RESIDENT MAGISTRATE'S COURT. TUESDAY, JULY 6TH, 1875. (Before W. N. Searancke, Esq., R.M.)

Waikato Times, Volume VIII, Issue 489, 8 July 1875, Page 2

RESIDENT MAGISTRATE'S COURT. TUESDAY, JULY 6TH, 1875. (Before W. N. Searancke, Esq., R.M.)

DRUNKENNESS. 1 Samuel Cook r a yonngman who surveyed the bench with a mixture oOmshfulness^and humour, pleaded " not guilty- vT^a^har^^Woastable Haddock, of having, on Jime^lsjt,Jjedu drtiftk.and disorderly. Constable Haddock deposed that, on the night in question prisoner came out of a house after ten p.m., wherea wait ling parfcy^appeared to be engaged in th>J^tYslties coftvimm to the occasion. Prisoner append tajiave sacrificed too freely at the shrine of the "jolly god," and was endeavouringto wind up the b^menal celebrations with asecond devotionat-tt^eniise uUionor (J^JVlars. This was the first occasW^(Vkhin\miNc<s!*Btable's knowledge) tl»at prisoneV haa iudulgej irr t!»is class of jollification. The Bench inflicted a fine of 5s and costs, with the alternative being the Ignored guest of Constable HadtHto^ toY a pijriW^t. twenty -fanr hours. Prisoner v prefri red to^pay >ium in current coin of the realm, being ap|Mrently dissatisfied with the hospitality of constable Haddock.

H^Y*V MA«("toALL. In this c^e tlje Bei^*jNrH*ken time to consider an application by <Serek<Wt's Counsel for a non-suit. i Mr Whitaker for plaintiff; Mr Madden for defendant. His Worship : ,After going over the evidence I think tba-gron^Js are npt Efficient to justify me in grantii^ >»6«^sniSyan>^ I think the case had better proved on its merits) % . Mr Madden : Your Y^orshipj rules then on a point of law that a non-suit cannot be recorded. His Worship : Yea. ! William Marshall, defendant in the action, deposed : — I waa present during the case last Court day. I remember Mv Hay spying I had agreed to pay him the -sum of £17 19s Bd. I never did so. i 3 16 4d was for services rendered in the case of Mason at Cambridge. Mr Ha*y never rendered me a signed bill of costs for £17 IDs BJ. I did not agree to pay that amount on May 21st. I objected to pay it. He did not render me an account within one month of Mason's case. I remember what Mr | Smythe said the last Court day. Ho could not have | heard what" took piaoa betwean. me and Mr Hay, [ because Mr Hay shut him intheot^er room. When I received the bill I looked at the total sum, and said my account could not be more than £& or ,£9. I told Mr Hay I would not pay the account until I had gone over it. He struck out two items, saying, " Oh, you paid that." He then said, " you go home and look' over the account, and you will see that it is all right.** I said, " why there is a lot of other things down here." He said, " well, lam in a hurry now, I have to go to a meeting/ All the items, except one or two are for Mason's case. I never alleged, as a reason for not paying, that I wanted to go to Cambridge and examine my account at the bank. I had no account at Cambridge. My account was at Hamilton. To the Bench : I never received a signed bill of costs until last Court day. Never received a signed bill of costs for £3 16s BJ. (Witaesa here went over items of the bill which he said he had objected to in the presence of Mr Hay.) He objected to the £3 16s Bd. He thought it was too large. Mr Hay never appeared in the case. He w*s ill, and witnesslost thecase through his absence. Witnessobjected.toanother item, which Mr Hay struck out, saying, "That is that — fool of a clerk of mine." Witness also objected to a sum of onegninea for attending at Cambridge. Mr Hay did not attend there by his order. Mr. Hay merely sent word that, if he was there, he would like tp see him. Witness did not attend, but Mr Hay nevertheless charged a guinea for it. Telegraphed ten pounds to Messrs. Madden and O'Neil to lodge in. Court. Considered that was all that was due. Mr Madden said the Court would remember that last Court day he had app'ied for a nonsuit, on the ground that the bill of costs wad not signed, and also that the action was brooghb within less than one month of the delivery ot the bill. His worship had ruled that the Court could not go into the i items, and therefore Mr Hay was not examined on them. Therefore the total bill of £17 19s 8d must be taken as a whole. Mr Hay swore that defendant had agreed to pay the bill, but defendant now said that he had objected tp the items, and took the account into the office of Messrs Madden and O'Neil, where he pointed out the items he objected to. There was an account rendered for £3 16s 4d, but it \*as not stated in evidence that the bill of costs was rendered seven days before trial of the . cause, as required by the Act. (The learned Coun ' sel here referred to tho 139 th Clause of the Resid- ( ent Magistrate's Court Act.) The Court was left entirely in th» dark as to the items of the account i rendered. If th© action had been one for work and I labour, it would be competent for the Court to go into the items of the account, and his Woi-ship would be satisfied that the plaintiff , was not entitled to recover one-third of the amount now claimed. The account shewed that Mr Hay had made a mistake in the first account, and had rendered a fresh bill of costs. * Mr Whitaker said the Court couH take no notice of the last part of his learned friend's address, as the new bill of costs was not in evidence. His Worship :It is not in evidence at all — I know nothing at all about it. Mr Whitaker referred to the "Law Practitioners' Act," which provides that ne action can be brought to recover a bill of costs, until the lapse of one month : from the (late of delivery. The clause quoted by his learned friend did not bear the sameinterpretation as the " Law Practitioners' Act." He had feared | bhat this case would be one of those in which one i

witness was simply opposed to •rifififlwv but here, there were two witnesses against the unsupported/ testimony of one. Mr Smytbe had deposed that He was present when the defendant accepted the account, and the same witness distinctly rej>eated what took place on the occasion. Thie defendant now came here and broadly asserted that Mr Smy the was not the witness of truth, in a rough and steady style of contradiction, bot two witnesses were better than one. Mr Smythe and Mr Hay both swore that defendant looked through the account, and when asked to give a post-dated cheque, said he wanted to see how his account stood in the bank at Cambridge. The mere fact, now alleged, that he had no account at Cambridge, did not prove that he did not make the statement. From the fact that the defendant had given evidence in direct , contradiction of the other two witnesses, he (the learned Counsel) was justified in assuming that he would make such a statement. If the Court deemed it necessary to decide for the defendant on a technical point of law, he (the learned Counsel) trusted that a non-suit would be recorded^ and not an absolute judgment. His Worship said that when the application for a nonsuit was made by Mr Madden, in all probability the Court would have decided then and there, had it not bee^Jidiler the impression that a signed bill of costs^W^toe sum of £3 16s 8d had been delivered to flip Marshall. The Court was unJjiMht^imfH&sdßfc^tom the evidence of one of tn^rwit^esses, su^lftQ£w«Hwh&ll now stated on oath that he rievei^reeeTveTMi signed bill of costs. Mr Hay did not say, v however* how it was signed, or who delivered it, but simply that it was sent to the defendant, and Mr Marshall distinctly swore that he never received the bill. It was on that item alone that the Couft. had reserved its. decision. Mr Madden : — I beg pardon. Your Worship ruled that you could not go into the items. His Worship : — I think the 36th clause of the Law Practitioners' Act is so clear that I can only decide in one way ; that is to give the plaintiff the option of accepting a non-suit. Mr Whitaker : We will take a non-suit. Mr Madden : The coats of last Cou, rt day wil follow the ruling of this Court day. I would respectfully draw Worship's attention to the fact that A4iu;sH*4J t l^rtk^r trae^ere, has to break into two diW^e4ivcs\werhtf-^our miles from here. He has to fide into Ca\brftgV^nd will not get back there until ten o'clock to-night. Mr Whitaker : — I was about to make an application that no costs be allowed at all. Mr Madden : I must say this, is the first Court where I have seen my learned friend allowed to rise and interrupt me. It is not common courtesy. Mir Whitaker: I object to mfown tim» and the time of the Court being taken up by useless argument. I will make an application with' regard to costs, when the Court is ready to hear me. His Worship : Proceed, Mr Whitaker. Mr Wbitakev said that it had beln shewn that the plaintiff had been defeated on merely technical grounds, and that the amount claimed was justly due. The^lefand^tjhad^mitted that he Kent ten guineas tcU)e\puld fl^ooßurt, and if it had been paid in, it Vmld probably nuve been accepted. The Court had power to disallo\^osts, where the plaintifiVas defeated on purely technical grounds. Mr Madden said he would like to hear his learned friend adduce authorities in support of his present application. (The learned Counsel referred to tlc Procedure and Practice of Courts). As to the £10, it was not received in time to pay into Court twenty-four hours before the hearing, as required by law. The reason the defendant l^ad riot paid this claim was that in February 24th, he gave Mr Hay instructions to commence a certain action in the Supreme Court, bat nothing had been done until now. , x Mr Whitaker objected fco> charges being made ia^ that loose way, especially as Mr Hay was not present. Mr Madden argued that the grounds on which the plaintiff had been defeated were precisely similar to those upon which any other suitor might be defeated on a point of law. On the- last day he made an application that the costs should follow the ruling of the day. His Worship : I understood you to do so. Mr Whitaker said he could only repeat that the discretionary power as to costs had been exercised in other Resident Magistrates' Courts, where suitors were defeated on purely technical grounds. He fee lieved this was a case in which the Court mighvery properly refuse to allow costs. His Worship said that in the cases where the Courts had exercised their jurisdiction by disallowing costs, particular^ upon technical grounds, they were influenced, by good reasons. In this, case the defendant could not plead ignorance. Surely a member of tho legal profession should have the Law Practitioners' Act at his fingers' ends. The 36th clause, relating to the recovery of solicitor's costs, was so clear and distinct that the Court did not see how it could assist the plaintiff in this case. The plaintiff would therefore have to pay costs Costs, £5 10b. A. Cox^Esq., J. P., here took his seat ,oa tho bench, Beal v. Scott; This was a claim of £7 7s for professional services. Mr Madden forplaintiff, Mr Whitaker for defendant. Mr Madden addressed the Court, and called | Charles Beal, plaintiff, who deposed that in the I month of December, he was summoned by defendant to attend Mr James McConnachie. (Telegram I dated Dec. 30 r from G. Jl Scott produced). Went to Ngaruawahia to see the person alluded to. £3 3s. j was a reasonable charge. 10s 6d was a reasonable I charge for two other visits, and £3 3s for a second 1 visit from Hamilton. Mr Taylor, telegraphis*, had been summoned to» identify the telegrams, but, as they were admitted by Mr Whitaker, his services were dispensed with. By Mr Whitaker r I object to rtate how the £5 3s is made up. That is my ordinary charge. I charged the 10s 6d to defendant beeauee I consider ' that a course of treatment commenced under one autnority holds good throughout. I always looked to Mr Scott for the money. I did intend to apply to Mr. McConnachie for the money in the event of Mr. Scott not paying (account produced.) That is my handwriting. It is. a- private memo, and not a bill. The item, McConnachie £7 7s, is the same as nowcharged to Scott. It is an account against the Loyal Delta Lodge. I never presented that bill. It was presented to a person unconnected with the lodge When I got the telegram I intended to treat McCoanaehie as a private person. He was not a member of the lodge (memorandum produced.) When I got the telegram on the 30th to go toNgaruawahia, I started within an hour or so. Ke-examined by Mr Madden : Mr McConnachie had no claim to my services as lodge surgeon ' • Mr WhiUker applied for a non-suit, onthV ground that Dr Beal was telegraphed for on behalf of McConnachie by Scott, the latter being only an agent. (The learned gentleman quoted from "Addison on contracts," with reference to the non-liability | of agents who disclosed their principal.) • Mr Madden replied, contending that defendant

vas liable. If Dr. Beal had not gone down when ac received the telegram there would have been a bue and cry. The present defendant was in the position of a surety. <M.r Whitaker replied. His "Worship said the bench was placed between two alternatives which were equally harsh to either plaintiff or defendant. If they allowed the non-suit, Lt would be hard upon Dr Beale, but if they gave judgment against Scott there would be an end to all friendly action on behalf of a sick man, because a man would be afraid of being rendered liable for the expense. However, as the defendant had clearly lisclosed his principal, the Court would grant a nonsuit. N.

This was anaDpTt^fcwu C^PrNEteaie for re-hearing of aoase heard in^he l^iden^^agteiigitQ's Court at a previous sitting, plaintnJJiaa summoned defendant for a sum ojT £4 4s lid, and 5s cost of summons, and the defendant had paid the amount of £4 16b lid into Court. When the case came on for hearing, Mr Hay, the solicitor in the case, made a claim for professional costs, 10s 6d, though bhe amount had not previously appeared in the summons served upon the defendant. The Resident Magistrate gave judgment for the amount and the costs claimed. Defendant now appealed against the judgment, on the grounds that the solicitor's costs should not have been included in the claim. Mr Whitaker appeared to conduct his own case. Mr Madden for defendant. Mr Madden for the defendant now argued that inasmuch as the claim wh^h appeared in the summons had been satisfied, the Co^rt^cted illegally in granting an additional sum. Mr Whitaker repjied at some length. He urged that it was unfair tla\{, owing to a mistake . by the Clerk of the Court, the plaintitFs solicitor should be deprived of his costs. He further argued that the receipt given by the Cl« j rk of the Court was not a receipt in full, but only a receipt for " part payment." His Worship said it was impossible for the Clerk of the Court to fix the amount of solicitors' fees, as he could not tell whether or not a solicitor would be only engaged at the hearing. Moreover the Clerk had given a receipt only for " part payment " of the claim and costs. On these grounds the application for a re-hearing must be refused.

W. H. Butler v. Kingsley, Mr Madden for plaintiff. This was a claim for unlawful detention of certain property which plaintiff alleged hs had won at a raffle, by throwing the highest throw, the defendant having afterwards refused to deliver up the property won. W. H. Butler deposad : He paid the sum of 5s to Kingsley in order to throw for a sewing machine. He threw the highest throw. It was admitted that he did so. He asked Kingsley for the machine, but he would not give it up. He had a disagreement with a man named Hill, who said the machine was got by Butler by a swindle. He valued the machine at £5 7s 6d. Cross-examined by Kingsley : — I clam* the machine on the ground of having J hroMp the highest throw. § Here the defendant commenced to deliver an harangue to the public, but was called to o/der. To the Court : It was a raffle for k sewing machine, which was to go to the highest ; thrower. ,1 threw 43, and I then went in and '/shouted." After that Kingsley came in and kicked^up a row with me. His Worship here advised the parties to go outside the court, and endeavour to arrange the matter aniicably^by referring it to Mr Madden or Mr O'NeiJl as arbitrator. Mr Madden said he had tried to settle the matter, but in vain. The plaintiff was obstinate. ■* The defendant here began another oration, which '• Was nipped in the bud by the Couft. The defendant, hdwever, persisted in inviting the Court in particular Vid the public generally to look at his "toplist." \ His Warship said defendant did not appear to know whaiKhe was talking about. Defendant said there was an error in the list at the raffle. He was\,about to make another statement when he. was sfo^pedand -put on his oath. He deposed that he was a^farrner. -He acted as agent in raffling the sewingt machine. All the professions went itoto the raffle, and threw wherever they could be gta together. (Here he was about to produce some jfapers, but put them back in his pocket.) He coiMended u that what he was saying was common sense^t * His Worship saickit did not look like it. Defendant said hewas present during the whole of the raffle, and sawythat Mr. Butler threw the highest throw. If pljfentiff would come for the machine, it would be Jv 611 U P # In answer to the (jueetion whether he had any witnesses to call, defendant did not appear to apprehend the question. /He &as ordered to stand down. His Worship ordered CKjfendant to give up the machine, or pay plaintiff tie sum of £5, with costs, 19s 6d. ; \ This concluded' the busintss. f >