SUPREME COURT.

New Zealand Mail, Issue 51, 13 January 1872, Page 4

SUPREME COURT.

Sittings at Nisi Peius.—Monday, Jan. 8. (Before his Honor Mr Justice Johnston, and a Common Jury.) SMITH Y. BTXEEETT. Action to recover £BS, for rent. The facts of the case were these. In July, 1866, the plaintiff and defendant had negotiations for the lease to the defendant of a shop and premises in Manners street, and it was agreed between them that the defendant should take the premises for a term of five years, at a rental of £5 per month. The defendant signed an agreement, and entered into possession, continuing to occupy until the 17th February, 1870, and paying the rent up to that time. On that day the defendant went to the workshop of the plaintiff, and, putting down the key of the premises leased by him, said he was going to leave. The plaintiff at once said the lease had not expired, and the defendant rejoined that he did not care about that, he had come to give up the key. but the plaintiff would not accept possession of it, and it was left lying on a bench in the workshop, and had remained in that building ever since, one of Mr Smith's workmen having put it in a place of safety. The term for which the plaintiff averred the lease held good having now expired, the plaintiff brought the present action to recover the amount of £BS, being the rent for seventeen months at £5 a month. Mr Travers appeared for the plaintiff, Mr Allan for the defendant. The following evidence was taken • John Smith, blacksmith, plaintiff, deposed : In the month of July, 1866, I made an arrangement with Mr Burrett to occupy certain premises in Manners street, which he occupied till February, 1870. There had never been anything said about his leaving the premises, although I received all that was due up to February. Soon after the last payment of rent Mr Burrett came into my shop and said " here's the key." I said the time was not up and I could not receive the key, and it was allowed to remain in my shop where he put it. I have not taken possession of the premises nor have I let them to anybody else, so that I consider there is still eighteen months rent due. He had been in possession about a fortnight when he brought an agreement for lease. On the 15th February they paid what was due, and shortly afterwards brought the key. Cross-examined by Mr Allan : Mr Burrett never gave me any notice, written or verbal, of his intention to leave the premises. On the 17th he brought the key and told me he was going to give up possession. He put the key on the bench in my shop, and I allowed it to remain there. I have applied to him through the post for rent, but whether he received the letters I cannot say. These were forwarded about three months after he left the shop. I brought no action until the whole of the five years had expired. I have met Mr Burrett often, but I never told him that he was indebted to me. I have put material of my own into the yard of the premises let to Mr Burrett since he left, as I cf en did before. I considered 1 had a right to do so, even during his tenancy, because he really only leased the house and shop. The yard was fenced round and completely enclosed, but after Mr Burrett left the fence was broken down in places. Re-examined by Mr Travers : The yard was used by the persons occupying the next house, so that Mr Burrett had not the exclusive use of that yard, although if I used the yard during his tenancy I did so with his consent. The portion of the fence broken down was not broken down by me. Robert Burrett, the defendant, deposed : I occupied the premises owned by the plaintiff, and paid him by monthly payments. The access to the yard spoken of was through my shop, although there was another means of entry round by the plaintiff's house, but too much time would be occupiad in going round. I took the yard as part of the premises ; they would have been useless to me without the yard. There was no fence between the house now occupied by Mr M'Donald and that occupied by me. The plaintiff never put any slack into my yard during my tenancy ; I should have refused to allow him to do so. Before the 17th February I gave plaintiff a written notice that I was going to leave the premises ; I put it into his own hand. On the 15th February I went to his workshop and gave him the key of the premises. He merely said " No ; " nothing more. I said, " Well, you know your remedy," and we both went into tLe Coach and Horses, and had a glass of ale. I have often seen him since, but lie has never asked for my rent, although he has worked in my shop mending machinery. I have never since received any application for rent either in writing or otherwise until the 17th July. He has paid all rates since, but has never asked me to repay him. I have been to the premises since I gave up possession, and saw that the fence was broken down, and a quantity of slack had been placed there. Cross-examined by Mr Travers : I am not aware whether I have paid any rates. I heard that Mr Smith was going to sue me for rent, and I went to the premises for the purpose of ascertaining whether the yard had been used by the plaintiff subsequent to my giving up possession. The slack I saw in the yard could not have fallen from the cupola; it must have been put there because there was too great a quantity to have fallen. When I said that be had his remedy I knew that he had been advised to sue me, because he told me he knew he had me fast. I had been advised by my lawyer that he had not, and I was agreeable to fight it out at law. Plaintiff re-examined : Between February, 1870, and July, 3871, I had several applications from persons willing to rent the premises, bnt I refused to have anything to do with them as I considered Mr Burrett was the landlord, and I referred them to him. Thomas Ritson : I was in the employment of Mr Smith previous to February, 1870, and

remember Mr Burrett coming into the shop and offering Mr Smith the key, but he said he would not take the key unless Burrett paid twelve months rent. Burrett then threw the key on the bench and went away. The furnace on Smith's land is very close to the fence dividing Burrett's yard from Smith's I have seen slack from Smith's place placed in the yard behind that occupied by Burrett. Cross-examined by Mr Allan : I am positive that during the whole year, from 28t.h Feb., 1870, to Feb., 1871, there was no slack put there, but I cannot speak positively as to whether any was put there after that time, and if Mr Smith has said that there was I cannot deny it, When Mr Burrett gave up the key I did not see him and Mr Smith go out to have a glass of beer. Re-examined by Mr Travers : I have worked for Mr Smith continuously for about seventeen months this last time. John Smith, jun. : I know the yard of the house formerly occupied by Mr Burrett. The dividing fence was never perfect, even when Mr Burrett was in possession. The cupola is next to the fence, and the accumulation of slack was from three to six loads in two months. Port of my duty was to attend to the furnace, and I am positive that no slack was ever put into Burrett's yard ; any that was there must have dropped through when charging the furnace. We have wheeled coke through the yard, but to have wheeled the slack there would have necessitated a good deal of unnecessary trouble. The necessary outbuildings were on Mr Smith's land, and were common to all the three houses. Cross-examined by Mr Allan : As I have already stated, any rubbish found in the yard since July, 1870, must have fallen when charging the furnace, and was collected regularly at intervals of about a week, and put into the furnace ; it was not slack, it was coke, This was plaintiff's case. Mr Allan called the following evidence : Franklyn Valentine, carter; Previous to July, 1871, I was engaged by plaintiff to remove rubbish, but I could not swear to having done so on any particular date. I have been so employed by him off and on for the last seven years. A week or two after Burrett left the premises, I was employed to cart away three or four loads of clinkers from the furnace and other rubbish, such as would come from a dwelling house. It was wheeled into a place convenient for removal, so that I could not say from what particular part of the premises the rubbish came from. I do not think the clinkers came from Burrett's premises. I never saw anything more than a small quantity of coke on the land forming the backyard of Burrett's premises. Counsel on both sides having addressed the jury, hi 3 Honor summed up, and The jury found for the plaintiff on the final issue: To what amount is the plaintiff entitled ?—Answer : £BS. Tuesday, January 9. spaceman v. mitchell. Mr Travers for plaintiff; Mr Allan for defendant. The case, as appears from the evidence recorded below, is that the plaintiff had been a ratepayer and collector for the Porirua Ferry School District, and that at the expiration of the financial year in 1870 he ceased to occupy that office. The treasurer at that time (Mr Taylor) also resigned, and was superseded in the office by defendant, to whom the books pertaining to the office of Treasurer was supposed to be handed over at a general meeting of the committee on the 19th July, 1870. Defendant denied that he ever saw the book. In pursuance of the duties of his office subsequently, defendant, who had to meet claims on the committee, made some financial calculations from previous knowledge of the finances of the school board, and his personal acquaintance with the ratepayers, and came to the conclusion that plaintiff was indebted to the board in the sum of some £l2 or £l3. Plaintiff endeavored to show that defendant had falsely and maliciously reported that Spackman had robbed the board, and that he (defendant) intended to have him put in the " brick house" if he did not make the money good in a few days.- In consequence of a letter on the matter sent to Major Edwards, chairman of the board, by defendant, a meeting of the committee and ratepayers was called by the chairman, and the accounts were gone into. The result of the investigation was that everything was satisfactorily accounted for, with the exception of a few shillings, which it appeared Spackman had disbursed on behalf of the board without any direct authority. None of the allegations made by Mitchell against Spackman were substantiated at the meeting ; and shortly after he instructed his solicitor to demand an apology from defendant, with the stipulation that he should publish it in the Independent newspaper and pay all expenses. In answer to that communication Mitchell signed and Bent back the following document: —" I have no recollection of having said anything reflecting on your conduct while collector to the school committee for the Porirua Ferry District; but if I have done so, I regret it very much, and hereby acknowledge that there was not the slightest foundation for any such reflections.—James Mitchell." But this was not accepted in accord and satisfaction as a full compliance with the request; and as the apologv never appeared in the Independent plaintiff eventually laid an action, on eight separate accounts, for £250 damages. G-eorge Spackman, carrier, deposed: I reside at Porirua. In 1870 I acted as collector of school rates for the Porirua Ferry District. I was gazetted to act in that capacity. I was not collecting after the 19th July, 1870. From time to time I handed all money over to the Treasurer. My accounts were always examined by the committee and passed. My fee was to be £3, and that was the only money uncollected at the timet I

collected that afterwards. The total amount I collected was £36, with £3 subsequently. I paid everything over to the Treasurer except that £3. There was £1 besides due to me for Court expenses, as I had to make several journeys in connection with the business of collecting. [Balance-sheet of school accounts produced.] By Mr Allan : I was at a meeting of the committee in July, 1870, when-the balance-sheet was produced. Mr Mitchell was also present. On July 19 I closed up my dealings with the committee, and everything was accounted for up to that time. It was the duty of the Secretary (Thomas Bould) to make out the balance sheet. My accounts were balanced in the books of the Treasurer (Henry Taylor), who acted in that capacity up to July 19, when I ceased to act as collector. I never heard of any complaint against me until the latter part of January. The £1 due to me by the committee had never been paid. When the new collector called upon me for £1 in rates due by me as a ratepayer, I reminded him that the committee owed me £l, and that if they paid me that I had no objection to pay them. Mitchell never complained to me about a deficiency in the accounts, or that some rates remained unpaid. Mitchell did not ask me after the 31st December to explain the accounts. I am not aware that the committee instructed Mr Mitchell to make any such inquiry. Some time in January I received a letter from Mitchell, but not until I had first heard it publicly bruited about the district that I had robbed the school funds. The letter was to the effect that he had gone through the accounts for the last financial year, and found me greatly deficient, and asking me to make the amount good and save further trouble. I afterwards directed my solicitor to write to Mr Mitchell asking for a public apology (a copy of which was enclosed) to be published in the Independent newspaper. The apology was sent back signed by Mitchell. By the Court: I directed my solicitor not to accept the apology unless the expenses for insertion were paid ; and I therefore did not accept the apology. Re-examined by Mr Travers: I never heard of any discrepancy in the accounts until I heard the damaging rumors, and soon after received the letter. The Treasurer's book was handed over to Mr Mitchell when he assumed the office. When Major Edwards called a meeting, with the intention of investigating these charges to which I referred, and the Treasurer's book was called for, Mr Mitchell produced a little book of his own, and said that he had never seen the old book. James Townsend Edwards called, deposed : I was Chairman of Porirua Ferry School Board in July, 1870, and January, 1871. I was not present at the annual meeting in 1870. I received a letter from Mr Mitchell on the Bth January, as follows : Burnside, 7th January. My Deab, Major Edwaeds. —Sir, —As I have not been able to do much work, I run through Spackman's accounts, and he is £9 17s in arrears. Don't make any more noise about it. As you may see I have a desire to challenge the gentleman. I called upon him as I wish to give him a chance to clear things up, but I am afraid there is no chance. I should like to have your opinion on the quiet. He won't get a long time to make it up. There is no use to parley with him. I hope you are as much better as I am. —Yours truly, James Mitchell. A few days after I conversed with Mitchell about the letter. I do not think Mitchell ever spoke offioially to me about Spackman's accounts. I told Mitchell the matter should not be talked of, or gone into in a hole-and-corner way ; but to call a general meeting of the committee at once and go into the whole thing properly. The meeting was called. Mitchell was present at the latter part of the meeting. He came late. Owing to the absence of one book (the late Treasurer's) we were obliged to trust to memory ; but as the matters were recent, we were enabled to come to a satisfactory conclusion. Mitchell should have been in possession of the missing book. After going through the accounts thoroughly, we found only a slight inaccura-y of some 7s, which Spackman explained had been spent on a summons. Mitchell endeavored to substantiate his charges against Spackman, but failed. The chief difficulty arose through the want of the Treasurer's book; but Mitchell said he had never seen it. By Mr Allan : I know of no complaint having been made about any specific sum. Before I received the letter from Mitchell, I had heard of no charges against Spackman. Long before that, I heard that there were tome unpaid rates standing over from the previous year; but that was explained satisfactorily to me by Mr Henry Taylor, former treasurer. Henry Taylor : In July, 1870,1 was Treasurer of the Porirua Ferry School District, and had charge of the books. Mr Mitchell succeeded me, and to him I handed over the two books and some documents. I have never seen the books since, but I cannot say whether Mitchell removed them off the table, where I placed them. These books were produced oa the 15th as well as on Jthe 19th January, and on the latter evening Mitchell could have taken tin books. On that evening Spackman accounted to me for all the money, and I was satisfid. I handed over £5 Is lOd to Mr Mitchell, as according to account. Henry Brown : I was present part of the time at the public meeting. Accounts were produced at the committee meeting held on the 16th, examined and found correct. I was to have made out a balance sheet, but as I had no time the sheet was mada out by Mr Bould. Previously to the public meeting. I examined Taylor's accounts. Taylor's and Spackman's accounts were compared, and with the exception of a few shillings (afterwards accounted for) the accounts corresponded. I saw Mitchell in January last year before the public meeting, and he said there was consider* [ able deficiency iu Spackman's accounts. That

was the first I heard of the matter. He said Snackman was deficient fill: Mitchell showed me a letter which he was going to send to Spademan; and he said he was going to send one to Major Edwards. Mitchell said something about recovering the deficiency if possible, and, if not; that Spackman wpuld have to go to gaol in a week. Mitchell did not accuse Spademan of having robbed or swindled the Committee j but said that he owed them money. , , . ■ » Bobert Walker, laborer: I was living m Porirua, in January, 1871, and I had conversation with Mr Mitchell in reference to Mr Spackman on either the 10th or 11th of the month. It was in the middle of the day. Mr Mitchell stopped me at his gate, showed me a roll of papers, saying, " I've been looking out for Spaekman a long time; but he's now fell into my hands and I'll have his body in goal before eight and forty hours." I asked what for ? He answered: " He has robbed the school of £l4 some odd shillings." He then read to mo a balance sheet, which he represented to be Spackman's. He said he only wanted the money, but if Spackman could not find it, he would have to go to gaol. By Mr Allan: I cannot fix the date more accurate than in saying that it was in the early part of January. I think I first mentioned the matter to Mr Taylor, but after that to several others. I have no unfriendly feeling towards either plaintiff or defendant. By the Court: When Mitchell spoke to me about Spackman, and said he had been looking out for Spackman for a long time, he did not say what he had been looking out for him for. William Cain: I saw the defendant at a committee meeting in January. I was a member of the Committee. Mr Mitchell then said, " Mr Spackman has robbed the school of £l2 or £13." On no other occasion did Mitchell say anything to me. By Mr .Allan : The committing meeting had been called for the purpose of investigating the accounts, and made that statement before the committee. He said that Spackman had "robbed the school." Spackman was present. At that meeting was the first I heard of the charge against Spackman. Denis Byan : I avo a police constable at Porirua. In January last Mr Mitchell showed me a letter he was going to show Mr Firth, a member of the committee. About three days before, going to the Ferry, I met the defendant on the road, and he said " I have got a case for you." I asked him what the case was. He said "Spackman has been robbing us of £l2 17s of the moneys of the school." I asked him was he quite sure, and he replied " Yes." I said the best thing he could do would be to go to town and take out a warrant* for his apprehension. He said he would have to see Major Edwards, and added " We would sooner have his money than his body." On the second occasion I think he said nothing, but merely showed me the letter. I was at the hotel while a committee meeting was being held. It was early in January when the conversation took place between Mitchell and myself. He afterwards told me that he made a mistake, and that the amount was £ll 17s instead of £l2 17s. Mitchell told me on the first occasion that he would have Spackman in the " brick house" if he did not make the money good in a few days. By Mr Allan : I was a member of the committee, and paid my rates. I never heard anything about Spackman and the accounts before Mitchell spoke to me, when he expressed himself as I have already stated. I had nothing to do with the committee when the meeting was held in January. I was merely a ratepayer. By Mr Travers : I was at the annual meeting in July when the books were made up, and Mr Spackman's accounts were all correct. This closed the case for the plaintiff. Mr Allan stated the case for defendant, and called James Mitchell, who said : I am a ratepayer to Porirua Ferry School district, and was so last year. In July, 1870, I was elected Treasurer. No books were handed over to me then. Subsequently I received the books from Anthony Wall a small pass-book (treasurer's book) and a few receipts. I saw the book referred to as the " Treasurer's book" in the evidence for the plaintiff. I took no action further than receive the money paid to mo before the latter part of December, when I was in want of money to pay the teacher's salary. Being dunned for money, 'I called a meeting of the committee on the 31st December. Spackman was there. I presented a list of ratepayers in arrears, amongst whom was Spackmun. He indignantly denied that he Owed the committe anything, and said that they owed him money. Major Edwards then proposed that I should go into the accounts with Spackman, in which the rest of the committee concurred. Some days after I called upon Spackman to see if he was ready to go into the accounts. He said he had not time to do it. I looked into the accounts myself, and after looking over the treasurer's book to see what money had been paid in I Btruck a balance. I made out a ratepayer's list from my own knowledge. I investigated the state of accounts from July, 1869, to July, 1870, asT was instructed to do. I judged by the amount received and what should have been received, taking the number of ratepayers. By that calculation I saw that £23 had been received from 39 ratepayers all liable to a £1 rate, excepting two persons who had only to pay five shillings. £1 10s was given back to Spuckman to be expended in the recovery of the arrears. I had seen a balance Bheet for 1870. I know of my own knowledge that £37 10s had been received from the ratepayers, and Spackman admitted that he had received that amount. The balance sheet has never been passed yet. Byhis Honor : Since you have, under your own hand, said there was not the slightest foundation for the charge .made against Spackman, I should like to know when you discovered that ? No answer. Mr Allan resumed : After going into the accounts

I wrote to Major Edwards, and he called upon me. When I met Byan I merely told him that Spackman was behind with his last year's accounts, and we were going to have a meeting about it. I positively swear that I did not say to Byan " I have a case for you," nor " Spackman has been robbing us, and has £l2 17s of the school money." I never on any subsequent occasion told him that it was £lll7s instead of £l2 17s, nor that I ever said anything about putting him in the " brick house." I think Byan's memory must have betrayed him. When he suggested that I should take out a warrant I said I would rather have the money ; but that I would see Major Edwards upon the matter. A meeting was held afterwards in reference to the matter. The meeting was nearly over when I went, and they told me that there was another book I had not seen. I then felt that I had been misled, and was ready to condone. I am not quite positive whether I said so. In a few days after a letter came to me demanding an apology, and containing a form. I signed that. By Mr Travers : I don't think I received a letter from your firm before the 23rd January, 1871. By his Honor: When I made the charge against Spackman, I was wrong both in fact and amount. By Mr Travers : I afterwards took legal proceedings against Spackman by the advice of Mr Allan. The case was dismissed, and I was obliged to pay heavy costs, I made no inquiry of Taylor, and did not consult him before making the charge against Spackman. By Mr Allan: Those proceedings at the Besident Magistrates' Court were taken at the instigation of the Committee on account of Spackman collecting money after he resigned his appointment at the expiration of the financial year. A Mr Brown was to sue, but Mr Allan, who was consulted, advised that the treasurer was the proper person to sue. The persons who had told us they had paid Spackman appeared in the Besident Magistrates' Court. I changed my mind after signing the apology, on account of evidence which had been brought before the Committee, but I did not hear it, and I thought I could not help myself. Anthony Wall: I am a ratepayer and member of the Committee, and attended the"meeting on the 19th July, 1870. I saw no books there, but Mr Taylor handed me a small bundle of papers. (Mr Taylor: The book was small, and could be rolled up with papers). I was at the meeting in January, 1871, and Mr Mitchell produced there a list of ratepayers. Mitchell did not connect Spackman's name with robbery at the meeting, By Mr Travers : The papers I received at the meeting were tied up by me in a pockect handkerchief, and I untied them in Mr Mitchell's kitchen afterwards. George Firth: At a meeting called by Major Edwards in reference to these disputes between Spackman and Mitchell, I heard the latter say that from accounts in his possession, and other papers, he found that Spackman was behind some £ll. I did not hear him say that Spackman had robbed the school. The room was small, and unless he spoke in a whisper I must have heard every word. By Mr Travers : Before Mitchell arrived we had looked over Spackman's book, but 1 we had not come to any definite conclusion. I never heard Mitchell say he was satisfied with the investigation. Since that time I have understood from Mitchell that he still maintains there is money due from Spackman. The action taken in the Besident Magistrates Court was taken at the instance of the Court, who did so on Mitchell's information. Thn committee have not paid Mr Mitchell's expenses. The committee have not repudiated Mr Mitchell's procedure in that action j but the ratepayers generally. Mr Mitchell re-examined: In January, 1871, I saw Walker, but I did not say " 1 have been looking out for Spackman for a tang time; and that I'll have his body in gaol inside of eight and-forty hours," and I swear that I never used such language to anyone. This was the case for the defendant. After heaving Counsel, His Honor summed up at very great length and the jury retired. After an hour and ten minutes the jury found for the plaintiff on two counts, with damages £SO. The Court rose at 10.40 p.m. Sittings in Banco. —Wednesday, Jan. 10. (Before His Honor Mr Justice Johnston.) SMITH V. MOOEE AND OTHERS. The Attorney-General moved for a rule nisi for the arbitrators in this case, and appointed in pursuance of an order of reference of the Supreme Court, on the 18th September, to show cause why their award should be sustained. The motion was made on various grounds, but chiefly on the ground that the award was not consonant with the terms of the order of reference. Motion granted. BE GEOBG-E M C CATJI/, Mr M'Keon applied for a mandamus, a rule nisi having been previously granted, but which had not been made absolute, from the fact that all the parties in the case who should have been served with an information were not so served according to the practice of the Court. Mr Ollivier, who appeared for one of the parties (George Lynch) opposed the application, on the ground that the rule nisi alone was insufficient, and should have been served personally with the required formalities. Application for mandamus discharged, with costs allowed for opposing counsel's client. KBUMJ V. NICHOLSON. ' Mr Pharazyn appeard to show cause against a rule nisi for a writ of attachment on one Alexander Gray, of Manawatu, not appearing in pursuance to an order of the Court. Mr Ollivier appeared on behalf of the plaintiff, and moved for the rule. It appeared that the rule nisi was granted upon an affidavit which showed that an attachment in the case had been served upon Gray

as garnishee, and an application had been made under the Absent Debtors Act for an order to examine Gray with respect to property in his possession, before the Court on a specified day. The process-server in the case was one Henry Purcell, a constable, and he averred that he complied with all the formalities necessary, a written statement of which he had been supplied with. The garnishee, on the other hand, denied that he bad been properly served, and instructed his counsel that Purcell's memory must have failed him. It was also contended on behalf of the garnishee that as regards the question of costs he was precisely on the same footing as any ordinary witness, and should therefore be assured of his travelling expenses, and indemnified generally. Mr Ollivier asked that the rule be made absolute in the terms for which it was moved for, on the ground that every necessary step had been taken ; and that in consequence of the refusal of the garnisher to obey the order, the Court was entitled to issue an attachment for contempt. Eule discharged without costs. EE JOHN NATHANIAL WILSON. On the motion of Mr Ollivier, a rule nisi was granted to make absolute an order of the Court made on the 23rd December, 1870, at Wellington, to the effect that John Nathaniel Wilson, of Napier, in the province of Hawke's Bay, should deliver to James Mernie Stewart, of the firm of Kinross and Company, accounts of fees and disbursements on account of the Company, of which he was a member. The Court then rose.