Any comments, errors or omissions gratefully received The
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F.Coakley , 2024
Thomas G Petters had been the tenant miller at Pulrose Mill, probably from 1873 onwards - in January 1877 the mill burnt down, but the insurance money was sufficient to rebuild the mill; The local agent for the Liverpool based owner was James Spittall, advocate and business owner who amongst other interests had acquired the Douglas Steam Mill. The lease held by Petters contained clauses that if the Mill was damaged by fire, a quite common occurrence in mills, he was not to pay rent until the mill had been repaired or rebuilt "with all possible speed".
For different reasons it would appear each party would have been interested in not rebuilding - Spittall could see the advantage of freeing the ground for more housing and Petters on his own account was not making a profit but would appear to have been clumsy in his dealing with the owner in seeking too high a payment to rescind the lease, he had also sought a position in Liverpool which fell through. There was also a suggestion that John Cowen (father of photographer George B Cowen), a dyer later found at Kewaigue, might be interested in the Mill as offering a better location for his business - for these reasons it would seem that the rebuilding of the mill was delayed somewhat until August 1877 and not competed until 8th December 1878.
Petters would appear to have a bad relationship with Spittall and had taken against Manx builders and millwrights, he would appear to have been totally uncooperative in accepting the mill as rebuilt to his satisfaction - the court case was brought by Spittall, the plaintiff to recover non-paid rent by Petters, the defendant. The trial occupied 16 days of court time.
The interest in the proceedings are the details of the operation of the mill and of other Manx millers of the period.
Manx Sun, Saturday, July 13, 1878;
John Spittall vs THOMAS GRIFFITHS PETTERS.
Suit brought for £82 2s 5d amount of rent due on a lease of Pulrose Mill held by defendant. The mill was burnt down in January 1877, and was not rebuilt until the August following, and defendant alleged that neither the building nor machinery were sufficient in terms of the lease, and therefore he claimed exemption under the lease from payment of rent until both building and machinery were made sufficient to the satisfaction of competent judges.
Messrs Laughton and Sherwood appeared for plaintiff, and Messrs Adams and Ring for defendant.
The lease having been put in, Mr Adams said a point of law was now raised by putting the lease in. The lease contained a provision to the effect that the tenant engaged to keep the premises insured, and in case they should be destroyed by fire, the plaintiff engaged to rebuild them with all possible speed and replace the machinery that might be destroyed ; the rent to cease during the time of such rebuilding, and the replacing of machinery, and in the event of any delay on the part of plaintiff in carrying out his part of the contract, a deduction of rent for such delay was to be made. The simple question at issue in this case was how much rent was to be deducted. The plaintiff said the mill had been restored long ago, while the defendant maintained that it was not restored yet. It involved a question for a jury, and he (Mr Adams) would propose that it be left to arbitration ; that each party appoint an arbitrator, and that the Court appoint an umpire. He was ready indeed to allow Mr Spittall to nominate five or six gentlemen out of whom an umpire might be chosen. If the matter were not referred to arbitration, he was afraid it would have to come eventually to a trial - Mr Sherwood, after consulting with Mr Spittall, said that his Honor would be able to decide between the parties.
John B. Harwood, clerk with Mr Spittall, proved that the lease was signed by
Mr Spittall and Mr Petters in his presence. Witness added that the mill had
been built up again and restored, the work being finished about the 7th December
last.
Mr Adams : Have you ever been in the mill since it was restored ?
Witness : No. Mr Adams : Then how can you come here and swear that the mill
has been rebuilt and the machinery restored, when you have not been in it since
the rebuilding ?
Witness : I sent up the key and I have heard them say that it is restored.
Mr Adams : Never mind what you have heard anyone say, you have not been in the
mill to see.
James Spittall, the plaintiff was then called, and in reply to Mr Sherwood, said : The property included in the lease comprises the dwelling-house, Pulrose-mill and the meadow below it. I had some conversation with Mr Petters about fixing the rent of the mill and the rent of the house and that of the meadow. Altogether the rent comes to £120.
Mr Adams : You can't get over the lease which states the rent to be a certain lump sum. You cannot get rid of the written agreement by a verbal one apportioning the rent. It would be a very serious matter if a person could come into Court and vary a written agreement to suit his own wishes. Supposing Mr Spittall says that the rent of the mill was to be only £10 a year, and that the other £110 was to he apportioned between the dwelling-house and meadow, are we to be bound by such a version of a conversation given by Mr Spittall in the face of the lease which fixes the rent at a certain lump sum. I contend that no such addition to the terms of a written document put in can be made.
Mr Sherwood contended that evidence might be given to show how the rent, although inserted in the lease in a lump sum. was understood between the parties as apportioned between the dwelling-house, mill, and land.
The Deemster said he did not see how the lease could be varied, but the evidence might be taken for what it was worth.
Witness continued : I consider £50 a year to be a fair proportion of the rent for the mill. The previous rent of the mill, with the meadow below, was £60 a year, and a fair rent for the field would be £10. When let separately the rent of the mill was formerly £50 a year. The mill was burnt down in January, 1877, and I had it rebuilt and restored, and handed over the keys to Mr Petters in December last. Very shortly after the fire I employed Mr Robert Cain, builder, of this town, to re-build the mill, and Mr Thomas Cain, millwright, was employed to restore the machinery. I have no reason to believe that the building is not perfect. I believe the restoration has been done completely. I know nothing personally as to the quality of the building or the machinery. The re-building and re-fitting have cost nearly £1000.
Mr Petters got the key on the 8th December, and it was returned a short time afterwards. The key was accompanied by a memorandum of what he wanted doing, and I went up to the mill shortly afterwards, and defendant pointed out what he wanted doing, amongst other things he required a wooden spout or shoot for throwing corn on to the kiln ; hinges for the trap-door through which the hoist worked which were not on before he came to the mill; and I think the water was coming in at that time through the window sills, as they had not been properly mortared. I rather think there was also a slate broken on the roof of the kiln. I gave orders to have these things done. I don't know what they cost — I believe a few shillings. I sent the key back again about a week afterwards.
On the 13th December the key was returned to me again, with a further requisition with regard to some portions of the machinery. Amongst other things there was a complaint that a portion of the machinery for hoisting to the upper floors was not properly secured I told Mr Thomas Cain to go and do these things if they were really necessary. I understood from him that he did something, but I really do not know what it was. I got a bill for the work however. I sent the key again to Mr Petters with the hope that everything was done to his satisfaction. It was returned to me with a further requisition, and with the remark that when these were done there would be a host of others, and that he would keep me going for some time. This work went on until about the 7th January.
On the 29th December I wrote to defendant, expressing a hope that everything was to his satisfaction, and on the 5th January I wrote again, giving him formal notice that the mill had been placed in good order, that any trifling matter ought not to stop the mill. On the 7th of January defendant brought a letter to my office, in which he complained of certain things which required to be done, and stated that he should not start the mill until everything was complete as he required it. I told him that I was anxious the mill should be set going by the millwright Cain, and that I would provide "shelling seed" in order to try the machinery and get the stones in good order. That course was suggested by Mr Goldsmith, an old miller, and I believe it is the customary way of starting mills.
Defendant said he would not allow anything of the kind. He had always said that if Cain the millwright did the work he would never set his foot in the mill again, that he would law me to the last, and that on the other side he could get law as cheaply as I could. He told me that my proposal was perfectly childish. He had possession of the mill at that time. He had the keys, and I presume he has had them ever since. I got a letter from Mr Adams immediately after my interview with defendant on the 7th January, stating that Mr Petters had left the key with him for me.
Mr Adams : And that was because you would not receive the key from Mr Petters.
Witness continued: I remember a conversation with Mr Blair on the 20th Nov. last. Mr Petters told me on that occasion that the mill stones which had come from England might all go back again, as they should never turn round for him unless he was forced, and he could not be compelled. Mr Blair suggested that it would have been much better if defendant had said this when the stones first came over. Defendant said he had mentioned one matter to me, and I had taken no notice of it, and therefore he was not going to suggest anything further. I asked him what he referred to, as I was not aware of anything that he had suggested and I had taken no notice of, and he declined to give me any information. He then complained that the walls had not been taken down to the foundations. I believe a portion of the old walls was made use of, but that I left entirely to the builder. Defendant told me it was insecure and unsafe. I informed the builder of this, and told him he had better have the walls thoroughly examined. I told Mr Petters that I had done so, and that I had sent Mr Cain to examine the walls. He said he should object to anyone in the Island examining the walls, that there was no one in the Island competent to do so, and there must be a man from England. He said that Cowle was the only builder in the Island who might be competent, but he could not trust him, as I could give Cowle work and he could not.
The Deemster : I do not see the use of this, or what it has to do with the case.
Mr Adams : I see the object of it, sir, but it will be all contradicted.
Witness continued: Defendant said he would search for every possible cause of complaint, and that he would not have a second-hand stone in the mill. He said that Cain, the millwright, was perfectly incompetent to do the work, and that if he did be would have it examined by millwrights from England, and would not work the mill till that was done.
Cross-examined by Mr Adams : Defendant offered to refer the matter to arbitration. I am not aware that anything was done towards restoring the mill until the contracts were entered into, except that I made enquiries before the contracts were entered into. A pair of mill stones belonged to myself, and came from the old steam mill in Douglas. We tried to get a contract from England, and estimates were sent in from two firms. There was no other machinery except these two stones put in from my old mill. I received the letter produced and dated the 7th Jan. last requiring me within six calendar months from that date to rebuild the mill and replace and restore the machinery according to the agreement in the lease, and holding me responsible for failure of same. The date of the contract with Thomas Cain, the millwright, is the 4th June, 1877. The contract with Robert Cain, the builder, was made about the 27th January, 1877. That contract was not signed. On the 26th June I received a letter from you to the effect that nothing whatever had been done towards restoring the mill up to that date. You were quite wrong, however, as the building was then going on. The rebuilding of the mill had commenced on the 1st March, I am sure. I don't recollect whether I replied to your letter or not. I wrote to Mr Williams about the matters in dispute with defendant, but I do not recollect what I said. Nothing has been done to the mill that I am aware of since I received your letter of the 7th January. I can only say its to the restoration of the mill and machinery that I gave instructions for everything that was required to be done.
In re-examination by Mr Laughton, witness said there was delay in commencing the rebuilding of the mill at first because defendant had been trying to get out of it before that, and he wanted to get rid of the lease. He suggested that it should not be rebuilt, that it was a perfect nuisance to the estate, and that he was about making arrangements for a partnership in some business in England. Sometime subsequently Mr Petters tried to make arrangements (as much for my benefit as his own) with Mr Cowin [sic Cowen], the dyer, to take the premises for some other purpose. That stopped the rebuilding of the walls for some time.
Robert Cain, builder, gave evidence as to the rebuilding of the mill. He received instructions on the 27th January to commence building. It was immediately after the fire, and while the insurance inspector was over here about the fire. The old walls were pulled down to the level of the ground floor, in some places below that, in order to get a good foundation. There was a crack in the part of the wall left standing, but it did not interfere with the stability of the building. Having received noticed that Mr Petters complained of the walls, witness got Mr Jas. Cowle and Mr Robert Archer to examine the building. Stones had been picked out of the walls, he presumed by Mr Petters, and holes made, and the mortar had been picked out of the crack referred to.
Cross-examined by Mr Adams : The crack was about half an inch in depth. The portion of the wall where the crack was was entirely uninjured by the fire. The plaster had been cleaned out of the crack so as to make it look as bad as possible. The building was completed in August last. There was no stoppage of the work of the building from the commencement.
By Mr Laughton : Defendant told me on one occasion that Mr Cowin, the dyer, was going to take the mill, and he did not think there was any necessity for going on with it. I told Mr Blair this when he came up to the mill to hurry us on with the work.
Thomas Cain, millwright, deposed to having obtained the contract for putting new machinery into the mill after it was rebuilt. He obtained the contract on the 4th of June of last year, and the machinery was all put in by December. Witness described the machinery as being superior to that which was in the mill before. Some of it varied a little in size, but generally it was better machinery and contained many modern improvements.
Edward Kerruish and William Kelly, millwrights and engineers, both gave evidence as to the new machinery being superior to that which was in the mill before the tire.
James Cowle and Robert Archer, builders, corroborated Mr Robert Cain as to the stability of the new building.
At this stage the Court adjourned to the following day.
William Cain, mason, said he worked for Mr Robt. Cain in rebuilding the mill. They knocked down the standing walls of the old mill to the foundations as far as it was safe to build upon, and the walls they built were sufficiently strong and well built. There was a crack in one of the gable walls, but that did not interfere with the stability of the wall.
John Gale, mason, had worked at the rebuilding of Pulrose mill. They took a great deal of the old walls down, sufficient to leave a good foundation to build upon. The building was ready for the roof about midsummer last. Witness saw Mr Petters's man clearing away one morning the rubbish from the foundations, and he saw Mr Robert Craine and Mr Robert Quayle come to look at the foundations. He saw Mr Petters on one occasion pick some stones out of the wall, after which it did not appear so good.
Cross-examined by Mr Adams : As a mason I don't think picking a few holes in the wall would injure it, and it was the best means of ascertaining whether the wall was properly built or not.
John Taylor, labourer, worked with the last witness at building the walls of Pulrose Mill, and corroborated his evidence.
Robert Cain, builder, was recalled, and said he had been to the mill on the previous evening, and examined the wall where the crack was, and Mr Petters objected to his taking the mortar off. They plumbed the wall, and found it not an inch out. They had the foundations examined, and the timber as well. The timber was very much stronger than that in the old building. Both the joists and beams were heavier. The mill was about two feet higher than the old one, which made the top storey considerably better, and there was an additional window behind the machinery. The work of removing the old machinery out of the mill was finished on the 26th February, and the masons commenced work during the week ending the 11th April. The building was finished about the 24th August, with the exception of the door leading into it. The kiln had not been injured at all by the fire.
James Cowle, builder, recalled, had also visited the mill on the previous evening, and carefully examined the mill. They found a bulge of about an inch in the wall, but that would do no harm. The foundations were all right : there was no settlement since the new work was done. The joiner work also was very good.
Robert Archer, builder, recalled corroborated Mr Cain and Mr Cowle as to the examination of the mill premises, which he said he could not condemn as being bad work.
Cross-examined by Mr Adams : I believe the old wall left standing and built upon is sufficient to stand the vibration of the machinery of the mill in full work.
Edward Kerruish, millwright, recalled, said he had been up to the mill on the previous evening to examine the machinery. He found the water-wheel to be in a very indifferent state, but it did not appear to have been injured by the fire. The shrouding of the wheel and two buckets had been repaired where they seemed to have been injured by stones or something of that sort falling upon them. The other machinery and the millstones were in good order.
Cross-examined by Mr Adams : I think if three honest men were appointed to go and examine the mill at work, they would settle the matters in dispute at once, and save this long inquiry here.
Mr Adams : I think so too.
Thomas Cain, millwright, recalled said that the engine was rusty, and required touching up, but it had received no injury from the fire.
William Kelly, recalled, said he had examined the machinery the previous evening, and found it in good order.
John Windsor, examined, said: My father was tenant of Pulrose mill some years ago. We left it in 1872, having been there for 10 years. I knew the mill well. I examined it yesterday, and found it in a much better state than I ever saw it in before, with regard to the machinery.
Cross-examined : The old French stones were good ones, but I cannot say anything as to the quality of the present stones.
George Goldsmith deposed: I know Pulrose mill well, and examined it after it was finished by Cain. I consider the mill is now in a better state than ever it was. Mr Cain set the mill going when I was there and we counted the speed and all was right. I examined the four pair of stones. The gray stones were not right, but Mr Cain got a person from Liverpool to set them right. I recommended the stones for the steam mill to Mr Spittall.
Cross-examined : The stones did not go round when we set the mill going. The stones would have to be put in position by cranes first before they could be set in motion. I think there are more stones in Pulrose mill than there is always water power to drive, but no doubt with steam and water the whole of the stones could be driven. Steam, however, is not used where there is sufficient water.
Joseph Duke, miller, had worked in Pulrose mill for 15 years some time ago, and several times during Mr Tait's time. Had been to look at the machinery on the previous day, and considered it to be in as good a condition, and in many respects better, than in Mr Tait's time. To all appearance the mill was ready to commence work. There might be two or three little matters requiring to be done, but those could not be known until the mill was worked.
Henry Whiteside, corn merchant, said : I have been a corn miller for upwards of 40 years. I was a tenant of Pulrose Mill before Windsor became tenant. I saw it again on Saturday last, when I examined it for the purpose of this suit. I saw it previously some five years ago. I should say that the machinery is in a considerably better state now than when I had the mill, and also better than when Tait had. Apparently it was in good working order. I did not examine the steam engine. The water wheels are just as they were. There appeared to be no difference in them. New machinery is not expected to go well at first, and it has to be worked a week or two before it is brought into smooth working condition. The mill stones are faced and furrowed before being set to work, and then some rough stuff is put through them to bring them into condition. That is the work of the millwright, but a good miller can do it. Some of these stones were dressed, but I noticed that some of them were in a rough state and undressed.
Cross-examined by Mr Adams : The stones ought to be placed in a proper condition and dressed before being handed over to the miller. If the shelling seeds are run through, it vitiates the policy, and the miller dressing his stones by that means risks his policy of insurance. I did not examine the engine house, because the door was shut and it did not appear as if it was wanted to be examined.
William Callister, baker and corn dealer, and proprietor of Kewaigue mill, said : I served my time as a miller at Pulrose Mill 25 years ago. I had the use of it from Mr Spittall about four years ago, after Mr Tait had gone out. I inspected the mill on the 8th December last, after it had been repaired. It seemed as good if not better than before the fire, but I would have preferred seeing it at work as a miller would. It would have required a miller and millwright a week or so to have put things in repair and an working order. The stones were "on their backs", as we call it, and of course they could not be worked in that state. The new stones are not in good working condition, but they are heavier than the old ones that were there before the fire. The second-hand stones have not very good faces, but they seem very-fair stones. Some of the new machinery has improvements attached to it, and altogether I think it is as good if not better than the old machinery.
Cross-examined : I made the inspection of the machinery at the request of and along with Mr Thos Cain. I did not examine the engine and engine house. I was not asked to do so.
Robert Watterson, miller, deposed : I examined this mill last evening, and also six months since. I was working there for Mr Tait three or four years ago. I was about 19 or 20 years there with Mr Windsor. It is now in a better state as regards the machinery. I saw five pair of millstones, three of them are very good, but one is coarse and would wear out soon. The gray stones are very good. The mill requires odd repairs yet, but I think it is in tidy working order as it is. The engine I found in a filthy condition, from neglect, and not from any injury done to it by the fire.
Cross-examined : It is not fit to be used at present. It would have to be taken to pieces and cleaned thoroughly. If the water came in through the roof of the engine-house, that would account for its rusty condition, but it would not have become filthy as it is now if even with a leaky roof, it had been covered with tallow or whitelead.
Bell Graham Williams, examined: I am the owner through my wife of Pulrose Mill. When I heard of the fire I came over and took a schedule of the contents of the machinery of the mill from Mr Petters, and I sent copies round by the millwrights of Liverpool to contract for replacing the machinery. In February, 1866. Mr Petters called at my office in Liverpool, and asked me what I would give him to relinquish his lease. I said the offer must come from him, and he must consider the matter. Next morning he came again, and said £250 was a fair sum. I declined to give that sum, and the matter then ended. I saw him again in Mr Spittall's office that summer, when a rather angry conversation took place. He said he understood that Mr Thomas Cain, the millwright, was to have the contract for supplying the machinery, and that if he had he (Mr Petters) would never put his foot in the mill nor allow a wheel to turn round. He also said that he would not allow anyone to examine the walls and building in the Island especially Mr Cowle, the builder. He said he should object to any second-hand stones being put into the mill, that milling had been a very bad business with him, and if he had not had private funds to turn to he should have had to leave the Island. He added that he would do all he possibly could to make search for a cause of complaint against the mill. That conversation took place on the 6th of June. About six months before the fire Mr Petters called upon me at my office in Liverpool, and asked me to find him a sub-tenant, as the Barrow Steam Mill Co. could sell flour cheaper in Douglas than he could make it on the spot. I said I could not move in the matter without seeing Mr Spittall, but so far as I was concerned I could see no objection to a subtenant being admitted.
Cross-examined by Mr Adams : The anger was all on the side of Mr Petters. I could not tell how much money has been spent upon the mill since Windsor's time. There has been £100, because I knew of the sum of £90 being paid to Mr Windsor for machinery that he added. Bay windows have been added. I do not know how much those windows cost. The letter produced in which it is stated that £l,000 was spent in the place was written by me. That £1,000 includes what Mr Tait and we, through Mr Spittall, have spent on the property.
William Cain, mason, recalled, said the enginehouse was not affected by the fire, about three feet of the roof was taken off to repair it. and the weather was a little damp at the time, but it did not injure the engine at all.
This closed the evidence for the plaintiff.
Mr Laughton asked for an order from his Honor for three of the plaintiffs' witnesses to set the mill at work and test whether the machinery was or was not in good working order. Mr Adams objected to any more manufacturing of evidence. His Honor said it appeared to him that the proposition was a fair one.
Mr Adams: It may appear very fair, your Honor, but it is far from being so. Mr Spittall has had full command of the key of the premises for months, and I cannot understand such a proposal being made now. I have made an offer which I think is of the very essence of fairness, and I now make another. It is this, that three independent persons should be chosen, by your honor if you like, to go to the mill and set it going, and let them make a report to your Honor. If they report that the machinery is in good working order, then there is an end of the case for the defence, and I am prepared to abide by what they report, I think nothing could be fairer than that.
His Honor said that it was a very fair proposition, and as there was no disposition to settle, he could not be a party to making evidence, and the case must proceed. It would be adjourned to next Monday week, when he hoped it would be concluded. The court was then formally adjourned to Monday week.
Manx Sun, Saturday, July 17, 1880
COURT OF COMMON LAW. WEDNESDAY, JULY 14TH, 1880.
(Before Deemster Drinkwater and a Special Jury Consisting of Messrs J. W. Clinch, H. S. Christopher, Frederick Falkner, J. J. Harwood, R. Ashburner. and W. Allen.
ROBERT G. FETTERS V. JAS. SPITTALL.
THIS suit was resumed to-day, having been adjourned from June 25th. The Attorney General and Mr Ring and Mr Kneen, appeared for plaintiff, and Mr Laughton and Mr Sherwood for defendant.
Robert Cain, builder, examined said, that at the request of Mr Spittall he, a few days after the fire, went to the Pulrose Mill to make an estimate for rebuilding it. Subsequently finding his estimate was inaccurate he sent in a corrected one. He began operations to rebuild the mill early in March. He pulled the wall next the river down to the axle of the wheel It was perfectly sound to build upon and was not cracked, nor did it bulge. The wall on the kiln side was not taken down as it was perfectly sound. Mr Cowle and witness went on Saturday week to the mill and plumbed the wall complained of. The bulge was not worth complaining of. It was bulging about half an inch, and at the worst place it bulged an inch. The bulge stopped a little way from the wheel. The bulge in the wall did not make the slightest difference. The old wall was really a good wall There was a crack in the wall just under the kiln door about one eighth inch ends extending to within about three feet of the door. It was an old crack. There was nothing to make the wall insecure to build upon. The wall has been plastered for two years, and there is no sign of cracking. As they were building day by day the wall seemed to have been tampered with. It seemed as if the mortar had been picked out with some sharp instrument, and the stones thumped and battered. About a year ago witnesses offered to take all the plaster off the wall to show the arbitrators where the crack was, but Mr Petters refused. It seemed as if the mortar had been picked out from between the stones to make it appear as if the wall was cracked. No stones dropped through the roof that he knew of.
The machinery was not exposed though there was an aperture of about a foot in the roof. The engine-room was uninjured. When witness was building the mill plaintiff said to him that milling was not paying; and that if Mr Spittall would give him £50 he would give up the lease. He also said several times it was a pity to erect it as a corn mill. One day on the Promenade the plaintiff told witness that the mill would suit Mr Cowin, the dyer, better than it did him. and for £50 he would give up the mill and Mr Spittall would then have a permanent tenant. Witness did not remember that plaintiff explained that he was proceeding slowly with the building. The working of the mill when the mill was empty would test the walls better than when it was full, and if there was any weak place it would show. The mill was perfectly safe for working.
Cross-examined by Mr King: Witness had been taken a lively interest in the case, and had instructed counsel during the case. In the suit for rent witness did not remember that he said Mr Pinnock recommended the walls to be pulled down to the lower sill, but he might have done. Witness had generally been down to the mill while it was being rebuilt every day, but he might not have gone down for a week when he had been off the Island. When he was away Mr Kaye would see about the work. Witness believed Kaye was a competent builder. He considered him so at the time and still He would swear that the bulge was not 1¾ inches.
Edward Clucas, examined by Mr Laughton, said that he was a mason. He had been to the mill to plumb the walls. That near the mill race was perfectly plumb for about 10 feet from the water, but in the new wall above there was a slight batter. There was a small bulge in the kiln wall of about 1 inch. It appeared to have been built in that way. Witness considered it a good and sufficient wall, and it was safe. The supposed crack in the wall appeared to have been made by being picked. At the top of the crack there was a stone, and if it had been a settlement crack it would have broken the stone.
Cross examined by Mr Ring : A zig zag crack may be caused by the wall spreading. There was not so much bulge in any part of the wall as 2½ inches.
Fred. Sayle, examined by Mr Laughton, deposed to plumbing the river wall and said that he considered it a safe wall.
John Gale, a mason, said that he took part of the old walls down. They were lime walls. The walls built on were safe. One day the plaintiff came into the mill while we were at dinner. He began to pick at the wall with a pick. He picked the mortar out of the joints of the wall and some small stones also. This was near the engine-house.
Robert Archer, master builder, examined by Mr Laughton, said that he examined the walls of the mill two years ago. There was a bulge of about an inch in the river walk The wall is perfectly safe. There was no part of the wall that was bulged more than an inch. I saw no crack in the wall. Where there was a zig-zag mark it seemed that holes had been picked so prove the wall. Witness was almost certain there was not a bulge of 2½ inches.
James Cowle, examined by Mr Laughton, said that about three weeks ago he examined the mill walls. He plumbed the river wall and found a bulge of about an inch. The wall was built with lime mortar and seemed to be good. The zigzag referred to did not look like a crack, and he noticed no crack in the plaster of the walk He would have passed the walls and built upon them himself. He should not consider a bulge of an inch unsafe. It was in the old wall and was built in that way.
Cross-examined by the Attorney-General : Witness had had no experience in building mills. There were some ties through the mill before it was burnt, but he could see no reason why they should be in the new wall.
Thomas Cain, examined by Mr Laughton, said that he was a millwright, and had been so for many years. He had been in the habit of fitting up mills with machinery. He remembered the Pulrose Mill some 15 years ago, and he reset the machinery after it was burnt down. The line shaft which was in two lengths was straightened. It had not been affected by the fire. The bran separater was made at the shop and then taken to the mill. Witness had no conversation with the plaintiff while the work was proceeding, they had had some difference previously. Witness only had his memory to guide him in making the bran separater and fixing it. He could not say that the new one was the exact size, but it was somewhere about the same size. It is not in the same place as the old one was.
The Court adjourned at four o'clock until 10-30 on Thursday morning.
The examination of Thomas Cain by Mr Laughton was resumed. He said — The original starting gear just before the fire had the same shaft as is in now. Upon that shaft was a small spur wheel and another one on top of it to work it. It was always complained of as being in the way. After the fire I altered them and made a small wheel at the top to drive the big ones at the bottom instead of having them of the same size. I subsequently altered them. We could work the cloughs up and down without any difficulty. I took the spur wheels off and put mitre wheels on, and they are there now. I tried them after they were put up, and they lifted the cloughs all right. I have placed the wheels now so that they will not be in the way so much as they were before the fire. No complaint was made until after the arbitration of the present working of the cloughs, I consider the present mode of raising the cloughs better than the previous one.
The axle of the wheel goes through the outer wall, and there is a hole all round it. The boarding around the cog pit was about a foot higher before than it is now. In some mills there are railings round the cog pit instead of boards. I had no instructions as to how high to put the boards. If the mill is properly attended to it would be quite sufficient to oil the machinery in the cog pit about twice a week. There was no complaint about there being no door to the cog pit before the arbitration. At the time of the arbitration there was a complaint about it, and I offered to do what the arbitrators required if they would point it out to me.
The spouts complained of could be easily altered. I told the plaintiff I would alter them if he would show me where he wanted them, but he did not tell me. You can reach from one spout to another. There is no practical inconvenience.
I consider it a disadvantage to have a flange on the pulley. It would make the belt have a tendency to go down, which it should not have, and it would stretch the belt. The pulleys are closer together than they were in the old mill. The present pulley is eight inches wide and the old one seven. This ought to have a greater tendency to keep the belt from falling, and this does away with the necessity for a flange.
I have been in the habit for the last 20 years of making pinions for cogs, and I made them with nails. Recently I have put pins or nails through the body of the tail end of the cog, or pins at each side. Formerly there were keys put between the tail end of the cogs, but some times they dropped out and broke the cogs. Subsequently we adopted the mode of putting pins right through or pins each side. In the Pulrose mill there are only pins in the top sides of the cogs. That was not intended. It was an oversight. I should have found it out when I was adjusting the mill, and it would have been part of the adjusting to have put them right. The nails are not generally more than an inch long. I never knew of a case where the nails fell out.
The line shaft was straightened. We did try at first to straighten it by hammering, but we could not do so. We bent the shaft beyond what was true, and then bent it back again. It was perfectly straight when we left it. We have often straightened shafts in their places and it is the usual way of doing. The piston rod was not bent. It could not have been bent by the fire because other parts of the engine were perfectly right. The roof being off the engine house for a short time has not done the engine any harm beyond what could be remedied by cleaning. I have seen the engine in a worse condition than when we were putting up the mill.
If the wheel had struck stones it would have shown itself in damaged buckets. I looked at the wheel after it was set to work and it showed no signs of being broken. If it had I must have seen it. I think taking the stones in the mill generally they are better than those that were in before the fire. No. 1 pair of stones is not Peak stone but Welsh. It is a great deal better than the previous pair. They are of such a nature that they would do more work with one dressing than the others would do with five dressings. There were a similar pair of stones in the Ballasalla mill. They worked for 20 years, and there are a new pair in now of the same sort which are working very well. There are two pairs in the Union Mills which were put in some 25 years ago. (Witness mentioned other mills where similar stones were at work). No. 2 stones are French burs and are good ones. In good burs it does not matter whether the stones are built on the edge or on the flat. They are as good one way as the other. With ordinary work they should last about 20 years. No. 3 stones are also good. No. 4 are rotten burs. That term is applied to milky-looking burs. They are a soft yellow bur. They are very suitable for grinding Indian corn. I was offered thicker and heavier stones, but I would rather have the ones I have put in.
It is most essential to have the miller and millwright work together when the mill is being finished. I asked plaintiff for the key of the mill as I wanted to do the little things the arbitrators had decided upon. He said he would see his lawyer first, and I did not get the key.
I consider that there would be more storage than there was before, but there would be very little difference. There is no difficulty in wheeling a truck about on the second floor. The silk machine is quite sufficient to do all the work of the mill. It is six inches smaller than formerly. All the arrangements connected with the machine brought it out four feet further than it is at present. That was the part underneath the hopper, but it had nothing to do with the silk machine. The belt was 4½ inches, and there is a belt in the same place, and of the same size. The diameter of the silk machine is about 1½ inches larger than the old one. The thickness of the ribs is 4 inches, and the former was 3½ inches. I consider the working power of the two machines about equal.
I consider the block iron casings round the stones just as good as wooden ones. I have seen them at work in other mills. At the Nunnery Mill there is one that has been in use for many years. Either wood or iron casings require cleaning, and if the iron ones are attended to as they should there is no practical inconvenience. The casings in Pulrose mill should last 10 or 12 years.
Plaintiff said the perforated zinc sieve was too coarse, and I said if he would give me the size he wanted I would put it in. Plaintiff answered that I was to put one in that did not let the broken wheat through, but he never gave me the size. The cost of putting in a finer one would be about 3s. At first the hoist did not work properly, but it was rectified at a cost of about 1s 6d. The pet tap and check valve were not put in ; I did not consider them necessary. There were stop-cocks in before. There is quite enough water power to work No. 1 stones. The counter shaft has been remedied at a cost of 2s. The water wheel and shield have been repaired sufficiently. I have said I was ready to make any small alterations that were required when plaintiff began to work the mill, but not otherwise. Plaintiff told me what a pity it was that the mill was not fitted with new machinery as milling with old machinery did not pay. Allowing space for working the mill it would hold about 400 sacks, but I never saw so many in it.
Cross-examined by Mr King : Shortening the bran separater makes no difference so long as it was not shortening beyond where the dressing ended. I consider that the old one was too long, and the present one is a little too long. I tried the starting gear in Tait's time, and it worked easily. I am not aware that there were persons at the mill trying to lift the cloughs at the time of the arbitration, and were not able to do it without great exertions. They are all new wheels at the starting gear. There is a difficulty in raising one of the cloughs with the present gear. If the belt slipped off the pulleys it would probably spoil the belt, and might do other damage.
I do not think it would have been better to have taken the line shaft out and turned it in a lathe. I bought No. 1 pair of stones from a man named Davis, in Liverpool, and they were second-hand stones. I swear that the stones are quite as good, as useful, and as capable of doing work as well as the new ones as far as I know about mill stones. I only saw barley ground by those stones. I consider I am capable of giving an opinion upon the stones. A stone built upon edge costs more than a stone built on the flat. I do not know that stones on the flat have a tendency to polish. The stones in question have diameters of 4 feet, and that is the generally accepted size now. I paid £11 for No. 1 stones, and for the rotten burs I paid £12 10s. One pair out of the five pairs of stones are very inferior. The sieve at present allows whole wheat to go through. I think it is not fine enough. I told Mr Spittall that there were a number of things to be done, and that if they were not done within a certain time it was giving the plaintiff a stool to stand upon. I have had a dispute with Mr Spittall about my contract, and he told me to let it stand until he had done with the plaintiff. I do not recollect saying to the defendant that the No. 4 pair were not good ones, and he did not tell me to put them in. I had put in four pair of second-hand stones, and I offered to put in a new pair where No. 4 pair are, but defendant said that there were sufficient stones in the mill, and I thought so too. For Nos. 2 and 3 I paid £22 each, and for No. 5 I paid £14. I consider the stones I put in sufficient for the purpose.
The Court adjourned at 20 minutes past 4 o'clock until 10-30 on Wednesday.
Manx Sun, Saturday, July 31, 1880; Page: 21
WEDNESDAY, JULY 28th 1880.
(Before Deemster Drinkwater and a Special Jury consisting of Messrs J. W. Clinch. H. S. Christopher. Frederick Falkner, J. J. Harwood, H. Ashburner, and W. Allen.
ROBERT G. PETTERS V. JAS. SPITTALL.
Wm. Dalrymple examined by Mr Laughton, said : He carried on business for 40 years as a miller. He was one of the arbitrators in the former suit and examined the mill as to its defects. He saw the bulge in the river wall, and it seemed to him to be an old bulge. He considered the walls perfectly safe. As to the stones, No. 1 greystone is a fair good stone, and would do its work sufficiently well He should say nobody could give an opinion as to stones until he had seen them dressed twice or thrice. With plenty of water a 4 ft. 4 in. stone would work. It is rather heavy for Pulrose mill but he would have put in a 4ft. 4 in. himself. No. 2 and 3 burr stones are very fair quality of stone and he considered them suitable. No 1 seemed a porous burr, and appeared quite competent to do its work. It would do for some kind of work, but might not for grinding very hard wheat. If you had much soft wheat be considered it an advantage to have a stone like No. 4. No. 5 are very good stones. He never found any grain in burrs, although he had often looked for it. He did not think it made any difference if the runner was placed on the flat or on the edge. Those stones would last from 15 to 20 years. He preferred black iron casings round stones (like Pulrose mill) to wooden ones, because they are lighter and better. An iron casing at the Union Mills was worked for 22 years. Both wooden and iron casings contract moisture. On a fair average the gross earnings would be from 1s 6d to 2s per boll on wheat: on Indian meal and other provender 1s 6d to 2s per sack would be a fair good earning.
Cross-examined by the Attorney-General ; He considered the walls perfectly safe for the vibration of that mill. He preferred to work 4ft. 4in. stone slowly, if there was a scarcity of water to a four foot quickly. With hard wheat it would have a tendency to mix the bran with the flour. Greystones have always sand mixed with flint. He had seen burrs with such large holes that they had to be filled up with burr. Them they do as well By the term "in the flat," he meant a larger surface and not the grain. He could not see anything to prevent a tenant going to work in the mill. If he had been landlord he would have had a millwright several days adjusting. By 1s 6d or 2s profit, he meant that was got clean of the naked price they paid for it. Out of that had to come the expenses and rent. He had been out of business since November, 1872.
Re-examined: He did not think since 1872 milling had improved ; in truth rather the contrary.
Edward Kerruish, examined by Mr Laughton : He was a millwright of 21 years' experience, at present employed by the Great Snaefell Mining Company, Limited. He knew Pulrose mill shortly before complainant's time. He examined the mill in July, 1878. He considered the machinery very much better than it was prior to the fire. Usually when the machinery is finished the contractor starts the machinery with the miller and tenant of the mill to see the things that are required by him and to point out mistakes, and the millwright is there to adjust if required. There were no mistakes in Pulrose mill that could not have been easily rectified. He preferred nails as pins to keys, and they are used 10 to 1 across the water. The engine would not be hurt by the one foot aperture for a week if it had been properly tallowed before the fire.
Wm. Kelly, examined by Mr Laughton, said he was a millwright, and now engineer to the Foxdale Mining Company, Limited. He helped to renew the mill in 1859. In July, 1878, he went to examine the mill. Generally the arrangement of the mill in quality of the work was superior to what he had seen before. No defects but what could have been remedied by adjusting excepting one or two little things. The miller and millwright ought to be together to work the mill as soon as it is finished. He never knew a mill that did not require adjusting.
Cross-examined by Mr Ring : He did do not think he could tell if the line shaft would not work, but judged by just looking at the mill without seeing it worked. He could not swear that the engine shaft did not require taking out and fixing. He thought an iron casing better than a wooden one if there was an exhaust pan. Generally it was a matter of opinion.
Jos Duke examined : He had been formerly 15 years at Pulrose Mill, and a few years elsewhere. He knew the mill before and after the fire , and he considered it now as good as before. He worked the mill at defendant's request on and off from January last until April. He ground shelling seeds, oats, and wheat at Pulrose Mill, and dressed stones Nos. 2, 3, and 4. It ground well enough for coarse stuff, but required more time and usage to put a proper face on it. Now there is less danger in the cog-pit in getting the stones out of gear. The silk he considered sufficient for the purposes of the mill. The bran separator cannot be much different in size and is sufficient for its work. The mill would not hold more than 400 sacks. The machinery would require oiling about once or twice a week.
Cross-examined : He was in the mill in Tait's time, and once in complainant's. Defendant sent him to the mill to find out defects and put the mill in order. He used Nos. 2, 3, and 4 stones. Mr Rowe sent 15 sacks of Indian corn to be ground. He used the long seeds to put a face on all the stones except No. 1. Mr Eccles sent three sacks of barley and oats which he crushed on No. 4. In No. 1 he crushed some barley.
Re-examined by Mr Laughton : When there was no wheat to grind he put the shelling seeds through and through to tone down the stones. If he had required he could have done all the work he did in the three months in one fortnight.
Robert Watterson, of the Corony Mills, examined by Mr Laughton, said he was twenty years at Pulrose Mill in Windsors and Tait's time, and had left six years next November. He examined the mill lately, and found it improved in many things. No. 1 grey stones he fancied would be better than the old ones when properly dressed. Nos. 2 and 3 would be equal. No. 4 was an open stone. The old one was open something similar, and quite as good as the old one for many other works. The silk is quite capable of doing the work of the mill, in fact more than it will grind. The suction pan is an improvement. In the cog-pit he saw no disadvantage. He considered nails equally as good as keys. The storage was as convenient as before. He preferred iron casings round the stones to wooden ones. A black iron casing in his mill had lasted 20 years.
Cross-examined by the Attorney-General : No. 1 grey stones would be as good as the old ones if worked properly. It would take less than a week, if worked continuously, to make them all right. There were keys in the pinions before. There was a boarding at one time round the shaft outside, but it was allowed to go to decay in Tait's time. Would not swear he said in presence of complainant and others that No. 4 stones were useless for grinding wheat. He might have offered to examine the mill for the complainant. Never told complainant the mill was not half a mill.
Hugh Crennell a miller at Kewaigue, of 20 years' experience, examined by Mr Laughton, said he examined the mill after it had been rebuilt. He had been in the mill before complainant's time, and left when Tait came. He considered it something similar to the old mill. He preferred the present grey stones to the old stones. He considered No. 4 a fair grinding stone, and had a pair similar to No. 4 in Kewaigue. He preferred iron casings to wooden ones. The heel of the cog-pit required oiling about twice a week. He considered the silk would do all the work of the mill. He preferred nails to keys, as they did not come out so soon. At his own mill, a few days ago, he had some cogs smashed through keys coming out. He had some flour ground at Pulrose Mill and it was ground very nicely.
Cross-examined by Mr Ring : Did not see the mill going, and could not tell if its line shaft would work, or if the cloughs could not be raised. Did not know how the cogs were made in the old mill. He supposed his smash was caused by the keys shrinking. By the bran separator being 2ft. shorter you might lose a little in the 3rds and 4ths, as more would go into the bran. He did not know what a "rotten" burr was. He could not tell if he had ever known a stone without a furrow in another mill. His wheel casings are open.
At this stage the Court adjourned.
The case was resumed this morning, when further evidence for the defence was given.
Wm. Kay was recalled to prove that the beams in the wall were all tied.
Thos. Corlett , of Laxey Mills, said that he inspected the mill for Mr Petters when the first suit was on, about 2½ years ago, and for Mr Spittall on the 3rd of April last. He considered it a good average mill for the Isle of Man. The stones were of good average quality, and were quite suitable for a mill of that class. The stone most complained of — a greystone — is similar to one in witness's own mill which had been working for 20 years. Witness considered iron casings as good as wooden ones. He would replace his with iron, and varnish and paint them to prevent corrosion. Wooden cases have to be lifted to clean them as well as iron ; and there is little trouble in cleaning either.
Mr Petters explained to me the arrangement of the old cog-pit. It was the oldest system I ever remember in milling, and the worst. The present arrangement is the best in existence. In going over the mill, witness noticed several defects in the arrangements which could be improved, and suggested other improvements which Petters said had never existed in the mill previously. Witness had a letter from Mr Spittall authorising him to suggest what he considered necessary, and he would carry them out even if they were matters which had not previously existed. Witness read this letter to Mr Petters, and after viewing the objections of Mr Petters, which he considered were frivolous, witness asked if all the things were done which he suggested would he be satisfied to work the mill ? Mr Petters replied that he would never work the mill unless the gable was taken down. Milling is not so good as it was here. The competition from England has affected it. Witness had a conversation with the plaintiff after the mill was burnt down. He said that be had lost a lot of money at Pulrose Mill that the first year had nearly ruined him — but he attributed this to his foreman, that he was not a practical miller himself. He said that he had lost between £100 and £500. Mr Petters told witness on other occasions that it was hard to make milling pay, and he wondered how witness could manage it at Laxey. Corn will not wholly consume in a fire and with 1,000 sacks in the mill witness would expect to find a large amount of debris. This mill would not, however, hold 1,000 sacks.
Bell Graham Williams said : In the autumn of 1876 Mr Petters called upon him in Liverpool, and informed him that milling was so bad in the Isle of Man that he would like him to get a tenant to take the lease off his hands, as the Barrow and North Shore Mills were selling flour for less than he could import and grind it. Witness saw Mr Petters again in Liverpool on the 25th of February, 1877, when he said that it was a pity to rebuild the mill — that Cowen, the dyer, wanted the place, which need only then consist of four walls, and the cost of the expensive machinery would be saved. He asked witness what he would give him to relinquish the lease. Witness replied, "The offer must come from you." He called next day, and asked £250. Witness ridiculed the idea, and declined. When Petters first applied for the property, he represented that he had £1,000 capital to work with, although he had failed for £4,800 the year before ; but he had sold his interest in a dairy farm, and with that sum, and what his father-in-law would give him, he would he able to command that amount. I only asked Petters, as stated by him, what he would take to cancel the leases, but the proposal came from him. The next interview witness had with him was in Mr Spittall's office on the 4th of June. Mr Petters then said that Cain, the millwright, should not have the contract of the mill, for if such was the case none of the wheels should turn round for him. In reference to the walls, Mr Petters said that Mr James Cowle was the only respectable builder on the Island, but as Mr Spittall could give him large contracts he could not trust him. He said that milling had been a losing business for him, and had it not been for private friends he would have had to have left the Island long ago. He also said that he understood that Mr Spittall had put a second-hand stone in. which he objected to, and that he would do everything in his power to find fault as the mill was getting erected. Mr Spittall said to him,"The mill would have been standing now if trade had been good." Mr Petters laughed. Mr Spittall then said, "You always had a pipe in your mouth, and were always smoking there." Mr Petters replied, "I had a pipe in the mill an hour before the fire." Witness expressed his astonishment by saying- "What ! an hour before the fire ?" Mr Petters thereupon altered his tone, and drawing back, said, "I mean an hour before shutting up." Cross-examined: Petters did not state that he would not put his foot in the mill if Cain had the work. I will not swear that Petters did not say that so long as Cain was about the mill he would not put his foot in it. The remark made by Mr Spittall about the fire was probably a joke.
Mr Lake, partner with the foregoing witness, who had been present at both interviews referred to by the last witness, corroborated his statements, and proved that he had joined in the conversation, although Mr Petters had sworn that he was not present on the occasion.
John Crennell, a miller, stated that he had gone to work the mill in January last, along with the witness Duke. They ground Indian meal, barley, wheat, and peas, and when they had no other stuff to grind they ran shelling seeds to face the stones. Petters told witness that one man could not raise the cloughs with the present gear. Witness did it in his presence, and Petters also did it himself. He also said that the grey stones were too heavy, and would not go the same speed as before. Petters had his watch out and timed them. They were going as fast as the old ones.
John Windsor, miller, stated that he had examined the machinery within the last few weeks, and considered it better than it was in the old mill The capacity was small, and when there were 300 sacks at a time they had to take storage elsewhere. 400 sacks would fill the place up beyond leaving room for work.
George Goldsmith, who had been a miller 50 years, stated that he had known the mill and worked in it. The last time he worked in it was about five years ago when Collister had the use of it, it being unoccupied before the plaintiff came in. He considered the mill better now than it was before, and that it was a first-class country mill. Corn will not burn to an ash — it will blaze, and burn to a cinder, and there would be considerable bulk left after a fire.
Wm. Callister said that he had served his time in this mill, and had known it more or less for 25 years.
He went through the mill when the machinery was finished, on behalf of Mr Cain, the millwright and contractor. From the appearance of the mill, he considered it better than it was before. It was not in motion, and, therefore he could only judge of it by appearance. It takes weeks to get a mill in order with a millwright. The stones were the ordinary stones.
At this stage the Court adjourned.
This case was continued to-day.
Robt. Kennaugh, carter at Pulrose mill, said that at no time had he ever seen more than 150 sacks of grain in the mill. If 100 sacks of grain went in from the Steampacket office it went out just as fast in flour. On cross-examination, he said he had never seen 200 sacks in the mill.
Chas. Cain, carter, said that not more than three or four cartloads of burnt corn came out of the mill. He carted it away. Other witnesses were examined to prove that the debris did not reach above the sill of the lower window.
Daniel Collister said he was agent for the proprietor of the stores in Drumgold-street. After the fire the plaintiff said he could not keep the stores on as the mill was burnt. Plaintiff also said that milling did not pay now, and that he could not compete with the North Shore Mills.
John Thomas Cowin, accountant, deposed that he examined plaintiff's books carefully. From the manner in which those books were kept, there was nothing to show the profit and loss. He found that the gross earnings at the mill since plaintiff had it would amount to £497 18s, and the expenses to £585 9s 11d, which would show a loss of £88 7s 11d.
Jos. D. Rogers, accountant, corroborated
John Blair corroborated as to the accounts, and also proved that on November 20th, 1877, he had a conversation with plaintiff, in presence of the defendant. The plaintiff stated that the stones might go back again to Liverpool — they would never turn round for him. On the 7th January, 1878, defendant proposed setting the mill going by the millwright and some practical men in plaintiff's presence. Plaintiff refused, and reminded defendant that he always said that, if Cain the millwright was employed to do the work he would never put his foot in the mill.
James Spittall, the defendant (examined by Mr Laughton), said : I am defendant, and trustee of the property. I prepared a lease of the premises in the autumn of 1876. Petters then applied to see whether or not I could release him from the mill, stating that the competition was so great, and that the Barrow and North Shore mills were selling the flour much cheaper than he could import and grind it. I informed him that Mr Williams had had an application for the property after he (Petters) had taken it; and I, therefore, referred him to Mr Williams, whom he went to see at Liverpool.
About a fortnight after the fire plaintiff called on me, and said that he supposed the mill would not be rebuilt. I inquired why. He replied, "Williams cannot afford it; and the property is heavily mortgaged." I told him it would be rebuilt, as there was the insurance money, and that an application would be made to the Chancery Court to raise the balance on the property. Plaintiff then said "As far as I am concerned, I do not think it will be necessary ; for I have the prospect of a partnership, and am going to England to see about it; I said I was glad to hear it, as I considered the mill a nuisance to the property ; and that it affected the adjoining land, which had been laid out for building. Plaintiff never said he wanted the mill rebuilding, or words to that effect.
A few days afterwards he called to say that the arrangements for the partnership had fallen through. He did not, on that occasion, tell me to hurry on with the building. About that time Mr Lund came over, and made an estimate for providing machinery. Arrangements had then been made to rebuild the mill. Any difficulty or delay would only, I believe, arise with reference to the machinery. Lund's estimate was larger than what the assessor led me to believe the place could be rebuilt for, and I told Petters so. I tried to get other estimates, but the next was, I believe larger. Advertisements were then inserted in the English newspapers, and I ascertained from Cain, the millwright, in the month of May in the same year, what the amount of his contract would be, but it was not finally settled.
On the 10th Feb., 1877, I received a letter from plaintiff, which he brought himself, giving me notice to build. I told him that I thought that unnecessary, as I had previously told him I was going to rebuild. He replied that he knew that, but he was advised to go through the form of giving notice. I said, quite right; and told him that it was a matter of consequence to me, as the rent of the mill was in abeyance until it was reconstructed. Cain, the builder, had previously been with the assessor and me to the mill, and it was then arranged that Cain should do the work.
About the beginning of April Petters called at my office , and said that Cowen, the dyer, was likely to arrange with me to take the place, I saw Cowen, and in consequence of what he told me I found that alterations would be necessary in the walls, and so sent word to Cain the builder not to build the walls above the first storey or put in the joists, because if Cowen carried out his arrangements the ceiling of the first floor would have to be raised. Negotiations went on between them up to the middle of May, when I understood they fell through.
On the 22nd I had a long interview with the plaintiff, and I took a note in writing at the time of what took place. I told him at that time that I could not get Cowen to pay an adequate rent for the mill and that he did not want the land. Plaintiff reminded me that I would be saved the expense of the machinery, and stated that the mill was perfectly useless as a corn mill, that milling had gone to the devil, and had a blacker appearance in the future : that grinding, in a few years, by stones would be entirely superseded ; that milling would never pay anyone in the Isle of Man ; that Mr Whiteside was not making a farthing out of the Nunnery Mill, and even that was better than the Pulrose mill. I suggested that we should procure the improved machinery. He replied that the mill was too small, and that he did not think that the patentees would be bothered with so small a place.
He then proposed that he should be allowed the interest saved annually during the remainder of his lease on the cost of the machinery. He fixed the price at £1000 but afterwards came down to £950. I knew from Cain the millwright at this time that the cost would only be £550, but had not named it to Petters knowing there was bad feeling between Cain and him. I told Petters on that occasion that I would have Cain to do the work. He replied that he would not have Cain or any other Manxman, and mentioned instead the names of some firms at Wretford. The rent Cowen had proposed to pay was only £20 a year, and would have entailed an annual loss of £27 10s. Prior to this plaintiff had called on me to inform me that Cain was building an insufficient wall, and that there was a crack in the kiln wall, and said that it ought to come down to the foundations. I told him I would send for the builder and have the walls thoroughly examined.
On the 4th June Mr Petters came to my office. Mr Williams was present. I also took minutes, of what took place on that occasion in presence of plaintiff. He spoke of the crack in the wall, and said that I had disregarded his warning, and that they were still building on it. I said that I had not done so, as I had sent for Cain, who informed me that it had been thoroughly examined and pronounced perfectly safe. Petters said he objected to anyone in the Island looking at the walls so as to satisfy him. He considered that some one should be brought over from England. Mr James Cowle might he said to be competent, hut he could not trust him. He further stated that Cain, the millwright, was incompetent to do the work, and that if Cain did it he (plaintiff) would never step inside that mill. He would have the mill examined by competent millwrights from England before it turned round for him.
He went on to state that he would find fault with everything he could, and that he would search for things to complain of; that he had £1,000 when he came here, and if he had not got the money which I knew of (referring to a legacy of £1,000) he would have been out of the mill long ago ; his losses had been so great that if he had left then he would not have had more than £1000 ; that he would not have a second-hand stone in the mill ; that the building could not be finished within a reasonable time; that he would try to recover large damages, and that if he failed in doing so be would leave the Island and leave somebody else to pay the costs. At the latter part of the interview a great deal of temper was displayed.
Two days afterwards I received a letter from Mr Adams requiring me to proceed more rapidly with the work. I then urged the builder to proceed with all possible speed. On the 20th November, defendant informed me in the presence of Mr Blair, that the stones which the millwright had got from Liverpool might all go back, and said that they would never turn round for him unless he was forced, and he could not be compelled. Mr Blair suggested that that should have been named when they arrived. Plaintiff stated that I had neglected to attend to some requirements before, but declined to say what they were.
On the 8th December I went through the mill with Cain prior to its being handed over to the plaintiff, and Cain also had it examined by Goldsmith, Duke, Watterson, and Collister, three of whom had worked in the mill before. When I left the mill I met Petters and informed him the key was ready for him. He suggested I should have the mill examined. I replied that Cain, the millwright, had had it examined by men who had known the mill before the fire, and I said I supposed he would be satisfied. Petters then said "Cain had a bright lot looking over it! What does old Goldsmith know about a mill? What does Collister know, going in the dark. Another man told me it was not half a mill. I think you had better get proper persons to examine it, and as to the key there is no hurry about that. I am going on Monday to Liverpool and will see Mr Williams."
The Court here adjourned.
The Attorney-General and Mr Ring and Mr Kneen , appeared for plaintiff, and Mr Laughton and Mr Sherwood for defendant.
The examination of Jas. Spittall, the defendant, was resumed this morning. He said, in reply to Mr Laughton: Mr Petters sent back the key immediately after I had sent it to him. He saw me and told me that he required several other things to be done. I cannot remember what they were with the exception of wanting bells to the stones. They were only small things, and the silk machine, stones, cog pit, batch machine. &c.. were not among the things he wanted done. Towards the end of December I sent the key back again to the plaintiff, and he returned it again, saying that he wanted something else done, but he did not mention the walls, and stones, &c. I said I could stand this kind of thing no longer. He said when I had done those things he had got a host of other things to keep me going for long time yet. Subsequently I proposed that the mill should be set going in his presence, and in the presence of Cain and other practical millers, shelling seeds. Plaintiff said that that was so childish that he would not have it done, and reminded me that if I had Cain to do the mill he would not go into it, and also that he would law me to the last, and on the other side he could get it as cheap as I could. That was all that took place at that interview. I then brought a suit for rent, and the reference to arbitration was in July, 1878.
During the arbitration the arbitrators visited the mill, and pointed out certain things that wanted to be done in the presence of the plaintiff. I said I was quite ready to alter all that was pointed out at that time, and further, to carry out any suggestions made by Mr Dalrymple to both of us, and I also said I would set the mill going. Plaintiff did not agree to that, but I do not remember what he said. The walls, stones, silk machine, batch machine, and engine were not pointed out by the arbitrators. I afterwards sent the key to the plaintiff and did not get it back again.
On 12th November last I saw the plaintiff and asked him if there was no means of coming to a settlement of the matter. He said he should require a very large sum for compensation. I asked him what he wanted and he said his losses had been £10 a week, and he could show that by his books. He said he would make out a memorandum and let me have it.
In January, 1880, I received from Mr Ring a letter demanding compensation at the rate of £10 a week from Jan 1 1877. I said I would get some practical men in the mill, and set it to work shelling seeds. He replied, "I tell you Mr Spittall it is no use, I will never work it unless the walls I complain of are taken down." I said "you really don't mean to say that you expect me to take the gable down.'' He said "I do, most certainly, and unless you do I will never risk my life in the mill." I told him others would have to risk their lives, for I was determined to set it going.
I immediately sent for Watterson, who had worked in the mill but as he was ill I sent for Duke, who had also worked in the mill, and plaintiff was present with Duke. In consequence of the plaintiff mentioning Corlett to me one day as a practical miller I sent for him. After Corlett had examined the mill, I found that there was no chance of the mill going to work, and not knowing how long it might be delayed I sent and had the engine cleaned and tallowed.
On 13th December, 1877, there were no holes in the roof of the kiln. I was at the fire. Plaintiff told me he believed it had been purposely set on fire. I asked whom he suspected. He told me he suspected the carter he had he had discharged on the previous Saturday. He said he had not himself been in the mill for an hour before closing time, that the mill had been closed by Booth, his miller, and that the keys were left in the house about six o'clock.
I was there just as the roof had fallen in. There was not much debris. There appeared very little in the mill at the time of the fire. The sills of the windows are 2ft. 1in. above the floor. At the time of the fire there were two rows of sacks near the gable, and the slates were resting on the top of them. The debris fell at the back of those sacks and remained lower than the top of the sacks, but in the centre it was about as high as the sacks, but fell again on the other side.
I could see into the kiln, and if there had been 30 sacks of Indian corn I should have seen them. Most of the fire was on the engine side. Plaintiff did not call my attention to any corn being in the kiln at the time of the fire or mention it to me afterwards, I never heard of any Indian corn being in the mill until it came out in plaintiffs examination. When the train was going past to Peel plaintiff said " Thank goodness there is something saved. There is some of my corn there."
In June I did not say that the wall must be taken down to the first sill, as arranged by Mr Pinnock. I did not ask plaintiff if he would accept second-hand stones and a reduced number. He did not ask me, if he accepted the mill as it was, would I be satisfied that it was properly finished, and if so whether it was honest to Williams, and I did not reply " Let Williams take care of himself." No such conversation ever took place. I never said I had been deceived by that vagabond scoundrel Cain, and that I wanted to settle the matter. He did not tell me on that occasion to finish the mill and he would accept it, but that as to compensation for loss of time he feared that could never be settled amicably.
It is not true, as plaintiff said, that I told him as to insuring the place against fire that it did not matter so long as I did not see the smoke from the engine. Plaintiff told me that the stuff in the mill was all in sacks. I said that the mill would not hold it. He said, " Oh, yes, they were closely packed," and that where I was then standing he could put 100 sacks. That was in Mr Ridgeway Harrison's office. I measured the place with a stick, and asked him if he was still in that opinion, and he said he was. I then went down to Captain Rowe's office, and had the measurement chalked on the floor, and Mr Hogg told me that the place would hold about 44 sacks. I never saw plaintiff and Cain together about the stones. Cain never said that No, 4 stones were not worth much, and I did not say "shove them in."
Cross-examined by the Attorney-General: I am trustee of the property, and am agent for the Imperial Assurance Company, in which office I insured the mill and plaintiff insured the stock. I will swear that plaintiff told me that the Barrow and North Shore Mills could import flour and sell it cheaper than he could. The memorandum produced is one that I made in plaintiff's presence. At the interview I had with plaintiff on June 4th, when Williams was present, I made a memorandum of what took place. The memoranda produced are the ones I made at the time. I then pushed on the work at the mill. On 20th November plaintiff said that all the stones would have to go back again. When plaintiff was making complaints to me about some small things he at the same time complained of other things. I knew that larger matters were in dispute, but I never heard anything about the bulge in the wall until the following July,
John Harwood, examined by Mr Laughton, said : I am a clerk in Mr Spittall's office. On one occasion plaintiff came into the office to see Mr Spittall about something being done to the mill. That would be about the beginning of 1878. I took a minute of what he wanted doing. He said there would be a host of other things to be done when these were done. He said these were sufficient to go on with for the present.
Wm, Kennaugh, examined by Mr Laughton, said : I am in the employ of Mr Cain, builder. I went to the mill to remove an upright post which prevented a truck passing. It took me a quarter of an hour to do it.
His Honor: Have you any more witnesses as important as that ? (Laughter).
Mr Laughton : So, that is my case.
This was the case for the defendant, and Mr Ring proposed to call evidence to rebut certain evidence given by the witness Kelly who was called for the defendant, and also to call witnesses to rebut evidence also given on the part of the defendant, but Mr Laughton objected on the ground that it was irrelevant, and the objection was held good.
The following witnesses were, however, allowed to he examined :— William Kermode, examined by Mr Kneen, said : I have been to Pulrose Mill this morning. There are nine beams — three on each floor. Six of the beams have the window lintels resting on them. I found one of the three I examined, with a piece of wood nailed on the top, in the middle of the wall. One other besides the three projected six inches over the beam. There were no ties to the beams and lintels. There is no room for ties on the other beams.
Cross-examined by Mr Laughton : It would be better if the beams were spiked to the lintel. I did not take the wall out to see if they were spiked. I don't know the length of the tie. There is a filling piece which is longer than the lintel in, but I do not know whether it is spiked to the beam.
Robt. G. Petters, examined by Mr Ring : I heard Mr Corlett, the miller, examined, and I heard him say that I said the first year or two I had lost £400 or £500. I never made such a statement as that. I remember having a conversation with him. I told him that the first 400 sacks of wheat I brought over turned out to be bad, and that held me back for some time. There was a slight loss on it. That was the whole of the conversation.
Mr Kneen then rose to address the Court on behalf of the plaintiff. He said that the action was brought on a covenant contained in a lease from defendant to plaintiff, dated 21st January. 1875, in which the defendant covenanted that in case the premises were destroyed by fire he would rebuild them with all possible speed. It would be for the jury to say whether this had been been done. If it had not been done with all speed then the jury would have to say whether it had been done at all, and if done, at what time. If the delay had been caused by the plaintiff himself then the defendant might be excused. The first defence to the action was that the plaintiff had set fire to the mill himself and that as no man could take advantage of his own wrong the defendant was not bound to rebuild.
His Honor : I do not think a charge was made.
Mr Laughton : We make no charge of the sort.
Mr Kneen: It may be very convenient for the defendant to withdraw the plea when he has failed to prove it, but there certainly was an insinuation to that effect, and plaintiff was asked by defendant's advocate whether he had not been charged by defendant with setting fire to the mill, and whether he dared discharge his miller. As, however; the charge was now withdrawn, it would not be necessary to refer further to it. The next defence was that the work had been done with reasonable speed, and that if it was not actually complete, all that was required was that the mill should be set to work and any necessary adjustments made, and that this was a part of plaintiff's own duty. Defendant had tried to prove a custom to this effect that when a mill is built it is the duty of the tenant to go in with the millwright, but in spite of this it was only in October last that defendant had got the key from plaintiff to make the necessary adjustments himself, and since the filing of the present action he had actually sent in a couple of millers to work the mill with the millwright. How then if he relied on the custom did it happen that he sent in millers himself? His conduct and his defence were quite inconsistent. That the mill was not actually replaced up to April in this year was conclusively shewn by defendant's letter to Corlett, in which he admitted that he wanted to tender the mill to plaintiff on the 12th of that month. As to any delay in rebuilding plaintiff had clearly not been the cause of that. His letters written to defendant and to Mr Williams, the real owner of the property, conclusively proved this. Then, as it had been proved, six mouths was ample time to rebuild, and it was not argued that the mill was ready before 8th December, there was a delay of five months for which plaintiff was entitled to damages.
Mr Keen then went through the evidence as to the sufficiency of the walls, the quality of millstones, and the state of the mill generally, and contended that the balance of the evidence was in favour of the plaintiff, and more especially as to the stones. Where opinions differed so widely as in the present ease plaintiff was entitled at the least to have everything as nearly as possible in the same state as before the fire. There were several matters which defendant did not pretend to say were restored even yet, such as a crab winch to hoist the stones, and a steam gauge inside the mill. All these were matters necessary' for the proper working of the mill, and until replaced plaintiff was entitled to damages. Then, as to the damages, plaintiff stated his profits to be £350 a year, but he had been contradicted by the accountants who had examined his books ; and supposing his profits to be nil still he was entitled to substantial damages. It was a monstrous argument that because a man could not show that he was making a profit therefore he could get no damages. His profits in the past did not show what they would be in the future, and at all events plaintiff was bound by his lease up to November, 1884, and he had a right to the immediate use of the mill to endeavour to make something in future. While his lease lasted he could not engage in any other business as defendant might at any time rebuild and he would then be compelled to occupy the mill. Defendant's argument was that because plaintiff had shown no profit in the past there was no obligation on him to rebuild, that plaintiff was bound to occupy the other premises and do nothing until he chose to restore. Such a contention struck at the root of all business transactions and could not be supported. The evidence given by the accountants was not to be relied on. They had admitted an error in profits to the extent of £200, and there might be others which had not been brought to light. Taking Mr Cowen's calculations ; he had allowed £420 or thereabouts as the profit on the wheat bought and sold as flour, &c. Taking his quantities, and applying the table spoken of by Dalrymple and Corlett, that 5 bolls of wheat would produce 4 sacks of flour, there would be a profit of £494, showing a discrepancy of about £74 more in plaintiffs favour. This would leave a considerable profit to plaintiff in working the mill. He asked the jury to find for the plaintiff with substantial damages and costs.
The Court adjourned at four o'clock.
Mr Ring, in commencing his speech, commented strongly upon the insinuations which had been thrown out against the plaintiff, virtually amounting to a charge of arson, and quoted authorities to show that if such a defence was relied upon, the defendant would be obliged to substantiate the charge by such evidence as would be sufficient to procure a conviction in a criminal court But although they had made the charge they had left it unsupported by a single tittle of evidence, and the defendant's advocate had now thrown up that part of the case. Still the circumstances remained that they had attempted to impeach the character of the plaintiff by imputations of a grave criminal nature. That the defendant himself never believed any such a charge was evidenced in the strongest manner when he, the agent for the insurance company, had paid over to Mr Petters the full amount of his policy ; and that he (Mr Spittall) set about rebuilding the mill, which he was not bound to do if the fire had been caused by the plaintiff. Mr Williams was to be complimented on the candour with which he had admitted in the box that the conversation, when the charge of setting fire to the mill was said to have been made against Mr Petters, was treated by all parties present at the time as a mere joke, and had taken place amidst laughter all round. Mr Ring then commented in strong language on the unjustifiableness of making so serious a charge against a person in consequence of a few hasty words which had been treated by defendant himself as a mere joke. Then with reference to the rebuilding of the mill, he submitted that the defendant had not put on a sufficient number of men. He would ask whether three men and a boy were sufficient to put on a building of that description. On 10th Feb. plaintiff gave a written notice to the defendant to rebuild, and that if he did not do it within a reasonable time, he would hold him responsible for damages. Why did he not answer those notices in writing, unrevoked they remained, and now the defendant tried to shelter himself from his negligence under cover of haphazard conversations. Finding the defendant did not move in the matter he sought out the cesttuque trust, and he was the person who would have to bare any loss that might accrue. Not getting any satisfaction plaintiff at last went to Mr Adams, and the defendant was written to holding him responsible for any loss that that might take place in consequence of not rebuilding the mill in a proper time. (He then quoted Smith on contracts to show that the defendant could not have relied upon a mere verbal release from the covenant, and then went into the evidence which was given on the question of delay). He considered that the evidence showed that there was a great deal of delay in completing the mill; a delay of at least five months. Supposing the jury were of opinion that the mill was not complete in every particular they were bound to give a verdict for the plaintiff in respect of that five months, and assess damages accordingly. He submitted that the mill was not in a fit and proper condition for occupation. He would be able, he thought, to convince the jury that the evidence given on the part of the defendant was incomparably weaker than that given by the plaintiff. The walls were in such a condition that it would be going to a great length to say that the plaintiff must take possession of the mill. The witnesses called for the plaintiff condemned the kiln wall, and said there was a big crack in it. The witnesses for the defence did not see wall until after it was plastered, and said that if there was a crack in the wall it was a very insignificant one, and would make no difference. He contended that they had established that the wall were unsafe. Many of the stones were greatly inferior in quality to the stones that were in the mill before the fire, and the iron casings were not so good as the wooden ones which were previously in use in the mill. (Mr Ring then exhaustively reviewed the whole of the evidence given in the case, occupying about five hours.)
Mr Laughton then commenced his address on behalf of the defendant, contending that it had been proved that the walls about which so much had been said were perfectly safe, and that there was no ground of complaint. He had not concluded his address when the Court rose at 4 o'clock.
Mr Laughton in resuming his address said, that with respect to the engine three witnesses had spoken to the fact of the line-shaft being straightened properly, and other witnesses said that the engine only required to be cleaned. By the lease plaintiff was bound to keep the machinery in good tenantable and working order. The evidence completely answered the questions with reference to the walls, stones and engine, and if anything was wanted to be done to the engine it would have been very easy to have done it in adjusting the works. In their evidence they made a great point of the cog-pit, and the plaintiff said that the cogs wanted oiling three or four times a day, and every time they wanted to oil them the whole of the machinery would have to be stopped. Was that a bona fide complaint? If it was, why did not the plaintiff tell Cain what he wanted done when he went to the mill! He would give Cain no idea at all of what he wanted. Then with regard to the iron casings he contended that the evidence showed that they were to be preferred to wooden ones, and would last much longer. Witnesses had stated that the silk machine would do more than the mill could grind. Mr Corlett, the miller, of Laxey, was named by the plaintiff as a practical miller, and the defendant thereupon sent for Corlett and said that whatever he suggested should be done he would do, yet when he went down to the mill the plaintiff said be would not be satisfied unless the whole of the walls of the mill were pulled down. The fire took place in Jan. and everything was done by December. It was in evidence that six months would be a reasonable time to do the actual work of the mill—that was to pull down the wails and put in the machinery. But it must be remembered that the contract could not be got out immediately after the fire. The covenant provided that the mill was to be rebuilt with "all possible speed." and it was for the jury to say what that was. They would have to decide whether the faults found by the plaintiff were bona fide or whether it was a dodge on the part of the plaintiff to get money out of the defendant. If the jury thought the defendant did not build the mill in a reasonable time, and that everything was out of order, and that the plaintiff was entitled to damages how much was he entitled to. He claimed £1,500, and swore that he made £350 a year clear profit out of the mill and £100 out of the stores. He (Mr Laughton) contended that that was not the fact, and if it was how was it he was so anxious to give it up. Several witnesses were called to prove that the plaintiff said that milling in the Island was not paying. Then again he contended that there were not 30 sacks of Indian corn in the mill although the plaintiff had charged for them in the claim on the insurance office. Plaintiff had charged for 744 sacks in the mill, and had stated that there were 1,000 sacks in the mill, bnt it would not hold 450 sacks. He (Mr Laughton) submitted that the claim was a dishonest one, and an attempt to get money when plaintiff found that the mill was not paying. In conclusion he submitted that costs should not be given in the case against the defendant.
Mr SHERWOOD then followed on the same side. He said that although so much had been said about the stones being built on flat and on edge there was no such thing as a grain in the stone at all. Even if there was the plaintiff was not likely to receive any damage by them being built on the flat , and were they likely to wear out in the plaintiff's time ? It was the duty of the plaintiff to set the mill going and work the stones, and see what their condition was. The walls he contended were quite good. Even if there was a crack in the old wall the new wall on the top would find it and make it safe. The mill was set going with nothing in it, and that would cause great vibration, bat there was no settlement or anything to show that the walls were unsafe. The plaintiff was compelled to keep the engine in repair according to the lease, and he was, therefore, solely to blame. He contended that plaintiff was not bona fide in wanting the mill completed, and that he was not bona fide now. Mr Sherwood then proceeded to quote figures with a view of showing that the plaintiff had not made such large profits as he said he had, and in fact that he had not made any profits at all, and in conclusion contended that if the jury awarded him any damages they should not allow him any costs. It was clear that there need never have been any suit if the plaintiff had set the mill to work. It was clear that his suit was supported by perjury and fabrication of accounts. If he was entitled to anything at all it was only to nominal damages.
The ATTORNEY-GENERAL in replying on behalf of the plaintiff submitted that he was entitled to receive damages whatever the amount might be. If the defendant entered into a covenant and did not carry it out the plaintiff was entitled to damages. The question of insurance had nothing whatever to do with the case. The question was whether the covenant was broken or not. If it was broken he was entitled to damages of some kind, and it was for the jury to say how much. He contended that the mill as a whole must be finished, and that the keeping of the engine in order did not rest upon the plaintiff. If it was not in such a state that it could be occupied it rested upon the defendant to put it in order. The responsibility was with the person who made the covenant- All those small matters which had been mentioned were essential to the working of the mill, and the defendant was bound to do them all
The Court adjourned at 4 o'clock.
The ATTORNEY GENERAL resumed his address this morning. He said that if the mill was fit for occupation at the time it was finished then the plaintiff was out of Court, but if it had been made fit for occupation since the declaration was tiled, then damages would cease from the day the mill was put in order. There was nothing which justified the defendant in not completing the mill according to the contract. Everything might have been done in six months, which was a fair and reasonable time, and there was no excuse to justify the non-performance of the covenant. The covenant was to give the plaintiff a place he could occupy as a mill, and the plaintiff was under no obligation to do anything in the matter whatever. He was entitled to have the stones as good and useful as they were before. If there was a breach of covenant the plaintiff was entitled to damages under the lease and to substantial damages, and they were not to be entirely assessed upon the profits made in the mill. He contended that the vouchers produced in Court were correct, and that the books had not been fabricated as stated although they were irregularly kept. In conclusion the Attorney-General submitted that if the plaintiff was entitled to damages he was also entitled to costs.
His HONOR commenced his summing up at a quarter to one o'clock. He said — Gentlemen of the Jury, the covenant in this case which is alleged to have been broken is, that in case the mill should be destroyed by fire the defendant engages to rebuild the mill and machinery "with all possible speed." The question for you to decide is whether or not it was replaced with all possible speed. The words "possible speed" are very strong indeed ; stronger than you generally see. You generally see "with all reasonable speed," but "all possible speed" seems to imply that the parties are to do the work without any delay. The question is whether or not in your opinion this was proceeded with with "all possible speed." The fire occurred on the night of the 17th Jan., and the mill was not offered to be delivered up until 5th Dec. I think both parties are agreed that that is not in compliance with the covenant unless something has occurred to prevent the carrying out of that covenant. The plaintiff gave the defendant notice that he required it to be done in six months, and considered that a reasonable time. There is no evidence to show that it is an unreasonable time, and unless something is done to do away with the strict wording of the covenant that covenant has not been performed. What is alleged to have prevented the work being proceeded with with "all possible speed?" We must bear in mind that on the 10th Feb. a notice was given in a very formal language, drawn up apparently by some legal person, requiring the defendant to rebuild the mill with all possible speed, and calling defendant's attention to the lease. That is a very strong circumstance to show that there was no forgetfulness, and that he intended to proceed upon the covenant. It surprised me when that notice was given to this gentleman — a professional man — how it was that he did not at once proceed with all possible speed to rebuild the mill. It appears that nothing whatever was done but removing rubbish and taking down a portion of the walls until April. We find that on 19th April the plaintiff again insists upon the mill being proceeded with. It seems a strange circumstance that on that date the plaintiff is calling not upon Mr Spittall who is the trustee only, but on the person principally interested — Mr Williams — saying that they were not proceeding with the walls with due diligence. and that he should claim damages Mr Spittall does not say that the plaintiff ever told him to cease building the walls or that he would release him from his covenant. Had anything of that sort been said it would have made a great impression upon Mr Spittall's mind, and we should have heard of it. A mere parole statement would not relieve a person from a covenant of this kind. But I have taken it down as an admission on the part of the defendant that he does not rely upon that. If there was any parole statement that he was not to proceed with the mill it was said that the parole would consider it the same as if it had been in writing. After hearing the evidence no statement was proved to have been made on the part of the plaintiff that the mill was not to be proceeded with. Here is the fact that the mill was not pree with, ami the only excuse made is that Mr Spittall in his own mind without any communication with the plaintiff thought it would be better to break the covenant and not to proceed according to the covenant. There was nothing in that calling upon the plaintiff to release the defendant from his covenant. If you should take that view, and it seems to be the legal view, and if anything was said by the plaintiff to release the defendant from his covenant, why was it that he did not proceed with all due speed to perform his covenant. If you think it was proceeding with all possible speed having it ready on 8th Dec, you will find a verdict for the defendant. If on the other hand you should be of opinion that it did not require 10 or 11 months to complete this mill, then as nothing has been said by the plaintiff to release the defendant from his covenant, that covenant is binding upon him, and it will be necessary to give damages. If so an important question in this matter is what is the amount of damages the plaintiff is entitled to receive. That opens a very serious question. In point of law there is no difficulty about it. The difficulty rests with the jury as to the facts. In point of law all a party can recover on a breach of covenant is the damage he has actually sustained. An observation has been made as if a mere breach of covenant deserved to be punished with damages though the party has suffered no loss. A party is bound to show what loss he is likely to sustain, and all you can give is the amount of damage you believe he sustained in consequence of the breach of covenant. The amount will depend a good deal upon the weight you will give to the evidence given by the plaintiff. The plaintiff says he lost seriously by the fire, and that he was making at the time something like £350 a year. He made his claim at the rate of £10 a week, but I do not think much of that, because a person is not likely to make a less claim than he considers he is entitled to. The evidence of the plaintiff has been shaken --r tried to be shaken by a number of witnesses. As to the profits likely to be made at the mill he has called only one witness, and that is Mr Lund. He is a most respectable gentleman, yet he would hardly know correctly what amount of profit was likely to be made by a miller here. He was in a large concern at Liverpool and the circumstances of a concern in Liverpool, and a concern here are so different that you can hardly compare one with the other. It is said by many witnesses that the plaintitf said it was no use trying to compete with the North Shore Mills and the Barrow Mills. They were subject not only to the expense of selling in Liverpool and Barrow, but of sending it over here too. It is difficult for a gentleman like Mr Lund to come to a fair conclusion as to the profits which ought to be made by a miller here. I will call your attention to the way in which the evidence of Mr Petters has been shaken or attempted to be shaken by witnesses called on the other side. He has been examined as to the quantity of corn in the mill. He said in his examination-in-chief — and you must recollect that the suit has been going on for sometime, and he should have made up his mind how much there was in the mill — "We had a deal of stuff in. We had about 1,000 filled sacks of grain and flour." If he had not been cross-examined, and the value of his testimony tested, in that way, that is the way the matter would have appeared to you. On his cross-examination he reduced that greatly. He said he had equal to 1,000 full sacks in the mill at the time of the fire, and afterwards that there were 600. On this being read over he said he had equal to that amount of filled sacks, but most of it was; in bulk. Booth corroborates him. Kelly who was in the plaintiffs employ made a very different statement. He says there were about 100 sacks in the mill. Corlett the carter says there were between 300 and 400 sacks, and that the mill would not hold 1,000. Kennaugh says that the quantity was about 200. Then a witness named Windsor, son of a former proprietor of the mill, says that it will hold about 300, and that if there were 400 in it it would be well filled. We come to very strange evidence with regard to the amount of debris. Supposing there were 600 sacks ot corn in the mill there would be a large amount of debris, but Cain said there would not be more than 3 or 4 cartloads of burnt corn. It will be for you to say whether if there were 600 sacks there would not have been more debris than there was. I call your special attention to this as it is important to see whether Mr Petters' statement is correct in every respect as well as in the amount of his profit. You will find there is a difference as regards the amount of profit, and you will have to consider who you will credit as regards the profit. Mr Cain says he told him he would give up the lease if Mr Spittall would give him £50. How do you account for that conversation when he is making an increasing profit of £350 a year. Do you believe he said it, or do you believe it is a mere invention on the part of a person who who has no interest in the case. Why should Mr Cain come forward and say that the plaintiff made this statement if he did not ? Thos. Cain said that plaintiff told him milling according to the old process did not pay, and Corlett says he told him he lost between £400 and £500 the first year or two. This, however, the plaintiff denied. What interest has Mr Corlett in making that statement. There is an interest on one side, but you do not see the intent on the other. But you find Corlett is not the only person to whom, the observation is made. Then we come to the evidence of Mr Williams to whom the plaintiff said that he wanted to leave the business. There is no reason why the plaintiff should be anxious to leave the business if it was a good paving one. Why should he say if it was not true that milling was not paying, and that he was undersold by the Barrow and North Shore Mills — Mr Williams is corroborated by Mr Lake. Do you find the plaintiff was as anxious to get into the mill as if he was earning £450 a year? Let us see how far the plaintiff is corroborated by the evidence of other gentlemen who are competent to give an opinion as to the way in which milling pays, and whether his evidence is confirmed or contradicted b y his books. It is a most unfortunate thing for persons to keep their books in such a wetched manner as the plaintiff kept his books, and he must not be surprised if the statements he may make are not corroborated by his books. We know many persons have no capacity to keep books, and keep them irregularly. But if they come before a jury and ask the jury to believe them upon their uncorroborated statements the jury will consider the whole circumstances of the case. It is not as if the plaintiff area a mere novice, and not as if it was the first business he had been engaged in. He had been in business three times in Liverpool, and three times had been unfortunate. He knew the importance of keeping correct books, and it seems very strange that the books are so kept — no stock book, and cash book not added up, and when it is added up it seems as if they cannot make anything out of it, and no explanation is given further than that as he was his own master and his own miller, he did not think it was necessary to be very particular about his books , That prevents him being corroborated by his books. Take them in the way Mr Cowin took them, and see if they corroborate his statement as to his making £350 a year. He says that plaintiff's profits woidd be about £200 a year, and that would make no allowance for interest on capital. You have the evidence of seven witnesses who stated that the plaintiff said the mill was not paying, and Mr Cowin so far as he can gather from his books thinks that if you calculate the interest on the capital it was paying but labourers" wages to the plaintiff himself- Just pause here and put these two questions before you. Are you satisfied that the mill was not completed - with all possible speed" in the terms of the covenant, and that nothing was said by the plaintiff which prevented Mr Spittall proceedinging with it ? If you are satisfied upon that, it is your duty to find Bom damages for the plaintiff. Then the question of damages varies from a farthing to any sum within that named in the declaration. The next ,f staera and an important one, is, has he shown you that he has suffered any damage by the fire. Though the fire two years were not likely to be paying subsequent years might possibly have made up for it. If you are able to inform me what your opinion is upon this one point I shall see if it is necessary to proceed further with the case. If you find the mill was duly completed and handed over within a reasonable time it is your duty to find for the defendant and with costs, but if you find that has not been the case then you will find for the plaintiff. If you find it was completed and ready to be handed over within a reasonable time in a fit working, condition then he has suffered really and truly no loss upon the breach of covenant, and he can recover nothing except a bare farthing - damages which he must recover under the circumstances unless you consider that the mill was completed with all due speed. Then with regard to costs. If in your opinion the plaintiff has suffered no loss, it will be for you to say whether your verdict for a farthing shall be accompanied by costs. It is a serious thing because this case having lasted so long and every party been put to a large expense, it is a serious matter. You will have to take into account the circumstances of the case ; how far you consider the plaintiff has acted fairly in the matter, and the question is if you find only nominal damages whether it shall be with costs. Then you may say that the damages ought to be more than nominal. If you take that view of the case it will be necessary for me to make a few more observations on the case. You will have to consider as at what time, if you think more than nominal damages are due, the mill was really and properly completed, and I shall have to go into more evidence upon it.
The Court adjourned at five minutes to two o'clock, and resumed again at 20 minutes to three o'clock, when the foreman of the jury, Mr Clinch, handed his Honor a paper stating that the jury were of opinion that the covenant had not been performed, and that the plaintiff was entitled to more than nominal damages.
His Honor: Then I must go on with the evidence. The next question is whether or not in your opinion the mill was completed within the terms of the covenant by the 8th Dec. That is the first time when it was tendered. I take it you consider it was not in compliance with the covenant having it ready by that time, and the question is whether it was then ready. As regards the machinery at that time you have had a great deal of evidence, and if you are of opinion that either the walls or the stones are not sufficient they have not been replaced to the present day. Any damages you give should be up to the present day. As regards the question whether it was sufficiently restored on 8th Dec, you have the evidence of Mr Petters as to the state in which he found it. He ended by saying that the main defects are the steam engine, the stones, and the walls, and it is for you to say whether it was reasonable to expect him to take over the mill and machinery when these things were still incomplete. It is possible he might have facilitated matters if he had stated what he wanted. He mentioned some things, but he alwavs relied upon the stones and walls, and if you think they are not complete to the present day you can give damages to the present day by consent of the parties. As regards the other things he has mentioned certain ot them were put into repair by Mr Spittall. Then there were a number of other defects pointed out, and these, Cain was informed, ought to be done, but whether they were done or not Mr Spittall is unable to tell us. Nothing was done as far as the evidence goes, until the time of the arbitration ; and, therefore, supposing you to be of opinion that it was not in a proper state on the 8th Dec. or shortly afterwards, after certain small repairs had been done, say up to January, 1878. when do you consider it was put into repair, or is it in repair now ? At the time of the arbitration you find Mr Dalrymple stating that in his opinion it was at that time in a fit state to be taken over. It is for vou to say what is a reasonable compliance with this covenant. Was tendering it in the state in which it was in which ut was a proper compliance with the covenant , or did it require something to be done? If it did, then there was very great negligence with regard to those repairs. If they found the tenant was not taking it over it seems very negligent of them not to try the mill and do a number of the things complained of, some of which have not been done to this day. If these things were required to be done, and were pointed out by the arbitrators, why did not the defendant set about and have them done ? You find the key was left with the defendant, though perhaps he did not accept it, and it was not until January last that he began to make these repairs and set the mill to work. At that time you find they put a millwright and a miller to work the mill and crushed a certain quantity of corn, and it is for you to say whether it worked satisfactorily. They kept the miller in for three months doing about three weeks' work. Do you consider at the present time the place to be in a condition to comply with the covenant in restoring the machinery, and if you think not you will give plaintiff damages up to this day. If you think it was in sufficient repair at Has time the suit was brought, that is after Cain and the miller had set it to work, then you will give plaintiff damages up to that time ; but if you think it was in sufficient repair on 8th Dec., damages will be the difference between the six months which would have ended on 17th July, and the time when it was actually given up in December. You being of opinion that damages ought to be given, you will have to consider what they are. When you give your verdict I should like to ask you in what particulars you consider the covenant has not been complied with, supposing you say the walls and the stones are not sufficient, and that the engine is not sufficient, and any matters of importance that you can point out, as if any further tenancy goes, on it might facilitate matters as to what defendant really should do to the mill ; but if you think it was in a sufficient condition on 8th Dec. you merely have to say so, and that it was tendered to him. That will at once show that you consider the stones, the walls and engine are sufficient, but if you think damages should go on up to the time of the present suit, I should like to ask you as to what particulars are not complied with. You will consider what amount should be given, and then you will he able to answer me as to what particulars are still wanting, supposing there is anything wanting.
His Honor's summning up occupied about an hour and a half.
CURIOUS VERDICT.
The jury retired at ten minutes to three, and returned to Court at 4 o'clock, when Mr Clinch handed a written verdict to his Honor, who read it as follows :— The jury consider that the mill was in fit state for working on December 8th, 1877, and award damages, £40, without costs.
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Isle of Man Examiner, Saturday, November 27, 1880
THE ALLEGED PERJURY BY MR PETTERS
Before his Honour Deemster Drinkwater.
Robert Griffiths Petters (formerly of the Pulrose Mill, Braddan,) surrendered on a charge of perjury alleged to have been committed in the Court of Common Law in the course of an action in which he was the plaintiff and James Spittall was defendant. The Attorney-General appeared to prosecute and Messrs Cannell and Callow appeared on behalf of defendant.
A special jury was sworn, consisting of. Messrs Arthur Bellhouse, Woodside Terrace ; John Clague, Robert Archer, draper; James Crossley Blyth, Santon ; John Allan Bush, Onchan ; and Archibald Clarke, banker.
The Attorney-General opened the case by saying the prisoner Robert Griffiths Petters was brought before his Honour and the jury on a charge of wilful and corrupt perjury, the offence being one against sec. 355 of the Criminal Code. A charge of perjury proved under this section rendered the guilty person liable to penal servitude for a period not exceeding ten years, or imprisonment with hard labour for a term of two years. The prisoner in this case was brought before his Honour for final trial instead of being tried at the General Gaol Delivery. Penal servitude was not sought to be inflicted on conviction, but a term of imprisonment only. The perjury with which prisoner was charged was alleged to have been committed in the Court of Common Law in an action between Robert Griffiths Petters, the prisoner, and James Spittall, advocate. The case was in the Common Law Court on the 15th of June, and was continued almost from day to day up to the 29th July, 16 days being occupied in the trial. The examination of the prisoner Petters—in support of his own case occupied the first three days and part of the fourth day, and he was recalled on the fifth day. The perjury in respect of which he was now charged was committed on the 16th and 17th of June, two of the days on which he was examined. One of the main points for the jury to bear in mind was that in a case of perjury it was necessary for conviction on the charge of perjury that the matter in respect of which the false statement was made and sworn to must be material to the issue before the court. In this case he would show that the statements made by the prisoner—on which this charge was grounded—were all material to the issue before the Common Law Court. In general it might be taken that all which it was thought necessary to take down in the depositions was material, and in this case all the alleged false statements, as set out in the indictment, were in the depositions, which could be produced. Another point for the jury to bear in mind was that it was necessary for proof of perjury that the statement must be "false in fact," or contrary to the knowledge of defendant, and the oath must be taken deliberately and intentionally. It would be shown that the statement in this case was false in fact and deliberately made, for in three or four days the prisoner had plenty of opportunity of correcting anything which he wished, and there would be no " surprise " to him. It was necessary that the jury should know the object of the action in the Common Law Court. Mr Spittall leased the Pulrose Mill to Mr Petters for a term from the 12th November, 187--, and Mr Petters had bound himself to pay the rent and give up the premises at the end of the term in good working order and repair. Plaintiff had insured the premises to a certain extent and Mr Spittall agreed to rebuild the premises with all possible speed if burnt by fire. The premises were burnt, and Mr Petters aDeged that through the mill not being in order for working in the time it ought to have been he suffered loss to the amount of £1,500. The questions at the trial were whether Mr Spittall had broken the covenant, and if so, what damages should be paid to the iilaintiff. Mr Petters' object was to get as much damages as he could for breach of covenant. In his evidence Mr Petters said, "I have, in consequence of the defects, been unable to carry on my business as a miller. I was going on nicely before the fire. My business was not declining, but the reverse. I made about £350 a year from the mill. The books can be depended on as far as they go, and they show a net profit of £350 a year." Mr Petters' books had been examined by several persons who would tell the jury that nothing like the amount stated was shown, in fact it was questionable if there was any profit whatever. Petters further swore, " I never called on Williams before the fire, and had not asked him to take the mill off my hands" ; also, " I never mentioned that the Barrow and North Shore Mills were underselling me, and that milling was no good in the Isle of Man. I did not say in the presence of Loke to that effect." Williams was the husband of the lady who was the real owner of the mill. Now these were questions material to the issue, because it was important for Mr Spittall to show by Mr Petters' own statement that the mill was no good in the Isle of Man. Then Mr Petters said, " I did not tell any one that the mill was of no use in Douglas, as the North shore and Barrow Mills could sell flour cheaper in Douglas than I could import and grind it; on the contrary, I told people to the contrary." Now the jury could not find the prisoner guilty of perjury unless the evidence of one witness in the present case was confirmed by one or more witnesses, because otherwise it would only be oath for path. A number of witnesses woidd be called to show that Mr Petters had said that the mill was of no use in Douglas. Then Mr Petters swore that he did not say after the fire that "Thomas Cain, the millwright, was incompetent to do the work, and that if he did it the mill should never turn round." It might be considered doubtful, perhaps, whether the materiality of this statement was shown,—whether this had anything to do with the profits. But the statement went to show that Mr Petters was putting off the work, whereas if he had been making £350 a year, as he said, he would have been glad to get the mill finished as soon as possible. Further, Mr Petters swore on the 4th of June, 1877, " I did not, in the presence of Spittall and Williams, say that the mill could not be finished in a reasonable time now, and tbat he would claim large damages, nor that he would bring an action, and if he did not succeed would leave the Island and leave somebody to pay the costs." Further, that he did not say in the presence of Williams that Cowle should be sent to examine the walls, and he did not say he would not trust Cowle, because Mr Spittall could give him work and he could not. The prisoner also swore that at the time of the fire he had a deal of stuff in the mill—"about 1,000 filled sacks of grain and about 25 sacks of dressed flour." This was material because the quantity would show the amount of work that was being done at the mill. Mr Petters further swore that, he would find fault with everything he could in the mill, and tliat he did not say that he had i'1,000 when he came to the Island and that if he had not got the other money which Mr Spittall knew of he would have been out of the premises long ago. This was very material, because if he had £1,000 and could not have gone on without it, this showed the state of his work at the mill. Further on in his evidence Mr Petters said " I estimated that I had equal to 1,000 sacks in the mill at the time of the fire. I did not say I had 1,000 sacks in at a time. I had 600 full sacks in the mill at the time. I won't go further.' No part of this was true. It was not necessary that every separate charge should be proved in order for the jury to give a verdict that per j ury had been committed; if wilful and corrupt perjury was proved to any one of the "assignments," the prisoner must be found guilty. He would now call the witnesses and he felt sure that the jury would deal fairly with the prisoner at the bar. At this 'stage his Honour intimated that in consequence of not being well he felt he could not give that attention to the case that it required unless the case was adjourned to the following day. The Court was accordingly adjourned till Wednesday morning.
WEDNESDAY.
George Henry Kewley, clerk in the Rolls Court, produced the declaration in the case of Petters against Spittall in the Common Law Court, and stated that he was examined as a witness in the case.
By Mr Cannell: Mr Laughton appeared for defendant in the former case. The cro_-e_a___atiou commenced on the 16th. Mr Petters was not under cross-examination for two full days — but nearly that time.
Mr Callow, coroner, deposed that on November 18 he served notice on the prisoner to produce his books in the Court of Common Law.
John Thomas Cowin, accountant, Laxey, deposed: I have had to do with the Laxey Glen Mill accounts for 13 years. At the office of Messrs Dickenson and Kneen in the presence of prisoner his books were produced, and prisoner produced what he said were balance sheets. The sheets now produced are the four which Mr Petters produced. I looked at the books and compared them with the balance sheets. I took about a week in the examination. There is nothing shown in the books to show connection with the balance sheets ; but if the books had been properly kept they might have shown it.
By Mr Callow : Mr Laughton was present part of the time and also Messrs Dickenson and Kneen. The item "stock, implements, &c," in one of the balance sheets is not in the journal book. The journal does not show the balance. We did not compare the items in the balance sheet with the journal.
Joseph Drake Rogers, accountant, deposed: I examined Mr Betters' books with Mr Cowin and Mr Blair. The private ledger, cash book, journal, and other small books were produced, and also some balance sheets. In reply to a question Mr Petters said we must fish the thing out for ourselves, and he refused to give any information. I tried to test the balance sheets with the ledger, but I could not make head nor tail of them. I asked Mr Petters for the stock book and he said he never had kept a stock book. I asked him to give me the amount of cash in hand at any time the balances were made, but he would give me no information whatever. I asked him if he had any memoranda of any kind which I could refer to and he said he had not. Mr Petters suggested that I had some bias in the matter. The cash book had never been added up on a single page. My opinion, after examination of the books, is that the balance sheets were altogether false. It would be impossible to properly estimate the profits without a stock book. I don't think the books show a profit of £350 a year; they don'tshow any profit that I could see. I examined the place after the fire. I did not take particular notice of the debris. There was a rise on the floor, but I don't think it was up to the window
Cross-examined by Mr Cannell: I have seen a person with respect to giving evidence,—Joe Murphy. When Mr Petters said he coidd give no information respecting the books he added that he bad given Mr Laughton and Mr Spittall information the day before.
John Blair deposed: I was present at an interview at which Mr Cowin and others were present at Messrs Dickenson and Kneen's. _ Mr Petters waa present. We asked for information and Mr Petters refused to give it. He said the journal showed everything that came in and went out. There was no stock account kept. I examined the journal, ledger, private ledger, and other books with Mr Cowen. We endeavoured in every possible way without the aid of defendant to make " a balance sheet' for ourselves, but from the way the books were kept we found it impossible to do this. I remember an entry of £224 15s 5d "cash withdrawn," which was in one private book, but we could find no particulars as to where this was taken from. I asked defendant for information as to this and he said I could get all the information I wanted from the books. I found a discrepancy in the banking account as kept in the ledger and the bank cash book. No accountant could from those books see that there was any profit being made—certainly not any such profit as £350 a year. On the contrary, from calculatioas I made I found there had been a loss of £100. There was a conversation in Mr Spittall's office in Jan,, 1878, with reference to Thos. Cain, the millwright, being employed. Mr Spittall proposed that the mill be set a.going in the presence of Mr Petters and some practical men. Mr Petters said, " I always said that if Cain did the mill I should never set my foot in it. I shall law you to the last, and afterwards take it across the water where I can get law as cheaply as you (Mr Spittall) can."
Bell Graham Williams deposed: My wife is the equitable owner of Pulrose Mill. I carry on business in partnership with George Loke. I was examined at the trial at Common Law. In the autumn of 1876 Mr Petters called on me at my office and stated that milling was so bad in the Isle of Man that he should be glad to get out of it, and would I assist him by getting him a sub-tenant. I said I would consult Mr Spittall. Mr Petters went on to say that the North Shore and Barrow Mills were underselling him in the Isle of Man, and milling was so bad that he could scarcely continue. My partner was present during this conversation. I saw Mr Petters later on in the Isle of Man, before the fire, and he again said the Barrow "Mills were selling cheaper than he could. On the 28th of February, 1877, in Liverpool, in the presence of my partner, Mr Petters suggested that the mill should be built by Mr Cowle ; he asked me what I would give him to relinquish his lease, and I replied that the offer must come from him. He called the next day when Mr Loke was present, and made an offer which I declined. On the 4th of June Mr Petters said he understood Mr Cain was to have the contract for machinery, and if it was so he would never set foot in the mill, and he would not allow the wheels to turn round. He further said he had £1,000 when he came to the Island and some legacies since, and, but for these he should have had to leave. He also said he would search for every cause of complaint, and if the mill coidd not be built in reasonable time he would claim heavy damages, and if he failed he would leave the Island and leave someone to pay the cost. He also stated in reference to the walls that he would not have them examined except by Mr Cowle, as Mr Spittall could give him work, and he (Mr Petters) could not.
By Mr Cannell: I carry on the business of a land agent in Liverpool. I did not put down the conversation which took place in February, 1876. I cannot remember a conversation that I had with any other person at the office on the same day. I had had written to Mr Petters and he had come over about the shaft of a water wheel. I objected to the shaft on account of the expense, and told him I had another offer for the the tenancy.
James Spittall deposed: I was defendant in an action in the Common Law Court. About the latter end of the summer of 1876 I saw the prisoner who asked me if any arrangement could be made to take the mill off his hands, stating that the Barrow and North Shore Mills were underselling him. About a fortnight after the fire, which occurretl in January, 1877, Mr Petters said he supposed the mill would not be rebuilt, and I told him it would be. I proceeded with the work. I h.ad an interview with the prisoner on the 22nd of May and he said milling had a worse appearance than ever, and that grinding by stones wiuldbe superseded by other machinery. I had an interview on the 4th of June when Mr Williams was present. Prisoner said the milljwould not be ready till a long time after what was a reasonable time, and he would claim a large sum for compensation ; he would bring an action, and if he did not succeed he would leave the Island and leave somebody to pay the cost. He said he would find fault with everything he could and would search for cause of complaint. He also said he had £1,000 when he came tc the place, and if it had not been for this he would have been out of the place long ago, as his losses had been so great. With regard to the building he said Cowle might be a competent man to do the work but he would not trust him, as I could give him work and he could not. He said Thomas Cain was incompetent to do the work, and that if he did it he would never step inside the mill. On the 7th of January, 1878, I proposed to set the mill a-going m the presence of Mr Petters and some practical men. He reminded me that he always said if Cain did the mill he would never set his foot in it. 1 was at the fire and in my opinion there was little or nothing in the mill except what was standing near the mill door—20 sacks. The stock was insured in the Imperial office and they paid him £600. ______ Cross-examined by Mr Callow: I had stated that I was going to put in second-hand stones, and he said he woidd not have any second-hand stones in. This charge to-day arises out of an affidavit tiled by me, and the charge was made under my orders. The affidavit was made in October. The prisoner was in liquidation before the affidavit was made. An offer of 2s in the £ was mad.e. I am not paying Mr Laughton to appear for me. Mr Laughton was off the Island, and when he returned the facts were mentioned. 1 tnat tne suouiu did not specially require prisoner ue apprehended on the Saturday night. No instructions were given. I did not know till mid-day on the following Monday that Mr Petters had been arrested, I took the warrant to Colonel Price for signature after I left the Court on Saturday, but I gave no special instructions. I have no doubt I told the constable to enforce it at once. Robert Cain, builder, Douglas, deposed: I was employed to restore the mill after the fire. Mr Petters said it was a pity to re-build the mill because it would have to be altered for some other business. He said if Mr S pittall would give him £50 he would give up the lease, as milling was no use. I saw the debris after the fire. There were two or three cart loads of rubbish. There was no great quantity of anything like cont Thomas Cain, millwright, deposed: I was employed to put the mill right after the fire. Petters said the the mill would not pay with the old machinery. At this stage the court was adjourned till Thursday morning.
THURSDAY.
Thomas Corlett, miller, Laxey, gave evidence that prisoner told him that during the first year or two he lost between £400 and £500 at the mill. Daniel Collister deposed that prisoner said he could not compete with the Barrow and North Shore Mills. Robert Kennaugh, carter, deposed: I was employed by Mr Petters before the fire for about eight months. As near as I can tell I never saw above 150 sacks of corn stored in the mill in my time. By Mr Cannell: I was discharged by Mr Petters. I have not a good memory. There may be some men with a worse memory — an odd one here or there.
John Windsor, son of Mr Windsor who formerly had Pulrose Mill, deposed: I assisted my father at the mill work two years. With 300 sacks in the mill there was room for working, but if we had more than that quantity on hand it was stored elsewhere.
By Mr Callow: More could be put in bulk than in sacks, of course.
Charles Cain, carter, deposed: I carted the rubbish from the mill after the fire. I carted ten or t[] loads away. I did not notice whether the roof had fallen in or not. .
John Moore, mason, member of the fire brigade, deposed: I went to the fire about six o'clock. The roof was in when I got there. There was a great deal of rubbish inside and some sacks near the door on the ground floor. There was between two and three feet of debris on the floor — up to the height of the window
By Mr Cannell: The sacks that I saw were standing on end against the door.
Joseph Duke, miller, deposed: I worked at the mill about 15 years, in Windsor's time. About S»! sacks of corn might be put in the mill and leave working room. Some extra machinery was afterwards put in which would take up the space of about oO sacks,— leaving room for about 300 sacks. I have seen corn that has fallen close to the kiln and lay there for months, it was charred black but not destroyed, if the debris only came up to the window cill after the fire I don't think it possible there could have been 1,000 sacks of corn in the mill. I have been to see the mill since the fire. There is more capacity for storage
By Mr Callow : With a bulk head sacks might be "horsed,"— placed on top of each other; but the floor was old and weak. , _.i_ - _. \u201et
Edward Taggart, plasterer formerly a member or the fire brigade, deposed: I went to the fire at Pulrose Mill I went into the building when the roof had fallen in. The debris on the floor was up to the
By Mr Cannell: I don't know whether the ground floor was in ; I went in through the window.
Theophilus Hogg: I have had experience in mills. I have seen corn burnt under the kilns. After being exposed to great heat grain would be charred but would retain its form. I on one occasion measured 10 feet by 7 and found 44 or & sacks could be put in 81 William Collister,miller, deposed: I worked at the Pulrose Mill for some time. This mill would hold 400 or 500 sacks, and allow for working room. When corn is burnt on a kiln, in constant work, the bulk is a little diminished, but the form of the grain is not
James Spittall, recalled, deposed that George Loke was examined at the Common Law Court. He had received a telegram that morning saying that Mr Loke was unable to come across on account of ill health. . . . This closed the case for the prosecution, For the defence Mr Cannell called the following witnesses: \u201e,.\u201e,, j _ T Francis Whalley Fothergill, labourer, deposed: I was engaged to do carting when the prisoner first went to Pulrose Mill. I did all the carting till he got horses. The first load I carted was 25 sacks of flour, and 400 sacks of wheat were also carted and put in the mill. At the first start when flour was sent out it was returned as it did not give satisfaction, After that 130 sacks were carted to the mill. There was plenty of room in the mill on the bottom floor. Cross-examined by Mr Laughton : When I spoke of what the mill would hold I meant as a warehouse. By Mr Cannell: Grinding was going on there at the time. Thomas Booth, miller, of Kirk Lonan: I was in Mr Petters' employ. I was engaged by the foreman miller before Mr Petters came over. The first quantity of wheat received at the mill was 400 sacks, and about a fortnight afterwards another 100 sacks and 50 sacks of Indian corn. There was a quantity of flour — about ten sacks — which came with the 400 sacks. A portion of the wheat was made into flour but as it proved bad it was nearly all carted back again. We kept the mill working with this quantity in. I was there at the time of the fire. There was a large quantity of stuff then in the mill. We had shot a portion of Indian corn on to the kiln to make room for working. That was the only time I ever saw it shot on the kiln. I assisted in removing the debris after the fire; there were three or four strangers besides Mr Petters' men engaged in removing the rubbish. We had two carts and were engaged about three days. We always had plenty of work; we had worked all night sometimes.
By Mr Laughton : I left Mr Petters' employ about 12 months ago. The mill was burnt in January, 1877. After the fire I was doing jobbing work for about two years,— milked cows, cut hay, mended sacks, &c. I will not swear to the number of sacks of flour and bran on the ground floor at the time of the fire, — there were 20, but I will not say further. I will not swear that there were no full sacks on the stone floor upstairs, but to the best of my knowledge there was some flour; there were somewhere about five sacks of French flour. There was also some bran in bulk on this floor. I won't say there was more than equal to 20 sacks. On the floor above—the screen floor—there were about 30 sacks of "fourths" and screened wheat; and in bulk there was a large quantity of "fourths." There was a large quantity in the garret; I am sure there was 40 sacks of wheat meal and wheat. There was some Indian corn in bulk on the kiln ; I shot it there, but I don't know that there was more than ten sacks. The sacks were emptied there for the purpose of making working room. Re-examined by Mr Callow: The mill was very full at the time of the fire with one stuff and another. Evan Quirk, labourer: I was engaged by Mr Petters. I was at the mill on the night of the fire. I saw a lot of corn on the kiln. It was put there because the mill was full up with other stuff. It was the custom when we were short of room to put the sacks on top of each other. I left Mr Petters' employ about six months after the fire. By Mr Laughton : Mr Petters had not given me a hint to keep away from the court when the trial was on. I helped to milk the cows. I made a statement at Mr Spittall's office and signed my name to it, but the statement is not true, because Kelly was saying what must be put down. I did not tell them that it was untrue when I put my mark to it. It was read over to me but I did not understand it, as I had no schooling. It is true that about a dozen sacks of corn were put on the kiln. Mr Blair, Mr Kelly, and Mr Senogles were present when I made the statement. The day before the fire there was about the usual quantity of corn in the mill, certainly not more than 200 sacks. James Fitzpatrick, labourer, Douglas, deposed: I went to the fire to fill away the rubbish — the burning wheat. There were some sticks, but in general we took away the burning wheat and carted away a vast heap of it. I remember taking the burning sacks of wheat away to the yard. It was burnt that much that the sacks of wheat were like sawdust. There were above forty loads output, — grain and burned stuff — in the two days. I think I would be quite justified in saying that there would be 100 loads altogether. Cross-examined : The wheat and the flour were put into a hole in the yard. In some cases the sacks were not quite burnt away, Patrick Campbell, labourer: I worked at Pulrose Mill I helped to cart away the rubbish after the fire. There was a lot of wheat. Thomas Murray, baker: I have had dealings with Mr Petters. I never heard anything against his truthfulness. James Campbell: I know Mr Petters and have had dealings with him and always found him honest. William Beck: I have had a good deal of transactions with Mr Petters and have not heard anything against his truthfulness. The Attorney-General withdrew the second assignment, alleging that the prisoner had asked Bell Graham Williams, in the presence of Loke, to take the mill off his hands, in consequence of Loke being unable to attend as a witness. Mr Cannell then addressed the court on behalf of the prisoner, saying that during the whole time he had been at the bar he had not seen a case in which the Attorney-General had been actively assisted by counsel who had appeared in the court below on behalf of the plaintiff, whose prosecution this really was. There had been serious and important cases tried in the Island, but the Attorney-General had never been actively assisted in the manner which was being done in the present case. It had been said that Mr Spitall did not ask Mr Laughton to appear \u2022 hot. One fact could not be got over, that Mr Laughton was the leading counsel in the Common Law Court on behalf of Mr Spittall, and he now appeared to-day. After the fire at the mill Mr Petters under legal advice took steps to have this part of the agreement carried out relating to the re-erection of the mill, and as he considered it was not done in a reasonable time he filed an action in the Common Law Court to recover damages. The case came before a special jury, and it was on this trial that the prisoner made certain statements on which this charge was grounded. During that trial Mr Petters was under examination three and a half days and for nearly two and a half days of that time he was being cross-examined by Mr Laughton. The result of the trial was that a verdict was entered to a small amount. Notwithstanding that all the evidence then given was known to Mr Spittall, yet he did not at the first opportunity authorise any prosecution for perjury. In a prosecution of this nature it was always considered that the only object in view was to satisfy public justice and see that the majesty of the law was upheld; but notwithstanding that Mr Spittall was well aware of all the circumstances of the case he delayed from August till October before making the affidavit necessary for the prosecution. Though this prosecution appeared in the name of the Crown it was not really so, for the real prosecutor was Mr Spittall. At the latter end of September Mr Petters found that he was compelled to compound with his creditors, and two or three days after notice of this was given this prosecution was instituted. He wished the jury to bear these facts in mind. He would now direct attention to the charges brought against the prisoner. This was a very serious charge as the jury could easily see, for on conviction the prisoner would be liable to a term of two years' imprisonment with hard labour. He wished first to call the attention of the jury to the important feature in all cases of this kind, namely, that they must not only be satisfied that the prisoner swore falsely, but at the time he did so knowing and believing tbat what he said was not true. If a man swore falsely, but believed at the time what he said was true, this was not perjury. Another very important point for the jury to bear in mind was that many of the contradicted statements in regard to which perjury was alleged were statements made about three years before the time that Mr Petters was alleged to have denied making them; and these denials were elicited in several instances in the course of a lengthy and trying examination, and cross-examination by Mr Laughton. With respect to the alleged statement of Mr Petters that he had made £350 by the mill, and that the book would show this ; Mr Petters believed it when he made the statement, and he believed it still; it was for the prosecution to prove that Mr Petters could not see a profit of £350 in the books, and this had not been done. With respect to the amount of corn which Mr Petters said was in the mill, his corrected statement was that there was about 630 sacks ; Collister had said the mill would hold 500, and other witnesses came near the same figure. He asked the jury in considering thie point to remember that an experienced man had examined the mill after the fire, on behalf of the insurance company, and the £600 was paid, —— the full amount of the policy. Mr Callow first called the attention of the jury to the fact that Mr Petters, after making the statements on which these charges were grounded, did not attempt to keep out of the way, but conducted himself in every way as an innocent man would. As to the charge in relation to Mr Petter's statement of profits, he questioned whether there was any evidence for the prosecution which was sufficient to make a case for the consideration of jury. The fact was the balance-sheets showed the profits, and this was admitted; but if the accounts were not correctly made out it amounted to nothing. It was for the prosecution to prove that the balances were not correct, and this had not been done; statements had been made, but they were not corroborated sufficiently to show that Mr Petters was not right in the statements he made. There was no attempt to show that the balance-sheets were concocted for the purpose of falsifying the accounts; on the contrary, the rough way in which they were made showed on the face of it that they were simply made for Mr Petters' own guidance and not for any fraudulent purpose. As to the remark on which another charge was grounded that if the mill was done by certain persons he would not set foot in it. That was of little importance, and though witnesses had been called to say that the statement had been repeated on after occasions, the fact was that Mr Petters merely referred to what he had said before — as, "You know I always said so and so." As to the allegation in regard to the £1,000, there was no possible reason why Mr Petters should keep this back. It was shown by his witnesses that at the very first start he was not altogether successful, and he might have been making money and yet not have been able to keep going if he had not had this £1,000, and the legacy to keep buying with. He contended that the quantity of grain in the mill was not a material question or it would have been brought out in Mr Petters' examination in chief in the Common Law Court.
The Attorney-General replied, and the Court adjourned till Friday.
FRIDAY.
On Friday afternoon his Honour summed up the evidence, and the jury, after retiring for about fortyfive minutes, returned into Court with a verdict of not guilty.
On the verdict being announced there was some applause in Court, and when Mr Petters got outside he was loudly cheered by a large number of persons who had assembled.
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Any comments, errors or omissions gratefully received The
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