DISTRICT COURT.

Wairarapa Daily Times, Volume 4, Issue 1215, 27 October 1882, Page 2

DISTRICT COURT.

! THIS DAY.

(Before His Honour JuoueHabdoabile.) A. R Bunny v G, and E. Chamberlain —Claim, £6113s 7d. Judgment by consent for £49 Is 7d with costs, . W. G, Beard vC. H. Zabel—Costa, m lis 2d, Mr Bunny appeared for the plaintiff, and Mr E, Shaw, instructed by Mr Sandilands, for the defendant, The following jury was empanolled : 'J. Mace, J.Nicol, T. Osborne, andF, T. Redman; 1 (foreman). Mr Bunny applied for an adjournment till this afternoon to secure the presence of a .material witness,

MrE, Shaw objected;that the witness ought to be present, Mr Bunny in opening the oase, said the first plea stated that authority had not been given to his client to act for the defendant. The second and third pleas questioned the : skilk and forethought of the plaintiff in giving advice, and he submitted that these two plena were not pleadable, as negligence could not be sustained as a defence, but must be brought forward as a separate aotion. Mr E. Shaw submitted that negligence was a pure matter of fact to be determined by the; jury. The Court ruled against Mr Bunny on the point raised, 1 Mr Bunny said.that it would then be for the defendant to prove that there had been a want of care on the part of the plaintiff. ■•■,.•.. W; G. Beard, plaintiff.in the- action, deposed as follows :-I am a Solicitor of the Supreme Court. At the end of July 1880, the defendant consulted me respecting a letter whioh he had. received from Messra Travers & Son, olaimingpossession of seotion 148, Taratahi plain. After conferring with him on the matter I l.ftffviSed hlin to tender his rent which was ! in arrear to Messrs Travers & Son. He paid.me 130, the amount of rent in arrear riiider the lease, I forwarded a cheque for this amount to Travers & Son. The cheque was returned', and Icommunlcated with defendant The lease was dated 1873, and was from Samuel Page, through his Attorney, 0. J. Pharazyn, to Mr Zabel; I then told him that as Travers & Son offered to give every information in the matter it would be better for me to peruse the papers in the case when I went to town and confer with my town agents as the matter was one which must go through the Supreme Court. This he desired mo to do, and I obtained an opinion from Izard an 3 Bell, advising Mr Zabel that there was no alternative but to defend the action. I road this opinion to Mr Zabel, the letter produced contains it. I advised Mr Zabel after this to defend the action;' at the same time I told him that it was very possible he miaht lose it, but that it was necessary for him to defend it before he could bring any action against Mr C, J. Pharazyn, who executed the lease, I was instructed by Mr Zabel to defend, and gave my agents in town an intimation to proceed, Subsequently I read the writ and declar : ation in the aotion to the defendant. " I advised,Zabel to have the oase settled as a special one, and informed hira what the terms would be. Mr TnveH and I were unable to astree as to a statement of the csbb, and the special cabo fell through, I informed Mr Zabel of this and advised him that there was nn alternative hut tq plead.;; The matter went to the Supreme Gojjrt, and was decided against'Zsbel: .'■ Leave yas given to appeal, When ..the case; was deoided against him I received a letter from my Agents in Wellington, which I also com-< munioatedtoZabel, telling him that my] agents advised ■ going to the Court of Appeal. Zabel'consented; to go to the Court"of' Appeal, and liristructed my agents to' appeal. The matter went to appeal and was' again decided against him/ On ojje occasion Zabel asked me how matters were going on, and I advised him to call on fyard k Bel! when he went to Wellington. Subsequently I communicated with Zabel, informing him of the adverse decision and recommending him to fall back nn Mr Pharazyn against whom _he had a srood case. I recommended him to employ Mr Travers against Mr Pharazyn, as Messrs Izard A Bell could not take up a case against him, as he was one of their clients, Zabel : said- he would see Mr Travers. Afterwards he told me he saw Mr Travers, but that gentleman was in a hurry at the time, and would not do any. thing. I hare paid my aeents M out of the total bill of £llO. I exeroised on behalf of defendant all due skill and care. I was absolutely retained by Zabel to defend the suit. He, did not give me a oheque to retain me, whioh is the only false step made in th) case. To Mr Shaw: I have been practising in the.Wairarapa since May, 1874. I was articled to Izard ami; Bell. I was with them from .1868 to 1874. I am not aware that I ; woB in their office when the lease'of Mr Page to Mr Zibel, made 13th February, 1873, waß signed. I do not remember mding the lease produced. If Mr, Zabel swore that I read it I should doubt the fact. Mr Izard is my cousin. Mr: Izard /was.acting • for both Mr Pharazyn /and Mr;,Zabel. I did not advise Zabel to bring an aotion against Mr Izard .for giving a r bad title'. Mr 1 ! Travers,did:not show ine ty' B " l indicating that in similar. title the defendants had caved in. 1 think Zabel was years ago a foreigner." I do not know that he is a Scandinavian, Zabel did not •instruct me to take action against Mr Pharazyn fora sum of £1,500. I believe Zabel 'estimated the value of his interest in theiaijd at that/amount. The aotion never,required-Zabel's;personal aifend:anoa .in jj/ellingtoii. He never gave me a;;';written, retainer,' | read Mr Izard's' lefter' to Zabel in full . J believe he understood the meaning of it. Zabel did not.tell me to go for old Bharaayn, as he was'gettin? shaky, and was not likely to live long.. If Zabel swears' that he did so his. statement will be a fiction, Zabel noyer applied to me to know why lie was not wanted as a witness in the caso againstnPharazyn, ■■ ,1 never directly or indirectly understood-that Z,abel had any impression that there was; a "oase proceedingagajnst;Mr>Plia'razyn,; Zabel instructed me to go to the Court of Appeal onMay4tb, [Left sitting,]