SUPREME COURT.

Otago Witness, Issue 2059, 10 August 1893, Page 14

SUPREME COURT.

IN BANCO. Wednesday, Augusts. (Before his Honor Mr Justice Williams.) JN THE MATTER OF THE LAW PRACTITIONERS' ACT 1892, AND OF JAMES SAMPSON NEAVE, OF GORE. Argument of rule nisi calling upon Mr Neave to show cause why he should not be struck off the Mr Sim appeared on behalf of the Southland Xaw Society to move for a rule absolute, and Mr Solomon appeared to show cause. Mr Solomon said he did not know that there ■was very much to be said in this matter. There ■were, however, one or two considerations that he should like to point out on behalf Of the solicitor ■whose action was condemned. His affidavit showed that he was a yountt man in the commencement of his career. His Honor had no doubt examined the affidavits on both sides. The affidavit set forth by Mr Neave was very different to that of the secretary of the Law Society, and also to that of Mr Findlay, the client. Mr Findlay put in an affidavit that he was satisfied with the actiorfof the solicitor ; and he said that he did not ■wish the proceedings to be carried further. It was corroboration of the facts alleged by Mr Neave that for a considerable time after the affidavit had "been submitted to the Southland Law Society they filed no affidavit in connection with that set out by Mr Neave. He (learned counsel) was also informed when he was iv Invercargill that the law Society did not intend to set out anything in reply. The circumstances as set foith by Mr INeave were these : Mr Neave said that he was consulted by Mr Findlay, who wished him to file ihis petition in bankruptcy. Mr Neave was a solicitor practising at Gore, and tha client desired him to appear personally at hi* meeting of creditors at Tapanui. Mr Neave expressly, told him that he could not afford to go to Tapanui specially for this matter, and that he would have to allow the matter to remain over till he had to go there on other business The client was agreeable to this course being adopted. He was a man with no assets that wore available for seizure by the creditorsr so that he could not suffer any loss by the delay, and in his affidavit he did not say that le had suffered any loss. Mr Neave allowed the matter to stand over until he could attend the meeting of creditors personally. Then he seemed to have been very unfortunate about this particular time. His wife was seriously ill, one of lis children died, his father-in-law, Mr Conway, •was drowned in the Clutha, and Mr Neave was six weeks away from home. Under tho circumstances the most that could be said of his action was that he 'had been indiscreet. It •was not contradicted that immediately Mr Neave received the money from his client lie affixed the stamps to the petition; and 10 had since repaid the balance of the money to his client. There could be no suggestion that he appropriated the money to his own use. The mo3t that could be alleged was that he had unduly delayed the proceedings. Mr Neave was a promising young man, and he thought it was only fair to say to the court that to do what the Southland Law Society asked should be done in this case would bean extremely harsh thing to do. He submitted that there were hundreds of cases in this colony where tho legal profession were concerned far more serious than the present one. In fact, he ventured to say that there was nothing serious in the matter. There were hundreds of cases far more serious of which the Law Society took no notice whatever.' So far as the application of the Law Society for costs was concerned, ie thought it was a proper application for them to make. He did not dispute that Mr Neave should •pay the costs that had been incurred by the Law Society. The most that should be done in the case was this : The court should perhaps express vthe opinion that Mr Neave had allowed too much time to elapse. It was not a case in which he should be either struck off the rolls or suspended. Mr Sim said his instructions in the matter were Bimply to leave it in the hands of the court to be dealt with in whatever way the court thought fit. He submitted that, even taking Mr Neave's explanation into account, he had been guilty of grave neglect of his client's interests. Mr Neave asked, the court to believe that because his father-in-law had disappeared he forsook his wife and family and his business. H« (Mr Sim) did sot know what his learned friend suggested Mr JJeave was doing. . Mr Solomon : Searching all the tune. * Mr Sim went on to say*that Mr Neave might lave made some arrangement about the conduct of his business, and about forwarding his letters. There was nothing in Mr Neave's affidavit to show ■that any steps whatever had been taken to get the petition filed. Mr Solomon: He says he held it back, because if it was filed the meeting would have to be held ■within a week. Mr Sim proceeded to say that the reparation, made by Mr Neave was fo complete that it amounted practically to an admission that he had been guilty of some misconduct in connection •with the matter. If hi 3 conscience had not pricked him, he would not have made such reparation as he had done. Mr Neave gave back the whole of the money he received, although Tinder ordinary circumstances he would have had a considerable claim against Mr Findlay for costs. ' Of course the matter was entirely in his Honor's hands. If his Honor was satisfied with Mr Neave's explanation, he (learned counsel) submitted that at the very least he ought to pay the costs of the proceedings. The Southland Law Society 'Were perfectly justified in bringing the matter before the court. Mr Solomon did not dispute that the Law Society were perfectly justified in taking proceedings, and were therefore entitled to costs. As to the repayment of the money, Mr Neave admitted that his client's interests were not looked after as they should have been. He did neglect his duties, and if he was to blame he was as unfortunate as Mr Findlay ; but he said : "As I was not able to attend to your business, and did not do you any good in the matter, I return you the whole of the money." His Honor (to Mr Sim) : Do you suggest that the mere neglect of a client's business is a ground for suspension ? Mr Sim : No, your Honor. His Honor : I don't think that could be contended. Mr Sim-agreed with his Honor. His Honor : What you mean to contend is that the Law Society had a pnma facie case? Mr Sim : Yes, your _Honor ; and; as Mr Neave Ms on his own admission been guilty of neglect lie ought to pay the Law Society's costs. Mr Solomon : I don't dispute that at all. His Honor said : Mr Neave's affidavit is uncontradicted, and it is quite clear from the explanation there given that there was no misappropriation by him of money forwarded by_ his client ; nor was there any intention to misappropriate. He received £9. Immediately on receiving it he applied five guineas of it towards the purchase of stamps, which were affixed to the petition which he had prepared. He delayed to take further proceeding*, but ultimately and before any proceedings were instituted against Mm he wrote to the client suggesting that some other solicitor should undertake the business, and ho would hand him the petition and the 'other fees. The client does hot seem to have pressed him before that to return the money. All that the client seems to have been anxious about was that the business should be proceeded with. After the present proceedings were instituted the money actually was returned, but, as I have said, it was offered to be returned before any proceedings were taken, or, so far as I know : suggested. These circumstances seem to me to dispose of the suggestion that there was any misappropriation of the money or intention to misappropriate it. That Mr Neave neglected his client's business is perfectly plain, but that is all that can be said against him; but that is not a ground, as was admitted by Mr Sim, for suspending him or striking him off tho rolls. The Law Sjciety had, howevt-r, only the affidavit of the client before them when they moved for a rule nisi, and the facts there set out unless explained certainly justified them in moving as they nave done. The solicitor has really him-, self to thank for the proceedings that have been taken, on account of the manner in which he let liis client's business slide. He, therefore, ought to pay the costs of these proceedings, but no other order ought to be made against him. Mr Solomon : Will your Honor kindly fix the posts? v His Honor : I think he ought to pay full costs gf the motion (lOgs) and disbursements,

BATCHELOR AND ANOTHER V. M'LEOD. An appeal from a decision by Mr Rawson, R.M. Mr Sim appeared for the appellant, Donald M'Leod (the defendant in the court below) ; and Mr Solomon for the respondents, G. W. Bachelor and Thomas Bannister (plaintiffs). This was an action by which the plaintiffs in tho court below sought to recover the price of a waggon built by them for the defendant. The case was heard before the magistrate at Riverton, and after evidence had been taken, judgment was given for plaintiffs. The defendant now appealed from that decision, the principal ground of his appeal being that there was no evidence before the magistrate to satisfy the 17th sectidn of the Statute of Frauds. After argument between learned counsel, His Honor said : It was objected on the pare of the defendant at the hearing before the magistrate that there was no delivery acceptance or receipt to take the dase out of the Statute of Frauds. The magistrate gave judgment for the plaintiffs, and in the course of his judgment said that he was satisfied that the plaintiffs had delivered the waggon to the defendant. He did not in so many words say that there had been a delivery acceptance and receipt so as to take the case out of the Statute of Frauds, but he could not have found for the plaintiffs at all unless he was so satisfied. I really cannot assume that because a magistrate, in the course of giving his judgment, may express himself somewhat imperfectly with regard to the matters argued before him that he was so obtuse as not to understand the questions that were raised, and that he did not base his decision upon the questions raised. lam satisfied that the case must be taken as if the magistrate had determined— and as a matter of fact I have no doubt he did in his own mind determine— that the requirements of the Statute'of Frauds had been satisfied, and that the defendant was not entitled upon the facts to rely upon the provisions of the statute. The question then is : Upon the evidence which was before the magistrate was there any evidence from which he could draw the inference that the requirements of the statute had been complied with? In considering this question this court, of course, has to take as true the evidence of Batchelor (the plaintiff) and hia witnesses. They prove this : that apart from the question of the original contract the plaintiffs were, to the knowledge of the defendant, constructing a waggon in a blacksmith's shop which the plaintiffs had rented from the defendant, and which was close by the defendant's house. They constructed the waggon in this shop, then removed it elsewhere to be painted ; and when it was completed Batchelor brought it into the defendant's yard for the purpose of delivering it to the defendant. The defendant came out, and then Batchelor said that he had brought the waggon into the yard, and asked the defendant what they were to do with it. The defendant told him to put it in the blacksmith's shop. Batchelor did so. Later in the day he gave the key of the shop to tho defendant, and the defendant retained the key for a month, and also entered the waggon for the show. On the same day, however, that the waggoa was put in the shop, but after it was put in— whether before or after or at the same time that the key was given to the defendant.does not appear— Batchelor rendered to the defendant the account for the waggon, and the defendant then said that he never ordered the waegon. The defendant, however, notwithstanding this retained the key of the premises, and subsequently entered the waggon at the show. Now, the defendant must have been perfectly well aware when he received the key of the shop from Batchelor that it was the intention of Batchelor to give him the control of the waggon. I don't see how Batchelor could have given the defendant a fuller possession or more complete control over it ; and then subsequently to having thus obtained control exercised control by keeping it and by entering it at the show. No doubt there was an inconsistency in the conduct of tho defendant in saying/that he had not given the order ; but it seems to me it was quite open to the magistrate, looking at the other facts, to consider that' when the defendant said this he really did not mean to repudiate the contract, and that his subsequent retention of the key of the building containing the waggon, and the subsequent entering it at the show, showed an intention, notwithstanding his mere words, to keep the waggon. Possession was given *o him as far as it could possibly be given to him by the plaintiffs, and he retained possession and exercised dominion over the article, knowing that it had been delivered to him by Batchelor, in pursuance of a contract alleged by Batchelor to have been previously made by the defendant with the plaintiffs to purchase it. These acts on the part of the defendant' might well be considered by the magistrate to outweigh his verbal statements, and to Bhow an intention to treat the goods his own. If that is so, that to my mind is sufficient to indicate with tolerable certainty that there had been a contract for the sale of them as the plaintiffs allege. The rule laid down iv Campbell (page 282) is this : "If a vendee does any physical act upon the goods, other than what is strictly necessary for showing whether they correspond to sample or order, it is for a jury to draw the inference as to the intention of the act, and they may draw the inference of an intention to accept." For that the authority of Parker v. Wallis 1(5 Ellis and Blackburn, page 21) is cited. As I have said, it is not for this court to decide the case upon the evidence. The court in deciding the case must take the strongest possible view of the evidence in favour of the plaintiff that can be fairly taken. If, looking at the evidence from that point of view, there is a case to go to a jury that the requirements of the statute have been fulfilled, then the plaintiff should be entitled to obtain his judgment ; and I think there is such a case. For these reasons the appeal must be dismissed, with costs (6gs) and disbursements.