COURT OF APPEAL.

Hawke's Bay Times, Volume 19, Issue 1511, 18 December 1872, Page 2

COURT OF APPEAL.

IN THE COURT OF APPEAL OF NEW ZEALAND. WELLINGTON, NOVEMBER, 1873. REGINA V. PAORA TOROTORO.—NOTES OF JUDGMENT. (Concluded from our last.) The prosecution seems to have relied on the above evidence as proof that the action in which the above orders were made was the same action between the same parties, in which Mr Stedraan, upon the instructions of Mr Carlyon, took out the writ on the praecipe of the 30th September; and therefore that the action was pending when the application was made to the District Judge lor an injunction on the 2nd October, and when the summons thereupon was heard on the 4th October, as alleged iu the indictment. On this supposition it was argued before us that Torotoro’s name may have appeared on the original writ, and that, if so, Paora Kaiwhatu’s name must have been substituted for that of Paora Torotoro in the copy writ served by mere mistake of the copying clerk; and the conduct of the parties is not inconsistent with that supposition. For the action was not allowed to stagnate, but the parties seem to have acted as litigants, watchful each over their own interests. On Nov 13, Cash more seems to have applied to the District Court Judge to dissolve the injunction, and we have seen that on the 2nd Dec. Cashmore was the sole moving party in the rule in the Supreme Comt by which he obtained costs from Torotoro, and time to plead from the Court. Daring all this time notice was nob taken of any variance between the copy writ served, and the names of the parties to the praecipe, to the action, and to the rules of the 28th November and 2nd December, bub the same, if discovered, was waived.

It was impossible for the learned Judge presiding at the Circuit Court, as it also is for this Court to estimate with legal accuracy what importance should be attached to that variance. Whether it formed merely aground for setting aside the service of the writ and declaration, and could be amended afterwards by the terms of the writ, or whether the alteration was made in the writ itself, and rendered the writ a nullity, we have no evidence by which to decide.

It does not even appear when Cash • more was served with the writ and declaration ; so that, tor aught that appears he may not have been served, and, (assuming the writ to have been altered at all) the alteration may not have been made, till after the application for an injunction was heart I. For although Cashniore appeared personally before "the District Court on the 2nd October, it seems that he may have appeared in answer to the summons issued from the District Court itself on the 30th September, which summons may not have alluded to any action as having been actually then commenced in the Supreme Court, but may have been, and piobably was, issued upon an affidavit sworn before any proceedings had been taken either in the Supreme or District Courts. It must be also observed, that the search for +he missing writ might have been pushed further. It is not shown that Mr Car!} on ever held the writ in his hands, and he himself swore that he does not know what became of it, as also that Mr Stedman drew the declaration, and he never saw it. The writ was issued by and piobably remained in the hands

of Stedman, in whose hands it may hav© been at the time of the trial of this indictment, with the other papers in the cause. For, although the witnessMargoliouth says he searched in Stedman's office, and says " 1 do not find? the papers in the action," those ppers might have been in the possession of Mr Stedman, who was not called a* ft witness, nor any proof tendered toshow that he had been personally applied to on the subject. The above evidence was adduced at the trial and was received as secondary evidence o£ the contents of the writ. And soma such evidence was required; for, as. soon as it appeared that the copy writ served on Cashmore on its face professed to have been issued in another and different action from that alleged in the indictment, if the case had gone to. thejury on that proof, the learned Judgemust haye directed an acquittal. If the evidence then was properly received, there was sufficient evidencein law to go before the jury that theaction laid in the indictment was pending in the Supreme Court at the timeof the application to the District Court, for an injunction. But we think that a basis had not been laid for the admission of such, secondary evidence at all, considering; that Mr Stedman was not called as» witness, in oi*der to exhaust the proof that the original writ had been mislaid. (2). Then was it proved that the per~ jury assigned was committed upon thehearing of an application to the District Court for an injunction in the action: specifically mentioned in the indictment ? We think it was not, and that the conviction therefore cannot be supported. The affidavit on which thesummons from the District Court waabased was not made in any action* whatever, for it was sworn on. the 29th September, whereas neither the writ of summons in tho Supreme Court nor the summons in the District Court were* issued till the 30th September. But it was upon that affidavit that the application was founded and tbeinjunctioa granted, in apparently intended compliance with No. 302 of the District Court Rules. It is stated in the evidencethat the rule nisi was granted 01* affidavit B, (which it may be noted, isheaded in tho District Court, the caption not alluding to anv action in the Supreme Court,), and the order for an injunction was indorsed on that affidavit. But that affidavit was evidently sworn with reference to a contemplated action for specific relief—viz., for the cancellation of certain: conveyances to Frederick Sutton, on the ground that the plaintiffs had been inveigled into executing them by false representations, and that the pretended purchase money was inadequate and had never been paid. The affidavit does indeed allege that the intended defendant in the proceedings then contemplated was felling timber on land then already conveyed to Sutton, and it is alleged in the evidence that theaction subsequently brought against Cash more was brought against him as. tenant to Sutton. But it is not shown, that the District Court Judge even knew that any action had been brought in tho Supremo Court at all, while it, appears that the application for an injunction was founded solely on an affidavit sworn in no cause whatever*, and expressing merely an intention to* commence, not an action of trespass,, but an action for specific relief to cancel certain conveyances on grounds of fraud. So far as the Circuit Court was. informed of the evidence taken before theDistrict Court Judge, it also appears* that the oral testimony of Torotoro on his vivd voce examination was confined to allegations in tho affidavit respecting his conveyance, and the circumstances, under which it was obtained, to the alleged fraud, and what whether in money or goods, he might or might not have received, evidence pertinent to an action for specific relief,, but not necessarily indicating that any action of trespass had been commenced or was in contemplation. We forbear from comment on apparent irregularities in these early proceedings, because the case was not argued on the ground of irregularity. It is sufficient to say, that upon the case as it is presented to uv, our judgment is, that the defendant ought not to have been convicted.