M. FITZGERALD v. COLENSO.

Hawke's Bay Times, Volume III, Issue 138, 4 September 1863, Page 2

M. FITZGERALD v. COLENSO.

To the Editor of the Hawke's Bay Times. Sin, —Having been often asked the particular# of the above-mentioned action, (owing to, I regret to say, its not having been clearly reported either in the Times or in the Herald,) and having (as I hope) yesterday' paid the last bill of costs on account of the same, I wish, with your permission, and for the information of the public, to state plainly the case itself, the working of the “ Minor Jury Sittings” (Supreme Court) here in Napier, and, in conclusion, say a word to the gentlemen who may form the Napier Juries. I. The Case itself. This (as I take it) i# exceedingly simple. Notwithstanding, to make it the more plain, I shall be obliged to give a little necessary introductory matter. Messrs. Triphook & Wright were my Land Agents, up to (heir leaving for Canterbury. On the 6th February last I received back from Mr. Triphook my various maps and plans. Shortly after air. M. Fitzgerald called on mo, as agent for Mr. Tuke, to know my terms for some land near Puketapu : I told him. Ho called two or three times, in as many days, and eventually made me an offer in writing for (lie same. Ills offer being a complicated one, I took two days to consider it, (taking also professional advice,) on the third day I told Mr. F. that I woidd accept his terms; he said, he would immediately inform his employer, Mr. Take. After this nearly a fortnight passed, during which I saw no more of Mr. P. On the day, however, of the election of our Superintendent, (February 2Gth), I accidentally met Mr. Tuke in Shakespcare-road, when he informed me, (in a few words spoken as he hastily passed by,) that ha should not purchase the land. I thought his conduct very strange, but as I had had no communication with him about it, I said nothing to him. The next day (the 27th,) I called Mr. F. into the Treasury Office, and told him what Mr. T. had said. Mr. F. acknowledged that he had known of such being Mr. T.’s intention ; and, moreover, that, ho (Mr. F.) was so displeased at it, that ho had told Mr. T. he would not communicate it to me ; adding, that if I brought the matter into Court he would appear as a witness in my behalf, &c., &c. Mr. F. then seeming to be so straightforward and honorable, and I at that time so very busy in the office and also with public matters (our Council being about to meet), 1 asked him to become my land agent, handing him over the maps, &e., as I had recently received them back from Mr. Triphook, and arranging icith Hr. F. to give him a Schedule of prices with full letter of instructions, at the close of the sitting of the Provincial Council. A day or two afterwards Mr. Manc-y called on me, respecting a piece of land near the Meanee bridge. I sent him to Mr, F., and soon after Mr. F. saw me, ard arranged with me as to terms. About the same time Mr. P. Dolbel came to me to renew his enquiries after the land near Puketapu, which Mr. F., as Mr. Tuke’s agent, had made mo an offer for. As Mr. JDolbel had commenced his enquiries last year about that land , and knew both the acreage and price, I did not send him to Mr. F. On the 7th of March, (the day after Napier races,) Mr. F. called again at the Treasury office, and said that while on the race course Mr. Ormond had been speaking to him about the land near Puketapu, but that he (Mr. O.) could not speak decisively about it for a month or so; and that he, (Mr. F.) supposed, from what Mr. Ormond had said, the land would be too large for him. I told Mr. F. that I bad recently again seen Mr. Dolbel, who had renewed his old application for that land, and that I had also given him a week to consider of my terms ; and unless Mr. Dolbel should refuse them I could not attend to any offer from another person. I may also mention, that, during that week I' got a tracing, &c., of the land near Puketapu made for Mr. Dolbel, from the maps at the Land Office by another Surveyor, notwithstanding my having a colored map of the same land on a large scale among the maps, &c., in Mr. F’s. possession, but

I was careful not to trouble him in the least about it, although"*! was in the habit of daily seeing him j Mr. P’s. residence and office being the next house to my office. At the end of the stipulated time Mr. Dolbel accepted my terms. Mr. P. never saw Mr. Dolbel about the land.

Before the close of the Session of the Provincial Council I had resigned the Office of Provincial Treasurer, consequently, (being now free from Public duties, and having little else to do,) I informed Mr. P. I should act for myself, and hence Mr. P. did not receive from me the promised Schedule of prices. Soon after Mr. P. sent in hia bill, in which, while he charged as Commission for the transaction with Mr. Maney, the very moderate sum of £3, he charged as “Commission” on the whole amount of the land sold by me to Mr. Dolbel, £34 15s. Od, although ho knew that three-fourths of the purchase money were to remain in mortgage on the land, (for 7 years if required) at 8 per cent.

The day following I called on Mr. P., and told him, how very greatly I was surprised at his bill of charges ; and that, in concluding to take back my maps, &c., Irom him, and for the future to act for myself, I had already determined to give him £ls, (say, £5 for Mr. Mauey’s matter, and £lO on so suddenly and unexpectedly resuming my papers, &c., —as I had thought he might be not a little disappointed at my so doing,) and which sum of £ls I then offered him ; but which he would not accept, claiming “ the Commission to the last shilling upon the whole amount of the purchase money.” On leaving him that day he agreed to my proposal, to bring the matter immediately before Captain Curling, R.M., and to abide by his award. About ten days after this I met Mr. P. in the street, when to my surprise he informed me, that he had altered his mind, and that he should bring me into the Supreme Court. He had engaged Mr. Wilson, our then only disengaged Solicitor, (Mr. Brooke Taylor, being Registrar of the Supreme Court, was not able to act for me,) and on the arrival of the steamer with the Judge, Mr. P. left Mr. Wilson and engaged Mr. Allen who had also come to Napier by the steamer. Before the trial, the £3 charged by Mr. P. as commission on the land sold to Mr. Maney was paid by me into Court. The Judge, in summing up, informed the Jury •very clearly, that what I had told Mr. P. on the 7th of March relative to Mr. Dolbel, had quite taken that piece of land out of Mr. P’s. hands, and that Mr. P. “ had no claim for Commission ” ; but that, if they were of opinion, “ anything teas due to him for work done,” they were to find for him such amount as was fair and reasonable.

After a short consultation the jury returned a verdict of “£2O for the plaintiff', Mr. F., lie paying his own costs.” The Judge, however, told them he could not receive their verdict so given ; and that they should only find for the amount (if any) for work done. On this they again brieily consulted, and returned a verdict of “£l7 for Mr. F., being half of his charge for commission.” 11. Of “ Minor Jury Sittings." —This case of Fitzgerald v. Colenso is the first case tried here under this new Act; and I dare say what the Judgo said in favor of this new mode of action will be remembered by those who were that day in Court. At present, sir, it will bo quite snilicient for me to call the attention of the public to one remark only which fell from His Honor the Judge, viz., the desirability of removing cases from the District Court into the Minor Jury Sittings (Supreme Court), partly on account of its inexpensiveness, —the costs being but very little more than they would be in the District Court. What the costs in the District Court might have been in this case I do not exactly know' ; I am informed such would have been under £lO. I do know, however, the amount of costs I have paid, amounting to £22 10s., of which sum £ls 15s. was to the plaintiff’s lawyer, who (I should also iu justice state,) struck off a few pounds from his bill, owing to its being (as he called it) “ a hard case.” Therefore, sir, unless the costs in the “ Minor Jury Sittings” (Supreme Court) are to be very materially lessened, I cannot sec the great desirability of removing cases thither from the District Court: mine, too, being, per se, a very simple inexpensive case, and one to be quickly disposed of. HI. A word to Napier Juries. —And here, before I say anything, I would state, that I feel assured the Jury on this occasion thought they had acted rightly,—and in erring (if they have erred,} did so unintentionally. But, from certain candid admissions made to me by some of them since the trial, —taken together with the law as laid down by the Judge on the occasion, and, also, their first verdict, —I cannot but conclude that I have had heavy uncalled for expense, little law,* and less justice.f And, therefore, I hope that a due consideration of the case in all its bearings will be a means of causing a future Napier Jury to act equitably, and save many a poor defendant from unintentional wrong and unlocked for expense. —For, firstly, the judge laid down as law that Mr. F. could not claim any “ commission,” while he could “ for work done,” if there was any. Yet Mr. F’s. bill was only for “ Commission ,•”+ and the Jury eventually found for him “ half his charge for Commission ; ” not for any work done, (during the 8 days, — i.e. from the 27th Feb. to the 7th March, —the time the said land was in his hands,) —which indeed could not be shewn, —for Mr. F. admitted, on his cross-examination by Mr. Carlyon, that he had not even entered the Land in his Registry Book. Hence, it is plain, the second finding was against Law as laid down by the Judge. Mr. F. throughout took his stand for Commission on the whole amount of sale of the Land ; he never pleaded any work done ; and, I think, the Jury should have either found for him entirely,—or, following the Judge’s ruling (both in law and equity), for me. Secondly, on comparing the first and second verdicts of the Jury, it is clear, that they only allowed me £3 to pay Mr- F.’s law-costs, —whereas I have paid (a re-

duced bill of) £ls losto his own Solicitor. Thirdly, some of the Jury have since admitted to me, that, in returning their verdicts, tlioy had lost sight altogether of my having paid into Court previous to the trial the sum of £3, (being the amount of Mr. P’s. charge as Commission on the land sold to Mr. Maney, and an item of Me. P’s. bill produced in Court,)—their verdicts included that sum also. And hero I may also in passing note, that, while the Judge was addressing the Jury and near the close, Mr. Allen (Mr. P’s. counsel) leaning across the table said to me. —“Forty shillings! that will be their verdict.” Further: in England, and also in the Australian Colonies, it is the rule, that when a plaintiff drags a defendant into a superior Court, where an inferior and less expensive Court exists, and the plaintiff gains the action, that ho is justly made by the Judge to bear the extra expenses caused through his electing the superior Court. Now Mr. P. not only did not adhere to our arrangement to bring the matter before Capt. a plain and simple way, he also recklessly increased the law expenses,—for instance, one of the heavy items in his lawyer's bill was for “seven witnesses.” I hope, ere long, such a salutary rule as the one referred to will also obtain here.

Of the conduct throughout of Mr. M. Fitzgerald, the plaintiff’ in this action, I do not wish to speak. Silence is often the most expressive. Jn conclusion, 1 will just add, that I have had dealings with more than one firm in Napier as Land Agents acting for me, and 1 never before heard of such a strange charge. My first agent was Mr. J. A. Smith ; and, during the time ho so acted, I sold three parcels of those lands which lie had to sell for mo, (and of which he had the list of prices , and also gave information concerning the same to each of the parties before they came to me,) viz., —one to Mr. Perry in Waghorne-strect, —one to Mr. Bousfield on Seinde island, —and one to Capt. Carter (for Mr. Leadani) on the W. side ot the harbor. And not only did Mr. Smith not dream of charging Commission, (as indeed he honorably witnessed in Court, being one of Mr. P’s. witnesses,) but, in ins account-current for that year, having inadvertently charged Commission on the section L had sold to Mr. Perry, (Mr. Smith having also sold him one,) he credited me with the same sum, as having been “ charged in error —which old account-current of his was also produced in court, and elicited praise from Mr. Allen.—Afterwards Mr. Triphook, and, subsequently, Messrs. Tviphook & Wright became my agents ; and during the time my lands were in their hands 1 also sold two parcels, —one, to Mr. "Wright, on Scindo Island, (before he entered into partnership with Mr. Triphook,) and, only last October, One to Mr. J. licgg, at Wliarcponga, (this latter, too, under very peculiar and well-known circumstances) : I scarcely need add, that those gentlemen never dreamed ot such a tiling as charging me Commission on lands sold by my self. Trusting that you will both forgive (ho length of this letter, and believe with me, that L am performing a public duly and indeed a benefit in making this case in its various bearings generaliv kmvuii. 1 am, Ac.. 'WILLIAM CO LEA 80. Napier, August 21), lb“ 3.