SUPREME COURT.

Star (Christchurch), Issue 5132, 14 October 1884, Page 3

SUPREME COURT.

♦ Civil Sittings. Monday, Oct. 13. (Before His Honor Mr Justice Johnston.) BABCLAY V. VATJGHAN. Mr G. Harper, instructed by Messrs M'Connel and Douglas, appeared for the plaintiff. Mr Joynt, with him Mr Deacon, appeared for the defendant. On the application of the defendant, all the -witnesses were ordered out of Court. This was an action to recover .£SOO damages for libel alleged to have been falsely and maliciously published, as follows : *' lam of opinion tlmt the party, Mr Barday, the acting landlord, is conniving, to the detriment of the other creditors, with the bankrupt," one Powell. The defence denied that the defendant wrote and published of the plaintiff the words set out, and further affirmed that he did not use the words for the purpose of expressing the meaning as stated in the third paragraph of the plaintiffs claim, and further affirmed that the said writing and publication were not false and malicious. TTia Honor gave Mr Joynt leave to move for nonsuit on the ground of privilege, with leave to put the plea on the record if necessary. He would put the question to the jury: Libel or no libel as alleged. Mr Joynt called no evidence. Mr Harper addressed the jury, stating that plaintiff did not seek vindictive damages. Mr Joynt replied. His Honor summed up. The jury retired, and after an absence of thirteen minutes returned with a verdict for the plaintiff, one shilling and costs. His Honor directed them to omit the latter part. Mr Joynt asked hi 3 Honor to request the jury to say if they found express malice. His Honor asked the jury if they wished to say that the defendant should pay the costs. Did they wish to give a verdict that would carry costs ? The Foreman said the jury wished the defendant to pay the costs. Mr Harper asked his Honor to certify to the costs under rule 522. TTia Honor had a doubt whether the Court ought not, as a matter of morality, to inform the jury what amount carried costs. Mr Joynt submitted that the jury had now given their verdict for a shilling. He repeated his request that the jury should be asked to Bay whether or not they found express malioe. His Honor asked if Mr Joynt wanted them to alter their verdict. Mr Harper w»3 willing to accept the -verdict as it stood. He would ask his Honor to certify for the costs. His Honor could not say that the action lad been brought to establish some right other than the recovery of damages, though he thought it was brought to ' vindicate character. He was doubtful whether the Addition made by the jury, afterwards -withdrawn at his direction, should not be taken into consideration. A farthing damages cast reflection on the plaintiff, but the present verdict was not intended to do so. Mr Joynt would undertake to move for & nonsuit. He was about to address his jHonor, when Mr Harper protested against the «as being re-opened. His Honor pointed out that the rule gave him discretion, and the jury had intimated their desire. The rule should alloAV the Judge to point out to the jury what amount would carry costs. Hud the jury said nothing he would not luive given costs. The discretion of the Judge wa3 not arbitrary, but guided by circumstances. He was very loth to make a precedent, and would .cay that he would certify to costs if he had:j>ower to do so. He thought the jury should be told vhat amount would carry costs. After some little further discussion, His Hocor gave Hr Harper leave to move for judgment with costs. His Hon<jr said the verdict might still bo ; altered, as the jury hadnotbeendismissed. He would leave the matter as it was, taking down the -.verdict as first given, and as amended on his direction. Mr Harper r^cimled Hia Honor that the jury had exprec^ly stated that they intended defendant .to pay plaintiff s costs. The Court adjourned at 5.40 till 10 ajn. io-dxy (Tuesday). THIS DAY. {Before His Honor Mpt Justice Johnston a>d a special jury of four.) VINCENT AND CO. V. BEVEBT AND ANOTHEE. Mr Harper, with him M.v Deacon, appeared for the plaintiffs. Mr Fisher appeared for the defendants. Thi3 wa3 an action for the purpose of obtaining an injunction to restrain Mrs Devery and the Bank of New Zealand from taking Colonial beer from any other person than the plaintiffs. In consideration of an advance of £300 an agreement had been entered into in 18/7, between Edwin Cookson, who then, with Joseph Oram Sheppard, was in possession of the land, &c,, of the Garrick Hotel, to take no Colonial beer from any firm except the plaintiffs, for five

years from Oct. 1, 1881. The agreement •was to bind his sublessees and assigns. The main defence was to the effect that Joseph Oram Sheppard, though a co-partner with Edwin Cookson, had never consented to the agreement made by the latter with the plaintiffs. On Feb. 24, j 1879, Sheppard, who had acquired Cook- } son's share, paid off all tbe mortgages and I incumbrances on the Garrick, but after- • ward 3 the property was mortgaged, '■ sub-mortgaged, and leased at different 1 times. It had been mortgaged to the | Trust and Agency Company of Australasia under a first mortgage, and to Charles ! Clark under a second mortgage. Sheppard i conveyed the equity of redemption to one • Morlyn, at whose death his trustees leased ito Arthur Devery. Subsequently the proj perty was submortgaged to the Bank of New Zealand, who were holders of the equity of redemption. The bank paid off the fir3t and second mortgages, and became owners in fee of the land and premises. Mrs Devery was their tenant, and iv possession of the land and premises. Most of the facts were admitted, but some questions of mixed fact and law were in issue, such as the giving of certain notices and the effect of the non-giving of them, and as to the quality of tho beer, Ac. The issues were 22 in number. ( Mr Harper opened for the plaintiffs, and called the following evidence : — Edwin Cookson, brewer's traveller, residing at Dunedin: In 1877 was licensee and owner of the Garrick Hotel, which he, with Sheppard, had purchased from Maples Bros. Mortgaged it back to Maples Brothers. Witness and Sheppard were tenants in common. Carried on the hotel in partnership with Sheppard. Was in partnership on June 11, 1877, when he entered into the agreement with Vincent and Co. Got a lease of Sheppard's half interest for 21 years in August, 1877. The partnership continued till then. (Agreement and lease put in.) Got ,£3OO from Vincent and Co. to pay Sheppard, he thought, partly for the furniture. Felt confident he did tell Sheppard of his borrowing the money, and of the agreement. Was to pay 8 per cent interest. Sheppard did all the financing. Sheppard did not object. Recollected conveying his half interest in the land to Sheppard on July 3, 1878. (Conveyance produced.) Continued as lessee. Surrendered the lease on Feb. 13, 1879. Was certain Sheppard must have known of the covenant with plaintiffs. Was going into the Commercial Hotel, and surrendered by mucual agreement. Sheppard sold the hotel to Mr Morlyn on July 14, 1880 (conveyance put in), Was certain Morlyn knew of the covenant. The beer was always first-class. Witness was Morlyn's brother-in-law, and on intimate terms. Witness was Sheppard's brother-in-law. Averaged 30 hogsheads a month of Vincent's beer. Knew Mrs Devery and her son Arthur. Frequently went to the hotel while they had the hotel, and never heard a complaint of the beer. The City and Commercial were not bound to Vincent and Co. It is a common practice in the Colony for hotels to bo bound to 1 brewers, in return for advances. ; Cross-examined: Would not positively ' swear that he told Sheppard that the .£3OO came from plaintiffs, but folt certain of it. Couldnotsay when he had told Mr Shoppard of the agreement. The money was to be paid on July 11, 1879. Paid it off earlier because he had the money. Sheppard did not pay the money. Sheppard did not make a great fuss and say he would not have the house bound. Did not remember a covenant being tendered for him to sign. Thought there was something about a covenant. When the .£3OO were paid, did not claim that the house was free. Paid market price for the beer. Tho market price now was M7s 6d for XXX. Was not prepared to say what Dunedin brewers charged now. Thought the price would be a little more. There would be no dis- _ count off that. Travelled for Keast and M'Carthy. Knew Marshall and Copeland's xxxx. Henry Augustus Bamford (examined by Mr Deacon) : Knew Mr Hadfield, who instructed witness in February, 1878, to prepare a mortgage of Cookson's interest in the Garrick Hotel. (At this stage all the deeds connected with the property were, by consent, put in.) Drew Hadfield's attention to the agreement which had been registered. Also pointed it out to Sheppard, who several times conferred with witness with reference to it. Supplied Sheppard with a copy for him to get another opinion as to its meaning. Cross-examined : He wanted to know if the agreement was binding on the hotel without his signature. He always expressed his dissent from the agreement. James Scott, Bichard E. M. Evans, Frederick Baker and Robert Stone Florance gave formal evidence. Edward Deacon, solicitor : Knew Morlyn. Told Morlyn that the house was bound to Vincent and Co. Morlyn said, "It is all right, I knew that." This was before Morlyn took possession of the Garrick. Had asked Cookson to sign a covenant in pursuance of the agreement of June, 1877. Cookson refused. Thought that was when a man named Devery was in possession of the hotel. Cross examined : Made no tender of the covenant. Cookson had no interest in the hotel when witness asked him to sign the covenant. Thought Morlyn might have bought the hotel without knowing of the covenant. Thought the price very high, and said so. Understood Morlyn to be satisfied with the price, notwithstanding the agreement. Mary Anne Devery: Held the house from the Bank of New Zealand. The Manager of the Bank told her she had a free house and could get her beer where she liked. He said he preferred Ward and Co. to Vincent and Co. Got her beer from Ward and Co. till they refused to supply her. Had always got beer from Vincent and Co. till the conversation with Mr Watt. Thought till then that the house was bound to Vincent and Co. Returned the beer when sometimes it was not good. Cross-examined : Had sometimes to send the beer back. Produced accounts from plaintiffs. They charged £-i 10s per hogshead. On Feb. 1, 1882, 6 hogsheads and 18 gallons were returned. In March 11 gallons, in April 10 gallons, in January 1883 56 gallons, in March 9 gallons, in April 27 gallons, in May 8 gallons, in June 13 gallons, in July 27 gallons, and in February 1884 a hogshead were returned. Took from 18 to 26 hogsheads a month. There were frequently complaints about Vincent's beer. Since September 1883 had dealt with other brewers, but business had not been so good. Had been paying £'d 12s 6d, with three months' credit. Had been offered it for £3 us from two Christchurch brewers. Dunedin brewers supplied at .£4 3s superior beer. Had not had to return any beer since September 1883. Held now under a new lease from the Bank of New Zealand. The action was commenced after the new lease. He-examined : Was served with the first injunction before the new lease. Mr Fisher asked to be allowed to put iv a plea of res judicata. His Honor thought such a plea should I have been made sooner. Witness : Remembered making an affidavit in the matter of the injunctionAsked Mr Vincent to lend her .£IOO before the lease from the Sank. Might have told \ Mr Watt that. Mr Watt said the house was free after the failure of Sheppard. William Vincent, one of the plaintiffs : Cookson had borrowed .£3OO to enable him to pay off Sheppard his share on the f uvniturc. Agreed to lend the money on condition of the extension of the covenant.to take beer. Cookson .■%"■<' L he agreement. The j6300 wa3 repa.d b> -.'ookson previous to the i ,time specified. Supplied the house with j Jbeer till SepteniJx-. , i!»83. About that tizuo Mrs Devery told witness that tho Bank j would compel her to get her beer elsewhere. ' Previously she had asked for a loan to pay , an amount she owed the Bank. She asked . for Refused the loan, as she | declined to give security. When plaintiffs i foiyid she was taking beer from Ward and j Co. obtained an injunction, and Mrs Devery I took her beer from plaintiffs. Since the ■ injunction was dissolved, she had refused , to give any orders to plaintiffa. The ' 1 current market price was £i 7s (Jd to ; houses whether bound or free. Mrs ■ Devery never complained of the price, but ' a?ked for discount sometimes on account of

the quantity. After a fire in plaintiff's ' premises in 1881, some beer was not good. For eighteen months, out of 350 hogs- . heads sent out, only 158 gallons had been j returned. Frequently took back beer which had become thick through the casks being tilted, when low. Could not obtain a fair return for the money invested if a fair beer were sold at the prices named by Mrs Devery. Paid 13s duty per hogshead. Believed his beer was quite as good as XXX— perhaps better. Cross-examined : There is a Brovers' Association here. There are eight or nine breweries. The four principal ones belong to the Association, the objects of which were to conduct the business on certain principles. One object was an understanding to keep up' the price to £4 7s (id. Witness' partner was brewer for the last eighteen months or two years. He brewed good beer. He had been brewing years and years ago. When the agreement was made with Cookson, Cookson gave plaintiffs to understand that ho was about to get a lease from Sheppard. When Devery entered into possession there was some difficulty about the agreement, and plaintiffs then asked Cookson to sign the covenant. Paid Sheppard ,£ICO to obtain his personal covenant. That was about July or August, 1881. Devery wanted to get a portion of that money, and plaintiffs declined to pay it to him. Sheppard said he would have to give a considerable portion of the .£IOO to Devery because he had given Devery a lease without the covenant. The payment of .£IOO is entered as given on January 31,1882; fancied it was not cash, but a credit against amounts due by Sheppard to the firm. The delay was through the illness of Mr Morlyn, who was to be a party to the agreement. Re-examined: The M 7s 6d arrangement was made when the excise duty was put on. There was a meeting of hotel-keepers who were parties to the arrangement, which was not confined to brewers. The Association consisted of Ward and Co., the Crown Brewery, and S. Manning and Co. Other breweries have a much smaller trade. The Association supply free houses at the same price. Plaintiff supplied many free houses. To Mr Fisher : Probably the four firms supplied nine-tenths of the- Hotels in Christchurch. To Mr Harper: Lost a considerable amount in the shape of profits by the discontinuance of the Garrick to take the firm's beer. Would think the loss would be .£7OO or .£BOO. To Mr Fisher : The profit on a hogshead at M 7s 6d was JBI. Mr Harper put in a letter from the plaintiffs, giving the Bank of New Zealand notice that the Garrick was bound to them till August, 1886. Mr Vincent, in reply to a question from the jury, said that .£IOO were given to Sheppard for his personal guarantee that the tenant of the Garrick would draw plaintiffs' beer. Mr Fisher submitted that this amounted to a novation. His Honor understood it to mean that if Devery refused to be bound, Sheppard would be responsible. The guarantee assumed that the covenant was binding. A guarantee was a security in the event of another contract being broken. Mr Fisher referred to Devery's lease from Sheppard. Mr Vincent said he knew nothing about that lease. The money was' not paid to Sheppard to induce him to sign the lease. Mr Fisher : Was there an agreement in writing ? Mr Vincent : I believe there was. Charles Louisson, Managing Director of the Crown Brewery Company (to Mr Deacon) : The market price of beer in Christchurch had been £& 7s 6d since the duty, which was paid by the brewers. Previously the market price was £4. When the duty was put on it was added, but the hotelkeepers demurred at paying the 13s, and at a meeting arranged with the brewers it was decided that the duty should be paid by the brewers, who should charge .£4 7s 6d net to the hotelkeepers. Believed that brewers not members of the Association supplied beer cheaper than the members did. Could supply beer of equal quality at .£3 15s, but it -would leave a loss. Believed Vincent's beer was good, almost as good as that of the Crown Brewery. (Laughter.) Cross-examined: Some members of the Association withdrew because the quality was too good. Did not invoice at £A 10s, and allowed no discount. Most of the brewers gave a discount which brought the price to £i 7s (3d. Samuel Manning, brewer : Was Managing Director of S. Manning and Co. This witness corroborated the evidence of the last witness. Mr Harper put in the proceedings for the first injunction. ; This was the case* for the plaintiffs. Mr Fisher submitted that no case had been made out for an injunction against the Bank of New Zealand. His Honor did not see that the Bank could bo restrained. Mr Harper believed it would be made plain hereafter why the Bank had been included. His Honor thought it as well to postpone the question. Mr Fisher thoiight the only questions for the jury were as to the soundness and price of the beer, and as to nofice having been given to the transferees. He then opened for tho defence. [Left sitting.]