SUPREME COURT. CIVIL SITTINGS. This Day. (Before His Honor Mr. Justice Johnston.)

Evening Post, Volume VI, Issue 263, 19 December 1870, Page 2

SUPREME COURT. CIVIL SITTINGS. This Day. (Before His Honor Mr. Justice Johnston. )

SMITH V. CLELAXD. This was an action brought by James Smith, > auctioneer, against Joseph M. Cleland, merchant, to recover £1000 thunages, for libel and slander. Mr. Allan appeared for plaintiff, and the At-torney-General, with whom was Mr. Borlase, for defendant. The following gentlemen were sworn as a special jury -.—Messrs. J. E. Nathan, W. Bishop, It. Port, E. H. Hunt, J. H. Wallace, Wm. Rowlands, J. 1?. E. Wright, J. -A. Allan, T. A. Young, C. J. Toxward, jST. Marchant, P. C. Kreeft. Mr. Allan, having openecbthe case for the plaintiff) called^ •"*"*<! • I ? - -" ? - J. F. Wills, who said he was an accountant ; he had been employed as clerk to the plaintiff fora sale at Thorndon, on the 10th" October last'; the goods were those in Mould's estate, and were sold by Smith, under instructions from Cleland ; the sale lasted four days ; on Friday, 14th, the day for delivering the goods, Cleland came to the place, vand Smith, arr^ved.soon after j Mr. Ellison whs present -; Cleland asted if Marks had paid for his goods ; witness s^id he did not

know, but tliafc Marks and Smith, had gone away together ; Cleland asain asked if Marks had paid ; witness and Ellison said they had not rereceived any money ; Ellison was sent to find. Mark 3" and get the money ; and" by Cleland's orders all further delivery of goods Avas stopped, and the shop locked up ; the goods bought Hy Marks had been deliverect,;. .Clelaujd^saitL.. he would deliver no more goods until lie got the money for Mark^s ; Cleland said to those in the Shop. "Jemmy Smith, "is" a : swindler, " and T*l! give itiiii Seveu years en the roads ;" he said this gevfefal tiirtes over ; he"' * Was , very much, excited : lie also said. "He has got that cheque, altd" her has no ri^ht to it ;" witness then left the shop ; hatl not seen aii3 r cheq_ue given ; when Marks came* in the morning, he saw Smith, and said he waiifce'd to 1 get Ills goods and pay for them, as a vessel was waiting to trtke tuem away : Smith and Marks then Went nway together ; when Cleland came the second time! to the shop, he said that Marks had paid the mcraej ; it w.ts was then "he sent to look for Marks and Smitli, and wlien the messenger returned without n'naing thenVCletand ttsed the language about Smith being a swindler/ Cross-examined by tli4 Attorney-General — It was Mould's business at the Sale to- receive money; made -out all the accounts ftt name, and had not heard that Smith was «ot to» receive any mouey 5 Marks was the first to apply for delivery" ; some small things had been paid for to Mould cittrJricf tile sale ; did not tell Cleland, or hear him told by Elliscto, that Marks had- gone away to give the cheiiua.fo SnKthr y^dlA not hear anything said "as "to w-here^they tnari gone • wfts not sure whether Ellison was Scttf? away more than once to look for Smith ; 1 think he was sent after .^oiith and Marks to get a cheque ; what Cleland sclld" "Jemmy Smith has got the cheque ; he has nd tight to ft ; he's a swindler, and I'll give him 7 j'ears ofl t&e' roads/ 1\ H. Ellison said he had acted as assistant at the sale of Mould's goocls ; on the delivery day, Cleland came in and asked if Marks had a;ot his goods ; witness said yes ; Cleland asked if he had paid him, a fid he replied no, but that Mr. Smith was there, arid had gone away with Marks, saying he would return in. a few minutes : Cleland blamed him for allowing the goe»ds to he removed without getting the money ; wltt>«sai offered to go and look for Smith, and on his re.turn told Oleland Smith had gpne'dqvra jjtown ; then went down the" beach, and fmnid iSmibb.' in front of the Court House ; Smith said he had received a cheque from Marks ; witness asked for it, saying he' had been sent by Cleland ; Saiith refused to give ib, and Witness returned, and told Cleland what had taken place ; the value of the goods sold to Marks wa_s abbttt|£l-£ ITs ; Cleland said? Smith! was ?a. |6gue|ftM A scouiTdrel^arid-ifMiij did not give? up the fctteqiie that day, he would give him in charge, and give him 7 years on the roads ; Cleland used words to the same effect again during the afternoon. ' By the AttoTney-General— >Went to the public houses to loolc for Smith on the first occasion, as had heard him ask Marks to go and have a glass of alo ; found thej'- had been at Urwin's ; had heard Smithihad.got a cheque from Mnrks/'and told Cleland so 3 fomfiKMd! nothing to dcbritli delivering the goods ; never saw Sfliit.Jirrecerpc^ any money ; Marks had previously paid Mould for some goods ; Mould accounted to Cleland ; Cleland was very.excited wKen3|tl sp^oke abont Smith ; Smith was not drunk ; he appeared quite right when he refused to give up the cheque ; knew he had had two or three glasses of beer that morning, but it did nqt.seen^ to have had any effect on him^ * "' * £->S*s James Smith, plaintiff in the action, said he had been an auctioneer for 25 years ; had endeavored to secure the attendance of -Marks, Avho was in Picton ; sold Mould's effects for Cleland in October last ; Marks bought sfoifte j it was agreed that Cleland should gefc some olid to receive the money during and after the sale • on the 14th went to see how the delivery was" going on ; neither Cleland nor Mould was there ; Marks wanted to get his goods in a hurry, and begged him to take the cheque j b witness refused at first to take the cheque,, bulb afterwards"^cbnsented, and received it at Urwin's; and gave a receipt ; the cheque was made payable to him as auctioneer ; his commission .as auctioneer, then due by Cleland, came to'a good 1 deal more than the cheque ; stuck to the cheque, as having a lien on it for commission ; afterwards complained to Cleland o£ the reports he had spread ; he replied people were abominable liars, not to believe a word of it, as he had never said an angry word about him.' 5 ¦ i * ' I ? By the Attoi-ney-General — The arrangement with Cleland was quite an ordinary one ; here parties having sales usually collect their own money when they have clerks ; it was usual when he was engaged a? auctioneer that it was agreed he .should not receive the money ; it was a fact that he was addicted to drink, and was not in a flourishing way of business ; a sale was not a rare thing with hip i S,jjb~qugluhe had no office; kad,not been insolvent ior five yeavs.f bad been unjustly arrested for debt' within that time ; it was for his own convenience that the arrangement was made that he should not receive the money; believed Marks had paid Clelaud money during the sale ; Marks, _when in the sale rppm, oifered to" give_a cjieque^ and witness JSpKL Ellison to deliver the goods, as it would be all right ; could not say if he told Ellison how it was all right ; there was some stale Colonial beer in the sale room, but they went to TJrwin's to get some- : thing they fcould (kink ; ~fc'ad/ joshed cheque aim given Cllland eredit^or the amount on-account of commission ; dicl Inot tell Allison why he refused to give up the cheque ; had not returned any account sales to Cleland, as Cleland had possession, of all j the books for some days ; don't think'the "cheque was entered in the books ; had never said he did not want damages in the ease;* and would jbe glad" to" Slrop^he action"^ but that Mr. 'Allan" would let 'him interfere ; had refused to speak to Cleland on the subject, and referred him to, Mr... Allan ; knew Robert Cleland, but had never told him anj'thing of the kind ; had been at his place within a fortnight or thi'ee weeks, but it was an abominable story to say that he said anything of that kind there ; had said that the ease was in Mr. Allan's hands, and he would not interfere. By Mr. Allan— Had sued Cleland in the li.M. .Court for -his commission on Mould's sale, and ¦had J gfifcja; vertlfcfc \ 5 %&H |ufen« ©idSfedlor^lit there for Mark's cheque. This closed the case for the plaintiff/ . .The Attorney-General having addressed the jury for the defence, called J. M. Clelaud, -who said he was the defendant, and a storekeeper ; ip. .October' last he-arranged with Smith to sell Mould's goods, as he had a bill of sale over them ; the arrangement was that Smith was to, get? 24 per Jcent< eopimission on all goods actualty sold, but that he' was not to receive any money ; witness said he or his own. clerk would take the money ; Smith snggeated that witness should take the money, and witness replied he intended doing so ; Mould yras the person appointed to receive the money ; saw Marks on tha morning of the 14th, waiting to take delivery ; Marks said nothing about paying ; witness went away and returned abont noon ; Ellison told him that Marks had put his goods into a trap, and then Smith caught hold of Marks by the arm, took him off to the public house, and got the: cheque j witness then sent Ellison to Smith jfor the^ cheque^ be*went and returned, saying €b&i SSnith Jmd^ref uspd to give up the cheque ; witness was very angry, and could not say what he then, said ; did not remember using the, hrords sworn to by "Wills and Ellison ; had never got any account sales from Smith ; the books were left with, him for two or three "days^when^rms'ilam^of ttienH di^ot now know what the sale realised, but knew what Smithjiad claimed as commission ; Several days after Smith came in a very excited state regarding some statements he had heard j witness de-

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nicd knowing anything about the charges made ; before this had seen Smith at Waring Taylor's, and asked for the cheque ; he refused to give it up, but did not say why. By Mr. Allan — When Smith sued for commission, the defence set up was that no commission was to 1)3 paid for goods purchased by witness himself ; he had bought about two thirds of the goods ; the case was decided in Smith's favour, giving him 2\ per cent on all the goods sold ; in the Court then credit was given him for the amount of Marks' cheque, and only the balance wan sued for ; the argument with .Smith was that no commission wm to be charged on what ho bought ; such an arrangement was quite the ordinary thing with auctioneers ; on the whole four days only £100 worth of goods had been sold to other people than witness ; wifcnesa believed .Smith had perjured himself in the Resident Magistrate's Court ; had j-aid ho in a let' ter, and might also havf sni-l it vrrbally ; had never offered to pay inonoy to settle rlio present case ; had asked Mr. Turn bull to try and ricttln the case, Robert Cleland, storekeeper, s.iid that about three weeks ago .Smith came to his place about Home business ; they talked about the action, and Smith said he did not unnt any of the £ 1000 ; that he was quite willing to Kettle the matter, but it was in Mr, Allan's hands, mi I lie would nt>b Settle it. By Mr. Allan— ft was he who sent for Smith about a proposed sale ; could not «ay who first began to talk about the action ; (Smith did not say why he Wanted to settle the action, nor did he ofFer him any money ; witness had often spoken to Smith about the action, who always seemed willing to settle, but said it was in Mr. Allan's hands ; had never gone to Mr. Allan about the matter. This was tho case for the defendant. The Attorney-General addressed the jury, contending Mat the language used by Cleland was justifiable' under the circumstances of the case and Smith's own misconduct. The case was one the merits of which would certainly be met by one farthing's damages. Mr. Allan also addressed tho jury, contending that the evidence proved tbcit Cleland had wilfully and maliciously slandered the plaintiff, and that substantial damages should be given. His Honor having summed up, the jury retired, and had not returned into Court when we wont to press.