SUPREME COURT.

Gisborne Standard and Cook County Gazette, Volume I, Issue 11, 5 July 1887, Page 2

SUPREME COURT.

(Before Chief Justice Sir James Prendergast. A Th”'rd Libel Case. CL AIM £5OOO - ERDICTii’riR DEFENCE. 'ill’s waa an action lor £5OOO damages for alleged libels contained in delendants’s paper, Tne Poverty Bay Herald. Mr Rees appeared or the plaintiff, and Messrs DeLautour and Mr Chrisp for the defendants. Tne following jury were sworn l—C. Evans (foreman), J, Brown, J, Thompson, A. P. Knight, W. Pi Fifineran, J, T. Evans’, C. P. Browne, It. Sherrattj G, Garrett, B. B. Curtis, J. Weir-, A. B. Newman, After eotae argument as to the pleadings Mr Bees opened the cage for the plaintiff and called evidence. G. Adams ; He was a Hansard reporter. Did not transmit a telegram to the Herald of July 6 or 7 referring to Brassey and the Law Society. Knew nothing about it. Had reason to believe there were several gentlemen eorresponding for the Herald—he believed Mr Galvin and Mr Ranwel! had done so. Had not seen the telegram till he read it soine days later. Had had no correspon deuce with the Herald. Had not talked to the Post people about it. Was on the Herald prior to going to Wellington. The literary employees of the Herald were the agents of the Press Association, but ha knbiV that other telegrams had been sent to Wellington independent of this. He was not the agent.

John Warren, Clerk to the County Council, was examinee and cross examined at areat length by Messrs Bees and DeLautour as to o£ " aile S eii umeppropriation uf the Council,'a money by Mr Drassey ” T. Chrisp, part owner ’of the Herald, also gave evidence to the effect that he was occupied with the business management of the paper and had nothing to do with the literary part,

A subpeena had been issued for Mr Muir but he could not be found. Mr DeLautour for the defence called the following witnesses:—Messrs J. R. Scott, M Macdonald, Nolan, and Gray. Before questioning the last witness (a member of the County Council), Mr DeLautour said he was about to bring forward evidence as to Mr (Brassey’s reputation at the time of the alleged libels.

T ?’ Glenwood : Knew plaintiff. About July 7 there were two writs against him • one at the suit of the Bank of New Zealand for about £240, issued O n Marell 30, 1886 Mr Direy acted as Sheriff’s bailiff. There was also one writ, issued by J. Irvine, on February 5,1886, in which Mr Direy acted as bailiff. Those were the only writs issued at that time. He could find no warrants as having been issued out of the R.M. Court about July 7. [A memorandum was here read from Mr M. Macdonald agreeing to hold possession]. At that time he (witness) believed Mr Macdonald was the managing clerk to plaintiff. Mr Jones was also clerk to the plaintiff, and was put in charge on one writ. This was done by consent. If this was irregular he (witness) did it to save expense to all parties concerned. Had never received any communication from the Minister of Justice complaining of his conduct on the subject. F. Morgan deposed: Was accountant at the Union Bank. Produced cheque for £155 Is Bd, signed by Common, Sheltou and Co. That cheque was paid through the Union Bank to the credit of Messrs Brassey and Fraser on May 11, 1886. The account was in credit before the cheque was paid in, The account was in credit now. One pound would keep an account in credit. On May 14 the account was not in credit by £155, but perhaps about £l—he referred to the second account.

To Mr Rees : Remember a cheque for £155 being paid in on June 1. The account had been operated on from time to time. In May four or five amounts were paid in, and several amounts were drawn out. Re-examined by Mr DeLautour: There were two credits paid in on June 1 one for £5O and one for £155. H. E. Kenny, Solicitor: Remember in May last year receiving instructions to proce»d against Mr Biassey. A consultation took place between the County Clerk and himself, and he was instructed to take no action till the next day. The next day he received certain instructions in consequence of which he drew a certain information in which Mr Warrenjwas the informant. (The information was read, and charged the plaintiff with larceny as a bailee of a cheque for £155.] Mr Brassey, Mr Nolan, and Mr Ward sailed at his office, and Mr Ward asked that the information should be postponed until the next morning when the money would be paid. Said his instructions were imperative. Shortly afterwards he met Mr Brassey who said

” For God’s sake Kenny remember what you are doing. If you will leave this matter over until to-morrow morning the money will be alright.” He (witness) replied lie had no option in the matter but to proceed, Mr Ward again interviewed him, and produced a roll of notes which he said amounted to £lO5. Ha asked him (witness) to take that amount and the balance would be paid next day. Witness refused, but went with him to Mr Warren’s office, where he (Ward) tendered the money, and Mr Warren refused to

accept it. At noon on May 31 he waited upon Mr Warren to swear the information. On their way to lay the information Mr Brassey met him and said, “ For God’s sake, Kenny, think of the serious consequences of this action to me !’’ He (Brassey) begged for half an hour’s time, which Mr Warren agreed to allow. At the expiration of the half-hour they went to lay ths information. It was read over to Mr Warren, who was just going to swear it, when Mr Ward came in and said they would find the money at Mr Brassey’s office. They went there, and found a marked cheque for £155. Mr Warren, in accepting the cheque, said he did so without prejudice to any action the Council might take in the matter.

To Mr Rees: Had no doubt whatever that the fact of the proceedings being iu contemplation compelled the plaintiff to pay the money. The Council claimed £l4B out of the cheque. Was told the plaintiff claimed costs, which were in dispute. Had advised that either embezzlement or larceny as a bailee had been committed. Had advised the Clerk that he must not abandon any right to prosecute it the money were paid. His Honor remarked that the most extraordinary thing was that, from the evidence called for the plaintiff, it appeared that he (the plaintiff) had allowed the costs of the contemplated criminal proceedings to be deducted from his bill of costs.

Examination continued: Had never told plaintiff the nature of the charge that was to be laid against him. Distinctly understood that when the plaintiff said “ for God’s sake think of the serious consequences of laying the information ” lie meant that the serious consequences would be to himself (plaintiff). After some argument between counsel His Honour held the evidence was not admissable. Mr DeLautour then addressed the jury for the defence in a long and eloquent speech. He referred at some length to the fact that Mr Bees had not put his client into the witness box. He reviewed the whole of Mr Warren’s evidence, and argued therefrom that the whole of Mr Brassey's action were those of a guilty man. The defendants were

quite willing to admit their responsibility for the articles published as they considered they had bnen justified in what thsy had said by Mr Brassey’s conduct. He emphasized the allegation that Mr Brassey had used the money for his own purposes. Of course he meant to pay it back, but that did not justify his retaining it until it was only paid under a threat of legal proceedings being taken. He considered it was time solicitors understood that they must not deal recklessly with the monies of their clients,-and he thought that it nothing else were the result of this

action but the lesson afforded to the young lawyers of the colony to deal more carefully with the money entrusted to their care the lesson would not have been lost. He regretted to notice a lowness of tone in many of the solicitors of the colony, and he asked the jury to support those who had honestly striven to put an end to such a state of things. He claimed a unanimous verdict for his clients,

Mr Bees_ began by asking the jury to disabuse their minds of any possible feeling towards either side. He twitted Mr DeLautour on his references to the profession—there was ho doubt much, truth in what he .said, but if the profession Were robbed of Mr DeLaiitour’s valuable assistance there still would be some Who would endeavor to keep the profession pure. When his learned friend said everyone who disagreed with Mr Brassey must have personal bias, according to that he (Mr Rees) must also have a personal bias, for he very strongly disapproved of some things said to have been done. But the jury must coniine themselves to the lacts of this case. He drew attention to the telegram in lhe Herald that the Wellington Liiw Hociety was about to investigate a charge of improper conduct against Mr Brassey. The Council did not send the letter far some time after, and the question was whether such a telegram had come from Wellington at all, He asked'the jury whether, when the defendants were, going to rake up ail sorts of charges against Mr Brassey, he was not justified in not calling him, but Mr Brassey was there if the other side wished to cull him. lhe intention of the defence Was to make so many attacks, to hurl so much opprobrium—to cast so much mud from beginning id end that some at any rate would adhere. They wanted to rake up everything from 1882 to 1887—to say everything that possibly could be raked up from the gutter of scandal in order to villify and destroy the plaintiff’s character. The jury must not listen te Mr Deuautour s “ clap-trap ” about the profession. (Suppressed laughter). They aecused a solicitor of being gu.ity ol felony, find the only ” proof ” they could give was to cast general aspersions. The plaintiff had been tired at long enough—the other side should have a turn in the field now. His learned friend very cleverly made the plaintiff and the County Council the contending parties — put up the Council in front of Chrisp uni Muir: Chrisp got up in the box and said he knew nothing of hie own business, and Muir, the only other person who could tell them anything, could not be subpcenacd. The defendants issue page after page of slanderous reiterations; if this sort of thing were allowed who would be safe ? If plaintiff had done wrong tnere was a proper method of bringing him to account —the Council had taken this course, and the matter was still before the Law Society. The defendants take unprivileged matters, publish and magnify them, and endeavor to hold plaintiff up to public ignominy, and then call it fair comment 1 If everyone were allowed to do such things without pi oof there would be a nice state of affairs. He was no advocate for the breaking of the law; he believed in the liberty of the Frees, which was iu truth a grand institution when properly conducted, but what could one think of a wretched “ rag,” which resorted to every improper means to ruin a man, his wife, and nis children after him ? Tne defence would not put the plaintiff in the box—thus actually insinuating that the plaintiff would perjure himself I—in. order to get a verdict. From the Hist to last the same deliberate insults had been offered, and he (Mr Bees) asked that the defendants might be made answerable for their displays of vindictiveness, malice, and hatred. It was the duty of lhe Council to have asked Brassey for his bill, instead of threatening to prosecute him first. Brassey’s wisest course would have been to let them swear the information aud then punish them for it afterwards. But plaintiff naturally dreaded having it telegraphed all over the colony that a criminal charge had been instituted against him. The Council persisted in having their pound of flesh, even to the Is Bd. Mr Bees then reviewed the various points in the evidence. It had been suggested as a cause of all these attacks that plaintiff stood in lhe way of the son of one of the proprietors of the Herald. He characterised the denial of Captain Chrisp that he knew anything of his own business us a lie. These infamous slanders might be forgotten by many after a while, but lhe victim could not forget it Mr Bees quoted the old proverb about judging everyone by his sins and see who would escape. The plaintiff was entitled to substantial damages. His Honor reviewed the points in the case, and after the jury had been ab ent nearly three hours they returned with a verdict for the defendants.

Another Big Civil Action. JUDD V. COMMON, SHELTON AND CO. £5O DAMAGES AWARDED. This was a case (heard yesterday) in which the plaintiff claimed £3OO damages for an alleged libel, The following gentlemen were sworn in as a jury :—Captain Winter, Messrs 1?. Bourke, Croll, Friar, Adams, Nasmith, Maude, Parnell, Houlden, Colebrook, O’Byan, and Coleman.

W. Judd deposed. The valuation of my stock wae £725, Mr Shelton read the agreement of sale to Mr J. D. Watts. (Letter read from Common, Shelton & Co. detailing the terms upou whichthe store was to be

run by Mr Watts. I showed Mr Shelton a copy of the balance that ho had shown him on the 17th March, I posted to the peoples' names to whom I owed money. I said 11 now what about these ” (the other creditors) Mr Shelton said he would settle with them, I asked him how he would pay them, whether at once or when the bills matured. “He said” That is my business Mr Judd. He said there was no need for any agreement about thia, saying “ cannot you trust me after these years we’ve dealing together. I said if he Mr Shelton were satisfied I was. I then said I think you have sent too good a man (Mr Nioholls for me and supposing I get £l3 or £2O short, will you touch my sticks of furniture " He said "Certainly' not Judd, nor shall any one else” I don’t think you will

be short as Mr Nicholls is a very fair man. The valuation of the shop was £7O over and above the balance sheet. Mr Shelton was not present when the valuation was going on. The valuation was completed on the 25th. I gave the shop keys to Mr Watts. Mr Nicholls was present, and took away the

books and papers to his house. Slept at the shop on the 24th and 25tn, and had shifted my own furniture on the 24th. On the 25th had only a mattress and two rugs. Had no appointment to be in town on the 26th. Had seen the document now produced. 1 got it from Mr Logan, of the firm of Mackey, Logan, Steen aud Co., of Auckland. It is dated March 26th, from Matawhero. Have never authorised Mr Shelton to write a letter of that description, nor anyone else acting for him, and never authorised anyone to do so. Never gave a description of my position as mentioned in that letter to anybody. The

date is the day after I gave up possession. First became aware that the letter had been sent on the 28th, and on that day went to Mr Shelton, and showing him a copy of it said “How did you dare to do that; you have ruined me." I asked him who authorised him to put my name to a letter like that, and added “ The Auckland people will put me in prison.” Shelton said “Oh you can go and file.” I said “ I have no need to file as your own valuation shows 22s 6d in the pound.” Shelton said “ You require a substantial cheque I suppose.” I told him I would see him damned before I would take it under the circumstances. I went home, and next day got a telegram from Macky, Logan & Stevens, and on the following day got a letter from McArthur & Co. I took advice, and went to Auckland on the Sunday morning. Told Shelton I was going to Auckland

to expose to the Auckland creditors that which Sheltou had written about me. Shelton said if 1 dared to go to Auckland the bills should take their course, and advised me not to go. I told him I would go at any cost. I saw the document (produced) in Auckland I think on tiie day I arrived. (Mr Brassey read the document which was signed Common, Shelton & Co., but was undated.]

Since I returned from Auckland I have seen Mr Shelton, but have never spoken to him, and directly I got back I was summonsed for £96 by Common, Shelton and Co. Judgment was given against me. Examined by Mr DeLautour: Had seen Mr Shelton before the 17th of March about selling the store. He asked me for a statement of liabilities, have never stated the opposite. The sole reason of bringing the balance sheet on the 17th was because Mr Shelton asked me for it. Cannot recollect all I said in the Bankruptcy Court. Do not recollect saying in the Bankruptcy Court that the 17th March was the first time he

hid asked Mr Shelton to take over the ttore. I proposed to make a balance sheet and show Mr Shelton how I did stand. It was on the 17th that the conversation about Watts not having money enough to buy me out took place. The list of book debts amounted altogether to about £lOOO, there was £449 good. Some of the debts were bad and doubtful. None of those left were bankrupt. Mr Shelton went through the bad and doubtful debts in the small book, and was perfectly satisfied. There was enough to pay 20s in the £. Certainly did not ask the advice of defendants, nor did he think it necessary, though they Were the largest creditors, Bapeatedly told Shelter: that I was going back, as the business c.id not pay, and I wished to get out of it. Tried through defendants to find a purchaser. Nover said in my life that I was likely to get in a mess over 'the store. The bibs due on April 4 included one to defendants of about £9O, and one to McArthur of £36. There were no other bills due between March 26 and April 4. Had about £3O in the bank on lhe 22nd to meet those bills. Shelton told me that he would take over the whole affair, pay all tiie (itod,itors| and pay nie .a Cheque for the surplus in two weeks.

By His Honor : Shelton was to give me a cheque in one or two weeks were there a surplus. Understood that, supposing the property taken over were insufficient by £l5 or £2O, Shelton would, nevertheless, pay it in full. “ Shelton said “ I am perfectly willing to lo :e the £l5 or £2O.

To Mr DeLautour: The assels were a store, four-robffied house, an acre of ground, all goods inside these places, excepting my private furniture, book debts, etc. The last agreement was made op. March 14. Knew the Cheese Factory shares Were valueless, but I put them down because 1 knew Shelton wanted to take over the Factory so that he might run the whole thing." The agreement began on March 17, the final arrangemint was made at my desk on March 24. Did not gize the books because Shelton asked me to make out the bills aud iiolleet as much as I could. Did not pay the monies id defendants because there were sundries, £lO, which I was to pay. Collected £lO or £ll. Saw Shelton on March 28, and he read a copy of the letter sent to Auckland. Swore at him a little bit. Had never heard of the letter before in any shape or way whatever. Had obtained groceries from defendants betwean the date of making the agreement and furnishing the balance. The value would be about £53. Was selling all the time. Everything got before March 9 was included in the list. The only Way the valuation was closed was by closing me up. The account was not closed after the valuation. I did not expect Shelton to give me a cheque the morning after the date. The account was never completed, I would not have anything to do with the defendants, as I consider they ha i ruined me. Got the valuation book from Mr Watts. Am certain that 1 told Shelton that I was going to Auckland to expose the letters. That would be on April 1. Re-examined: On the 26th I removed my ’ furniture from the store. I identify book (produced) as the book containing list of book debts. Was quite certain that Shelton said he was satisfied that the bad and doubtful debts would pay for collecting the others. Mr Greenwood was called to verify an affidavit filed by Mr Watts in the recent bankruptcy proceedings before the Registrar, but after objections by Mr DeLautour, His Honor ruled that the affidavit could not be taken as evidence as no cross-examination had been possible in the other Court. / fter some discussion Mr Bras, iy withdrew the witness. The Court then adjourned until 2 p.m. After the adjournment Mr R. M. Nichols salesman for defendants, deposed: I know Watt, who took possession of Mr Judd’s store. I recognise the book produced (the valuation book). I was at the store on May 24. Was acting for defendants. It took two days to value the stock, I believe Mr Judd removed some of his furniture on the first day of the valuation. I had no instructions from defendants to prevent Mr Judd from so doing. The keys of the safe were handed to Mr Watt. Believe I brought the valuation book home and gave it to Mr Shelton. This was the case for the plaintiff, Mr DeLautour then opened the case for the defendants. He contended that the plaintiff had made out no case to answer. If he were to meet the case as set up by the plaintiff it would be merely a question of contract. [’The counsel then went into a long argument as to alleged wrong drawing of the pleadings. J He would submit there waa no ease of libel, tbe most that could be put to the jury was an issue of contract.

His Honor differed from Mr DeLautour’s views, and held that the allegations as to Mr Shelton’s conduct in writing an unauthorised letter damaging to the plaintiff’s character should be met by evidence.

Further discussion then took place. Mr DaLatour eventually going on with his ease. Ha addressed the jury at some length and then called—

Mr Shelton, who deposed: Know Mr Judd. Have supplied him with stores for his business. Bcmember him coming to me a day or tsvo before the 17th March. He told me he had been making up his balance sheet, and wanted to get an overdraft account from us to see how he stood, He then asked me

to appoint a day to go through his own balance sheet as he was ut'raid he was on the wrong side. He asked me to meet I'm at our office on the 17th March. Met him on the 17th, he had made out a statement which showed that ho was on the wrong side. After allowing his own value for everything, he showed that he owed £44 14s lOd more than he possessed. He said he knew he could not carry on and asked me to take over his business. Told him we could not taka over the business, but perhaps we might find someone to take over the business. On the 22nd March told him at our office that if he could arrange to make a composition of five shillings with the other creditors we would help him with money to pay this composition, and take over the stock at valuation price. He asked me whether I would charge him

twenty shillings in the £ on the other people’s account. I said no, I would credit his account with the valuation of the stock, and charge him with the actual amount of money paid asvay. Judd asked “ What can Ido if the creditors wont accept this composition." I said “there will be nothing for it but filing. I said I thought they would be very lucky to get 5s in the £ cash. He then told me there was a bill due to McArthur payable on April 4 which he had provided for, and the money was then lying in the bank. Told him he had better pay this money over to me as it might be taken to pay other bills with. We went out on the Thursday, and it was agreed that Mr Nichols should value for me and Mr Judd for him-

self. Judd requested me, on the 22nd, to draw up a statement of his affairs and send a letter making an offer of a composition to the creditors. Judd was to come in later on in the week, see the statement and write it out himself. The following Sunday was the last mail for Auckland by which a letter

could be sent to give the creditors a chance to reply before the fourth of the mouth. On Monday Mr Judd came in, and wnen he saw the circular he said, “ My God now can I face my Auckland creditors when they see I have disposed of my stock.” I said he need not trouble about that because they would only be too glad to get os in the £. Met Mr Turton next Saturday and told him the whole story while Mr Judd was there. Mr Turton had talked the matter over with Mr Judd. Saw Mr. Turton again who said Judd was coming round to see me. Mr Judd didn’t

come but went away to Auckland on the Sunday morning. To the best of my recollection Mr Judd did not tell me he was going, The good deots I value at £2OO at the outside, I gave £125 for them. Plaintiff gave £6OO .for the freehold, aud mortgaged it for £5OO. I think the equity is valueless. I recognize agreement by which Watts gave up the store to us. The stock would not fetch 6s in the £. Some of it has been sold by public auction in Gisborne. Cross examined by Mr Brassey: Judd had stock when be went into the store. He spent money on the store; £5O would be the outside estimate. If the Auckland creditors had accepted the 5s I would have taken over the stock at £725 as valued. Notice of the contract with Watt was given one month after.

Mr Brassey: Do you remember saying this at the Bankruptcy meetings, “If the Auckland creditors agree to the offer of 5s Judd would be credited with 20s in the £ by the goods which were sold the other day for about 5s in the £.” Witness: I do.

Bought the book debts for £125. Hope to get £2OO for them. After further examination and cross examination of the witness counsel on both Bidet then addressed the jury at some length for their respective clients. His Honour having summed up the jury retired, at 5.15. p.m. and returned a verdict at 8.15. against tbe defendants for £5O, costs on the lowest scale. Judgment was accordingly entered as above and the Court adjourned until 10 a.m, today.