DISTRICT COURT.

Wairarapa Daily Times, Volume 4, Issue 1216, 28 October 1882, Page 2

DISTRICT COURT.

FRIDAY. (Before His Honour JddueHardcastle.) E. F. Bell, of the firm of Izard and Bell, solicitors, Wellington, gave evidence to the effect that lie advised that Zabel, should defend the action of ejectment, as' he believed his action was good, and he held it necessary that Zabel should take this course before he could proceed against Mr Pharazyn. Tho point on which judgment was given in the Supreme Court was a very doubtful one, and lie considered it would be"advisable to carry it into the Court of Appeal. When lie wrote that " the judgment ofthe'Court was weak and hesitating" he' meant" that the judgmeut was; not decisive,' The term" weak," wasinapt, but the judgment, he still thought was hesitating. Did not consider he (Mr Bell) was wrong in the

ndvicie he gave,bburt r he was. wrong in tlo opinion.he: Zabul wyiiirat his office, ,j£ was time now fer him; to - proceed - Pharazyn, Witness told him they could ,do nothing aS:Mr Pharazjrn wai-aiclient. ' Cross-examined: acted lit' the lessors arid the'lessee in-,preparing the least*. If tlio lease was defective, did not think Mr Izard would-be responsible, bs long as ho exercised all due care aud dili'gehcfl."" Zabel' had no defence. In order to conserve his remedy against Pharazyn, he I must go to the Court of appeal. .Mr Shaw: You thought you must go to the highest Court! Witness: Decidedly. Mr Shaw: Could it not have been carried lo the.Privy,Council? Witness: It would not be advisable. Mr Shaw, in opening tfie case for the defence, contended'that Mr Beard had neglected Mr Zabel's interests, and pointed out that although a great number of letters had been spoken of as king written by Mr Beard, not one of them had been produced 'in support of the statement, He thought this was a very material fact. He also asked, the jury to give more weight to Mr Zabel's evidence as Mr.Beard had many things to think of, I while - Zabel <had only the one. He alluded to the unpleasantness of his task, but his duty tn his client compelled him to go on with it. He said tho whole of the costly litigation "which had been entered into on behalf of Mr Zabel was absolutely unnecessary, and a waste of money. That was a mistake all lawyers may make. They all give bad advice sometimes. Their going to the Court of Appeal was another most gratuitous waste of money, and the judgment was a complete slap in the face, to those who took up the action. He believed that Mr Beard had yielded in this matter his better judgment to tlie advice of his town agents, He pvoposod to prove that Mr Zabel had never retained Mr Board.

Charles Henry Zabel deposed he was a farmer, and was bom at Dautzic, Came out in 1852. Had been in the Wairarapa about 12 or 15 years. Had talked with Mr Pharazyn about the lease before ho sighed it, and took him to M!r Izard who drew out the lease. Mr Pharazyn paid half and hs paid the otherhalfofthe cost, When he went on the land (260 acres at West Tarataui) it was all bush and had no roads. Did work and made a living there, did fencing, &c„ ' He got a letter from Mr Travors on the. 12th July which he took to Mr Beard, He paid three years' rent, and the fourth year's rent was returned by Mr Plwrazyn, He Baw Mr Beard then and asked him what he thought about it, He (witness) saw Mr Pharazyn afterwards and aßoertained why he had sentthe money back, ■ He told Mr Beard (hat Mr Pharazyn said he could not let the lease run on for more than seven years, and added " you made the lease out yourself." Mr Beard told him to have the money ready at any time he was called upon. He saw Mr Beard at the time He signed the lease, and asked him if lie died would the lease fall back to his family. When he consulted Mr Beard about the present case, he gave him a cheque for £3O which was for the rent. Mr Travers returned this, and I went to Mr Beard and asked him what we were to do. _ He said, "We had better proceed." I said I think my case i* a clear ono. I said we have to tackle Mr Pharazyn now. He said, you have a good man to work against. I asked what it would coat. He said £25 or £3O I Baid it won't come out of my. pocket, Mr Pharazvn will have to pay that. "Oh yes," Mr Beard said, " you have a i>ood man .to deal with." I took the lease and the two letters from Mr Pharazynl The next day I showad them to Mr Beard, and aslced him what he thought./"Then" Mr Beard said, "you are all'right; you have a clear c.m ' He also said Mr Pharazyn would have to. pay all the expenses. I said, "I'llleave it to you." I told him to push on and get it settled as soon as he could, and get me the land or the value of the lease. I then asked for the £3O which I had given him to pay t'ie rent. He said, "that's all right," HetoM me not to interfere with the land or I would be responsible for.damages; I said, " the land ieinino." I said, " you push if, on and get it settled as soon as you can," I asked Mr Beard how the case was getting ou several times, but could not get any satisfaction. He always said it was all right. I said, " you are ruining me. I cant grow feed for the cattle." I had not put the land in grass, and it went to rack and ruin. I then went and saw Mr Izard and talked to him about the lease. Ho said it can t b& dona in fi day. Mr Beard spoke to me about the case of Page against myself, but I said I knew nothing of the home people, I got the land from Mr Pharazyni Ithoughtlwas plaintiff against Pharazyn and did not know there m k case against me, I went to Mr Izard because I wanted to hear the case botweeti me and Mr Pharazyn. He said he would'let nie know through Mr Beard, I never said anything to Mr Izard about Page, • I stopped two or three days in town so as to hear the case, I heard the case, but did not make much out of it. ■. . Mr Shaw ; You heard an argument on a demurrer.

Witness! I (lid not hear Mr.Pharazyn's name mentioned. I saw Mr Beard afterwards and ho told me the case, was lost, I aslced him how I could lose; as I had a sure caßo. He said, he would see me again. Mr Beard explained to me the case for the Appeal Court. I said .'Mr Beard, you have the : case in hand, do as you think proper.' I asked what it would cost, he said abeut £60.• I said "It will not come out of my pocket, Pharazyn will have to pay the costs." I said I have not got any money and he said I liad a good man to work upon. I said " You are too slow; Mr Pharazyn may die and I'll be left in the lurch." He said, "There is his estate," Mr Beard sent for me to go to Greytown, and I went. I oau't read Mr : Beard's writing! Lawyers' letters puzzle me. Mrßeardthen said the appeal would cost 460. I signed the paper to this effect. There was one witness, and Mr Beard tweaked another on the elbow, and he witnessed it also. As they were too long I thought I would put it into another solicitor's hands. Sometime after I got the papers and the 130' from Mr Beard, and about a fortnight after that I jot the bill for. i!lll. ' Mr Gawith's clerk spoke ; to me arid asked me how 1 was getting on with Board, I said "He is a humbug," I did not know what work Mr Beard did for me. He did not sue Mr Pharazyn. Cross-examined by Mr Bunny : I instated Mr Beard, and thought he saw working for me. I Baw him several times about the case. He always said it was all right. : I heard from Mr Travers that the case was . coming off soon, and that Mr Izard was leading me astray. He told me to get another solicitor as they wore working for Mr Phikzyn. Mr Bunny: Did Mr Traversal you in what way Izard & Bell were leading you astray, and how they were acting for Mr Pharazyn)? • Witness: I said it was no use coin" to another solicitor. B ° Mi Bunny; Did Jib not • say anything about the case brought ngainqt you by Mr Pas(3? .' • ■■ ■■• ; Witness: I gave : ifc into Mr Beard's hands to sue Mr Pharazyn, Tam not a solicitor arid know nothing of law. Mr Biiriny; Did you have any convey sation with Mr Bell about Mr Page. •. WitncaEi: I never had any convmation with Mr Ball about it;v' - t V4; 4 To the Court: I.had heavd Bomethiug >h;.^

about the home ,'pßnple claiming the ltind. Mr Beard bad told me that some people a- home were Claiming the land, but I said! did not know them, and would hare nolliipn to do with them.' When;l paid the money to Mr Beard, I knew it was to be sent to Mr Travel's. I did not .know who Mr Travers was acting for, I, did not' think anything about it, I loft it entirely to Mr Beard. (To Mr Bnnny): What more do you want. Mv Pharazyn told me he could only give me a seven years lease. The defendant was submitted to a long further oross examination by Mr Bunny, but nothing fresh could be elioted. 80-examined: I, thought Mr Beard. Was taokling Pharazyn all the'time. To His Honor: Mr Beard read the document about the £6O. He mentioned Page's people then. He also mentioned Pagebefore the appeal. I.said I did not know Page's people. I got the land from Plmrazyn. -

This concluded the case. . Mr Shnw addressed the jury at considerable length, and in a very fair and clear manner. He held that the matter was a misunderstanding between lawyer, and client." All lawyers were liable to mistakes some time or other. It was plain that during the whole of the proceedings Zabel was under the impression that ho was tackling; Pharazyn," and it was for the jury to say whether Mr Beard had ever explained the true position of affairs. Ho held that Mr Zabel had only instructed Mr Beard to sue Mr Plmrazyn, not to defend against Page, and Ztbel was therefore not liable for the expense incurred in this action. Mr Bunny argued that it wai impossible for Zabel not to have known what he was doing, and that Mr Beard had been directly retained to defend against Pago and others. After a very lucid and-ex-haustive speech Mr Bunny left the matter to the jury. His Honor then summed up, going carefully through the evidence, and as a whole leaning to the plaintiff's side, of the case. He held that though a lawyer should bring reasonable skill and oare to a case a client should certainly bring ordinary common sense' and if, after having his case foirly ex-, plained to liim, he did not understand, it, was his own fault. It was for the jury to decide whether the case had been so stated, or whether it was reasonable to iufer that it Ir/d from the evidence. With regard to the defendant heing a foreigner, a man who had been 30 years in the oolony. could hardly be called a foreigner with respect to understanding English, so that if the anlicitnr had explained what any man ought to have understood, it should be assumed that hedii understand, His Honor directed them, that there was n>t the slightest tittle of evidence on behalf of the defendant to show thatthe plaintiff had negligently or unskilfully conducted the defendant's casoof AVe v Zabel, The plaintiff's case on the other hand shewed that everything which in the opinion of the plaintiff and his counsel should hive been done, had been duly and properly done. His Honor therefore directed the jury ro dismiss the plea attributing negligence from thoir consideration, The only plea with whioh they therefore had to deal was did defendant instruct and retain the plaintiff to conduct the defendant's, case in the suit of Page v Zabel. After a careful analysis of the evidence, His Honor left the matter in the hands of the jury, who alter a short retirement, returned into Court with a verdict for the plaintiff, for the full amount olaimed and coßts,