THURSDAY, AUGUST 9, 1866.

West Coast Times, Issue 278, 14 August 1866, Page 2

THURSDAY, AUGUST 9, 1866.

WILMOT V. BERI^INGTON AND ANOTHER.

[The report of this case was withheld in our Friday's issue, ia consequence of the length to which the report of the greenstone case extended, and the pressure of Summary matter has since prevented our giving it publicity.] Messrs Button and Harvey for the plaintiff, and Mr Campbell for the defendants. The following jury was sworn :— Thos. 11. Proctor (foreman), Andrew Orr, Alexander Grant, Frederick Seland, Peter Connolly, Joseph Beale, George Lowe, Robert Upjohn, John Cross, Edward Savage, Walter Ramsay, and Angus M'llae. The Registrar read the issue, and Mr Harvey thereupon stated that the present case was one of interpleader, brought under the statute 7 Will 4 and 1 Vie. He called Frederick John Eaton, who was examined by Mr Button and deposed that he was clerk to Mr Sale, as Commissioner, and produced the Sheriff's warrant to bailiff, account sales, sundry charges connected therewith, bailiff's charges, and the order to pay the man in possession, and draft for the nett proceeds of the sale of the goods seized. The possession money . was to be deducted from the draft. The goods sold appeared by the account sales to have brought L 46 9s. By Mr Campbell — I received these documents from the acting bailiff who was put in possession. James Brewer was the bailiff to whom tbia warrant was addressed. Th^so papers came from Brewer, and they are the returns by him. Ido not know if the returns are correct. Hugh Robertson, examined by Mr Harvey, deposed that he was a baker, and formerly carried on business as baker ,and hotel-keeper in Queenstown, which he left in the latter end of April, 1864. lie knew the plaintiff in this case in Queenstown. He was a packer and general servant for witness, and got L 5 per week. Up to the time witness left, he was in his employ. Witness left Queenstown because he could not meet his demands, and he went to Dunedin. He met Wilmot in Dunedin, and he paid his (witness') passage to Picton, whither he accompanied him. Frederick John Eaton was here recalled, • and produced writ of fieri facias, which had been issued. Hugh Robertson (resumed). At the time witness was at Picton there were warrants for him, and he ran away to the West Coast. He was working for Wilmot at Picton as a baker, and was paid L 3 per week. After witness left Picton he next met Wilmot at the Six Mile. Witness was then baking on his own account. Wilmot was packing for witness and other people. The reason witness left the Six Mile was he had to send some money to his wife and family, so he sold out and sent the proceeds home. He then went to the Kanieri, and put up a bakery for Wilmot, who agreed to give witness L 4 per week wages as a baker. Witness continued in his employment until he was asked for L2O by Mr Churches. He had not got it, but offered part of his wages. He was obligid to leave his place because he could not pay it. About seven or eight months afterwards he saw Wilmot at the Grey. Witness then settled at Okarita, and shortly afterwards Wilmot came there, He bought eleveu feet of ground from vwitness, who had purchased it about ten days before. 'Wilmot built on the ground and engaged witness to work for him as as baker and general servant, at L 3 per week. Witness found neither materials nor money for the building. (Sale note of the site produced and put in.) This note produced was witness 1 , writing Wilmot paid witness L2O then, and gave him the remaining Ll5 a little while after. He commenced business as a baker, but witness did not supply any of the materials. -Witness was a better judge "Of flour than Wilmot, and used to he sent to select it. Wituebs never paid for any flour with his own money. He continued in Wilmot's employ at Okarita six or seven weeks or more. He did not remain in Okarita for more than one or two days after he left Wilmot's employ. The sheriff did not take possession of the store or goods until after witness had left Okarita and returned to it.' Witness was un the premises when the bailiff entered, but he did not know whether that was the first tiiie he had been there or not, Witness had neither directly or indirectly any interest in the store and goods seized. By Mr Campbell— Churches and Bennings' debt was contracted in Queen3towu. I was' served with a , writ for it there ; I bolted from there to avoid niy creditors. I filed my schedule in Dunedin last October, but I had no money to stop, so I went to the West Coast. I got a protection and could not get back to attend the hearing, so my protection was withdrawn. This was about eighteen months after I went to Picton. I did not contract any debts in Picton. My reason for filing my schedule in Dunediu was because I was never let stop in any one place long by my creditors. 1 cannot say that Messrs Churches aud Benning troubled me in Picton. When I took up this ground at Okarita I had no business licence. The sale note was signed by me on the day it bears date, and I received L2O, on account, in bank notes ; the balance, Ll5, was also in bank notes. When I sold the land I had only a tent and a few slabs on the ground. I took the tent off, and let the slabs go with the ground. I worked on the building in a general way. I saw Mr Ching there one day. I did no business on my own account at Okarita previous to selling the land to Wilmot. I ordered some flour from Alcorn, but I don't remember the month, nor whether I bought flour more than once. The flour was always ordered for Wilmot, and I always told him to put in his name. I told him he was wrong in having put down my name. When I speak of Alcorn I mean his partner, Mr M'Farlane. I think the last time I spoke to him was in May last. It was long before the bailiff went in. I bought nothing on my own account. I had uo interest in the business at Okarita. I was not a partner. My wages were paid every week. Matthew Wilmot, examined by Mr Button, deposed that he was the plaiutiff in the case. The witness corroborated the last witness in the material parts of the evidence. The accounts for materials supplied for building the store were put iv 1 awl identify Witness, in eoftttauation,

deposed that he took moat of the materials with him to Okarita, but he bought spine more tht-re. When he got to Okarita he met Robertson, and bought a piece of ground from him. • (Sale note produced and identified.) Witness paid him L 35 in full for it. Witness had a business license. He built a bakehouse and shop on the " laud with the materials he had brought down and what he had bought there. Robertson, and a carpenter helped to build it. Robertson had to be paid L 3 per week as a general servant. Witness found bsking utensils, stock, flour, butter &c. He was not present when the bailiff entered. He had been out five or ten ramuteS, and when he came back the bailiff was in the place. • He took possession of the buiWing and all that was in it. Witness claimed it. Robertson had left witness' employ very nearly a week before this, but he returned that night. He came after some things he had left behind— some letters and blankets, &c. Robertson was never a partner, and had no interest in the things. Robertson told the bailiff the place was wituesa', and that he had nothing to do with it.

By Mr Campbell— l paid the purchase money in notes. Robertson has owed me money these three years, bat he wanted to send the purchase money to big wife. I paid him his wages to send to his wife and family. I cannot say if he sent them. I did not propose to take the L 35 on account of the old debt. I never pushed him for payment, as I knew he had not the money. I had a business license which had not expired when I went to Okarita. I took out another there. It was before the plaintiff took possession, but after he had come into the house the first time. I took out the second license because, as I had left the first in Ilokitika, I did not exactly know when it expired. I know now that it expired on the 22nd May. by enquiry iat the Warden's office when I came ;up from Okarita to complain about I what had been done. Two or thr^o of the bills were wide out in Robertson's name, but I cannot assign any reason for this. I paid them. Mr Macfnxlnne or some of the men said it did not matter much. It was in April, or May when I paid the bills. I told Robertson to get the name altered.' He had no interest in the store. lie was not my partner. By Mr Button— l came up to Hokitika the day after the bailiff toolf possession for the purpose of informing the sheriff. It was then I found out that the business license expired on the 22ud May. By his Honor— l never paid Robertson any money for himself, besides his wages and the purchase money. Daniel Lewis, examined by Mr Harvey, deposed that he was a' carpenter, and resided at present in Hokitika. He knew the plaintiff, and was working for him at Okarita in the month of March, putting in the front. The building was called " The Times Bakery." Mr- Wilmot paid witness for the worlc^ Hugh Robertson was assisting to put up the bakery. Witness understood that he was working for Wilmot, for he saw him going in for instructions. Witness went to Mr Wilmot for instructions. By Mr Campbell— l was not present when any engagement was mj»de with Robertson. I do not know if he was a partner. Mr Cimpbell addressed • the jury on behalf of the defendant, contending that the circumstances of the case were such as would convince the jurj>- that, at the time of the seizure by the bailiff, the property either belonged to Robertson, the judgment debtor, or that he had an interest in it as a partner* with the defendant. He called no witnesses. Mr Button then replied on behalf of the defendant, saying that the learned gentleman had founded his arguments on assumptions and presumptions, and would therefore be entitled to no weight at all. He (Mr Button) would ask the jury whether the plaintiff and Robertson should be accused of committing wilful and deliberate perjury upon pure assumptions, and where no witnesseshad been called to contradict them. He contended that it had been clearly proved that Robertson had no interest in the property at the, time of the levy, but that it belonged solely to the plaintiff. His Honor summed up the evidence in a very brief manner, stating that the facts of the case were so strong that there could be no doubt in the matter. The jury, without retiring, returned a verdict in favor of the plaintiff. The jury were then excused till halfpast one to-morrow. THE GBEENSTONE CASE. During the trial of the above case an application was made by Mr Harvey for a new trial in this case during the preseut sitting. The learned gentleman said that if he were brought' from Dunediu here next sittings, it would entail great expense on his client. He would, however, wait until MrjSouth was present. Mr South subsequently entered the Court, and it was arranged that the case should be tried again next day, at half-past one o'clock, stnd that the evidence, as recorded in the Judge's notes, should he read to the jury in lieu of re-examining witnesses, but that the plaintiff's counsel should have the privilege of Recalling and re-examining him. The Court then adjourned.