RESIDENT MAGISTRATE’S COURT.—GISBORNE.

Poverty Bay Standard, Volume X, Issue 1099, 13 July 1882, Page 2

RESIDENT MAGISTRATE’S COURT.—GISBORNE.

Friday, 30th June. [Before M. Peicb, Esq., R.M., and His Worship the Mayob.] H. A. Dowkb V. J. S. Coopbb.—Claim £l3 10s. 6d. Mr Nolan appeared for plaintiff. Defendant, who is absent,, was not represented by counsel. Judgment for plaintiff, with costs, £2 Is. JUDGMENT SUMMONS. D. McKay v. R. Cooper.—Mr Ward for plaintiff, Mr Brassey for the defendant. Mr Brasaey asked His Worship to have the hearing of this case adjourned for a fortnight, as the defendant had to go to Wellington. It was therefore adjourned for two weeks, defendant paying costs, 19s. Hoani Ruru v. Nikora Kiripouri; Hoeni Ruru v. Hirini Kiripouri. Both these eases were adjourned, as Mr Robinson, whooppeared for both defendants, objected to there being only one Native Assessor on the Bench. Costs were applied for but disallowed. Hubble v. Rice.—Tn this, an adjourned ease, Mr Brassey appeared for the defendant. After hearing the evidence of Mrs Rioe, for whoso attendance the case had been adjourned, judgment passed for plaintiff for £ll, with costs, £ll2s. G. DAVIS V. 8. 808. Claim £2l Is 6d. Mr Kenny, and with him Mr Finn appeared for the plaintiff, and Mr Brusey for the defendant. The plaint was as follows “Between George Davis plaintiff, and Samuel Roe, defendant. “ The plaintiff claims to recover from the defendant the sum of £2l Is 6d, for that the defendant on the 15th day of June, 1882, falsely, fraudulently, and maliciously brought against the plaintiff, in the R.M. Court for the district of Poverty Bay, holden at Gisborne, a certain false, malicious, and unfounded action against the plaintiff, for the purpose of mere vexation, for the recovery of £l9 9s, being the amount of a certain promissory note which the defendant falsely and maliciously pretended the plaintiff had contracted to pay to one Alexander MeKensie for the said defendant, and for £2, tho costs alleged to bo incidental to tho non-payment by the plaintiff of the said note. “ (2.) On the hearing of the said esse before Matthew Price, Esq., the R.M. for the said district, the same R.M. nonsuited tho present defendant, the said Samuel Roe, ordering him to pay to the plaintiff herein tho sum of £4 Ils for costs, which said sum wm made up as follows i— McKenzie, witness's expenses...£l 2 0 Paviour, ditto 1 1 0 Costa of Court ... 0 fl 0 Counsel's foe 22 0

£4 11 0 " (3.) That the plaintiff, by reason of the premises, has boon injured in his reputation, and has suffered pain of body and mind, and was prevented from attending to his business, and incurred loss of time, and incurred legal and other expenses in defending himself against the said action so unfoundedly, falsely, and maliciously brought against him as aforeover and beyond the sum of £4 Ils awarded by tho said R.M. as aforesaid, which said expenses it was not competent for the said R.M. to award to him, the said George Davis, tho present plaintiff, although he would have been entitled to them unaer tl.o same circumstances in tb.e Supremo Court of Now Zealand; and >f tho expenses amounting to tlie sum of £5 Is 6d, are hereunder written. Wherefore the plaintiff claims recover from the defendant £2l Is 6d. Mr Kenny asked on what grounds the posing ceunsel intended to base his defence Mr Brassey stated that he was unable to J understand the plaint. 6* In reply to another remark Mr Brassey said his defence was that there had been no malicious or unfounded action taken by his client against tho plaintiff. Mr Kenny then addressed tho Court, and said that if tho facts of tho present ease were not pleasant to contemplate, they were at least few and compact. The plaintiff and tho defendant entered into partnership as butchers on tho 12th January, 1882, and a deed of partnership was drawn up and signed. This partnership was dissolved on May 4th, 1882, also by deed. On June 20th, 1882, the defendant sued the plaintiff for £l9 9s and alleged that this amount was for a P.N. for £2O mentioned in the deed of dissolution. Before this action in order to pave the way a McKenzie who was supposed to hold a P.N. signed by the firm, but which as would be shown by evidence was really a private debt, sued Roe and the latter confessed judgment, on May Iflth. He would prove to tho Court that in order to get nt Davis there had been collusion between McKenzie and Roe. On 20th ult., Roe sued Davis and was nonsuited with costs. In fact he cut a very poor figure in the box, and had to admit that the P.N. upon which he claimed hod been signed by himself after the dissolution of partnership. Of course the practice of tho Court could only allow the defendant in the action tho actual costs incurred in the Court, namely £4 9s, but over and above this the plaintiff in tho present action had on that occasion incurred expenses amounting in all to £5 Is 6d, and for which sura special damagez were now claimed. In the Supreme Court, however, it was different. Then there were the ordinary damages for damage to reputation, anxiety, loss of time, etc., The action taken by Roe against Davis had been proved to ba utterly unfounded. The present was not a case of dubious facts or mistaken law, as ho would shortly proceed to show. It was a case in which ho could ask the Court to give judgment on considerations of equity and good conscience. If a wealthy ana dishonest man chose to bring action after notion against a poor man, based on grounds such aa that upon which Roe founded his claim against Davis, it would.inevitably result in ruin to the poor man unless he could bo protected by the law. If the law wore powerless to protect him then it would be offering a premium on such conduct. lie would prove, (1). That the action of Roe ▼. Davis was absolutely unfounded, and that Roe knew it to bo so. (2). That it was brought fraudulently and maliciously for mere vexation. (3.) That it waa determined in tho defendants favor, and (4). That the present plaintiff has Suffered both ordinary and special damage, and he contended, with all respect, that haring proved these things tho plaintiff was entitled to demand a judgment. He wm sorry to occupy so much time, but the action was a ratter novel one. His Worship said it certainly was a most novol one, and that in all his experience such a case had never yet come before him. Mr Kenny said that however novel it could be no objection. The learned gentleman then quoted from “ Brooms Maxims " in support of his statement. It was a maxim distinctly laid down that where there woe a wrong there waa a remedy. Had tho present action been brought through a oomplicotion of facts or through a mistake through law or through anything but malice and wanting reasonable probable cause no action would lie (Ashby r, White, Smith, L.C., Vol. 1). As to mallee there was both malice in law and malice in fact. Mallee in law did not mean merely spite, but malicious and corrupt practice (Clarke v« Manaford, Fisheries Dig., Vol. 3, p, 5004), Tho void maliciously in the plaint did not

necessarily import emnity, but any corrupt practice would constitute ’malice. Then as to the damages : To what was the plaintiff entitled ? The special damages spoke for themselves invariably, and the ordinary were recoverable when a right had been infringed, although there might have been no pecuniary IOM.

In reply to a question Mr Nolan said he would not produce the deeds of partnership and dissolution as he had a lien upon them. Mr Kenny said he would then produce secondary evidence. Mr Brassey objected and argued that secondary evidence could not be adduced. After some discussion Mr Kenny said he would call, J. W. Nolan, solicitor, who deposed in answer to Mr Finn. I have a claim for, I think, £l3 10 altogether, 35s an old debt balance contracted by the firm for deed of partnership and dissolution. I have delivered a bill of costs. I have not got the deeds in Court. Mr Kenny: Then you are liable to a penalty of £lO to be recovered as provided by the Act.

Witness : The deed of partnership was to be paid by Davis, and half the cost of the deed of dissolution. Mr Kenny : George Davis stated that Mr Nolan prepared the deed of partnership. There was no special arrangement as to that of the deed of dissolution. Boe and se'f were cast to pay. Mr. Kenny said he would pay the costs. G. L. Greenwood, Clerk of the Court, gave formal evidence as to the case of McKenzie v. Boe in which judgment was confessed in open Court. Also of Boe v. Davis, in which Boe was nonsuited.

At this stage all the witnesses were ordered to leave the Court. Mr Kenny applied to have the notes taken L in that case. b His Worship said he could not allow this F as the notes belonged to the Judge or Magis- | trate before whom they were taken. L Mr Finn called for Samuel Boe, the dej rndant. Mr Brassey objected. Mr Kenny said there could be no objection. In reply to the Bench Mr Finn said Boe had been subpoenaed, and had had Iris expenses paid. Argument ensued at some length, Mr Finn arguing that his reason was that the very ground of the action was fraudulent collusion between Boe and McKenzie. and he did not want Boe to hear what MoKenzle stated. Mr Brassey consented to Mr Boe leaving the Court while Mr McKenzie gave evidence. t Alex. McKenzie said he was a farmer, living near Ormond. I sued defendant in the B.M. Court to recover the sum of £l9 9s. The M note produced is the one. That P.N. was signed by Samuel Boe, not by the firm of Davis and Boe. I cannot recollect the date I got it. I remember when Davis and Boe dissolved partnership. I got the note after that. I was present when 800 signod the note in his own shop. It was after the dissolution. I had another P.N. for the same sum signed by Boe. At the time of the dissolution I had no P.N. for £2O of the firm. This one was given to me instead of the other, as there was no place mentioned on the latter as to the place of payment. It was a P.N. the same as this, and signed by Boe. Mr Nolan told me I should get another one. This one was made exactly the same as the other. I never told 800 that Nolan had said I could not sue on the previous note. I showed the original note to Davis. He knew before t’ e dissolution was running- I summoned Boe a few days after I got it. My object was to tue him, I don’t think I told Boe. I did not ask Boe to confess judgment. Mr Nolan did not ask him to do so. I did not know until the case came on that Boe intended to confess judgment. I presented the note to Davis before sueing Roe, when the latter was present. I asked Davis if he was going to pavlt, and he said “ No.” I presented it for Moment. Nolan was my solicitor. Mr Nolan, Boe, and myself never had a conversation. Mr Boe has paid me this amount. I got the money from Mclntosh j he paid me for it in cash, To Mr Brassey: I presented the P.N. to Davis because I saw that he was to pav all debts. I had in my possession another ]P.N. signed by the firm. I only had two P.N.’s at the time of the dissolution. Davis said it wasn’t his place to pay the P.N. To Mr Finn t The cattle for which the P.N. was given had been purchased long before. Samuel Roe, deposed : On May IGth I was sued by McKenzie for £l9 9s. It might have been in May I signed it. It was after the dissolution I signed it, because it was a private debt I owed McKenzie some months before. It was a debt I owed before I went into partnership with Davis I signed one for this same amount whilst we were in partnership. The reason I gave this P.N. was because Mr Nolan instructed me. I was not

aware Mr Nolan was McKenzie’s solicitor. I was present with McKenzie and Nolan when . it was arranged. This was in Mr Nolan’s office. There was nothing said about a stamp. The other P.N. was signed exactly like this In bills the signatures of both of us were given. When I signed this document he i took it as a guarantee of my faith. He did ’ not say he was going to sue me. McKenzie ► asked me for the money before this, and said he must have the money. He after advice said he would have to sue me. The reason I confessed judgement was because it was a just debt. The bill was only given a few days before. Mr Nolan was my solicitor in the case. It was by Mr Nolan’s advice I confessed judgment on the 16th of May. To Mr Brassey: Had Mr Nolan told mo to defend the case I should have done so. Before the dissolution I spoke to Davis about the P.N. . I sued Davis because of his promise in the dissolution of partnership. The bill in the deed is the very one I sued Davis upon. I asked him several times to giro me a cheque. He always put me off. At the time of the dissolution there wore other bills due to McKenzie. Davis at first made an objection to paying this P.N. to McKenzie, but afterwards did so. Mr Finn: At the time of the dissolution some £260 was owed by the firm to Mr Davis. I might have owed something. Mr Davis had nothing to do with instructing Mr Nolan as to drawing up the deed, but ho hoard it read over before signing it. Edward Paviour stated: I reside at Ormond. I know McKenzie and Boe. The document produced is in my writing. I kept the books for Davis and Roe. I should imagine that the P.N. must have been written on the day of its date. I cannot tell so. I can state that the document was written as an acknoi’-dgment by Roe to McKenzie. There were JBto, but I cannot say which one this is. Mr McKenzie hod two P.N.’s. one for £2O, and one for £l9 9s (the present one). Mr McKenzie held the two. I was asked by Roe to write it. To the best of my knowledge I believe the £2O was substituted for the present one. I cannot speak positively, as I have other things to attend to. George Davis, deposed : I am a butcher residing in Ormond. J. Maynard was present as arbitrator between Roe and myself before the dissolution. The matter of Roe’s F irate P.N. to McKenzie cropped up. I said would not pay it and in Maynards presence ‘Jthe history of ths note was given. My reason for refusing to have anything to do with the note was because I knaw McKenzie said he would make the firm responsible. Maynard said he could’nt see why I should pay it. Roc said if I did not agrfco to pay

the P-N. he would have nothing to do with the dissolution. Maynard then left the room. Roe kept on talking but I said nothing as I was thinking bow the debt would affect mo through the partnership existing. The firm al f this timo’owed me from]£23o!to*£249."Roe was in debt to the firm, and I was afraid T might be further involved. At last I agreed to pay the bill although it was then overdue. At the time of the dissolution I did not know that the bill was insufficiently stamped and although I agreed to pay it at the time, when I afterwards discovered there was only a penny stamp on it I refused to pay it. The heads of the agreement were written out by’ Maynard, and Roe took them into town next day. I told him to take it to Mr Nolan and get the deed made out in accordance with the heads (a copy of these headings as taken by Mr Davis was then read). When the bill was presented to him for payment ho went to Maynard and asked him if the bill for £l9 9s, signed by Samuel Roe, was the £2O bill mentioned in the deed of dissolution of partnership, and Maynard said “No! It was not the bill in the deed.” I was afterwards asked to pay another bill for £l9 9s by McKenzie. The first bill was on yellow paper, and the second on ordinary white paper. McKenzie after presenting the first bill which I refused to pay in consequence of the insufficient stamping, told me he was going to get another one from Roe. McKenzie would then sue him and he would afterwards come on me. Afterwards Roo came to me with McKenzie, who presented me with the second bill. I asked where the first bill was, but received no satisfactory answer. I said I would not pay the bill. McKenzie threatened all sorts of things but at last went away. On the application of Mr Kenny the special damages were at this stage Increased to £6 Us Gd, 30s being added in consequence of the number of special visits to town the plaintiff had to make in connection with the present case. To Mr Brassey : I said to McKenzie I did not know how many more bills might be forth, coming. I had no doubt in my mind as to my liability. Payment was asked for, but. as the bill presented" was for £l9 9s instead of £20,1 refused. I know Mr Scoats of Ormond, but I do not remember having a conversation with him relative to the bill. I know ho didn’t pay his butcher’s bill. Ho camo about some other business. I have told my Counsel that this present Bill in Court was the one intended to be inserted in the deed of dissolution, I knew it was intended that this present bill was to be inserted, but it was put under the headings as a bill of £2O. His Worship : Is the bill for £l9 Os now before the Court identical with the one for £2O mentioned in the deed.

Witness : Yes, your Worship. Mr Kenny said the point was that the bill in itself was a fraudulent and concocted investment. Witness continued: I suppose under the headings an oversight had been made in the deed, the bill being therein described as having been signed by the firm. Mr Davis was complimented for the fair and plain manner in which ho gave his evidence.

Mr Brassey applied for a nonsuit. He was sure that two cases of a similar nature bad never before been heard in the Colony, He admitted that the novelty of the claim was nothing. He reviewed the evidence at length, and said that ns dirty tricks had been imputed, he could only say they were on Davis’s part, Roo was the unfortunate who had been fiarshly treated, certainly not Davis, who had escapeci a debt for which he had become liable. His Worship ’ You had better proceed Mr Brassey.

J. W. Nolan called : I know the parties to this suit. I remember the document produced being handed to me. It has reference to the dissolution. It was brought in by defendant Boe. The deed was drawn up and signed by both parties, after being read over to them. I saw the P.N. in question, aud it was embodied in the deed. Nothing was said about it being a private bill. By Mr. Finn : I do not know that I ever told’Rofl to confess judgment. I saw the bill for £l9 9s with McKenzie, and sued for it on behalf of McKenzie. I may have told Roa that if lie acknowledged the debt, he had better confess judgment. I did not sue on the first pro. note, because it had only Id stamp on it. Wm. H. Scents and J. Maynard also gave evidence, but their testimony was substantially the same as that given by the plaintiff. Mr. Brassey addressed the Bench, and argued that the action could not lie. Mr. Kenny replied, and pointed out again that the bill upon which Davis had been sued was a fabricated instrument. Davis was right in refusing to pay, because another bill might as easily be manufactured as the one in question.

His Worship said the case was clear, and he had no hesitation in saying that there had in no way been collusion between McKenzie and Roe. The question was what injury the plaintiff had sustained. He failed to see that he had suffered any —on the contrary he had escaped a debt for £l9 9s. Mr. Davis had given his evidence in a most straightforward manner. He would give judgment for the defendant with costs.

For continuation of news see 4th page