HAY V. BARLOW.

Waikato Times, Volume XXX, Issue 2456, 7 April 1888, Page 2

HAY V. BARLOW.

* ■ Tun following is Uapt. J;ie';sjn'.s judgment in the above cas? :—This case has been hcnril before in February last, and judgment given for the plaintiff, and on the application of the defendant a rehearing was granted by t.hfj magistrate wlio heard it on the ostensible ground that his decision was against the weight of evidence, but really because it was his constant practice to grant a rehearing when duly applied for. Tin-, evidence taken on tliis re-hearing is very lengthy, and the plaintiff and defendant contradicted each other on nearly all matters material to the issue, it is enough to say that in all their conversations, they differ and no third party was present. More serious contradictious appear in the evidence, that is where Mr Dufmir contradicts the statement of the plaintiff as regards the amount of money due from defendant to him. which took place at Cambridge on February, 1887, (both these gentlemen are barristers and solicitors of the Supreme Court.) Plaintiff says both in his examination in chief and when cioss-examiued by Mr O'Nrill thnt lie is certain he told Mr Dufnnr that: it was over £12, and did not say the debt owed to him by defendant was £3 or £4. Mr Dufailr contradicts this, and states in his evidence that soon after his arrival in Cambridge, plaintiff said to him, "Will you pay me some money defendant owes me?'' To this Mr Dufaur replied, " How much is it?' . Plaintiff said, "It is bstween £3 and £4, the balance due on a P.N." On Mr Dufaur being crossexamined by plaintiff, be reiterates bis former statement, and says " you asked me to pay you at once £3 or £4. ' As to whether the plaintiff assisted the defendant in procuring the succession order at the Land Court held at Cambridge in December, ISBS, defendant admits he might have spoken to the judge and read a paper, but if he flirt so he expected plaintiff to see to his succession order at the Land Court in December, ISBS, and considered he was paid for it in the P. N. for £12 15s. It appears that Mr Dufaur took all the preliminary steps in forwarding defendant's application and advising him what to do. Defendant also says the amount in the P. N". was not composed of items ; it was just a charge for £12 15s ; and he got no bill or receipt, (the plaintiff cannot give the items making up this £12 15s), the defendant states that the first heard he was charged £8 8s more wliph he got the registered letter in September ISS7. Plaintiff says the defendant offered to give him a bill, which defendant denies and he expected him to see to hi 3 succession order, because lie had paid him, an:l that plaintiff promised to put him in possession of the succession order for the .vroii'it, of the promissory note for £! - 15s, ana the promissory note was payment for no other work but the succession. It is singular that Mr Cowper, who was on the 9th of December clerk of the Native Land Court at Cambridge and produced the minute-book he kept of the evidence and the granting of this succession order, should not have noted in the minutes the fact that such an important document as the decree having been read when it so materially affected the granting of the defendant's application for the order to succeed to his mother's estate in the Pnalio" Blosk. Mr Fraser says he heard plaintilf ask the Court for permission to afford it information so as to enable the Court to grant the order and plaintiff produced a decree declaring the Crown grant bad but Mr Fraser is not prepared to say that the plaintiff put in the decree at the request of dedefendant. Mr James Master was in Court when the succession order was made, and says Judge O'UWen asked plaintiff to read some sort of a leading document, and the document produced in Court ho said was like it This witness did not sec plaintiff sit beside defendant in the Land Court. The real question ia was plaintiff entitled to be paid for his services on nlie Bth and !}lh December. lSS'i or was the promissory note for £12 15 given by defendant to plaintiff in Much ISB4, aa payment fur all services due to plaintiff in procuring defendant's order to succeed his mother in the Pnahoe block and for no other services rendered ? The defendant contends that it was, which the plaintiff denies. Let us notice what, the plaintiff's books show (lie kept no ledger); all the parts shown to the Court by plaintiff, having reference to bis transaction with defendant, viz. : The first bill in plaintiff's account book pages 6 and 7. In this account the amount shown due by de fendant on the 17th December, 1879, is a balance of £5 17s 4d In another book named "Book of Accounts made out and forwarded" the balance of £5 7s 4d; was shown to have been sent to defendant on the 29th August, ISS2. In the diary under il.te March 3rd, 1884. Attending at Cambridge three days. Friday, Saturday and to-day, Monday, March 3rd, 18S4, re claim to succeed Makereti Mete ami division claims and vaiious ctes and advice £7 7s. The next account is in the plaintiff's bill book page JSo headed Robert Barlow. The first item is on February 23rd, ISS4 ; " letter to you re Puahoe succession and postage, (is lOd ; February 23rd, do., do., do., Ga 10.1 ; February 25th, attending sending telegram to you re claim, Gs Sd : March 3rd, attending at Cambridge. 3 days, Friday, Satnrdiy, and to-day, £7 7s ; January 4th, by cash on account P.N , £8 ; December Stii, ISS'), attending all day (as in account,) £i 4s ; November 9th, do., do., do., (as in account.) £4 4s. Now, in this last account, the item £o 7s ■Id does not appear in Barlow's account in the Bill book, it is not carried forward, it was sent out on '29 th of August, 18S2, and the defendant says h« had not owed any money to plaintiff for two years previous to March 1884 ; the presumption is that this amount of £5 7s 4<i lias been paid, and that presumption has not been rebutted, plaintiff not knowing what items made up the £12 15s, and he gave no evidence of the £5 7s 4d, being unpaid and as the first item of 6s lOd for a letter written on the 23rd of February (in which plaintiff informs defendant that the whole, cost would not be more than £b" 10s) ; was debited to the defendant before the giving of the P.N. , and the account last mentioned from plaintiff's bill book, showing, as it does, that the charges there are solely on account of defendant's succession order, and in adding up this account, I find that when the P. N. was given by defendant for £12 15s his account by plaintiffs books only amounted to £8 7a 4d. If this is correct there was more money included in the bill than was due to plaintiff when the P. N. was given, and this balance of £S 7s 4d, if added to £5 7s 4d, amounts to £13 14s Sd, beiug H>3 Sd more than the P. N, for £12 15s, so. it appears these two amounts, £8 7s 4tl and £5 7s 4d, would not bo the amount for which the bill was given. There is no doubt the evidence is very contradictory, and I can not say, especially when I take into con sideration Mr Dnfaur's evidence and plaintiffs accounts in his books sub mitted to the Court, that I have no doubt in my mind as to the correctness of the plaintiff's account of the matter. I havp doubts and I am bound to give defeii.laul the benefit.