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THE LIBEL CASK., Ashburton Guardian, Volume 1, Issue 74, 16 March 1880
THE LIBEL CASK.
RESIDENT MAGISTRATE’S ICOURT. ASHBURTON— Saturday, March 13. (Before Mr. F. Guinness, R.M.) Mr. Branson drew attention to an extraordinary proceeding on the part of the Bench in issuing a subpoena to the counsel employed in the libel case to give evidence and produce papers, the production of which could have been obtained upon Mr. Ivess giving a notice to produce to Mr. Crisp. He, Mr. Branson, would, when called upon to be sworn as a witness refuse to go into the box. This action on the part of Mr. Ivess only showed the malice he entertained against Mr. Crisp. Mr. Ivess then called C. J. Truckle. Mr. Branson called his Worship’s attention to his Worship’s ruling of the previous day, that he would not allow further corroborative evidence to be called. Mr. Ivess said that he would raise a point on that question, and quoted “Roscoe on Evidence” and “Judge Johnstone’s Justices of the Peace,” to the effect that it was desirable that too much rather than too little, evidence should be taken in such cases. His Worship said the clause referred to the examination of witness in chief, and not witnesses for the defence. Moreover, Judge Johnstone laid down that one good and unimpeachable witness, with a full knowledge of the circumstances, was better than a number of witnesses whose evidence was not to the point. The test of evidence was weight, not number. There was no use in taking the evidence of witnesses when the value of their evidence would only tend to lengthen the hearing of the case. Mr. Ivess then appealed to the Constitution, and Mr. Branson saidhe would not object to any quantity of evidence Mr. Ivess might elect to call. Charles James Truckle was then sworn X was served with a summons for £3 of rates, and costs 6s. I paid the rates but did not pay the 6s. for letter writing. I did-not pay the 6s. because I thought the charge was contrary to the Borough Byelaws. I judged so because the notice served on me stated that I would be sued if I did not pay by a certain date. I consider the notice was a bye-law. I received a letter from Mr. Crisp. I have lost the letter. I don’t think there was any demand made by Mr. Crisp for costs in that letter. Mr. Branson then read the portion ot the article complained of, and asked the witness what he thought of the article. Witness —I don’t think he had any right to charge the 6s. I can’t form an opinion of the article. Mr. Branson —What would be the tendency on your mind if a charge was made against the Borough Solicitor of wrongly! , . Witness—l can’t give any opinion. Mr. Branson —Then it is no use asking you any more questions. 0. C. Hurrell, Clerk of the Court, sworn—l havj> issued certain summonses from this coJ&, in which the Borough Council wejAlaintiffs ; I can’t say who the persotvlßp who took out summonses. a summons issued 7-tevainst Thomas Bley. This has not been served. There is a charge in the bill of particulars demanding payment of 6s. for writing a letter. There is a similar charge made m a summons against W. T. Smith ; this one was withdrawn by plaintiff’s solicitor. In one against John MTheraon judgment was given in this court for
the amount including the 6s. I have read the article in question. I don’t take much notice of things in country newspapers. If the solicitor was guilty of the charges made against him I should think it fair criticism.
By Mr. Branson —I don’t recollect the Magistrate ruling in this Court that a solicitor may recover costs for writing letters.
Harry Friedlander sworn —I am a gentleman now. I was formerly rate collector for the Ashburton Borough. I received instructions from the Council to collect rates. The letter produced is the acceptance of my tender to collect the rates at per cent. On several occasions I called on Mr. Crisp for advice as to the collection of rates. Mr. Crisp has not made any demand for professional advice. Mr. Ivess—Would it surprise you if Mr. Crisp now made a demand for those consultations ; would you pay him if he made a demand ? Witness—No I would not. Mr. Ivess—To whom would you refer the bill of costs ? Witness—l would refer it back to jVIr. Crisp. I did not employ Mr. Crisp to attend the Court in MTherson’s case. I believe he attended the Court, but not by my orders. The plaints were made out in my name as rate collector for the borough. X proved the debt in the case againsi MTherson. In that case, there is a charge of 6s. for writing a letter, and L2 12s. for rates. Mr. Ivess—Now, Mr. Friedlander, you must be careful what you say. ( Mr. Branson here drew the Bench s attention to the fact that Mr. Ivesss was treating his own -witness as a hostile one. Witness continued —I received L2 12s. for the rates from Mr. Crisp, and nothing more. The amount of the judgment was L 3 14s. Cd. I did not know that the 6s. was charged in the bill of particulars when 1 brought the action. I think thq bill is made out in Mr. Crisp’s hand writing. I did not authorise him to charge the bs. I understand the charge to _ be for writing a letter to MlPherson ; it was not authorised by me. Ido not know of my own knowledge of other similar charges having been made. I did not instruct Mr. Crisp to demand 6s. from Miss Callaghan for writing a letter. _ I think I was served by her with a notice that the amount of the summons had been paid into Court. I did not apply to the Clerk of the Court for the amount, as Mr. Crisp had instructions to draw all moneys from Court. I have never received any of these amounts of 6s. for letter writing. By Mr. Branson —I supplied Mr. Crisp with a list of defaulters, and he took a copy of it. It was left to Mr. Crisp’s discretion as to whether he should write letters or sue at once. By Mr. Ivess —Mr. Crisp said he thought it would be best in some cases to write letters instead of suing at once. It would be cheapest, inasmuch as the costs of the Court would be added to the amount due were a summons to issue. Have never received any money from ratepayers 1 had no right to receive. Thomas Bullock, sworn, said —I am an auctioneer, and was formerly Mayor of Ashburton. ,Am now a Councillor of that Borough. I was Mayor at the time of Mr. Crisp’s appointment as Borough Solicitor. He was engaged at an annual salary. I would consider Mr. Crisp was acting in his proper capacity when he appeared to conduct cases in the court. I am not sure that any schedule of duties accompanied the resolution to appoint a solicitor, or any schedule of charges mentioned in the advertisement calling for tenders. I don’t know that I ever saw such schedule. It might have come under my observation if it had existed. Beyond the reports in the papers and the discussions in the Borough Council, I do not know anything of the facts regarding the charging of 6s. for writing letters by Mr. Crisp, but I certainly disapproved of it, and the Council passed a resolution disapproving of it. By Mr. Branson —The article would have been better left out of print altogether, but these articles in the paper we don't always take notice of. A writer has no right to blackguard people generally in the paper. The criticism on Mr. Crisp is rather strong, and would have been far better left out of print. There have been discussions in the Council, and a division took place in which some members voted one way and some another. I was only present at one meeting at which this subject was discussed. I can’t say how many voted on the occasion. Mr. Ivess here made an effort to discover in the Municipal Corporations Act a clause compelling councillors to vote on 2 resolution put, and on failing to find it, the Magistrate reminded him that if he referred to the Act of 1872, which had been repealed, he -would probably find what he was looking for. Mr. Ivess then said he was of opinion that the power to make such a bye-law was given by the Act of 1876, but he could not at the time find it. Mr. Branson said that was very probable as no such provision existed in the Act.
George H. St. Hill, sworn, examined by Mr. Ivess, said—l am a builder, also a member of the Ashburton Borough Council. I was present at a sitting of the Council on July 14th, 1879, at which applications were received for the office of Borough Solicitor, and Mr. Crisp was appointed. Ido not know if a schedule of duties was prepared. There was mention of a schedule to be prepared. When the Council became aware of the fact that their solicitor charged 6s. for writing letters, they gave distinct orders that such charges should not be made. My impression is that Mr. Crisp’s salary of LIOO per annum was to cover the cost of attendance at Court.
The Magistrate here called Mr. Ivess’ attention to the fact that the expert evidence of Mr. Johnstone was before the Court, and a layman’s evidence against that could not be taken. Witness continued—l am rather foggy as to Mr. Crisp resigning his office as Borough Solicitor. There was some conversation at the Borough Council about Mr. Crisp’s resignation, and there was an opinion expressed that it would be better to retain his services during the latter part of the year, in order that his aid might be made available in collecting the rates, and adjusting and enforcing the Bye-laws. Some of the Councillors said Mr. Crisp had done very little for his salary in the early part of the year, and the time was coming when his services would be required The services wo looked for Mr. Crisp to perform were his attendance at Court to recover rates and to enforce the Bye-laws if infringed. In the opinion of the Borough Council the charging of 6s. for writing letters would be charging twice over. I speak as a party to the contract in this matter. I have read the article upon which this case is brought. I should say the criticism was a fair one on Mr. Crisp’s action. By Mr. Branson —I have had a conversation with Mr. Crisp about the payment of 6s. Ido not recollect saying to Mr. Crisp that the article was an unfair one. I won’t swear that I was not talking to Mr. Crisp for ten minutes at the Borough Council office. I have been told that I was to be turned inside out as a witness here. I can swear the conversation did not last ten minutes. It might have lasted five or nine minutes. I have no recollection of any conversation which took place there. Mr. Branson —Then your recollection must be a very convenient one. Don’t be afraid, Mr. St. Hill, I won’t do you any harm. , Mr. Branson then read the paragraph in the “Mail,” and the evidence of the Collector, and asked Mr. St. Hill to state his opinion as to whether the criticism was a true or false one.
Mr. St. Hill —The thing is so mixed up that I can’t form an opinion whether the “Mail” or the Rate Collector is telling the truth. Mr. Branson—Do you know the relations, friendly or otherwise, between Mr, Ivess and the Friedlanders ? Mr. Ivess objected to the question. His Worship said he could not object to any evidence in cross-examination. Witness —I know four of the Friedlanders. I don’t know if they are brothers. I know they trade under the name of Friedlander Bros. I was present at the last Mayoral contest. The candidates were Mr. Hugo Friedlander and Mr. Ivess. At that time the relations between Mr. Ivess and the Friedlanders were of a mixed character. I can’t say I have noticed articles in the “Mail” attacking the Friedlanders. I should say the relations between the parties are not of a hostile nature. Mr. Branson here explained that his reason for bringing out this evidence was that Mr. Ivess was endeavoring to attack the Mayor under the guise of attacking his own friend Mr. Crisp. Witness continued —I first heard of the charge of Cs. to Miss Callaghan about a week before I mentioned it in the Council. I had conversations with Mr. Ivess previous to bringing the matter up in the Council. I don’t think I had more than one, and I forget altogether what it was about, as I am very foggy about it. His Worship—Then don’t be foggy about what you swear to, Mr. St. Hill. Witness continued —I don’t recollect if the conversation referred to Miss Callaghan. I brought the matter before the Council of my own free will, and not from any urging on Mr. Ivess’ part. I did not speak to Mr. Crisp before bringing the matter before the Council. The question was afterwards discussed, at a subsequent meeting of the Council. I spoke at that meeting, but don’t recollect how long. I don’t recollect if I spoke to Mr. Ivess between the first meeting of the Council, when this matter was brought up, and the second. I can’t say if my memory is a perfect blank or not. I should like Mr. Braddell to point out to me the minutes of the meeting referred to. A fortnight elapsed between the two meetings. In reply to a caution by his Worship Mr. St. Hill said he had heard he was to be put into fits that day by Mr. Branson. (Laughter). Witness continued —Mr. Ivess in no ■way influenced me in my speech at the Borough Council in the way of supplying notes or brains. I asked the question in the Council without knowing who had been charged the 6s. At the time I made the charge I did not know the truth or the falsity of it. I forget whether I stigmatised Mr. Crisp’s conduct as unjust and illegal. I don’t recollect stating that the ratepayer was a lady. Mr. Branson—Do you think it just on the part of the proprietor of a paper to pass judgment on an individual before he can be heard in defence 1 Do you think the criticism published a fair one ? Witness —Cannot give an opinion on the article published in the “Mail,” being on my oath. The Bench—Supposing, Mr. St. Hill, you were not on your oath, would you give an opinion 1 Witness —No, I would not give an opinion, Mr. Branson —What would _ you think of a magistrate sentencing a prisoner without hearing his defence ? Witness —I can’t give an opinion. Mr. Branson—Your mind is in a stale of chaos.
Witness ironically assented to this impeachment. Mr. Branson—Do you recollect Mr. Crisp offering to bet you a new hat that ho was right in charging the Gs. in the case ? Witness —I recollect something about the hat, but not what the bet was about. By Mr. Ivess—lt was not my duty as a Councillor to make enquries from Mr. Crisp. I have never heard you speak disparagingly of the Friedlander Bros. During the Mayoral election Mr. Ivess frequently stopped skits being published against Mr. Hugo Friedlander, _ and did not refer in any way to Mr. Friedlander at public meetings. C. W. Ireland, solicitor, was called, and Mr. Ivess stated that he called the present witness to prove the fact of a schedule of the duties of the Borough solicitor having been prepared. Mr. Ireland then stated that at the time the office of Borough Solicitor was advertised, his firm tendered for the work. Mr. Branson objected to evidence of this nature being given, as it could not be proved if Mr. Crisp had cognisance of their nature, and if they were approved of by the Borough Council. Mr, Ivess here wished to prove that the schedule was approved of by the Council, but failing to elicit any proof of it, abandoned the part bearing on tie schedule. Mr. Ivess —World it be competent fora Borough Solicitor, enjoying a salary, to charge Cs. for writing letters 1 Mr. Ireland-I should certainly have done so if not debarred by the contract. Mr. Ivess—Did you inspect the document called a schedule ; and what were the duties mentioned in it ? His Worship—That question cannot be answered as the document is a nullity. Mr. Ivess—What is a retainer, Mr, Ireland ? Mr. Ireland —A retainer is a fee for certain services, and the term has a very wide range. When a man is employed by a corporate body he is usually bound down by a specification to certain duties. By Mr. Branson—There are various descriptions of retainers. I have known of retainers where a solicitor has been paid a large fee for keeping his tongue quiet. The letter to Mr. Crisp produced I should call an appointment as Borough Solicitor, in the shape of a general retainer for 12 months. Under that letter, as being the only writing, Mr. Crisp was, in my opinion, justified in charging the usual fee for threatening letters to ratepayers. I would, as a professional man, have made the same charge myself. A lawyer does not usually take instructions from his clients to write letters. He writes and charges without instructions The charges for writing letters vary —the Invest charge is usually ss. I have read the article in the “Mail.” If I were an outside person, the effect of that article on my mind would be detrimental to Mr. Crisp in his official capacity. I think that it would be calculated to hold Mr. Crisp up to public contempt with people who were ifot acquainted with him, as it is a serious charge against a solicitor. By Mr. Ivess—l did not look upon the LIOO fee as a silencing retainer. For that LIOO a year I understood the solicitor would be obliged to act for the Borough Council when called upon. It would be competent for the solicitor to charge defendant for writing letters. The contract made was a very loose one. Donald Williamson, merchant, sworn— I am a member of the Borough Council. The Magistrate again called Mr. Ivess’ attention to the utter uselessness of the repetition of evidence which had been taken over and over again. Mr. Williamson continued —I don’t think it was contemplated that charges would be made for writing letters. I approve of the action of the Council in condemning Mr. Crisp’s action in charging for writing letters. This closed defendant’s case, and His Worship said there was no doubt in his mind as to there being a prhna facie case of libel against accused, and he would commit him to take his trial at the next sitting of the Supreme Court—bail being allowed in his own personal recognisances of 1400.
THE LIBEL CASK., Ashburton Guardian, Volume 1, Issue 74, 16 March 1880
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