the rule. What was it the jury were that day asked tft give a verdict in favor of plaintiffs for £6000 for ? What ground was in the cutting then ? Was it not ground from Speirs' claim ? If the plaintiffs chose to work that cutting away, and bring down their ground, were the defendants to be mulcted in £6000, and to be stopped working for ever ? Was it not preposterously absurd that plaintiffs should demand that defendants should pay them £6000 for the consequences of their own action ? He did not deny that the ground was slipping — had been always slipping — and would continue to slip into defendants' claim. But if plaintiffs wanted to stop it from slipping, let them put in another cutting. It appeared; however, that aaother cutting co'ild uot be made at a cost that would allow the work to be done. It had been attempted to throw discredit upon Grieves evidence by showing that he bought out Nicoll's business as storekeeper. But what did that show ? Grieve was an old mate of plaintiffs, and had parted with them on friendly terms. The other old mates of plaintiffs thut had been brought from long distances had also parted with them on friendly terms. The defendants had some difficulty in procuring the attend"ance of these witnesses ; and it was not until they found that defendants' characters were being aspersed and that they were being dealt with unfairly that these witnesses consented to give evidence. After the letter Evans had sent to "dear Robert " — M'Clintock — he swore the affidavit. What conclusion could the jury arrive at after that other than that Evans sworn one thing, knew another, and thought a third ? Adams fixed the position of peg 53, and Evans had fixed the exchange in a manner defendants would have found it difficult to do themselves. M'Clintock had stated that he did not like the sneaking way Evans tried to get information out of him, and that he was not so particular in his statements when he was not on oath as he was when he was sworn ; but there was no, reason to suppose that " dear Robert" would come to that Court and swear falsely against " dear William." If Morrison and Co. had taken possession of the ground they got in exchange from the Perseverance Co. and were working it and treating it as their own, what power had Margetts and Evans, who came into the Perseverance Co., afterwards to repudiate the arrangement ? > Surely Margetts and Evans could not purchase more than the Perseverance Co. owned. After the affidavit, Evans' letter, Margetts' notes, and the rough, loose, and irregular statements regarding peg 85, could the jurj' believe the testimony of plaintiffs against that oi their old mates, who had sworn so positively ? This was an extraordinary case — a case in which he was able to beat plaintiffs with their own sticks. The evidence of J. J. Hutcheson, who, both sides admitted, was an honest, honorable man, was singular. The plaintiffs made an affidavit to prevent a commission being issued to examine Hutcheson, on the ground that all he knew about the case could be obtained from witnesses close at hand. In their affidavit plaintiffs stated that they believed Hutcheson was " a man of probity and uprightness." The evidence given by that witness as to the proper mode of workinj the Spur —

viz., by blasting and sluicing — was not 1 consistent with the mutual support theory. Did not his evidence reflect some light i on plaintiffs pntting a cut in the solid i ground to take the races off the loose and moving ground 1 It could not be < reasonably imputed to defendants that they shifted the races off their ground in consequence of tho slip of 1871, as it was shown that two years before they endeavored to make arrangements for doing exactly the same thing. At the time he left, Hutcheson said no appreciable quantity of plaintiffs' stuff had fallen into defendants' ground. It was impossible in the time that intervened for defendants to have washed away all the stuff between their •'claim and plaintiffs' and then washed away plaintiffs' ground. What, he asked, would be the result of this case, were it left to the arbitration of this Hutcheson, who the plaintiffs said was thoroughly honest? Would it not be as stated in his evidence ? He (Mr. Barton) relied upon Hutcheson's evidence as strongly in his favor. A3 he had said before, this was a question involving defendants' characters. They were charged with an attempt to defraud, plaintiffs. What did the accumulated testimony of plaintiffs' old mates, including that of the aged man of 75 years, who came from Port Chalmers, show but the very reverse? He would pas 3 over the evidence of his clients, and put the independent witnesses of one side against those of the other. The result was three to one in favor of defendants. Two questions had been put to Morrison in. reference to evidence given by him in the District Court, and the judge's notes had been produced. He must inform the jury that judges' notes could not be accepted as accurate. Margetts was a man whose veracity he (Mr. Barton) would not attempt to impeach, yet his notes were incorrect. He had no doubt Margetts believed himself the most injured man in Lawrence. His mates assisted him in forming that belief, including that mate who had in court admitted the exchange taking place, who he (Margetts) said never told him anything about it. Margetts hact^pvidently made up his mind to clisbeliev^Grieve, Speirs, or auybody else who told "him, the truth about the exchange. To show that judges' notes notes were unreliable, Mr. Barton read an extract from the famous trial of Bardell v. Pickwick. In the District Court Morrison attributed the ground coming down to blasts, in conjunction with water. What did they know about the effects of blasts after three weeks' hammering, even after going to the Spur to see the great blast of Hales and Co.? All they saw, after that blast, was the hill wreathed in smoke, which oozed from every pore of the face, and a small avalanche that fell ; but tho ground did not perceptibly change. All knew that until water was brought on the ground, it remained in pretty much the same state as it was befoi-e. The other statement Morrison made in the District Court was that" he was not aware whether he might not be involved in a law suit through his own blast. Suppose Hale*, just after his recent blast, had jestingly said to the lawyers assembled to witness it, "I'll Jjaver to engage you in consequence of^this blast," what value could be attached to it ? Morrison, at the time he gave that evidence, could not know what the effect of his blast would be. The effects of blasts were notoriously uncertain, and no man could say with truth, if he fired one, that he might not be made answerable to his neighbors for its effects. After all, the case was very simple. Let the halfacre given by Adams to plaintiffs, but really belonging to defendants, be added to the exchange ground and Speirs' purchase. There was no doubt that the gronnd being constantly slipping forced down all before it into defendants' tailrace, which was in the half acre. But how was it possible to suppose that defendants, by their workings, took away any of the plaintiffs' land? If the jury added ihese pieces of land to defendants' claim, they could come to no other conclusion than that plaintiffs had acted most unfairly in obtaining an injunction on their ex parte statement. That injunction had prevented defendants workingforfivemonths, which necessarily caused great loss, and now they claimed to further mulct defendants in L6OOO. The defendants, seeing that the ground was bound to come down, were anxious to come to some settlement in order to prevent law. They had proposed an exchange of ground, but plaintiffs had declined, saying " Money won't buy it." The fact that Blue Spur defendants never won a case was because Adams was always in favor of the plaintiffs. For that reason no defendants could ever get evidence from Adams, The Judge in the case of the Great Extended Co. v. Hales, had attracted the highest credit to Adams' evidence, and the consequence was that he came back to the Blue Spur a greater autocrat than he was before. But in that case there was no professional surveyor for defendants. The defendants in this case were the first that had brought an independent surveyor to give evidence, and from that dayAdams'powercametoan end. He was convinced that the result of this case would prove an exception to the rule that Blue Spur defendants never won aud that Adams from that date would cease to be the autocrat of the diggers, and would never again dare to show his face on the Blue Spur. The gold stated by Cormack to have been got- out of defendants' tailrace, during the six months prior to the injunction, was the produce of Speirs' and Morrison and Co.'s claim, and a little of it came from Mouat's claim. It had been stated by Cormaok that during that period, defendants had been running for 9, 10, and 12 hours per day, and putting away stuff at a very rapid rate. Before that 6 months, defendants had not been washing so much, being principally engaged in blasting away hard stuff, and ground had been falling into the tailrace, covering up the gold, so that they obtained very little. Consequently, I;he 6 months' returns read by Oormack, included a great deal of gold washed the previous 6 months. They were not making more than usual during the two periods of six months he had mentioned, nor dnrinpf the 20 months they were accused of washing plaintiffs' stuff. During -that time they- obtained £9000 worth of gold out of ten men's labor, and 500 inches of water. Some of the witnesses', stated that the richest stuff was on the' reef. Now defendants had worked down to the reef, consequently the presumption was

that their stuff was the richest, and they valued it at 2s. per yard. It could scarcely be supposed that plaintiffs' claim was richer than that of defendants. But according to the plaintiffs' calculation of the value of their stuff, as he had mentioned in his opening address, they ought to have sued for £50,000 or ; £60,000, instead of a paltry £6000. He would point out if Speirs' ground subsided, it fell on to plaintiffs' claim, consequently plaintiffs obtained defendants' ground. The only points, however, the jury had to decide, were whether Adams had shifted the position of ' plaintiffs' claim ; whether there was an exchange of. ground between the parties ; and whose fault was it that the ground was - slipping ? The defendants had a perfect right to blast on their own claim, and it was clear that their blast of 1871 did not bring down or contribute towards bringing down plaintiffs' stuff. They never put water on Clayton & Co.'s side, nor forced down their ground. There was this indisputable fact, that after 5 months cessation of work, the defendant's tailrace was perfectly clear. If the defendants had broken the backbone of the ground, that tailrace could not possibly have remained clear. It was only top stuff that had come down at any time. The plaintiffs sought to mulct defendants in heavy damages, and practically deprive *them of their claim on evidence which had not proved their casar. If he had not called a single witness— if he had stopped at the conclusion of plaintiffs' case, and demanded a verdict in his favor, he felt sure the jury must have returned it. Grieve could see no damage that plaintiffs had sustained ; neither could Varcoel 1 He (M.v. Barton), directed attention 1 to the evidence of the latter, regarding his getting clear of a fine in consequence of the Perseverance Company bringing down the road. Barclay saw no damage to plaintiffs claim, and said the ground on which his house was situated and the races came down just after plaintiffs' blast of 1868. The plaintiffs put water on the ground when they knew it was rotten, and thus brought down stuff which covered the cutting, and then asked the jury to give them £6000 for the result of their own actions. Grieve had stated in his evidence, that all previous damage had been condoned by the agreement to which he was a party. That blasts in a higher stratum, had les3 effect than those of a lower stratum, was very apparent. Defendants' blast, it had been shown, was placed at a considerably liigher level than plaintiffs'. It had also been stated that blasts fired on the reef, were loss destructive than those fired in the cemen t above the reef. Defendants' blast was fired in- the reef, and plaintiffs' 60 or 70 feet above the reef. In conclusion, h>> thought that he had shown the jury that it would be unfair and unreasonable to deprive defendants of the verdict they expected. Defendants had all along shown a desire to bring disputes to an amicable settlement. They had always been anxious to amalgamate in order to prevent disputes. He felt he could rely upon their general character. They were not men who would do the mean and actions imputed to them. The witness, brought from Port Chalmers, had stated that "Aity" told him that Morrison jumped a piece of land belonging to him, and left him (M'Kenzie) out of the claim. But what were the facts ? It was not Morrison, but " 'Airy" who had left the old man out. Who was it that dealt fairly, honestly, and generously with the aged man, and let him in for a shilling to a claim worth thousands ? Was it •' 'Airy " ? He asked the jury to judge men by their actions. Was Morrison who did this generous thing, likely to rob '"Airy" and Ms mates? If defendants had for twenty months been washing away plaintiffs' stuff, why was not an injunction procured before 1 Why did they let defendants wash away this .rich stuff, and content themselves with negotiations at monthly intervals I Why was not a lawyer consulted till £6000 — or as Adams showed — £65,000 worth of stuff was washed away ? Were defendants to be mulcted because the stuff must inevitably fall into their claim ? He asked the jury to force the plaintiffs to come to a fair settlement, by finding a verdict for defendants. Stuff must inevitably fall from plaintiffs claim into defendants', and from defendants' claim into plaintiffs', and if a verdict were in this case given for plaintiffs, the matter would never be settled, but there would be constant litigation between the parties. Were defendants, because plaintiffs swore false affidavits, and had Adams on their side, to be mulcted in £6000 ? If the jury wished to drive enterprising men from the district — men of goo.l character, and who were working ground that would probably otherwise remain idle, they would accept the ridiculous law of support fossicked up by some lawyer who knew little about it, and mulct the defendants in damages. If they found a verdict for plaintiffs, he (Mr. Barton), would be up in Tuapeka every month making long orations^ and his legal friends and himself would ere long be owners of the Blue Spur. The Couro at 4.30 p.m., adjourned till 10 a.m. the following day. Tttesday, March 4. His Honor took his seat at 10 a.m. Mr. Macassey, in rising to make his reply, said that should he ever foreake the law, and become an architect, if, in that capacity, he had a jury box to design, he would inscribe above it the two mottoes, " Tempus fugit,'* and " Speech is silvern, but silence is golden." Advocates, he was sorry to say, often forgot the value of public time, and indulged in lengthy orations, which were of no possible benefit to themselves or their clients. His friend Mr. Barton had occupied nine hotirs in all in addressing the jury. He (Mr. Macassey) had only taken threequarters of an hour in his opening address, and would be aa brief as possible in his reply. The jury had given earnest attention to every phase of the case, and he would not inflict on them a lengthy harangue, - but would endeavor to. make his remarks as short,' concise, and pointed as he could. He congratulated his learned friend on the moderate and subdued " to|ie that characterised his speech. He was 'really surprised at it, after his sensational opening address., His friend had to contend against • insurmountable obstacles. He had a rotten case, and the witnesses he most relied on, had damaged his case. Mr. Barton had exclaimed, " Can you bet

lieve Adams, can you believe any one of them 1" He would not use such language in connexion with defendants' "witnesses. With Irvine he would deal gently. He would speak of him in the language o{ admiration rather than that of condemnation. Mr. Irvine was a gentleman who moved about the world on good terms with himself, but he had thrown no light upon the matter in dispute. When Mr. Irvine's talents and achievements were better known, he would be better appreciated. The learned counsel described the epitaph that on Mr. Irvine's demise would be composed by his sorrowing and admiring friends, the civil engineers of Otago. After his many virtues and titles, the epitaph would contain a description of his principal achievements, prominent among which would be his survey of Bell Hill, of the rich goldfields of Stewart's Island of the Blue* Spur, and lastly, his invention of the famous "rhinoceros." The epitaph would conclude by stating that he died from the effects of an unequal contest with Adams, one of Thomson's *' pets." His friend Mr. Barton must have suffered the horrors of nightmare the night previous to his speech, and fancied while struggling therein, that Adams was tugging at his throat. His Bpeech reminded him of that one of the American advocate - reported by Dickens in his American sketches. No matter what the subject was, every sentence of the American orator began or ended with "i>oc|pon the Engineer." It was the same withlVlr. Barton. Adams was the staple of every theme — if he did not commence his sentences with Adams, he ' finished with* Adams,. It was Adams, <Adams from the beginning to the end of hjßpeech. His frieud had gone alittle too i fHwith Adams. Hemighthave impugned J Adams' professional ability, but it was unfair to accuse him of thirnblerigging. In this trial, they had been inquiring into facts and circumstances which had occurred 7, 8, 9, and 10 years ago. Facts had assumed an importance which they did not possess at the time of their occurrence. The lapse' of time had dimmed the recollections of witnesses, and they could not speak positively on many " points. He would ask the jury to believe much evidence given by defendants. That of Morrison and Cormack, he especially relied upon. The lapse of time, and natural bias would account for many discrepancies between their testimony and that of plaintiffs. Oormack had given his testimony with recklessness and positivenesa highly unbecoming, and entirely different from Morrison, who had spoken guardedly and with caution, evidently desirous of stating the truth to the best of his ability. Covmack evidently went in to clench every doubtful pomt — to reconcile all discrepancies. Mr. Gormack's evidence reminded him of a story of an Irish solicitor, who, on the briefs he gave to counsel, invariably wrote " If there is anything doubtful or wants clearing up,send for my clerk." Mr. Cormack had in this instance acted as the clerk, and performed hi 3 duty well. It was singular that Cormack had been called last. He was a man acquainted with many important facts, and was one of the defendants. His evidence was distinctly contradicted by one of his own witnesses, Bai-clay, and had also been directly contradicted by Hutcheson. M'Ciintock had given his evidence in an Irish fashion. That witness was a sort of Tichborne claimant. His answer to every question was either ''Don't remember" or "Sure what T say now I told him then." This gentleman talks differently when merely conversing and when on his oath. His learned friend wormed round and round the exchange and the sale to Speirs. They were told that clever financiers, when asked for a balance sheet, resorted to a process of mystification known as "cooking the accounts." He was afraid his friend was trying something similar. He (Mr. Macassey) did not attempt to dispute the sale to Speirs, nor the transaction called an exchange. If plaintiffs purchased a lease unencumbered on its face, it would be a hardship that they should have to give up a portion of the land in it. If defendants did not ' BB 6*6 * properly authenticated transfers of the ground purchased or obtained by exchange, and they lostsuch lands subsequently, it was their own look out. This sale and exchange would be reserved for the decision of the learned judge in bcmico, and merely affected the question of damages. The position would be easily illustrated. Suppose a man had a paddock and a neighbor destroyed the fence enclosing it, worth say £250. When asked to pay for the damage the neighbor might claim one corner as a purchase, and another piece of the land as an exchange. If the owner of the land admitted the sale and exchange, it would be the duty of the jury to deduct the value from the total amount and return a verdict for the balance. From Clayton's evidence it was clear that by a transaction effected some years ago, defendants acquired a right to cut a tailrace through plaintiffs' gronnd. That cutting was regarded as the boundary of the two claims, but where it was situate • was a queation. When he came to the .i. question of damages, he would invite their attention upon that point. He would now come to the great question at issue. Mr Barton had inveighed strongly against the law of mutual support. He had said whatever might be the law in England, it did not apply to mining claims in the colony, and especially did not appty to Blue Spur claims. He had also inveighed Btrongly against the conduct of plaintiffs in injuring defendants by the injunction they put on their workings. Did these considerations present themselves to the defendants when they obtained an injunction against Hales & Co. in the case Drought by the Great Extended Co. against that company? Did it strike tie defendants then that -the law of support was preposterously absurd ; and did it also strike them that it was unjnsfc and unfair then to prevent Hales and Co. working? They had heard about the liberality of the defendants, and their wish to stand well in the estimation of their fellows. All knew the' Golden Rule, " do unto others as you .would that they should unto yon." Judged by that rule, how did defendants conduct appear? If, as had been stated, the present case was to usher in the year of jubilee for the legal profession, who was •to blame? Not the present plaintiffs, - certainly, but defendants, who, as the Great Extended Company, had raised tne doctrine of mutual support, left others to follow their example. If defen-

dants suffered by the weapons used against them, they must remember that those weapons were introduced and approved by themselves. A great deal had been said about the difficulty of applying the law of mutual support to the Blue Spur. It was the proudest boast of an Englishman, that the law was no respecter of persons. No judge would dare to strain the law to meet a particular case. The same law that applied to the rest of the colony, must apply to the Blue Spur, notwithstanding" any difficulty in its application. His friend had expressed great anxiety that the shareholders of the Spur should meet t6gether and arrange how they should work their claims. A verdict for the plaintiffs would not heraldin the lawyers year of jubilee, as Mr. Barton stated, but would do more than the finest oratory or eloquence to lead to an amalgama- j tion, and if the jury wished to see this result, they wouid award exemplary damages against the defendants. The law j was that a man must use his own land so j as not to injure that of his neighbors. All plaintiffs asked was that defendants should confine their operations within proper limits. But defendants appeared to wish the power to batter their claim as they pleased, regardless of their neighbors' rights. Th&y did not believe in the Golden Rule — For why ? Because the good old rule Suffioeth them — the simple plan , That they should take who have the power, And tliey should keep who can. The defendants, in pursuance of this rule, had blasted and knocked about their claim, till they brought down stuff from and destroyed the stability of their neighbor's ground. "Are we," exclaimed Mr. Barton, "to h& made a basin for your pulp." Certainly not ; but plaintiffs objected to be made a spittoon for defendants use. Mr. Maccassey read extracts from Ms Honor's summing up iv the case of the Great Extended Co. v. Hales, stating that he relied upon them as in his favor. He asked only the same measure of damages as the Great Extended Co. asked from Hales and Co.. The summing up of his Honor in that case, which was in favor of plaintiffs, he considered as in the favor of his clients. He would now turn to the landslip. Beyond Speirs' purchase and the exchange, defendants 3 operations in 1871 had the effect of destroying the natural support of plaintiffs' claim. Defendants said the landslip was caused by plaintiffs' blast of 1868 and water percolating through the ground shaken by that blast. There was no dispute about the facts spoken of by his learned friend ; but the inference to be drawn^ therefrom was contested If plaintiffs had acted the same as defendants, they would have told Keppel the same as Cormack told them (plaintiffs)— viz., that the slipping of the ground was attributable to a "soapy seam," or the "hydraulic pressure of water." But plaintiffs did not do that. Being men accustomed to fair dealing and justice, they bought Keppel out. - He did not deny that shortly after the blast of 1868, the road and the races broke away, and that plaintiffs had to purchase a piece of land from the _Great Extended Co. to re-erect the races upon. But they scorned to resort to snch subterfuges as defendants had. They admitted their liability, and paid it like honest men. It had. been stated that after plainciffij' blast of 18ij8, water appeared in Morrison and Co.'s face. This was an inference he denied. Did the jury believe that the water which appeared in Morrisson and Co.'s face, was attributable to plaintiffs blast, or to their (Morrison and Co.'s) own action ? Defendants, it had been shown, had fired blasts previously to 1808, and several between 1868 and 1871. It was surely more reasonable to suppose that the cracks through which that water oozed was caused by the defendants' own operations. Did the jury believe that Cormack told 'the truth when he said a stream of 8 to 10 inches of water was constantly running from 1868 to 1871 ? Barclay, one of his own mates, directly contradicted him on this point. Barclay had the same opportunity of observing, and self interest would prompt him to back up Cormaek's statement. Morrison said he saw the water coming through the face in 1868. It was a fair inference to draw from that that he did not see it afterwards. This witness said he complained to a man now hi~ England. Was it not probable that if the water had been coming through the face as stated by defendants, proceedings would have been taken to stop the nuisance ? " As such had not been done, defendants could not have believed that the crevices in their face were caused by plaintiffs' blast. The blast fired by plaintiffs in 1868, was not an unusually heavy one— no heavier than defendants' previous one. Cormack had jointed out defendants' and plaintiffs' workings on the plan, and showed a ridge between the two. A portion of that ridge was still standing. Was it likely that if plaintiffs' blast and water had such an effect as stated by defendants, that any part of the ridge would have remained ? He now came to the blast of 1871. Immediately after that blast, several witnesses had asserted that they had seen cracks extending a radius of 200 feet. Defendants had admitted that through it part of Speirs' claim came down, part of the exchange came down, and the races broke away. But it was significant that according to defendants, none / of plaintiffs' ground came away through the blast. Was it more reasonable to attribute the slipping of plaintiffs' ground to a blast fired three years before, or to one fired just previous to the slip. Mr. Barton had stated that judges' notes were un- [ reliable, and asked the jury not to attach any weight to Judge Gray's notes of evidence given by Morrison in the District Court, which had been produced. Making the most ample allowance for gradual change in his opinions, was it not more probable that when he gave his evidence in the District Court, when the circumstances were fresh in his memory, and he was not interested in the result of the suit,* that Morrison's evidence was more reliable than the evidence he gave during the present action, in which he was deeply interested, and the lapse of time had dimmed his recollection ? In the face of the evidence given by Morrison in the District Court, it was idle for defendants to state that the cracks which occurred in 1871 were a continuation of those caused by plain-

tiffs' blast of 1868. That District Court evidence was not to be got over. The restoration of the races cost defendants £500. If they thought the Perseverance Co. liable for bringing down these races, would they have spent that amount in replacing them ? Cormack stated be wished to Bue the Perseverance Co. for bringing down the races, but was overruled. There was a strong contrast between Cormack's and Morrison's evidence. Morrison candidly admitted facts, while Cormack denied everything likely to weigh against his side. Cormaek's evidence was contradicted by Jenkin Evans, and also by the witness Hutcheson, to whose probity himself and his learned friend joined m paying the highest respect and esteem. This was another instance of the unreliability of Cormaek's evidence. The restoration of the races by defendants was said to have been the result of some previous arrangement. He (Mr. Macassey), said it was done for the same reason that plaintiffs shifted the races off their ground in 186 S. The breaking away of the races in 1871 was the fair and natural result of defendants' blast of that year, as the breaking away of the races in 1868 was caused by plaintiffs' blast of 1868. Plaintiffs did in a manly way ■what the law imposed when their blast broke down the races ; but defendants came and asked the jury to believe the impi'obable story that the races fell in 1871 from the effects of the blast of 1868. Defendants hadstated that a "soapy seam" had determined the fall of the stuff. He (Mr. Macassey) had heard of " Soapy Sam," but had never before heard of a soapy seam. This soapy seam was something like the sea serpent occasionally heard of. It ' had been found in only 4 claims on the Spur; and it was a singular coincidence that all these claims had been engaged in litigation with Morrison and Co. Defendants would be more entitled to credence if they had said that a heavy earthquake had caused the landslip. Henceforward Morrison, Cormack, and Nieoll would be known as the " Soapy Seam Company." Eegarding the 3rd issue, if the jury believed the evidence of plaintiffs, there could not be a doubt as to what their verdict ought to be. It had been admitted, and his learned friend had boasted that there was a piece of plaintiffs' land that must inevitably fall into defendants' claim. How were they to account for this ? Plaintiffs, Nicoll admitted, had uot been working on the side of their claim next to Morrison's since 1868. It would, therefore, be absurd to suppose that they, by any action of their own, had contributed to give this windfall to Morrison and Co., by putting water over the ground or otherwise. If the consequences of the blast of 1871, were to be attributed to defendants, and not to plaintiffs, the jury would have no difficulty in coming to a decision in this issue. Defendants denied that any damage had been done to plaintiffs' claim. It must, however, be admitted, that they must sustain a material damage, since, by defendants' own admission, there was a piece of plaintiffs' land that must inevitably fall into their workings. Assuming that plaintiffs wished to sell, would not that piece of land which was bound to fall act as a hindrance ? Plaintiffs' claim, it had .been sworn, had depreciated in value to the extent of £150 or £200 per share, or £1000 to £1400 in all. This was altogether distinct from the damage they had sustained by the defendant's taking away their stuff. In the declaration, the position of plaintiffs' land was correctly described. If the jury were enbarrassed about the position of peg 85, it was not plaintiffs' fault. That peg was placed rightly or wrongly in 1868, and replaced since in the same position. Defendants had at least tacitly acquiesced in that position, and now, five years afterwards, disputed it. If Irvine's survey were correct, and 12 roods 4 perches given to defendants, then a portion of Speirs' claim would necessarily belong to plaintiffs. He was quite willing to assume that neither plaintiffs' nor defendants' lease bad any possible validity. If these leases landed plaintiffs in Munros Gully, they must also land defendants there. He was also willing to admit that Drummond's traverse could not be reproduced, and that 50 links had been dropped by Drumraond. He was equally willing to meet his learned friend on the grounds that the lease was in force, or that it was not in force. - The question was, Did Adams place peg 85 in its proper position ? Irvine had not worked out the traverse — had not gone over the ground, but had merely the positions of the claims. Was not the difference between Irvine and Adams a difference in terms rather than in reality ? Some men had taken up leases at the Spur, and Drummond was called in to survey them. , Owing, perhaps, to causes over which he had no control, his survey was inaccurata, and a more competent surveyor called in to re-survey the same pieces of land. Although there was a difference in the descriptions, there could be no doubt that the same pieces of land were meant by both. (Mr. Macassey here placed the tracing of Drianmond's survey upon Adams' plan, and ex-plained the points of correspondence). There could be no doubt he continued, that Adams surveyed in 1868, the same piece of land Drummond pegged in 1865. The discrepancy between Irvine's survey, and the

testimony of the practical witnesses produced by Mr. Barton, shed a light upon bhe matter. His learned friend asked the jury to disbelieve the evidence of his own practical witnesses, and to credit the theoretical speculators of the distinguished engineer from Port Chalmers. Mr. Macassey here read the evidence of Nicol, Varcoe and May, relative to the position of the pegs, stating that it was clear from the difference of opinion between these men as to the position of peg 85, that it was impossible to rely upon tho testimony of miners, and they must therefore depend upon that of skilled witnesses. If Irvine had some years previously made a survey, and then came recently and made another, they would have fair reason to doubt Adams' survey. Drummond's survey having been admitted by himself to be inaccurate, Adams, who was unconnected with any claimholder, was sent up by the Warden, not to survey only one claim, but all the claims on the Spur. Adams obtained the best evidence from the miners of the position of the pegs, and this part of his testimony was singularly corroborated by what they had heard of the dispute between Speirs and Thompson. What motive had Adams for placing the peg in any other position than the true one ? Adams' plan, moreover, corresponded closely with Drummond's. Could the jury understand a skilled surveyor, having so many landmarks, making a ■ mistake as to the position of a peg. He asked the jury to compare the relative positions of the pegs as laid 'down by Adams with those laid down Drummond. Considering the difference in the evidence, it was far better to believe Adams, whose professional i reputation was at stake, and whose survey had been acquiesced in at the time by the defendants, and not disputed for five long years. The sketch given by Nicholson to Cormack conveyed a good deal of information to a gentleman of his perception. When Cormack saw tho increase in the area of the Perseverance claim, did no glimmering that peg 85 had been shifted dawn upon him ? There was a certain class of stories so improbable that they were narrated only to marines, and this was one of that class. The area of Speirs' claim was 3 roods 11 perches. If the pegs were shifted, as stated by Irvine, that area would have been materially affected. But there was the additional testimony Umt defendants had obtained a new lease for this claim. That new lease included the road. The defendants must have been struck with the difference between the description in the original lease and the description in the new one. This fresh description they acquiesced in. After adopting Adams' survey as conclusive, now, after five years, defendants disputed it. The evidence produced by defendants themselves as to the position of the pegs was conflicting. In a conflict of evideuce it was safer to adopt Mr. Adams' survey, which was made when he was a Government officer, and haduo pecuniary iuterest whatever in his survey. There was this further, that after Adams had been employed by plaintiffs after — defendants had accused him of incompetency and thimble-rigging, they had employed him to draw plans. It came with an exceedingly ill grace from defendants, after such a lapse of time, to object to the survey. Was he to be told that if defendants thought the survey was wrong, it was not their duty, within a reasonable time, to have gone to the Warden and complained, and if that officer did not then interfere, to have gone to the head of the Survey Department, and caused inquiries to be instituted? Were they, after five years had passed without any complaint save a passing remonstrance, to dispute the survey, and that not in an action about boundaries, but in one brought to recover damages for injuries they had inflicted on adjacent ' claimholders ? That his survey was inaccurate was admitted by Drummond in his letter of ] 866, and he further stated that at that time some of the pegs were removed either accidentally or intentionally. A man making the mistakes that Drummond had been proved to have made, was capable of making any mistake, and wholly unreliable. The jury would find it safer to believe Adams in preference to Irvine. Adams was either a competent surveyor or he was not. If he was a competent surveyor, his survey could not be disputed. It would be sanctioning a very dangerous precedent if men were allowed, after such a lapse of time, to dispute the accuracy of a survey placed on the record map. The record map was relied upon as showing the correct situation of all the claims in the district, and if its correctness were denied, it would throw all the claims into complete conftfsipn. The jury might assume that if it was the interests of defendants to complain of Adams' survey, they would have complained long ago. Would the jury reopen a question long deemed settled? If they did, they would be acting detrimentally to the interests of all engaged in mining upon the B,lue Spur. On the question of the damages, he would leave Speirs' purchase out of consideration. He called attention to the guarded evidence of Morrison and Nicoll, who would not undertake to say that no stuff fell down from plaintiffs' claim. Cormack was more positive, and denied that any stuff had fallen from plaintiffs' ground, but it would have been more creditable to

him if he had made admissions like his partners. It would have been more creditable for all of defendants if they had, before proceedings were commenced, admitted that stuff was coming into their claim from plaintiffs', and offered to pay for it. He was confident tho jury would not accept the statement that no stuff fell from plaintiffs' into defendants' claim. Clayton estimated the quantity that had so fallen at 30,000 cubic yards ; Margetts at between 30,000 and 40,000 cubic yards ; and Evans at 3G,000 cubic yards. Adams had calculated that 9032 yards had fallen between July 9th, and September 23rd. Hutcheson, in his evidence, stated that up to the month of April, 1871, plaintiffs had sustained no material damage. This was quite correct. For four months after the 3rd February, no great damage had been done. Men speaking under the influence of their own interest were "apt to place a higher value on their own property than it was zeally worth. He was willing to make some reductions on that score. Assuming that 30,000 yards had been washed away during 14 months, that would only 82 yards a-day. That would scarcely yield the enormous fortune spoken of by his learned friend, whose statement in respect to that matter was another illustration of the truth of the saying that anything could be proved by figures. Nicoll had said in his evidence that Morrison & Co., with the water they used, could wash away 200 to 30J cubic yards per day ; so it would be seen that estimate was not extravagant. lie begged tLe jury not to forget the conversations. ' Assuming that the contradictions by plaintiifs were in the main correct, whether were plaintiffs' or defendants' versions of the conversation the more natural or probable? Margetts was a man of education, a master of language, and he meant exactly what he wrote down. Besides, his versions of what took place were corroborated by proved facts. Was it not reasonable to suppose that if plaintiffs imagined their ground was slipping into defendants' claim there would be frequent conversations between the parties? Nicoll on one of these occasions, on offered plaintiffs his tail race. Did not that show that as far back as that time, plaintiffs had some cause of complaint? The jury could not believe that Margetts had manufactured those conversations. If those conversations were borne out, they showed that after the blast of 1871, plaintiffs ground did slip down into defendants' workings, and was washed away. The conversations he principally directed attention to, were those of June and September. The evidence given by Morrison in the District Court, he (Mr. Macassey) held to show that he was afraid that the blast of 1871 would bring down some of his neighbors' ground. Clayton's evidence threw a different complexion on the matter. It showed that defendants were intentionally undermining plaintiffs' ground, but he did not wish to press that view. Nicoll's wish to purchase a piece of land from plaintiffs, corroborated Clayton's evidence on this point. If they had written to plaintiffs, stating their willingness to pay for what they had washed, they would have acknowledged that shey had erred, but not intentionally. But they had not done so, and their action indicated that they were determined to do as they liked, regardless of their neighbors. Then as to the value. He had no doubt that the jury would estimate the quantity of stuff run off at 30,000 cubic yards. They had the returns of plaintiffs' waahings-up for 14 months read, but their last six months returns had not been asked by defendants. There was no doubt that it was a rich claim, as a fourteenth share in it, had been sold for £800, making its total value £11,300. The tests of value made by plaintiffs were undoubtedly correct. Exception had been taken to these tests, because they had not been made with a new box. Cormack, however, stated that in the case of the Great Extended Co. v. Hales, the former used a new box and an old one, to test the value of the stuff. Plaintiffs had valued the stuff at 5s 6d per yard. The ground around had been valued at 2s per yard, and in their case against Hales, the Great Extended Co. estimated their stuff at 2s 4^d^ per yard. He was willing to meet defendants any way. Splitting the difference would make the stuff worth 3s 6d per yard. This would make the damages under the third count, £5250. Under the first count, the damages were £1150 ; adding the two together, would give a total of £6400. Mr. Barton had dwelt upon the fact that plaintiffs had allowed twenty months to elapse before coming into court. Did it not show creditable forbearance that plaintiffs did not until compelled by imperative necessity, resort to the law to put a atop to the annoyance and loss caused by defendants? Mr. Barton had stated the reason why Blue Spur plaintiffs always won, was because they had Adams on their side. He (Mr. Macassey), attributed that to the fact that Adams was never caught napping, and to the forbearance of miners who only came to the court -after exhausting every fair means to come to a settlement. His learned friend had wound round and round the whole case, a tangled skein of ingenious sophistry, which he (Mr. Macassey,), thought he had succeeded" in unravel-

ling, and laying the matters in dispute plainly before the jury. Speirs' purchase and the exchange, lie had left to the last, because he did not attach much importance to them. Whatever deductions might be made on account of them, he would obtain leave to move to enter a verdict for the full amount. Clayton said the extent of the sale to Speirs was 15 feet. Speirs said it was 50 feet, and Dochertv had said it was 15 feet. ' Whether "it was 15 or 50 i feet, was a matter of no importance, as the ground had been worked out long ago according to Clayton, Speirs, and M'Ciintock. The quantity that slipped from Speirs' claim into plaintiffs' was estimated by Adams at 40 feet, and the jury would have to deduct from the quantity of plaintiffs' stuff that fell into defendants' claim. It was evident that some transaction in the nature of an exchange took place between Clayton & Co. and Morrison & Co. years ago. The only doubt was as to the position of the cutting and the area exchanged. The particulars of that exchange, were like peg 85, enveloped in mystery. The evidence as to the situation of the cutting, was. as Margetts said, so conflicting, that it was impossible to fix it. His learned friend said that it was for plaintiffs to prove their case. But .when defendants set up a claim, they must support it by reliable evidence. Instead of that the jury were asked to fix the position of the cutting on the most loose and unreliable testimony. It had been variously estimated at a distance of 50, 60, and 100 feet from the Perseverance boundary. If Grieve bought in by the boundary he had stated and sold out by that bouudary, what value could be placed on the testimony of others less interested ? All the witness who | spoke about the boundary told, as Margetts had written in his notes, different stories. The statements of these men wore unreliable, merely because after a lapse of time they did not remember the boundaries. It was only a question of damages. If the jury concluded the exchange was made, he asked them to assign it a boundary, and \ to estimate the quantity of stuff that came from ifc. He would draw their atteution, however, to the fact that there was no evidence on this point. He believed that instead of neutralising mining enterprise at the Spur, as predicted by Mr. Barton, quite a contrary effect would be produced by a verdict for plaintiffs. The jury by awarding substantial damages would lessen litigation, and pave the way for amalgamation. If they applied the Grolden Eule to the case, the claimholders on i the Blue Spur would be taught to regard the rights of others. When Mr. Macassey concluded, there was a burst of applause from the crowd that had assembled in the Court. It being 1 o'clock, the usual mid-day adjournment took place.