Page
May 15, 1895.]
some of the money went through my hands. It was about Rs. 1,200, I should think.
What did you do with that ?—I paid it away in salaries, bills, and different things.
You accounted for it to Mr. Smith ?—Yes. Witness, continuing—I was at Singapore part of the time the company was there. I took the money and handed it over each night to Mr. Smith. I could not say how much it was. I dare say about $100 was taken on the first night, but I cannot remember what the amount was. I cannot remember whether, on April 6th, the amount taken at the doors was 3224. I was there during two performances-Saturday and Monday. I left on the following Tuesday. The money I had from England was sent out to the bank. I am almost certain it was to the National Bank of India, Bombay. The amount was Rs. 1,800. Mr. Smith knew I was expecting it. I told him I had received it when I drew it from the bank. The bank people did not write to me saying the money had come. I certainly sent for the money I wrote from Bombay. I do not know the date; it was on the receipt of a letter. I think it was about 3rd January, The letter was from my sister, and I produce it. It is dated November 29th, 1894. I did not write immediately on the receipt of the letter. I do not suppose that the money came by telegraph. I did not receive a bill of exchange; no document was given to me. I did, not tell all the company about receiving the money; only Mr. Smith,
?
Up to that time you were very hard up?—I was not in a very flourishing condition.
say
You had to pawn your watch! I do not there is anything wrong in that, but you were so hard np that you had to pawn your watch at Penang ?—Yes."-⠀
If you bad not received the Rs. 1,800 yon would have had no money to lend Mr. Smith No.
And you practically lent him the whole of the money Rs. 1,550 P-The greater part of the
amount.
CHINA OVERLAND TRADE REPORT.
Mr. Ellis-I object to the question before it is put. It is a privileged letter.
Mr. Dennys-It is not your privilege; it is your client's privilege, and your client can claim it if he likes.
His Lordship-I think Mr. Ellis is quite right in interrupting.
385
leaving Bombay, except when he has actually provided him with cash at the time in order to do it; that he has never borrowed Rs. 905, or any other sum whatever. He will tell your Lordship that the plaintiff has been hard up the whole time, that he kept him, as much out of charity as anything else, because they have. been connected with each other for some time. The plaintiff has never had any money whatever of his own, and this Rs. 1,800 he received from a rich relation in England was never heard of by Mr. Smith or by any other member of the Mr. Dennys-To call it a privileged com- company, so far as he knows, up to the time the munication is absurd. (To witness). Of course you understand that anything you said to Mr.I shall call Miss Brian to prove that the £30 case came on. With reference to the I.O.U. Deacon is privileged, and you need not tell me. Did you or did you not instruct Mr. Deacon to question between the parties the plaintiff would was paid, and thus show that if there was any inform Mr. Smith that he was acquainted with really be indebted to the defendant. the details of the claim ?
Mr. DennysYes, my lord, but it is a most common thing in this Court to ask whether the solicitor was instructed to write in such a way.
Mr. Ellis-Yon have no right to ask that question.
Mr. Ellis-Don't answer the question. Witness-I object to answer.
As
Mr. Dennys-You can do as you like. far as you know Mr. Smith was not acquainted with the details of the account ?
Witness-Mr. Smith knew I paid the money for and on his behalf. He may not have known the exact amount.
You received a letter from me demanding $400 P-Yes.
Did you then inform me or Mr. Smith that Mr. Smith was indebted to you ?—I informed Mr. Smith that day.
Did you answer the letter P-No.
That is the I.O.U. for £30 which you gave to Mrs. Brian Yes.
Re-examined--The money I received was sent by my cousin, Henry Raffle, of London, who is well known in England. When I pawned my watch I was on the way to India. I was pro- prietor at the time, and Mr. Smith was manager. pawned my jewellery to get the company out of Penang. I, and not Mr. Smith, have been the monied man. Mr. Smith has been running companies in his own name with money borrowed from me and other people. I took Mr. Smith home in 1889. Saville Smith was to act as man- ager. I did not give him any fixed salary, but gave him money as he required it.
And you took an engagement from him at $50 a week after that That was some time after we started. Mr. Fawcett was the agent. My position was undefined when I left Calcutta.mination, as it did not arise on the cross-examina. Mr. Dennys objected to this line of re-exa- Before getting to Singapore I had no salary. tion,
In answer to further questions witness said -I do not owe Mr. Barb, of Calcutta, any in a position to require loans of money. As a Mr. Ellis-He states that his client was not money.. I owe Miss Christine Rs. 65. I also matter of fact he was a man in needy circum- owe money at Shanghai for the theatre and stances, and I submit I am entitled to re- hotel bills. Mr. Smith said he lost money at examine upon the point. My friend has at Rangoon. I do not know whether there was a tempted to show that my client has been a loss of $800 there. I have not seen the Singa-man of no means throughout the transaction pore accounts, and do not know there was a loss and that Mr. Saville Smith has been a man with there of $1,100.
I am showing what Mr. Saville Smith's position and there has been no occasion for a loan. has been all through his career, and I shall be able to rebat the inference that my friend's cross-examination attempted to raise.
Do you solemnly swear that you have not
· made a mistake in saying that those items were entered at different times ?--I have sworn it.
Are not the entries apparently written at one time?—No, they are not.
When did you total it up at the end ?-I totalled it up here when I put in my claim for
the amount.
You did not think it necessary to put in any dates P-No.
Did you get any promissory note or acknow- ledgment from Mr. Smith for the Rs. 9:15 P--- No..
Have you got anything whatever to show me that you lent him this money at all I have got this letter that states that the money is at home for me. If we were in Bombay the bank would state that I had the money. If you like to tele- graph to the bank I dare say they will tell you
I received it.
When were the particulars first sent in ?- The account was sent in by Mr. Ellis.
After you had been arrested by Mr. Smith ?— Yes.
Mr. Dennys then read a letter from Mr. Deacon, solicitor, to the defendant, making ap- plication for damages for malicious arrest and for money lept. The letter contained the following sentence-"You are acquainted with
the defails of the claim.”
Mr. Dennys-The " details was a mistake of Mr. Deacon -Oh, yes. Mr. Smith may have known some of them.
Mr. Ellis-The details may not refer to the actual figures, but only to the items. It is per- fectly right.
Mr. Dennys Did you instruct Mr. Deacon to say that Mr. Smith was acquainted with the de- tails-
money,
Mr. Dennys-Provided I am allowed to ask questions in reference to past matters I have no objection to this line of cross-examination. I am quite prepared to show that Hardy was employed by Mr. Smith in Melbourne at #2 a week.
Mr. Ellis said he would not proceed further in that direction.
In answer to further questions witness said he did not get an acknowledgement for the money lent, because he did not think the defen- dant would deny the transaction. The defen. dant had knowledge of the amount owing before the warrant was issued.
spoke to being lent Rs. 5 at Rangoon by the Mr. D. C. Smith, a member of the company, defendant, who said that Mr. Hardy would give bim Rs. 10 which he (Smith) had given for him, He also spoke of other items in the account.
Cross-examined-I had not heard that Hardy had received Rs. 1,80 in Calcutta. I always looked to Mr. Smith to pay the expenses, and he did so.
|
Mr. Saville Smith-I have known plaintiff five or six years. I first met him in Australia, when I had an opera company. I have been proprietor of dramatic and opera companies, mostly opera companies, for eighteen years. I have been all over the world-America, Australia, and I have been out here twice. I had the Gaiety Theatre in Sydney when I first became acquainted with Mr. Hardy. In 1889 we went home to England. Speaking of the tour in India witness said—I paid the fares, and gave Mr. Hardy the money with which to pay for the luggage and other incidental expenses between Bombay and Cal-
cutta.
I had to pay for the meals of the com- pany. I paid the rent for the bungalow myself in my bedroom. It is an infamous lie-
His Lordship-Don't use such strong language. Witness, continuing, said—Since I left Lon don I have not received one cent from Mr. Hardy in connection with the payment of bills for the company. As far I know Mr. Hardy had no money of his own in Calcutta, Hardy arrived in Calcutta at seven o'clock on Friday evening and left at seven o'clock the next morning. I have never seen a Rs. 1,000 note of his in my life. Mr. Hardy has received money of mine in Ran- goon, Singapore, and Hongkong, and as far as I know he has paid over the whole of the amounts he has received. At no time has he told me he had a claim against me of Rs. 1,500, because be I.O.U., I paid the £30 to Miss Marie Brian knows he is indebted to me. In reference to the
after Mrs. Briau's death, because I told Miss Brain, in answer to her question, that it was no money. use going to Hardy for it. as he had not got any ́ carried on a Lyric Company, and we have never We all knew that. Mr. Hardy and I had a settlement of accounts. I should think that he owes me about Rs. 3,000 or Rs. 4,000.
The Court then adjourned.
After the adjournment the witness said that for hotel bills in Calcutta. In Penang plantif in February be paid Hardy Rs. 200 and Rs 120 had $50 and in Singapore $50, and for hotel bills he was paid $134,10.
Cross-examined-I have not heard that my father's theatre in Manchester was in mortgage. I have had a good deal more then £100 from my mother since I left England-perhaps £200 or £300 during the last fifteen years. I took a company of twenty-four people from San Francisco to Australia in 1880, and then had $4,000 gold. I first knew Mr. Hardy in 1889. and at that time I had an opera company at the Gaiety Theatre, Sydney. I first had business transactions with plaintiff in 1889 when I went home to England. I was sole proprietor of the company, and made some money-not much. Perhaps it was more than £100. After that I think I took a trip into the country with the company, and I do not think we lost. When I got back I met Hardy. The season was then over and the company disbanded.
I do not suppose I made much during the season. After going to England I went out again with Mr. Hardy and had the Gaiety Theatre, Melbourne. I then represented Mr. Hiscocks and Mr. Marshall, and had a power of attorney from Mr. Hiscocks, solely, but not from Mr. Marshall. I swear that Mr. Marshall had something to do with the theathre, as he was in partnership with Mr. His
Re-examined-When Mr. Smith returned from America he paid the salaries. Things then were very bad, as business was dull, and there was a general rumour that Hardy had no concks nection with the company. The money that was lent to me was deducted from my salary.
This concluded the plaintiff's case. Mr. Dennys-Your Lordship is acquainted with my defence in this case. It is an absolute denial that the sum of Rs 1.552.7 is due from the defendant to the plaintiff. The defendant will tell your Lordship that the plaintiff has never made any payment on his account since
Who paid your expenses in London ?-Mr. liscocks gave me £100 when I was leaving to pay current expenses, and wired me the equiva lent of eighteen people's fares at £24 per head.
Who paid your board ?—I paid my board, cer- tainly
Mr. Ellis here read a deed of partnership between Mr. Hardy and Mr. Hiscocks, and asked whether any money was advanced to witness ?