RESIDENT MAGISTRATE'S COURT.

Temuka Leader, Issue 1162, 8 April 1884, Page 3

RESIDENT MAGISTRATE'S COURT.

Temuka—Monday, April 7, 1884,

[Before J. Beswick, Esq., R.M.] CIVIL CASES. J, S. Hayes v. J. W. White —Claim £4 17s 6d, as witness’ expenses alloted to him in the case Campbell v. Grant. Dr Hayes, on being sworn, deposed that he was the plaintiff, and ho brought the case to recover £4 17s 6d, the amount of expenses allowed to him as a witness in the cases Campbell v. Grant, The cases were fried in the Temuka Court and the Timaru District Court. The expenses allowed him by the Court were, in the Resident Magistrate’s Court one day and in the District Court three days. That was a guinea for each day and 13s 6d for expenses into Timaru. That was the amount allowed him by the Court. This money was paid into Court and taken up by the defendant in this action. The money was paid in by the plaintiff’s (Campbell’s) solicitor, as the case wont against him with costs. He had applied to the defendant in that case (Grant) for the money, and he informed him that Mr White had got all the expenses. He was subpoenaed by Mr White’s clerk to appear for Grant. Grant was the defendant in that case. Grant informed him that Mr White had got all the witnesses’ fees. [The witness said he would read the letter he had received from Mr Graat, if Mr White did not object. Mr White said he did not object and the letter was read by His Worship.] Witness continued : I said that I made application to Mr Grant for the payment of this claim. I also made application to Mr White in a letter produced. (Read by His Worship). The defendant (Mr White) refused to pay the claim, His Worship would see that from the letter produced. (Letter read ly His Worship.) Mr White said he did not dispute receiving £4 16s, but he had credited the amount to his client, Mr Grant. Witness continued : The defendant (Mr White) took all the witnesses’ fees and paid himself with the amount. His Worship would see that thera was so much money paid into Court by the plaintiff as witnesses’ fees, and this money Mr White took and paid himself v. h. His Worship: Do I underhand that Grant refused to pay you 1 Dr Hayes : Mr Grant told me that Mr White had taken up all the money paid into Court, I consider that these fees were paid into Court for a specific purpose, to pay the witnesses, and that Mr White had no right to take that money up, any more than any other person; J. W. White, the defendant, was then sworn. He was acting in that Court in a case brought by Dr. Campbell against Grant, and Campbell was unsuccessful. He was. nonsuited with costs of Court, witnesses expenses, etc., amounting to .£6 8s 6d, and a guinea was allowed to Grant as Dr. Hayes’ fee as a witness. Dr. Campbell not being satisfied brought the case against Grant on at the District Court, Timaru, where judgment again went against him, Grant being once more successful. Costs went against Campbell the amount being £25 or £2B odd. £3 3s, and 12s as mileage from Temuka was allowed Dr. Hayes. The total costs allowed against Campbell were credited to Grant, and included the usual Court cosls witnesses’ and solicitor’s fees, etc. £6 8s 6d was allowed to Grant immediately on receipt of it, and the account was sent to Grant. He could not say when the first case came on. (Witness here referred to the accounts). The first case came on in January 1883. The case came on on January 291 h and concluded the same day. At the conclusion of the case there was a balance due to the witness of £2 8s 4d. The second case against Grant commenced on Feburary 20tb, and on the 13th March he received £24 4s from Mr Hamersley as the costs paid by Dr, Campbell. There was still a balance due to him by Mr Grant of £8 8s-

In reply to Dr Hayes the witness said that all Court costs paid into Court were received by the solicitor on his client's

account. Dr Hayes : You admit that the expenses are allowed to the party. Then they are not allowed to the witnesses ? Witness : I say that expenses are allowed to witnesses; but at the same time the Court does not care_ whether the witnesses are allowed their expenses or not. The Clerk does not pay anything to the witnesses, (Mr White here quoted authorities in support of his argument that it was Mr Grant that ought to have been sued, Dr Hayes : Don’t you think it strange that witnesses should be summoned from long distances to give evidence and then have to go in for a sort of scramble to get their expenses ? Witness : Well I don’t know whether say opinion is very valuable, but a witness need not attend if the money for expenses is not given with the subpoena ; and •when in Court he need not give evidence unless his fee is paid. Dr Hayes : Don’t you think it is very wrong, if a man is not aware of that sort of thing that he should be chiselled out of his just earnings 1 Witness: I think it very wrong that any man should be chiselled out of any money he earns or out of anything belonging to him. Dr Hayes : Now, Mr White, is it not the custom for respectable lawyers to pay over to witnesses all expenses immediately after the case ] Witness : Certainly not; it ' i not the custom. . . Dr Hayes : Don’t you think it hard that a man should give four days of his time to pay your expenses 1 Witness: That is a witness’ own fault. He need not give evidence unless he is paid his expenses ; and if he does give his evidence and is not paid he has his remedy against the person who subpoenaed him. Dr Hayes: And so you consider that you have a perfect right to take this money ? His Worship : What I understand you to say is that you (as the agent) have a right to take all the money paid into Court as costs and credit the amount to the party for whom you are acting. Mr White : And a solicitor can refuse to give it up. His Worship : I think I shall have to make some arrangement whereby the witnesses’ expenses are paid by the Clerk of the Court. I have had complaints made to me before this by witnesses who had come from long distances and who said that they could not get their expenses. I have hitherto always referred them to 4he person who secured their attendance.

Ur Hayes submitted that when the money was allowed as witnesses’ expenses, no one had a right to appropriate it for any other purpose Ill’s Worship said it was a question of practice. The witness always had his remedy against the person that subpoenaed him, but that party might be no good. When the witnesses’ costs were given against the person losing the case there was the obvious conclusion that the witnesses should be paid. Dr Hayes submitted it was an immense hardship that because a man was not up in legal procedure, or he might say legal chicanery, he should be done out of his rights. His Worship did not think he should call it chicanery. Dr Hayes ; A solicitor has no preferential claim on the amount allowed for expenses. Why should I not the money I have earned? I call it misappropriation. It is money diverted from its proper purpose. I will pnn L out how the practice might lead to a monstrous abuse. We will suppose a solicitor had a client, who was not worth anything. He might summon a lot of witness so that if be won the case he could grab all thei i costs to pay himself. I thmk_ your Worship will see that the practice is open to gross abuse. Mr White then addressed the Bench. He said he was afraid the case was brought more for the purpose of annoying him than for any other reason. There was no reason why he should have been brought there that day. It was the first time a cate of the kind had been brought on in the colony, and he had not heard of a case of the kind in the Old Country for many years. In receiving the money he was merely acting as the agent of his client, and he was responsible to no other person. He would point out that it would never do for a lawyer to have to pay all the witnesses’ expensn. In some cases there were 20, 30, and even 80 witnesses. He instanced the fire cases. Look at the amount of book-keeping, stamps, cheques, etc., it would involve. If an action of this kind could be upheld, he was liable in thousands of cac?s, as during the 16 years he had been practising down here he had had the charge of some thousands of cases. It was a matter affecting not only him, but the public and every solicitor in the colony. It would perhaps have been better for him to have sent a cheque to Dr Hayes for the amount, as he had to devote time to it which he could have better employed elsewhere, but he defended the case on principle.. Of course, it suited Dr Hayes very well to use such terms as chiselling, chicanery, etc. (Dr Hayes : They were in suppositious cases. Mr White ; It would have been better taste if you had made no allusion to them.) Dr Hayes had said that a very great hardship would be inflicted on witnesses by the custom. How he did not think any hardship need be inflicted on witnesses. It was pretty well known that witnesses need not give evidence if they were net paid. Why had not Grant been tued ? There wns nothing to show that ha was not abb; u pay. Dr Hayes knew that, butstib he brought the case against him (Mr W.dte) who was only the agent. He thought it would have been better taste if Dr Hayes had brought the case on at the Timaru Court, where the greater part of the ameunt sued forbad been allowed. Only one guinea of the sum sued for had been paid into the Temuka Court. It was evident that £6 8s 4d was paid into Court in Temuka and that Grant was indebted to him (Mr White), and it was certain if Mr Grant had not received the amount in cash he had in account, and he (Mr White) was liable to no one else. He would go further than that. Supposing Grant had given him money to pay Dr Hayes, and he(Mr White) did net promise Dr Hayes that he would pay him, Dr Hayes would have n® case against him. He (Mr White) would be liable to Mr Grant for the amount, but not to Dr Hayes, as he would have made no agreement with him. After quoting from Roscoe on Evidence, as to the liability of a solicitor to pay witnesses expenses, and also Baron Pollock, he said them was no special order of the Court that each witness should be paid his expenses. If the records of the Court were turned up he did not think that it would be found that it was ordered that Dr Hayea should be paid so much, and somebody e!*S so much, in fact he did not think that the Court had any power to make such order. His Worship was of opinion that it had, and looked up authorities, after which he said he was still of opinion that the Court cculd make an order. Mr White said if there was a guinea paid to the Clerk of the Court for Dr Hayes and he look it up he would perhaps be liable for that amount. He quoted a case (Robins ▼. Bridges) to show that it was a client who was liable and not the solicitor, and if Grant had not paid Dr Hayes he was still liable. There was- a great principle involved and U would affect many cases past and future.

Dr Hayes said he had not many remarks lo make, but before he commenced he wished to disclaim any animus in his references to Mr White. He was a friend of Mr White, but he did not allow even his friends to take money which he believed belonged to him. (Dr Hayes quoted authorities in support of the position he had taken up). Most of the authorities Mr White had quoted in favor of his view of the case went simply to show that he was an agent and was not liable to pay witnesses out of his own pocket. That was altogether beside the question. He never held that. He only held that when money was paid into Court for the specific purpose of paying the witnesses, Mr White had no right to to divert that money for any other purpose, and leave him (Dr Hayes) as a witness, to sue or get the money as best be could. After further quotations in support, Dr Hayes went on to say that bp held that the lien a solicitor held was only over the expenses allowed to his client, and not over the expenses of that client’s witnesses. The expenses were not paid over to the witnesses, and he should like to know if money was paid to the Clerk of the Court for witnesses .expenses and he paid the money to the solicitor pf the party gaining the case whether the Clerk would not be liable to the witnesses. He quite agreed with Mr White that there was a very large principle involved. If a man was to go and spend his time at wreat inconvenience to himself jn giving evidence, and the solicitor was to appropriate what he earned—*

Mr White said that Mr Grant had his account rendered and had made no objection. Dr Hayea ; Of course Grant would not object. He would not hare objected if he (Dr Hayes) had had £SO allowed him. He did not wish to rely entirely on legal points, although he held he had shown good cause, but he would ask His Worship to dacide the case in equity and good conscience, There was a great principle involved. None of the other witnesses had to the best of his belief received a single penny, and it was a disgrace' after the money had been paid for such purpose. Mr White said he that Dr Hayes was wrong. He believed Mr Grant had paid most of the witnesses.

L)r Hayes said if he had it must have bee a very recently. His Worship was not sorry that the case had been brought on, because he had had complaints made by witnesses coming from long distances to give evidence and who had not been paid. He knew in some places that the amounts were paid by the solicitors. He did not know how it was done here. In this case he would not decide at once but would confer with his brother Magistrates. In his own opinion he thought there was a hardship to the witnesses. After a few more remarks by the plaintiff and defendant His Worship said he would reserve his decision. All the other cases set down for hearing having been settled out of Court, the Court then rose.