DISTRICT COURT, HAMILTON.

Waikato Times, Volume XVI, Issue 1359, 17 March 1881, Page 2

DISTRICT COURT, HAMILTON.

(Tuesday.— March 15.— Before His Honor Judge Macdonald.) In Bankruptcy. Re C. 0. Rookbs, a debtor. — This case was adjourned from list Court day for the purpose of enabling His Houor to refer to a decision of Judge Gillies', as to whether a debtor who had no estate could ' avail himself of the benefit of the .Acts..— Mr Hay appeared for the debtor, and' after a few remarks, in which he stated that the debtor had now made application for his disoharge, His Honor stated that , at the hearing of the case the solicitor for the opposing oreditors(Mr Gresham) had endeavoured to impute fraud to the debtor in his dealings with his creditors, but he felt it his duty to aay that there was absolutely no evidence to sustain; such an imputation. Mr Hay had stated I that the debtor had an estate, but, it would now be unnecessary for him to decide upon that point, as he had recently met with a decision of the Chief Justice's, in the oase re laherwood, which appeared to be upon all f outs with the present case. It was there laid down that a person, being a trader, and becoming bankrupt, was entitled to the consideration of the Court ; but one who had a ttated income, and knew to a shilling how much he had to spend, was placed in a very different position, and the Court would only discharge him on the recommendation of the creditors. The debtor would have to come before the Court at some future time, when the creditors had become more lenient towards him.

Wrongful Dismissal D. McTavish v. J. Ivess.— Mr Beale for the plaintiff. The' defendant conducted hia own case. This was a caso in which the plaintiff, who is a journalist, sued the defendant, the proprietor of a paper lately published at Cambridge, for wrongful dismissal claiming £100 damages. ' Mr Beale having opened the case called, Douglas McTavish, the plaintiff, who deposed that defendant had engaged him in writing, to fill the office of Editor. He had proceeded to Cambridge where he arrived on the Hth of October, 1880. He read telegrams and letters to and from the defendant to show that the plaintiff had been vested with the supreme control of the literary department. He also swore that he had conducted the paper to the best of his ability, and had always behaved in a courteous manner towards the employes and customers of the paper. The defence was that the plaintiff had mismanaged the paper and was incompetent to fill the position of Editor. A number of witnesses were examined on either side, the case lasting till 11. 10. p.m., at which hour His Honor announced that he would give judgment at 9 o'clock, on the following morning.

Yesterday. On the Court resuming yesterday morning, His Honor gave judgment in the case McTavish v. Ivess, as follows : — Plaintiff claims £100 damages for his wrongful dismissal from the position of Editor of the Waikato Mail, which, he says, it had been agreed he should occupy for a period of 12 months. Besides a general denial, the defendent pleaded that plaintiff misconducted the Mail, and behaved to his customers and employes in a manner calculated to damage the business, and that to prevent such damage, he relieved plaintiff of certain parts of his duties, but without reducing his salary, and that, thereon, plaintiff had left defendant's service of his own accord. We must first consider what were the duties of defendant, and the terms of his employment. The first step towards an engagement was a personal interview at Wellington, when the plaintiff, besides stating his qualifications, gave defendantjjeertain newspapers containing evidence of his ability as a writer. This, on the 25th September, is followed by a letter to plaintiff, in which defendant asks "Have you anything immediate in view, if not would you be prepared to entertain an offer of an engagement as Editor, &c, at a salary of £4 per week to begin with." On the 27th September plaintiff replies " I will accept your offer, subject to an agreement for a period to be fixed, say six or twelve months, and my own personal expenses to Cambrige. The salary to be increased to £5 at the end of six months." On October Ist, defendant writes :—": — " Your favor of 27th to hand, — I would be willing to enter into an engagement with you for 6, 9, or 12 months at a definite salary." — After declining to allow travelling expenses defendant goes on, " I would like your resolve immediately, it is my intention to give my present editor that post (it; reporter,) and to appoint you to the editorship j Campbell to be under your direction. Before leaving Wellington. I would like you to wait the receipt of a letter, giving full particulars regarding your duties, your duties would take in paragraph wiiting, reporting, reading, as well as editorial." This letter was supplemented by a telegram from defendant on October 2nd, "written fully, no personal expenses, will engage 9 or 12 months, leave increase after 6 months my honor."On October 4th, defeudant writes, ''I received your telegram accepting my terms," then follows, general matter as to newspaper, among which defendant says, '"the entire charge of the editorial department will be vested in your hands." From this correspondence the terms of the plaintiff's engagements and his duties are pretty clearly defined and certainly we find him clothed with the office of editor. On the 15th October, plaintiff reaches the scene of his labors, not pleased to find his advent unannounced, and so aoon as the 17th he telegraphs a -schedule of difficulties and shortcomings in staff and plant, and asking certain discretionary power, Defendant in reply sends words of condolence and the .power. On the 25th October, defendant writes :—": — " I was rather surprised at the tone and character of the leading article in the Mail of the 16th, the local also smacked of egotism. I trust that things are going on smoothly. Telegrams frequently reach me expressing dissatisfaction ah the way paper is being managed, but situated as I am at such a distance I cannot express an opinion." On the next day, 26th, defendant has formed an opinion, for he telegraphs : " Your disagreeable manner to customers seriously affecting my business. I withdraw all power from you, and have appointed Campbell charge of editorial ; you work under him, you must in no way interfere with office hands or any business. For any breach of these instructions Beddin has power to suspend you." To this plaintiff replies on the 27tn. : "Have received your telegram, consider it a direct breach of contract existing between us, I cannot therefore accept the subordinate position offered by you. I am ready and willing to carry out my part of the original agreement. I send you this early notice of the position I assume in the matter, in order that you may provide. Address reply care of Messrs .'' This ends the correspondence, and the engagement, and there remains to enquire into the several responsibilities of the parties for the disruption. It is quite clear that the defendant's telegram of the 27th was of such a nature ad to justify plaintiff in regarding it as a termination of his engagement. No gentleman, no head cook or gardener could quietly accept such an intimation, and had the matter rested there it would have been easily disposed of, but it does not, for defendant— who ' conducted his own case with such ability, aud good

sense and .taste as to make it a subject of regret that he does not hold briefs for others— soundly enough urged, "that though it be true— ana true enough it was — the evidence does not prove the particular misconduct mentioned in the telegiam, yet plaintiff had been guilty of other misconduct which I have since discovered, and, though I might be ignorant of it at the time of dismissal, it would justify me equally as if it had been " for such unknown misconduct I made the dismissal." This is, being undoubted law we have only to ask was this newly-discovered conduct such as to justify plaintiff's dismissal. Generally ib was charged against plaintiff, that ha had neglected the paragraphs,, locals and reporting, and, in particular that he had deferred the publication of a Thursday's Mail to Friday, and had in the issue for the next day hashed up, a good deal of paragraph and correspondence instead of giving new matter. All the witnesses agreed that in both respects defendant had good grounds of complaint, but some were inclined to excuse the delayed issue as an error of judgment, and the other on account of the weakness of the staff and plant at plaintiff's command, and .the purpose of the Cattle Show, and beyond that there is the fact of plaintiff being neyr, not only to the office, but to the neighbourhood and people. Altogether while ar{fuing that defendant had ground for floma dissatisfaction on both "points, I do not think the evidence discloses anything jtuv tifying plaintiff's summary dismissal, of which I musk hold defendant guilty, though he might consider he was only reducing plaintiff to the ranks. Now as to damages : It is not shown that defendant was actuated by any improper or ulterior motive but simply by one of dissatisfaction of which, to say the least, they were some grounds, but then plaintiff not only incurred outlay, in leaving Wellington, but is cast adrift in a strange place. Ido not think that if Ibe right in giving damages at all they can be put at less .than £50 for which judgment must 'go with costs. The defendant intimated that he intended to appeal.