DISTRICT COURT.

Hawke's Bay Times, Volume 19, Issue 1362, 29 June 1872, Page 2

DISTRICT COURT.

THURSDAY. JUNE 20. The Queen on the prosecution of Frederick Sutton v. Paora Toroioro for perjuiv, In the matter of an order of the Court nailing on Frederick Sutton to show cause why the indictment should not be quashed. (Report of Decision continued from last night's Times.) Amongst our most eminent judges, it is a general rule not to express an opinion on any point or matter "save the one immediately under considera tion. The rule is a salutary one, but ir. is not adapted to all There are times and circumstances when such reticence would amount to remissness of judicial duty ; and hence those who observe the rule most strictly never hesitate, upon a proper occasion presenting itself, to oomment upon the proceedings before them, and the conduct of the parties. To decide with fairness, and to the best of his ability, the point of law, or issue of fact sub" mitted for adjudication, is not the sole duty of a judge; there is another of equal moment He is bound to see that the court in which he presides, and in which our Queen, in contemplation of law, is ever present, is not, un der color of legal forms, made use of for an improper purpose ; he is bound bo see that the court is used for the administration of justice, and for that only, and that it is not, converted into an arena for the immolation of victims, either as to life, or liberty, or property. The judicial murders in the courts in England, in the reign of the Stuart>, constitute a saddening page in our national history. When the application for an injunction was before me in October last, I took down with my awn hand every titile of evidence that had been elicited from the parties and their witnesses ; I perused and re-perused and took notes of the contents of the ten deeds and agreements that had been put iu by the defendant, who claimed under Mr Sutton ; and X saw several matters, both in the oral and on the written evidences, which attracted my attention, and gave room for serious reflection. Yet I refrained from noticing them, as a suit touching the properties in dispute was then pending iu the Supreme Court. I merely Maid, in giving judgment, that 1 did not feel justified in refusing the injunction prayed for, and that I would not offer any observations respecting the contentions at the bar. Every court is bound to take notice of its own iecords and proceedings (Craven v. Smith, Law Reports for 1869, 4 F4xch. 146); and I think the present criminal proceedings against Paoro Torotoro, one of the three Maories who applied for the injunction, enjoin the discharge of that duty at my hands. I have before me the evidence which I took down at the heai ing of the application, the notes which I made of the contents of the ten deeds and agreements, and a copy of the depositions taken before the committing magistrate on the charge of perjury preferred by Mr Sutton against Paoro Torotoro in December last* Of the ten deeds and agteement«, there are three to which I shall have occasion to refer; The first bears date April 18, 1,869, and purports to be a conveyance.

from Paoro Torotoro to Frederick Su*ton of all his estate in the MaugatereWest block of land ; the second bearsdate July 19, 1869, and purports to be a mortgage from the said Paoro toRobert Cashmore for .£2lO of all. his. (Paoro's) estate in the .said block; and the third bears date Septeml>er 8, 1869„ and purports to be an assignment of the said mortgage from Cashmore toJohn Gibson Kinross, for valuableconsideration.

There is a difference between a man's signature and his handwriting. A man's signature is usually, but not always, in his handwriting. In many countries, signatures are made with seals, a usage which prevailed in our nation for centuries. A signature.

whether made by subscribing one's name, or by the imprint of one's seal, never had but the one meaning. It is the symbol of a man's understanding thai which precedes it, and of his consent to the same. In order that there should be consent, it is essential that the consent should be gi*en with reflection and with knowledge, freely, without restraint, and without surprise. Where there is no knowledge of the contents; of an instrument, the name subscribed is the handwriting only of the sub* scriber ; it is not his signature. Thus, if a person should wiite his name "John Smith" on a blank sheet of paper, that is his handwriting only; and if a friend of his, not o\ er-honest, should write a promissory note for c£so above it, the name "John Smith " would still be only his handwriting, for the note was not there when he wrote his name, and therefore he could not have consented to it. But if, on his attention being called to what had beendone, he should, after reprimanding his. fiiend, condone the offence, and write his name "John Smith " a second time under where he wrote it at first, with, the view of giving his consent to the transaction, the first " Johu Smith " would be still his handwriting only - y the second "John Smith " would lie both, his handwriting and his signature. When a court of equity sets aside a deed on the ground of fraud or surpriseit thereby declares that the name subscribed i* a handwriting only, and not a signature.

Perjury has been assigned against the* defendant for saying in his evidence that the name •< Paora Torotoro " subscribed to the deed of the 18th of April,, 1869, was not in his handwriting. The circumstances under which he made that statement were as follows He is an aged Maori chieftain, who can neither lead nor write nor speak English. He is therefore in the same position with respect to English documents that we should be in with respect to documents in the Chinese language, or in any other with which we are unacquainted, and under which our names might be written. At the hearing of application for an injunction in October last, he was examined as a witness. When the counsel tor the applicants had done examining him, the counsel for Mi Cash more, the defendant, rose up, and, putting a deed into his hand,, asked if the name written under it was not his signature or handwriting. The defendant searched his pockets for hi* spectacles and, finding that he had not brought them with him, replied to the effect, —.** J am unable to say; I have not my glasse.-. with rue ; I cannot see the writing." Upon that, 1 handed down to him the magnifying glass which I now hold in my hand. Whoever will look at his tinger-iiail through this glass will, on removing the glass look at at his nail a second time, to see if it can be the same* Upon getting the glass into his hand, he looked at the signature to the deed,, and said, in a frank and truthful manner, —■ w Yes, that is my handwriting." A second deed was then put into- his band,, and he was asked if the name underwritten was not his, and i& his hand* writing. He looked at the name with the glass, and replied, in the same, frank and truthful manner, —" No, that is not my handwriting." Ther two deeds were exactly alike in appearance ; no reference had been previously made as to their existence, much lessas to their contents, whether the first deed was not an absolute conveyance* or the second one a mortgage, ho neither knew nor had any means ot knowing. He did uot even, know

•who were the parties to either deed; and, apart from his entire ignorance of the contents of either instrument, it would be difficult to assign any rational motive for his saying the second deed was not in his handwriting if he believed or thought that it was. The very object of his suit in the Su • preme Court against Mr Sulton, as mentioned in the affidavit of himself and his co plaintiffs, was to ha\e an absolute conveyance of his estate in the Mangateretere West block to Mr Sutton set aside, on the ground that Mr Sutton had inveigled him into signing it whilst he (Paoro) was- under the belief that lie was signing a deed of mortgage only. In his evidence before this court, at the hearing, he made a connected and minute statement as to what had taken place between himself and Mr Sutton upon the treaty tor the mortgage, or *ale of his land to Mr Sutton He mentioned that the amount of money which he wished to raise was £SOO, which statement is corroborated by the evidence both of Mr Sutton and of his interpreter. He said he signed a deed, but thai the one produced was not the one he signed, and that the consideration-money in the one he signed ought to have been, if it were not, .£SOO. As the consideration set out in the deed of the 18th April, 1869, is £3OO, it would follow, in the event of the Supreme Court declaring this latter deed a mortgage only, that Paoro would be a gainer of £2OO by saying that the signature thereto vas in his handwriting, instead of saying as he did that it was not. In the latter case he could redeem his property for £3OO, wherea*?, according to the tenor of the deed which he averts he signed, he could not do so for less than i-500. If I had witnessed myself his signature to the deed of the 18th April, I could never have imagined, under the circumstances of the case, that he had committed perjury, or had knowingly deviated from the truth, although 1 should feel satisfied that he had made a mistake as to the deed which he had signed. It appears to me that there were no justifiable grounds whatever for charging the defendant with perjury for denying the signature or hand* riting to be hi*; even supposing there was any reliable evidence to disprove his statement. (To be continued.)