DISTRICT COURT.

Wairarapa Daily Times, Volume 3, Issue 857, 27 August 1881, Page 2

DISTRICT COURT.

MASTJBRTQN, FRIDAY, [Before His Honor .Judge Sh|W.] E, V. Smith v, Executors of the late \}Y- fl-astweir. Claim 136' Bs| : and interest. . Mr Bunny for plaintiff; Mr gpard for defendants. ' ' " A jury, consisting, of Mgssrs J. Vile (foreman), E. Arnold, J, Niool, and G. W. Schroder, was sworn in to try the case. One juror-W. F. Yorke-for nonattendance, was fined 40s. Mr Beard put in an amended plea to n}esf ji verbal qhjpfitjol) which Mr Bunny raised wlieii' the cijsq qpened a fortnight ago.: " ■' Mv Bunny objected tp any alteration of the pleas, but His Honor decided to admit it, as it was not a material one, and was only made to avoid | duplicity in the defence. ■ " , Mr Bunny submitted also that as the pleas for the defence were ofauaffirmauy? oljaraQtM tlje 'onusprobandi' rested wltli'the def^dant,"' ' 'Tije'Court ruled that the: %st jjlea trayerseij the.plaintiffs claim, and thereBunijy' ljave to estahlish it. * '

R, V. Smith deposed tljaj; he wag a brewer, and was the plaintiff iirtl]e action, The promissory note produced, drawn by R. W. Morphy on the 7th of October, 1876, amount 136 8s Bd, endorsed by W. R. Hastwell, was the one ou whioh lje sued, He supplied beer to Mr Mprpljy, whq ftttlje tjnja kept.the, Arms ig Greytown, apd fqok' the note in payment qf the same!- He told Mr Morpby that he could not accept the hill unto it was endorsed by a good mark, and accordingly Mr Morphy ob. tained Mr HaßtwelTs endorsement to it. When the bill matured it was dishonored, and witnoss informed Mr Hastwell of the dishonor, who laughed and said the bill

would be all riglit it over for a, time till Morphy could find the money.; Subsequently ,? Mr Morphy ( became a bankrupt, and witness proved against his Estate for the; bill. He considered then that ie; could not claim agauigt MriHast' well.; He .got no - dividend in"Morpby's -estate) ''Since Mr Hastwell's, death, lie applied to his exocutors; for payment of the bill. They said, "produce the bill and we will pay it if it is right." He could not at the time produce it, because Messrs Buller and Lewis impounled it for a claim they had against him for legal charges which witness; not till after the lapse of eigkteehjnbnths that Messrs Buller and Lewis, on witness threatening to take proceedings against them, gave up the bill. He admitted the bulk of the set-off claimed by defendant, but had a set-off against their set-oft in' the shape of improvements, which under a lease from Mr Hastwell he was authorised to deduct from the rent he had to pay. ; In answer to Mr Beard, witness could not lie positive as to the exact words which, the executors of Mr Hastwell used.; The impression on' his mind was that they would pay the bill if it was'right. He commenced dealing with Mr' Morphy on July 4, 1876. : Would not swear that he took the' bill iu the first instance without an endorsement, but was certain that he did not send it to Wellington, and on its being returned taking it back to Morphy for endorsement, He entered into a lease with Mr Hastwell in April, 187G, but transacted the business in connection with it through Mr Lucas, who was; at the time Mr Hast, well's agent, 1 ■ ' 1 Mr Beard then attempted to show from Mr Smith's books that the bill on which the claim was founded was included in another bill given by Morphy at a subsequent date. Mr Buiiny objected that such a line of defence was a surprise one, and should not be admitted. : The Court pointed out that as Mr Smith held that Mr Beard had found a "mare's nest" in the books; the case might proceed. Mr Beard then produced a copy of Mr R. V. Smith's proof of debt against Morphy, in which the bill was not included. ,

Mr R, Y, Smith said the omission was an oversight. He bad intended including it. Tho Coiu't ruled that tho neglect to prove did not bar reoovery. Witness continued—ln paying rent to Mr Hastwell did not deduct the amount of the bill. He did not press Morphy because ha did not want to burst him up, and lie did not desire to press Mr Hastwell for the money. He admitted the set oft' of £7B excepting £1 10s charged for a period subsequent to the expiration of his lease wheu he had given up possesion. In answer to Mr Bunny the witness said that the lease produced was signed by Mr Lucas on behalf of Mr Hastwell and under it, lie had the brewery for 5 years with a purchasing plause. There was an endorsement on it by which

certain improvements to the premises were to be ijjade by Mr Hastwell, and any further improvments to be njade by witness-were to be deducted from the rent, Witness claimed £'3o for improvements made under this endorsement and shewed that Mr was personally cognizant of some of tlienV. Ife produced receipts shewing amounts that lie had paid for work on the premises. The Executors had offered to »ive a receipt for rent if he abandoned his claim for improvements.

' In answer to Mr Beard witness could not say whether he mentioned the improvements to Mr Cox prior to Mr Hastwell's death, E, Green was then called, and askad for his expenses. The Court informed him that he was not obliged to attend from Carterton unless his expenses were tendered to him.

The witness deposed to building a cellar for Mr Smith at a cost of £l6 "lOa Mr IjUatwell foltj witness tljat If Mr Smith did riot buy 1 the place he' would see him paid. Mr Smith paid for ihe work done.

In answer to Mr Beard, the reason why Mr Eastirell 'apojt'q to witness was because he (the witness) said Smith was making a 'lot 1 of improvements. '' In answer to tjio Court) thought Smith sßefjt tlje improvements-perhaps more.

John Tully desposed that be was a defendant in the present action us an executor of the late \V, R. Hastwell, Had held several conversations with Smith respecting the promissory notes, The excutors promised to pay to the promissory note if it Were produced, but were at one tiij|p of the impression that it was a myth. An appointment hpd bppfj mado, when tor Sii>itli' Vis 'to produce' tfre note, but he was ill at tije 'time/and it couici not be kppt. He l)a<j bpj)i] ppepar'pd fq pay the bill but learning subsequently that it was an accomodation bill from Hastwell to Smith ho declined to meet it, In answer to Mr Beard: He had not

valued the improvements, fn apgjyer to the Qourt-Had offered to refgr the' iWtpr to arbitration, but Mr Smith would not accept the afternative.' Mr Beard for the defence submitted that the promissory note was endorsed fop }lr Smith not for Mr Morphy, He waulso tq ||ioi7 tjiat t|ifl claim for'improvements was excesslila.' "*

R. W, Morphy, called' fnf the defence, asked for his expenses, as he had come 91 miles, froth Eielding. The Court informed him that he could recover his expense's froip IJjp party which had subpffined him, 'His Honor also stated that a witness af a distance was not bound to obey it subpoena unless his expenses wfjre tendered. ' ' Witness deposed' tliat l]e gavb Smith a promissory note for £36 83 iii October 187?. After Smith had had the note son)e days ii) his possession he asked witness to get jt fje gajd he had asked Mr Hastvyell tyo many favors already, and Mr Smith took the note to Mr Hastwell who endorsed it for him, To the Court, Mr Hastwell had told him that he had endorsed the note thinking it was for his (Murphy's) benefit, In answer to Mr Beard: Did not remember asking Hastwell to endorse the note, . He had told Hastwell that the bill would require- an endorsement, an( j hgfl been requested to ask him ((HaatTell) to endorse it, and had refused to do so. Had heard of the bill being dishonored. Mr Hastwell had told him ho had endorsed it for his accommodation, and would not have done it if he known it was for Smith.

To the Court; Did not know what tt|ada Ijhatwpll altar his opinion as to whom lie indorsed the bjll for. Smith kept possession of the bill till it was endorasd. To Mr Bunny , Mr EJastwell was under the impression that the bill was for che accoipqdi}tiot| of witness, as it was to a certain extent. Qn previgus occasions Haslwell had endorsed bills for witness; did not remember telllin? Smith to go to Hastwell for'the endoisement, Hastwell had kept witness in the hotel by backing him. Afterwards Jfr Nathan had backed him; When he became bankrupt, Mr Snjith had opposed and prevented his discharge, Had given his bills always without endorsement. To the Court: I did give another promissory note to Mr Smith in January for £97,0r about that sum.' I did not get that bjll endorses! by Nathan; Mr Bunuy; Now, Mr Morphy, I wish

you to be oarefal.in answering, thiiaues*' tion, as proceedings will be taken "against you if you commit yourself. Can you swear that Nathan or his agent did not Witness: It is a long time I would not swear it. , The Court; Why you just did mar itV-. If Mr Smith has sworn that you did get v „ it endorsed oould you oontradiot him on oath] Witness—l would'not swear.to it. • . The Court tlien adjourned till 2 o'clock. , On the Court resuming, ■ / ; J. Baillio deposed, was a 1 contractor/ at. Greytown, v H 9 had valued tho improvements at the brewery, He thought £l6 was as much as the cellar was worth and that would be a good price for it. The lean-to,was worth £lB. / ■ Mr Cox deposed he bad been Mr Has MM well's business agent, and Mr Smith mS not applied to him for a settlement of the rent. _He had not found Mr Hastwell very dilatory in business matters... , t Mr Beard then addressed the juiy for the defence. With regard to the promissory note, one would think to listen to Mr Smith that he was' an inocflnt lamb—a perfect heathen Chinee—with regard to promissory note's,' But he submitted to the jury, Mr Smith; liad now resided in Masterton some time • and. they .could well determine whether he was so innocent in these matters. The note was given to and absolutely accepted by Mr Smith. The latter took it to Mr Hastwell, and it was endorsed solely for the accomodation of Mr Smith.

Hia Honsr explained to the jury, that if Mr Smith' took it to Mr Hastwell and asked him to endorse it for Morphy, it would bo for the benefit of Morphy not for Smith., A lapse of four years had occurred before tho note was mentioned by iSmith, who brought it forward after Mr Hastwell's. death, 'vhen that gentlemen could not contradict anything Mr Smith might say with .regard to the note. : i Mr Beard defended the weakpoiuts in the Wit- , ness, Morphy's evidence, and submitted to the jury that ' they should weigh well the surrounding circumstances of the case in arriving at a conclusion. With regard to the rent it was all admitted by plaintiff except a trifling amount, but the plaintiff' claimed to be entitled to deduct from the rent the amount he had spent in improve* ments. He held such was not the intention of the agreement to the extent Mr Smith had none. He might spend £IOOO in fountains for his amusement, or gravelling his yard, and deduct that from the, rent. [His Honor pointed out that the rent for the whole term amounted to and that it would be difficult to deduflt from this the sum, mentioned by Mr Beard. Mr Beard amended his simile to £loo.] It was hardly to be credited that - a Rood business man like Mr Smith would allow £IOO to lie quietly by and yet go on paying his rent as he. had done. Mr Beard denied the permanent value of the improvements and that they'were authorized by the agreement, With regard to promissory nofe, he thought' when t|)e ,'j jury considered the whole oirournstancaq they would come to the conclusion that the endorsement was for the lion of Smith and not for Morphy. Mr Bqnny rejjljed to t))e argqii)ents of Mr Beard, wd jiivjted the jury to gonjpare the evidence of Smjth and that of Morphy, and submitted that whoever qb: tained the endorsement from Mr hastwell, the latter was under the impresaiqi] he was doit)« it fop. Morphy, as the latter had said as much in h'S evidence, j mere fact of Smith sleeping on hiq rights, r on which so much stress had been placod by _ the other side, cot)ld nqt prejudice his right to recover. But 4r Smith had repeatedly applied for the amount to Mr Hastwsll as well qs to J|r Morphy, The-executors themselves said they would pay it when produced It In • order, but through Mr Smith, from the causes explained to the jury, not being able to produce it at once, they had regarded it as a myth, and then to avoid paying it when when it was produced said it was an accommodation to Smith. With regard to the weight t'J bfi Jjjyeii (q Morphy's fjvidenoe, he remjndei the jur? that'Mr S/nitji hid piWsnt'&H l him guinihf his discharge frdin and t'hto; to put it mildly, tfould not tend to make him friendly towards him in his evidence. With regard to the set' of, there could be no doubt f-jmjth was fo be paid for pj improvements he effected/'and' Mr Baillie's ''testimony did not shake tjie amount of the claim to any great extent, if all. Tj|e|) ly'jtj} fogar(|"to paying rent \ylule pa Smith h|(d nqt n]uch opj,ioq, Mr Oox,: • for Mr simply drew iipoq hint for the amount through % banlj, an<j '• while Mr Hastwell was aljve the dr«ftf| were honored, but when' he died Mr Smith refused to pay any more till & > settlement was come to. He would ask the jury to say that his client was entitled to the fulj ftijipijnt of his claim on the bill, with iiisls.":' ' ' i ;

His Hdhor aaid the case was one which could Ipivg bepn cjealt with'easily'by' R_M. Q»urt, bqt opposed the p"Krtie!| wished to take th# responsibility off hi? shoulders and place it on those of a jury, He created Borne amusement by his description of Mr Smith's book-keeping, and after a clear qnd careful summing up, lgfj the issues in t|)e qf the ium recleared that liowotfflr'venerable the present Court building might be, it was hardly suitable for the proper administration of justice, and be ragged having to tiim them 'nil <iqt vf|)il6 the jiity ?W verdiot. ' ' . 1 " • !-•

After about half-an-hour the Court was re-opened, and the jury g'ayetlvair verdict to the following effect" That the late v, It. ijastwell did endorse the promissory note j thaf the qajd qote waq fop the the accomodation of Morphy. The "rent as stated, was due, by plaintiff; that th'e'y allowed tl|eaet 0$ and there wambakntft duo ,, t ,° %t 'ijo }ntqrea| could be oi| tl]e bill. His Honor therefore entered judgment for plaintiff for amount claimed, and com-' fntelligibleajj W