SUPREME COURT.—CIVIL SITTINGS.

Hawke's Bay Herald, Volume XXII, Issue 7930, 20 December 1887, Page 3

SUPREME COURT.— CIVIL SITTINGS.

(Before his Honor the Chief Justice and a special jury of twelve.) HUGO V. SJIYTIIE, Mr Dick for plaintiff, Mr Comford for defendant. This was an action to recover £600 lor pamages for libel contained in a statewent published by defendant as an advertisement in v, newspaper, warning people not to entrust totalisator tickets to untrustworthy persons, like a certain barman in Napier, meaning thereby the defendant. Koberfc Travers Smytlio, bookseller, Napier, said ho remembered the Jockey Club's race meeting at Hastings in June last. Before the last race, the Consolation, he backed a horse named Echo in the totalisator. That horse won. Witness ■was on the outside stand. After the race he -went for his dividend. There was a file of men going to the "pay-out" window,, and the plaintiff was opposite the ■window. There was no one between him and the way-out alley. The entrance to the alley was crowded, so .witness went into tbe alley by the " way-out," and walking up to Hugo said, " Kindly collect my dividend for me ; I wish to get to Hastings." He had known Hugo, though not intimately, for ci«ht or nine years. Hugotookthetickot.saying "Don't be far away," Witness stepped outside the alley and stood there, Mr Heron being close to him, and they spoke together. It seemed to him that he waited about fifteen minutes before the dividend was declared ; it; was £2 11b. Hugo came out soon afterwards with a bundle of banknotes in his hand. Witness asked for his dividend, when Hugo said, " Yon Hu\ not give me your ticket a 6 aH." Witness replied "I" did, most undoubtedly." Huge . rejoined, " No, it was not to me ; you gave it to another man I know well." 'He said ho would point out tho man, and walked about as if looking for someone, Witness said, "You. can't show nietlu man, because yon arc the man." ' He re plied that he could ; he knew the mat well; Jieh#d. forgotten hjs name, but ii

was' in the books of the Empire Hotel. While this was going on Heron said to Hugo " Give me my dividend, 1 want to get away," and Hugo paid him some money. Witness then left, but later in the day saw Hugo again, when the latter repeated what he had previously said. Witness had no doubt whatever that Hugo was the man to whom he handed the ticket. Cross-examined by Mr Dick : Witness bad invested on the totaliaator previously, and perhaps had been unlucky, but he was not unduly excited. He had not had any wine all day. Hugo did not say " There was a man inside who had no ticket ; perhaps he's got yours." He said he knew the man who took the ticket. Witness did not walk about with Hugo looking for the man. There was no one in front bf Hugo at the pay-out window. Hugo did not say he had so many tickets, and offer to count out his money. Witness did not recollect saying anything against Hugo beyond what was contained in the advertisement'; he did not say to M'Carthy that the boarders at Mayo's should look after their pockets while a man like Hugo was about. ■He spoke about the advertisement and admitted that he inserted it. By his Honor : When the money was paid out there might have been two or three persons in front of Hugo ; but he was first when witness gave him the ticket, and witness believed he was first to get paid. James Heron deposed that he had a ticket on Echo. He might have spoken to Mr Smythe near the end of the payout avenue before the money was paid ; he saw him standing there. Witness went to flufjo for his money, and Smythe came up and asked for his dividend. Hugo said he had not the ticket ; Smythe gave it to another man, whom he would point out. Smythe insisted that Hugo had the ticket. Hugo said he had so many tickets of his own, and so many belonging to other people, mentioning their names, and, counting the notes in his hand, said the money corresponded. Witness wanted to get away tiy the train, and asked for his money, which he received. Hugo said he knew the other man by sight, and would point him out. There was some other conversation, but witness did not pay particular attention to it, as he was anxious target away. Hugo might have said something about the man's name appearing on the book of the Empire Hotel. When witness gave Hugo his ticket the latter was either first or second at the pay-out window. Examined by Mr Dick : Hugo did not say there was a man who had no ticket, and he might have Smythe's. He said he knew the man. William Eugene Hugo, plaintiff in the action, deposed that he had two tickets himself on the totalisator. Mr Heron handed him one, and : he had three from Mr U'Kane, one of these being the property of aMr Warrell. Was offered a lot of tickets by various people to get payment, but refused to take them. First saw Smythe as witness was coming out from the totalisator alley, having £15 in his left hand and 6s in his" right. Snlythe tapped witness on the shoulder and said "I want my dividend." Witness replied "I have not received your ticket," and Smytlie replied "I passed my ticket in toyou." VVitness said "If 1 had your ticket the money must be here, come along and count it and make sure." The money was counted out in presence of those interested, Smytho being there. Witness called his attention to the counting. He also said to Smythe '• I saw a party get a dividend who had not taken a ticket." This man slipped in before witness-, to the pay office. Witness and Smythe afterwards looked for the man. The reason, witness supposed that the man got a dividend without a ticket was because he saw that he had no ticket. Witness paid all those on whose behalf he presented tickets for payment. Told Smytlie that he would give him the name of the man whom witness thought got the ticket and slipped in. Smythe replied, " Oh, it's all very fine, you never had two yourself." Witness replied "I have plenty of witnesses to prove that I had two." By his Honor : Witness was standing at the window, one man being in front, and a man slipped in his hand before witness and the man in front. Just as the first man was receiving his dividend, the other man referred to as having no ticket, and who was standing outside the barrier, but in a line with those waiting to be paid, slipped his hand through and obtained a dividend. He was there before the window opened, and he and witness had a conversation while waiting for the window to be opened. The man was Ttnown to witness as a lodger at the Empire Hotel. Just as the first man was paid this other man poked his arm around. the payee, passed in a ticket through the window, and received a dividend. By Mr Dick : Those circumstances caused witness to think that this man had collected a dividend. By his Honor : The man said he was " broke " during the conversation before the window opened. At the time the man got his arm round in front of witness, lie had got into the alley. Subsequently, when witness was in company with Messrs Swan, Cross, and O'Kane, Mr Smythe came up. The man who had got his dividend first was adjacent, and witness said to Smythe "Here is the man who was paid before me, and as you think I got your ticket you had better ask him i what he thinks." The man was asked, and said he was sure witness had not got the ticket, but Smythe shook his-head and walked on. Cross - examined by Mr Cornford : Could not tell the name of the man who said he_ was "broke," but could find his name in the hotel books. He was a station hand. He did not hold a ticket ,in his hand when conversing with witness, but had a ticket when he poked his arm round for payment. Could not say whether the ticket came down from heaven. He was a short, fair man, with a small moustache, and if he wore " sidelights " they would be fair also. VV itness and Smythe walked about for some time looking for the man. Next day turned up the hotel books to look for the man's I name, but had since forgotten it. Witness ' paid Mr Heron and Mr Warrell before the others were paid, and Mr Heron had gone away before witness and Smythe went to look for the man. Patrick O'Kane deposed that he remembered the race meeting at which the dispute occurred. Witness handed Hugo two totalisator tickets to collect, and also a ticket for a man named Warrell. When Hugo came out from getting the money Smythe stuck up Hugo tor a dividend, but he replied that he got no ticket from him. Smythe continued to assert that Hugo had a ticket belonging to Smythe, and Hugo to deny it. Subsequently the money was counted, and at witness's request Hugo settled up with witness for himself and Warrell. Then Smythe and lugo went away looking for some man f-that was talked of. ■ By Mr Cornford : Witness took it as an insult when Hugo was accused by Smythe, because witness was in Hugo's company. First became acquainted with Hugo a few months before the race meeting. Witness and Warrell stood outside the triangular enclosure in front of the totalisator window while Hugo >yas waiting for the money. ' "Re-examined by Mr .Dick : Heard Hugo say that he would take no more tickets. James Warrell gave somewhat similar evidence. William Dobson deposed that he saw Hugo on the day in question near the totalisator box. Mr Smythe asked Hugo to take a ticket for collection, but he refused to do so. Cross-examined by Mr Cornford : This was only a few minutes before the totalisator window was opened. Mr Smythe passed in hi 3 ticket, but witness could not say to whom. By his Honor: After passing in his ticket Mr Smythe reached over from where he was standina, in the alley way. Witness thought that Smythe said to a person in front of Hugo "Pass that ticket to the man behind you." Smytlie then walked further' back, and Hugo called out that he would not take any more tickets. Smythe waited till Hugo came out and asked for his dividend. Hugo replied that.hedid netget Smyfche's ticket, whereupon Smythe looked very much surprised. Hugo offered to show Smythe what man he (Smythe) passed his ' ticket to. By Mr Cornford : When Smythe said "Pass that ticket to the man behind you," the " man behind" was Hugo. By his Honor: When Hugo s,aid " 1 will not take any more lickots" witness understood that he was objecting to receive Smythe's ticket, but of couiho he could not say whether he received the ticket or not. George Henry Swan deposed that just before the last race on the day in question Hugo showed witness two totalisator tickets. Joseph Hall deposed that he asked Hugo to collect a dividend for him, but Hugo refused to take the ticket. Mr Smythe reached out a ticket to Hugo, but he refused to take it. Smythe said, , holding out the ticket, " Hugo, take my ticket." Hiiro did not look round, but said " I'll take no more, as I've half a dozen bow." % By Mr Cornford ; Mr Benjamin came up aud called Smythe, but he said " J have got a dividend to get." This was about a minute after Hugo refused to take the ticket. Witness had been "in trouble " for resisting the police. Thomas Dobson deposed that ho heard Mr Smythe ask plaintiff to take n ticket, and that he refused. Mr Smythe ilien handed his ticket to a tall man in fiont of Hugo, and that man took it, and asked who it was for. Smytho replied that it was for Jingo, the man behind, and the man in front held out the ticket for Hugo to take, but lie refused to do ho. By Mr Corniord : Mr Smytlie made no remark when the tall man failed to pafu the ticket to Hugo, but lie waited for his

" divy," apparently thinking that Huge had the ticket. Witness was quite sure the tall man kept the ticket. Thomas M'''arthy deposed to a conversation he V..A with defendant, who stated that Hugo was the mail who. had the ticket. He also said that he should tell Mr Mayo that Hugo was not fit to be barman after what he had done, and that a man who would do as Hugo had done would be just the man to go through the boarders' pockets. By Mr Cornfortl : Did not tell Smythe that Hugo aaid he had found the man who had the ticket. \Vliat was said was. that one of Hugo's witnesses would say he knew the man to whom Smythe gave the ticket. This concluded the evidencie. Counsel having addressed thfe jury, his Honor briefly summed up, and the jury retired to consider their verdict. After an absence or an hour the foreman returned and announced that there was no possibility of the jury agreeing. His Honor stated that the jury could not be discharged before they had been locked up three hours. At the expiration . of that time the jury returned arid stated that they could nota«i'ee,and were discharged, (Before his Honor the Chief Justice,) KENNETH GOLLAN (APPELLANT), DAVID SMITH (RESPONDENT:) This was an appeal against a judgment by the Kesident Magistrate at Waipawa. John Gollan was in partnership with one Angus M'Lennan, who absconded, the business, being afterwards^ earned on by John Gollan under the original style of M'Lennan and Gollan. The business T)ecame involved, and a private meeting of creditors was held, respondent not being present. John Gollan assigned his estate to his father, the appellant, who later was a party to litigation in the Resident Magistrate's Court, in which respondent obtained judament against John Gollan, and goods held by Kenneth Gollan under the assignment were held liable in respect of the judgment, which appellant now sought to have set aside. ' Respondent opposed on the ground that the assignment to Kenneth Gollan was bad owing to the assignor being insolvent. After argument, his Honor referred the case back to the Resident Magistrate, for him to decide whether the assignment by John. Gollan to Ms father was fraudulent within the meaning of the Statute of Elizabeth, and respondent was ordered to pay to appellant £5 5s costs. Mr Longnau appeared far appelant, and Mr Carlile for respondent. The Court adjourned till 10 o'clock this (Tuesday) morning.