This was an action for the recovery of money due under an agreement, and of damages for an assault. Thomas Sampson Hawkins was plaintiff and William Henry Warland defendant.
The pleadings were very lengthy. The declaration stated in effect that an agreement bid been entered into between the plaintiff and the defendant, under which the plaintiff was to serve the defendant for seven years from the 12th May, 1856, as manager and overseer of his stations at Harben Vale. The defendant was to pay him £20 a-year, in half-yearly payment, and in addition 7 percent of the gross yearly proceeds of the produce of the station that was disposed of, and of the market value in Sydney of the wool and other produce not disposed of.
The defendant agreed to employ the plaintiff until the expiration of one month after notice given at the end of the fifth year, or until the payment of an additional sum of £250. The plaintiff did become manager, and continued for some time, but the defendant did not employ him till the time specified, but had discharged him, and had not paid the £250.
A second count was for work and labour done, for goods sold by the plaintiff to the defendant, and for money paid by the plaintiff for the defendant.
A third count was for an assault committed upon the plaintiff, and for ejecting him from a building in which it was lawful for him to remain.
A fourth count was for carrying away the plaintiffs boxes, and other property, and throwing them on a dunghill.
The plaintiff claimed damages £1000.
The defendant pleaded to the first count that the plaintiff had neglected to look after the sheep and to discharge his duty as manager, that he had misconducted himself in selling sheep that he was desired not to sell, in neglecting to look after the stores, &c., and in neglecting to keep proper books of account and to enter moneys paid, &c, that he had misappropriated monies, had made up false accounts, and had been repeatedly intoxicated, and had been wholly unfit, incompetent, and unable to discharge his duties, wherefore the defendant refused to suffer him to continue in his service, and discharged him.
A second plea was, that the defendant was never indebted to the plaintiff as alleged. There was also a lot off of money paid by the defendant to the plaintiff.
As to the assault the defendant pleaded not guilty, and also, that the plaintiff having unlawfully entered a certain dwelling house, and refused to depart, at the request of the defendant was gently removed. There was also a sixth plea, to the whole declaration, alleging that the plaintiff had broken his agreement, and by his mismanagement caused the loss of 2000 sheep, for which the defendant claimed £1000 damages, which he was willing to place as a set-off against the plaintiff’s claim. On these pleas issue was joined. For the plaintiff, Mr Plunkett QC, and Mr Faucett, attorney Mr Mullen. For the defendant, the Attorney General Mr Isaacs, Mr Wise and Mr Dangar, attorney Mr Bowden.
Mr Plunkett stated the case. The plaintiff made a certain agreement, and entered the service of Mr Warland, a sheep farmer in the district, being himself a person acquainted with the management of sheep. The agreement was for seven years, with a proviso that it could be put an end to by one month's notice before the end of the fifth year, or by the payment of £250.
While the agreement existed the defendant was to pay £20 per annum, and a further sum of 7 per cent of the gross proceeds of the estate. The assault complaintd of was that Mr Warland, who was a magistrate, brought his authority to bear by getting a constable to lay violent hands upon the plaintiff, and put him out of a house. There was no proviso in the agreement for any place of living for the plaintiff, but it was the common understanding that there should be one provided. It was at the defendant's own suggestion that the plaintiff went to his house and the defendant had no right in put upon him the indignity of turning him out. He did so, however, and the plaintiff had to go to a public house. The next morning he returned to his business, and went to the stable on the premises but the defendant had had his clothes, his papers, and other valuable articls all thrown out on a dunghill. The defendant having pleaded justification had to make good his charges; and when the evidence should have been given, he (Mr. Plunkett) would be fully able to reply to them.
The witnesses called for the plaintiff were Thomas Sampson Hawkins, Thomas McDonald, and Daniel Sutherland.
Thomas Sampson Hawkins (the plaintiff) entered into an agreement with the defendant, dated 12th May 1856, and arrived at Harven Vale in June that year. He was there about a fortnight before taking charge. A man named Bennett was then in charge. The farm was a sheep farm, with about 7,500 sheep on it, and there were other stations at some distance from the home station. Of these stations he got charge after some time, but the sheep were never handed over to him. He held charge until the 1st May 1857 after being ejected from the house on the 1st April. He had the general management of the farm. When he first visited the stations he found all but one in a very bad state. He went round to the stations at first two or three times a week, but after they were in order not so often. He continued thus until April 1857. During that time, on the defendant's instructions, he supplied the men on the stations with blankets and other articles, the defendant being present, and the value being £150. In March 1857, Mr Pringle had been called in to look at the books by the defendant, who then said he wanted him to settle the accounts with his overseer, and told Mr Pringle that he would pay whatever was found due to Hawkins on his cash account. The accounts were then gone into. This took two days, and Mr Pringle having found the orders duly entered, stated the result to be a sum of £(20?) due to him (Hawkins). The book showed £7 in his favor. There was a bill for £9 which he had mislaid, and which the defendant wished to charge against him. He agreed to this on condition that if the bill was found the money should be paid him. The £70 included all the monies paid to the men, but there were other sums paid, and not included. On the 1st April he (Hawkins) saw one of the defendant's men removing his things from his room, and on asking him what he was doing, he said Mr Warland had told him to do so, and was doing to turn him (Hawkins) out of the house. He told him he had better not do so, and the man went away. A constable came soon after, he (Hawkins) being then in his room in the dwelling-house, where he had till then resided. The constable knocked at the door and told him to open it. When he opened it, the defendant, who was outside, told the constable to put him out of the house. The constable asked him to go, and he refused, asking where his authority was. The constable said he had no authority, but Mr Warland's word. Mr Warland was a magistrate, and would hold him harmless. The constable then took hold of him by the collar, and tried to put him out. He resisted for a quarter of an hour, during which Mr Warland stood by. A six-foot Scotchman, named McDonald, was then called in, and another quarter of an hour's struggle followed, during which Mr Warland was backing them on, and his (Hawkin's) coat was torn off his body. An Irishman taller than the Scotchman was then called in and the three put him out and after this they threw boxes, papers, books, clothes, cases of goods, and everythlng else outside in the rain. He stayed about half on hour and then went for the night to the nearest inn.
The next morning he returned and found his things under the verandah. He then went and gave his orders to the men as usual and afterwards removed his things to the stable. He slept there one night and next morning went to Mr Warland to ask if he he had any orders and for rations. Mr Warland said he would give him nothing and if he did not go he would have him locked up. He then went to the Inn for his breakfast, and on returning found all his things lying on a dung heap and the door of the stable locked.
There the things remained, and many of them were lost including certain note-books which contained entries affecting the present action. During the night he slept in the stable the door was locked. With reference to the goods supplied to the men it appeared from cross examination that Hawkins bought the goods himself and Mr Warland guaranteed to deduct the price of them from the men's wages. Mr Warland was therefore debited with the amounts. Goods had been supplied to a carrier and to other people employed by Mr Warland and the amounts deducted when they were paid. The value of the goods in the cases that were thrown on the dung hill was about £30 or £40. The goods were first put out in the yard by the constable (Bruce) and McDonald.
The cross examination of Hawkins extended to a great length It had reference amongst other matters to the keeping of his accounts - the crediting of Mr Warland with certain oheques received from him. These cheques he had entered in pocket books which he said Mr Warland had got possession of; and they were also entered in a day book but not in the waste book. There was another matter about a cheque for £15 15s which he had taken from a letter sealed and directed to Ross th poundkeeper. It appeared that Mr Warland owed Ross £14 19s for some bullocks, and 16s on an I.O.U. Boss owed Hawkins money and had told him that if Warland gave him the money for the bullocks he could take what he wanted. He opened the letter under this understanding and paid Ross £12 telling him he had opened the letter and obtained from him a receipt for the £15 15s. One of the cheques in question was for £32 to pay for some bullocks. It was sent up from Sydney and when Hawkins went to pay for the bullocks the man from whom they had been bought had left for Maitland and he then applied the money to other purposes on the station. He explained this to Mr Warland when he saw him next. After he had been ejected and had come to Maitland for legal advice, Mr Warland obtained a warrant against him and he was brought before the bench for embezzlement about the £15 15s cheque and the case was dismissed. As to the loss of sheep during his time he said that there were about 6700 on the stations when he went there and they were dying in all directions, 30 or 40 a night. He denied any knowledge of certain conversations about which enquiry was made. He admitted that having taken out a warrant against one of the men and afterwards, wanting his services for a day or two, he had asked the chief constable not to put him in the lock up, and the constable got £2 from him for this and was dismissed for it.
McDonald corroborated Hawkins statement as to the rough usage he received when he was ejected, the placing of the boxes on the dung heap by Mr Warland's orders, and as to the wetness of the weather at the time He added that they were removed from the dung heap to behind the stable on a Sunday by Mr Warland's orders, when a minister was coming and they would not have looked well where they were. He had never seen Hawkins intoxicated though once he had appeared so. He succeeded him as superintendent; but no sheep were counted out. Mr Warland had told him he had offered Hawkins £100 to go about his business.
Sutherland an Innkeeper at Murrurundi gave evidence as to a conversation in which Mr Warland had mentioned that Mr Pringle had looked at the accounts, and found a balance due to Mr Hawkins. Mr Warland asked him if Hawkins owed him any money and told him to pay him out of the balance from a certain cheque. From the cross examination it appeared that, before this, Mr Warland had told him not to cash any more orders drawn by Hawkins.
This closed the case for the plaintiff the defendant having previously been called upon to produce the plaintiff's pocket-books.
The witnesses called for the defendant were John Ross, William Waldron, John McGivney, George Furze and John Whalan.
Ross, the poundkeeper at Murrurundi, stated that Hawkins had, in March 1857, brought him a letter that had been opened. He asked where the cheque was that it had contained. Hawkins said Mr Warland had told him he might cash it. He said that the amount was short of the money; Hawkins having given him £12. Hawkins said he would make it up and asked him for a full receipt that he might show to Mr Warland. He gave him one. There was an account then between him and Hawkins. Before he got the £12 he had not authorised Hawkins to deduct anything to pay himself or to open his letter or to get any cheque changed that Mr Warland might give him. During the time that Hawkins had been there he had impounded about (931?) head of cattle and horses - some of Mr Warland's cattle had been impounded by him and some of these had been turned out again by his orders. The pound was about three miles from the homestead. The damages on the cattle impounded had amounted to £60 or £70. Hawkins had been at the pound sometimes every day and sometimes less frequently. Hawkins had received damages from him. He had seen Hawkins all day at a shooting match. Two orders produced in Hawkins's handwriting dated 19th December 1856, authorised payment to Thomas Kelly of money for cattle bought at a sale. From the cross examination it appeared that when Mr Warland's cattle were impounded, they were to the number of eleven amongst forty or fifty head. No fees or damages were charged upon the eleven but they were taken home. On other occasions the number of Mr Warland's cattle had been less, and they had been turned out. On the 19th December 1856, Kelly, a stock-keeper for Mr Warland was with Hawkins at the pound; Hawkins had impounded some cattle and they were sold to Kelly for Mr Warland, for the amount of the orders. On the evening before the affair of the cheque for £15 15s he had seen Hawkins; some business was done between them; Hawkins asked for money, and he said, if he brought the money from Mr Warland he might let him have some. Hawkins gave him £12 and said that was all he had for him that day. After this the letter from Mr Warland dropped on the table from Hawkins's pocket as he was pulling out some papers. After writing a receipt in full for all transactions with Hawkins, he had sent in an account to Mr Warland, and told him Hawkins owed him £15. When Hawkins told him he was in partnership with Mr Warland he said he had so much interest in the estate for seven years. After giving the receipt in full he had had no transactions with Hawkins. Waldron [sic] had sold Hawkins three bullocks. Hawkins was pricing a fourth, but did not buy it. Mr Warland paid him £24 for the three im December 1856. When Hawkins bought the three he said he would write to Mr Warland for the money and give it him as soon as he got it.
From cross examination it appeared that after selling the bullocks, for some days, he left home for Maitland. He met Mr Warland at Singleton where the river was up with the flood and told him that Mr Hawkins had said before he left that the cheque had not arrived. When he was paid it was by Mr Warland in Hawkins's presence, and £4 were deducted for goods supplied him by Hawkins. Mr Warland said that Mr Hawkins had paid the money he had sent up for him to the men. McGivney had had three head of cattle impounded by Hawkins, and Hawkins said he would give him 30s a head for them. They remained in the pound and he told Hawkins again about them. Hawkins said he could not pay the money till Mr Warland came back. They remained three or four weeks, and he then went again when, when Hawkins went in to Mr Warland, came out again, and told him if Mr Warland paid him for four head, to take it as he wanted to give something to the poundkeeper for keeping them so long. Hawkins afterwards gave him a cheque for £6 and he gave 30s back with a receipt for (£1?) 10s. Hawkins had sold him 100 (spikes?) from Mr Warland's store for £1. He had often seen him intoxicated. On Boxing-day, Hawkins was 'disorderly-looking' and was shooting a target; he had often seen him riding furiously on a horse of Mr Warland's; he had seen him several times in public-houses, and once, when at Greer's public house, was told by him, if he saw 'the old man' not to tell him he was there. Hawkins had accused him of having told Mr Warland he had given timber to Gillou; and telling him not to tell Mr Warland, offered to give him as much timber as he wished; and said he was a partner of Mr Warland's for seven years. (These conversations and statements were the ones lost by Mr Hawkins).
From cross-examination it appeared that this witness had been chief constable at Murrurundi and was sentenced to three months and a fine of £25 for taking £50 as a deposit from a prisoner to return in three days. Before this he had laid a charge of perjury against another constable who was not committed; he himself, however, was suspended from that time till he was convicted. Furze was in Warland's employ when Hawkins came. He was at Wallabadah, and had charge of 860 sheep. It was Hawkins' duty to supply him with rations, and sometimes he was left for days without anything to eat. During the two months he was at Wallabadah he saw Hawkins there only twice. When they were without rations, Dwyer, who had the next flock, left the sheep to go to the head station for food. Hawkins had offered him 18s a week to go round to the stations and count the sheep which he could not do himself. He gave evidence as to neglect and mismanagement of the flocks and run of sheep and lambs. He also stated that the store at the head station was at times left with the key in the door and that Hawkins had been several times intoxicated. He said that Hawkins came to his hut one night after be had left, and after the trial at Murrurundi. He brought a bottle of rum and gave some to Kelly and him told Kelly not to split [sic] upon him and said he would give him (Furze) £20 if he would not come against him.
On cross-examination it appeared that there had been some mismanagement connected with the lambing before Hawkins came, that the weather was frosty in the mornings when the loss occurred and that Furze had not seen Hawkins intoxicated while in Mr Warland's employ.
Whalan gave evidence of Hawkins having given some stocks and dies from Mr Warland's store to McLean, a blacksmith, and of something having been said about £3; also, of his having given to a woman a horse-load of fruit; also, of the key of the store having been left about while Hawkins was absent; also of eight or nine horses, not belonging to Mr Warland having been there and of one being broken in by a man who broke in three for Mr Warland. He stated that Hawkins when at home, was generally, three parts of the day in bed; came home at late hours, and was often in liquor. He said that when Hawkins was ejected no unnecessary force was used; that Mr Warland offered to let his things be put in the store, which he refused to have done; that they were then put in the verandah when Hawkins, with the assistance of two men removed them after dark to the stable. Mr Warland afterwards ordered them to be put outside. Before they were removed from the house, Hawkins had sent away the greater part or his things, and there only remained one old pair of boots, a woman's dressing gown, and other things, not worth more than 30s. He corroborated to some extent the statement of what occurred at Furze's.
From cross-examination it appeared that Whalan made himself generally useful about the house, and that Hawkins, when he went away gave him the key to the store to take what he wanted and weigh out rations to the men who came for them. The statements about the key and the horses referred only to the time before Mr Warland returned to Harben Vale viz, during part of January. Whalan admitted that Hawkins had sent him a book but denied that he had given the store into his charge, and would not swear as to the handwriting in an account book produced.
At this point the court adjourned at a quarter to eight o'clock, till Friday morning at nine.
CIVIL CAUSES. HAWKINS V. WARLAND
This case was resumed and the following additional witnesses were called for the defendant -Robert Pringle. William Henry Warland (the defendant)
Mr Pringle gave evidence as to the loose manner in which the accounts had been kept and as to the investigation which he made at Mr Warland's request. It appeared that certain items were then placed to Mr Warland's credit-cheques &c., received by the plaintiff-which had not been entered and of which Mr. Warland reminded him and certain other items to the credit of the plaintiff were struck out. The balance was agreed upon as £70 in the plaintiff's favor, including per centage and wages. This was on the cash and slop account. Hawkins said he had not kept any store account for some time, and had no sheep account he took the sheep on the former overseer's account at 7400 or 7800. Some sheep were then reported as lost but the plaintiff did not go or send any one to look after them, nor did he take the slightest interest in the establishment while he (Mr Pringle) was there, from the 27th to the 31st March. The entries in the books were made from three scrap books, which the plaintiff said were more convenient than the day book. One person's account had been credited with payments on behalf of Mr Warland, to certain parties whose accounts with Mr Warland were not debited with corresponding amounts.
This witness was cross examined at great length upon minute points connected with the accounts, and in explanation of discrepancies. Mr Warland stated that he had frequently complained to the plaintiff of the manner in which he was managing the sheep, and the plaintiff had promised amendment. The out stations were from two to nine miles distant from the homestead, but could all have been visited in one day. In April 1856 there were 2300 ewes. The lambing season (in September) was good, there being abundance of grass and water. The number of lambs was about 740. In a bad season since he had had 1300 lambs from 1900 ewes, the plaintiff had not the management then. There was one particular flock out of which he had given the plaintiff particular orders not to take any for any purpose and the plaintiff had sold a number out of it. He had given him orders never to allow any one to go into the store, except in his presence, but had often fetched the keys of the store himself from where they had been left. He had directed him to weigh all beasts that were killed and keep an account of them, but he had not done so. He had never seen any store account. He enumerated other instances in which Hawkins had disobeyerd his orders. He said he had never been able to understand Hawkins's accounts. When Hawkins purchased the cattle from McGivney, he told him he had purchascd four at 30s a head ; and after some time he gave him a cheque for £6. He afterwards found that only three were bought. He had in consequence of a letter from Hawkins, sent him a cheque for £32 to pay for four working bullocks and afterwards paid for the three that were actually bought and which had not been paid for. Hawkins said be had wanted the money for other purposes. As to the slops, he had authorised Hawkins to supply them to the men, to deduct them from their wages, and charge the amount to him, but he was to be particular not to supply them to any one else. When Mr. Pringle was going through the accounts. Hawkins used to come outside and write on scraps of paper.
Hawkins was put out on the 1st April, but no unnecessary violence was used. Before he was put out, nearly all his clothes had been taken away and only a few things or little worth remained. These were first put on the verandah and when it was proposed to put them in the store Hawkins refused with an oath to allow it, but afterwards had them put in the stable. Wanting to use the stable he (Mr Warland) had them put on the dung heap where they remained eight or ten days. He estimated the losses he had suffered through Hawkins's mismanagement at over £1000.
From the cross-examination it appeared that when Hawkins first went to Harben Vale, he was placed in the dwelling house and lived as one of the family. Before he went up, there had been no superintendant for two or three years, and the two previous superintendents had ruined the sheep through not having them fed out properly. When the 1900 ewes had the 1300 lambs. It was in the September following the April in which Hawkins left. Hawkins had locked up the books and refused to let him see them but he had shown Hawkins the accounts of the sale of the wool. The unfriendly state of affairs between them com menced about the time of the Chief Constable's dismissal for bribery. He did not know that four cattle were not obtained from McGivney, except from Mr McGivney's information after Hawkins had left. He had ordered Hawkins to leave two or three days before he was put out. The constable was sent for by him, and had to come from Murrurundi, about four miles away. The constable was the first to take hold of Hawkins. They were only three minutes putting him out. Whalan stood in the yard and never came near him.
This closed the defendants case.
Evidence was then taken for the plaintiff in reply. The first witness called was Thomas Sampson Hawkins (the plaintiff) Mr Hawkins gave evidence as to the bad management of the stations at the time of his arrival, and the mortality among the sheep resulting from it. At the lambing in 1856, a great num ber of the ewes were barren owing to that mismanagement. In February, 1857, assessment was paid on 6600 sheep. He had given his best attention to the farm and he bad not heard a complaint from Mr W arland until March 1857, about which time he had asked Mr Warland to settle up the accounts, which he could not do before because he had not let him have invoices. He denied having written on scraps of paper at the time of Mr Pringle's explanation of the accounts. He stated that he bad regularly visited the out stations and that he brought them into as good a state as possible during the time he was there. He denied that every person had access to the stores and stated that when he was absent from the house he left the key in charge of the man who had charge of the kitchen and the house. Kelly had thus had charge and after him Whalan and part of the contents of the book produced was written by Whalan.
The remainder of his evidence consisted principally of specific contradictions of the charges brought against him by the defendant's witnesses, or of explanations of circumtances connected with those charges, and of discrepancies in the accounts. He stated that he never intentionally made an untrue entry in the books, or omitted to enter moneys received. He admitted that some sheep were lost at the time the accounts were being examined. Before this Mr Warland had told him he was not to interfere in the farm again. He gave evidence as to his acquaintance with agriculture and the management of sheep. It appeared that he had been in the employment of Mr. J. H. Atkinson, of Sydney, before he went to Mr Warland. A certificate from Mr Atkinson was to the effect that be had left that employment in consequence of an action against him for breach of trust and that that action had been decided to his, Mr Atkinson's, satisfaction. Mr Dowling before whom the investigation was held pronounced him morally as well as legally acquitted.
At this stage of the proceedings, half-past seven the court adjourned till Saturday (this) morning at half-past nine o clock.
This case was resumed, and the following additional witnesses were called for the plaintiff in reply: Thomas McDonald, Daniel Sutherland, Jeremiah Cary, William Eckford, Thomas McKeown, Robert Geelan, William Cook Clements, Philip Wentworth Wright, J.P., Samuel Corner, Duncan Maitland, John Higham, Thomas Evans, and William Thompson.
McDonald had taken charge of the stations on the 4th April, after Hawkins was ejected. He went round the stations, and found the sheep in a good state, and thriving, and all the yards but one in good repair. He had known Mr Warland's sheep for six or seven years previously, having been in the neighbourhood, and had known them to have been improperly managed before Hawkins came. The homestead had been considerably improved during Hawkins' time. When he (McDonald) too change, there were between six and seven thousand. Within two years before Hawkins came, he had gone through the sheep at Mr Warland's request; and they were not then in so good a state as when he took change. The sheep were mixed; the shepherds used to leave their flocks and come into town to get drunk. When he took chage of the store, he did not find any inventory of its contents.
Sutherland made some explanation about obtaining a sheep from Hawkins. He also gave evidence of Hawkins' sobriety. He had cashed orders for Hawkins, on his own account, and was still a creditor of his to the mount of some £10.
Jeremiah Cary, a farmer in the neighbourhood, gave evidence about the lambing in 1856. He stated that the number of ewes was about 1800, and that about 700 or 800 were barren. Some of the ewes died, and some of the ambs also, partly through the weather, which was very unfavourable, the nights being severe. Some of the ewes were weakly, and could not rear their lambs. Hawkins attended regularly. He (Cary) had assisted at the lambing, and was paid at the expiration of the time by Mr Warland who made no complaint. He had frequent opportunities of seeing Hawkins, but had never seen him intoxicated. A new yard and hut had been put up for the lambing, and Hawkins assisted in putting them up. Between 700 and 800 lambs were reared. There was very good feed.
Eckford had been sent by Mr Hawkins in June, 1856, to take charge of the flock of a shepherd who was discharged because he had often lost his sheep. The yard and hut were then in a state utterly unfit for sheep or lambs, and the sheep were in a very bad condition, half starved and dying. A number of lamps were dropped in June. At another station to which he was sent, there was no proper hut for the shepherd, the hards were unfit, and the sheep of all kinds were improperly mixed together. He left then for Maitland because he would not stay in such places, and when he returned two months after, he found the homestead greatly improved, and huts built on it. While Mr Hawkins was absent from the home station, Kelly gave out rations to the men; he was attentive to his business and appeared to understand it.
McKeown had been employed in July and August putting up huts and sheep yards. Hawkins worked with the men, and has hard as any of them. He had seen the yards before Hawkins came there. They were in a low black soilk and in wet weather the sheep would be up to their bellies in water. They were dying all over the station at that time. In July or August he heard Hunter, a shepherd, tell Mr Warland he had lost about 130 sheep. Hawkins and another rode off to find them. When the yards were being put up, Mr Warland had expressed his satisfaction and had told the men to work under the orders of Mr Hawkins, who was a perfect judge. Mr Warland had also said Hawkins was the best overseer he ever had on the station. He (McKeown) had never seen Hawkins intoxicated.
Geelan had been employed by Hawkins in breaking in horses, clearing the run of cattle, and doing other work. He gave evidence as to certain payments he had received, and as to the fac that Whalan had weighed out beef to him, from the store, and, locking the door, had kept the key. During the time he was there he never saw Hawkins intoxicated.
Clements had been superintendent for Mr Warland for nearly three months in August, 1853, and had been at Harben Vale since. About two months before Hawkins went up, he had seen the yard at one of the stations in a state scarcely fit to hold a flock of sheep. The yard at the head station was very well. This was a yard in which rams were kept. He had seen Hawkins frequently, but had never seen him intoxicated.
Mr Wright, a magistrate at Murrurundi, gave evidence as to the purchase from Hawkins of 20 wethers. He had only received 19, and paid for 19 to Warland, who had objected to Hawkins selling any out of that flock. He had frequently seen Hawkins at Murrurundi, but had never seen him intoxicated. As to Mr Givney, from circumstances that had transpired before him, he would not believe his uncorroborated oath. He would receive his evdence with great caution.
Mr Cornor had had conversations with Mr Warland about Hawkins. On the first occasion, about two months after Hawkins had been engaged, Mr Warland said he was very well pleased with himl; he was an industrious man, and appeared to understand his business. About September they had another conversation, and Mr Warland then said both he and Mrs Warland were very well pleased with Hawkins's management, only he was afraid ho was rather too pushing with the men.
Mr. Wise then addressed the jury for the defendant. The main issue, he said, was, did the defendant dismiss the plaintiff without good cause? If the defendant had proved that he had sufficient grounds for dismissal, the verdict ought to be for the defendant on that point. A number of grounds had been pleaded, but it was not necessary to prove them all; it was enough to prove one sufficient ground for dismissal. By reference to the accounts, he contended, it was proved that the plaintiff had not kept the books properly so long as he did keep them; and that during a great part of his time he had not kept them at all. He maintained also that the evidence established the truth of the other charges of mismanagement, incapacity, and disobedience of orders - each a sufficient ground for dismissal; and then, in answer to tho plaintiff's charge of assault, he maintamod that inasmuch as the defendant had at the time dismissed him, and he re- fused to go, the defendunt was justified in turning him out. He adverted in conclusion to the question of the money claimed by the plaintiff on the account stated, and held that if the plaintiff was rightfully discharged, he was not entitled to the current wages, nor to the percentage.
Mr Plunkett replied. He contended that, though the accounts had not been kept with the regularity of a bookkeeper - not to be expected under the circumstances - the plaintiff had sufficient memoranda wherewith to make up the books; that it was plain from the evidence that the defendant had been satisfied with the manner in which the plaintiff had managed his affairs, and that the plaintiff had discharged his duties with the activity of a man, who had, as he had, an interest in doing so. He pointed out the difficulty under which the plaintiff lay in being callod upon to reply to charges, having the nature of indictments, though not specifically stated, and to reply to them when he had been deprived of the papers and books that should aid him in doing so. The defence, he held, amounted to a prosecution, and a prosecution to avoid the payment of a just debt. He directed the attention of the jury to the explanations which the plaintiff had given of difficulties apparent in the books, though he had not seen these books since his dismissal in April; and he pointed out the evidence of witnesses that confirmed the correctness of these explanations. He remarked on the character of one of the witnesses by whom three of the principal chargos against the plaintiff had been trumped up, and reminded the jury that that character was well known to the defendant, who had brought him to give evidence. After reference to the evidence brought for the defendant generally, and contending that the charges he had brought had not been supported, he asked had the defendant shown good cause for the dismissal of the plaintiff? He maintained that there was not, even on the ground that the charges now brought against the plaintiff did not reach the defendant's ears until after the dismissal. He then turned to the question of damages, claiming for the plaintiff the full amount laid. He denied the right of the defendant to turn the plaintiff out of doors, or to place his goods on the dunghill, and in conclusion spoke in condemnation of the mode of expulsion.
His Honor summed up. First of all it was necessary to ascertain what was the plaintiff's claim. Under the first count he claimed £250, and wages and percentage up to the day of his dismissal. The defendent's first plea was that the plaintiff had misconducted himself, and if he had proved misconduct sufficient as grounds for dismissal, the plaintiff, having been dismissed after the expiration of the first half-year, could claim wages up to the end of that half-year, but not for this half-year then current; nor for a similar reason could he claim the percentage, of which, as it was payable yearly, the period of payment had not arrived. If the jury found from the evidence that at the time of the dismissal there was good cause for dismissal in existence, the dismissal would be justified, although the defendant had been unaware of that cause at the time of the dismissal. He did not believe this really to be the law, but it had been so laid down by higher authorities, whom he could not gainsay, and he was sorry to have to direct the jury to that effect. It was not every set of neglect of duty, however, that would justify a dismissal; but a direct, distinct, wilful act of disobedience would justify instantaneous dismissal. The second plea to the first count was that if the plaintiff had any claim, the defendent had a set-off of damages under the 6th plea, equal to that claim. In order to sustain this plea it was necessary to show not only misconduct on the part of the plaintiff, but misconduct producing damages - a damage caused by the loss of sheep. Then the plaintiff, putting aside the agreement, claimed for work and labor done, for goods supplied, for money paid, and for money on account stated, viz., at the settlemont by Mr Pringle. The question then arose, was the defendant thus indebted at the time? In his opinion the jury must on this issue find for the plaintiff and then the question came, had the defendant the set-off of moneys to an equal amount, as mentioned in his third plea, and again in his sixth plea. Passing on to the sixth and seventh counts, the plaintiff alleged that he had been assaulted, and his goods turned out. The defendant had to both pleaded not guilty but on these issues the verdict must be for the plaintiff. The plaintiff further pleaded justification; and this issue hinged upon the question whether the defendant was or was not justified in the dismissal, in putting an end to tho agreement. His Honor then went at length into the evidence on the plea of justification, in which no less than seventeen charges were brought. The plaintiff's explanation in answer to some of these - founded on apparent discrepancies in the accounts - was triumphant, and the plaintiff had been unjustly treatod in being thus charged. By the wish of the jury he read over his very full notes of the evidence on the charge of general misconduct. The summing up lasted three hours.
The jury retired at twenty minutes past ten o'olock. After an hour's interval, they returned, and were furnished by his Honor with an abstract of the counts and pleas. At a quarter to twelve the jury returned the following verdict: On the 1st count for the plaintiff, £250 damages; on the 2nd, 3rd, 4th, and 5th counts, for the plaintiff, £72; and on the 6th and 7th counts, for the plaintiff, £30.
The court then adjourned till Monday morning, at half-past nine o'clock.
Created 18 September 2023, updated 20 September 2023. Copyright © Andrew Warland. (andrewwarland(at)gmail.com)