HAMILTON R. M. COURT. Tuesday, Sept. 1st, 1875. Before W. N. Searancke, Esq., R. M.

Waikato Times, Volume IX, Issue 522, 23 September 1875, Page 2

HAMILTON R. M. COURT. Tuesday, Sept. Ist, 1875. Before W. N. Searancke, Esq., R. M.

Judgments ConfrBB<d. — Some unimportant CH^f 8 were settled »>ur of co in. A* i< is not our cus lorn to publuh nimes in these cases the settlement being usually designed to avoid publicity we suppress particulars. Small wood v Walton.— Claim for wagei. Mr Midden for pUintitf, Mr Whifaher for defendant. Deieuda-it hid Gleda si-t off for ten week's bourd, Frederick Smillwood, laborer, dep)»ed tha' in Ji\y last he recfired a ohrque fro i> drtfendant fo £2 ll* 4d. Did not receive » phquefor £2 11s. Only receired it as part piymeut. Nerer agreed to pay 16i a week for bonrd Uoit did not exceed 10' a »et- k. He uu<i defendant. *oi food from tbe storo and thared tht3re-<t. Gt'orge Wtillou, conn-amor, dfposod; thai he eD^a^d Smullwood ro plough tor Mr Morriu at £2 a week, and find himself. X* worked nine weeki. .sixten shillings a week was the Usual churg^ f>r board at the Piuko It oobt witness a little m .ro. Gave him a cheque for £2 lla on the day he left. (Butt of cheque pr »• ducd). Did not give him » cheque for £2 lit

p<rty £1 per week for b M rd. John AllwooJ depwd th*t-.l>e wai pr e * r ,t w».e-i . cheque was paid {<» m Us. UndGrrtood Jto bja fcttlfojentinfall. ilßßßwi harm* adtj^ x »• Wa ?>J° St«AM Navigation Co*. JSJ ?? J »F for defendant. Ifti, case trii mESSSSSSsS on the other sde to appear Hi. to , • J the 53rd cUuee of t J P R I Oo^ *?*".! clear that h-d.dn.-t*. how h? c^d T-Vo£ his derision Mr Madden said there w«l •u<b Company «* (In *r „k*to« Jte»or-O. moan? as describe Jin plaintiff's particulars. How t»in could c*M be recorded espe.ully as it «aa ruled that the W.B.N. a,d Co.l CoVplny w« n.t 10 Court. la, t .court daj A f tt , r , Ol^ further argument Mr Madden produced autbenty under the seal of tha Company U> appear. tf e thon referred lo sectio.i 57 <if the J\>i n t Stock Companies Act, which provides that %ny summons notice, writ, or proo^i .q, requiring auiho-iia' tion by a Company, miy be signed by a-.v Du-eo-•or or other offiW of the Company, an I "nuy be in writing, or in print, or partly i n print/and n*ed not be under the seal of the Company He had retired a ler.ter from dlr £*> 9 ..itiai t iat the seal of the Company was nat required. Mr Whitaker protested against *ny attompno influence the O mrt by mentioning persons ou side. Mr Madden said in a former case Mr Wuitaker read a tetegram from Mr Whitaker, tenr. Mr Joy said the plaintiffs had brougut the Coujpany into Court and t.en turned rouni and erne*' Toured to prerent the Ootnpnuy fr ,m appeaun*. If ma Worship ruled ihat the Company was not in C urt they woul i walk out, but if thy wer* ihey must be heard. If the Court ruled f.e de. fen unts were not in Court grievous injustice would be t one. The plaintiff had brought the Compmy here informally by s ,inir the Wuk t> J-ttean Nnvi^ation ompi y iasteui of the Wa.k.ito feteam N&rig ion ani Co*l Mining Company. (Iha learned couns 1 quoted fr»m the Ke^ilent Ala.istrate's Pmctice ct, sect on 3'J ) 1 fie summons was serve jup■n Mr Schnrff If his Worship ruleJ t'ia . the summons bal be^n served upon u bMy th n the Compwiy hid never been in Court, aul was no. lrab.u f >r costs Plai.tifiTi counsel hid made a kn fe to cut themselves He coutende 1 that the . ourt ha I beeu unintentionally surprised la-.c Court day i-to awt*r- ing coat* agamst, def-ndauts. His Worship »ai • the process * <s is ue i .»g inst the Company generally. It was Served up>n»he Secretary of the Compmy. H t the Conipi y'a office. The Court presumed Mesar- \Jadien and OWeill appeinwi oa behalf «»f the perßon upen whom the process w^s sened Mr Joy proc. c jed to a^^ue a. s<»m.- length vi support of the reiuiss,ion of cost<, quoti-ig vectioo 30 of the Resideut Magistrates' Court Act 1867. He contended that the statute 1 ivr over nde3 the common law, anJ unier.the form r tie common seal of the Company w«s not n- ceesary. He also quoted from Barton's Digest, the ase <>f Alex^njer v. the WeUi-.gton £»lu-a ion Board, 1874. Mr Wh taker rep ied it aom length. Kis Wore »ipsu 1 : (he ourt feels itself pi iced in considerable difficulty tegar Jiug th- applioa. tion that the costs awarded on the I th Sept«mber shall vow ba reni»te<l. It is difficult at *11 times for any pc -son whether placed ma posi* j tion or not, to have to ro?oke his own order, when once given. I cer.ainly mu t say th t situated as I was iast Court-day, with another gentleman titling here, the Ccurt was to some extent takeu rather by surpr se. We bith looked orer this 30th c!ause of the Resident Magistrate. 5 Court Act,.«n» we were hotH ct opinion thit thut was a compmy for which •l>ecul provi«ion was mu'e. tni we were agreed in giving a decision without do ibt. Unfor(uuately at t&e time we were surpri-ed inasmuch as we were yiveu to un ierstan.l that tie matter won d p-oceed on its merits, nuii we shout' simp y hare to dee'dd upon the merit* of tb*> case. On th^se grounds wh n objection was" male that the solictom did not appear under the common seal of the Company, we were of opiuion t.'iat we were ri^ht m the decision wd came to. As to whether the decision was n^bt or not is another question, I very much think it is open no* to som«thiig mure than doubt. I b«am to be jf opinion that we acted wrongly. At too itma tun© in the dee Hioi ire believing we wera right, the Court ij not at a loss to se» how it c*n rev >ke that decision as r^a^ds costs. Mr Joy. If the Court feeU an objection to r«roke it, wa shull pay the coals Hi» VV O rsbip. The Court d.>es feel an objection, it is creating a precedent, (The costs wero then paid in,) A Bother long ar^uoaent *n ued between the gentlemen of t . c long robe, a* to wVrh.Tor not the co umon s^al of the Co was nec>-s<&rv in th? authority for counsel for the defence t'>a->peir. H S Wor«h»p said he was of opinion thjt under the 30 h *co tion of the R M. Act, it wan not necessary. Ano her arjiu'iieot ensued. Hm Worahip. The application now before the Court is w ter.her » solici' or can appear ercept autho-isffd in writing under th* common seal of the Company. Of course, under "correction, it appear* to me' th*t a solicitor can appear without being authorise! in writing. The proviso says, * provided that under special circumstances the Court may permit any party to appear by agent authorised in writing," that is any party beeide* a barrister and solicitor. The plaintiff's solicitors then amended the summons, by substituting " Waikato fcJteam Navigation and Coal Company" for " Waik»'o Steam Navigation Company," and the cace proceeded, Mr Kay opened the case, stating that it Was an action io recover damages. Plaintiff saw an advertisement in the Waikato Timss stating that the steamer would sail on a certain date. He »aw the agent who said that the steamer would leave Alexandra on the date mentioned. He had therefore gone to great expense in getting and feeding pigs but no barge came up on that date. The learned counsel referred to the witnesses who would be called in the case. Mr Hay then called :—: — William Aytoun Silver, who deposed : I am part proprietor of the WvlKato Times, (Wairato Times, dated June Bth prorluc d) I see an advert tacment from the Waikato S. N. Co. Mr Hay . Is that the Company's advert is -ment ? Mr Joy. The original copy of the advertisement must be produced, and it mint be proved to b- identical wi'h the secondary cvi ience now produced. Witness Ihav« made diligent sehreh tor the original dooumvnt *ud faued to find it W*» have been paid for the advertisement. Mr J y oont ended that primaryevidence must be produced to prove the printed document. He quoted the law m case* of libel. Che asaumption of the witness was no evidence —Mr Hay contended that all had been don* fiat was po*« sible under the circumstances and that the lo s of the document had bern made goad by filing an affidavit. He would nsk Hie court !>ow it could have any mor il douht about, the advertisement. Under these circumstances he pointed that the Cou't miuht very justly, and without hardship, reeeue the evide i c under clause 47 of the R.M. Act 18 ;7, which enabled the Court to receive evidence although not strictly legal was bonafidt the advertisement of ihr Company. Mr whitaker read an t-ffidavit by Mr Silver stating that seiin-h had been uwdet'or the original document, and that it cou'd not be found. Mr J<iy said since he bad been ca'led to the b»r, he ha I never ieen an affidavit handed up {ff^the Bench in that manner, He contended that It was un extra judicial act. The defence had no power to cross examine v; on it. Mr Whitaker said he had frequently teen affidavits h«ndeii in in a sniiilac manner, especially in cases where an xfiLiavit w»s fi el that a man wm about to leave the district. Mr Joy said ho was surprised at Mr Whitaker support lug gr>s- acts which •imp'y outraged juttice The»e wts no authority for making such affidavits instead of primary evidence. Mr W bitaker objected to ruch state* menu without praof. He might ••/ thut oi>

fcan efi U'u j da siaWni'tt was a gross abm dit . Mr Joy I «<d pr«pa>ed to submit the point hi >ourown father, and to pay th* coats. His Worship f«id by admitting tlie affidavit he would bo opening th«- d<»or t • a very in proper praotic • <&o*B-exainined by Mr Joy. I have never seen the original document. " Mr Hay appli«d- th*t the newspaper be received in evidence. Mr Madden quoted from Ro«coe, pug© 15, to show that evidence must be produced of tbo existenoo of the original document before secondary evidence oould 1 c produrvd. His Worship was not of opinion tbat sufficient evidence had been adduced to justify the admission of secondary evidence. Richard Robert Hunt deposed. lam localmanaper of the Waikato Steam Navigation Co. That Company inse>t« an advertisement in the Waikatqlimes. (Waikato Times produced.) That-, in t^^overtifeti.fnt of the Company, Mr Joy ttiia coi»i«nded tl at a **eoiwlar» evidence could not beadn.itted until proof was adduced of the existence of the origin*! document. No evidence of the actual existent* of the document had been produced. If Mr Hunt were defendant it. would be different, but Mr Hunt had no power to make aduu-^ions which would bind Mr Ncherff, whoa* mm* was attached to the advertisemont. Tkere was no legal proof of the existence of the docu went from which the •dvertirement was printed. IM*. JL»y contended that the Her>cb could, at its •discretion, receive evident, where it had no moral doubt that the evidence w«s oorrect. — By the Bench. The advertisement in the paper rro* •duced was int»er f ed before I joined the Company. His Worship said he did not think that the Court wo i'd be ju*»ified in admitting the evid- « oe without sp. cifio proof of the exis ence of the original document. Mr Joy quo'ed the law in re.ard to hb<l actions where it. was held that a newspaper could not be read us evidence umil proof was given of the existence o( the original document from which the matter was printed He quo'e< Adams « Kelly, Eyun Maud, 157 His Worship s*id iie ha> seen ndverli^ements of births and marriage* in the paper which never took place. — Mr. Joy. That was in th* time of George Jo< c.* r junr. The paper has improved altogether s»noethen. Charles Ot *> Montrose depo<«<i • I am editor of. the Waikato Timbs. I have had twelve yeV s constant experience as a journalist. (Waikato livfKS h.tnie to wtness) Thi« is a c >py of the Times of Jane Bbh 1875 It was pnnte I before 1 undert ok tho editor«hi > of i he TiMi 1 here is un adtferti-ement in this paper by the Steam Aavigalm Company. I diil not tea the oiiiinal <i thu advierti emenb. —Mr Ji.y objected that the witness ha<ing bpen only « onnected with the literarj <i. partment could not know anythi-.g of ih- adver^is^m nt department. [Wi ness here said h» ha « be<m employe t on jju vats w h re he ha 1 to edit the pnper, report, keep the books, and rec ive advertisiments ] Exarainai >n c ntinue « : From my experience I do not think it at all prob'tble that this adver'i^t-meac was inserted without an orisjiiMl r manuscript When M< s«rs Lanebridge and Silver too* ovor the Timks thi* advertisement; wa* '• standing," that is. i j type. I has been altered since by Mr Hunt's orders Mr Hunt paid me hy cheque for this advertise inent. Ec pant for it as a ent of the Waikato Steam Navigation Comp-my To the he»t of my knowie ige and belief the oiiginal " copy' 1 of the advertisement is lout. I feel convinced that it cann-it : ie found. By Mr .loy. I did net see the original copy — Mr Whitalter again tendered the newspapet in evilence. Pc quoted a case where a paper had bc«n taken fom a Mecbattic's Institute; the -ecietavy swore that it was £o«t »r stolen ; an<l oral t stimony was then admitted. — Mr Joy contended there was no proof that Mr Sober ff authorise' l any advemsemerit, and if he <iid there wjw no proof that the printet c<»py corresponded with it. The plaintiff had not c\\ ed Mr Bch«rff, and his solic tor* iskel tt'e defend mts to bear th ■ cons?quenct s The ndrertisefiaent had btan in the paper (or mon«bs.— Mr Whiiaker said n-ither Mr Sc'ierff not Gretrge Jones, junr. could produce the original advertisement, as it had been destroyed. — His Worship adjourned the Court f r live minutes to consider the question of receiving the new-paper in e»i 'enoe. On the Court re assembling he «ud the 47th cause of the Resident Magistrate's Court Act gave ceitain jnrsdielion io receive such cvi <ene» as the Magistrate might think fit, though the evide a was not strictly NfpU. Jhi was a rule the Court would act upon where the ends < f justice wou'd he served, aud wlieie fere was ro other meim of arriving at a fair and reasonable conclusion. In the present case the con-i Itrition was. were ther any other me ins by which the jouM be prover 3 by livi q witnesses. His opiuion was that there were several witnesses who might h.ve been brought to prove 'he ad veriwement. On these grounds he held thaf the printed copy was not aW sab c. — Mr Hay applied for an imme Uat« summons for Mr Scheiff as a witness — Mr Joy protested wgdnst the time of theOourt being occupied wile Mr Scherffwas coming ap He contended Plaintiff must Bceept a nonsuit. — Mr Hay sai I he had not app'ied fJr an adjournment -Mr Joy said it wan irregular to issue a subpoena in open Court — Mr Hay said he had spen it done frequently. — Mr Madd n said the Court could no: be occuped for three days. His Worship and the Court was willing to sit for any reasonable time, but twt inlefinitely — Mr Joy said the law did not contemplate that the Court fhould be made an itist ument to enable paries to me»>d defects occasioned through lheir own negligence. He asked the Court to nonsuit the plaintiff — Mr Whitaker : The Court has no power to record a mnenit until tie plaintiff* case is closei. — His Worship said he would gr-n t the immediate summons for Mr tScherff, and pioceed with the case. W'liiam Bartleet Langbridge, deposed. I «m one ef the proprietors of tho Waikato 'I im s. TLe newspaper prodded is »n is*ue of the Waijkato 'lim>s of June Bth, 1H75 Mr Joy si I he understood that the Court wa» »dj«>uined to <cow»ider the arimi^Brtbi ity of t iis evidence, anfl that the point, was decided, Were they going to give the ruling ai>d go on aga'n Mr Hay -and this was not the e«me evid r.ce. It wm fresli evidence. Mr Whitaker $airt be wodd adduce •witnesses wrio were in the office at tlie time th« Advctieenient was printed ExaDiination continued. I perceive an advertisement in this paper purporting to be that of the WHik-«to Bteam Navigation Company. Mr Wbitake.. Who paid you for that adveru&eni-ut ? Mr Joy contended that the Court co-Id not rec. ive further evidence, having already ruled Th* Court over ruled the objection. Examinition co"tmued. I mns paid for that advertisement. Mr Hunt paid Mr Monfcrose fo. it, who handed the money to me. lam ceitamly not in the habit of i sertir>g adrertieementt without authority. I huT been engaged in newspaper bujonesn for fiurteen years. Mr Whitaier, then looking at the adver* Kiecuent, have you any doubt that it wa* inaerted «pon written authority P Mr Joy objected to >he question. Examination coutinued. It is not cusi omary to insert advertisements without authority in writing. Mr George Jo* es, junr., »»» proprietor of the Titfu when the adveriiferoeitt wn» received. The preteut proprietors took over the plant and everything in the office. The old papers are not now in the o(B c. I have not looked for the original ot the t»dvertisein< nt. Mr Whitaker. Have you any doubt whether there was a written copy of that a ivertisetneut forwarded to the Timis. Witness. As a matter of newspaper custom, I have no doubt whatever, but as a fact, I cannot ep'*k po*iuvtly in this particular case. Mr Whitaker again leudend the printed copy of the advertisement in evidence* Mr J,uy übje teJ on the gruuud th*t there waj no uew evid^ uce. Mr Wbituker contended that the question wat:<—Doet there remain adoubt in t to mind of the Court that the original document existed ? He quoted " Taylor on Evidence." Hi* Worship did not see that tbe authority applied. Mr Whuak r said it was a scientific treatise. His Worship. We want acts and nut «cient iflc treu tikes ou cuorali». Mr Whitaker resumed his argument, contending that ihe testimony wwit to prore that a document existed. H<s Woidhip said he b*w nothing in Mr Langbndge's evidence to al<ef bis decision. James Kalph Dmideou, C mpositor, residing in Hrtimltot., deposed ihut he was emp.ojed by Messrs Langb ldge and ttilrer, proprietors ot iheWAiKAXo XIMEB. liad i8 \ear» experience *■ » wim>o«6or. Wm •ff»re ot lertral »UTer-

tnenien'B having hem received fu.m the WmkiM Steam Navigation Company and bearing I he Mignn ture of Mr Hunt, and Mr Franz Seh* If. I havi received instruction* to alter the advertistment and the arrang tnent. It hits always beeu alterec according to written orders. B^v Mr Joy. 3 have been in the office since last November Some parts were stunding. By Mr Hay. ] could not say which woe th« alterations. Ii might be ih» arrival* and departures of steamer* that were altered, I think it waß the latter part tbat was altered. MrWhitaker again tendered the paper in evidence," and pointed out that the witness had sworn that as a compositor he had received pieces of paper from time to time signed by Mr Hunt, and Mr Franz Soherff, making alterations in the advertisement. He contended that, they had identified the advertisement with the Company. He quoted "Taylor on Evidence" to shew that secondary evidence was admitted where it wa* proved t'sat the uocument was not proourable. Where there was reaconable presurnpn'on of the loss of the original document, secondary evidence was admissible. It would be hard for the C<>urt to say that there was not et»ong presumption that ii was the Uo<r< pan y'a advertisement Hid Wor&Uip. fcl«ve you any further evidence to bring respecting this advertisement. Mr Whiuker ? tea. His Worship WeJi, I shall refuse to receive the printed «'tveriisemenr until you hare brought all your evidence. Mr Wbitaker. Then I thall ask that it be received now. Mr Hay. It must be received or rejected Mr Joy p*id the Court was boiag bored wit!) the point. Mr Win taker said his learned friend wai Bpeaking ei-cathedra. His vVor-hip said he was not im pi eased wi>h the importance of the evidence ot iaet wit neso. Mr Whttkk-r. Does the Court then refuse to receive the evidence ? His Worship. At piese^t, Yes. Mr Hay calle-l Mr Hunt, wlien Mr Joy obj cted as the witness had already been called. Another lengthy argument ensued. His Worship objec ed to Mr Hunt being again called as he had been in Court throughout the hearing of the case. The practice ot calling a witness a second time was moat unusual and would establish a dangerous precedent. After fuither argument Mr. Hunt recalled in answer to the Court, de-po-ed. I r.fu-ed to pay the claim hy plaintiff against the Company. (EL- re Mr Hant't letter wa* read, declining to pay claim). To the nest nf my lecohection thu Bluenose on the llth Juno was oa her trip lroin Ngarawahia to Alexandra. itMwin Lewis Hope, deposed. lam agent of the Steam Navigation Company at Alrxandra. I know Mr Boon, I recollect Mr B>on abvjt lltn Juno last asked me to telegraph about some pigs, he s» dhe had abju torty I did not tli him to brin^ in t'.ose pigs. Tt ere is a ttockjard at 'le R>ri for the use of the Cornpuny. The steamer came up on tho following Monday. She thould have been up on the Fi idiy previous. Friday was her regulir d y B i«m swore " iome" at me and the dmpauv when I eaid the steamer was not c mimg. I am uaed to Wing sworn at, have got occust mcd ro it. By Mr Joy. I have no authority from the Company to make any arrangements for them. Mr Boon a*<ked me to telegraph for a barge tr» t*ke some pigs. I made no a-rangement with him, I coul i not and did not. Mr Boon commenced to bring Jim pi^s to Te Rori before he got my answi r about lue barge By Mr Whitaker I old im (Boon) I expected tho sienn^r on Friday. My representations ao far satisfied him that he dio not wait, for an answer fro-» Ngaruawnhia. B\ tlie Uuurt,. Steamer arrive 1 a Te Kori on Monday evening 1 balieve the pies w nt down the fallowing day James Tnomas Boon drp>>sed : I am a butcher and dealer, resuliag in Alexandra Ire < ember 3 eing Mr Hope ou Thursday, the 9th Juue, i old him there would be fifty or seventy piys to go by steamer. I asked Mr Hope to telegraph t<> Mr Hunt that 1 had fifty to seventy pigs. Mr Hope *aid he would telegraph. I de*en led on the ndveriis inent a»d had Uie pij;B waiting, some of the pigs weie down on Thursday and the b lance were down on Frid\y. 1 q t ne^i about dinner time from Mr H »pc that the stcuner would not be up till the Monday. I had to mind 'h? stockyard and feed th^m, they were there till two or thi-ee o'clock on Tuesdny. I austaiued damage to the value of £50 through not bring iv Auckland to n ect the market. M. Hay he c stated t'i>.t if an adjournment wai granted that au ail just ment mi ht pr«<b >b y be c"me to. His insf; uotions were that they might lake a nonsuit or come to some a.ioement-. Mr Jo fail Ur Hunt houH p et. r goin^ through viith it to-night. 'Jhe Court ndjn.irned forha^f anhour, a-'d on its reassemh ing, Mr Wh t»ker Siiil after conau'tation with Mr Hay l>e had agree Ito ta.ke a nonsuit A nonsui' was theref re recited, th*- 1 costs of Court being £2 ii. lh Court rose at 7 30 p.m.