LAW AND POLICE.

New Zealand Herald, Volume XII, Issue 4289, 12 August 1875, Page 4

LAW AND POLICE.

V COCRT.-VWkdnesday. fKeTorc'*P.-DUJF«BU.»j "K'V; Aptir.g .Tuilre.l pi-the Court was lu-ld to-day, and- Wre- 'following business disposed of : — Reed v. Clarke and Son.—Claim, £'-5 11s Cd. This was an action to* recover the above sum for work and labour done. The plaintiff is a broker and commission agent in Auckland ; and the defendants are general merchants and shin-owners at Tort Chalmers. The items of work alleged were the procuring of the Koimra Saw-mill Comj):tny to enter into a charter party with the defendants as owners of the ve.-sel Thomas and Henry. Then- was a further ground of action alleged, viz., for money l>aid by the plaintiff on defendants' account. The following were the particulars si.t out : —To cash ~r> ai| l l>y l'laintill" to blacksmith's account for thc'Tiioni.T and Henry, £1; commission for obtaining charter party on t'.S.'O, £17 10s ; paid to the Victoria Insurance Co. for insurance, ft! 2s f>d : brokerage, procuring ditto at .'.percent., L'l I.")., .-total, £-':> llsGd. The defence put in was that the defendants were not indebted ; that the plaintiff had lift authority to do what be did : that the defendants were not benelited by what he did ; and lastly, that if anything were due the charges made were excessive. The contract under which the plaintiff declared that he- performed the serviced alleged was in the fi.rm of a telegraphic message, from the defendants to the plaintiff, and the pinch of the case turned upmi tho proof of the telegram as proceeding from the defendants or their agents. This raised the following questions : —What is a telegram ? Is it what is delivered at the opposite eifd of the line as sent, or at this end of the line as received? What are the relations of telegraphic operators to such documents ot the general manager of the department and the managers of local offices? Upon the telegram being tendered in evidence by the plaintiff, Mr. Hues objected to its admisoibility on the ground that it was not stamped ; that it could not be made [evidence until it was shewn that what was required by the 3rd section of the Stamp Act had been complied with. His Honor ruled, on the first objection, that the contract in this case did not come within the terms of the Stamp Act. Upon the second objection, arising under the Telegraph Act of 1574, the following is a summary of the language of tho statute : Under the second section of tho Electric Telegraph Amendment Act, 1574, passed in consequence of certain occurrences which took place last year, it is provided that "no officer, clerk, operator, or any other person employed in or about the working of any such line of telegraph shall, on trial of any issue, whether criminal or civil, or on enquiry in any Court of justice, be competent or compeilable to give evidence of the contents of any message, despatch, or communication transmitted or conveyed, or presented to be transmitted or conveyed by any such Jiiio," &o The third section of the same Act sets out the class of cases in which the aK;vo section will not apply, vi:;.. where the person to whom any such message should have been sent notilicd in writing to the Klectrie Telegraph Commissioner or General Manager that he desired such officer, clerk, or operator to give such evidence or make such production. His Honey, upon the second objection, held that the ollicers of the Telegraph Department were non-competent only in respect to the messages, communications, Act , ., presented and passing through the department. Mr. Lusher, local manager of the Telegraph Department, was called to produce a letter from the general manager of the department, enclosing telegrams, &c. Mr. Rtcs said, if the contract were in writiug, tho writing

was the best evidence, and secondary evidence could not be received until it were shewn that the best evidence could not be had. (Roseoe's Digest.) Mr. Bennett argued that it was competent for him to prove the- fr.ct of a contract between the parties. His Honor held that the fact of a contract might be proved without the writing, but for the terms of a contract contained in a letter, the letter only itself was the best evidence. Mr. Bennett said if he proved the fact of a contract between the parties, he could prove the claim by the usages and charges of business in this place. His Honor held that where there had been tenu3 in writing, the only evidence was the writing. Mr. Bennett, under the circumstances, elected to be nonsuited.

Kelly v. Giishoss.— Claim, COO. Mr. Roes for tho plaintiff, and Mr. Hoketh for the defendant. This was an action for wages. The defendant, in his defence, said that the plaintiff was indebted to him £107 by way of set-off, and he caused a notice to be served upon the plaintiff's solicitor to the effect that he abandoned all his claim against the plaiiitiiT in excess of £100, being the amount for which the District Court hail jurisdiction. Mr. Rees objected that there could not be an abandonment of a sum in excess of jurisdiction upon the commencement of the trial. Mr. Hcskt-th said it was wholly a matter for the Court. It was open to him to ask for an adjournment for the purpose of tiling a defence, or to amend a defence. Mr. Rccs said the plaintiff would be prejudiced, and the (jucstion of jurisdiction ignored. There could not be an abandonment at the trial. Tlte set off (C 107) was beyond the jurisdiction. The abandonment should have been made before. Mr. Hesketh applied for an adjournment, but Mr. Rees consented to the abandonment in order to avoid a cross-action, and the case proceeded. The plaintiff was examined by Mr. Hesketh. Tiiis witness deposed that he. was a labourer in the employment of Mr. Gibbons, at (Jnehunga, for thirteen months. He had never received any money fir goods from the defen.laut. lie hail never obtained any provisions from Mr. Gibbons" store. Had never bad a pass-book, or received anything from his storcmen. He- had been supported by his wife's means and industry, and had not taken action before as he expected Mr. Gibbons to settle up with him. He did not jjo to Mr. Gibbons' oilice about two months after he had left his employment, and ask for ajobofwork. The clerk had never told witness that Mr. Gibbons would sooner forego the debt due to him than take him on again. He had never applied personally to defendant for settlement, but had sent a letter. To the Bench :My wife would cam from £2 to £3 per month by washing. The r.ien would give an order on Mr. Gardiner, and Mr. Gardiner would give an order which Mr. Gibbons cashed. Francis l'aton, a commercial traveller, deposed that from July 1 to October, he was in Mr. Gibbons' employ, at Awitu. He managed the general store,"and served out goods to. the men in Mr. Gibbons' employ. The last witness was during those months in Mr. Gibbonss' employ, and witness frequently supplied him with stores and provisions. Plaintiff and his wife c.iiiiu for the goods. The goods were uitrrcd in the day-book at the time they were served, and afterwards entered in tho le.lgor. At thu time the goods were supplied, a pass-book was kept, ai.d the goods entered in*it. Tho goods supplied to account at first amounted to t'OO 14a IOJd. When witness took charge of the store, the amount due by thu plaintiff was £42 3s Cd. Witness was certain that the goods entered by himself had been supplied to the plaintiff, nnd on one occasion :!s was lent to him. Witness t;ild plaintiff that he was overdrawn. At tliis stage the case was adjourned until Thursday. The Court rose at .0.30 p.m.