The Sun.
London, England, 1863-08-14 00:00:00

COURTNAY V. WAGSTAFFE-AEED V. SAME.

These were two actions by repot ters engaged on the late
Iron Times, a penny paper, which started in January and
expired in March, against the supposed proprietors, on
alleged contracts to employ them for the Parliamentary
Session of that year. The defendant denied his liability
upon such a contract.

Mr. Denman, Q C., Mr. Prentice, and Mr. H. W. Sharp
appeared for the plaintiffs Mr. Hawkins, Q.C., and Mr.
Hunmen were for the defendant.

The two actions were by consent tried together, and were
commenced yesterday. It appeared that there were other
actions pending by other parties.
Mr. Denman, in opening the case for the plaintiffs, stated
that it was of the first importance for any newspaper to
secure the services of good reporters. The defendant was a
merchant and a gentleman who had been proprietor of the
paper, although the contracts were actually made by a Mr.
Holt, the editor. The defendant, he believed, disputed his
liability, on the ground, partly, of want of authority. But
he believed that the authority would be amply estabiished.
The defendant, who was engaged in various undertakings,
was the proprietor of the paper, and had taken an active
part in its management. On one occasion he had threatened
to dismiss the manager, a Mr. Morgan, who would be called.
On another occasion he had given directions as to an article
of intelligence he deemed of importance. He also was con-
sulted on various matters, and assumed authority as owner.
As to the rest of the case, the plaintiffs had been dismissed
in the midst of a session, and, of course, too late to find other
engagements, and were entitled to their salary to the end of
it, as, in the absence of evidence of an undertaking to the
contrary, the engagements were clearly for the Session.

The plaintiff in the first case was called in support of his
case. He met Mr. Holt, he said, on the 2d of January at
the office of the Weekly Times, and was told by him that
he was engaged in starting the Iron limes, and afterwards
on another occasion he met Holt at the office of the latter
paper, when he was engaged for the ensuing session as re-
porter, at £3 3s. a week ; and in the meantime to " write
letters and paragraphs." Nothing was said then as to the
proprietor. The witness said he had been engaged for five
or six years as a Parliamentary reporter, and there was a
general custom that such reporters were engaged for the
session.
Mr. Hawkins objected that there could hardly be a cus-
tom as to a paper not yet started.
The learned Judge said there might be a general custom
among newspapers, whether or not it applied in this case.
The witness repeated his statement of the custom, and
stated also that usually the editor or manager engaged the
reporters, and that afterwards his salary was increased to £5
58 a week. Parliament began in February, and in the mean-
time he was paid a guinea a week for the letters, &c. He
was paid by one Hooper, a clerk of the defendant, and the
defendant was often at the office conversing with Mr. Holt,
the editor, or with Mr. Alpass, the foreign editor, or Mr.
Morgan, the manager. The witness went on to prove direc-
tions given by the defendant. On one occasion, having seen
Yin Wagstaffe there talking to Mr. Holt, witness said to the,
latter after the defendant had gone, " Is that the capitalist ?.
(A laugh.)
Mr. Hawkins objected to this, and it was withdrawn, and
he then cross-examined the witness, and elicited that some
years ago Mr. Holt (who was a good deal connected with
newspapers) started another paper called the iron Times, and
the witness was engaged upon it. He was asked whether
he was not present at a meeting of the reporters at Holt's,
at which the defendant was not present, and this he ad-
mitted. He was pressed as to whether Holt had not said he
was starting the paper with money advanced to him by a
friend, and this he denied. What he said the witness stated
was" Well, we're going to bring the old Iron limes out
again. They have plenty of money." He admitted that
Holt said that if the paper succeeded different engagements
might be made, and he was pressed whether Holt did not
say that if it became a regular established paper the re-
porters' engagements would be placed on a permanent foot-
ing, and that he denied. He admitted that the last engage-
ment he had as a Parliamentary reporter was on the Morn-
ing Chronicle, and was weekly, but he had had a sessional
engagement on the Morning Chronicle.
Re-examined by Mr. Denman, the witness said that
Holt had brought out the old iron Times partly on his own
account, but he knew that Holt had not the means to bring
out a paper on his own account, and he never heard that
Holt had any advances to enable him to do so.
Mr. Alpass, who had been foreign editor of the paper, and
was always at the office, often saw the defendant there
watching how things went on, and sometimes talking to the
witness, looking at the witness as he was translating from
foreign papers, and discussing matters with him, and he had
heard him say to Morgan, the manager, "If you can't do
ktter than this I must find your successor." Witness
(who edited in the absence of Holt) had also consulted the
defendant as to the money articles, &c. He also had heard
the defendant speak about announcements of companies he
was connected with.

It appeared that Holt himself received a salary.
Several other witnesses gave similar evidence, but it was
elicited that their actual knowledge or experience applied
rather to old-established papers, and one of them admitted,
on cross-examination, that he had heard that the defendant
had advanced money, and had said that he could not ad-
vance any more.

The evidence in the case of both plaintiffs was very much
the same.

At the close of their case,
The learned Judge threw out that, without at all pre-
judging the disputed questiou of the defendant's liability, it
might be a fit case to be amicably arranged.
Mr. Hawkins said he would gladly have assented to that
suggestion, but there were other parties in other actions
not now present. The learned counsel then stated the case
for the defence. which, as already indicated by the line of
his cross-examination, was in substance this, that the de-
fendant had merely advanced money to Holt to assist him
in starting the paper, but was neither his partner nor his
,
employer. lie contended that the defendant could not pos-
sibly be liable, except either as partner with Holt or as his
principal, and that this was not a case either of partnership
or of principal and agent. ' Holt had desired to start a
paper and applied to the defendant for an advance of
money to assist him in so doing, and the latter consented to
do so., stipulating for some control over the way in which
the money was expended, and this would aecount for the
alleged interference on his past. The terms on which the
advance was made were embodied in ~,,
i— the learned counsel read,the
agreement between
them in January, 1862, which
1
effgat being that the defendant should advance 41,000 to
Payable out
Holt for the purpose of bringing out and editing the paper,
and should have the property and copyright as a security,
and
ofthe that
profits,at
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of appointimut and but should not be any persona/ obligation on
removal should have absolute power
of all persons employed on axed
TT it and that the defendant -

about the paper, as clerks and accountants, to receive
moneys, &o. The effect of this, the learned counsel said,
was to give the defendant a security, but not to make him
either Holt's principal or his partner. The money was ad-
vanced from time to time by the defendant, and, when the
whole of it had been advanced and expended, Holt applied
for more, and the defendant consented to make further ad-
vances to the amount of between £2,000 and £3,000. Such
having been, the learned counsel said, the real relation be-
tween the parties, there had been no conduct on the part
of the defendant holding himself out to the plaintiff's as a
partner or principal, for they never knew him or heard of
him until after their alleged engagements. That being so,
he contended there was no liability at all, in law or in fact.
All the acts or conduct ascribed to the defendant were to be
accounted for by the agreement between himself and Holt,
and imputed no relationship of principal and agent, or of
partnership. Then as to the second question, of the extent
of the liability (assuming any liability at all) and the alleged
custom of sessional engagements, the learned counsel denied
that it applied to papers just started to the knowledge of all
parties as a mere speculation.
was called and examined by
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plied to him to assist him in starting a paper, and the agree-
ment alluded to was entered into.
The agreement was as follows:

" Whereas, Mr. Holt is about to bring out and conduct a
daily penny newspaper to be called the Iron Times, and has
applied to Mr. Wagstaffe to advance and lend to him a sum
of £l,OOO for the purpose aforesaid, which he has agreed to
do in the terms here expressed. It is agreed between them :
" That the said Wagstaffe shall on or before the signing
of the agreement pay to the said Holt £l,OOO, to be applied
by him in and about editing and publishing and conducting
and establishing the said intended newspaper.
" 2. That the said Holc will assign to the said Wagstaffe
all the plant and type, together with the copyright of the
paper, as a security for the said sum of £l,OOO and interest.
" o. That the said £l,OOO, and interest thereon at the
rate of 5 per cent., shall be payable out of the profits to be
derived from the said newspaper, but shall not be a personal
obligation upon the said bolt.
" 4. '1 hat the interest shall be payable quarterly, on the
15th April, 15th July, 16th January, &c.
"5. That the said £I,OOJ shall be repaid by annual in-
stalments of £3OO.

" 6. That as a further security to the said Wagstaffe, he
shall, so long as any part of the said sum shall be unpaid,
have the absolute appointment and power of removal of all
clerks and servants to be appointed to conduct or keep the
books and accounts, and receive or pay moneys to be paid
or received on account of the said newspaper, but shall not
thereby incur any responsibility.
" 7. That as a further term of the agreement, the said
Wagstaffe shall have the option, at any time within 12
calendar months from the date of the agreement, of requir-
ing an absolute assignment to be executed to him of three
fourth-parts or shares of and in the said intended news-
paper ; and the said Holt agrees also to assign to him, or at
his direction, three fourth-parts or shares of and in the
plant, type, and copyright.
" 8. That in case the said Wagstaffe shall exercise the
option reserved to him by the last clause, he shall be at
liberty to sell or assign the said three fourth parts or shares
without the assent of the said Holt, but the said Holt shall
not be at liberty to part with his share or part without the
assent of the said Wagstaffe."

At the time of signing it he gave Holt a cheque for £l,OOO,
and Holt at once returned it to him and asked him to act as
his cashier or banker, and pay away moneys from time to
time at his order or direction, and be did so. He paid away
more than the £1,0:,0, and Holt then applied to him for
more money, saying ne was satisfied that the paper would
be a success, and witness agreed to and did advance more
money, taking Holt's bills ss security. He never exercised
Lis option of becoming proprietor and taking a legal and
formal assignment of the paper, 'thud only appointed one
clerk. He had not engaged any .1,1 the persons employed
upon the paper, nor ever saw any of them until after they
were eagaged. He had gone down to the office to see how
things were going on, but had never interfered in the ma-
nagement. The witness explained the various incidents
which had been spoken to as instances of alleged interfer-
ence. They were, as he represented them, mere casual ob-
servations or suggestions on the part of one casually present
and interested in the success of the paper. On one of these
occasions there was a premature rumour of Prince Alfred's
death, and he had said it would be well to be quite satisfied
of it before it was mentioned, as it would ruin the paper if
it turned out to be wrong.

Cross-examined, the witness said he was a general dealer
and " bought foreign or domestic goods." He celled him-
self a merchant. At the present moment he called himself
also a contractor. He had been connected, perhaps, with
five companies. He was pressed as to whether it was not
his intention to convert the paper into a joint-stock
company, and this he denied, and, being shown a pro-
spectus about it, said it was Holt's doing, Being asked
if it did not appear as an advertisement, he said he
believed it had, and probably he had seen it ; and
had not objected to it. (It was for the purchase,
on advantageous terms, of the paper, on which a
certain sum had been already judiciously expended, and
which only required more capital to become a good pro-
perty.) Pressed as to what was the sum the company were
to pay for the parer, and whether it was not £lO,OOO, he said
he did not know. Asked as to the persons put as directors,
it appeared that one of them was the clerk he had appointed
as cashier, and another the foreign editor of the paper.
Asked whether there was ever a company formed, he said
he did not know. He was to have shares, but it was not
defined how much be was to have, except that he was to
have his money back. Pressed as to whether he should not,
it the company had been formed and the purchase effected,
have asserted his option of proprietorship to the extent of
three-fourths of the purchase money, he said he should.
The learned Judge--And thus, if the paper was sold for
£lO,OOO, you would have £7,500 ?
Witness—Yes, that would be so. He admitted he was
to be entitled to three-fourths of the paper or its purchase
money. Pressed as to whether he did no know Holt had
been in difficulties, he denied it. He was then pressed as
to other companies he had been connected with.
The learned Judge asked how that was relevant ?
Mr. Prentice (in the absence of Mr. Denman) said he
should contend that one great object of the defendant in
establishing the paper was to advertise these other schemes,
and that the alleged agreement between him and Holt was
a mere pretence and sham, and that the defendant was the
eal projector and proprietor.

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these he admitted—others he denied. He was asked if he
had not said he required the paper to advertise such
schemes, and this he denied. He was then pressed as to
whether before the alleged agreement he had not advanced
moneys for the paper. This he denied, upon which a cheque
of his given to the printer on the 6th of January, 1862, was
called for and produced. It was for £lOO, and in favour of
the printer, and before the alleged agreement, and made no
mention of Holt. The witness, however, said the terms of
the agreement had been already settled. Asked if the paper
had been registered, the witness said he did not know. He
admitted that for some time he had daily statements of the
affairs of the paper. He denied receiving the money for the
advertisements. He declared he had no interest in the con-
cern except to get his money back.
Re-examined, he said Holt had given him a receipt for
£lOO. He said he dealt in iron. He had done nothing with
the paper but pay out his money. He was quite willing that
Holt, if he could, should dispose of the paper to a company,
that he might get his money back. Holt in the first instance
had assured him that the £1,600 would establish the paper
firmly, and afterwards pressed him again and again for fur-
ther advances. He never advanced any money but on Holt's
request, and altogether was out of pocket £2,700.

Mr. Holt was then called and examined by Mr. Hawkins,
and confirmed the evidence of the defendant. He said he
had desired to start a paper on his own account, and had
told defendant he could do so with £l,OOO, and defendant
agreed to advance the money on the terms of the agreement
contained in the true and real engagement between them.
If he could have established the paper it would have been
worth £40,000. It was a large lottery ; the prize would be
great if it succeeded. The calculations had failed through
unforeseen circumstances, but the money he at first had
would otherwise have been enough. The defendant had
never anything to do with the paper except under the
agreement. He tried to get other gentlemen to join in the
enterprise, but could not. The witness went on to state
that he had engaged the reporters, and the plaintiff knew,
and he had told them, that his circumstances would not
admit. of his entering into permanent engagements He had
distinctly told them so, and stated to them that thi.ir first
engagement would be for a week, though he hoped, if the
tiaper were to succeed, to give more permanent engagements,
and at the meeting of the reporters he distinctly re-stated
this in the presence of all of them.

Cross-examined, the witness denied he had ever told Mr.
Mr. Alpass that the deZendant was a proprietor. He also
denied having said so to a Mr. Lilley (one of the witnesses,
for the plaintiff), but admitted telling him " not to gossip•
He was then pressed as to whether he had told Alpass,
Courtney, Reed, and Williams, that they were engaged only
for a week, and he positively swore that he had told each
and all of them so, He was then asked as to the advertise-
ment about the sale of the paper to a company, and he said
there was no contract for the sale of it. He was then re-
ferred to the terms of the advertisement, whicb were—" The
directors are under contract for the purchase of the paper
upon advantageous terms ;" and he said that there was no
contract in writing, and that the paper was in such a posi-
tion that it would be " advantageous" to let any one take it.
(Great laughter.) The company was not registered nor
was the paper. Asked as to the imprint—" printed and
published by Mr. Holt for the proprietors," he said it looked
as if it meant a good deal, but it really meant nothing.
(Laughter.)
The learned Judge said there was some Act of Parlia-
ment which required that it should be stated for whom the
paper was printed, and it was in all newspapers.