RESIDENT MAGISTRATE'S COURT
Thursday, March 24.
(Before G. G. FitzGerald, Esq., KM.) There were no police cases before the Bench.
CIVIL CASES.
De Woolf v. Marks. — An action to recover the sum of £47 10s. Mr South appeared for the plaintiff, and Mr Harvey for the defendant. Joseph De Woolf sworn, said he resided at Stafford Town. About the middle of last year a conversation took place between the witness and defendant in reference to a sum of money, £53 due witness in Melbourne. The defendant said he would collect the money for witness, as he knew the man that owed it well. The defendant went to Melbourne, and on his return said he had received £47 10s from Isaac Coleman; that was in November, l869. The difference was for a debt which Coleman said witness owed, and commission charged by Coleman. Witness never received any letter from Mr Marks about the matter. Marks said the money could be left with him, and it could be got at any time. Witness knew defendant for some considerable time. At the next interview Marks asked witness if he wanted the money particularly, and he said not. Some time after witness thought of going into business, and wrote to Mr Marks for a cheque for £11. Not getting an answer to the letter, witness came to town and asked for the money, or at hast £25. Witness was promised a cheque that afternoon. Not receiving it, he waited on defendant next morning, and he gave witness a £5 note. Witness then said he must have the whole of the money.
By Mr Harvey — I had a cheque from Coleman, but the payment of it was stopped, as the money had been paid to Mr Marks. It is dated on the 23rd October, 1869. I gave the cheque to Mr Marks. I merely showed him the cheque. The money owed by Coleman was a bet, and I promised Mr Marks £10 to collect it. On Marks returning from Melbourne, he said that he had indemnified Coleman against any action that I might bring. I did not give back the cheque, as I did not get the money. I asked Marks for £25 about a fortnight ago. The cheque now before me is for £30, which I have received from Marks. It was for money lent outside of the £47 10s now sued for, and was given outside of this Court. There was no third person present when I lent the £30. I got a memo, and when I got the £30 I returned it (the memo), and Mr Marks tore it up. That was outside his own house. I did not give Marks the notice at the same time I got the cheque for £30. I read over the letter (produced) to Garton, signed B. Marks (letter read). I did not sell the bet to Mr Marks. The letter states so, but when it was sent I merely glanced over it. All my business transactions with Marks and Fuerst have been closed for some time. When I lent the £30, Mr Marks gave me a memo. We went to the Post Office Hotel, and he wrote it there. I cannot recollect the date I lent the money, but I got it back about the race time. I knew that Marks had received the £47 10s about two months before this time. I made no memorandum at the time I lent him the £30. About the time he arrived from Melbourne I lent the £30, and it was paid back in about five days after. When I said, outside the Court, I meant outside the gate. He did not say what he wanted the £30 for. I had not then asked him for the return of the £47 10s. The £30 was lent shortly before Christmas, and was returned on the 31st December, 1869. I wrote from Stafford asking Mr Maiks to send me £11 on account of £47 10s. That was about five weeks ago. The letter said nothing about the money being a balance of the £47 10. Mr Marks denied receiving the letter.
By the bench — I asked for the £25 about three weeks ago.
By Mr Harvey — We had a conversation the previous night, and next morning I got £5, and on remonstrating with Mr Marks he said I could go and sue him.
Re-examined by Mr South — The memo given for the £30 was merely an I.O.U. Marks frequently asked me to lend him money, but I had not done so before this time, I got the cheque from Coleman in a letter, and I can account for it in this way — that Coleman told Marks he had sent a cheque, and to make good his word he sent me the cheque. I frequently carry much larger sums than £40 or £50 in my pocket when I come into town. Part of the letter to Coleman was read over to me, and I explained the nature of the bet.
Bernard Marks, sworn, recollected seeing the plaintiff on the 24th August, at his own house, in reference to this letter. Prior to July, De Woolf asked witness to see Coleman about the money. Witness saw Coleman, who said he had sent a cheque. Defendant said he had not received it. Witness said he would give £30 for it, and if Coleman had no contra he would give him (defendant) the money. He agreed to do so. My clerk wrote the letter produced to Garton.
By the Court — I was to give De Woolf £30, and risk the getting of the £53. — Examination continued — If Coleman had contra bets, the agreement was to be void. A few days after, defendant said, as I would not have I any trouble, would I divide the balance above the £30. I agreed. There was nothing further said about it at that time. On the 30th of October, witness went to Melbourne and got the money £47 10s and gave Coleman an indemnity against the cheque. Witness returned from Melbourne on the 27th or 28th December. It was on a Monday, and never saw De Woolf till the 31st. De Woolf then came down and said he wanted the money. Witness gave him the cheque for £30, and said he would hold the surplus until Coleman relieved him from the indemnity. Coleman said he had a contra against De Woolf, and the cheque was only given for £47 10s. De Woolf handed witness the notice of dishonor on the 31st Dec, when receiving the cheque for £30. The indemnity was £47 10s, but Coleman had given two cheques. Witness had not been released from that indemnity. De Woolf never lent witness £30 in his life. Witness was not in want of money at that time, having just returned from Melbourne with a letter of credit for £100. Witness never had any conversation with the plaintiff outside the Court at the railings.
By Mr South — I gave him the cheque for £30 in my own house. I was not in the Post-office Hotel with De Woolf, between the 27th or 28th and 31st December. I never gave him an IOU in my life. I got the £47 10s from Coleman. At the time of the arrangement about buying the bet no money passed, but I got an order on Coleman from De Woolf. I returned from Melbourne on the Monday after Christmas Day. On the 31st he came into my bedroom, and congratulated me on getting the money for him. The purchase of the bet was a conditional one; if Coleman had nothing against De Woolf, and I got the money, I was to give him (De Woolf) £30. I gave it him that morning before leaving the house. I have never borrowed money from De Woolf. When I gave him the cinque I said, "You had better give me the cheque back again; you will only lose it or spend it." The matter of the £11 alluded to referred to the second arrangement about Coleman's money — I mean the half of the balance over £30, which was about £8 15s, and to make up the £11. I owed De Woolf a small bet on the races here.
Charles Williams sworn, said he recollected receiving a letter from De Woolf for Mr Marks; it was misplaced, and found when De Woolf came down, and was then shown to Mr Marks. It said: — "Mr Marks, — Dear Sir — Will you be kind enough to remit me a cheque for £11. I am about purchasing a business here, and I want every shilling." That is the wording of the letter, as near as I can recollect.
By Mr South — The letter was delivered by the younger Mr Mendellsson, and put in the recess after reading it. I don't know if it was to the firm or to Mr Marks alone. Mr Marks was then in Hokitika. The letter was found on the floor that evening. This was defendant's case.
Mr Harvey, in addressing the Court for the defence, said that one of the parties to the action must have committed wilful and corrupt perjury. The evidence given clearly showed that defendant had bought the debt from the plaintiff. There could be no doubt about that, nor that the defendant had paid over to the plaintiff the sum of £30, as agreed upon at the time he purchased the debt. After the first arrangement for the purchase had been made, the defendant was asked to remit half of the amount, which was for £53, and was the amount of a bet due by a Mr Coleman, of Melbourne, to the present plaintiff. The defendant had agreed to that arrangement. Instead, however, of receiving £53, the defendant had only received £47 10s, Coleman having deducted the difference for money due by plaintiff. At the same time, defendant had to indemnify Coleman again two cheques which he had forwarded the plaintiff as payment in the same transaction. There would be £17 10s to divide, which would give plaintiff £8 15s for his share. Defendant admitted owing plaintiff £2 5s on another transaction, which would bring the amount up to £11, exactly the sum which the plaintiff had by letter, requested the defendant to give over. The matter about the lending of the £30 after the defendant came back from Melbourne was a singular statement, but he thought one which no jury would believe after having heard the evidence.
Mr South, for plaintiff, submitted that even if there was a contract it was void in law, and no cognisance could be taken of it; in fact there was no agreement in writing, and a verbal agreement was not binding. The lending of the £30 had not been fixed as to date, and though the other side seemed to think it extraordinary that the defendant should borrow a sum of money from the plaintiff, yet he saw nothing strange about it. Cases of the kind frequently happened where a gentleman possessed of ample means borrowed of another for a short period. His learned friend had stated that perjury had been committed by one or other of the parties. Mr Harvey would, of course, exonerate his client from that charge, and then the Court was to believe according to his (Mr Harvey's) showing, that the plaintiff had been guilty of perjury. He would contend that his client was as worthy of belief as the defendant, and, indeed, was far more likely to be truthful. There was no doubt the £30 had been borrowed in the way described. The learned gentleman then referred to the evidence given by both parties, and in conclusion submitted that plaintiff was entitled to judgment.
The Resident Magistrate, in giving judgment, said he would answer no good purpose were he to go through all the evidence which had been given. He would content himself with alluding to just so much of it as enabled him to arrive at a verdict. The letter written to Mr Garton by defendant was read to, and seen by the plaintiff before it was sent. That letter stated, in terms, that Mr Marks had purchased the bet which had been so often alluded to in the action. He, the Magistrate, could scarcely understand how plaintiff could have allowed that letter to be sent without protesting again its contents, unless, indeed, he knew the contents to be true. Had the contradictory evidence given to-day referred only to that letter, he would have been willing to suppose that plaintiff's memory had failed him. As it was, the evidence in the subsequent part of the case was so contradictory, and was of such a nature, that it was utterly impossible to come to any other conclusion than that wilful and corrupt perjury had been committed. The plaintiff stated that he had lent defendant the sum of £30 on an IOU; that four or five days afterwards it was paid back by defendant's cheque on December 31st, and the IOU destroyed. The cheque bore date December 31. The steamer in which defendant returned from Melbourne had not arrived in the roadstead at the time plaintiff alleged he had lent the £30. Probably at that time the two men were hundreds of miles apart. Passing on now, to the £11, for which plaintiff wrote to defendant, it must he observed that it was a remarkable sum to ask for from a man who owed, according to plaintiff's story, £47 10s. It was not shown why that precise sum was asked for, but plaintiff said he wanted every shilling he could get to recommence business. Why then did he not ask for the whole of the amount alleged by him to be due from defendant? Defendant's explanation on that point was reasonable, and he, the Magistrate, must say, satisfactory to his mind. Defendant said that the agreement between himself and plaintiff was that the latter should receive £30 as purchase money for the bet, and that subsequently he agreed to divide with plaintiff the difference between that sum and the total amount of the bet. He received £47 10s. On Dec. 31s the paid plaintiff £30, leaving a balance of £17 10s. The £11 written for by the plaintiff was made up of half that sum. viz, £8 15s, and £2 5s, the amount of a bet won by plaintiff of defendant. Had there been no such bet plaintiff's solicitor would certainly have put his client again in the box to contradict the statement of defendant on that point. But he did not do so. On three points, then, the weight of evidence was unmistakably with the defendant, and enabled him (the magistrate) to give judgment. — Judgment for defendant, with costs. -West Coast Times, 25/3/1870.
Perjury. — Joseph de Woolf, on remand, was charged with having committed perjury. Mr Harvey appeared to prosecute. Defendant was undefended by counsel. — H. C. Baddeley, Clerk to Bench and Clerk to Resident Magistrate's Court, deposed — I remember Thursday last and I remember the case De Woolf v. Marks. I produce the copy of the summons and memorandum of judgment given. The case was heard before the Resident Magistrate of the Hokitika district. I was present in court when that case was heard. The plaintiff was sworn and gave evidence on his own behalf in that case. — Robert Henry Brown, sworn — I am a reporter for the West Coast Times, and I was present in court on the 24th instant and took notes of the evidence given in the case De Woolf v. Marks. The plaintiff, in his evidence, said he had given authority to Mr Marks to collect some money due to him by Mr Isaac Coleman of Melbourne. Marks was to collect the money in Melbourne. Marks went to Melbourne, and on his return said he had received £47 10s from Coleman in November, 1869. The difference between the £47 10s and £53, Marks said, was for a debt owed by him (De Woolf) to Coleman and for commission. He never received any letter from Marks about the matter. On Mark's return from Melbourne, he (Marks) said that the money could be left with him and could be got at any time. I never received the £47 10s or any portion thereof. I have lent Marks money. I lent him £30 outside this Court; that was about Christmas time. I received that £30 back outside his own house on 31st December. I remember a cheque for £30 being produced. De Woolf said he received that cheque from Marks in payment of the £30 which he had previously lent Marks. He said he had received the £30 for that cheque. He first stated that he had lent Marks the money outside the Court. He afterwards qualified that statement by saying it was outside the railing in Sewell street. I see no mention in my notes as to the time of day he lent the £30 to Marks, but I think he did state the time. He did say that Marks and he went to the Post office Hotel, and that Marks there wrote him a memo, for the amount. De Woolf said that when he received the £30 cheque from Marks outside Masks' house, he returned the memo to him, which was torn up. De Woolf in one part of his evidence said that he lent Marks the £30 shortly before Christmas, and in another part of his evidence he said he lent the money either before or about the 25th December. He said he had lent it five or six days before receiving it back again. He said he had been told by Marks that he had received the £47 10s from Coleman directly after he landed from Melbourne, previously to his lending Marks the £30. I do not recollect De Woolf stating what interval took place between the time of Marks informing him that he had received the £47 10s and lending him tho £30. He said that he had agreed to give Marks £10 for collecting the debt — but denied having sold the bet to Marks. Cross-examined by defendant — Until Mr Harvey pressed you, you declined to fix the date on which you lent Marks the £30, then you said it was about the 25th of December. You then said it was five or six days before the 31st. You said you had not kept any memorandum of the date. I understood you to say the 25th of December was the date. I also took notes of the evidence given by B. Marks. He said that he returned from Melbourne on 27th or 28th December, it was on a Monday, and he never saw De Woolf until the 31st, and he then gave De Woolf the cheque for £30. He did say that De Woolf handed him a notice of dishonor on the 31st December, when the cheque of £30 was paid. I was at the races held at Hokitika about the New Year's time. I think it was on the second day.
Richard Banter Matthews said, I remember the 27th of December last. I remember that Mr De Woolf met with an accident on that day. He was bitten on the leg, and was under my care for five or six weeks. On the Tuesday morning De Woolf was able to walk about. I did not attend him until after the races. I believe De Woolf went down on the first day of the races, but I am not sure, as I took no note of it. De Woolf first slept at our house on the Sunday night, 26th. On the morning of the 27th, his leg was bitten. He slept at our house until the first day of the races. His leg had not commenced to be bad until after the races. I did not strap the leg until after the races.
By defendant — On the Tuesday morning you went away somewhere, and I went to the Waimea. I do not recollect you saying that you had been to Hokitika on that day. I am positive you went to Hokitika on the first day's races, and believe you returned at midday on the following Saturday. About the time of your return, you opened a letter in my presence. I have told you two or three times that your mode of conducting business was rather lax. I do consider your memory rather defective as to dates. We had conversation in reference to your buying a business on the Waimea. I am aware that you made an offer in money for a business at the Waimea. You told me the amount of money you possessed. On Christmas Day, when you came to my house, you had about £50 in your pocket. I took charge of it, and gave it you back shortly after the row was over. I think the money was returned on the Monday.
Re-examined by Mr Harvey — I do not know at what time prisoner came to my house on Christmas Day, but when I returned from Hokitika, about seven or eight o'clock, he was there then. Defendant usually went to town on the tramway, but he also travelled sometimes on horseback. Defendant was not walking particularly lame on the Monday and Tuesday. I am positive that the leg was not bad until he returned from the races.
Bernard Marks, sworn — I remember Thursday last, the 24th instant. I was defendant in an action brought against me by Joseph de Woolf. I produced a cheque for £30 dated the 31st December, 1869, in favor of De Woolf. I gave that cheque to defendant. (Cheque put in). It was the purchase-money of a bet which I had bought from De Woolf due to him by Isaac Coleman on a bet. I produce a letter which was written in my presence, and also in De Woolf s presence, by my clerk. De Woolf saw the letter and read it. I received the money for that bet from Isaac Coleman. I received the money on giving an indemnity to Coleman against two cheques which Coleman said he had sent to De Woolf. I told De Woolf I had given an indemnity to Coleman. When I gave De Woolf the cheque for £30 he gave me a letter (produced). He gave it to me on the race morning. I remember defendant being sworn in his own case on Thursday last. I remember him giving evidence that he lent me £30, for which he held an I.O.U., and that the cheque was given in satisfaction of it. He said he lent me the £30 before Christmas. He said he lent it me outside the Court House, and I went into Hanson's hotel to give him the IOU. I was on board the Rangitoto on Christmas Day, on my passage from Melbourne. We arrived in the roadstead on Sunday, the 26th, and I believe we landed the same evening. It was raining, and I being wet, ran home and went to bed. I did not see defendant that day. I first saw De Woolf on the morning of the races, but I do not remember whether it was the first day or second day of them. It was in the morning I gave him the cheque. Defendant asked me for the money, and I gave him the £30, and promised him his share of the balance as soon as I had heard from Coleman. I am almost sure that Moss Levy was present at the time. Levy is now in Auckland, but was in my service then. I never borrowed £30 from De Woolf, nor any other sum as a matter of business since the 31st of December, he has asked me frequently for the £11. He never asked me for the £47 10s, or for £25. The £11 was half of the balance above the £30, which I had I agreed to give him, and £2 5s due for a bet on the races. Defendant wrote to me about that, and I read the letter. I destroyed the letter. In the letter he asked me to be so kind as to send the £11 as he was about purchasing a business, and wanted every shilling he could lay his hands on. As far as I can remember the letter was received about the 3rd of March. I remember him saying on the morning he came for the £30 that he had been bit on the leg. I was in bed and he came into my room walking on two sticks. He pulled up the leg of his trousers and showed the bandages. I said I did not want to see it. I blamed him for not coming to town for treatment. He said he could not be treated better than by Dr. Matthews, where he was living. No one could attend him better. That was the reason why he did not come down.
By Defendant — I sent the letter referring to the purchase of the bet to Mr Garton. I got the letter from Mr Garton, at Melbourne. I am quite positive that you were present when the composition of that letter was made, and you read it right through. I remember stating that I was slaying with Mr Garton, and, as he was a friend of mine, he would be able to get the money for me. I swear positively I bought the bet. I was to give you £30 of the money due by Coleman, as you could not get it yourself. You wanted a diamond ring for it. I believe you were sober at the time. I paid you the money after I received it. I would not have paid it previous to receiving it had you asked me for it. I would not believe your word that the money was due to you, and yet I wrote to Mr Carton, saying that I had bought it. I thought there might have been some contra bets. I saw you first on the day of the races. I then gave you the cheque. I did not see you on Tuesday morning previous to the races. I never saw you for three months previous to that day. I sometimes make bets, but do not keep a book. I believe I was on the racecourse on Thursday, the first day of the races, and I saw you there, and we made some bets. I am not positive that you were there the next day, but I believe you were. I don't think I was at the races on the third day. I might have dated the cheque for the 31st, but I am positive that it was on the race morning. I don't believe that I owe you more than £2 5s. I might have lost more than that, but there might have been a contra. I know that £2 5s is now due. I am almost sure that when I handed you the cheque you gave me the notice of dishonor. It was not fourteen or fifteen days after. I am certain you were lame when you got the cheque, and were walking on two sticks. I am almost sure I received the letter for the £11, on the 3rd of this month. I treated the letter with contempt at the time, as it was of little importance to me. When you asked me, I denied having received the letter.
James Elliott, a constable of police, stationed at Hokitika, sworn: I remember serving the defendant with a subpoena on the race course. I believe it was Friday, the 31st December. He was walking lame and with a stick. I think he showed me the leg where the wound was.
By defendant: I think I saw you about mid-day. You were limping. I cannot recollect whether you took off the bandage or not.
James Hickson, sergeant-major of police, stationed at Hokitika, sworn: I recollect seeing the defendant on the race course, either on the first or second day of the races. I was in company with constable Elliott, when he served the summons. I pointed out the defendant to the constable. On referring to his book, kept by constable Eliot, I find it was received on the 31st and served on the same day. I saw it served on defendant, who had a stick in his hand and walked lame. I asked him if the wound was bad, and defendant took up the leg of his trousers, and took off the bandage.
By the defendant: That was about ten o'clock of the day. I am not positive that you had two sticks, but I am sure you had one. I saw you coming on to the course. I am not positive of seeing you on the first day's races. At this stage of the proceedings the defendant was remanded, by consent, until the 1st April. The same bail would be taken. -West Coast Times, 29/3/1870.
Joseph De Woolf, on remand, charged with perjury, was brought up at the Resident Magistrate's Court, yesterday, and discharged, the Bench not considering there was sufficient evidence for a jury to convict, although the case was a suspicious one. -West Coast Times, 2/4/1870.
DEATHS
De Wolf — At residence, Stafford, on Friday, March 11, Sarah, the beloved wife of Joseph de Woolf. -West Coast Times, 25/4/1870.
Unaccountably, after this Joseph de Woolf disappears from New Zealand reportage. It was still at a time when a person could change towns and identities and begin a new life. Perhaps the death of his wife prompted such a resolution in Joseph de Woolf.
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