SUPREME COURT.

Globe, Volume VIII, Issue 965, 30 July 1877, Page 2

SUPREME COURT.

SITTINGS AT NISI PRIUS. Monday, July 30. (Bfore his Honor Mr Justice Williams and a Special Jury.) The Court resumed at 10 a.m. CAMPBELL Y. MCCONNELL. In this case Donald Campbell, of Christchurch, medical practitioner, is plaintiff, and James McConnell and William Todd, as executors of the estate of Robert Mackay, who died on the 16th August, 1876, are defendants. The facts of the case as set out in affidavits, are as follows : The testator, Robert Mackay, came down to Christchurch and was attended by Dr. Campbell. After about a fortnight he died. The day prior to las death, accordii.g to the testimony of the plaintiff, the deceased handed him a deposit receipt for £SOO and a promissory note for £SO, which he said was for Dr. Campbell as a present. He also gave Dr. Campbell a cheque for the same amount, asking him to pay in the deposit receipt and bills of exchange to the Bank for collection, and this cheque into his own Bank. The deceased died on the next day, ond on the Monday the plaintiff presented the cheque at the Bank, but was refused payment on account of the signature being unlike. He then took the documents to Messrs Joynt [and O’Neill. Subsequently the executors stopped the payment of the deposit receipt to the plaintiff. Hence the action to recover the sum of £550 and interest.

Mr Duncan, with him Mr George Harper, for the plaintiff. Mr Joynt, with him Mr H. H. Loughnan, for defendant. Mr Maling was chosen foreman of the Special Jury. Professor Bickerton was fined £5 for nonattendance as a juryman. Mr Duncan having opened the case for plaintiff, put in the will and codicil of deceased. Mr Harper then called the following evidence. Donald Campbell—l am plaintiff in this action, and a duly qualified medical practitioner. I knew Robert Maekay, of Lincoln. I was in attendance on him for three years and a half before he died. He died on Sunday morning, the 6th of August, 1876. I had seen him last before his death after 11 p.ui. on the previous Saturday. I had also seen him about seven o’clock on the same night. He was then living in Gloucester street west with Miss Patrick. She takes in invalids, and has done so for some time. I saw the deceased at 3 p.m. on Saturday in consultation with Dr. Bell Hay. I saw him also between 12 and 1 noon on that day. A deposit note for £SOO on the Bank of New Zealand was given to me by Robert Maekay that day. I made an appointment with the deceased. Mr Joynt objected at this stage to the witness detailing conversations held with the deceased. His Honor took a note of the objection. Mr Joynt said he did not wish to argue the point now, but it w r ould have to be done. Witness —I made a promised visit to deceased at noon in consequence of an appointment I was asked by Maekay to make with Mr O’Neill. The appointment was for eleven, but Mr O’Neill did not come and I went away, promising to call again. When I did come he told me Mr O’Neill had been and that he had settled everything he had to do in the world except something ho was going to give me for my attention to him. Those were his very words. Upon that he took a purse out from below the clothes and gave me the deposit receipt. [Deposit receipt tor £SOO on Bank of New Zealand put it.] The deposit receipt produced is the one given to me by Maekay. Deceased also gave me the bill I hold in my hand. Both the bill and deposit receipt were given to me out of the purse. Deceased told me 1 was to realise them for my own benefit or words or that effect. His very words were that I was to put them to my credit at' the bank, and that the executors would see it all right. He said unless he endorsed them they would be of no use either to me or to the executors. He then told me that he would give me a cheque for the amount so that the executors would see what ho meant, He told me where his cheque hook - was, and I asked the landlady, Mis* I’atrk'k, ty come iu to find it. Tim cheque bcelj was in deceased V; coat •pocket

behind the door. I handed it to him and lie asked me there to fill in a cheque out of the book and he would sign it. He counted the interest of the deposit receipt. He made it up on the back ot the deposit receipt, saying that there was £5 12s fid interest due on the £SOO, and he added that to the cheque. I then filled in the cheque, as I was accustomed to do when he paid me his accounts previously, and did not include the £5 interest. This was a clerical mistake, and I did not see it till afterwards. 1 filled up the cheque for £550. Mr Joynt objected to this evidence unless the cheque was produced. His Honor upheld the objection. Mr Harper then put in the cheque. Witness —That is the cheque. It is for £550 12s fid. As I had left the £5 out, I drew the attention of deceased to the omission, and he wished me to fill in a fresh one. I refused to fill in another one, as I did not think in was necessary to make out a fresh one, as I wanted deceased to communicate with Mr O’Neill on the subject of the deposit, receipt, and cheque that afternoon. I told deceased this, but he said that Monday would be soon enough to call Mr O’Neill in, so 1 thought no more about the matter. I did not see Mr O’Neill there that day. At the beginning deceased said that he did not want Mr O’Neill to see the deposit, receipt, or cheque. This was his introduction of the subject to me. He said that he wanted to give me something which he did not want Mr O’Neill to see or want to be put into the will, or words to that effect. This was when I first went in about twelve o’clock. As near as I can remember I have told you all the conversations which passed' in this matter,, They occupied about ten minutes. I sawdeceased three times after this. Late in the evening—at my last visit —Miss Patrick was sitting beside him. He was sitting up in bed, and we talked about different things. Deceased seemed better than he was in the afternoon. I then asked him before Miss Patrick whether he was perfectly sure that he did right in giving me what he did that day—or words to that effect. I then took out from my pocket the bill, the cheque, and the deposit receipt in making that remark. He then said he was perfectly satisfied; he had left his mother provided for, and that his sisters—l think it was his sisters, but am not sure—would get it after she was dead, and in the meantime they would appreciate it after they got it, if they worked as hard as he had done. The words I used first was whether he was sure he w r as not depriving any one who had a better right to it than I had myself by giving me what he had done. All this took place in the presence of Miss Patrick. I was not present at the death of deceased. On Monday morning after the Sunday, the 7th July, I went to the Bank of New Zealand, and asked if it would be all right if I placed the cheque to my credit at my own Bank. I afterwards paid in the cheque which was returned with the endorsement “signature unlike.” I then presented the deposit receipt to Mr Holloway, the accountant. I went to Mr Joynt’s office direct from the Bank, as I thought they would advise me what to do with them. I saw Mr O’Neill, and consulted him about them. We turned up several authors, or whatever they call their law books, and the result was that Mr O’Neill said that he wished Mr Joynt to-see the documents. Mr O’Neill put the three documents, the bill of exchange, the [deposit receipt, and the cheque into an envelope. I called three or four times after this, but Mr Joynt was never in. I knew that Joynt and O’Neill were acting for the executors. I got the cheque back, but not the deposit receipt, and bill of exchange. I instructed my solicitor to proceed in the matter for the recovery of the deposit receipt and bill of exchange. I applied at Messrs Joynt and O’Neills office for the documents. I. saw Mr Joynt at last. Previous to this I had a note from the firm saying that they had kept the deposit receipt and bill of exchange, and sending the cheque back. They declined to give up either the deposit receipt or bill of exchange. I knew Mackay for three years and a half prior to his death. He was not a married man, nor had he any relations in this country.

Cross-examined by Mr Joynt—The last illness of Maekay continued from the 17th July to his death. I attended him during the whole of that time. His illness first assumed a dangerous aspect on the Wednesday prior to his death. He died from rheumatic disease of the heart —rheumatic pericarditis. Deceased had a bad heart. [Mr Joynt —I should think he had a good one.] On the Wednesday I told him that he wanted the minister and the lawyer if he had anything to settle in this world or the next. 1 did not come to the conclusion on the Wednesday that deceased must really die—he was in great danger. I did not at any period of the illness make up my mind that he would not survive. I did not communicate to deceased that his illness was necessarily fatal. 1 acted on the principle that I could not tell him that it was necessarily fatal. I could not do so, because twelve months before, when another consultant and myself pronounced his disease fatal, he recovered. It was the same illness of which he died. Ido not remember what I said to Maekay. 1 gave him to understand that his state was a dangerous one. I believe I led him to understand that in case he should die he should arrange his affairs. I mean, as a precaution in case he should die, I thought it was wise he should settle Ins affairs. Deceased said, after I told him he was hi danger, “ Cooked, doctor, this time.” He had escaped so often before. On a former occasion, we gave deceased to understand that he was very seriously ill and likely to die. Rheumatic fever was the cause of the disease of the heart. I believe he had a slight attack before I attended him at first. Rheumatism and exposure were the cause. He told me he did not take cure of himself at his house, as he was a bachelor. 1 heard lie was not a sober, steady man, but 1 do not know. 1 never saw him drunk. I do not think that if I attended a man professionally I could recognise whether he was a sober or dissipated man. Habitual intemperance leaves signs, but I did not sec them in him. This disease was so prominent that all things else were set aside. Alcoholic stimulants in some cases are prescribed for the disease. I sometimes give it and sometimes hold it back. 1 gave lum brandy and milk ; I also gave him squills for a diuretic, digitalis for a sedative, and paregoric for his cough, as he had inllammation of the lungs. I gave liim from about five or ten drops of digitalis, I will send for the original prescriptions if you wish it. I think the amount of digitalis I have slatci was what I gave. When Maekay propose to give me the present I did not reply i grateful terms; x said 1 would rather ho set i'or Mr O’NcjU. said,Mo, wait till MJ-

day—Monday will be soon enough.” I told him that he did not know what would happen between Saturday and Monday. He did not say that he would send for Mr O’Neill on Monday, but wished it postponed. Mr O’Neill gave me his address in order that of any change for the worse he might be sent for. I know where Messrs. Joynt and O’Neill’s offices are. It woidd not take more than five minutes to walk up there. The first time I went to Joynt and O’Neill’s office about these gifts was on Monday morning after Mackay’s death. Mackay told me to put the deposit receipt and bill into the Bank of New Zealand, place the cheque to my own |credit in my own Bank. I understood I was to put the deposit receipt and bill in for collection and lodge the cheque to my own credit. That was what I understood. I was to get the money on the cheque. Mackay gave me the promissory note and deposit receipt as security for the cheque. Those were his own words. Deceased picked up on the Friday and Saturday, and I thought my ideas as to his demise were unfounded. Deceased was low on the Wednesday. I had not the slightest idea that X should get a present from deceased until I entered the room on the Saturday. It was a pleasant shock. Sometimes medical men get a windfall like this. Deceased was a liberal man from my experience, and fond of giving. I do not know that he was profuse in his giving away money. lie had never given me £SOO before, but gave me a gold pencil case after paying an account of some £OO. It was gold and not the other thing, and lie brought me a selection to take my choice, and he put his initials on it. I understood that this £550 was compensation for my professional services. I understood it so and do so still. I made a claim for my professional services on the executors after the death of deceased. The claim produced, £22 Is, is the same. The firm of Thomas Wallace and Co., druggists, is my property. The account of £2 Is produced is charged by Wallace and Co. These charges were made by my medical-chemical establishment against deceased. I did not go to either Mr O’Neill or yourself, to tell what Mr Mackay had done, because I am of opinion that had Mackay survived I should have been bound in honor to return him his cheque, as I looked upon it as a deathbed gift. I did not look upon the money as mine until he died. It is my impression that I should never have used the money until he died. I am aware that the Banks close at twelve o’clock on Saturday. From Wednesday deceased was not quite coherent in his mind. He suffered from the ordinary delirium consequent upon his low debility, caused by the congestion of the lungs and the disease of the heart. When the heart got quieter he was calm and in full possession of all his faculties. As a rule during the day he was calmer than at night. On Friday and Saturday he was very collected, more so than on other days. The delirium was caused to a great extent by defective circulation. As a matter of fact the disease of the heart was getting aggaravated year by year, but I think the disease got better during the last days of his illness. All the symptoms pointed to this. He was not delirous in my presence on the Saturday—not once. I think he was on the morning of Friday—but I cannot say. He was very bad on Wednesday and Thursday. On Friday and Saturday he was getting rid of the acute symptoms. I was only a little surprised to hear of his death on Sunday. I think it was about nine o’clock on Sunday morning when Miss Patrick sent up. Deceased was not particularly irritable on the Friday. His brain symptoms got better on the Friday and Saturday. All through my attendance I have thought it necessary to exclude his friends from him. I did so for the week of his last illness because they always excited him. I only knew two —Mr Thomas Russell and Miss Russell. They did a great deal of harm to Ms disease, and the result of their conversation would be to excite him. I do not think I excluded anyone else. I was not consulted about anyone else. My general instruction to Miss Patrick was not to admit any one. Professionally 1 do not remember refusing to allow any other of his female acquaintances to see deceased. 1 remember a woman waiting outside the house on the Friday and asking me to allow her to see him. I believe she said that she came from a long distance. I do not know whether she said she came from Orari. I do not jemember saying that if she came from America she could not see him, but I might have done so. The reason I declined to admit her was that I considered it part of my treatment as a professional man that nobody should see him. I think under the circumstances that I was doing right by keeping the man secluded from his friends, and letting him die without seeing them. [Mr Joynt —“ Perhaps it was prudent under all the circumstances.”] I remember Russell coming on the Saturday, I think, and j euj refusing to allow him to see Mackay. I \ remember also some few minutes afterwards j allowing Mr Russell to come in. This was j because Mr Russell said he would not speak | to Mackay, and that I could stand at the door and see that he did not disturb him. I swear that Russell did not say to me, “Dr. Campbell, if you don’t allow me to see Mackay I’ll go and fetch another medical man at my own expense.” I cannot help Russell swearing he did so. I do not remember that Russell had a cab at the house. Ido not remember that Russell was going away to get into the cab after saying that he would go for another medical man when I told him he might see Mackay for a few minutes. The figures on the back of the deposit receipt, as regards the amount of interest, look very much like mine. It was I who made up the interest on the back of the deposit receipt from the calculation made by deceased. Deceased calculated the interest with my help, and I wrote it down on the back of the deposit receipt. He signed all three documents at one time. He endorsed the deposit receipt first, the promissory note second, and _ the cheque third. They were signed within a few minutes of each other. There was no need to hold his hand. They were signed of his own free will, and fluently well, not fiuently, as you can easily see. At the time he made these gifts to me I was aware that he had a widowed mother, but was not aware at that time that lie had left the bulk of his property to her. .1 did not know till the evening (hat lie had done so. I asked him the question as to whether he was sure he was not neglecting others who had a better right to the money than I had. Deceased led me to believe I could not get the money without the cheque. It was given to me as a guarantee of good faith to his executors, and that I might get the proceeds from the executors. I took the papers purely with the idea that if deceased died they were mine, and if he lived that I should return them. Deceased said that if he should die (the executors would put me all right with regard to the papers. I do not jremember at what rate tlje intent was cal-

ciliated —it amounted to £5 12s fid, I know that. I went to Messrs Joynt and O’Neill on the Monday to lay the whole thing before you on a point of honour. I thought they were the proper persons to advise me on a point of honour, but I found out my mistake. [Mr Joynt—l hope you will always find your mistake in a similar case.] I first sued on the cheque but afterwards abandoned it. Ido not know whether it was after you obtained leave to plead. I know nothing about it; Mr Duncan can tell you. The Bank refused to cash the cheque on the ground of the signature being I do not believe that was the reason.

Re-examined by Mr Harper —Mr O’Neill had been on the Saturday when I went to Mackay’s house. Mr Mackay told me had. I knew that deceased had made a codicil to to his will. Russell was formerly the landlord of the White Swan Hotel. He was no relation of Mackay. Mr Russell tried to get in to see deceased as did also Miss Russell. She is no blood relation of Mackay. Rebecca Patrick —I reside in Gloucester street, Christchurch. I have two gentlemen boarders who have private rooms, and one invalid nearly always a patient of Dr. Campbell. Robert Mackay came to my place about two years ago. He was there in July and August, 1876, as an invalid and patient of Dr. Campbell’s. He came in July, 1875, and remained till December, 1875. He returned about the middle of July, 1876, and went home for a few days after he had been back a week. He stayed about three weeks after his return till his death, which took place on the 6th August. Dr. Campbell was at the house on the Saturday prior to Mackay’s death. Dr. Campbell was a friend of Mackay’s, and was a constant visitor. Mr O’Neill was at my house on the Friday and Saturday. It was about twelve o’clock on the Saturday when he came. I was not in the room when Mr O’Neill was there. I saw Dr. Campbell there at eleven o’clock en that day, and between twelve and one. I saw him again at three with Dr. Bell Hay, again about seven in the evening, and about eleven o’clock at night. He stayed till nearly twelve, I saw Dr. Campbell in the presence of Mackay every time be called. I was called into the room about some papers between twelve and one on the Saturday. I think Dr. Campbell called me. Mr Mackay asked me for his waistcoat to find some He was sitting up in bed making a table with the bedclothes to write on. He then asked me for a pen and ink. I said, “ You can’t write there,” and he said, “ Oh, yes I can, just the name.” I went away then. I did not sec the papers at this time, but Mackay said they were all right. I was in the room at seven o’clock in the evening when Dr. Campbell came. I only remember a little friendly conversation taking place between them, and the doctor saying, “ If I should not see you again.” Mackay said, “ Oh, doctor, come up again presently.” Dr. Campbell came again about eleven in the evening. They both said I might stay. Dr. Campbell said to deceased, “You have given me these papers, Mackay,” andhesaid, “ Yes, doctor, I have.” “Well,” said the doctor, “ how about your mother and sisters, Mackay ?” He said, “My mother is all right, and my sisters don’t want me. Let them work as long as I have and then they will have a fortune.” I saw three or four papers, but I did not know the value of them. I knew Mr Mackay intended to give Dr. Campbell a cheque, as he (Mackay) spoke to me about it on the Monday previous. Dr. Campbell was not present at the time, nor did I tell him that Mackay intended to give him a cheque. I believe Mackay had no relatives here. He was an unmarried man. I know Mr Robert Russell who was frequently calling. He was an acquaintance of Mackay’s. He came sometimes but Mackay did not want to see him. He generally went into the room to speak to Mr Mackay. Miss Martha Russell came to the door, but did not go in. Mackay told me several times that he did not wish to see anyone but Dr. Campbell, Mr O’Neill, Rev. Mr Fraser, and myself. He told me this on the Wednesday and I think on the Thursday. He told me to send for Mr O’Neill on the Monday and also on the Tuesday. He said he must think a little before Mr O’Neill came as to what he should do. I believe Mackay saw Russell on the Thursday morning. Cross-examined by Mr Joynt—l was frequently in the room with Mackay. I spent the whole of my spare time there. Mackay was an odd character —he was of a warmherted and grateful disposition. I always thought him very grateful. On the Monday before his death Mackay told me that he was going to give Dr. Campbell a cheque. He had expressed himself as being greatful to myself and Dr Campbell, and asked me previously what obligation I was under to Dr Campbell. I went into the room on Monday and he asked me to sit down. He said “ what about the owing to Dr. Campbell.” I said I owed him nothing. He said, “ What of Mrs Campbell—is she the same to you ?” and I said, “ She is ; there has never boon any difference.” He then said, “ I will pay for both. I have a cheque for Campbell that I want filled in, I want it filled in properly,” He said, “ There ought to he two,” and I understood that he meant there should be two persons present. I said, “There’s Mr Galland, can’t he fill it in?” He said, “ No ; he only comes for the others. I wouldn’t like him to know the amount, as he would tell it all about. I won’t sec Galland.” I then said,' “ I want to know one thing. You were talking about a cheque the other day for me. Was the cheque for me or for Galland.” He said, “For Galland. I was surprised at his wanting money.” He said, “ I shall not pay you yet, I will do it another way.” He made me a present of a pair of red blankets. He gave me his watch, and Mr McConnell said that, as it was not put down in writing I had better give it up, and I did so. It was very hard that I should have to do this. On the Thursday after Mr Russell had been in the room Mackay spoke of giving me some cattle. On the Wednesday night Mackay had been delirious, and passed a most awful night. On the Thursday Russell came to the door just as Mackay had composed himself. He said he only wanted to shake hands with Mackay. I was called away, and when I came hack Ijc was talking to Mackay about Ills affairs. 1 was very angry, and I thought it was a breach of trust and a very cruel thing. 1 told Russell he had done very wrong, and after a time he left the room. I spoke to Russell outside, but I did not see any signs of repentance. When I returned to the room Mr Mackay was trembling very much. He said—“ What is Russell to me ; 1 have done with him. He had enough from me. I will make yon a present of the stock and the ground to keep them on.” I said I wouldn’t take it, and advised him to keep himself quiet. He then told me to send for Dr Campbell. I had very little hopes of his recovery for the lust three weeks. On Thursday he asked me to send for Mr O’Neill, but Dr Campbell did

not think he -was in a fit state to see Mr O’Neill. After Thursday his head became clear and his heart got worse —death came. It was on Thursday that he began to sink until he died. His body got weaker and weaker from the Thursday. Each day he grew worse, and on Saturday he was better as is usual. He was very cheerful, considering the near approach of death. He looked forward to the future with confidence, I did not always do as he told me. I did not send for Mr O’Neill on the Monday, because I did not think it was necessary. Mackay was in a very excited state during the first week of his illness. He had been at Russels, and had been drunking. He had been a reckless character; he had been brought in to my house suffering from the results of his intemperance. I thought that in a little while he would have delirium tremens. Ho only drank what was prescribed for him by Hr. Campbell. On the Saturday before his death there was a very large swelling above the heart. I have never heard of hydro-pericardia. I don’t know what it means. Dr. Campbell, by Mackay’s wish I believe, gave me general instructions not to admit one one to see him. Rev. Mr Fraser came on the Friday, and on the Saturday. Mackay was not indeed out of his mind on the Saturday. He was conscious to a certain degree on the Thursday, but his mind was fevered. His mind was not so clear as on the Friday. On Friday he spoke to me about making his will. His mind was quite clear on tire Friday and Saturday. Ido not remember any intervals of delirium on Saturday. Occasionally on Friday and Saturday Mackay spoke of the palpitations. Hr. and Mrs Campbell and myself arc great friends. Wc came over together in the same vessel from England. They have always been great friends of mine. The’ invalids I receive are generally patients of Hr. Campbell. I sat up with Mackay during the whole of his illness. I sat up with him on the Saturday night. About 3 a.m. on the Sunday morning he gave me his watch, and said “ That is for you.” I returned the watch under the pillow, and said “ I hoped not yet.” By the Court —Mackay died about 9 a.m, on Sunday. Re-examined by Mr Harper—Mackay, on the evening of Saturday, told me that lie had paid Hr Campbell. He said that I should have remained in the room—there ought to have been two. He said if there was any little thing wrong Mr Joynt would pick it out. He said also that Mr O’Neill had made it all right. It was in the afternoon part of the day that the conversation took place. Allen William O’Neill deposed: I knew the deceased Robert Mackay. I drew the will and codicil produced : the date of the codicil is sth August, 187(3. I saw the testator on that date. It was on a Saturday, and I saw him between eleven and twelve of that day. Ho signed it on that day about twelve o’clock. I saw the testator the day before at the house of Miss Patrick. I did not see Dr. Campbell at all that day, or on Saturday. I did not see him till after the death. I saw him on the Monday morning at the office of Joynt and O’Neill.He shewed me.thcdocumcnts produced on that day [deposit receipt, cheque, and promissory note produced.] I never seen them before, nor heard of them in any way. The cheque was returned to the plaintiff, and the other papers were retained in the office. [Left sitting.]