Monday, 19th Deoembee.

Wellington Independent, Volume XXV, Issue 3087, 20 December 1870, Page 3

MONDAY, 19th DECEMBER.

The following persons were sworn as a special jury : — J. E. Nathan, Wm. Bishop, Robt. Port, J. H. Wallace, E. H. Hunt, Wm. Rowlands, C. J. Toxward, N. Marchant, J. A. Allan, F. C. Kreeft, T. W. Young, J. E. Wright (foreman.) SMITH V CLELAND. Mr Allan for plaintiff ; the Attorney-General and Mr Borlase for defendant. This Case was one arising out of a former business transaction between plaintiff and defendant. It seemed that plaintiff had been employed by defendant to manage a sale of bankrupt stock over which defendant held a bill of sale ; and subsequently to the sale of these goods plaintiff and defendant had a case heard before the Resident Magistrate, in which plaintiff obtained a qualified verdict. Following this, it appeared that defendant, as stated by plaintiff's counsel, called plaintiff a swindler, robber, scoundrel, and regular rogue, and that if he did net give back a certain cheque he would give him seven years hard labor on the roads. Jas. Fabian Wills deposed that he recollected the sale of Mould's drapery stock, which lasted four days. Cleland was present every day ; so was Mould's assistant. Cleland came in one day and asked if Mr Marks had paid for the goods he bought at the auction. The assistant was sent by Cleland to look for Marks to get the cheque for the goods, and also to shut up the shop and stop delivery, as he said lie would not deliver any more goods until these were paid for. Cleland said, " Jemmy Smith is a swindler, and I'll give him seven years on the roads." He said that several times, and was very much excited. He said, He's got the cheque, and he has no right to it." Marks came in the morning and wanted to take his goods away and pay for them, as the Falcon was waiting to go out, and he asked Smith to take the money. Smith and he went away together. After that Cleland came to the shop and asked if Marks's money had been taken. He came again and said that Marks had paid the money, and sent the clerk to look for Smith. The clerk came back and said he could not find him. It was then that Cleland used those words. By the Attorney-General : I was clerk of the sale, but had not to receive the money. I never was told that Smith was to receive money. I made out the accounts in Smith's name. I said that Marks wanted to pay. I did not hear Ellison say they had gone to a publichouse together. Ellison might have been ten or twenty minutes away looking for Smith. I think Ellison was sent after both to get the cheque. I think Ellison was sent a second time. It was after that Cleland said " Jimmy Smith has got the cheque ; he has no right to it ; I'll give him seven years on the roads." Thomas Henry Ellison called : I was at the sale, assisting in showing the goods. The sale commenced on the 10th and delivery was given on the 14th. Cleland came in that day about noon and after Marks's goods had been taken away, and he remarked " Marks has taken away his goods ; has he paid you ?" I said no. He replied " Well, it is strange he has gone away without paying." I told him Smith and Marks had gone out together, and said they would be back in a few minutes. He blamed me for letting the goods go without the money. I went out to look for them, at the publichouse, but I heard they had gone down the town. I afterwards went down the town and found Smith in front, of this Court. He said he had received the cheque. I told him Cleland sent me for the cheque, but Smith would not give it up. £4 17s was the amount. I told Cleland when I went back, and he got very angry and said, " The rogue, the scoundrel ; if he don't give that cheque up to-day I'll give him in charge and get him seven years on the roads." He used similar words afterwards in the course of the day. By the Attorney- General : The reason I went to the publichouse was because I heard Smith say " Let's go and have a glass of ale." I had heard that Smith received the cheque, and told Cleland so. Marks did not offer to pay me. Smith had nothing to do with the delivery, and I never saw him take any money. Mould received money from Marks during the sale but paid it over immediately to Cleland. Smith was not drunk. I know he had two or three glasses of ale, but he was quite sober. James Smith (plaintiff), auctioneer, called: I I have been an auctioneer between 25 and 27 years, and I conducted Mould's sale. It was agreed that Cleland would get a person to receive the money during and after the sale. I went up on the Friday to see how delivery was going on : neither Cleland nor Mould were there, and Marks asked me once or twice to take the money, as ho wanted the goods to ship. He afterwards gave me the cheque at the Metropolitan Hotel, and I gave him a receipt. I stuck to it on the ground that I had a lien on it. I went to Cleland after and complained of the reports he had spread. He first said, " You are a liar ;" when I asked "Do you mean to apply" that to me ;" he said " No, I mean other people, the abominable liars, don't believe a word of it." I then told him I would prosecute him. By the Attorney-General: It was no unusual arrangement that I made with Cleland. It is more ordinary for me to conduct, a sale without receiving money ; I don't usually receive the money. l am unfortunately a little addicted to drink. I have no office, nor clerk. I was arrested for debt, but it was that I did not put an unjust debt in my schedule. Cleland asked me who was to be my clerk, and I told him Wills. We stipulated that Oleland should give delivery and receive money personally or by a clerk. I met Marks that morning close to the plaoe of sale. I did not see Oleland at the saleroom that morning. Marks wanted his goods and said he would give me the money. I told Mr Ellison to deliver the goods, that it was all right. The reason we went to a publichouse was to have a drink. The beer in the saleroom was the sale

refuse of a cask Cleland had at the sale. I cashed the cheque. I have not returned any account sales to Cleland. I meant to give Cleland credit for the cheque. Cleland had the books for many days for his inspection. I never said that I did not want damages. I went to Robert Cleland's place of business within the last two weeks ; but it is an abominable story to say that I expressed a wish that the case was dropped, but that I had given it in writing that I would not interfere. I referred him to my solicitor. Re-examined by Mr Allan : No offers have been made to me to settle this matter. I gave Cleland credit for the cheque, and I had afterwards to sue him in the Resident Magistrate's Court for the balance, which I recovered in part. This concluded the case for plaintiff. On the application of Mr Allan the first count was amended by striking out " he is a robber," as no witness had deposed to these words, — and the second by striking out " regular rogue." The Attorney-General called, for the defence, John M'Gifford Cleland : Mr Smith was the auctioneer at a sale of bankrupt stock, over which I held a bill of sale, and we agreed that he was to receive 2 1/2 per cent commission, but not to receive any moneys. Mould and I received the money. I was at the sale room on the morning of delivery, about ten o'clock, and saw Marks there. Called again about 12 o'clock, and I was angry because I had seen Mould away from the sale. Ellison then told me that Marks had got his goods into a vehicle, and that as soon as he had, Smith caught him by ths arm, took him to a publichouse, and got the cheque from him. I sent Ellison after Smith, He returned in about an hour, and said that Smith refused to give up the cheque. I was very angry at hearing this,' but I don't recollect what I said. I can not recollect saying I would put him on the roads. The books were left a day or two, but were taken away before delivery was completed, so that I do not know what the sale realised. I know what he charged for commission. Several days after I saw Smith at W. W. Taylor's ; called him aside and asked him for Mark's cheque, but he refused to give it up. By Mr Allan : I claimed before the Resident Magistrate that Smith was only entitled to commission on goods bought by other people. Our agreement was 2 1/2 per cent. Smith sued for 5 per cent on the ground that I had broken faith with him. The Magistrate gave judgment for 2 1/2 per cent on the whole. I bought in two-thirds of the stock myself, but I told him before I would be likely to buy a great deal of goods. Smith came to me after the sale, and said "This is a most unfortunate sale, there is only about £160 worth of sale, and I won't have anything after I pay my men." I said, "Mr Smith, I know it is, but I'll give you something." I have said by letter that Mr Smith perjured himself. I may have said so by word of mouth. I asked Mr W. Turnbull to see if the case could be settled, but I never offered anyone any money to settle it. Robert Cleland, brother of defendant, called : Mr Smith oame to my shop within the last three weeks at my request, and we had a good deal of talk over this aotion. He said he did not want any- of the £1000 ; he was quite willing to settle it, but that it was in Mr Allan's hands, and he wished it was settled. By Mr Allan ; I sent for Mr Smith to see him about selling some goods. I don't know who first spoke of the action. He told me h6 wanted it settled, but that it was left entirely in his solicitor's hands. I did not go to you about it. This closed the whole case, and the AttorneyGeneral addressed the jury. Mr Allan addressed the jury on behalf of the plaintiff. His Honor summed up, telling the jury that I the question for them to decide was whether the defendant's language conveyed, or was calculated to convey, the idea that a felony had been committed. If they did not think that Cleland's language could be taken to represent anything more than those present in the saleroom already knew had been done, then the defendant was not guilty of the inuendoes attributed to him ; but if they thought the words " I'll give him seven years on the roads," were used with a malicious intent, and in a slanderous manner, the plaintiff would be entitled to a verdict ; and if they found a verdict they should, in considering the question of damages, take the relative position of the parties into consideration, the present position of plaintiff, his mode of transacting business, and his character generally. After an absence of three hours, his Honor sent for the foreman of the jury to know if it was likely whether the jury would still be some time over their verdict ; because, if so, he would make arrangements to be sent for. The foreman said there was every appearance that some time would yet elapse before the jury would come to a decision, and again retired. This was at 6 o'clock. At 7.30 the jury returned with a verdict of " Yes" on all the issues, and fixed the damages at £75.