Supreme Court. CIVIL SITTINGS. Yesterday.

Evening Post, Volume XXXVII, Issue 15, 18 January 1889, Page 2

Supreme Court. CIVIL SITTINGS. Yesterday.

(Before His Honour Mr. Justice Riohmond.) W. A. YOUNG V. GRKINFIELD AND GRACE. Yesterday's sitting was wholly devoted to the hearing of evidenoe in \Ms oaso, in which £7500 was claimed as damages for an alleged! infringement of patent rights relating to palace oars. William Andrew Young, tho plaintiff, was examined at length as to the invention. He* said that he instructed Messrs. Rouse and Hurrell to manufacture a vehicle to fit tho tram line, which should have two wooden axles, no springs whatever, and a piece of board to sit on. On trying it he found that an ordinary bugpy wheel wonld run on a grooved tramway. Thereupon he had two oars built on this principle, and patented them. Subsequently the defendants had four similar vehicles mado— two by Rouse & Hurrell, and one each by Messrs. M. Bohan and G. Lnke— and ran them. Mr. Smith, their managor, asked witness what royalty he would take for the use of his patent, and witness said that ho would have to consider tbo mattor. Mr. Smith expressed tbe opinion that the Tramway Company had sufficient influonoo " to squash any patent witness might take out." Witness suffered considerable loss from the infringement of the patent, beoauso the defendants had by its moans increased their traffic by running to Island Bay and the Hutt. The tramway palaoe-oars wore painted tho same colour as witness', and he knew of cases in whioh people had mistaken the two. Mr. Travers, in cross-examining the witneßß, sought to prove from "The Popular Encyclopaedia," that the invention patented was not new, but that each part of the combination had been in übo in France. To this an objection was taken on the ground that the feature of the defence in question had not been specified in the pleadings in sufficient detail. Eventually counsel agreed to a compromise, by which Mr. Traverß was allowed to amend the statement of defenoe, on the understanding that the plaintiff should be allowed to amend his statement of claim by reducing the damages claimed to £1000. Mr. Travers then quoted from the Enoyclopasdia to show that carriages had long been in nse in different parts of the world which had a swivelling under-carriage to allow them to leave and retnrn to the rails. The witness denied that he had seen any such vehicles, or that he and Mr. Hurrell had designed the invention between them. Re-examined— The book contained no description of the manufacture of the vehicle; and whereas the wheels of the carriage in question cut up the streets, those of witness' oars did not. Andrew Young, senr., also gave evidence in reference to the patent oar. Henry A. Hurrell, coach builder, gavo corroborative evidence, but said that the order originally given to him by the defendants for four cars was afterwards cancelled, and only one was made. Those made by Messrs. Luke and Bohan were, however, practically the same as those turnod out by witneFs. The case was adjourned at this Btage until Wednesday next. (Before tho Chief Juetioe.) WHITEFORD V. WILLIAMS. In this case, a claim of £650 as damagos for injury said to have been done by an excavation, the jury, after a brief deliberation, brought in a verdict for the defendant, and judgment was entered up accordingly, with coeta on the highest scale. This Day. (Before Mr. Justice Richmond). HICEBY V. LUCKIK. This was an action brought by Miohao Thomas Joseph Cormack Hickey, insurance agent, to recover from David Mitchell Luokie, in his private oapacity, and also in his capacity as Commissioner of the New Zealand Government Life Insurance Department, £600 damages for alleged libel. Mr. Skerrett appeared for the plaintiff, and Mr. Gully, with whom was Mr. Gray, for the defendant. A special jury was sworn in as follows :— Messrs. T. W. M'Kenzie (foreman), F. Do J. Clere, A. E. Pearce, A. Hoby, H. Cook, T. Gordon, D. Donaldson, J. Gear, J. M. Richardson, M. Lang, W. Boyd, and O. Kempthorne. The statement of claim alleged that prior to tbe grievance complained of plaintiff was in the service of the Government Insurance Department; that the defendant was then and still is the Commissioner of Government Insurance; that on the 12th September last the defendant falselj and maliciously wrote and published of him the following words : "Hogg stopped payment bill because he found you had appropriated the proceeds instead of paying them into the Government Insurance account. If money not banked by 12 o'clock on Friday the police will be informed," meaning thereby that the plaintiff, while employed as a servant of the Baid Commissioner of Government Insurance, received for and on account of the latter a promissory note for a sum of money from one Hogg in payment of a premium payable by the said Hogg to the Commissioner, and feloniously and fraudulently embezzled and converted the same and the proceeds thereof to his own use, by reason whereof the plaintiff was injured in his credit and reputation as an insurance agent in his said business and divera persons who but for the premises would have employed him have refused to employ him, wherefore lw claims £600 damages. The defendant alleged that he did not in either oapacity write and publish of the plaintiff the words complained of ; that the words were not written maliciously or with any sinister or improper motive ; that the words were written under the following circumstances :—l.: — 1. On the 22nd of June, 1888, at Waitotara, the plaintiff, while employed as a canvasser for the Government Insurance Department, induced one Thomas Urquhart Hogg to make a written proposal for insurance on his own life, and thereupon the Baid Hogg delivered to the plaintiff, as agent of the department, a promissory note for £4 7s 4d in payment of the first premium. The proposal was forwarded by the plaintiff to the defendant, and accepted. 2. The plaintiff always concealed from tbe defendant the fact that he had received the promissory note, and shortly after receiving tbe note he converted it to his own use, and transferred it for valuable consideration to one E. Le G. Jacob, of Waverley, hotelkeeper, and never accounted for the same or the proceeds thereof. 2. The note became due and payable on 3rd September, 1888. and on the sth of that month the said E. Le G. Jacob, as holder thereof, applied to the said Hogg, through the Bank of New South Wales at Wanganui, for payment thereof, but the said Hogg, having learned on sth September that the plaintiff had not accounted to the dofendaut for the note, and had not paid the same or the proceeds thereof to the defendant, declined to pay tho Baid note. 3. On the several matters being reported to the said defendant he, on the 7th September, despatched the following telegram to the plaintiff : — " Wellington, 7th September. M. C. Hiokey, insuranoe agent, Carterton. Bill for Hogg's premium, £1 7« 4d, appro-

tiriated by yon to yonr awn use. If monej not bookod to Government Insurance account immediately proceedings will be taken at onoo. D. M. Luckib, Commiaeioner." 8. On the Bth September,^ 1888, the plaintiff replied by telograph as follown : — " Carterton, Bth September, 1888. D. ftl. Luckio, Government Insnranco, Wellington. Not advised of payment Hogg 8 order. Writo yon by mail. — M. C. Hickby." On the 11th Soptembcr the plaintiff sent another telegram as follows :—: — " Carterton, 11th Sept. , 1888. D. M. Luckio, Esq., Government Insurance, Wellington. - Informed to-day Hogg's order unpaid. Writing 1 on matter to VVavorloy. —M. C. Hickkt." 6. The plaintiff did not write any lettor to the defendant or make any explanation upon the subject, and on the 12th September, 1838, tho defendant despatched the following telegram to the plaintiff :— " 12th Sept., 1888. M. C. Hickey, insurance agent, Cartorton.— Hogg stopped payment bill because he found you had appropriated tho proceeds instead of paying them into the Government Insurance aoeount. If monoy not banked by 12 o'clock Friday, the polico will bo informd.— D. M. Luckie, Commissioner." 5. That in all tho matters herein before referred to, the defendant acted only in his official capacity as Government Insurance Commissioner, and that ho made tho statements containod in the words in question, and wrote the said words in pursuance of his duty as such Commissioner aforesaid, and honestly bolioving the same to be true. 6. 'ihnt the words do not boar the innuendo put thereon by tho plaintiff, but aro to be taken in thoir ordinary and natural sense, and aro not libollous. 7. That the words were justified by tho facts which are set out in paragraph 4 of tho statement of de.'ence. Tho plaintiff, examined by Mr. Skerrctt, doposod that he entered the Government Insurance Department in October, 1887, and loft it in August lasc. Whon he was on a oanTasßing tour of tho West Coast last year ho took a proposal from Mr. Thomas XJrquhart Hogg, of Waverley, for an inBuranco on his own life. Mr. Mogg told him that it would not bo convoniont to pay tho premium just tbon, and it was arranged that a promissory noto should bo given for tho amount. A noto was mado out. but witness understood it was against tho rules of tho department to accept promissory notos or orders, and he did not issue a formal receipt either for the note or tho premium. Ho, howover, gave a receipt for it on his own acconnt. At that time ho was staying at Mr Jacob's hotel, and the landlord took it over. Ho told Mr. Jacob whit tho note was for, and impressed upon him tho necossity of lotting him know tho futo of the note, as if it woro met by Hogg he (witness) would havo to pay tho promium. Shortly after this he left for Wellington. In oonßequoneo of a request from tho Commissioner to that effoct ho tendered his resignation in August, and it was acoonted. After leaving tho Government sorvioo ho entered tbe service of the Equitablo Lifo Insnranco Co. of the United States, and travolled for it in the Cartorton distriot. When ho was at Carterton he reooived a telegram from the Department and sont a letter to Mr. Jacob asking him to let him know whether the noto had been met. In reply ho was informed by Mr. Jacob that tho noto had not been mot, and ho wired to Mr. Luokie to that effoct. Ho loft tbe sorvice of tho Equitablo Company simply becau^o ho did not consider thore was sufficient ¦ business. Ho then appliod to tho Colonial Mutual Society for engagement, but was informed that until tho present action had boon sottlcd satisfactorily tho application ootild not bo entortnined. Previously to tbis ho was told by Mr. Martin of tho National Mutual that ho would bo guaranteed £5 a. week for a month, and if his business was satisfactory he would bo retained. A day or two afterwards Mr. Martin told him that tho offer had been withdrawn. Mr. Martin declined to givo him roasons. Ho also saw Mr. Lambert, of the New York Life, and that gentleman offered him £& a-wook, but subsequently tho offer was withdrawn. He also saw Mr. Gilbort, of the Mutual Life of Australasia, and was told that ho could not bo omploycd. He obsorved to Mr. Gilbert that tbe Government Dopartment was trying to boyaott him, and that gentleman said, " Perhaps so." After tho uommonoemont of the prrsont proceedings hp wroto to Mr. Jacob and asked him to sond tho noto to Wellington. By Mr. Gully— Mr. Jacob debited him with tho nofe, which matured on tho 3rd September, but bo did not feel called upon to pay it, as he did not tee that he should pay Mr. Hogg's premium. He owed Mr. Jacob monoy for bo ird and lodging, and gave him Hogg's note in payment. He did not rocoive the note from the Government Inauraneo Department, and ho thereforo considered that ho had a perfect right to do what he liked with the note. Tho premium was due on the 3rd September, and tho noto became duo on the same day. He regarded tho giving of tho noto by Hogg as a transaction between Hogg and himself only, and one that the Department had nothing to do with. The object of taking tho bill was to aacolerato tho closing of tho. transaction. He had done the same thing in other cas.es. When he handed over the bill to Jaoob ho was to givo witness credit for it and let him know, whereupon witness was to pay Hogg's prominm. Witness at that time owed Jacob money, and the lattor was pressing him for it. Did not disclose the bill transaction to the Departniont, because it was a private matter. It was against tho Department's instructions to take promissory notes, and witness did it privately, to hurry the matter up. Some argument took place between his Honour and counsel at this point as to the admissibility ot cross - examination upon other transactions between plaintiff and defendant, which Mr. Gully stated he wished to conduct for the purpose of discrediting witness. His Honour ruled in favour of Mr. Gully, taking a note of tho point at tho request of Mr. Skerrett Cross-examination continued— Agents' instructions were to pay all receipts into the nearest branch of the Bank of Zealand. Witness had not always done so, because he was sometimes away from place i where there were Banks. He complained of tho telegram sent by Mr. Luokio stiting that he had appropriated Hogg's bill for his own use. By giving the bill to Jaoob, of Waverley, he did not appropriate it. Ho did not pay the note away in liquidation of an account at Jacob's hotel. When he reoeived Mr. Luckie's insulting telegram about appropriating the noto he thonght it was time proceedings should be taken. He did not, however, reply in an offensive manner to Mr. Luokie's telegram. Re-examined by Mr. Skerrett— On one oooasion he wrote to Mr. Irvine, Superintendent of Agents, stating that a3 he had not received tho onstomary advance from the Department he had been obliged to nse some of the premiums, the amount of which oould bo deduoted from what was due to him. It was the duty of tho canvasser to collect the premiums, and aa ha had no banking account he handed the noto to Jacob to facilitate the collection. He denied that he had any intention of appropriating tho proceeds. Re-examined by Mr. Gully— He had interviews with Mr. Butler, Resident Agent of the Department at Wanganni. They went through tho list of uncompleted cases, but he did not recollect saying anything to Mr. iiutlor about Hogg's bill. James Poolo Brandon, Besidont Secretary of tho Colonial Mutual Lifo Assurance Society ? deposed that the plaintiff was taken on by him during the timo that negotiations wore pending for a permanent appointment as canvasser. On the 17th September he informed tho plaintiff that he could not be appointed. Witness had had a conversation with Mr. Luokie about tho plaintiff. He remarked to Mr. Luokio that they were both defendants in libel oasc*. Mr. Luckie then furniahotl him with some partioulars regarding tho plaintiff. Mr. Luckie said that plaintiff had been misappropriating the funds of the Department by using the premium!. Mr. Luokio also said that he could eaßily prove it by hia bookß, and that the plaintiff was "ad scoundrol." The conversation waa a private one. (Laughter.) Witness brought the conversation nndor the notice of the head officor of the Colonial Mutual, and subsequently a letter was forwardod to the plaintiff stating that he could not be employed until tho present action had been satisfactorily settled. He oonld not say whether ho asked Mr. Luokie for partioulars of the plaintiff's case. By Mr. Gully— Witness had a speaial intoroHt in tho plaintiff's oharaoter, becauoe ho was being takon on on probation by the Colonial Mutual. Ac-examined by Mr. Skerrett— Ho made no enquiries from Mr. Luokie regarding the plaintiff's character. William Lambert, managor in Wellington for the New York Life Insurance Company, gave ovidonoo to tho effeot that in consequence of tho plaintiff having applied to him for employment as canvasser, he saw Mr. Luokie, and asked for information about the plaintiff. Ho oonld not recolleot exactly what Mr. Luokio said. What he hoard from Mr. Luckie induced him not to engage the plaintiff. He was told by Mr. Lnokie that thero bad boen irregularities on the part of the plaintiff as regarded premiums. This closed the oase for the plaintiff. Mr. Gully submitted that there was no caso to go to the jury. He maintained that thoro was no ovidonoo of malice. His Honour pointed out that in the case of Mr. Brandon the defendant had volunteered a statement regarding the plaintiff, whereas in Mr. Lambert's caso he had only made a statement respecting the plaintiff in replj to a question. Aftor some argumont his Honour docidec that the publication had been proved, and that there was sufficient evidenoe of malice for the case to go to the jury. Mr. Gully tbon opened tho case for the defence. His Honour pointed out to the jury thai if they wore unanimous the oase should not go on, tho prooeodings could be stopped at once. It was ascertained that the jury wero not unanimous on the point, and ovidence waf then called. [Left sitting.] (Boforo the Chief Jußtice). A. W. CARKEKK V. ALFRED ROGEHS AND DANIEL MURPHY. This was an aotion in whioh the plaintiff sought for the dissolution of the partnership in a flax-dressing business at Waikawa, Manawatn, whioh he alleged to have existed between himself and the defendants for the last six months, on tho basis of a vorbal agreement, togethor with a settlement ol accounts. As alternate causes of action, the plaintiff olaimod .£2OO as damages foi failuro to admit him to partnership in the Waikawa run on oertain terms, in consideration of his negotiating their 15 years' lease, or JJ2OO as payment for services rendered : or that the plaintiff might be declared to be a partner with Rogers in the latter's one third interest in the property, in pursuance of an arrangement made between them. The defendants denied that any partner' ship ever existed, or that any agreement tc onter into a partnership was ever arrived at or that tbe plaintiff assisted them in ncgo tiatinft the lease, or that he porformod th< services alleged. Rogers further deniec that ho promised to share his interest in tht ptoperty with the plaintiff. Mr. Jellieoe appeared for the plaintiff am Mr. £. B, Brown for the defendants. A jury of four was empannelled, of whicl Mr. Isaac Plimmer was ohoson foreman. [Left sitting. |