DISTRICT COURT.—Yesterday.

Thames Advertiser, Volume VII, Issue 1915, 10 December 1874, Page 3

DISTRICT COURT.—Yesterday.

(Before His Honor T, liEOKUAM, Eso.. District Judge.) IN BANKRUPTCY. Be ET. P. Andrews.—ln this case the bankrupt applied for his discharge. Mr Tyler appeared for the bankrupt, and said that all the steps had been taken to entitle the bankrupt to apply for his discharge. Mr Tyler then read tho trustee's report, which stated that the larger amount of the liabilities had been incurred at Greymouth. Bankrupt had been in receipt of a salary of £88 8a 4d a month, as Collector of Customs. He had had twenty-one years' service, but in consequence of an inquiry brought about at the instigation of a junior officer who had become indebted to him, he was suspended from the service of tho Customs—The bankrupt's statement showed that his liabilities amouuted to £1,622 IBs lid, and the deficiency to £1,376 13s lid. Amongst tho liabilities were the following: — Ji. W. Vv'ynyard, £520 ; F. I). Yonge, "."230; Jackaon and Kussell, £28 19s; W. Perkins, £450; Mr Hcnshaw, £818s 7d; Osborne Brothers, £17 Is 6d; W, Rowe, £161 17a 6d; Mr Hulme, £15 183 9d. Mr Howe was secured by a bill of sale to the amount of £125.—Mr Tyler stated that Mr llowe had entered into possession before Mr Andrews was adjudged a bankrupt.—Bankrupt was sworn, and deposed to the correctness of the statements put in by hiin.—There being no opposition, his Honor said that it seemed to him unnecessary to withhold discharge. —Discharge granted. DONNEtLY V. BRASSEY. This was a claim of £100, on a complaint setting forth that the present plaintiff, Patrick K. Donnelly, had paid to defendant a sum of £30 to pay to Mr MacOormick, solicitor, in connection with the case of Donnelly v. Donnelly, for illegal detention of a letter, that the plaintiff, had been injured by the monoy not being paid, and had been put to expense in going to Auckland to see about it. Mr Campbell appeared for tho plaintiff, and Mr Macdonald and Mr Tyler for tho defendant. Mr Tyler said that a previous action to the present had been raised, and. had been discontinued, but the costs incurred up to the time of discontinuance had not been paid as provided by one of the Districfc Court rules.

Mr Campbell said that a clerical error had occurred in tho summons, where by his own mistake in copying he had put plaintiff instead of defendant. He had gone to Mr Tyler, and told him that the costs would come out of his own pocket, but Mr Tyler would not consent to allow tho summons to be amended. Ho did not object to pay the costs, but in the circumstanccs, he asked his Honor to allow only such costs as were fair in tho action. Mr Campbell then objected to several of the items. His Honor suggested that Mr MacUormick, who was present, should settle tho question of costs, and parties agreed to this.. Mr MacOormick said that the District Court Aet, ho was sorry to say, did not contemplate the employment of counsel, and therefore ho could not allow the retainer to Mr Macdonald. He would allow £2 2s. Mr Campbell then paid this amount, Mr Tylor raised another objection, viz, that this aotion was prematurely brought. The 93rd rulo said that tho costs in any discontinued aotioa must be paid before another action was brought, This (union was brought when tho. smn*

mons was issued, and therefore before the costs were paid. Mr Campbell proceeded to complain of Mr Tyler's action, stating that he (Mr Campbell) had been blamed for bringing an action a»ainst an attorney, but if a professional man committed an act which made him liable to be brought before a Court, the person injured should have the opportunity of obtaining professional assistance. In this caso the defendant had not been injured iu the slightest degree by the costs not having been paid. Mr Macdonnld having replied, His Honor said that ho thought what had been done now would entitle the plaint'ffto proceed, especially under the circumstances that the action was withdrawn simply from a clerical error. The plaintiff had pleaded to the 'case. The Court would not. be justified in striking the case out of the cause list.

Mr Tyler asked tliat a note should be taken of the objection. Mr Campbell then opened the case, stating that plaintiff had employed Mr MaeCormiek iu an action, and lie was in •■communication with him, when a letter that had come from him was detained for a month. In consequence of that letter being detained, another action was brought, and Mr Brassey was instructed, as agent for Mr MaeCormiek, to arrange proceedings down hero and to issue a summons in referenc-; to the detention of the letter. The plaintiff called upon Mr Brasscy, who was acting as agent for Mr MaeCormiek, to learn how the matter was progressing On one occasion when ho called upon him, he said he would go to Auckland and settle with Mr MaeCormiek as to his costs. Upon that Mr Brassey said, "I am going to Auckland, and I will pay the money if you like." Having full confidence in Mr Brassey, plaintiff placed in his hands a bank deposit receipt for £J0 to pay to Mr MaeCormiek. That was 0". the 30th of May ; and on the Ist of June Mr Br.-.ssey receivod the money from the bank, and ought to have paid tlie amount to Mr MaeCormiek, for his costs and for the benefit of the plaintiff. The object was to retain Mr MacCormick's valuable assistance upon the hearing of the cas (; but, according to his instructions, it was not paid up to the present time. The money was givon to Mr Brassey for the specific purpose of paying to Mr MaeCormiek and no other. The plaintiff wrote to Mr MaeCormiek'informing him of what he had done, and had a letter in answer stating that he had not received it. Plaintiff went up to Auckland to rq'i i" 'f the money had not been paid. W lieu the case was heard, Mr MaeCormiek did not come down, but sent down instructions that Mr Brassey was to appear in the case. In consequence of Mr MaeCormiek not c.>ming down, plaintiff lost his action; it was not properly conducted. Plaintiff had m ide five journeys to Auckland in reference to this matter. He had been told that a cheque for £25 had been paid and returned. Mr Brassey himself tendered £19 19s. On the last occasion when plaintiff spoke to Mr Brassey, that gentleman told him to go to a certain person.

Willoughby Brassey deposed: I am defendant in this action, t did not act for Mr MacOormick in an action Donnelly v. Donnelly, heard on the 11th of June lust. I never acted for Mr MacOormick as agent at that time or any other. I acted for Donnelly, tho plaintiff in this present action. I received letters from Mr MacOormick on tho subject of that action. The action was not' commenced when I received the first letter. (First letter produced, dated Bth May, 1874) The letter was with reference to bringing the action, or rather introducing P. K. Donnelly to me. It had no inclo* sure. "Donnelly delivered it to me. (Letter put in evidence and rend. The conclusion was, "P. Donnelly will retain you as his solicitor at the Thames." At the time he brought the letter ho had a statement of his case, which he showed me. I lold him to bring the parties lie said could give evidence to tho office and let me see them. He brought one or two whose evidence was favourable to his case. I issued a summons after I received the letter, and after his instructions I issued a summons. I don't recollect the date of tho hearing. It was the 16th of June. Between the 6th of May, the date of the letter, and the 16th of May, I had communication with Mr MacOormick about the action. (Letters, dated May 13, May 20, and June 15, put in,) The letters were read by the Clerk of the Court. The first had no reference to the action. It referred to tho case, Donnelly v. Fraser. That on the 15th of June intimated that he had returned the brief, as he did not intend to appear, He did not think it right to put tho plaintiff to the heavy cost of tho fee for his appearing. The letter was written the day before tho trial by Mr MacOormick, That of the 20th of May was to the effect that ho had hurriedly drawn up the particulars of demand. He would rely on Mr Brassey to obtain all the particulars possible.—Examination resumed: When Donnelly came to me in tho first instance he requested me to issue a summons after having shown me the particulars of demand. I issued the summons at his request, and he signed an authority at that time for me to appear as his solicitor. I arn aware that Donnelly can read and writo too, and he read the authority to sue, and I read it to him besides. I wrote the authority and ho signed his namo to it, perfectly understanding what it was. He did not think it was merely an authority to serve summonses. I saw Donnelly on the 30th of May. He paid me £30 on that day on tho account to carry on the action. Ho hud previously paid .jno £2. The £30 was not for my costs. For tho advice and trouble I had taken I charged £3, and he paid me £2 on account. I asked for more money, telling him that considerable costs would have to bo incurred, and I should not pneeed with the action otherwise. That money was not received on account of Mr MacOormick, or any of his firm. It was not given to me for any such purpose. I sent Mr MacOormick a cheque for £25 because Donnelly asked mo to do so. It was some four or five days after ho paid mo the £30 that he requested mo to send this money. When hi) paid me tho £30 I told him I did not want it all to carry on the case, but ho said, "Never mind; you keep the money, and we will settle it when tho case is over." It was a deposit receipt for the money which ho gave mo. I have now some £19 193 4d belonging to Donnelly, after making out my bill of costs and deducting it from the £30 which he gave mo. I delivered plaintiff my bill of costs, and he agreed to it in tho presence of Mr Dufour, on tho ,16th of Juno, the, day of the hearing of the case. I am not aware of offering Danelly £20 to settlo this affair. I know that tho fimount coming to Donnelly was between £19 and £20. I drow out a cheque for £20, and offured it to Donnelly. Ho did not take it. JIo asked mc for what money I had iu hand, but not for any specific sum Ho told mo to pay it into tho hands of Messrs

MaeCormiek and McKechnie. When I returned to the Thames I sent a cheque lor tlie correct amount, but it was returned by Mr MaeCormiek, who said lie iuid nothing to do with Donnelly. The £25 had been returned to me before this by Mr MaeCormiek, thus leaving the original £30 in my hands. T don't know the date of the letter in which I sent tlie cheque for £19 19s 41. (Mr MacOoriuick, on examining the envelope, said it was on the 6th of July, long after the case.) Mr Campbell put the letters and enclosures in evidence, in which Mr Brassey enclosed the cheque for £25. Jt was dated Btli of June. Mr McCormick said die letter had not been received until the 23rd of June.—■ Cross-examination resumed: Donnelly did not a few days after he paid me €30, ask mr to return it. or pay it to Mr MaeCormiek. He asked me to send Mr MaeCormiek a cheque lor £20. On the Bth of Juue he told me to send £25, and make suro that he comes. I told him that would leave a very small balance in my hand to carry on tlie case, but ho said, " Oh, never mind ; I'll sec that you are all right." I don't remember seeing him alterwards about it, but I. might have. He was constantly in and out of the oflwc. I did not several times on that day tell him to c >11 again, nor did 1 on the lust occasion show him the cheque which I enclosed. [ ilid show him the cheque on the 9th of J line. The cheque was enclosed in the letter last put in evidence. When ho called in he sai l, " I see you are busy, I will call again." I cannot tell why the letter did not arrive at its destination in due rinK, I Ice v Donnel'y was suspicious, and llie le'terwas sent by private li'iil. I took it to the steamer myself, I sent the letter; further than that I know nothing, The receipt was not acknowledged until the cheque was returned to me, and that was the first I heard of it. (Letter dated 2'lth of June, from Mr MaeCormiek to Mr Brasscy enclosing the choque was put in evidence aid read) I sent the defence because Donnelly told me he had retained Mr YTacCormick to appear with me, and I considered it my duty. He did not apply to me for £30 after the action, but 1 have had letters from nearly all the solicitors in Auckland demanding the money. Donnelly never, that I remember, made a personal application for the money. You, Mr Campbell, have applied on his behalf. Letter produced is my reply to your _ application. Very likely on one occasion after the heaansr of the case, I told him (o go to the devil. He came to the oflhe and agreed to take the balance on hand, but would not sign a receipt. It was then I may have told him to go to the devil, for he annoyed me very much. I think there were some people present at the time, clerks in the office and some person Donnelly brought with him. I instructed my clerk to render him £19 19s 4.1, and I believe it was done. This was after Mr Campbell made application for £30. You served me with a demand. On that occasion I tendered you £19 19s 41. I did not deliver you a bill of costs, but I gave one to your client, after the case was heard, and another subsequently. Mr Macdonald said he had no need to cross-examine the witness.

Mr MacOormick, before being sworn, said that he only received £4 3< with the summons, and that was no more than sufficient to pay expenses. Besides, he believed his evidence would be irrelevant. He submitted that £1 Is per day was not sufficient to compensate for the loss of time. The plaintiff had intimated to hiin that lie would bring it down again. 1 he rule did not apply to a case where a man was taken away from the district in which he resided.—Mr Campbell objected to the witness making a speech in the witness box.-—His Wor-hip said if he had the power he would think a £10 10a fee little enough, but he had not the power.— Mr MacOormick said that if he was required again he would make a direct claim for compensation. John Charles MacOormick deposed that he was a barrister, and practised as a solicitor. He acted for Donnelly in the case Donnelly versus Fraser, and had the conviction quashed. It never came to an action for false imprisonment. A letter was sent to Donnelly regarding that case, from our firm, but no reply was received. They afterwards telegraphed, but received no reply to that. Donnelly cime after a month. He said he had not received them. He subsequently came up with the letter, which he said had been opened and detained. I was consulted as to whether he had a cause of action against the person who opened his letter and detained it. I gave the advice that, if he could substantiate, he had actions both civilly and criminally. I was not retained in that action by him or any person on his behalf. X told him I could not act as his solicitor. He did not give me £5 in regard to this case. I do not prepare bills of costs from my office, and seldom see them, but I have no doubt he was charged something, as work was done for him. I certainly did not agree to come down to conduct his case. On the contrary, I told him that it was very unlikely that I should (jo. He offered any fee.aud was extremely anxious that I should. I applied to Mr Brassey to know when the case was to come on, because I might possibly comedown. Arrangements might possibly be made. The bill of costs produced is signed by my partner, and is from our firm. It is a bill of costs in the case Donnelly v. Donnelly. Mr Braßsey was our agent, and where it occurs in the bill of costs that he is called our agent is a mistake. The account produced (cash account) is also from onr firm, (Document put in evidence.) Had I been informed as to what I should have been examined about, I should have made the necessary inquiries, but the firm may have received this money. I certainly did not. Mr Brassey was not acting as my agent, nor as the agent of the firm. He was selected by Mr Donnelly himself. I mentioned the names of all the solicitors at the Thames. I gave tho letter of 6th May to Donnelly to give to Mr Brassey. 1 think I told him plainly he would have to pay Mr Brassey. fifedicl not at that time pay me any I foe in tie caso Donnelly v. Donnelly, becauso I told him distinctly ho had no action or any 'evidence to support it. I explained the whole case to him. My reason for sending my clerk down to the •hearing of the case is stated in my letter to Donnelly. It was, that the letter was in the possession of the firm. He was not subpeoned, but sooner than that plaintiff should run the risk of losing the case we sent him down, and upon the supposition that he might be of use to the man. It was not be cause I was acting as Donuelly's attorney. Three firms of solicitors in Auckland waited upon him in regard to this case. Ho relerrod them to his letter book and Mr Brassey's letter, and they went away s,ilis(id. Donnelly did not write several lettors to me in r« gard to tho £30 ho paid Mr Brassey, There were two. letters which Mc MapCormick read. In the first Donnelly uifqrmccl mo

that he had paid Mr Brassey £30 to be handed to me. In the second ho expressed surprise that Mr Brassey had not handed over the money. The letters were put in evidence, and the Court adjourned for half-an-hour. A fter the adj iurnment, Mr MacCor.aick was cross-examined by Mr Macdonald, he said: The plaintiff consulted me as lo what remedy he had for the wrong which lie had sustained by the detention of the letter. I did not act for the present p.aintiff in any action on tho matter in which plaintiff had consulted ni'?. It was not clear to my mind whether he should pursue' a civil action or a criminal proceeding until a long time after he had consulted mo. It was doubtful to me whether he had a civil, remedy. Mr Brassey did not act as my agent in anything relating to that business. I hud no intimation from any person that [ was to receive any money from Mr Brassey to act in any capacity. 'I he thing was quite indefinite. 1 drew up the particulars, but from that diy f had nothing to do with it until Mr Brassey sent me up a brief lo employ m< its counsel, he being the solicitor. I di.f not refrain from appearing in this Court in that ease by reason of Mr Brassey not romilting me the sum of £30 or any sum, and the plaintiff lenoivs ii very well. J explained my reasons to the plaintiff. ] I saw the man had uo case, and told him so, and I did not want to take 20 guineas trom him. The non-receipt or receipt ol money from Mr Brassey had nothing lo do with it. I had money on hand belonging to Donnelly at tho. time, .and there was no < c sasion for Mr Brassey to send me any mniey. I think Donnelly came up some timo after the case was over, and said that he had paid me £30. I reterred him back to Mr Brassey, and told him I never asked him to pay any money to Mr Brassey for me. The document produced is in the haudwriting of Mr Dufaur. I know nothing of the circumstances of it. I cannot see that plaintiff was put to any loss by reason of Mr Brassey not sending me that money. I thought it a great pity the action was brought, as I thought it was brought upon totally insufficient ground. Mr MacCormick was further examined at considerable length. ' ■ ■ . Patrick Kerwin Donnelly, plaintiff in the action, deposed: I instructed Mr MacCormick to bring an action against Patrick VV, Donnelly. I saw Mr Mccormick in reference to a complaint I had regarding the detention of the letter. I asked- him had he settled that of Mr Fraser's. He said he had. Plaintiff said he was dissatisfied, .ihen the conversation turned on the letter. He said that if he was to go down to the Thames it would be very costly. I would have to pay him fifteen guineas, which I agreed to.; He sent me to his clerk, who took down all I had to say. Mr MacCormick read it. He said, " the evidence is very weak. I'll write a letter for you to Mr Brassey." He gave me the letter and the statement to bring down to Mr Brassey. He told me to get Mr Brassey to serve the summons, and siid that Mr Brassey would do it cheaper for me than if he employed him. I paid no money to Mr MacCormick on that day. I returned to the Thames that night. I went to Mr Brassey next morning. I gave him the letter and he opened it, but what was in the letter I do not know. I asked him what would he charge for serving the summons. He said £3. I agreed to give it to him. I gave him £2, and promised to pay the other when I was passing by. It remained so for three or four days, and I called in to know if he had served the summonses. He said he had not yet, but threw me a paper, and told me to put my name to it, to give him authority to serve the summonses. I signed the paper. That was all he said at the time. There was nothing said about his acting as my solicitor. I can read print, but cannot read writing. I did not read that document. I had no other conversation with him, except in the town, when he said that he was getting up the case for Mr MacCormick. He never said any thing about acting as agent for Mr MacCormick. I went up to Mr MacCormick, as he had sent down word to take no further proceedings until he saw me again. Mr MacCormick told me I owed him a guinea for.taking down that statement. I said I had no less than a £5 note, which I gave him. This was in his office. He then took the case in hand. He had agreed to come down for the fifteen guineas. I went subsequently to Mr Brassey to know when the case was coming on, but he could not tell. I told bim [ was going up to see Mr MacCormick. He asked me on what business, and I said to give him some money. He said that he was going up to Auckland on my business, and that he would take the money up to Mr MacCormick, and save me the expense of going up. I then gave him the deposit receipt for £30 to give to Mr MacCormick. I then wrote a letter myself that night, telling him I had given Mr Brassey £30 for him. He answered the letter, stating that he had been talking to Mr Brassey, but he had not given him any money. I went to Mr Brassey, and asked him why he had not given Mr MacCormick the money. He said be was in a hurry to the . boat and had not time to give it to him. I then asked him to return the money to me, and I would give it to Mr MacCormick myself. He told me to come down at 12 o'clock, and he would have it ready for me. This was on the Bth of June. I went down at 1 o'clock. Ho said there was no boat that day, but if I came down at 7 at night he would have tho cheque ready. Ho had the cheque for £25. I could not say what the cheque was, but he placed it in an envelope before me. I then wroto to Mr MacCormick, stating that Mr Brassey had sent him a cheque for £25. I asked him what swindling he had with my money. I required him to send the whole'£3o, and that was all the dealing I had with Mr Brassey. I wrote to Mr MacCormick telling him that I was not pleased with the way Mr Brassey was dealing with mo. (The letter was read) He did nothing more until the night before tho hearing, when Mr MacCormick's clerk came down on the 15th. Mr Brassey told me Mr MacCormick had not come down. 1 asked him why'did he not get the money. M r Dufaur told me that Mr,..MacCormick had not time to come down. He read a letter to me stating that Mr MacCormick did not come down because the brief did not contain sufficient to substantiate the case, and that he did not like to put me to expense by coming down. He said that Mr MacCormick told me to let it go into Court with Mr Brassey, and I said what use is Mr Brassey to me; why didn't he como down. I then said I would have the case adjourned, and asked hinj. what it would cost. Mr Brassey told me it, would cost £30, and Mr Dufaur said £25. The letter instructing Mr Brassey to obtain tho adjournment was read and put in evidence.) I asked when Mr MacOomick could como down* Ho

told me he could not promise for any time. I then asked Mr .Dufaur about my money. He said it was all right, that Mr Brassey acknowledged having received it. This was before the case was beard. Mr Dufaur said ho would get the case adjourned in the morning. I came down in the morning, and he told me he would advise me to let it go into Court, and not go to the expense of adjourning it. I said thai Mr Brassey was no use to me.' I afterwards consented to let the case go ito Court. I went and told Mr Brassey, having been sent for him by Mr YlacOornvek's clerk. Mr Brassey was not coming down unless he had been sent for. He had a sore foot. I spoke to Mr Rrassey about the nnney after the hear« ing, and he said he had sent it to Mr MacJormick. I borrowe 1 £15 lo pay the expenses. Mr Brassey an-1 Mr Dufaur began disputing about my money, and I stood listening lo the way they were handling me. I wont to Mr Mac "ormick about it, and about charging for his clerk, but be gave me no satisfaction. So I settled with him. He t<ave me £46'belouging to Captain Eraser out of £50. I ihen asked him about the money sent to liirn by Mr Brassey. He said he never authorised me to pay Mr Brassey money on. his' account. 'persevered, and he gave uie a letter t& Mr Brassey. I met Vfr Brassey next'' morning, and he took me over to Mr .Russell's office, lie olTered mo a cheque for £20, and said he woud give me tiie remainder when he came to the ihames. I refused to take it, and referred him to Mr MacCormick, as he was die man with whom I had to deal. I went lo Mr Brassey five or >ix times after, but no gave me no excuso. He always said he had sent it to Mr MacCormick. I went lo MacCormick four or five times, a"d as I got tired of going up I went to Mr W hilaker to see whether I cculd re? over it. Mr Whitaker said he would speak lo Mr MicCormick. I subsequently met Mr MacOortnick,. and he ;,ckno-vledged having received £25 about a fortnight after the case was heard. Actingon Air Whitaker'salvice, [wentto Mr Brassey, and asked him for the £30 tie refused lo give it. i afterwards went with a man and asked him what about the money ? and he told me to go the devil. I went to -a uckland four times to see Mr MacCormick about this money. I was away altogether about ten days. My expenses were, each journey, about £2". iVI y loss of time I cannot estimate. I lost a great deal of time. My time is worth 8s per day. I gave £14 for the costs of the nonsuit, bub he gave me some change back. This was Mr Dufaur. I paid Mr Mac'Jormick costs,' £8 15s. The costs of my own witnesses, I cannot say, some never asked any thing, but I paid about £115s, and I paid Mr Brassey £2 on account of costs. I proffered him the other pound which I owed him, but he refused it. He claimed that amount as damages. Plaintiff was cross-examined at length, and re • examined by Mr Campbell. Counsel having addressed the Court, his Honor summed up the points of the case. He quoted Mr MacCormick's evidence to show that his not having received the money did not prevent him from appearing for Donnelly, and also that Mr Brassey was not acting as the agent of Mr MacCormick. His Honor then referred at some length to the evidence. He said there was no doubt the plaintiff was entitled to some portion of the £80, but there was nothing to show that there had been any damage sustained.— After some further argument between Counsel regarding the money had and received, the Court asked Mr Macdonald to give some explanation on that point, leaving altogether out of the question that of damages.—Mr xMacdonuid contended that there was no account for' money had and received in the plaint. It was from one ,end to tho other nothing else but a declaration of damages, Now that Mr Campbell had failed to prove the case by evidence, he endeavoured to fall back upon the question of money had and received.—His Honor said that it was manifest the faction was not for money had and received, and the plaintiff must either accept a nonsuit or judgment should go for defendant.—'A nousuit* was recorded, with costs against the plaintiff, The costs were £1112s. The Court then adjourned until 10 o'clock this morning.