DISTRICT COURT.

Hawke's Bay Times, Volume 19, Issue 1360, 27 June 1872, Page 2

DISTRICT COURT.

THURSDAY. JUNE 20. The Queen on the prosecution of Frederick Sutton v. Paora Toroloro for perjury, in the matter of an order of theCourt calling on Frederick Sutton to, show cause why the indictment should not be quashed. Judgment was delivered in this matter on Thursday, the 20th inst. The Court was hoi den in the Judge's chamber, owing to the Council Chamber not being available. Our reporter was unable to be present. We have, however, been furnished with a revised copy ©f the judgment, wherein the Judge sets forth more fully and at large the reasons. The judgment, which is somewhat lengthy, we give below. The District Judge said—On the 2nd of October last,, Tareha Moananui, Paoro Torotoro, the defendant, and Te Waka Kawatini applied to this Court for an injunction to restrain Robert, Cashmore from, cutting down timber on. the Mangateretere West block of land near Havelock. The application was. supported by their joint affidavit, filed in court. This, document, set forth that the three applicants together with, ©the* Maoris were the owners of the land under a Crown Grant, and that several of them, including the applicants, had been inveigled by the prosecutor into, signing absolute conveyances, of their estates in the land to him, they being; at the time under the belief that they were executing mortgages only. It was further set forth, that they were taking proceedings in the Supreme' Court to., have the conveyances annulled, on the ground of fraud; and that Robert Cashmore was, without their authority* cutting down trees, on. the land, and sawing them up with, the aid of a yawmill. In the English courts of equity,, an application of the kind is rarely or never made until the plaintiff,'has filed his bill, an instrument wherein the case of the plaintirfis fully and minutelyset out; so that if the judge had' any doubt touching the bona fides of' theapplication, he could satisfy his mind at once by calling for the bill. I had no such advantage as this. The proceedings were to be carried on in the-. Supreme Court, and, on applying to the ; Registrar of that Court, who is also the clerk of this one, I learned that nothing.; had been done in the matter, save theissue of a summons, which gave< no in?formation touching the case of the ap* plicants. Affidavits in equity proceedings differ materially from those used in the courts of common law. It is requisite to, set out in them not merely the special charge or grievance complained of, but also to aver and circumstances constituting, such, charge or grievance, so. that the party complained against may have it in his. power to answer' the charge fully and satisfactorily by a counter affidavit. Where there is. a specific charge in oneaffidavit flatly denied by an. averment in another, a court of equity is most, unwilling to act in respect of the matter, the Judge seldom, having; any knowledge of the fame or repute of the parties, but where facts and circumstances are set out and answered, hehas sufficient material before him whereon to found an opinion. I pointed out to the counsel for the applicants that the facts and circumstances constituting the charge of inveiglement had not been set out in the affidavit, and. requested that the applicants should attend in Court on the 4th of October to be examined touching the same. The defendant and Te Waka Kawatini attended on that day and were examined by me touching those matters, and nothing else. 1 did not call for deeds, as it was not necessary. The applicants had set out in the affidavit that they had signed absolute conveyances to the prosecutor. Having ascertained from the defendant the information which- 1 required, I asked the counsel for the applicants if he had any questions to ask the witness, when he said he had.. The very first question he asked him was about getting gunpowder and shot, from the prosecutor. I immediately painted out that the question had nothing to da with the enquiry bt'fare the Uourt, Upon the counsel for the applicants sitting down, the counsel for Mr Cashmore rose up to cross-examine the witness, which he commenced byfirst putting one deed into his hand*

and then another, asking, in respect of each, if the signature was not his. Then followed a long passage at arms between the two forensic champions about several matters not bearing at all on the purpose for which the applicants were examined by the Court, although they would have been quite pertinent to the subject matter for investigation before the Supreme Court. Having satisfied myself that there ■was a bona fide suit between the applicants and Cashmore, the injunction was granted, to take effect on and from the 7th October, and to continue in force until the suit in the Supreme Court could be heard. On the 9th November an application was made to dissolve the injunction, on which occasion Mr G. B. Worgan and Tareha, one of the three applicants, were examined. The application was refased. On the 29th of the following month, Mr. Sutton preferred a charge of perjury against the defendant. The defendant was committed, but let out on bail. On the 16th January, an indictment for the offence was presented against him in this Court, when, on the application of his counsel, the trial was adjourned to the Ist day of July. On the 10th of the present month an order issued from the Court calling on Mr Sutton, the prosecutor, to shew cause why the indictment should not be quashed, on the ground that the several parts of the defendant'* evidence upon which perjury has been assigned in the indictment were not material to the enquiry before this Court on the 4th day of October. On the 17th inst., Mr Lee, of counsel for the prosecutor, appeared in court to show cause. He took sixexceptions to the proceeding, which are as follows: 1. That the order or summons was issued by the Court of its own mere motion, and not upon the application of either party. 2. That the question of materiality ought to be taken at the trial before the jury, and ought not to be decided by the judge in court. 3. That the indictment ought not to be quashed, unless defective on the face of it, 4. That the indictment having been signed by the Crown Prosecutor, he was the party in charge of it, and that no notice had been served upon him. 5. That if the indictment should be quashed, a fresh one might be framed upon all or any of the charges in it. 6. That notice had been served upon the defendant that an indictment would be prefened against him in the Supreme Court, at its next sitting, for the same offence. (To be continued.)