Page:The Perth Gazette and Western Australian Journal 1(11).djvu/4

 THE PERTH GAZETTE, AND WESTERN AUSTRALIAN JOURNAL. told him was for the loss of some money.—Commissioner: (after looking at the account, to Mr. Hall) It is unreasonable to leave me to guess at the correctness of these items. You bring forward an Affidavit as a ground for a new trial, and then come unprepared with any proof to support the case. Here is a balance put in on both sides, and I am to guess at the result. The oftener you come here you will find the necessity of bringing evidence with you. There is strong primà facie evidence, which I must tell you, you will have to give yourself some trouble to rebut. There is sufficient to throw the Defendant on his evidence. On its being suggested that the affair might be settled by arbitration; Mr. Butler said, he was fearful from the disposition shewn by the Defendant to come to any arrangement, the same difficulties would occur again, and the same time elapse. He had received a letter from Captain Anderson, and he was anxious to reply to it, by the Cygnet.—-Commissioner: Suppose the award be given in within a limited time, otherwise judgment recorded. I have too often to complain of parties making me an accountant. Mr W. Lamb and Mr Daniel Scott were chosen as arbitrators, and mutually agreed to The award to be put in by the next court day, or, else Judgment given for Plaintiff.

Clark v. Smith—The arbitrators appointed in this case, had awarded the Plaintiff £10 which award was made a rule of Court.

Lyon v Lewis—Disputed account:—Verdict for Defendant.

Brignell v Mc Dermott—The Jury having been called—Commissioner: Must this case of necessity go to a trial? Is there no hope of an arrangement?—Mr Mc Dermott: I have owed the Plaintiff 700£., but I am obliged to give time to my debtors, and must expect it from others. Mr Clark (for the Plaintiff) My client has incurred heavy expanses by the delay in consequence of a breach of agreement - Commissioner: Well come see if by entering into a conversation together, you cannot meet on liberal terms—Mc Dermott: I have no facility in the way of discount, I have plenty of bills, but we have no Bank, and, it is only latterly Mr. Brown has given it up—Brignell: By agreement, the money was to be paid in 20 days, it is now a month beyond that time. Captain Mc Dermott has been offered cash for the flour, but he would not take it; I believe 30£. per ton. This Captain Mc Dermott. denied, but even if it had been offered, he would not have accepted it, he did nor see why he should be called upon to make a sacrifice. He had said when he purchased it, he could not pay for it immediately.—Commissioner: It would be as well to avoid these public disclosures. Come, retire, and endeavour to come to some amicable arrangement.—The parties took the Commissioners conciliatory advice. In about a quarter of an hour Mr. Clark returned into court and intimated that, the business was satisfactorily adjusted.

The Commissioner: Gentlemen of the Jury, I am very happy to dismiss you.

Clark and Vincent v Habgood—The Plaintiffs acting under a power of Attorney from Warrell, sought to recover 30£., a reward offered by the Defendant for the apprehension and conviction of the parties implicated in the robbery committed on his premises. Warrell— Mr. Clark stated gave the information. Rogers swore to the signatures of Warrell and witnesses in the power of Attorney. It was signed in the Jailors room in Jail of Fremantle, on 13th January, 1833.—Mr. Walters called: When the book was offered to him, he declined taking the oath until his expenses were tendered him. He said he was not attending there on any other account, he was kept out of his business at a considerable sacrifice and he must have his expenses, which he estimated at a guinea.—Commissioner; This is generally left as matter of bargain, but I think you might take less.—Mr. Walters considered a guinea as little as any tradesman could charge, and if he had any right to demand his fee, which he felt confident he had, he must have the guinea.—Commissioner: I think you might take half a guinea; however, it is not for me to fix the sum, if the costs were taxed by the proper officer, not more than one fourth would be allowed. The court never interferes unless for a medical man.—Clark: "I shall not get much out of him?"—Commissioner: It is for you to consider whether it is worth 10s. 6d. (a laugh) After some further altercation Mr. Clark handed in the money, and the Witness was sworn.—Recollected writing Bills for Mr. Habgood, to the effect that "Whosoever will give information to lead to the conviction of the offenders shall receive a reward of 30£.—Wrote the Bills by Mr. Habgood's direction.—Crossexamined: Could not recollect the date they were written out, but thought it was before the examination of the parties implicated.—George Leake: The first certain information about the culprit, was given by Thomas Warrell, which led to the apprehension of W. Booker; he was convicted for the burglary, but as I am speaking from recollection, I may err. The records of conviction can be procured, and I would much rather they were referred to, than any reliance placed upon my memory.—Commissioner: The production of the Record is the proper method.—Mr. Butler, who appeared for the Defendant: The main question is, whether a convicted felon is authorized in giving a power of Attorney. Commissioner: His effects of course revert to the Crown. Mr. Clark: But the Crown has declined interfering.

The case adjourned to allow time for the production of the Record of conviction.

J. P. Armstrong v Lyon. Mr. Butler for the Plaintiff complained that the Defendant was indebted to him the sum of 10£. for use of Boat. This charge arose out of the escape of the natives from Carnac, in the Revenue Boat; Mr. Lyon who was there with some authority, called in the assistance of Mr. Armstrong to endeavour to find it, when the charge was made, Mr. Lyon referred him to the Commissary, who wrote upon the account, "Nothing to do with it. Mr. Lyon must be responsible." Mr. Lyon in his defence stated, as he was fearful if the sea breeze set in, the boat, which was a valuable one, might be dashed to pieces, he considered it right to interfere to save her, and pressed Mr. Armstrong who wished to make some stipulation, which he (Mr Lyon) declined, to go in search of her. He went and scoured the coast for two days. Commissioner: Government is a strict paymaster, and you will find it hazardous to put your hand in its pocket. Lyon: I had no doubt the Government would pay it. I do not consider myself bound to Mr. Armstrong, but as an act of justice I must acknowledge the service was performed The Commissioner observed, he feared Mr. Lyon had made himself responsible but he had no doubt the Government if the case was properly represented, would give some remuneration

—the 13th March, 1833. Mr. Leake applied to the Court to bring on a case in which he was Defendant, out of the regular course, as business of a public nature required his attendance at Fremantle. Under these circumstances the Commissioner readily assented; which led to a request from Mr. Lyon, that of his witnesses, who was in the Court might be permitted to accompany Mrs. Birkett, the lady whose premises were consumed by fire during the morning, to his home. Mr. Smythers then came forward and urged some indulgence in his case, he had been waiting here for two days and wished to get back to his family.—The Commissioner replied that in all cases private interest must yield to those of a public nature, he would therefore although rather irregular proceed in the case of—

H. E. Hall v. George Leake.—This was an action to recover £200.—from the Defendant as Bondsman for the brig 'Thistle.' The Plaintiffs indentured Servant having been wilfully conveyed away in her. Mr. W. T. Graham, who appeared for the Plaintiff, opened the case.—"The transaction occurred previously to the passing of the local Act, and I proceed upon a Proclamation. I have evidence to shew, that George Key the servant alluded to, was seen at King George's Sound in the capacity of cabin boy. The Plaintiff previously to the vessel leaving this Port, served a notice upon Mr. Henty concidering the boy to be secreted by him for the purpose of being conveyed away; and I hold a letter in my hand, in which he replies, he "knew nothing of the boy."—Now I can prove, he is in the employment of Mr. Henty at Launceston.—Commissioner.—But you will require to go further in order to implicate Mr. Leake.—Graham.—I have here the original Bond, (handed in) Commissioner, (after examining the Proclamation and Bond) I should wish to know whether you proceed on the Bond, or on the Proclamation?—Graham.—The Damages are laid at £200. in order to take both.—Commissioner:—In order to have two strings to your bow? (a laugh) The bond seems the most material Document to go upon, as the person binds himself that the vessel shall abide by the Port Regulations. Bnt I feel a difficulty, as it is not stated, in which way the penalty is to he recovered; by whom or to whom paid. The proceedings under the Bond, should be entered in the name of the Harbour-Master.—Graham.—But he is not in the Colony.—Commissioner.—I don't know what stress may be laid upon this—it may be for consideiation. Since I have sat here, a case has been before me similar to this, which was commenced in the name of the Harbour-Master. I don't mean to say that course not being adopted, would deprive the parties of their remedy. I see it is a difficulty; and feel inclined to try the merits of the case, reserving that point. You must show me that there has been a breach of the Port Regulations If it merely turns upon points of law, I shall take time to consider of my Judgment.—John Spencer sworn. George Key is an indentured servant of Mr. Hall's, I saw him sign the indentures produced in Court.—John Grant sworn to the same effect—saw him two years ago at King George's Sound, on board the Thistle, he was working in the cabin. He proceeded in the Thistle to Launceston.—Crossexamined—Sure he did not land at King George's Sound. He did not stay, he was engaged to Mr. Henty.—Commissioner (to the Plaintiff)—How long was he in your employ, for I do not consider it was intended that the full penalty of £200. was to be recovered, but that it was merely to cover any claim.—The Plaintiff replied six months.—George Leake—I cannot see that my liability is proved in any way, I should like to know whether the proceeding is to be upon the Bond, or the Proclamation. If upon the Bond, the action must be brought by the Harbour-Master, and they must shew the breach of the Regulations. I would also remark, the Plaintiff had opportunities of proceeding against Mr. Henty during his residence in the Colony. This was denied by the Plaintiff, the Boy whose evidence had been produced only having returned from the Sound about a year afterwards. (Some difficulty here occurred in obtaining the Port Regulations until at length it was suggested, the originals were in the Colonial Office. Mr Graham and his client withdrew for the purpose of procuring them.) During their absence the Commissioner remarked, if the change of names could be be got over by a mere stroke of the pen, as it was a matter of form, he did not see why it should not be done, if the question should be found to rest upon it. If the Harbour Masters absence could be supplied, it would only increase the costs to go through the case again, and it would be a matter of consideration for Mr. Henty, to get rid of the tecnicality,—Mr. Leake was desirous to simplify the business as much as possible, but as some objection might be made at Van Diemens Land, where he knew by experience, there were many keen lawyers, he should wish to avoid any appearence of irregularity If you give it as your opinion that I am liable, I will submit it to Mr. Henty; and if he refuses to concur in it, I must urge a strict adherence to the regular proceedings.—Commissioner.—A reference to the Judgment of the Court I should conceive sufficient; however,—(Here the Port Regulations produced from the Colonial Office. After perusing them) Commissioner, to Mr. Leake: You had better look at clause 17, and the letter end of clause 19.—Commissioner.—I shall take time to consider first, whether the action be maintainable under Proclamation; secondly, whether maintainable on Bond in the Court; thirdly, whether maintainable under any other name than M. J. Currie, Harbour-Master.—George Leake.—I have long considered it desirable, that the Bond should expire within a limited date, indeed I have long had the intention of suggesting it; according to the present regulation, the Bondsman is never relieved from his liability; after this I have my doubts whether Captains will be able to obtain any persons to become security. The Bond was generally regarded as a matter of form; and the obsolete Proclamation was for some time the subject of conversation, and pronounced as, ineffectual. It was understood that the Commissioners decision would be communicated to the officer of the Court, who was to convey it to the Plaintiff on his defraying the expenses. {{center|(to be continued)

Edited, Printed, and Published by CHARLES MACFAULL, at the Gazette Office, Perth.

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