SUPREME COURT.

Evening Star, Volume VII, Issue 2068, 21 December 1869, Page 2

SUPREME COURT.

CIVIL SITTINGS. Yesterday. (Before Mr Justice Ward and a Special Jury.) HENNINGHAM V. DRIVER. This was an action brought by the plaintiff, William John Henningham, proprietor of the Echo newspaper, to recover from Henry Driver, of the firm of Driver and Maclean, 1,5,000 damages, for malicious prosecution. The defendant, by his pleas, denied all the material allegations contained in the plaintiffs declaration.

Mr G. E. Barton and Mr W. D. Stewart appeared for the plaintiff; Mr James Smith and Mr James Macassey for the defendant. Mr Barton, in his opening speech, explained the facts of the case. A few days before the 30th of June last, a letter written by Mr Driver to Mr John Treweek appeared in a country newspaper. [The letter was here read.] * It excited the attention of the Dunedin press, and on the 30th of June there appeared in the plaintiff’s newspaper, The Echo, an article, which was written or purported to be written commenting on that letter. [Article read.] A few days after the appearance of that article, Mr Driver instructed his solicitor to demand a retractation and an apology from Mr Henningham, Certain correspondence took place between Mr Driver’s solicitor and Mr Henningham’s solicitor. In one of these letters, MiDriver’s solicitor gave the plaintiff the opportunity of making a thorough retractation or apology, or the alternative of abiding by the consequences of a criminal prosecution. Mr Henuingham, believing that to comment on such a letter, written by a member of Parliament and a member of the Provincial Council, was within his privilege as a journalist, agreed to accept the challenge thrown out in the correspondence. He would endeavor to show that the prosecution which was afterwards commenced by Mr Driver was brought on maliciously, and without reasonable or probable cause. He intended to show how the letter which caused the publication of the article came to be written. In the month of February, ISG9, Mr John Treweek was in the occupation of certain land, situate within the Tuapeka goldtields, called Bellamy Station, and known as Bun 167 on the Government maps. Messrs Driver and Maclean were his agents ; and it seemed in fact that the whole of his business connected with the station and otherwise was conducted by them. By documents which he would read afterwards, it would appear that, although Treweek was in occupation of the land, Driver and Maclean were apparently the owners; and he would also show that as soon as Driver had, at Treweek’s expense, succeeded in clearing the run, it became the absolute property of Driver and Maclean. At this time a man named Donald M ‘Kinnon had taken up an agricultural area on Treweek’s run, and he had paid half a year’s rent, which entitled him to occupation. Besides him, there were other persons in occupation under agricultural lease, amongst the number being a man named John Brooks. Treeweek communicated with Driver, and by his advice steps were taken to remove these persons. Treweek caused a notice to be issued, warning trespassers and cautioning persons against squatting or settling on the run without leave. The next step was taken in the month of March, when the warden, Major Croker, caused a summons to be issued calling upon those persons in occupation oi the run to appear before him and sustain their claims to the land. Mr Driver sent up Mr B. C, Haggitt to oppose the applications ; hut in spite of that gentleman’s opposition, Major Croker allowed the applications ; amongst others that of M‘Kinnon. The Government surveyor was then sent up, and he drew up a plan of the ground, marking on it the names of the allotees, and forwarded it to the Government. Driver and Maclean subsequently gave up their original license of the run ; and accepted a deed of covenant by which they got a lease of the run for an additional ten years, and by which they agreed to give up 5,000 acres of the run, without compensation, for agricultural settlement, when called upon by the Government to do so. Shortly afterwards, it appeared that some 15,000 acres of the run, including the land held by these holders under agricultural leases, were to he sold ; and immediately a petition, signed by 4S of them, was forwarded to the Government. In reply they got a distinct assurance from the Provincial Secretary (Mr Duncan) that the Government had no intention of selling the land ; on the contrary, that they had agreed with the runholder that _ he should give up, without compensation, 5000 acres for the purposes of agricultural settlement, and that their rights would he respected. The Government, however, did not issue leases to the settlers. In addition to the letter written by Mr Driver which led to the article in the Echo, he wrote to Treweek on the 7th January, 1868. The first letter, when published, caused some outcry, but if this, and the one that followed it, had been published, it would have caused still more. The letter of January 7th was as follows : “ John Treweek, Esq., Tuapeka. “ Dear Sir, —Yours of yesterday is to baud. Our Mr Driver returned home last week, and has since seen Mr Macandrew, who has made arrangements to start tomorrow op next day on a trip up the country, hut is obliged to go by Shag Valley and Dunstan, and will come home via Tuapeka. “ He has promised to write us (or rather telegraph us) from the Dunstau, when he will meet us at Tuapeka, and you may depend we will he there to meet him; we think he should he at Tuapeka about the middle of next week. “ Until this meeting is over, we can only again beg of you to keep quiet with all parties—in fact, do nothing. After that we will put things straight, or we are mistaken. “ Major Crokor’s acknowledgment is received, but we will not take any steps about it until after the said visit to Tuapeka. We notice your order on us for L2OO, which will he paid on account of house and station. How much is the contract for altogether.? Pray keep things as fine as possible, and eider into no fresh expenses in the meantime. —We are, dear sir, yours truly, “ Driver and Maclean.” Well, Mr Macandrew and Mr Driver met at

Tuapeka, as stated in the letter. Treweek was also there. The negotiations were brought about by Driver—his Yankee spirit brought him to that ; Mr Macandrew was peacemaker, and took the side of the settlers. So far as M‘Kinnon was concerned there was a great deal of bargaining, and he ultimately agreed to take LSO and quit. He (Mr Barton) did not know whether Croker took any part in the negotiations ; he did not think he did, for he was aware that Driver had the bills in his pocket, and that probably influenced him. M Kinnon was to receive LBO and valuation for his improvements, and was to receive a piece of land on another person’s run. After that arrangement had been entered into, Driver wrote the following letter : “Dunedin, 18th February, 1868. “ John Treweek, Esq., Tuapeka. “ Dear Sir, —We have your favor of the 12th, and are glad to see that you succeeded with M‘Kinnon’s case. We fancy he must begin to think he has not it all his own way but we must still beg of you to keep quiet with one and all, M'Kinnon included, for we are not out of the wood yet. “ We think our MrHriver asked you on getting the valuation of M'Kinnou’s improvements (if they can be so called) not to let any one know about it, as it was not done with any arrangement but merely to find out something near the value, and we regret to find that everybody knows about it. In fact -we got a letter from M ‘Kinnon to-day, referring to a valuation, and asking us for a settlement for the amount. Now we do wish you would try to act in these matters by our advice, or we may be put to trouble yet. We have the affair now incur hands, are taking steps to have the lot cleared, and which would now be done had it not been for the late floods, &c., and the absence of Mr Macandrew to Wellington ; he will however be back on Wednesday first, and very soon after you may expect to see something done in earnest. Brooks will be the only party allowed a lease, all the rest will get notice to leave, and you may depend there will be no time lost.—We are yours very truly, “ Drives and Maclean.” These letters threw a flood of light on the affair. It had been complained by Driver that the plaintiff had drawn unfair deductions from the correspondence. He asked the jury if it was so ; and asked them to consider whether Mr Henuingham had merely, in his capacity as a journalist, discussed what appeared an improper transaction on the part of a public man—a course he had a right to pursue in that capacity. Referring to the prosecution, he said that the result of it had been to destroy the plaintiff’s credit, The proceedings that were then pending necessitated the stoppage of his evening paper, and he had not been able since to carry on a daily paper. What little property he had left from the wreck of his affairs had been gradually slipping away ever since. Mr Barton was about to argue that the prosecution commenced by Mr Driver was an improper one, as it should have been initiated by the Attorney-General, when he was interrupted by The Judge, who remarked that the course taken in this instance had, pvlnia facie, been taken before in the Colony. Mr Barton remarked that the question did not arise now, and proceeded to call his witnesses, when the following were examined : Messrs A. A, Catomore, H. C. Brower, H. Howurth, D. M‘Gowau, W. H. Gutten, D. F. Oawin, A. H. Ross, Edw. Croker, John Treeweek, and B, C. Haggitt, The examination of these witnesses occupied the Court until six o’clock, and the case for the plaintiff not being concluded, His Honor adjourned the Court until ten o’clock on Tuesday.

Tins Day. His Honor took his seat at ten o’clock, when the case for the plaintiff was continued. The first witness called was Mr J. Ham, but counsel objected, maintaining his evidpnee to be inadmissible. The objection was allowed. The plaintiff, Mr W. J. Henningham was then placed in the witness box, as the last witness. His examination extended to half-past one o’clock, when the Court was adjourned for ha’f-au-hour. At two o’clock the case was again commenced. Mr Barton applied to put in certain correspondence, which was not allowed. This closed the case for plaintiff. Mr Smith commenced the defence, and moved for a nonsuit on three law points which were argued on behalf of defendant by Messrs Smith and Macassey, who still held possession of the Court when our reporter left.