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SUPJEEME COUET--CtYIL SITTINGS. Tuesday. September 24. . [Before His Honor the Chief Justice.! r- . »?»» & r» ??vn ? «r/vroirn V vvhi YE. ?

The Jury sworn in thi3 case were not all present rhen the Court opened, and therefore it was post nmed till later in the day. NOSWOKTHY V. HAiiETT. , . . ._

Mr. Ingleby and Mr. Thrupp for the defendant This was an action against the defendant, as Chairman of the Central fioad Board, fonefusing to take up the award of an arbitrator as to com pensation due to the plaintiff for certain land taken for ioad purposes. The defendant placed 26 pleas upon the record, denying all the allegations ol the declaration. Mr. Stow opened the case to the Jury, pointinz out that the action was brought under the Boad Amendment Act of 1863, by which it was neces sary for the Boad Commissioners, in order to take new land for road?, first to deposit a plan in the Survey Ofliee, with particulars as to the name of the owner and occupier of the land, and other mnttern, and the notice had to be inserted in the Government Gazette, intimatiug the inten tion of the Board to make such new road, and fumubing particulars such as would enable the persons directly interested as well as the public generally to know of what was being done. The learned counsel then explained the provisions of the Act, by which, if a sum was not agreed upon, the party whose land was taken might give notice any time within IS months of the notice of his claim fur compensation, and under the Lands Clauses Consolidation Act, which was incorporated with the lioads Amendment Act, certain means were provided l»y which any sum under JK20Q might be determined by arbitration. He intimated that it would be proved that the plaintiff in the present cause had d ne all that was necessary for him to do by the appointment of an arbitrator, who had made an award, which under the Act the [ioad Board were bound to take up and to furnish the claimant with a copy of. The Central Itoad Board, it would be seen, had from the beginning, after havingtaken the land fromtheplaintitf.tiirown every difficulty in the way of his obtaining compensation, ami cist unnn him thenpre.uir.1* of takioa stena for

enforcing his ri^lic, and then alter having attended before the arbitrator, where they had an oppor tunity of urging anything they could against his claim, refu-eil when the award wxs made to per form the duty which the law cast upon them by taking that up, but compelled the plaintiff to seek the assistance of the Court, in order to do which he hid to prove every step in the proceedings; and in the meantime the award, whatever it minht be, was of uo uaa to either party, because it could not be locked at. The plaint ill 'merely insisted upon his right thut the award should be taken up, and it would not be necessary to go int-» all the other questions which would arise; ltut lie thought it would be seen that the Board had acted throughout in a manner not at all creditable to a body holding power to excrcUe important functions &udi as were cast upon them. It w;ls stated that the declara tion fud been amended by the insertion of the numlicr 21-22 instead of 2121. Charles Jtatthtws Duswell, clerk in the Surveyor Ueiieral's Office, produced survey map, referring to sections £421, 31-20. 24ii and others in the Hundred of Nan^kita, and also the book of reference referred to in Gazette notice; the order dated June f-, LSt;S, with the Governor's signature, and notice of confirmation from the Gazette. By Air. Ingleby— Section 2422 in the book of reference appeared to have been altered from 2431. The (juantity of laud taken out of 2421 was one acre seven perches, out; of 21:2 two acres two roods 32 perches. The alterations were made in the plan and book of reference since they were deposited. By Mr. Way— The mistake wa3 made in the Central lUnul Board Office. By fiis Honor— 'fiie plan was deposited on the £3:h March, 1£C5. The alteration was made in about October, 1SG5. William Nosworthr, the plaintiff, examined by Mr. Stow, deposed that he received the notice, dated 29ih March, from the Surveyor-General, and was at that time owner and occupier of the sections named. Served a notice upon the Central ttoad Board through Mr. Le'.chford. The notice was as follows: -'I William Aiosworthy, of Bald Hills. Yankalilla, owner and occupier of sections 2422, 2121. 2420, Hundred of Nangkita, County of flindmarsh, hereby cive you notice that no right for making roads has been reserved in the original grants for the before-mentioned sections, and that 1 claim the following compen sation for the land taken for the main road, part of the said sections. Notice of confirmation gazetted September 7, 1S65, for severance, including fencing and keeping the same in permanent repair for damage that may be done by water and weeds, together with the costs and expenses that have been and may be thereby occasioned, viz.— For land, part Section 2422, 2 acres 2 roods 32 perches, at £-per acre, £13 10s.; severance, in cluding .210 rods of fencing, at &. tM. per rod, £70 U ; estimated capital required to keep 21B roils of fencing in permanent repair, £4ii Itis.: depreciation of 10 acres severed, £10; the estimated damage likely to arise from water and weeds on the land and also on the roads, £5; for land, part of Sections 2421 and 2420, 4a. Or. .'Jlp., at £5 per acre, £20 19s. 4d.; for fencing 33U rods, at 63. fid. per rod, £10i) 4s. — JS'.B. I have not charged for seeping this fence in repair nor for severance, as the Distr^t Council have engaged to give the old road fur tiie amount charged for the new one— to preparing estimate and notice, £2 2s.— total, £277 15s. 4«1. And 1 hereby further give you notice, in the eveut of your being unwilling to pay the afore said compensation and enter into a written agree ment for that purpose within 21 days from the receip; hereof, I desire to have the same settled by arbitration, and shall be willing to confer with the Board for the purpose of appointing a single arbitrator during the interim of the said 21 days; and if no such arrangement be made 1 shall then proceed to appoint an arbitrator on my behalf. As witness mv hand, this 12th day nf December. 1SB5. \V. Nosworthy.' .Notice of £7th January, l^ti. was ako produced, statin.: that ti-.e plaintiff had appointed John Cherilon as arbitrator.] The road referred to bud been surveytil, and one part oi it begun to ba made by the Central Koail Board. I Appointment of arbitrator produced, dated 24 th April, IStO'; acd also notice of the 25th of April, ISoU as follows :- 'To the CoumussWiuers of Main Koad* for the Province of Suuth Australia.— On behalf of Mr. William Nosworthy 1 beg to refer you to his notice to you in writing, dated the 25th day of April, lS-.'(», wlicrcby he notifies the appointment of ilr. John CJicriton as arbitrator on behalf of the said VViflum ^oiwurthy, to settle and determine the amount of compensation to be paid to him by you the .'?aid Commiss' oners, in respect of his interest therein described in sections numbered Jrtspectively 2422, 2421, and L'420, in the Hundred of Naugkita, County of Ilindniarsh; and further requesting you to appoint an arbitrator on your i-:irr, aa therein mentioned. And 1 have Kn-.v tn give you notice that in pursuance of t!ie saM noticf, and of the intimation thereby given, the said William Nosworthy did by writing uudtT hia liaml dated the eighth day of Jane, one thousand eight hundred and sixty-six, in pursuance of the provisions of 'The Lands Clauses Cimsoli'la'U'n Act' (No. t! of 1S47), and of every other Act oii-.l .lower him thereunto authoriz ing or enabling, appoint the said John Cheriton to act on behalf bo' . of him and tfic said William Nosworthy and o! you the said Commissioners in hearing and determining the matters so in dispute, a copy of which hist mentioned appointment may be inspected at my oiifce, (£», King Willium-street, Adelaide. Dated this eighth day of June, IStJl!. S. J. Way, attorney for the said William Nosworthy.' There was also produced a notice of the 8th June, ISOi, a second appointment of Mr. C leiiton as sole arbitrator, and that the hearing would be com menced on June 25th. 1 Was present at the meet ing on the 2ftU June, before Mr. Cheriton. Mr. Thrupp attended for the Board, also the Secretary, Mr. Hargrave, and the Valuator (Mr. Richardson), who were examined on behalf of the Board. By Mr. Thrupp— At the arbitration he asked for more than he liad got down in his claim. The reason was that it was understood when he gave that that he should obtain the old road from the District Council, and not being able to get that he made a claim for keeping the fence in repair. Sections Nos. '2121 and 2120 were subject to a mortgage to Mr. Mouctou and a lease to Mr. Jones. On objection being taken to the witness giving evidence of the lease end mortgage. His Honor said if that was refused he should have to strike out the statement of the plaintiff that he was owner. Witness, in reply to His Honor, said he paid the mortgage when the time expired— more thaa 12 months azi-. By Mr. Thrupp-Did not think it wa3 paid at the time the notice of the 12th December, 1865. BoURhtSectiou2i22 from the Crown aboutfiveyears age, and he had borrowed money on the land with other sections. Had not paid it at the time of the arbitration. The deeds were left with the party who had the money. [A fetter from the Central Road Board of July 3, stating Mr. Kichard*on'8 award, was admitted and put in as follows:— ' I ani directed to inform you that Sir. J . Bichard son, in his report of the 23rd June last, has made the following award in respect of land required for the new mam road through your sections, 2422, 2424. and 2120, Hundred of Nangkita:-i-ection No. 2422, for land taken, 2a. 2r. 32p., inclusive of compensation for severance, £3 per acre. Sections 2424 and 242?. for land taken, 4a. Or. 31p., the old road, which contains 5a. Or. 31p., to be given for the new one. The report wa3 read at the meeting held to-day and was adopted by the Board. I have. &c.'j Mr. Thrupp at the meeting de manded the appointmsnt of the arbitrator, and his authority to act as sole arbitrator. Mr. Thrupp said he would do all he possibly could to obstruct, or if those were not the words they were the sense. Had possession of his title-deeds now of all th« sections. The counteipait of Jones's lease was in the Beal Property Office. John Chcnton, farmer, Strathalbyn, deposed— I received document, dated April 25, about that date. Received the appointment of the 8th June about that date. I made a declaration before a Justice of the Peace. It is annexed to the award, and 1 refuse to produce the award. Mr. Way proposed to put the declaration in. but His Honor held that as it was annexed to the award, the witness could not be compelled to put it in. Witness continued— I made a declaration before Mr. Mathew Eankine, J.P., before the appoint monf

ine defendant s counsel objected to secondary evidence being given of the declaration, but His Honor overruled the objection. Witness proceeded, and looking at the declara tion, read the terms. |The appointments of the arbitrator and the appointment to proceed were read.] Attended on the 25th June, when the matter was gone on with. The view was arranged on the 6econd day, aad then adjourned for some few days. Went to view the land, and was attended by Mr. Richardson for the Board and by Mr. Noswortby. .After that the evidence was closed, and 1 was addressed by counsel on both sides. I made the award some month or six weeks afterwards, and instructed Messrs. Andrews and Bonnin to notify the Eame to the parties. Two letters, of September 7. 18&6, from Messrs. Andrews & Bonnin-one to the Secretary of the Road Boaril. and the other to Messrs. Lawrence, Knox, & Thrupp— were put in and read. They gave notice that the award of Mr. John Cheriton had been made, aud mfcht be obtained on pay ment of £31 10s. A letter, dated October, IStiti, from ilr. Way to Messrs. Lawrence, Knox, and Thrupp, was read; and also a demand of the 10th November, railing upon the Commissioners of the Central Ruad Board to take up the award. John 'Cheriton. after the adjournment, produced the minutes of the proceedings in the arbitration. Mr. Thrupp objected to tiie proceedines, but sub sequently waived the objection. He could sweat he had the documents on the second morning. There was no note d Mn Thrupp waiving his ob jections. He did not consider it necessary as they went on, and he should not hare done so without. The witness then stated the objections {to h&3 noted ta his miautw of ttw jfwmagi,

Henry White, clerk in the Land* . Tit'es Office, produced land grants of Sections No. 2120, dated 21st June, 1S53; and No. 2424. dated &9:h June, 1853; and register of mortgages of several sections,' including 2422, of which the mortgage was dis charged m September, 1867. Ifr. Stow objected to evidence being given of the deeds lodged in the Real Property Office on appli cation to bring the property under the Act 8ome discussion took place as to whether the deeds on which the Real Property certificate had been granted could be given in evidence, and His Honor held the proprietor (the plaintiff) objecting to the deeds being produced, the defendant's counsel were not entitled to have them, but might give secondary evidence. Mr. Way put in a notice to produce in the matter of the arbitration, and thai closed the plaintiff's case. Mr. Ineleby submitted the plaintiff must be called. The action was one in the form of a man damus, and he apprehended the Legislature had not altered the position of the parties from what it would hare been under the old form of mandamus, one of the conditions to which was that the party applying should show that every requisite pre liminary and necessary had been done by mm; The decisions under the Lands Clauses Consolida tion Act showed that the intention to take land, the appointment of the 'arbitrators, and the notice themselves formed the submission to the arbitra tors. If any of these were defective in any point, the whole fell to the ground; and in the present case it had been distinctly shown the parties were not at one.- The' defendants said they wanted a portion of 2421, and Mr. Nosworthy said he would treat with them for a portion of No. 2422; and further, he had claimed more than he was entitled to. The 63rd clause of the Road Act (No. 17 of 1852) enacted that 'in ail cases where an alteration in a road is made through lands previously fenced, such Iand3 shall be with a substantial fence fenced on both sides of the road before such road is opened for public use.' But where the land was not fenced, the proprietor was not entitled to com pensation for fencing. In reply to His Honor, Mr. Ingleby said that the term entitling the proprietor to compensation where his land was ''injuriously affected' in the 68th clause of the Lands Clauses Consolidation Act was not incorporated in the 51st clause of the Road Act referred to. He also sub mitted that where notice was to be given by a party c'aimine compensation that notice must be true— (North Staffordshire Railway Company v. Landon. J7 L.J., Exch. 350; Healey v. Thames Railway Company, 34, L J., Q. B., 52)— and in this case the plaintiff had pointed out by his own evidence that he had not given a correct account, and the arbi trator was wronjr in allowing the plaintiff to amend his claim. (See Beckett v. Midland Railway Com pany, 1 Law Reports, C. Pleas, 242.) The plaintiff had not proved that he was the owner of the land ; it was not proved the notice had been given, as the notice by the defendants was as to Section 242It and not as to 2422; it was not proved that the arbitrator proceeded to the arbitration, as appointments were not produced when the pro ceedings commenced; and that the authorities clearly showed that the attendance of officers of the Board was no waiver (Rinsland v. Lowndes, 33 L.J., C. Pleas, 337; Davis v. Price, 34 L.J..Q B., 8; Dunstan v. Horton, 13 L. Times, N.S.. 722; Fisher's Digest, ms, p. 6, Re Haig. 331 L.J., Chancery. 420, andSuttton Harbour Improvement Com.) Then there was no evidence of an award having been made. The arbitrator simply said he made his award; but whether it was of the matters in difference was not asked. The very foundation of the action was in the duty of taking up the award being cast upon the Board; and therefore they ought not to take up an award irregularly maile. and which would be worthless when they bad paid the £31 to obtain it His Honor said, in reply to Mr. Ingleby, that there appeared a strong probability that something might have been included in the award not within the scope of the reference, so that it could not be upheld, or might be referred back again to the arbitrator; but he was not inclined to interfere on the present proceeding. After some discussion, in the course of which Mr. Ingleby asked to add a plea, which His Honor, however, considered unnecessary, the plaintiff's counsel admitted certain mortgage-deed^ and a verdict was taken for £2 damages, with liberty to the defendants to move to set it aside. Bis Honor, in reply to Mr. Stow, said he would certify for costs. FASBAB AND ANOTHER V. WHITE. Resumed. Mr. Palmer and Mr. Way for the plaintiffs; Mr. Stow, Q.C., and Mr. Wigley for the defendant. The plaintiffs' counsel handed in the amended replication, to which Mi. Stow said the defendant only demurred. His Honor— In that case it seems absurd to go on with the case. Mr. Way— Except as to damages. Mr. Stow said he should ask for a verdict on the second issue, as the same evidence which proved a plea of libcram lenementum. was the proof on denial of the plaintiffs' property. Mr. Way then made an application to further amend by a general traverse, citing the case of Ewes y. Jones, 9 Q.B., 623-5, which His Honor allowed, so that issue was joined on the first, second, and third pleas, striking out the fourth. Mr. Stow complained that the defendant had no intimation ot what evidence the amended plea was to let in. His Honor suggested that a verdict should be entered for the plaintiff on the first issue, and the Jury discharged on the second, with a verdict on the third, subject to the demuner. In reply to Mr. Stow, he said he would reserve leave to the defen dant to move to enter the verdict on the second issue for him if the Court were of opinion the Jury ought not to have been discharged Upon it. He stated that his direction to the Jury would be to that effect, and he thought taking a verdict as he said would be the better way. Mr. Stow agreed to that course, provided the plaintiff* would accept nominal damages, which they refused to do, and so the case was proceeded Henry S. Ferbtache, clerk to the plaintiffs' attor ney, examined by Mr. Way, said he saw the plain tiff Mr. Abraham White and the defendant on September 11, aud served him with a subptenea, and told him it was rejativc to the cases of Farrar and Marks against himself. The defendant said, ' ' The land is. not mine. It does not belong to me. I know nothing about it.'1 Joseph Hawkeswell, recalled, said— Shortly before the action of White v. Hawkeswell Mr. James White refused to take the rent for the land in question, and said he must co to his solicitois. He then went to Abraham White and presented the money to him. He also said he had nothing to do with it. John liowe, of Kapnnda, said he recoil :ctcd attending the auction sale in question, and seeing Mr. O'Lochlin, farmer. Mr. Stow, having elicited that Mr. Abraham White was not present, objected to any evidence of what took place. His Honor held that the evidence was admis sible, on the ground that the parties were privies; but consented to take a note of the objection. Witness proceeded— Mr. O'Lochlin caine into the room after the property had been knocked down to him, according to arrangements made with witness before the sale that Mr. White would wait three days for the deposit Went to Mr. While's desk when O'Lochlin camo up, and White refused to fulfil the agreement with him, and said, ' Here, O'Lochlin, you purchase this property for me.'' The property was put up again after that, md knocked down to James O'Loclilin. Abraham White was called, and not appearing, Mr. Way applied that he should be called on his subpeena. Mr. Stow explained that under the impression that he would not be required Mr. Wigley had told Mr. White he need not attend; but on finding he was subpoenaed he immediately telegraphed to him to come immediately. Mr. Way 3aid it was sinmilar; but there were also two other witnesses-O'Lochlin and Duell— who had been subpoenaed and were not in at tendance. He proposed to have them called on their subpoenas. Mr. Stow stated that a telegram had been re ceived, stating that Mr. White was coming imme diately, but he would not be down tUl the last train. His Honor said under those circumstances he would adjourn the case. Mr. Way said they would prefer to go to the Jury on the case as it stood. Mr. Stow maintained that the plaintiffs had not proved their material allegations, and asked His Honor to direct the Jury that the evidence actually proved the defendant's second plea of freehold title. His Honor remarked that he might, after hearing the counsel direct the Jury; but then it would place the defendaut in the position of having to ask for a new trial, and he did not wish to compel him to do that. Mr. Stow and Mr. Palmer addressed the Jury on behalf of their respective clients. His Honor, in charging the Jury. t«ld them that with regard to the first plea there was no question, a3 it was admitted that the evidence showed the plaintiffr were in possession previous to the entry by the defendant, and that the defendant entered under circumstances which amounted to a title in the plaintiffs. The third plea was also out of the question, because there was a replication, which was demurred; and the only remaining question was under the second plea. Under that it was necessary, as it seemed to him. for the defen dant not merely to show that the property was not the property of the plaintiff; but also to show some right in hiir ^elf. On the one hand there were docurr^nU which on the face of them appeared to dhow a good legal title in the defendant The ividence to impeach them did not appear of itsel' sufficient, and they must remember the very great uncertainty that ne cessarily attached to admissions by a party made not in view of the case, possibly accompanied by something else— possibly forgotten or misrepre sented by the parties to whom they were ad dressed—and they must remember that in one case the evidence of admission was given by the cleric to the plaintiff's attorney, which, without imputing any desire on his part to colour the evidence, was still evidence from a quarter which should at least be carefully watched. If, # looking at the evidence of James White and Rowe and the admissions of the defendant, they came to the conclusion that he really had no interest in the matter, the second plea was not proved, because it was necessary for the defendant not merely to show that the plaintiff ha4 not the right, but also, in order to justify him self in disturbing him, that he (the defendant) had, and the defendant, it was stated, had admitted on two separate occasions to two different persons that he had no interest in the matter at alL If they had faith in the documentary evidence alone the plaintiff was entitled to the verdict on the first issue, the defendant on the second, because the defendant would then have shown not merely that the land was not the legal property of the plaintiff, but that that he himseii was the party entitled to enter. If they gave credence to the admissions made by Mr. White, and the statement made by the defendant that he had no interest in the matter, then upon that their verdict would be for the defendant. His Honor as to damages told the Jury that he consi dered it would be sufficient to give such damages as would show that legally the plaintiff was entitled to recover the property. Mr.StowtookexceptiontoHis Honor s ruling, on the ground, among others, that no statement by the defendant that he had nothing to do with the land could do away with the effect of the deeds. He understood the defendant was entitled to the verdict on the third issue. ' His Honor— WeiL I thought you were at first; but alter thinking it over, I think you will not lie. I shall be glad to be overruled on the point; but when a person says, ' I admit I have nothing to do with this land,' and if the.Jury give effect to'.that I see no help for it. The Jury, after a brief consultation, found a ver dict for the plaintiff on the first and second issues. Damages, £2S5. Tbe Foreman observed to His Honor that as the Jurymen had been put to considerable extra ex Dense through the adjournment of the case, he hoped some consideration would be shown them. Bis Hoqcx-Yqu will have, an interview with the

:-heritr to-morrow morning, and if you aw not satisfied I shall be happy to hear any application you may have to make. Air. Stow,- on behalf of the defendant, tendered a' bill of exceptions to Hia Honor's inling. Court adjourned shortly, aftex. 6 o'clock till, the following day. . Wednesday, September 25. [.Before His Honor the Chief Justice.] SMITH V BBWES. Mr. Ingleby stated that Mi. Justice Gwynne had said he should not be in Court that day, but he should be attending in Chambers on Thursday morning, when he would, be able to proceed with the case. ? His Honor intimated that the case would not be taken before Thursday morning; and that a mes senger should be dispatched to Mr. Justice Gwynne in the evening to inform him whether the case of Loessel v. Otto had been concluded. HABBI30S V. WILSOX. This case, in which an order had been made to Btayproceedings'until a commission was issued, was made a remanet till next sittings. - LOE3SKL V.- OTTO AND OTHEBS. Mr. Way and Mr. Bundey. for the plaintiff; Mr. Stoir, Q.C., for the defendants. The plaintiff, Dr. Carl Heinrich Loessel, by the declaration, sued 'Carr 'Otto, Carsten Lurhrs, A. H. W. Meyer, J. WeiL J. -W. A. SudhoJz, and Johann Peter Reramey, for that they appointed the -plaintiff to be pastor er minister of the Evangelical Lutheran Bethlehem congregations at Adelaide and Windsor, to enter upon and perform the duties of such office, set forth in the memo randum referred to; and the defendants agreed in consideration thereof to pay and secure to the. plaintiff a fixed revenue or yearly salary of rC13ft and also the emoluments aud benefit? usually re ceived in the Lutheran Church from the offertories or holiday collections given by the same congrega tions on the first day of each of the three festivals of the said Church, holden at Christmas, Easter, and Whitsuntide; and also the surplice-fees, with the altar gifts on the occasion of the Holy Commu nion; and also that when th6 members of the con gregation should increase, the defendants would provide a free dwelling-house for the plaintiff; that the plaintiff was willing to perform the said agree ment on his part, but the defendants on their part wholly refused and decliued to peiform their part, whereby the plaintiff was deprived of the said yearly revenue, emoluments, and other advan tages, as by the said agreement provided. A second count alleped that the defendants promised to retain and employ the plaintiff in the capacity of minister and pastor for one year, from the 15th of November, 1866, and to pay him therefor the sum of £130 per annum; and yet before the expiration of the said year they dis missed the plaintiff, whereby the plaintiff was deprived of the salary and profits he would have derived from being retained and employed in such caoacity. There was a third count for tres pass. The defendants, besides several pleas denying the allegations in the declaration, pleaded that the plaintiff habitually neglected to perform his duties as minister; that he excommu nicated certain members associated in com munion with the said Church, was cnirty of conduct unbecoming in a Christian minister, and otherwise misbehaving himself; and he also pleaded that he was not lawfully dismissed. Mr. Bundey opened the case to the Jury, after which The plaintiff, Carl Heinrich Loessel, stated that he was an ordained minister of the Evan gelical Lutheran Church and a Doctor of Philo sophy, and had held appointments in Berlin and other places in Prussia, having arrived in South Australia in lSb'2, and deposed (with the assistance of Mr. Weichard, as interpreter) as follows :— I re ceived a vocation from the congregation of the Evangelical Lutheran Church in Adelaide, near Light-square. [The document with a translation, of which the following is a copy, was put in :— 'Tn the name of the Father, the Shi, and the Holy Ghost, by virtue of the right of vocation vested m us with regard to the Eranjielical Lutheran congregation at Adelaide and Windsor, we appoint Dr. Carl Heinrich Loessel, formerly clergyman of the Lutheran Church at Hamilton, minister of our said congregation. Having ac cepted this office, he has to fulfil the following duties :— Firstly, according to the best of his ability, to edify our congregation with the Holy Scripture in accordance with the Lutheran Confes sion Scriptures, that is to say, the three Accumi nical Symbol?, the unchanged Confession of Augs burp, their Apology, the Schmalcaldic Articles, the Great and Small Cathecism, Lutheri and the Formula Concordue, by means of preaching the Word of God, and by faithful administration of the Holy Sacraments, according to the installation by our Lord and Saviour Jesus Christ Secondly, has he (Pastor LoesseH to make it his business in particular to look after the well-being of the souls, so far as the whole congregation is concerned, so as to attract the souls in a wider scope; he has to instruct the children and the congregation in the Word of God, and to prepare them for Confirma tion, to lecture to them on the Catechism, to convert the erring and ignorant, to punish the sinners, to console the distressed, and to do every thing in order to administer f .tithf ully the office of an evangelical pastor according to the apostolic rule, 2 Timothy, v. 4 and 5. By faithful fulfil ment of those duties we secure him 'Dr. Lnessel) with conscientious honesty the following rights, praying for the Lord's grace and assistance and blessing for him :— Firstly, is Pastor Dr. Loessel to receive as a fixed revenue a yearly salary of £150 (one hun dred and fifty pounds sterliog), which shall be paid to him I.y quarterly payments of £37 103. at the expiration of every quarter of a year punctually ; secondly, are to be collected for him from amongst the congregation of the Lutheran Church as emoluments, the usual offertories (holiday col lections) at the three high feasts— Christmas Easter, and Whitsuntide, on the firbt days of each of those feasts; and besides this, when he is acting officially according to usage the surplice-fees with the altar's gifc on the occasion of Holy Comruunion are to be given to him as well; thirdly, it is our intention as well that at an increase of our con gregation a free pastor's residenc .- is to be erected for our minister according to common usage in order that he may be put in the position to follow up with undivided attention his holy calling for the salvation and euifieation of souls, bein;; sure that Pastor Loessel will firmly adhere to this and our creed with prayer for the Lord's grace and salvation. Duly executed under our hands, the present members of tbe congregation, ami his Fiistor Dr. Loessel's own signatures.' Dated 15th November, 18-Jb. and signed by 17 members of the congregation. There was a general meeting of the congregation held on the 17th June, ISM. The minutes signed by Mr. Weil, the defendant, and endorsed on the former agreement, were, being translated, as follows:— 'The foregoing vocation at a general meeting of the Bethlehem congregation with their clergyman so far modified that the latter will have to hold divine service in the Bethlehem Church at Adelaide every second Sunday, his salary b/wg reduced to £130 per annum, and that this resolution is simply to be added to the vocation which is other wise to remain in force. Signed by the President of that meeting, held on the 17th June, 18(57, according to minutes. J. Weil, Adelaide, the 18th June, 1S«5.' There were present at that meeting ftir. Liihrs, Mr. Sudholz Mr. Weil, and, I think, some others. Continued to perform the duties of pastor of the Church. Kecol fect Sunday, the 30th June last, when 1 went to the church at the usual time of the morning. I kept the key of the church. When I got there I found the church locked up, and as Mr. Fooks was comingwith the key I went mtotheyard.and finding a certain placard on the door that any one wiw entered would be prosecuted, I went off. The door of the church was fastened with a new lock, so that I could not open it. I received the paper produced after June 24:— 'We the undersigned, Trustees of the Bethlehem Church, at Adelaide, herewith bring it to Pastor Dr. Loessel's memory that the time mentioned in the minutes of the 1st November, 1S66, and forwarded to you (with regard to the ecclesiastical relationship between you and the Bethlehem congregation at Adelaide) has expired on the 17th June of this year, and we do not require your further official services. Adelaide. June 21. 1S67. Carl Otto, C. Liihrs, A. II W. Meyer, J. Weil, J. W. Sudholz, J. Ken niey.' The defendants whose signatures are attached were then members of the congregation, and were so when I received the vocation. The emoluments mentioned amounted to about £60 a year besides salary, Mr. Stow subjected the plaintiff to a rigid crosa examination, in which he elicited that before re ceiving the letter be was aware of a rumour that the Church had dismissed him, but there was nothing definite; and that he had refused a docu ment tendered him by a Mr. Fooks on the ground tliat there had been no properly called meeting. The plaintiff denied having made certain state ments put to him in terms by the defendant's counsel with a view of enabljng witnesses on the defendant's behalf to be examined upon them. By Mr. Way— Was aware of the causes for which engagements in the Evangelical Lutheran Church might be terminated. They were public immo rality, immoral writing, or heresy, but no others. If a charge was brought against a pastor it was necessary to call a meeting of the Church and enquire into the matter, and that notice should be given to the pastor of such meeting aud its pur pose. He had received no notice. By Mr. Stow— The authority was the Bib'e-Si. John viL, y. 51; Matt xviii., v. 15 and following; Exodus xxiii. He also produced a book of dogmas of the Lutheran Church, and a translation was read from Gerhard, whose works the plaintiff knew to be looked to as an authority in such matters. His Honor— The substance of that is that the causes wou'd be heresy or public scandal, proved to the satisfaction of the Church, at a meeting properly called and duly conducted. Mr. Stow (ta the plaintiff)— You have not been dismissed under these circumstances? The plaintiff-No. Adelberg Fiedler, Lutheran pastor, confirmed the statement of tbe plaintiff as to the rule for the dismissal of German pastors. By Mr. Stow— Would consider himself still the minister of the Church if a meeting had not been called. Air. Way said that was the plaintiff's case. Mr. Stow submitted the plaintiff must be called. The action was brought for wrongful dismissal, but according to the plaintiff's evidence he had not been dunissed, the letter merely intimating to him that his official services were not further re quired. As to the trespass, there was no evidence to connect the closing of the church with the de fendants. He further submitted that in order to bind the congregation it was necessary to show that a meeting was properly called, which had not been done. His Honor— I .hink a person may sue if in fact there is a wrongful dismissal, and show that there was no authority to do what had been done. Alter hearing Mr. Way, he said he thought there was evidence to go to the Jury on the dismUsal. Mr. Stow then applied for the plaintiff to be re quired to elect which agreement he went upon— whether he went upon the original or the substi tuted one. His Honor— I should ask them to do so before going to the Jury, but I don't see that you would be embarrassed 'in the meantime. It would only affect costs. Mr. Stow— I apprehend the engagement termi nated at the end of the j ear. His Honor— 1 take it to be an appointment during good behaviour. Mr. Stow must then go upon the pleadings as they were, but they should have alleged that the defendants remained members of the congre gation. Surely it could not be said that they were bound for ever. His Honor— What I understand is, that the plaintiff would be pastor of the congregation meeting in that church. Mr. Way maintained that the plaintiff was entitled to both accounts, and that there was evi dence on each. Mr. Stow— I must put it in this way— that this i3 a question after all as between master and servant, and that the term is fixed by the salary, and where there ia a yearly, salary there ia a yearly service. His HonoiwNo : I should dissent from that dis

Linctly. I don t regard it as between, master and servant. It is an appointment to an office, the tenure 6t which depends upon the facts shown in the evidence, and is not necessarily measured by the character of the salary. .ilr_StQW--J!hen the.nist count is not proved. It is alleged here that they appointed the plaintiff and agreed to pay him, and it could not be that they agreed to pay him this for themselves or for others, except as long as they are members of the congregation, Therefore the first count cannot be proved, and the second count goes upon the agree ment of the service, and also the contract of the service— that is the usual relationship between master and servant. That, I understand, according to your Honor's view, is not the position the parties occupied. His Honor— They are net bound to continue members of the congregation, but they are bound to pay him as long as they - are so. But I should noc stop the case, and I think it would be well that the first count should be amended in that way. Mr.' Way observed that they incorporated tha document?, which stated . that the plaintiff was appointed pastor and entered upon the per formance of his duties at a yearly salary, and stating what he was entitled to. His Honor— You put it that the defendants agreed, in consideration of his performing those duties, to pay him. a yearly salary of £138. Mr. Way-Yes. Mr. Stow— No they did not. That is treating this as an office, and it is not an office. The books which have been referred to are in relation to offices in the Lutheran Church, which is con nected with the State something in the same way as the Church of England. But there is no office here. You can only be appointed to an office byseaL His Honor— 1 shall let it be, and you will have an opportunity to move on that. Mr. Stow said he had been raising that question as to the measure of damages. His Honor— It is put by the plaintiff as an agreement to pay a certain sum as long as he behaves himself. I should reserve leave to you to move, but that is how I should treat it. Mr. Stow— Then, if thi3 is an appointment by which they have to employ the plaintiff as long as he behaves himself, it must imply a corresponding engagement on his pait to behave himself and serve them during his life. Mr. Way— Unquestionably, so long as they ful filled their part of the agreement. His Honor— I presume it would be that he was bound to remain with them, and to refrain from preaching heresy or causing scandal. Mr. Stow then addressed the Jury, and after referring to the ruling of His Honor, put the case to them on the basis of an agreement between master and servant, contending that if there nras an appointment to a legal office, and which would be therefore an incorporeal hereditament, a person did not lose his office by a simple notice that his services were no longer required. Mr. Fiedler had stated that, recording to the dogmas of the Lutheran Church, i pastor could not be dismissed without a meeting of the congregation, of which he had notice. Bui still the plaintiff came and sued for a wrongful Jismifsal, and at the same time said he was still entitled to fulfil the functions of the pastor and administer the rites of the Church. And if he :ame before them on the principles of master and servant, he should submit that the service com menced on the 18th June, and he should show that be was not retained upon that ground— that the terra of service had expired. The learned counsel, in describing the evidence he proposed to adduce, said it was not alleged that Dr. Loessel had led an immoral life; it wasnotsuggestedforamoment that lie was anything but a pious and moral man ; and although it had been alleged he had preached false loctnne, no evideuce would be offered upon that; but he should call witnesses who were experts in the religious laws of the Church to show that there were other though miner grounds to those stated For which a pastor might be lawfully dismissed. Ide then enumerated the various matters which nrere charged against the plaintiff, as forming a justification for his dismissal, and called Ulrich Hiibhe, who said he was Doctor of C. nl and Ecclesiastical Law in Germany. By the Cr-, raon Law of the Lutheran Church there were certain grave charges for which a minister might be de graded or removed altogether; and there were also minor offences for which he could be removed and placed in an inferior position, or bo afterwards reinstated. .Removals were made by ths Consistory. His Honor— If the Jury thought tha conduct of the minister such as to render it impossible that the congregation should derive any spiritual im provement from his preaching by reason of his manner or his conduct generally, that would be a Hound. It seems to me to be implied in the agree ment that there must be a reasonable performance. No rule of the sort referred to can be laid down ibsolutelv. Julius Weil, examined by Mr. Stow, said he was i trustee in the Church in question, and was pre sent both at the first meeting respecting Dr. Loessel and at the meeting when the alteration iras made allowing him liberty to preach at Lobethal and Woodside. That was allowed him instead oi the house-rent promised in the agree ment. The first year every one seemed middling satisfied with the pastor, but after that dissatisfac tion begun. He complained that he had not enough salary, and he made that known by preaching in various abusive ways. He said on ane occasion the people-could build large houses ind so on, but the minister had to eat dry bread. Iliat caused some t- leave. In December, ISO, Pastor Dr. Loessel made a proposal himself for the pastor to be permanent Chairman and I'rustee, bat they refused, and he got very excited, md brought them to silence by his excited con luct. Kemembered the meeting to appoint a Irustec when the dismissal of the pastor was deter mined upon. After that Dr. Loessel preached a sermon. It was about the Pharisees holding a secret Council, so as to catch Jesus Christ in His words ; and he compared their meeting which had been held ac Fooks's to that, but said, like the nther, it came to nothing. Kemembered Mr. llintze leaving the Church. Spoke to the pastor iibout visiting members, and at the same time ibout the conduct of a Christian. The next day he preached a sermon about straining at gnats and swallowing camels, aud that a little dancing drove them away. (Laughter.) His Honor— He seems to have had a knack of selecting matters that were particularly applicable. Mr. Stow having proceeded a little further with the examination stated that it would be impossible to carry the justification. Hu Honor remarked that it was an unhappy :aso, and suggested that some amount should be agreed to. Mr. Stow said the question was as to the time for which the defendants were liable, and called Franz Fooks, who said he remembered the meeting of the congregation at his house in November. Offered Dr. Loessel the minute-book a Fortnight afterwards, ?telling him at the same time that there was a meeting held, and that the con gregation said at the end of a twelvemonth they would not have him any more. Dr. Loessel said he was not invited to the meeting, and refused to take the minute-book. By Mr. Way— There was something appearing in the German newspaper. He knew nothing about it. Pastor Loessel never received any minutes until he had been locked out of the church. Did not go to protest against the meeting being held. He had a protest, but never used it. [Documents were put in signed by the witness, complaining that at the meeting there were only eight members present.J He was instructed by a couple of the members to inform Dr. Lpessel what had been done, but there was nothing on the mandates. The meeting was to appoint a new Trustee, in place of Mr. Kubenkonig, Air. Kuoenkonig had not resigned. Did not know who put the new locks on the church. Heard the Trustees (Mr. W eil and others) were going to put a fresh key on. The minutfis were translated by Mr. Weichard, stating that the meeting decided to ask Pastor Loessel 'to beg for his dismissal.' On a suggestion being made for a verdict to be entered, subject to the points reserved, Mr. Stow said he was willing to consent to a verdict for £70, but wished to have the question cleared up aa to whether the year ended on the 17th of June or in November. Mr. Way contended that even taking it as the defendants put it, the plaintiff' would be entitled to nominal damages. The plaintiff' being referred to, stated that the last Sunday he preached was June 16, and on going that day fortnight, which was his usual time, he found the doors locked, aud when he returned home the same day found the notice. A verdict was entered by consent for £70, with leave to move to enter the verdict for the defendants or reduce the amount to nominal damages. THE JUHT. His Honor said the gentlemen of the Jury who were not in Smith v. Bewes would not be further required, and he thanked them on behalf of the country for the manner in which they had per formed their duty. He also, on his own behalf, expressed his satisfaction with the patient attention they had bestowed 'on the various cases brought before them. The Court adjourned till Thursday morning at 10 o'clock, when the Jury and others engaged in Smith v. Bewes are required to be in atteudance.