DISTRICT COURT.

Thames Star, Volume VIII, Issue 2911, 14 June 1878, Page 2

DISTRICT COURT.

YESTERDAY.

(Before ¥. D. Fenton, Esq., District Judge.)

MCMATUS V. BAXTBB. After going to press yesterday the evidence was continued in the above case as follow! :—

Cross-examined by Mr Tole—l cannot tell him how much Mrs McManus owed me when she «rent to law. I know that John McManus made entries in the pass* book. I hare not got the pass-book. Ellen Baxter, sworn, deposed—l am daughter of the last witness. I know Mrs McManus and her daughter. I don't recollect going to Mrs McManus' house and asking for a pass-book. I don't know if she had a pass-book. Whenever I supplied goods I told mamma, and she ente ed •jin a scrap-book first. I don't recollect going to Mrs McManus' house to ask for the pass-book for my mother to make entries in. I don't recollect Miss McManus telling me about some entries her brother had made ii the pass-book. I never received mony from Mrs |McManus. lam sure Ido not recollect my cousin and me going to Mrs McManus' house for a book in 1876.

By Mr Brassey—l was notf afterwards in the shop. Eobt. Baxter, sworn, deposed-—I recollect Mrs McManus gelting goods from my mother, and sometimes I supplied her. When I suppli d them I entered them up at once. I entered up the pass-book about once a fortnight. They had several passbooks, and some of them might have had blotting-paper in. I'll swear my ledger was all posted up before July 76. This is my hand-writing. Between April and June there is no cash payment entered. I remember copying one leaf from a passbook, because young McManus made some wrong entries in a page. I believe, that this is the book (produced.) I did not hear of my mother getting a letter from Mrs McManus about the pass-book, and don't remember writing a letter refusing to give the book. I don't remember using the word " maltreated " in a letter with reference to the pass-book. I think I lumped two sums of £3 end £3 10s together as one payment. By Mr Brassey—l have searched for Mrs McManus' p^ss- book, but have not found it.

Francis O'Dowd, sworn, deposed—l recollect a conversation between Mrs Baxter and myself. I asked her why she did not give up Mrs McManus' pass-book. She said she bad not got it. There was something said about Mrs Manus' boy scribbling in the book.

By Mr Brassey—l didn't want to be troubled with Mrs McManus' business.

Honora McManus, sworn, deposed—l am the plaintiff in this action. I have been dealing with Mrs Baxterfrom '74 to '76. The goods were entered in a passLook—a thick one. The oneprcduced is not the one I wish to get. I have the leaves of one older than the one I have lost. On one occasion my daughter went for goods, and a leaf of the book fell on the counter in Mrs Baxter's shop, and Mrs Baxter told her to leave it so that it might be copied. > Subsequently Ellen Baxter and her. cousin came for* the book to -have 'some- paymentsentered, which; I gave^her together with £1, telling her at the same time all my receipts were in it, and when marked to return.it tack. As she did not return it, I Bent for it, and she srid that her son was away, and she did not want any one else's writing in it. I waited till the next month's payment was due, and then p-id the girl 10s, and s id she would get the other 10s when the book was l etuined. Mra Baxter sent for the 10s, but did not return the book, and I said I would not pay any s more till I got back my book. I wrote her a note upbraiding her for her treachery, and her son replied that the book had been maltreated, and refused to return it.

Honora McManus, junr., sworn, deposed—l am the daughter of the last witness. I recollect about 22nd August, '76, my mother writing a letter t^Mrs Baxter, which I delivered. I knew the contents of it. Mrs B xter threw it in my face, and said she would not read it. I left it on the counter. I told her that ma said she would gire her no more, money till she returned the book. She stamped her foot md said, " Wh*-1 does your na menu ? " I saw

the reply that Mrs Baxter sent. I remember Nelly Baxter coming up for the pass-book and for a £1 note. I met her at the door, and she said she wanted tbe £1 note and the book, as she wanted to enter two payments. I gave her the book, which was a large biack-covered pass-book, interleaved with pink blotting Eaper. The one produced is not the ook. [Witness here corroborated her mother's evidence re the pass-book—as to size, &c, &c] By Mr Brassey—This leaf (produced) is cut of the pass-book. We have had three. My mother's first dealings were in 1874. She copied the first pass book into the second. The second book was nearly| written through. My brother made one entry. I will swear that at last Court day I did not say that the book might have been returned. Mr Tole then cross-examined the witness to some length. Honora McManus, recalled, deposed— I wrote a note to Mrs Baxter, and a reply came from Robert Baxter refusing to give up the book, as it had been maltreated. I wrote back asking what he meant by maltreated, and subsequently made personal application for the book. Ellen Baxter was present, and I gave her half-a-sovereign, and told her that when her mother returned the book she would get ■the other 10s. She said her mother was in Auckland, but when she returned I would have the book. I did not get it, however, but was sent this little book instead of my own. That was the first time I had ever seen this book. I showed it to Mr Mcllhone, and told him that Mrs Baxter had kept mine and gave me this. If she entered all my payments in the book I wish to recover, they would amount to about £100. I have seen the cash payments she has credited me with, but I remember several "■ she has not credited me with. I paid on the average £4 or £5 per month from July 1874 to July 1875. I then made over my salary to Mr Bees for three months, and during that time I had goods. I think my real indebtedness to Mrs Baxter would be £6 or £7. During four months I was in Auckland the house was empty, and I find that I have been charged as if the whole of my family were on the Thames during these four months. Only one girl was down here at the time. In consequence of Mrs Baxter spreading about that I would not pay her, Mrs O'Dowd took three children away from my school. On the day I got the £100. from the Government, Mrs Baxter asked me to lend her £20, as she had bailiffs in the house. I told her I could not, and she asked me for £12. I said I could not do that, as I owed a great deal of money. When the judgment was given against me for £40, Mrs Baxter said she would take £20, but. I said I would pay the whole amount or nothing. If I had the book I would have applied for a re-hearing, but not before Capt. Eraser. When judgment was given against me, Capt. Eraser said that I knew what I would get if I did not pay, and he afterwards said I was liying on these people. The Court here adjourn I till 7.10 p.m., and on resuming at that hour Mr Brassey commenced his cross-examination of .Mrs McManus, as follows: I think that account is all wrong, as I am sure I don't owe her more than £7, if as much. I never saw the pass-book (produced) until months after I ceased dealing with defendant. That is not the book in which my son made the entries. I have paid £6 10s in two sums when we first commenced dealiu<vwhen I was at the Shellback school, i never complained of not be'Qg credited, as I trusted to Mrs Baxter's honor. I know the book was full of rf 3eipts. She credited me'for £66 in four ye-rs, and I paid her nearly as much as that in one year. I paid her four or five pounds per month regularly, but did not look to see if .she credited me with such individual payments till we went to law in 1876. The majority of these credits are certainly incorrect. I have some of the leaves of our first pass-book,-where coppied into the last one. I produced these leaves at the B.M. Court, but Captain Fraser would not take any evidence on the matter. In July '75 I had wholesale goods from Mr Pulleine amounting to £5 or £6. I never recollect receiving a note from Miss Scotter. How could I know what Mrs Baxter wanted money from me for a loan ? I hare no book of accounts. I remember showing Mr Gudgeon the summons and the account, but I did not say that I owed her £40 and she had only sued me for £36. "

By Mr Tole—l have casually looked through the book. I know about what I paid Mrs Baxter from the pay? menls I paid her; and I know that the book contained about £100 worth of receipts. It must have done so. The lost -book commenced in 1874, and the little book commenced in January 1876. I showed this little book (produced) to Mr Mcllhone and told him that it was not mine, and I also told Mrs O'Dowd; I also told the little boy that brought the book, and told his mother.

John E. Dodd, sworn, deposed—l am a solicitor practising here, and was counsel for Mrs McManus at the case in the B.M. Court, Baxter v. McManus. I heard Mrs Baxter's evidence, and saw a pass-book bound in black in her hand. She swore that there was only one book, and that that produced was the one. She swore she bad never got a book from Mrs McManus.

By Mr Brassey—Mrs Baxter did not say that that was the only book between them. ■..":..

Edward McManus, sworn* deposed—l am a son of the plaintiff, and am aware of the subject of this action. I know the pass-book. It was a black one interleaved with pink blotting paper, and about -|th of an inch thick. It contained receipt:: as well as entries for the goods supplied. I was at home when Mrs Baxter's daughter cane for the book, and u^w my sister lake it out to Jfelly Baxter, and th; j return without it. I don't exactly know the date, but distinctly remember the circumstance. I sent my sister for the book, and remember my mother writijg a letter to Mrs Baxter for it. I saw a letter in reply from Bobert Baxter, which was to the effect that he would not return the pass-book in question because it was maltreated. I have seen the small pass-book before, and saw it first after my mother sent the letter. I will Bwear that this is not the missing passbook. I cannot tell the amount of receipts in the book.

By Mr Brassey— -I cannot tell the date, but I think the letters were written about July, 1875 ; but I am by no means certain. I was working at Shortland at this time. We, that is my mother and I, hare talked over this case. I saw the small pass-book shortly after the,letter was written. I cannot say if my sister had any money with her when she went down with the pass-book, and I did not hear

of any mention of £1 in connection with the pass-book. Be-examined by Mr Tole—l saw the little pass-book after my mother wrote for the big ono. John McManus, sworn, gave coivoborative evidence.

This concluded the case for the plaintiff. Mr Brassey said that a very simple thing had occurred which would cause the plaintiff to be non-suited, as there was no evidence of a demand having be^n made to the defendant for payment. Mr Tole said that the triviality of the objection astonished him, as it had been sworn over and over again that a demr-id had been made for the book.

His Honor disallowed the objection. William F.'oser, sworn, deposed—l am R.M. for the district. I recollect the Bth February, when the girl McManus was examined in the case Baxter v. McManus. I recollect her swearing that she could not swear that- the pass-book had been returned. I heard in the course of conversation during the case that £20 was offered to settle the case. Mr Dodd produced a black-covered pass-book, but he would not either give it to the Bench or to the counsel for defendant.

jjy Mr Tole—l took notes as full as I thought bore on the case in question. Mr Tole said that a circumstance had come to his hearing which he was sorry to mention, but in the interest of his client he would have to do it. lie wou'd ask Captain Fraser if he bad been listening at the door while the evidence was being taken. Captain Fraser said he was not near the door at the Lime: He had been in the Sub-Inspector's room all the evening with Major Zeddell, Mr Brllen, Mr Allom and other gentlemen. His Honor said Mr Tole would have to bring great proof that Captain Fraser was listening, and unless he, could prove it incontrovertibly he would have to let the matter drop. Mr Tole: I will let it drop then. Examination continued —I will not swear that the black book was in Mrs Baxter's hand in Court, but J will swear that it Was not ia Mrs Baxter's hand while in the box. I recollect the issuing the judgment summons. I did not say to-day that I would soon settle the case if I had it. I have been a magistrate here- for 10 years, and have given 20,000 decisions, and I believe the one I gave in this case to be a righteous one. (Applause.) His Honor said if that occurred again he would have to clear the Court.

Thomas Wayth Gudgeon, sworn, deposed—l am an auctioneer residing in Grahamstown. I recollect Mrs McManus speaking to me about a summons she had received from Mrs Baxter. She said she had been summoned for a certain amount, and that to show how careless the" were with the books said they had not charged her enough for the last three or four weeks. She did not lead me to be'ieve that she had done Mrs Baxter. ,

By Mr Tole—Mrs McManus was finding fault with the accounts, I came into Court Lr a minute when Captain Fraser was in the box, to see how the case was getting on. His Honor said he would have to erase this witness's evidence, a" he had been listening. , Robert Baxter, re-called, deposed—The entries in this book were not copied from any other pass-book. We have had passbooks in our Store similar to that described by Mrs McManus, but none larger than the one produced. It is quite possible that the book alleged to be lost had red blotting paper in it. By Mr Tole—One leaf was toi-a out of the book (produced). The loose leaves may have been part of the other passbook. I'll swear positively I never transferred any entries except the one leaf. This concluded the case for the defendant.

• Mr Brassey addressed the Court pointing out the absurdity of the case, and argued that there was not the slightest evidence to show wrongful conversion, as, notwithstanding the voluminous evidence of the plaintiff, it simply amounted to nothing. He commented on the evidence, and said that it was not at all likely that Mrs Baxter was a woman who would lend herself to such a transaction. As to Mrs McManus he could believe her capable of saying anything. He then spoke of the incredibility of the evidence^ of the witnesses for the plaintiff, and in conclusion said that the evidence certainly did not entitle the plaintiff to a verdict. . . Mr Tole replied at length, and deprecated the language used by the counsel for defendant with reference to plaintiff's witnesses; He then spoko of the very unsatisfactory nature of Mrs and Miss Baxter's evidence, and went into the evidence of the plaintiff. He then addressed himself to the question of damages, and quoted several authorities. His Honor said he had listened with great attention to the two learned gentlemen, and had hoped that they Would open something by which he could make j tne evidence agree. This he regretted had not been done, and therefore he would have to consider what evidence was most to be believed. He preferred that of the Baxter's side. His Honor then summed up the evidence, and gave judgment for the defendant, and costs, £7 ss.

The Court adjourned at 12.30 this morning, and duriDg the hearing of the caae up to the time judgment was given, the Court was densely crowded with an interested audience.