SUPREME COURT.

Wellington Independent, Volume XVII, Issue 1731, 13 June 1862, Page 3

SUPREME COURT.

Tuesday, June 10. Joseph and another y, Turnbull. (Before His Honor Judge Johuston and a Special Jury.) His Honor took his seat on the bench at 10 o'clock, when the case of Joseph & Co. against Turnbull & Co., came on for trial. The following special jury were erapannelled — W", M. Bannatyne, Esq., (foreman) ;W. B. Bhodes, G, Crawford, G. Moore, J. H. Bethune, T. Kebbell, C. J. Pharazyn, J.Johnston, J. Dransfield, E. J. Duncan, W. W. Taylor, and W. Spinks, Esquires. Mr. Brandon appeared for the plaintiffs, and Mr. Hart for the defendants. This was an action upon a promissory note given by defendants to plaintiffs in payment for 7 qr.-casks brandy, but which they declined to take up on the ground that the brandy supplied was not according to contract. The defendants paid into Court £46 155.; the balance, £24 12s. 6d., they refused to pay, because of losses sustained through the plaintiffs allegtd breach of contract. The following were the issues of the trial: — 1. Was the brandy mentioned in the pleadings as delivered by the plaintiffs under the contract equal in quality to the sample of brandy shown by the plaintiffs to the defendants at the time of the sale thereof? 2. Was the brandy mentioned in the pleadings other than French brandy ? 3. If so, did the plaintiffs warrant the said brandy to be French brandy? 4. And if they did warrant the said brandy to be French brandy, or if the said brandy was not equal in quality to the sample shown, or warranted to be equal to sample, what allowance in price, if a,ny, should be made by the plaintiffs to the defendants? Mr. Hart stated the case for the defendants, and called, A. P. Stuart, deposed — I am a merchant in Wellington :, I recollect Turnbull & Co. applying, in July last year, for second quality of French brand/; I shewed Mr. Turnbull a sample; I think the first price I asked was 9s. 6d. ; the price we finally arrived at was Bs. 6d.; Mr. Walter Tuinbull had been examined by consent previous to his sailing for England. The Registrar was here sworn — The sample of brandy produced was produced to me by Mr. W. Turnbull, when examined before me on the 6th Feb. last, and has been iv ray custody ever since. Examination of Mr. Stuart continued — I recollect one day in February last, being applied to by Mr. Turn bull for a sample of brandy, which I furnished that day ; it was similar to the bottle produced ; I know one sort of brandy from another ; this brandy I have every reason to believe is a sample of the same lot of braudy; I have a merchant's average taste for brandy; I deal in brandy, and it is necessary for this purpose that I should taste it, [tfere a second sample (B) was produced, which had, on the 6th of February, been produced to the Registrar.] This sample does not taste Kke the previous sample produced, and, in my opinion, it is not French brandy ; the price ot this would be less, but I cannot say how much less. [Third sample (C) produced. This was also produced to the .Registrar at the same date] (Witness here tasted this sample, and immediately spat it out of his mouth.) This is more like malt spirit ; what is acknowledged as French brandy in commerce is not like this spirit ; I think we have sold similar brandy at about 4s. 6d. ; we call it pale brandy. By Mr. Brandon — I have been accustomed to deal in brandy in this place for about 5 years ; lam a»vare there are inferior French brandies ; our sample was an inferior quality ; I am aware that bad brandy is imported into England from France ; I have not seen what is termed French brandy of so bad a quality as British brandy ; the prices of brandy have varied to some extent since July last year ; when we offered that brandy the state of the market was low ; 9s. 6d. was a fair price at that time ; there was not a great demand for superior brandies then ; I think Martell's wis selling at that time at 13s. 6d., but I speak from memory ; there is sometimes a greater run upon pa'e brandy than upon daik ; good pale was then in demand ; we had three or four qualities in stock at that time ; W. Turnbull got a sample from us in February last; I could not swear that it was out of the sime cask that I gave him in July last ; it was out of the same lot ; we sold some brandy to Mr. Hickson after the arrival of the following English mail ; the price had then run up j I sold the brandy to Mr. Hickson at 11s. 6d.; it was about the end of July, two or three weeks after giving the sample to Mr. Turnlmll. A document was here produced as being the Custom-house entry for the brandy sold by the plaintiff to the defendants. By Mr. Hart — This is a Customhouse document ; it is an import warehouse entry, containing the description of the goods bonded ; under ths head of "produce," I find the word " British" with the pen struck across it; and the word "Foreign" written over it ; the column is to distinguish whether British or foreign. George Tuinbull, being sworn, deposed— l am a merchant trading in Wellington, and one bfthe defendants in this cause; we had an order from Otago in July last year for a quantity of common French brandy; we applied to Stuart & Co., and Joseph & Co., the plaintiffs, for samples of some brandy, which we understood they had ; we compared the two samples ; the price asked by Joseph & Co., was 10s. but it was afterwards reduce I to 75., at which price we purchased it ; I dou't remember the first price asked by Mr. Stuart, but he ultimately agreed to sell it at Bs. 6d. ; the negociatiuns for the reduction of the price by Joseph & Co. extended over a period of three or four days • the conclusion we arrived at, on comparing the' brandies was, that Joseph & Co.'s was much the cheapest ; I. recognise this (A) as like Stuart & Co.'s brandy ; Joseph & Co.'s was so similiar that we did not know which was the best ; this brandy (B) is much worse than the samples we obtained from either houses ; it is much worse in smell ; it is by the smell we chiefly test it ; in my opinion it is not like French brandy ; brandy (C) is much worse in colour; there is not so much difference between the taste and smell ; it is certainly not French brandy ; I was present when W. Turnbull was examined by Mr. Strang; he produced three bottles, and only three ; comparing (B) with (C) I should decidedly say they were not the same brandy; I have been dealing in brandy for the last four years and a-half ; brandy in hhds. and qr-casks are sold by different samples ; I siiould think about 2s. is the difference in value between B and C ; the sample A is worth at least ss. more than C, and 3s. more than B ; A is Stuart & Co.'s brandy, B the sample sent in by plaintiffs after complaint made by us, C the braudy sea up by the consignees of the braudy at Dune din

I believe Mr. Nathan was present when it was opened ; no other bottle has been receiver! from Turnbull, Bing & Co., of Dunedin ; the brandy was shipped under bond. By Mr. Brandon — I am not a particular good judge of brandy ; I know British from French. Brandy E produced sent up from Dunedin in a case opened iv Court, and received by the Registrar from a Commission which was appointed at Dunedin. Examination continued — I think this E is similar to B ; I cannot see any difference in color ; upon receiving information from Dunedin we waited upon the plaintiffs. By Mr. Hart— l think neither B nor E French brandy ; this is the invoice, but not as we received it from Joseph & Co. ; it bad not then the words "Perrin's Cogniac Brandy," it was sent back by us for the purpose of getting the word "French" put iv because we bought it for French ; we asked for common French brandy ; I don't know the name of Perrin's ; I vras satisfied with that name to the invoice ; we did not buy it by that name. By Mr. Brandon— Mr. Nathan said, when I asked for common French brandy, that he had got the article ; I am not aware that British brandy is known as common French, it is a different spirit ; when we finally concluded the purchase we did not examine the bulk. j By the Courts— There are no English brandies known in the trade as "Cogniac brandy" ; what we got from Joseph & Co., we shipped to Dunedin. • Charles Capper, clerk to Messrs. Turnbull & Co., examiued — I have seen this invoice before ; it is the one we obtained when we purchased the brandy ; the date of the invoice is the 25th July; I took it down to the plaintiffs to have it altered at the request of Mr. Turnbull, and asked them to insert the word " French," they then inserted the words " Perrin's Cogniac Brandy." By Mr. Brandon — No objection was made to inserting the words when lequested, Mr. Walter TurnbuH's evidence taken before the Registrar was then read. It was to the same effect as that given by Mr. George Turnbull. The depositions taken before Mr. Commissioner Richmond, at Dunedin, were also here put in and read. They went to shew that the brandy consigned to Turnbull & Co., and sold to Finch &Co.at Otago for ss. 6d. per gallon, was bad British brandy, and that it would not have realized that price had not the market been so bare at the time. Mr. Brandon then stated the nature of the evidence he should bring to rebut that brought by the defendants, he called Joseph Edward Nathan, who deposed,— T reside in Wellington, and am a merchant, and one of the plaintiffs in this action ; I remember Mr. Walter Turnbull calling in July last and asking for pale, possibly, French brandy ; I produced a sample taken from a qr.-cask, and marked P K and gave it to Mr. Turnbull ; we had 7 qr.-casks, and 7 hluls. of the same mark ; they were a consignment from Lewis Nathan of London, to a (inn in Melbourne ; when Mr. Turnhull first called I showed him a sample] and he questioned me as to the quality of the brandy ; I told him I was no judge of brandy myself, and he said he was no judge ; be asked me whether it was French, I told him I thought it was : I said we had received it from a person in whom we had confidence, and I showed him this invoice ; " invoice of brandies shipped per Martha, from Melbourne, to Jacob Joseph & Co., 7 qr.-casks and 7 hhds." ; I did not show him the letter of advice also ; the 7 qr.-casks, out of one of which I had taken the sample, were delivered out of our bonded warehouse to Turnbull Sc Co. ; the casks were re-guaged I think on the 25tb, there were 197 gallons : there was no difference between the qr.-casks and hhds. : I passed the entry at the Custom house ; brandy is generally 3d per gallon more in qr.-casks than hhds. ; I remember the invoice being returned to me by Messrs. Turnbull ; the words " Perriu's Oogniuc " were inserted by me ; I believe there is no such brand; being very busy -I put them words in without referring to the letter of advice ; Mr. Turnbull sent a letter complaining of the quality of the brandy ; I told him I could not guarantee him the state of the Otago market ; I had sold him the goods as good as sample, and I was not bound to find him a good market for them; Mr. Turnbull afterwards showed me a sample of brandy (C) ; I told him that was not the brandy I had sold him ; I told him I was quite sure no one would buy that for pale brandy ; I told him to ascertain whether the brandy had not been put into a dirty bottle ; I cannot say what this spirit is (C) but I think there is brandy in it; I told him I would sample him the brandy from the hhds. } I wrote to ray agent, Mr. Nathan, at Dunedin, to ascertain from Mr. Finch what was the color of the brandy ; I sent a sample down fr»m one of the hhds., and received back the bottle broken ; I afterwards sent down another sample to H. E. Nathan, my agent ; it was taken from one of the 7 hhds. belonging to the same consignment ; after receiving the complaint from Mr. Turnbull, we shipped 1 hhd. to Wanganui in 2 qr.-casks, and consigned it to Messrs. Powell & Co., of Wanganui, for the purpose of testing another market; it was about the end of last year ; we got 9s. for it \ it was precisely the same brandy ; I have sold 1 hhd. since for Bs. By Mr. Hart — I passed this import entry at the Custom house ; I can't say who made out the entry ; it would be made out from the invoice; the word cogniac was marked on the casks • it was certified at the Cusfom-house to be a correct entry according to documents furnished to them ; I saw a sample iv Mr. Turnbull's poxsession, he said he could get that at about Is. more than my price, which he said was a better colour and a better quality ; I won't say that I did not say I could see no difference between them; I think I tasted it at the time;' it was only a question of colour that Mr. Turnbull raised ; 1 fancy the entry must have been filled in under my instructions; it was my duty to do this ; I believe the words " to the Locker" are in my hand-writing; I think the words "to the" are in the same hand-writing as the body of the document, but not the word "Locker ;" I fancy the words are in a different hand-writing; the word "British' is in my hand- writing; the word "Foreign" was put in by the Custom-house Officer ; it was my mistake ; a low French brandy is equal to a British brandj of first quality ; the word "British" inserted in the entry was so' inserted through habit ; from so frequently passing entries for British goods. By Mr. Brandon— l gave the sample to Mr Turnbull to take away : this sample (E) is a fair sample of the 7 hhds., aud the 7 qr-casks were of the same quality. By a Juror— The two qr.-casks sent to Wan ganui, were put into two qr.-casks without any brand ; I believe they were sherry casks ; I can't say whether I told the consignees what brandy it was; it was described as a low quality of French brandy : I think "Duff Gordon" was on the casks ; *two other qr.-casks from the same

hhds. were purchased for 7s. 6d. by Powel & Co. '

Mr. Brandon then addressed the jury for the plaintiffs, resting his case chiety on the evidenea. given by Mr. Fineh — the purchaser of the brandy— before the commissioner at Dunedin, who said that he hardly thought the brandy produced by Mr. Nathan, of Dunedin, was the same as that he bought of Tuvnbull, Bing & Co. ; he thought what he purchased was of a better quality ; whereas if the sample of braudy sent up from Dunedin, as having been taken from one of the qr.-casks sent down by Turnbull & Co., was like that which Mr. Finch purchased, he would have known that it was not the same. The plaintiffs denied that the sample of brandy produced in Court, marked C was a sample of what they sold the defendants. Mr. Hart addressed the jury at considerable length on behalf of his clients. Samples of the brandy were taken from the three casks and there could be very little doubt that the sample 0 was what was taken from the casks in the presence of several witnesses and sent up to Wellington, to Messrs. Turnbull & Co. The fact of the market being bare of brandies at the time, and of this brandy not being able to obtain a higher price than 3s 6d., was of itself a pioof that the brandy was not what was known in commerce as French brandy. The learned Judge summed up, going nri. nutely over all the evidence. • The Jury, after an absence of about balf-an-hour, came into Court, returning to the first issue an answer in the affirmative, oa the 2nd issue they said it was " impossible to decide;" on the 3rd they returned an answer in the negative, and on the 4th " the brandy delivered does not appear to be equal to the sample produced, and they find that the defendant is entitled to deduct from the amount charged £24 7s. 6d. This, said the Court, is virtually a verdict for the plaintiffs. The Foreman observed that if so recorded it would not convey the intentions of the jury nor of himself. * " After some discussion, the jury again retired to re-consider their verdict, and to find what was the loss sustained by the defendant, iij consequence of the article delivered not being in accordance with the sample shown. Verdict— 2s. 6.1. per gallon, or £24 12s. 6d. Verdict accordingly recorded for defendents. The Court then adjourned. Wednesday, June 11, 1862. His Ho ior took his seat upon the bench at 10 o'clock precisely, when a special jury was empanneled to try the following case. William Bowler and another v. E. Pearce. «r"ft« was an action brought by Messrs. William Bowler, Son and Co., to recover the sum of £5,000 as damages sustained by the Plaintiffs in consequence of the non-delivery of two bills of lading for goods, the indents of which were sent home for execution to Messrs. Matheson & Co., the London agents of the plaintiffs, and received by the defendant here. The following are the names of the gentlemen, forming the special jury, viz:— G. Moore, James John Tame, Joe Dransfield, Johu Yule, VV . R. L. Brown, Edward Miller, John Hugh Bethune, William Waring Taylor, John Fortescue E. Wngbt, E. Battersbee, Thomas Mason, and J. Johntson, (Foreman) Esquires. Mr. Borlase appeared for the plaintiffs ; and Messrs. Brandon and Izard for the defendant. The following were the issues to be tried, viz:-r 1. The defendant admitting that the plaintiffs sent the indents to Messrs. Matheson & Co., as mentioned in the declaration, was there any agreement between plaintiffs and defendant that if the said indents were executed, the goods and documents relating.to them should be forwarded or consigned to the defendant, that he might on their arrival deal with them, as he in his sole discretion might see fit, or deem advisable— 2. If the plaintiffs are entitled to succeed in this action, have they sustained any damage by reason of the refusal by ihe defendent to deliver to them the goods mentioned in the declaration or any part of them— and if so, in what amount. Mr. Borlase stated the case to the jury, and called the following witnesses : v Edwin Robinsou, deposed,— l am clerk to Messrs. William Bowler, Son & Co., merchants in Wellington, and Matbeson & Co., are their agents in London. I remember making out certain indents, numbered 30, 32, 33, and 34, copies of which are now produced. They were made out on the dates they bear. Part of Indent No. 30 was received by W. Bowler, Son & Co., ex Asterope ; none of the other goods have been received ; all the goods mentioned in No. 30 indent were received with the exception of 20 qr. casks of brandy, and 25 casks of ale; the goods mentioned in the other three indents were never received. We received a package of samples of goods in other indents by the Wild Duck, which arrived after the Aslerope; the remaining portion of indent No. 30 arrived by the Albemarle. The Asterope arrived here in September, the Albemarle on the sth January and the Wild Duck on 20th January; the sampl es which arrived by the Wild Duck were samples of goods- shipped in that vessel; the package of samples were addressed in similar handwriting to that which had previously been received from the firm ; I am aware that the defendant, Mr. Pearce, is Messrs. Matheson & Co.'s agent, I applied to him on the Bth January for delivery of goods ex Albemarle. We had advices of the non- shipment of goods per Asterope, and were instructed that they would be sent by the Albemarle. This applies to the brandy and ale, in No. 30 indent. Mr f Pearce declined to let us have the goods or bills of lading, or invoices, by the Albemarle, or Wild Duck. I stated that the firm were prepared to pay cash for the goods and charges ; I did not tender the money;. he declined to deliver the goods. Cross-examined by Mr. Brandon — Averaged the goods at the current value here; I applied to Mr. Pearce as the holder of the Bill of lading ; I should say that the value of the balauce of indent No. 30, (the brandy and ale), would be about £450 ; including charges. William Henry Meek, deposed— l am clerk to Messrs. William Bowler, Son & Co. ; (copies of letters were put in aod admitted, viz. : — ladent letters from Plaintiffs to Messrs. Matheson & Co., dated Feb. 7th 1801, March, 1861, May 8, 1861. Letters from Matheson & Co., to plaintiffs dated April 26th, 1861, and July 26tb, 1861 ; acknowledging > receipt of indents 32, 33, and 34; and stating that the documents for the whole of these would he sent to Mr. Pearce. Indent account from Messrs. Matheson & Co., to January 1, 1862, in which the items brandy and beer were charged against the plaintiffs. Mr. Brandon here produced the Bills of lading and inroices per Albemarle and Wild Duck: They included the Indents fur Nos. 32, 33, & 34. John Inglis, being called, requested to be sworn according to the Scottish mode of swearing, as he considered it would be more binding . : on his conscience. His Honor then- adminU* tered the oath, and remarked that it vast

first tme he had ever seen it done in an English Court of Justice. The witness stands with his right hand raised and repeats after the-Judge the following — "As I shall answer to God at at the great day of Judgment, I will tell the truth, the whole taith, and nothing but the truth, as far as I know ; or shall he asked in this case." The witness thcu deposed — I am clerk to Mr. Edward Pearce , I was clerk to Messrs. William Bowler, Son & Co., in December, 1861. I made up the balance sheet produced ; this is my signature, it shows a balance in favor of Messrs. Bowler, Son & Co. of £8560 13s 2d the liabilities being ,£103,417 05.6 d., and the assets £111,977 13s. Bd. Cross-examined, by Mr. Brandon — I took this balance sheet from entries in the Bonks ; I made another informal balance sheet, which I showed to Mr. Bowler, jun. ; that was made up from entries in the books ; it was professedly to the same date, but was different to the one first produced ; other entries were made afterwards ; the balance sheet produced is in my hand writing ; tbe liabilities are stated to be £103,404 105. 6 d. and theassets £99,744 Bs. Od. shewing a clear balance against the house; tbe first balance sheet was made up by the instructions of Mr. Bowler, jun., he directed me to doit; after I had made up the first balance sheet, I was instructed by W. Bowler jun., to make certain entries in the books, which made up the balance to the second one. The item Lauded property was increased, by Mr. Bowler Jiin.'s instructions, £2000; Stock of goods increased £500 ; and general account increased, £9700 ; and there was a difference made in the liabilities, of £16 10s., against them. One item in the general account was Cookson Bowler & Co., Dr. to William Bowler charging Cookson Bowler and Co., £9200 for William Bowler sen.'s, share in that business ; this is an asset that was not included in the former account; item, insurance on life of Capt. Hayes, £500; William Bowler is credited with that amount, and the Liverpool and London Insurance Company debited with it ; Capt. Hayes appears as a Dr. in the books of tbe firm, but I cannot say whether bis debit has been decreased by that amount ; certainly not in this balance sheet; the difference between the usset3 in the first and second balance sheet is about £12,000; tbe difference in the liabilities is £12 10s. Be examined by Mr. Borlase — No credit was given in the first balance sheet, to Mr. Bowler sen., for bis interest in the Canterbury firm ; I do Dot know in whose name the policy on Captain Hays life was drawn. By the Foreman of the Jury.' Was the increase in the balance sheet owing to an increase in the value ? I can recollect two cases, without reference to the books, — the property in Hawkestone Street was first estimated at £1,200, this was raised to £1,500; both values were given by Mr/Bowler, jun.; the stock of goods in tbe first balance sheet are valued at £7585 lite 2d and in tbe second at£Blo6 14s 10 J 1 am not aware of any surveys being made between tbe drawing of the two balance sheets; any surveys of property that were made, were made before either balance sheet was drawn ; the same stock of goods was valued in the second, as in the first instance ; the estimates fur the goods were made up to September; before both balance sheets were made I saw Mills and C« rter valuing the property ;I dia not see Hjckson and McManaway making a valuation, lam aware that they weremaking a valuation, but did not see them ; in both balance sheets there wasasum 0f£3500 written offfrr bad debts; and £740 7s. 6d. and £4223 11s 3d. for doubtful ; I made the entries in the books under instructions from Mr. Bowler, Juu. ; I drew up the first balancesheetin the presence of Mr. Bowler, jun., when finished I handed it to him, he took it home, brought it back tbe next morning, and instructed me to enter the items as altered in the boQk. William Bowler, sen., deposed, I am the plaintiff in this action, a. merchant in Wellington, of the firm of William Bowler son & Co ; on the Bth May, I had a conversation with Mr. Pearcg about indents No. 32, 33, and 34. I understood from Mr. Pearce that it would be best both for tbe interests of Matheson & Co., and Bowler Son & Co., that the indents should be executed; he suggested that it would be well to get some of tbe goods from Manchester ; I readily adopted the suggestion. As Mr. Pearce was going out of the public office, he stepped back into my private rooin,and said, "I understand from you, that you are to take these goods,]whateyer the market price may be" when they arrive ?" I said, " Certainly whatever the market price may be." I never told Mr. Pearce that he (Mr. P.) was to have the disposal of these goods. During my absence at Nelson my son and partner, directed Mr. Carter and Mr. Mills to survey and value town pioperty, and Mr, Mannaway and Mr. Hickson country property. A great deal of tbe landed property of the firm was held in my own name merely for convenience in dealing with it, as my son resided in Canterbury. I believe that the result of their surveys were embodied io balance sheet K. (the balance sheet) I have never seen the balance sheet marked L. There is an entry of £9,200 on account of the Port Cooper firm ; I consider that that is a fair entry ; Hayes policy is in my own name; I am agent for the Liverpool and London Assurance Company, and although the policy is in my name, I did not pay myself but wrote to my principals in Liverpool. Tbe-. policy is for £ 1,000; £500 belongs to my daughter, Mrs. Kebbell, and £500 to the firm of William Bowler, Son & Co.; we have not yet received the money : the time has not yet arrived 5 when it does come, there will be £500 to strike off Hayes debit. Cross-examined by Mr. Brandon— This £500 stands as an asset, but it is not struck off Hayes'. debity ; I say that £9200 is a f lir charge for my interest in the Canterbury firm ; I am not aware that that firm are heavily indebted ; they are indebted to Matheson & Co., and I think they will be able to pay off all liabilities ; I have a half share in the Canterbury firm ; I believe that the Canterbury firm are able to pay off all their liabilities, and leave a surplus of £18,400 • I cannot say by whom the value of the stock in trade was taken, it was not by me ; the house of Bowler, Son &Co were largely indebted 10 Matheson, & Co., in September, 1860 ; I cannot say to what amount, as we have got nothing lately from them, and there is wool to transit (Letter of 26th January, 1861, admitted and read}. Mr. Pearce mentioned in that letter is the defendant; Mr. Pearce arrived in Wellington some time in January 1861 ; four months after his arrival, I think it was in April, he tried to get some security for the balance due by us to Matheson, & Co. ; in April negociations were entered into for some security for the balance, a deed was executed by me in June, 18610 (Deed put w, and admitted); from April to June we were in treaty about this security ; the indent!, were to betaken on the usual terms ; whatever the state of the Wellington market was I was to take the goods in the usual course of

business ; up to the execution of the indent No. 30, the bills of lading came to us ; I presume the alteration as to tbe bills of lading arose in consequence of Matheson, & Co., sending out an agent to collect their debts ; at the conversation I had with Mr. Pearce about sending indents Nos. 32, 33, and 34, he saM nothing about the bills of lading being sent to him ; I thought it very likely they would be sent to the agent, but I thought I could get the goods on payment of cash the same as we do from the Banks ; (letter of May, Bth, put in) the portion of the letter I have marked was read to me, not the other portions, Re-examined by Mr, Borlase— Mr. Pearce had access to my office and Books from the time of his arrival in January to April, and assisted me very much for the first two or three months ; I did not know for three months that he bad a power of attorney; I gave him access to my books in consequence of a letter of introduction from Matheson & Co., the letter of introduction was for the purpose of his becoming a partner ; I have had several other bills of lading from Matheson & Co., through Mr. Pearce; in January, February, and March got J bills of lading and goods from Matheson & Co., under bills of exchange which I got from Mr. Pearce. John Inglis n-axamined. The book produced is called a stock book ; tbe writing on the last page is mine ; by the writing there, it shews the estimated value ofstock to September, 1861, as in the last balance sheet X. ; the other book is the siilesledger- The previous part of the stock book, contains a detail of stock to the 30th April, the last page shews estimate of stock at 30th September. We got the balance by taking from other books the amount of stock received, deducting the goods sold, less 15 per cent for profit. The halance carried forward in sales ledgeris to Sept. 80 ; it is the same as in K. but tbe balance sheet was not made out until December; the balance was carried forward after balance sheet L. was made. In estimating the profit of goods sold at 15 per cent, instead of 10, as in the first balance sheet, will add £020 to the estimate of the value of the goods: the reason why the per centage'on the goods was altered from 10 to 15 per cent was because Mr. Bowler jun. said the stock was undervalued. The copy of the balance sheet made by me was given to Mr. Pearce a few days ago; I gave a copy of it to Mr. Bowler, jun., but not to Mr. Bowler, sen. Cross-examined by Mr. Brandon— The private property of. Mr. Bowler was transferred to the books between the oth and 19th of December before the making out of the balance sheet L Previously the bulk of private property was not transferred to partnership accounts. Edwin Kobinson recalled — I believe the additions to the value of the Hawkestone street property was caused by improvements made since Mr. Bowler, jun. made the first estiina tion. J William Henry Meek recalled— l have seen the balance sheet marked K ; J have seen the different valuations of Mr. Bowler's property. John Inglis recalled. The difference of time between the making of tbe two balance sheets was 10 o'clock one evening, and 11 or 12 o'clock the next morning. i George Crawford deposed— l am a merchant residing iv Wellington. The paper shewn me is an invoice per Albemarle of 20 qr. casks of j brandy, and 25 casks of ale ; it does not give particulars. (The further examination of this witness was postponed until the receipt of the detaiied invoices, defendant having despatched a messenger for them ) This closed the case for the plaintiffs. Mr. Brandon said that there was really no case to go to the jury, and moved for a non-suit quoting authorities in Abbott on Shipping:. The Court thought that there was sufficient matter of fact to go to the jury. Mr. Brandon then addressed the jury, and i called the following witness: Edward Pearce, deposed — I am a merchant residing in Wellington ; I am also the duly authorised Agent of Messrs. Matheson & Co., of London. I arrived in the colony in January, 1861. On my arrival, I was aware of the state of accounts between Plaintiffs and Matheson & Co. ; I came to New Zealand in a twofold position, if I found Messrs. Bowler Son & Co., were in a sufficiently prosperous condition that I should become a partner; aud if not, that I should act as Matheson & Co.'s Agent. When I first arrived I was unable to tell the position of the House, as the books had been neglected for many years. I was not able, 1 believe to September, to strike an approximate balance, and that was up to the 30th April. I received the letter produced, dated January 26th, from Matheson & Co., in March. It is a duplicate letter to the one sent to Messrs. Wen. Bowler, Sou & Co., stating the unsatisfactory state of accounts, and intimating that the balance owning by that firm to Matheson & Co., was upwaids of £94,000. I had several conversations with Mr. Bowler relative to the liquidation of Messrs. Matheson's debt. I had first to ascertain the position of the firm, it was in April that I did so ; in May, before the sailing of the mail, I had a conversation with Mr. Bowler about sending certain indents. I had also a conversation with him in February. I wrote to Messrs. Matheson & Co. in February, relative to No. 30 indent. In consequence of Mathesou & Co. intimating to W. Bowlev, Son, & Co., that in consequence of the unsatisfactory state of accounts they declined executing any further indents for them,, Mr. Bowler could not send any more indents to them without consulting me. Mr. Brandon proposed to give evidence of the contents of letters written by Mr. Pearce to Matheson & Co., the contents of which he was not prepared to shew were communicated to plaintiff; which the Court ruled were inadmissible. Edward Pearce, continued — I told Mr. Bowler "that I was willing be should send home indents, and that I would send duplicates ; and that they would come out on the same conditions as the goods per. Golconda," I was to have the entire controul of them. Mr. Bowler suggested that I should agree to give up the goods on three months Bills; I said "I should reserve to myself the right to deal with the goods when they came." This was before the indents were sent home. I believed that having the Bills of lading aud invoices was sufficient title to me. I told Mr. Bowler that I reserved the right to deal with the goods on their arrival. I told Mr. Bowler, that I did not know whether Matheson Sc Co., would execute the indents, that I would recommend them to do so ; but that he must not rely on it. I read the extract of my letter ; I believe I read the whole of the extract of the letter of theßth May to Mr. Bowler ; I do not see why I should have read one part of it, and not the whole of the extract. In consequence of my recommendation, the indents were executed. The Bills of lading and invoices were sent to me; the Bills of lading were blank endorsed. I delivered certain goo(js to Mr. Bowler per Golconda on three mouths Bills giving half ou leceipt of documents, and one half ou arrival of goods. I let Mr. Bowler have goodsj per Asterope on

payment of cash >"th"c Golconda arrived befor c the Asterope. I declined to let plaintiffs have goods per Asterope on same terms. Plaintiff said "ha knew I had the power to sell the goods to Mr. Levin or any body else." I said "I would rather give them to him, if he paid cash." He demurred at first ; but in a few days, he paid cash. I had goods by the Mar & Kellie^ I fixed the amount, aud gave the goodsto plaintiff on Lhree months bills. It was the same with the Asterope, the invoice came to me, and I fixed the amount arbitrarily at £1050. Tbe Albemarle was the next vessel after the Asterope. I had then thoroughly inspected Messrs. Bowler, Son, and Co.'s books. I did not deliver up the goods per Albemarle. The reason I did not do so was, because I found that the house was insolvent. J gave them notice that, in accordance with the provisions of that deed, they should stop their business and suspend payment. I gave tbe notice in writing, I have a copy of the notice in my press copj book ; (Mr. Borlase objected to the, notice being read); I could not give them goods to carry on a business after I had given natice they ought to stop, as I considered by going on they would diminish the assets. The document produced is an indent account from Matheson and Co. ; there are some goods sent out by the John Bunyan, included in this account, of which Bowler and Co, knew nothing about. When sent out it was necessary to have specific entry, and although beaded in that way, was subject to future arrangements. This is uot a regular account, indeed the fact of that account at all shews that new arrangements had beeu made. That is riot the balance owing by Bowler & Co., to Matheson & Co,, that balance shows only some £2000, whereas, the proper balance is upwards of £80,000. I hare seen the balance sheet K before ; in September, I made from the books, with the assistance of the book keeper a trial balance, up to the 30th April, and by the books tbe firm was very insolvent on the 30th April. I have seen this sheet before ; it is a trial balance, showing the position of the house up to the 30th September. (Balance sheet L produced). I know the firm of Cookson, Bowler & Co., the house it indebted between £80,000 and £90,000 to Mathesou & Co. ; I consider that the put down as a half share in that firm as a ficticious item altogether; I think if they were to piy off all their liabilities, there would not be £9,200 left to pay Mr. Bowler for his half share in that firm; instructions have been sent down to commence an action against Cookson, Bowler & Co. I can tell that there were entries made after the first balance, but was not present when they were made; the amount written off extends over a period of 10 years, the whole time Bowler Son fie Co., have been in business; the amount allowed for bad debts is £3,500, and £740 6s 6d andjdoubtful £4223 11s 3, 1 do not think the allowance is sufficient. Cross examined by Mr. Borlase. — I have examined Messrs- Cookson, Bowler, & Co.'s Books very minutely in April ; I know that they have drawn very heavily on Matheson & Co.; I have not heard that they are making arrangements to pay off the debt ; at least you told me so ; Bowler, Son & Co.,ilid not agree to the registration of the deed, they got an injunction from the Supreme Court to restrain the registration; there was no land in the books at the time I made a balaace except a sum under £2000; the amount charged for goods per Asterope is more than the interest and goods would amount to ; the balance would be aimed to Bowler Son & Co.'s account ; there was a general arrangement under which Shaw Savill & Co. were to send out salt and coals by alternate vessels through Mathesou & Co. Extract from letter 7th February 1861, put in. Cross-examined ky Mr. Brandon— l insisted on having an arbitrary sum for goods per Golconda ; I said I shall have 4?1050 or I will keep the goods. Plaintiff's case resumed: George Crawford, recalled : The merchant's nett profit on the goods per " Albermarle " and " Wild Duck" would be £390 ; that I consider would be the fair uett profit. Mr. Brandon addressed the jury on behalf of the defendant, and Mr. Borlase for the plaintiff. His Honor then summed up, pointing out the mutter of fact in the evidence upon which the jury would have to decide, and asked if it would be necessery to read over the whole of the evidence, when the foreman said, that to save His Honor the fatigue of reading over the evidenca, he was requested to intimate that the jury had a very lively recollection of it. The jury then retired, taking with them the whole of the documentary evidence, aud in about half an hour returned into court.

In answer to the first issue they replied in the negative, and for the second in the affirmative damages £400, The verdict was then entered up for plaintiffs, and the court certified to costs.