SUPREME COURT.

Gisborne Times, Volume XXVI, Issue 2134, 7 March 1908, Page 1

SUPREME COURT.

CRIMINAL sittings. the tuatea case. SENTENCE OF TWO YEARS. James Campbell was brought up fro sentence. , His Honor said that tlio sentouco would be inadequate to dealing with the offence of which the accused hail been found guilty. The inadequacy arose from the lact. that the code did not provide for such cases as this, lie had been convicted on vory clear evidence of a most dastardly crimo. If it bad occurred in bad weather and tho boat had gone to sea, ono did not •know what might have happened, and ho supposed that 100 lives would liavo been at stake, hut that was not Ins motive. That appeared to bo to get tho engineer into trouble and this tvus a very unmanly and cowardly act. His Honor had no doubt but that Campbell bad been drinking and had become reckless anti this diabolical idea entered his head, lie bad enough sobriety to carry it out, but not enough to restrain himself. The most charitable thing to he said in his favor was that the prisoner did not realise to the fullest extent, what might liavo been tho consequences. It was difficult to believe that if ho had not been drinking ho would have gone tho length of getting this man into troublo. If possible lie had made matters worse by going'into tho box and making statements that he know to bo false. Ho was not- being prosecuted for giving false evidence, on oath ; that was not tho charge before him; tlio aceusoil was to be punished for tho offence of which the jury had most properly found him guiltj. As the steamer might have been rendered useless, he could not mitigate the sentence and he would be sentenced to two years hard labor in the, Auckland gaol. THEFT OF CHEQUE.

John Godfrey came forward for sentence. . , Air. lloes urged on prisoner s behalf that some sudden temptation seemed to have seized him, for evidently he was on terms of some confidence with Air Wallace. The prison;or was a married man and he asked for leniency. His Honor replied that the I rotation Officer’s report was unfavorable. The man was given to drink and very likely this was tlio root of the trouble, as it had been in nearly all the eases he liad tried at tins sitting. He relied on the fact that his employer was ill at tho time,, and J-lis Honor did not think that -a defence had been in any.way made out. He would inflict the exemplary sentence of six months’ imprisonment. ALLEGED ASSAULT.

Earliest Lind was charged with assault Sydney Old with intent to commit bodily harm, on 3rd February and with assaulting Sydney Old. ; The following jurors were empanelled : Alessrs L. lied ward (foreman), 11. T. Williamson, S. J. Elisor, T. 11. J. Adams, G. F. Faulkner, H. Currie, J. Alclvee, 11. Barker, T. Bell, D. Blair, P. Sheridan, E. A. Good. Air J. W. Nolan appeared for the Crown and Air W. L. Rees defended.

Air Nolan outlined the case for the prosecution. ; Sydney Old, a laborer at the Sheepfarmers’ Freezing Works, stated that he first- saw accused on Ist February jn his house round the Jvaiti beach. As witness entered the house, lie .told the.'accused to clear out. He jumped up and caught witness' by the throat with one hand and picked up a knife off the table with the other'. The knife used, an ordinary table knife, was similar to the one produced. Witness hit him twice and somehow, prisoner lost his hold of the knife and witness put him out. He refused to go away and wanted to fight. During the struggle, accused picked up an ordinary iron for domestic ironing, and threw it at witness, but it did not strike him. Accused then made a. rush at a boy called File and the boy hit accused on the head with a stick. After that ho seemed to have a little sense and asked for some water to wash his head; this was given him by the “missus.” Tie asked them not to send for the, police, as he would go away, and after arguing tho point for a few minutes, he went away. One of the boys had gone for the police. Accused had no right in the house so far as witness was aware.

B.v Mr Rees: When witness entered, accused was talking to the mistress of the house, but he did not appear to ho insulting her or using bad language.-! Was certain that accused struck him first. While they were struggling his wife tried to separate them. By Mr Nolan: Thought it was accused’s intention to strike him with the kiiifo.' Harry Burton said that ho lived with his mother and Old at Haiti. Saw the prisoner at the house late one afternoon; saw him coming and followed him an, but did not speak to him. Accused was sitting in the kitchen talking to witness’s mother, but did not know wliat he was talking about. About a quarter of an hour afterwards, witness went away to cut some wood and when he returned fie told accused that he had better go before his father came home. Ho would not go and he threw a boot at witness and chased hup down the road to the gate, then he went backinside and witness did nothing further till 5 o’clock, when lie met his father at the bottom of the hills and . told him what had happened. His father got hold of accused by the shoulder and told Win to go out, but accused unshed his father-to the wall and got a knife off the table andwent to stab him. Father shoved him outside. When outside, commenced lighting. Prisoner picked up an iron to hit his mother, who was trying to stop their _ fighting. File came up the hill and hit accused with a lump of wood. After that, "File went for the police. Annie Burton give similar x udence to' iti.lt o f her brother, the previous witness. By Mr Rees: Accused tried to cut her father’s neck. When her father entered the house, he gave accused a smack in the face and tokl him that- he had no right to be there. Accuser! and her mother were talking together in a friendly way, Ihe accused had a bottle of whisky. He poured sonic into a cup, winch he <r ;l re to her mother. T)id not see the accused strike her father. Accused, her father and her mother were all on the ground, when I 1 dc struck the former. , , , Albert File stated that accused made 1 rush at him and witness pick--0,1 U n a piece of manuka and struck him. Knew Old, as lie had been camping at the foot of the place tor a month or so. Const able McPherson stated tha t he proceeded to the ,scene and arrestv<\ accused for being drunk apd took him back in a cab. Asked him what lie was doing at the house. AA ltuess replied that he went there for an immoral purpose. Lind called Old an unprintable name. During the alt.orcation, Lind stated time ho had known the woman for two years. Accused was struck oil the head by Old with a bottle. , By Mr Rees: Noti.ce.d the wound on accused and blood was over his chest. lie had been in gaol for some time. . . ~ - n Addressing the jury, Mr Rees said that even if accused was in the wrong, lie had been sufficiently punished. The evidence of both the children was ncrainst the fathor’s statement that lie was struck first- Old was not clear in his evidence as to exactly where,lie li ul been struck. Ho was of opinion that the case was so clear that '■ he. jury could decide without leaving the box. ,

His Honor said that tliero was some discrepancy in the ovidonco and tie jury might have some difficulty m deciding what actually took place. It the jury was of opinion that tlio lonic was not used with a malicious intent, that could be dismissed. Apparently Lind was not wanted at tho house find ho did not net on this and leave, but he. iroturned to tho attack. ! 1 it was thought that an assault was oommittod on Old without justification, tho jury could bring in a verdict of guilty. ' .... After a retirement of eight minutes a vorilict of “Not Guilty” was returned and the prisoner was discharged. This concluded tho criminal session.

CIVIL SITTINGS,

The civil sittings' commenced at 2 ►’clock yesterday afternoon. CLAIAI FOR DAMAGES.

ML R. Aitken v. Common, Shelton anil Co., claim £IOOO, for alleged breach of contract. Air AV. L. Roes, with him Mr E. 11. Alann, wore for the plaintiff and TV H. B. Lusk, with him Air G. otoek, represented tho defendant company. The following jury was empanelled : J. Maynard (foreman), A. E. Skeet, F. Parnell, F. AV. Pottio, G. H. lUnouf, A. Robb, J. AlcKee, G. Brown, A. J. Poole. The statement of claim showed that plaintiff’ had an arrangement with J. B. Kells, managing director for the coninany, in 1904. Air. Kells requested’AD: Aitken to inspect Air H. AVhito’s sheep and buy if lie considered it profitable. Plaintiff took delivery of about 1500 sheep, for which lie paid £854. His order was dishonored by the company, and this injured his business. For the defence, it was stated that it had been decided not t y further finance plaintiff, and that In, had to get authority for every transaction, and that lie had no authority to draw on tlio company, Plaintiff never asked Air. Kells to approve bis stock, and the company sold it at Ala taw hero. Tho company denied that plaintiff’s business sustained any damage. Tlio company contended that this act was beyond Air. Kells’ authority. Mr. Rees stated tint plaintiff was employed by the defendant company as outside dealer, and this was admitted up to August, 1906. Whenever Air. Aitken saw a good line of sheep or cattle, he was required to acquaint tlio company, through Air. Ivells:. of the particulars. Generally, one of tho firm reported on the matter, amt he was authorised to purchase. In every case he gave an order on the firm, and ho brought the sheep into the town, and the company disposed of them. To safeguard the company, they had a stock mortgage. It was true that of late but few transactions had taken place, but he had not spoil many good linos. At the time the company advised him that they were dissatisfied with the position; they lnil more stock of his on their hands at the time. In Jauuai— 1907, Grnhame Johnstone told the plaintiff that a good _ deal could be made out of Air. White’s sheep, and Air. Aitken went to see them. In the early part of January plaintiff would tell the jury that they went fully into the matter, and Air. Kells told Air. Aitken to buy the sheep if lie was satisfied with the price mentioned. Air. Aitken went out a few days later, and lie saw Air. Coop, Air. White’s manager, ancl be reported favorably on the sheen. Air. Ivells then instructed Aitken to buy the sheep. This was about 15th January, and Air. Ivells was just leaving for South. Delivery was .taken on the 2Stb, and the company sold the sheen at Alatawhero on tho 31st. Plaintiff gave Air. Coop an order on tlie conn) tnv for £854, which __ Air. Coon unhesitatingly accepted. Knowing that Air. Aitken was employed by: the firm, Air. Coop did not ask for the order. The order was brought in by Air. Coop, and paid in to Mr. White’s account. T !l ■ sheen did not realise the' amount paid for them by Air. Aitken. The bill was returned to the hank endorsed, “Present again Ist Feb., 1907. Common, Shelton, and Co. G.K.P.” The sheep did not sell, and the next day the bill was marked, “Refer to drawer.” This was the cause of the present action. Air. Kol - left no memorandum, ex cept a rough note that the sheep wen to be sold on a certain day. if AD. Aitken sold through,another firm, i: had to pay a double commission, per cent, haying to bo paid to Com moil, (Shelton, and Co., and a coinmission to the'other firm. If plaintiff’s story wa« untrue, Air. Aitken had obtained tho sheep under false pretences. Had tlio sheep beon treated as in the past, they could have waited for a better sale, and there would have boon a profit instead of a loss. Air. Aitken’s loss was severe, and the other firms would not finance him, and he had to fall back on droving, but as ho had been droving Common, Shelton, anil Co.’s clients’ sheep, he lost that, and liad to go to Waikato and start again. Plaintiff, a drover and dealer in stock, stated that in April, 1904, Mr.' Kells was auctioneer and stock agent. Air. Kells told witness that if he saw any sheep for sale while lie was travelling about the country to find out the prices and quality, then to see him, and he would arrange for financing, provided in all cases that lie thought There was sufficient profit. Tho office gave witness an order book, the blocks ol two of which were dated from Afny 2nd, 1904, to Fob. Ctli, 1907, were produced. After inspecting tlie stock, witness usually bought, and on taking delivery he made out an order on the firm for the purchase money. Bought 276 ewes from Air. ■ AlcAlillan for £l7O Is on A!ay 2nd, 1904, as shown in the first block, and on 27th January, 1907, lie bought ewes from Air. H. White. By the Court: The book contained other kinds of orders, Eor some years continued doing business on the approval of Air. Ivells, Continuing, witness said that up to the order iif question there liad been no disputes. After a deal, the sheep were taken away by witness, in most cases to tlie JLatawhero sale-yards. The firm was secured after tlie purchase of a line by a mortgage giving the firm full control of the stock. Tins paper was signed about the end or 1904, or the "beginning of tlie following year. Read most of the items it contained, and signed it under the belief that 'it gave 14)0 firm all the necessary authority, ami they had us earmark. He leased a place of 400 acres from Air. Joyce. By the Court; Stock would not go there unless it failed to realise market values. 'Common, Shelton, and Co. gave -a letter to Air. Joyce, guaranteeing the first year’s rent. Air. Rees stated that the stock transactions in the order book were

20. AVituess continued : He would be debited with a gain. Between April, 190-1, and January, 1907, had no other banker than Common, Shelton, and Co. ; presumed Mr. Kells would know this. Never received any intimation that his account would have to hp closed. .Sold most of his stock in November.' 190(5,_ and his account closed about- that time;' a debit balance remaining. There was a transaction between November and January on the lines stated. His account was then iu credit. Never received any notice, verbal or written, that tho arrangement as to purchase of stock should terminate. 0 1 vo a promissory note for £195 19s lOd, as Mr. Paslev wanted it. Had sufficient steely in hand to cover that. In January he heard that Air. White had some sheep for sale, and accordingly made inquiries. Saw Air. Kells on the 7th or Btli in regard to the purchase, ancl gave him full particulars. Hacl the arrangement been terminated, Mr. Kells would have said so. Air. Kells said that if the sheen were all right and their mouths sound there should

bo money in them, and witness should ■ go up and have a look at them, Tbjs

was the usual way business had previously been transacted. Went up on 12tli January, saw Air. Coop, inspected the sheep, and arranged for a purchase. Was satisfied with them and purchased them, tho number not being fixed until delivery was actually taken. Saw Mr. Kells on 11th or 15th, and acquainted him with.what hail been done. Ho asked witness when delivery would be taken. Witness replied that it was on tlio 27th. it was*discovered that this was a Sunday, and it was agreed that witness should go up and take delivery. Mr. Ivells inquired what sale the shoep would bo ready for, and witness replied that they would be down on tlio 31st, tho following week. A memo, was mado in a book by Air. Ivells. The book produced looked like tho ono used, and it road; “Air. Aitken will have 1500 owes for sale in January if not sold sooner. See Mr. Hingktdn before advertising.” Mr. Kells stated Unit lie would liavo the mafctoi- advertised. Witness might sell privately, but the firm was entitled to commission under the arrangement, and this commission had been paid when, tlie occasion crorjped up. Air. Rolls did not ask witness where ho got the money to pay for tho sheep. By tho Court: Tlie actual number of the sheep was 1430. Witness proceeded: Gave the order to Air. Coop at 6 a.m. on the Tuesday morning. It was given with every confidence that it would bo honored'. At the sale the sheep were passed in, as they did not reach,the value' expected. AVifcnoss wae . consulted in this. Had passed Jin Sheep under similar circumstances. Had never mado a sale of sheep paid for by Common, Shelton, and Co. with another firm without paying commission to both firms. The first witness heard of tlie order being dishonored was on (Saturday evening, 2nd February, when Air. P.isiey telephoned, and said, “Aitken, what liavo you been up to?” Witness asked him what ho meant. He said. “B.v drawing on our firm for £854.” Avitnoss replied that lie bad drawn in accordance with an arrangement with Air. Kells, is lie liad always done. Air. “Pauley then said that he could find no memos. in tlie office having reference tothe matter beyond the memo, produced. Mr. Pasloy then said that he could' not talk business on the telephone, and asked him to come on the Aloud a v morning. Did this, and told Air. Paslev of the arrangement made. Air. Pasloy stated that he could find no memos, on the diaries or papers, in connection with the order. The Hon. Cant. Tucker, one of the directors, who was taking Air. Kells’ place, came in at this stage, and asked what authority witness had for drawing the order on the firm. •Witness replied, “By every right,” as he had done during the last two years. Capt. Tucker asked how 7t would benefit witness if the order was paid, asking approximately what amount would bo lost? Witness said that at the prices ruling it would be £350; that the sheep were worth about £SOO. Capt. Tucker said that lie could not see how witness would derive any benefit by the payment of the order by the firm. He then turned to Air. Pasloy and instructed him not to pay the order. By the’ Court: If the sheep had been sold then and the order paid, witness would be owing the company £350.

Witness told them that by keeping the sheep prices might go up. Prices did go up in a fortnight. Mr. Coop bought 900 at 7s 3d and 9s 9d on the 7th, being £93 profit. Air. Pasloy told witness that ho hid wired Air. Ivells, and showed him tlie reply, as follows:—-“Aitken bought Coop’s ewes. Advise him to have them at sale Thursday. No arrangement about drawing. Better see hi in.” AA’itness said that this was a nicely arranged wire; it acknowledged tho advertising of tho shoe;), but not the payment, and lie knew perfectly well that he could not hold sheep for sale without having bought them by arrangement. with him, and paid by .order of the firm. Air. Pasloy said that as matters stood he did not think the company would meet the order, but had Air. Kells been at home lie fully believed' it would have been met, but as there were no memos, for them to work oil, it was worth more than liis billet was worth to pay the order. Air. Pasloy then said that Air. White vould want to be paid, and that lie (Mr. Pasloy) would have to protecthimself, consequently if the order was ■yit met tlie firm would lose . Air. Y'lite’.s and Mr Coop’s accounts, who v -"e then dealing with tlie firm. Witness replied that they were anxious to stick to the moneyed man, but the man who worked hard could go to the wall. This was before Captain Tucker came in. The order (produced) for £854 was the ono in question. If the order had been met the firm would not have lost. During the arrangement the firm hid held sheep in one lot from as long as April to July. Some sheep bought in the spring of 1996 were held till after shearing. All these sheep were kept at the 400 acres at Alnngapapa in satisfactory condition. Witness had to sell, as lie -li id no feed. In ono week ho paid £l2 for feed for these sheep. On the sale tho loss amounted to £350. Still owed Air. AYhite that sum, having paid him the proceeds of the sale, £SOO odd. Had suffered in his credit by this act, and had been frustrated in making a deal in a line of 100 cattle from Mr. R. Sherratt, Ala'de u contract on Stli January for delivery about April. Could not have paid for them unless Common, Shelton, and Co. had financed him. Told Air. Kells about this, and ho said that they were a good line, and assented to what had been done.

B,v the Court: No order was given for them. Did not cancel tho sale, as lie had plenty of time to run to sell them between. Succeeded in selling in the last week in April, the date of delivery, but only parsed them over at what lie gave for them. That was their value at tlio time. Did not have to pay Common, Shelton, and Co. any commission on that.

AVitness continued: Tried to raise money from Williams and Kettle. Saw Mr. 6. R. AVyllie, who naked them about their condition, ancl then inquired how he stood with Common, Shelton, and Co. AVitness said that the matter was still unsettled. Air. Wyllio then said that under the circumstances he could -not- recommend his firm to finance him. Alet tho same answers from the Loan and Alorcantile. and Murray, Roberts, and Co. Then saw that it was of no use trying any further. A good deal of his droving was secured through Common. Shelton, and Co., but since this trouble ]nd very little business through tho In Did not- know the reason of this. Removed to the Waikato after Christmas, as he could not got the work he required. His total loss would not lie very far away from £IOOO. for which lie claimed. llv yi r . Lusk : Came to t-his district in 1900. and was droving up till 1904, when lie began dealing. Common, Shelton, and Co. were the onlv firm which .financed him in dealing. Had nothing to lose at that

time, but had later. 11c had to deal exclusively with that firm, as they were financing him, and all the deals since the arrangement had been done through that firm. Could not remember if the stock mortgage was printed or .typewritten. Did not remember if ho haul a debit balance of £126 at one time in 1906. Remembered going to Air. Kells about Inlying 270 sheep from a man named Render. Bought these sheep on August 7th ami took them to tlie saleyards, but they did not come up to value. They were good-woolled sheep, but tlio mouths were nut as good as lie expected. They were to be held over indefinitely, there being no mention cf the end of November. His lease ran out at limb date. Air. Kells did not express himself as dissatisfied with that ileal, but probably lie was. He did not at that time, or in August or September, discuss the state of liis account with him. Air. Ivells did not tell him that the arrangement must cease, anti he had no intimation whatever of that nature. Had lie seen any good deals between Ist September anil end of January, he could still have gone to Air. Kells similarly, and got liis consent or refusal, as the orse might be. Recollected signing a promissory'note on 22nd October to settle liis account; it was quite possible that lie had been asked to come in and sign the matter. 'There was no understanding «m that date that the arrangement must cease. Did sign a bill for £195. Mr. Lusk read the following letter from plaintiff to Air. J. B. Kells, dated 23rd October, 1906 :-—“In settlin'' up yesterday it slipped my memory that the order was not drawn for the steers and heifers, 12 head at £3, making £36, due to AA'illan. Please honor this amount, and I will try to get them off by next sale somehow, or as soon as possible liter. No other amounts will be drawn until I liavo squared up, as mv luck is clean out m this place. It is enough to break a man’s heart, and ono will never got ahead of it. Trusting you will see me through.”

AVitness did not remember writing this letter, and it surprised him decidedly now. A few minutes later witness stated that he remembered tho letter, and ho admitted a settling up on that day. Had seen Mr. Eel is, as far as ho remembered, about AA'illau’s steers. Asked them to honor the amount, as it was the usual thing, and he needed them to advise them that the order was coming, as it might have been a week later. Could not give any explanation of tlie squaring up. Did not say if he could not uso the orders until the bill was paid. Bought five steers from AlcCliskie at £ll 17s fid. As far ns lie remembered bo consulted Air. Kells! He was £255 in credit at this time, but the bill amounted to £195. It was not because he could not give orders that he mentioned it in his letter; that was pffrely • because ho held the stock, and he did not know how the market would go. Made no deals between 23rd October and 29th January, probably because lie did not see them, as lie might have been away droving. Did not know if he had any difficulty iu the same period of other years. Stock wore high in the spring, and they would be high. After shearing sometimes was a good time for purchases, but bo did act always act then. Mr. Lusk informed witness that the conversation with Air. Kells at tlie Masonic Corner would be denied. • Witness said lie would swear that it Actually did take place. There was no entry in the pocket book either of the conversation with Air. Kells or with Mr. Grahame Johnstone. Sometimes entered narticulars and sometimes he did lio’t. Did not remember any further conversations with Air. Kells on the street, but had had many with him. Ran out about 150 and inspected about 100, and assisted in getting the shoep in from the mob. Threw out -a certain number, and examined tlie rest. Told Air. W a churn ami, the auctioneer, at the yards, that lie had bought tho sheep by sample, and that they were not up to sample. Mr. AATichsmann might have said that he was a fool, and had no 'recollection of saying that lie was a fool, but that Coop persuaded him into it. Air. AA'achsmanu might have said that ho would never get liis money for the sheep. Did not remember any conversation in general with Mr. AA’achsmanu. Remember tolling Air. Pasley that the sheep were not up to sample, but did not say that ho had made a bad deal. Did not remember, but would not deny this? About 50 broken-mouthed sheep were' to be thrown out, and these were not thrown out until they went to tho yards. Took delivery because tlio-' were not drafted. AA'anted to reject more than 50, and 150 was agreed to. Air. Coop’s broken-mouthed sheep were mixed up in the purchase. Took away 1600 odd altogether originally, and this included 150 to be sold for Air. Coop. They were not drafted until they got to Alatawhero. 1 Gave the draft to Air. Coop before leaving. The time being 6 o’clock, the Court adjourned until 10 o’clock this morning.