SMITH V. RUDDICK.

Wairarapa Daily Times, Volume XV, Issue 4428, 26 May 1893, Page 3

SMITH V. RUDDICK.

Application for Re-Hearing.

- An application was tirade by Mr A. R.'.Biiriny, yesterdiiy.rtfteriiooii.■ lie(ore ; Messrs lieiv.ll and Price J.P'a, for h rehearing of tlie ease Smith v. Ruddick, decided in favour of the plaintiff oh ,t!ie 23rd of February last.; Mr To* nail' appeared to oppose the .applies'iuii on behalf of Mr Smith. .

-Mr Buiihy vaid it would be within the recollection of the Court that application had previously bee.iur.iide iof .a : rehearing;,. but as.ilu- ISench was noi ligreed upon that occssion, he was coinpelli'd'. to again bring the matter forward, Tho tacts were that Mr J,

J, Smith claimed from Mr Itaidick, of Woodville, the sum of £5 Gs Od for printing and advertising, a summons mi taken out by .Mr Smith andthe c.if 3 set down for hearing 011 the 23rd of February. Prior to the lGth of February Ruddick instructed "Mr Gothard, solicitor, to defend the action, who on that date wrote to Mr Pownall (Smith's solicitor) giving what he considered satisfactory rea •sons for withdrawing the .case; Mr Pownall wrote, informing Mr Gothard that the summons would not be withdrawn, the letter reaching Mr Gothard on the 22nd of February. Mr Gothard applied immediately for evidence to be takeu at Wcudville on the 28th of February. The application somehow did not reach the Clerk of Court, at Maslerton until the day after judgment was given. ■. Mr Gothard had, however, telegraphed to Mr Pownall that the application had been made. It. the face of ihw the case was oaiied ■.on.:and.yu'dgment was given for plaintiff, On the 27th of the same month ho (Mr Bunny) .was instructed to apply for are-hear-, ing, aiit) was supported by an affidavit from Mr Gothard stating that he bad. been engaged by Ruddick to' defend, the case and. that his client had'a gcod defence to thc:action, as thoararigement' re; had been for one year, only, from April or May 1890; that tho airangement was made with one Murdccli (phiintifl's agent) whpvti t.jthe' : expirotioii" of ;'tlio term was j.nid and ;■ told .--.not to continue tho advertisement-; that the defendant never saw the advertisement and did not 'know it was beiug published, and further . that ' defendant . had ~ left the hotel to which the advertisement applied ic November, 1891. Regarding the newsjiapeis. the' defendant alleged that another of. plaintiffs agents (one Charles Hall),was paid up, and told to cttißO supplying tlio ,papers.:,in August, 1891. Again on the 29th of March another application was made, , supported by a further affidavit. This ■ he contended was ample ground for a re hearing, : Be (Mr Btinny) also was informed that on the lltli of April, ; Mr■ Pownall had, in a. conversation with'Mr Gothard, statedthathowoukl not object to a re-hearing. ... .

Mr Pownall said that as far as the actual defence rat that was another matter, and on the face of the. letter his client had received, taken in conjunction with the order given, Ruddiok was liable for the advertisement, It was- all / very wellfor his learned friend to say it was'" an Engllshman's;'-right, to have his defence heard," but in this.case absolute neglect to offer that .defence had occurred, The summons whs serred on the Bth February. On the 20th he (Mr Pownall) received a letter: from Mr Gotliard, although as that was a Monday, it was possible the letter reached Masterton after business hours on Saturday. It Was tho duty of the defendant, who had left things tjll tlie last pioment tp sep that his application di(l reach tho Mastertoo Court, If he had missed the mail, it was open to the defendant to send his notice by telegraph undoc the Eleotric Lines Act. There was nothing before the Court other than at the last hearing. As regards the Conversation alluded to by Mr

Bunny he'(Mr Pownall) had considered it potato, but ho was now compelled to say that Mr Gothard had admitted neglect, and all he (Mr Pownall) had promised to do was to speak to his client. He bad done this, and Air Smith absolutely refused to' agreo to a rehearing, having already been put to considerable expense. The judgment had beeu enforced, and the monoy paid, If the Court lmd acted unjustly, tile defendant should take the matter to a higher Court. The whole blame rested on (ht; defendant, or his solicitor, who had allowed a whole fortnight to elapse without taking any steps after bping served with a summons, and therefore a re-hearing should not he granted. Mr Bunny replied at length. The Bench reiited, and after a lengthy consultation the Court was resumed.. Mr Renall then 'stated that his brother justice and himself were unable lo agree as to tho grunting a rehearing, butto. setile irat lers' lm-i consented that the case be heard again before the same Bench', viz Messrs Renall and Price.

After further argument it -wrs finally agreed ' to ask- the' Resident Magistrate to fix a day-for re-hearing thecase,.Messrs Ken'all.nnd Price to also occupy seats on the ISench. '