MAGISTERIAL.

Ashburton Guardian, Volume V, Issue 1434, 17 December 1886, Page 3

MAGISTERIAL.

ASHBURTON—TUESDAY. (Before Me H, C. S. Baddeley, R.M ) omi GASES. Tucker and Restelt v. R Johnston, claim £3 18s 6d —Judgment for plaint If by default for the amount ci timed and coats

Lublwow v. Joycs, Oulhbertaoa, Instructed by Mr OayglU, spoiled for sn adjournment Tee plaintiff objected. Ul'imately ir, was agreed that the case shou d be adjourned on condition that the defendant should guarantee the plaintiff's expense-, Wddiog, Leals and Caygill v. Magee, claim £23 6a 3d —Mr Stringer for plaintiffs, Mr Crisp, for Mr PurneT, for the defendant on a previous Court day, and in which the Magistrate bad reserved his decision, judgment was now given as follows : Th s is action for money pzdd by plaintiffs on defendant’s account to sheriff’s officer nr d also for interest The learned counsel for the defendant applied for a nonsuit on the ground that this being a dis bursement within the Law Practitioners Act and no signed bill having been served on the defendant by plaint ff , one month before the action was brought, no action could, be maintain* d It was contended in reply that this was no disbursement within the Act, and the cases Warded v Nicholson (4 B. and Ad.) and in re Haig (19 LJ. Chan 70) were cited, but I wi 1 say with regard t > these esses that neither of them are in point, nevertheless, I bold, as I did at the heating, this contention a gond one In Morgan and Warttz nrg, oil Law of Costs, 427, it is la<d down that those payments only which art made in puisuanca of the professional duty undertaken by tho solic tor, and which he Is bound to perform, or which are sanctioned aup'of .ts nalpsymet t» by the general 'and established custom and practice of the profession, ought to be entered and allowed as professional disbursements In the Bill of 0 ists ; other disbursement ought to be it eluded in a separate cash account. This is cot one action by a solicitor to recover » compensation for hi* labor and skill, and the case Prothero v Thomas (Banut- 195) clearly shows me. after comparing the English Act with our own, that such a payment as this one is not a disbursement within the Act. I he nonsuit U therefore refused —The proa* question In this matter is hadithe pi dr,tiff authority to m«ke the payment they did on defendant's behalf, and I am constrained to remark that this is a most unsatisfactory case for t ! etc is very l ife to help me to a cono'uuon. A document that could have settled the malter is bv great misfortune not fo thoomlnsr, and one too which should h*ve been taken the greatest care ,-f, for i' is the one said to be the authority to tbs plaintiffs to m»ks the disbursement they did. Of course thplaintiffs must fully establish their case end the only one < f plaintiff s who knows anything about the matter is not certdn on tnsny points and on one mrst important one beonly swears to the best of his recollection tf* that Parker brought back the order to pay.coats signed ; of this he is only morally certain, so of <onne ! e cannot be sure that the order was not endorsed as the defendant swears it was Moreover an independent witness wrs called by defendant who swe-rs that Parker had called ore of the plaintiffs a “ softv ” for paying these costs without an order Parker’sjevldence is very uncertain and I Cannot put much weight on it. For instance, in two plac-s he s%ys : “ I don’t remember an order for costs ” and, in a third, he says : “ Magee d’d not refuse the order for c ats end write srinetbicg across tho back of it.” If he does not remember the order how can he possibly ■ay that Magee wrote nothing acrots it, I do not thick on the whole that he has a very clear recollection of what took place and it seems on the other hand that the defendant objacted strongly from the beginning to pay these costs, and with very good reason t-o, rs be was acting under advice. It certainly dees seem at rang- that if Parker expected his costs from either defendant or his solicitors that be should have withdrawn from per session till paid his costs. These matters had taken a long time in sit dement—indeed, are not settled yet it would seem—but it has not bean shown that defendant was responsible for that and even if it had the authority to pay must be clearlv Shown. Mr Caygil! laid ao great stress I think, on the conversation he bad with defendant in the street. I thirk it Is plain he and the defendant Were not at lading to the same monies. Defendant ■wore and it h s not been cont -adicted tha* he repudiated his liability when at the plaintiffs 1 office and as there has not been shown any authority moving from the defendant to the plaintiffs to expend the Bom sued for. on his behalf, a nonsuit must be recorded with costs

ALLEGED BREACH OE GAMING AND LOTTERIES ACT, George Stevens, and W. Q Searleg, were, on remand, charged under the 18th section of the Gaming and Lotteries Act with having, at the Ashburton Bacecruree on Thursday, December 9, sold tickets by which permission was given to have »n interest in a scheme whereby money was to be gained ; further that they did assist in conducting a scheme by which money was to be gained ; and further, that they were partners in a scheme whereby money was to be gained - Sergeant Felton prosecuted and Mr Stringer appeared for the accused, who pleaded not guilty.—Sergeant Felton exp ained that, practically, there was only one charge, though It had been laid in three different ways, in order that a technical objection to any one of them might not endanger the charge falling t<> the ground •»—The following evidence was taken ; Constable S mart said that in cons-quence of complaints be had whi-tch- d tha defendant on December 9. one of the Ashburton Race days. He saw four men and a boy purchase tickets at 2s 6d each on the Welter Handicap from the defendants. Tn const quence of instructions he Received he arrested the men. Stevens called ont asking if any one wanted to bapk a horse ; he took the money and pntpred it }n a book and Series issued the tickets. Both the defendants said the game was a fair one, and when brought to the Stewards* room they said it was perfectly legal (the constanle identified a gnantity of paraphernalia which was in the possession of the accused when arrested). The accused, when arrested, asked if anyor e who had had shares in the venture would come forward and give evidence for them, and several persons signified their willingness to testify to the affair being straightforward.—By Mr Stringer: The investors fi ora whom witness got the tickets told him that they paid2s6desch for them. They did n t say that it was a sweep of the ordinary BO’t, Witness did not find a* y of the winners. The defendants were not in witness’s presence charged a fee for p’aylb‘g the game.— Sergeant Felton said hp would admit that the defendants had purchased permission from the holder of the right of sports to play the game— Sergeant Felton corroborated the evidence of the oocaUblr; He said the defendants, when arrested, said that they were only holding a sweepstake. Witness said that he would charge them with working a scheme similar to the tottlisator. In response to the solicitation of the accused several persons come forward and stated that they had received payment of a 6t 61 dividend on the fitsi raco. The page of the book In which the invertors were entered was hesded “Weber race,” and at the to ! tcm was marked “2s 6d sweep.” There was no record in the book of the first race on which 6i 6J bid' been paid, though there wipa signs

of a l-»f having been torn out (the witness asked if he would be allowed <o exolnin how a swindle could be worked

j with the scheme ) Mr Str nret would <>b* | jeer to such evidence as being at>v ously unfair to the defendants, unless the Barge mt bad seen the swindle worked by them i*Af'er some furslnr argumau", the Magistrate said he did not think It W'>uld e prejudicial o lha c se for t e witness to explain how a s>vind'e might bo wo k d with iha apparatu:—Mr Stringer said ‘* a lit'le knowledge was a dangerous thing ” and besides the evidence might have a corrupting effect upon tin heare-s (laugnttr)-Served Feiton agreed with Mr Stringer Whether the scheme was oirried out fairly or unfairly by the defendant did not alter its illegality. If he had had evidence of there being a swindle the case would have b‘-en b ought under a diifeieut Act—Mr ntcingor explained thst the leaf hid been torn out of the book because it was m-t further needed, and if retaine < it weld be only in t-.e way—Ultimately the Magistrate decided to taka the evidence of Sergent Felton as to how a swindle could bo worked. (Lett sitting.)