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MAGISTERIAL., Ashburton Guardian, Volume 1, Issue 85, 10 April 1880
RESIDENT MAGSISTRATE’S COURT,
ASHBURTON— Friday, April 9. (Before Mr. F. Guinness, E.M.) neglecting to register a dog. John Hicks, of Tinwald, for neglecting to register his dog, was fined 20s. NO CHRISTIAN NAME. Cookson v. Stewart. —Claim LlO 10s. Mr. O’Reilly for plaintiff; Mr. Ireland appeared for the person who had been served with the summons, but there seemed to be some doubt as to whether he was the individual indebted, the plaintiff having omitted to obtain the correct Christian name of Stewart. B. Cookson deponed that he was a livery stable keeper in Ashburton, and knew Stewart, the’Government Insurance agent at Dunedin, to whom he had rendered the bill of particulars, and made a demand for the money, He had addressed letters to the person in question as H. Stewart, Esq., and had received answers to such letters. Mr. O’Reilly applied for an adjournment for the purpose of obtaining the correct name of the defendant. Granted. AN OLD ACCOUNT. Weeks and Dixon v. Harris and Ireland.—Claim L 6 3s. 4|d. Mr. O’Reilly for plaintiffs ; Mr. Ireland appeared for the defendants, and asked for an adjournment until the 7th May, to allow of Mr. Harris giving his evidence in Dunedin. He objected, on the ground of a previous ruling of his Worship, to Mr. O’Reilly appearing in the case, as he was at one time a partner with one of the defendants, and hence, it might be assumed, knew the arguments for the defence. His Worship stated that he admitted having given such an opinion as referred to ; but subsequently had ascertained by inquiry and reading-up on the subject that such opinion was not correct. Case adjourned until the 7th May. Weeks and Dixon V. Harris.—Claim L 6 IGs. 3d. Adjourned to 7th May, for same reason as the previoue case. A DRUNK DEFENDANT. M'Leod v. Hoi’rigan.—Claim L 7 10s., for sod fencing and ploughing. Mr. Branson for plaintiff; Mr. O’Reilly for defendant, asked for an adjournment, on the ground that the defendant was not in a fit state to appear. It was afterwards found that Horrigan was in the Court in a state of intoxication, upon which his Worship immediately ordered the man to be taken into custody. The adjournment was granted, after evidence had been taken, until this morning, conditionally on the defendant paying costs of the present case into Court. ANOTHER HORSE CASE. Bryant v. Willcocks. —Claim L 9, for sale of a horse. Mr. Branson for plaintiff, Mr. Spackman for defendant. Joseph Bryant deponed—l am a farm laborer employed on the Longbeach station. I know Mi*. Willcocks. On the 3rd March, while standing at the bar, was asked if I would sell my horse, and offered to dispose of it for LlO. Willcocks offered to give me L 9 10s. for the horse, saddle, and bridle, cash. The defendant gave me a cheque, but I did not look at it. The last I saw of the cheque was when I gave it back to Willcocks on the 4th, and the latter tore it up. I was perfectly sober at the time. On the 3rd, after receiving the cheque, went to Waterton, and offered it to Mr. Doherty, when it was found that the impressed stamp had been removed and the signature torn off. The cheque was taken back to Willcocks, who tore it up, remarking that the whole thing was a joke, and that he did not want the horse. Never sold the horse again. Stayed at the hotel till the 6th. A few weeks afterwards called again, and seeing the horse in a poor state, told the defendant I would take it away, when he (Willcocks) said it belonged to him. Willcocks said that he had given me L4' 10s. cash for the horse, the balance to be paid in three months. The defendant told me that he had drawn up a receipt for me to sign, but that I was too drunk to do so. Willcocks said that he had drawn up a second receipt, however, which had been signed, when witness remarked if he was too drunk to sign one, he must certainly have been too drunk to sign the other. Witness had made several applications for either the horse or receipt, but was refused, when witness ultimately told Willcocks that he would .shortly hear from his (Bryant’s) solicitors.
By Mr. Spackman—l work at Mr. Grigg’s, Longbeach. Saw Mr. Willcocks on the 2nd March. No contract was made on the first day that I went to Willcocks’. I did not notice whether the cheque given to me was torn or not. I was too drunk to know whether defendant gave me the cheque to get rid of me. In a subsequent conversation, Willcocks told me that the giving the cheque in the first instance was a joke, and that he did not
want the horse. Ido not remember ever signing any receipt. [A document was here handed in, the signature to which witness did not deny.] Ido not remember signing the receipt, nor do I recollect receiving L 4 10s. Re-examined by Mr. Branson—When I asked Willcocks what had become of the money, he said I had spent it at the bar.
C. W. Parnell, sworn—l am a barrister and solicitor. I asked Willcocks for the receipt in my office, but the defendant said he would neither show it to me nor to Bryant. He said he would show it in court.
G. H. Willcocks sworn—l remember plaintiff being at the Wheatsheaf Hotel on the 3rd, and he was very tipsy. He did not ask me to buy a horse. He left the horse with me that night, as he was too drunk to ride it. The horse was put in my paddock. Plaintiff tried to sell the horse to another party. The reason he assigned for wishing to sell the horse was that he was going to work for Mr. Grigg, and that he would not want it. There was no signature to the cheque which I gave him. He came in next morning and made a remark that I done a nice thing in giving him an unsigned cheque. He subsequently gave the cheque, which I tore up. I told him I gave him the cheque to get rid of him, and that it was merely given in fun. On the morning of the 4th he offered me the horse for L 9, when I told him I had no use for it ; but I paid him L 4 10s. for it, the balance of L 4 10s. to be paid in three months. I saw defendant sign the receipt on the morning of the 4th. He was then sober.
By Mr. Branson—l gave him four notes and half a sovereign. A fortnight after I saw Bryant, but did not mention anything about the L 4 10s. on that occasion.
John Miles, sworn —I live at Wheatstone. I was in the Wheatsheaf Hotel on the morning of the 4th March. I saw Bryant there, and he was perfectly sober. I saw Mr. Willcocks pay Bryant L 4 10s., and the receipt was drawn up by him. Peter Whitelaw gave the same evidence. By Mr. Branson —Bryant was in the hotel the night before, and I saw him endeavor to sign a document. Bryant received four pounds in notes and a half sovereign on the Monday morning. Mr. Spackman, for the defence, submitted that Mr. Wilcocks did all he could to prevent having any transactions with a drunken man. The evidence had proved that the first transaction was only done to get rid of Bryant, but on a subsequent occasion, when the man was sober, the bargain was struck. He would claim for the amount and costs. Mr. Branson said it was ridiculous for Mr. Wilcocks to come to that Court and tell them that the transaction was merely a joke. The case was really one in which the landlord of the hotel took advantage of the drunken state of the guest to get a bargain. If, however, his Worship gave a judgment against the plaintiff, he trusted he would not grant costs, considering that Wilcocks had refused to show the receipt, and hence the plaintiff had to seek justice in that Court. His Worship gave judgment for defendant, with costs, remarking that Mr. Wilcocks left the Court free from any charge of discreditable conduct as insinuated by the counsel for the plaintiff. THE IVESS LIBEL CASE. Harry Friedlander v. Ivess. —Claim L2 2s. costs of preparing and obtaining Mr. Ivess’s consent to publication of a public apology for a libel on Mr. Harry Friedlander contained in an article published in the “ Ashburton Mail,” and headed “ Six Shillings Costs.” The apology was published in all three Ashburton papers. Mr. Branson appeared for Mr. Friedlander, and Mr. Ivess conducted his own case. Mr. Branson, in stating the case, said the claim was for the solicitor’s fee as mentioned above. He alleged that the then editor of the “Mail,” Mr. Haughton, had, while acting as agent for Mr. Ivess regarding the apology, agreed on Mr. Ivess’s behalf to the payment of all costs. This being so, Mr Ivess had no right to “ approbate and reprobate,” but must either accept the whole or none of what his agent did. He had no right to accept the benefit of the apology, and renounce its conditions. The benefit the apology gave to Mr. Ivess was that it saved him from the consequence of a criminal action in which he certainly would not have got off as he had got off in the one laid by Mr. Crisp. To say the least of Mr. Ivess’ refusal to pay, it was mean. C. W. Purnell, sworn, said —He had been engaged by Mr. Friedlander to obtain an apology for the libel in the “ Six Shillings Costs ” article from Mr. Ivess, and failing that, to prosecute. Wrote to Mr. Ivess, and received a letter in reply, in which Mr. Haughton was empowered to act as agent in the matter. Mr. Haughton drew up an apology. It was not considered sufficient, and was rejected in toto. Ultimately the apology that appeared in the papers was accepted. Told Mr. Haughton that Mr. Ivess would have to pay costs, as it was their express instructions to make such payment part of the conditions of accepting the apology. On behalf of Mr. Ivess, Mr. Haughton agreed to the payment, saying that the costs were a trifle compared with the bitter pill Mr. Ivess had to swallow in having to make the apology. Without the payment of the costs,"the apology would not have been accepted, and the promise to pay w T as accepted because they believed Mr. Ivess to be a gentleman. The entry in the firm’s day-book (L2 2s) represented the amount of costs due, and was made at the time.
By Mr Ivess—The copy of the apology sent to the “Mail” office contained the orders for insertion over the leader in each of the three papers, and also a note of L2 2s, costs. Knew nothing of what Mr. Ha ughton said to Mr. Ivess. Harry Friedlander, gentleman, was present at the interview between Mr. Haughton and Mr. Purnell. Mr. Haughton was sent to Mr. Ivess to let him know that without the payment of costs the apology would not be accepted. Mr. Haughton said it would be all right, and Mr. Ivess would be glad to pay the money. Mr. Ivess, sworn, said Mr. Haughton was instructed to agree to the apology, but on no account to agree to any legal costs. Would rather stand the brunt of the action threatened for libel than pay legal costs. Whatever the evidence, Mr. Haughton had no authority to agree to those costs, and he held a letter from Mr. Haughton from which proof could be obtained that he had no such authority. Mr. Ivess then addressed the Bench. He said the whole basis of the apology was its publication in the three papers, and Messrs Branson had no right to add farther terms after that basis had been fixed. Mr. Ivess contended that there were several kinds of agents, and the agency Mr. Haughton was empowered to exercise was only a limited one. If he had exceeded that authority that was no reason why costs should be recovered from himself that he had not incurred. Mr. Branson was notorious for his bad taste, and had been repeatedly snubbed by the Bench, and by every professional gentleman who was his match in bullying. Though a lay man he would not permit Mr. Branson to bully him. Mr. Haughton was an honorable man, and would pay the costs himself if he had agreed to them, but there was no evidence of this agreement. Mr. Branson said he was astonished that Mr. Ivess should choose to speak in the strain he had done. There could be no doubt that that apology had enabled Mr. Ivess to wriggle out of a nasty scrape, and the apology itself was an evidence of the white feather on his part, however much he may now put on the brazen face and defy Mr, Friedlander to go or with the case for libel, Mr. Branson
then recapitulated the facts the case, reiterating his assertion that if a case had been laid by Mr. Friedlander Mr. Ivess would have been heavily mulcted. The statements of the agent were in law the statements of the principal, yand the actions of the agent were the Anions of the principal. If the agent conroffted a fraud upon the plaintiff’s solicitors, there could be no doubt that Mr. Ivess enjoyed the benefit of the fraud, and by it had escaped the consequences of a criminal action for libel. Mr. Haughton was virtually accused by Mr. Ivess of having told deliberate falsehoods in the case, but was it probable that a gentleman of Mr. Haughton’s standing would have been guilty of conjuring up a speech for Mr. Ivess that had never been made, and giving Mr. Ivess’ consent to proceedings, when he knew no consent would be given. His Worship, in giving judgment, said the evidence before the Court led him to believe that the agent had been fully empowered to complete the contract for the apology, and he would therefore give judgment for the plaintiff with costs. It was a case that ought never to been brought into Court, and would have been far more satisfactorily settled outside.
MAGISTERIAL., Ashburton Guardian, Volume 1, Issue 85, 10 April 1880
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