COURT OF APPEAL.

Hawke's Bay Times, Volume 19, Issue 1510, 17 December 1872, Page 2

COURT OF APPEAL.

IN THE COURT OP APPEAL OP NEW ZEALAND. WELLINGTON, NOVEMBER, 1872. REGINA 7. PAORA TOIIOTORO.—NOTES OF JUDGMENT. This is a "ase reserved from the last sitting of the Circuit Court at Napier, where the defendant, Paora Torotoro, was indicted and convicted of pet jury. The indictmeut alleges that on the 2nd October, 1871, an action was pending in the Supreme Court, in which Paora Torotoro, the present defendant, and others were plaintiffs, and Robert Cashmoie was defendant, in which the plaintiff sued Cashmore for damages in trespass to land situate at Mangateretere West, and also claimed a writ of injunction to restrain Cashmore from further trespass ; that on the same day application was made to the Judge of the District Court at Napier for a summons at the instance of the said plaintiffs calling on Cashmore to show cause whv an injunction should not issue to restrain him irorn felling timber upon a certain block of land in the province of Hawke's Bay, known as Mangateretere "West, and from doing other acts of irreparable injury to the property of the said Tareha Moananui, Paora Torotoro, and Te Waka Kawatini (not describing them as "the said plaintiffs"); and that on the said application the summons was issued returnable on the 4th of October; and that on that day the said action in the Supreme Court was still pending, and the summons was then at a sitting of the District Court heard before the District Court Judge. The indictment then goes on to allege that, by order of the District Court Judge, Paora Torotoro was examined vivd voce as a witness on behalf of himself, and of Tareha Moananui and Waka Kawa tint before the said Judge in support of Mich summons and the issue of such injunction, upon which examination To» otoro was duly sworn; and the indictment then proceeds to assign the perjury charged.

An indictment thus framed clearly imports that the- peijiiry assigned .was committed by Torotoro in his oral examination in the hearing of the summons before the District Court based upon the action of trespass then pending in the Supreme Court, and in no other proceeding. It is, therefore, not necessary to consider the second, third, and fourth questions propounded in the caw reserved. The point raised by the fourth question was properly given up by the defendant's counsel in the argument before this Court. The two main questions therefore on which our judgment must turn aie—--Ist, whether the evidence was sufficient in law, to prove the pendency of proceedings in the Supreme Court by the defendant, and the others mentioned in the indictment, at the time of the application to the District Court for an injunction ? and, 2nd, assuming the evidence was sufficient for that purpose was it sufficient to prove that the perjury assigucd was committed upon the ! hearing of an application to the District Court for an injunction in that action ? Jf not, the conviction was wrong. (1.) As to the first question, the facts proved on the trial, to show that such action was pending were substantially these. On the 30th September, a praecipe was lodged with John Hare, the Registrar of the Supreme Court at Napier, for a writ of summons for Tareha Moananui, Paora Torotoro, and Te Waka Kawatini, as plaintiffs against Robert Cashmore as defendant. Upon ibis praecipe a writ was issued* This writ could not be produced at the trial, so as to prove the commencement of the action in the Supreme Court. The prosecutor was thereupon permitted to give secondary evidence of its contents. Hare could gi\e no information on that head, as he did not compare the names in the writ with those on the praecipe, while Cashmore the defendant swore that the copy of the writ served upon him did not contain the name of Torotoro on its face, but ifc was proved ihat another name, that of Paora Kaiwhatu, appeared on the writ as that of the third plaintiff, a name which was not on the face of the praecipe. There was a Paora Kaiwhat'tliving in the neighborhood. Thus far, therefore, the evidence went to show rather that there was no such action pending in the Supreme Court as the indictment alleged Moreover Mr Carlyon, who had originally caused the writ to be issued by his agent, Mr Stedman, swoie " I originally inserted Paora Torotoro's name, but afterwards discovered ho had no interest in the matter. Ho disclaimed having any title to the timber before the application for the injunction." This evidence claimed by the defendant's counsel as proof that Mr Carlyon had intentionally struck out the name of " Torotoro " from the writ. It is difficult to surmise the import of such evidence; for Carlyon did not say that he had ever struck out that name, nor does it appear that Carlyon, ever had the writ in his possession, which seems to have been taken out by his agent Stedman upon a praecipe containing the name of Torotoro as one of the plaintiffs. Consistently with the rest of the evidence Carlyon might have meant no more th«in that he originally inserted Torotoro's name in the praecipe for Stedman to issue the writ accordingly, inasmuch as ic was Stedman who took out the writ and apparently Stedman fiiled in the names upon that writ. The prosecutor therefore resorted to other and additional evidence as follows : The declaration served on Cashmore contained the names of all the plaintiffs including that of Torotoio, (and it was stated on the argument that the declaration was framed a* in an action of trespass). Besides this it was proved that on the 28th November an order was made at Welling! on upon an application in the Supreme Court for time to plead in a cause in which Tareha Moananui, Paora Torotoio, and Te Waka Kawatini appeared as the plaintiffs and Robert Cashmore defendant; and aftrryards on the 2nd December another order was made in the same cause upon . hearing Mr Stedman of counsel for the plaintiffs, directing the plaintiffs to pay the costs ot the order of the 28th Nov., and by consent giving Cashmore six weeks time to plead. Haretalsc? proved that no memorandum existed of any

writ sealed in the action by Tareha Te Waka Kawatini against Casbmore except the one issued on the praecipe above-men-and that no one issued the writs from the office but himself. TO BE CONCLUDED TO-MOBKO'W.