MILLS LIBEL ACTIONS.

New Zealand Times, Volume LXIX, Issue 3738, 12 May 1899, Page 3

MILLS LIBEL ACTIONS.

QUESTION OF COSTS. CASES IN THE COURT OP APPEAL. In tins Court of Appeal yesterday, lietore the Chief Justice, Mr Justice Williams, Mr Justice Denniston and Mr Justice Conolly, argument was opened in a case on appeal and two special cases stated in the mutter of 'the action Mills v. Rogers ‘and another. Mr, H. D. Bell, with him Mr R. McCollum, of Blenheim, appeared for Mr Mills, and Mr Jellicoe for Messrs Rogers and Sinclair. In the case on appeal Mr C. H>Mills, M.H.R. for Wairau. the plaintiff below, 's nptiedant, and Messrs Alfred Rogers and William Sinclair, of' Blenheim, solicitors, defendants below, are respondents. In I the action Mr Mills claimed from Messrs Rogers and Sinclair the sum of £lsl 18s 7d, costs in an unsuccessful libel action. Mr Justice Denniston in describing in his judgment an agreement which there was between the parties in the matter said : —“The agreement which the plaintiff alleges in his statement of claim is one by which the defendants agree to pay, in any event, all costs and expenses in connection with the prosecution of a number of contemplated actions against various newspapers for alleged libellous references to the plaintiff, the consideration to the defendants being the party and party costs and two-thirds of any damages which might be recovered 'in any such action or actions. The defendants admitted the agreement, with this variation: That the plaintiff was to pay the costs of any unsuccessful actions. . . Under the agreement between the parties, whatever it was, actions were commenced against two newspapers. In one the plaintiff succeeded; In the other he failed. The defendants have received and retained the damages and costs in the successful action, and have repudiated any liabilty for the costs of the unsuccessful action, which costs the olaintiff has had to pay. The plaintiff sues for the amount of these costs, or, in the alternative, for damages for the allezed negligence. _ The jury found the facts in favour of’ the plaintiff.” Mr Justice Denniston, on a motion for non-

suit or judgment for the defendants, nonsuited the jdaintiff. His Honor's judgment is now appealed from on the ground that it is erroneous in point of law. One of the special cases sets out that counsel for Mr Mills gave notice to move for a rule calling upon Messrs Rogers and Sinclair to show cause why an order should not be made requiring them to pay to Mr Mills either (a) the sum of £219 12s 7d, the amount of the judgment recovered by Mr Mills against the “Otago Daily Times” Company, the amount of which judgment was received by Messrs Rogers and Sinclair ; (b) the sum of £l5O, being the amount of the damages recovered by the plaintiff, forming part of such judgment; or (cj the sum of £lsl 18s 7d, being the amount of the judgment for costs recovered by the Christchurch “ Press ” Company in the action brought by Mr Mills against that company. The grounds for the motion are: (1) That the solicitors have no right to retain the amount of the judgment received by them ; and (2) that it is contrary to good faith that the solicitors should retain the alternative sums. The special case sets out that the evidence taken in the action is to be deemed to have been given upon the hearing of this summons. Mr Mills and the solicitors claimed the moneys from the “ Otago Daily Times ” Company, and on the 11th June, 1898, Mr Mills withdrew his claim, and directed the company to pay the whole sum to the solicitors, who thereupon received the moneys. Mr Mills, on the 11th Juno, 1898, by his solicitor, made a demand upon Mr Rogers, in the, following terms ; —“ Mr Mills has to-day withdrawn the order on the judgment against the ‘ Otago Daily Times’ Company, and he understands you have now been paid the amount owing by it. He now instructs me to apply to you for immediate pay merit of the £lsl 18s 7d, so that the Christchurch ‘Press’ Company’s claun may be satisfied. Railing a settlement by noon to-day, my instructions are to issue a summons without further delay.” As soon as disputes arose between the solicitors and Mr Mills, the solicitors weic advised that they could not support the agreement under which the libel actions were conducted, and that they were relefjated to the ordinary relationsliip of soicitor and client, and must account for the moneys received and submit to taxation of their bill of costs. The question for the opinion of the Court of Appeal is : What order ought to be made in the piomises? .

The other special case sets out that an action was commenced by Mr Mills against Messrs Rogers and Sinclair on the 4tn May, 1899. A special case for the Court of Appeal was stated by consent of the parties. The plaintiff sues the defendants to recover the sum of £219 12s 7d, cr, in the alternative, the sum of £l5O, or, in the further alternative, the sum o! £lsl 18s. 7d, being moneys had and received by them his use. The defendants in their statement of defence say that neither of the above-mentioned 'sums was received by them' or either ofthem, to the use of the plaintiff, or at all. But the defendants admit that a sum of £219 12s 7d (being £l5O damages and £69 12s 7d costs) came to their hands as copartners' or joint speculators with the plaintiff under a certain agreement bonafide entered into by the plaintiff and the defendants in June, 1897, and which agreement was in substance and effect that the defendants should, at their own cost and expense, conduct and prosecute actions for the plaintiff against the proprietors of certain newspapers,for libel in respect of causes of action alleged tty the plaintiff, and divide the profits thereof—namely, the damages recovered—equally between them. The defendants also state that they have always been willing to account for and to pay to the plaintiff his one-third share of the sum of £l5O. If the aforesaid agreement <s held to be void in law, and the parties are relegated to the ordinary relationship of solicitor and client, Mr Rogers says that he disbursed for the use of Mr Mills the following sums of money': —For Court fees, £8 13s; for witnesses, £6 11s; for counsel’s'fees, £53 2s 6d; and for agent’s charges, £62 3s 9d. And it is claimed that Mr Rogers is entitled to set-off these sums, and also £l5O and upwards for his own work and professional services rendered to the plaintiff between June, 1897, and' July, 1898. Mr Rogers submits to taxation of these fees, charges and disbursements. The special case sets out that the evidence taken in the action at Blenheim is to be deemed to have been (riven as upon the trial of this action. The same motion for non-suit taken at the trial is also to be deemed to have been moved in this action, and the same issues answered and verdict given. The Court of Appeal is to enter judgment on the aforesaid facts. It will be remembered that Mr Justice Denniston said in his judgment: —“ It is unnecessary to discuss here what wou’d be the position of the plaintiff if he sued the defendants for money received to his use. What he has sued for is for money paid by him, against which he alleges the defendants undertook to indemnify him. To establish his claim he must depend upon an illegal and void agreement. On that claim the defendants are entitled to the non-suit they ask. The claim for damages for negligence cannot, in my opinion, be sustained.” It was arranged that argument on the three cases should be taken together, the appeal case being first and the special cases afterwards.

Mr Bell, in opening his argument, said he was there to contend and submit that in some way or other these gentlemen who were upon the roll of the Court would be prevented from perpetrating what amounted to—well, taking a very serious advantage of their own client. The Court at 4.35 p.m. adjourned till this morning.