SUPREME COURT.

Lyttelton Times, Volume II, Issue 98, 20 November 1852, Page 9

SUPREME COURT.

Monday, Bth Nov. George John Cartwright Godwin was charged first, with embezzlement as servant of divers goods of John Marchant Frazer, on sth April; second, with larceny as servant. Mr. Dampier appeared for the prisoner. Henry Miller, goaler, sworn : was formerly Police Officer—was entrusted with the execution of a search warrant—found the followin°property in the house of Mr. Wilkin—viz* 1 crape shawl, 26 pieces of ribbon, 7 ladies' collars, also pieces of muslin cut out of, apparently, the collars as they correspond in size and shape with what they appear to fill, 2 pieces of velvet, 5 pieces of Doeskin, and 2 vest pieces, —in the prisoner's bedroom at Mr. Fraser's, in a dox, I found a spirit flask. All the articles have . remained m my possession ever since. John Marchant Fraser—sworn : I am a draper; the prisoner was my shopman from about June, 1851. About April Ist, I applied for a search warrant, as I had missed some articles and suspected the prisoner ; I accompanied Miller to Wilkin's house; the pieces of doeskin and the ribbons are my property ; the pieces cut out of the collars have marks I can swear to ; I swear to the vest pieces ; the velvet I believe to be mine ; I cannot swear to the crape shawl. Cross-examined by Mr. Dampier— Suspected the prisoner for some time before applying for a warrant. The prisoner. was arrested on the ~otn or 26th August; I cannot say whether all the goods I have spoken of were taken at once ;

should think not; the velvet was gone some six months before I obtained the warrant. The spirit flask I purchased with some articles of ironmongery from Mr. Tribe ; I sold that lot to Mr. Mills; afterwards took back what remained unsold; sent the prisoner to take an account of Mills' stock; he said he wanted some of the ironmongery ; I told him to give Mills a note of what he took ; afterwards went over the account with Mills in prisoner's presence of what things had been delivered, and found that prisoner had taken things to the amount of £9 13s. The flask was in Mill's account as delivered to the prisoner, but was not returned to me. I have a desk of prisoner's ; I did not find a bill of Mill's against prisoner ; no bill shewing a transaction between them to my knowledge ; all the papers are in the desk ; Mr. Mills was my previous shopman; 1 never allowed him to take goods out of the store on his own account; I had told him some clothing. Prisoner has been 9 or 10 months in my employ previous to his being given in charge; I engaged to pay prisoner wages; I have paid him none. Mr. Fife said that prisoner was a steady young man ; had a written character from Mr. Latter; never saw it; prisoner had only been a few weeks with Fife; I will swear I never had shown to me a written character from Mr. Latter; I have given the prisoner permission to take goods out of the shop for his own use; I swear positively I never gave prisoner permission to take any stores out of the shop, with the exception of clothing for his own use. The prisoner has never refused to account for things he has taken for his own use ; I can clearly identify things coming out of my store ; if he has taken a hat or caphe generally said he had taken them; I never asked the prisoner to lend me money to assist to make up the amount to Mills ; I considered him not to have the means; T offered him his wages several times, he declining receiving them, saying he had rather have them in a lump; I never mentioned his wages lately, because I suspected him of robbing me ; I never said on his giving notice to leave, then you'll want your wages. When the prisoner asked to go into accounts, I had not been to the magistrates. Prisoner has lived in my. house all the time; I had doubts for some time previous to my suspicions arising; the prisoner had no reason to apprehend difficulty in getting his wages. I was not aware of his intending setting up business for himself at Christchurch. I marked some money, and sent it by some person to buy things in my shop ; I found none of the marked money taken; I had an examination at the police court, and never expressed the regret at things having gone so far ; I may have done so. Re-examined by.the Attorney-General— I cannot account for making a mistake as to the date of search warrant except that you (the AttorneyGeneral) put the words in my mouth ; I agreed to give prisoner Bs. per week the first 3 months, and 10s. afterwards if he suited me; I swear positively I only gave him permission to take such articles as he might want for his own use, and those only.

James Wilkin: I reside in Jackson Road, Lyttelton ; I have known the prisoner since 4th December, 1850 ; he lodged in my house off and on when he was out of employ ; I always considered him a lodger from six'weeks after he landed down to the time of his apprehension; we arrived here on the 31st March. He was in the habit of bringing goods to my house; he brought two pieces of velvet; saw these pieces of velvet—l believe them to be the same; I understood him to say he had bought them from a servant; he brought some ladies' collars ; I don't recollect his buying them; I saw them at my house in his possession. Prisoner said he wanted to make a present of one of them to a young lady at Mr. Fraser's, (Miss Cately). I saw him cut off the parts not worn by ladies, he said he might as well cut off all the parts not required; he cut them with scissors ; these are the pieces cut out of the collars produced. Cross-examined by Mr. Dampier—He made no effort to destroy the pieces ; he might have put them in the fire; the pieces were left with my wife on the table ; I don't know if the velvet is calculated to make waistcoats. Georgiana Wilkin : I know prisoner; he was in the habit of bringing goods up to our house, he was then living at Fraser's ;he brought up cloth, velvet, and ribbon—these are the same— waistcoat pieces and collars; I saw the collars in prisoner's possession ; he kept boxes at our hands containing these things; he always told me he bought them at sales ; the boxes were

left open, and no secrets used by the prisoner. Sarah Cately: lam a dressmaker; I know the prisoner; I was living at Mr. Fraser's at the time he was shopman there; he told me he had some good collars for sale ; I had one from him ; I bought one from Mr. Fraser ; he said he had some much better which I might have had if I had spoken to him before ; I afterwards asked to see them, and he gave me one; upon his giving me that collar, he told me he had others of the same kind at Mr. Wilkin's; I shewed this collar to Mr. Fraser afterwards.

Cross-examined: the collar is in the same state as when given ; I afterwards saw the collars ; he made no secret of it.

Edward Genet: I received ironmongery from prisoner about last August; I took it on sale or return ; prisoner said he had purchased some of it from Mr. Latter's, and some from Mills ; there were knives and forks and spoons, a gridiron, and a quantity of things I forget; I gave lists of them in the hands of the police; they were loose and some packed. The spirit flask was among the things brought; he took it away, saying he should want it for the voyage. James Hare : I am a tailor ; I know the prisoner as the servant of Mr. Fraser ; I have several times received cloth of him, not serge; doeskins I have received ; I know the doeskins produced to have been in Mr. Fraser's stock; I know these waistcoat pieces to have formed part of Mr. Fraser's stock.

By the Judge: I have bought all these patterns from Mr. Fraser.

Cross-examined by Mr. Dampier •. I don't know these pieces by any particular marks but from resemblance to the pieces; 1 have taken orders to make up goods from prisoner in Mr. Fraser's shop. William Henderson: I am a draper in this place ; I never sold prisoner any crape shawls ; I have sold a lew trifles to him while he was at Fraser's; I am aware of selling him several shawls for Mr. Fraser; I made the bill out to Fraser; I have known prisoner eight months, I was paid in Fraser's shop, by Godwin, in Fraser's absence at Wellington. Cross-examined by the Attorney-General : the bill was made out in Fraser's name, afterwards altered to Godwin at his request, Godwin assigning as a reason that he wished to shew Mr. Fraser what he had done with the money.

John George Fife: I am a store-keeper'iu Lyttelton ; I am acquainted with prisoner, he lived with me two or three months; he left me to go to Mr. Fraser, he left me merely to better himself; I never had any cause to suspect his honesty.

Mr. Dampier made a long and earnest appeal in behalf of the prisoner, taking some objections and commenting on the loose nature of' the engagement between the prisoner and his employer. His Honor summed up at considerable length entering very minutely into details. He commented upon the extremely loose way in which Mr. Fraser conducted his busiuess and the facilities thus afforded the prisoner; he observed that the difficulty in getting accurate and intelligent evidence from the prosecutor must not be interpreted to his disadvantage, as it was clearly the result not of a desire to be obscure, but rather of a want of facility of comprehension—a crassness of mind, as it were. The Jury retired to consider their verdict and brought in the prisoner guilty, on second count, of larceny. On his being brought up for judgment on Tuesday, His Honor sentenced hiin to seven years' transportation. Nov. 9.— George Johnston, who was acquitted on Saturday of the robbery at Mr. Laurie's store, and remanded, was charged with stealing a watch belonging to Richard Sutcliffe. J. E. Fitzgerald sworn : I produce a watch which I got at an examination before the R.M., when the prisoner was brought up on this charge. It has been in my custody ever since. R. Sutcliffe sworn : This is my watch ; Ismt it on the 22nd of April to be repaired by Neele, who was living at Allen's. I saw it a week after; it was then repaired and hanging at Allen's, over the mantel-piece; the next time I saw it was before the R.M., on the 25th June ; It originally had the initials R,S. on the back ; when I saw it again they were filed off; I have had the watch 40 years; I know it by other marks; it was not necessary that I should see the initials to know it. Joseph Allen; I remember a watch being sent to my house to be repaired by a person living there, some time in April ; I was at Hart's Inn about a month after the watch was

sent to be repaired; I saw the watch about two or three hours before I went out, about 7 ; I returned at 10 and the watch was gone ; I believe this to be the watch ; at Hart's I met the prisoner who left two hours before me ; we were playing at cards together ; other persons were present; t suspected prisoner of the robbery; when I left my house there was no one else there, and I know of no one having been there in the interval till my return. Alexander Hunter: lama watch maker; I remember the prisoner bringing me this watch sometime in June to mend the pendant of it; hearing that prisoner was apprehended on some other charge, I took the watch and gave it to Miller, a policeman. (By the Prisoner.) Sutcliffe did uot speak about the robbery, but Allen spoke about a watch he had lost, about a week before your apprehension. The prisoner in his defence said he bought the watch—that it had no mark on it, and he kept it hanging up in his warre. H. W. Deny sworn: I am a blacksmith".; I have seen the watch hanging up in prisoner's warre ; any one might see it there. (By the Attorney-General.) I was employed to fetter irons on prisoner after his attempt to escape; he said he did not care about the charge of breaking into a store, he knew nothing about that; but he did what was charged against him respecting some watch. (By the Court.) I never saw the watch at prisoner's but once— in June, and should not then have noticed it but for his companions joking about it, and talking of firing at it. | His Honor summed up, and left the case to the Jury, who returned a verdict of " Guilty." His Honor sentenced the prisoner to seven years transportation. The case against the prisoner lor attempting to escape from Jail was not proceeded with. Wednesday, 10th Nov. Dampier v. Macintosh. —This was an action to recover the sum of £92 65., for money paid by plaintiff for defendant's use, and for professional services, &c. The defendant pleaded payment as to the sum of £22, non assumpsit as to £43, tender as to £26 75., and non assumpsit as to 195.; dpon which issue was joined on each of the pleas. Mr. Moorhouse, with whom was Mr. Hart, was for the plaintiff, and Mr. Brandon for defendant. It appeared from the evidence, that Mr. Macintosh, in May, 1851, purchased a land-order from a Mr. Tulloch, auctioneer, for the sum of £180, on account of which purchase he had payment to the amount of £115, leaving a balance of £65, and had selected the land in Macintosh Bay. Mr. Tulloch had previously agreed to purchase this land-order of a Mr. Webb, the original holder, for £130, who was to give him credit for a time, and the order was accordingly deposited with Mr. Wormald, solicitor, to abide completion of the purchase, and to be handed over when paid for. Mr. Tulloch became insolvent in August, 1851; and plaintiff was requested by defendent in September to advise him on the matter, Mr. Webb having insisted upon being paid the whole £130, before they would allow the land-order to be given up to the purchaser from Tulloch. Mr. Dampier succeeded in effecting arrangements on the part of defendant to pay the balance of £180, the price agreed between Tulloch and defendant, in satisfaction . of Webb's lien upon the land-order. Subsequently Mr. Macintosh handed over to plaintiff the sum of £22, who by an arrangement between plaintiff, defendant, and a person named Watts, was induced to give an undertaking to pay the whole £65 remaining due. The u'ndertakinoran thus, — D " Lyttelton, Oct. 28, 1851. " Sir,—l acknowledge to have this day received of you the sum of £22, which, with the sum of £43, that I hereby undertake to provide on account of Robert Albanos Watts, of Aklaloa Bay, will make up £65, to be applied by me in completing the pnrchase of the Section, and for the whole of which I hol-i myself personally responsible to you, and for the due application of it for that purpose. " Yours, &c. " C. E. Dampier." The consideration for Mr. Dampier's advancing the 431. did not appear on the face of the contract, but Mr. Watts gave evidence of a promise on his part to pay Mr. Dampier the money ; he had never done so ; hence this action. Mr. Moorhome contended that this contract came within the statute of frauds, and that consequently it ought to disclose consideration.

Mr. Brandon submitted several cases to the Court, in whioh contracts moving from Attorney to Client were held to be not within the statute. His Honor was of opinion that this was a transaction not within the provisions of the statute, it being an undertaking by an attorney to his client. Mr. Moorhouse and Mr. Brandon respectively addressed the Jury. The learned Judge gave a very elaborate exposition of the law in summing up, pointing out the difference between an ordinary guarantee and an undertaking by an attorney in favour of his client, and expressed himself strongly of opinion that plaintiff had positively relieved Mr. Mcintosh of Mr. Watts's debt and had accepted the promise of Mr. Watts as consideration for his advancing the £43 for Mcintosh. That there had been no evidence of a legal tender, but that there should, in his opinion, be a verdict for defendant upon all the other issues. -•■ l; The Jury retired to consider their verdict, and at the end of half an hour returned into Court and gave a verdict for the plaintiff for £27 6s. Parkinson v. Wakefield. This was an action brought to recover the value of a mare, the property of plaintiff, hired by defendant and lost through assumed negligence. Mr. Hart and Mr. Dampier appeared for plaintiff, and the Attorney-General for defendant. The case originated as far back as August, 1851, and simply turned upon the fact whether the mare which died through injuries sustained by being bogged, had been carefully looked to and treated after the accident. The evidence went to prove that the accident was quite unlooked for, and that all proper means were taken to save the animal come-atable under the circumstances. Much amusement was created from the crossexamination by plaintiff's counsel, the knowingones in horse-flesh deeming the queries put to be open to considerable criticism. The Attor-ney-General submitted there was no case to go before a Jury ; his Honor, however, ruled otherwise, and the Jury after slight consideration returned a verdict for the defendant. Thursday, 11th Nov. Dampier v. Fitzgerald and Brittan. Special Jury. This case being one of assumed libel, produced considerable excitement, the Court being thronged, and graced by the presence of several of the fairer portion of creation. Expectation was, however, doomed to be disappointed, as the case terminated soon after the opening address of the plaintiff's counsel. Mr. Moorhouse and Mr. Hart appeared for plaintiff, and Mr. King for the defendants. The action was brought to recover the sum of £500, compensation in damages sustained by the plaintiff through a (presumed) libel published by the defendants in the form of minutes of a meeting of the Council of Land Purchasers held in May, 1851. The words were—" The Chairman (W. G. Brittan) also made a statement of some facts which had come to his knowledge in reference to an endeavour which had been made by Mr. Dampier to induce Mr. Stuart, the Contractor, to alter the line of the road from the Heathcote Ferry for the purpose of enlarging his section." The defendants pleaded " Not Guilty." Mr. Hart stated that Mr. Dampier, shortly after his arrival in the Colony had received the appointment of Solicitor to the Canterbury Association, and had continued to act as such until within a short time" previous to the date of the libel. He was in possession of a Land Order, No. 32, under which he selected the plot of land on the Heathcote Ferry Road, now known as Christchurch Quay, which was then marked out and scaled off upon the map of the Association, and a certificate of selection was given to him, in which it was described as containing 47 acres, in satisfaction of an estimated 50 acres, fronting on the Ferry Road, 80 chains. A few days after, the plaintiff obtained a tracing of this plot of land. On that plan a clear distance was shewn between the road and the river of 33 ft. at the narrowest point, and the section was also clearly shewn as in one entire piece. On returning from Christchurch, the plaintiff observed a diversion of the road narrowing considerably that portion of the section between the road and the river, which was evidently the most valuable part of it, available for wharfs and warehouses, with a view to the formation of which that particular section had been selected. The road was at that time incomplete, being only made in detached portions.

A few days after, the plaintiff had an interview with Mr. Stuart, (the contractor for the road,) the misrepresentation of which formed the groundwork of the libel. In that interview the plaintiff requested Mr. Stuart to confine the line of road to the reserve made for it. Nothing whatever passed on that occasion from which the inference could be drawn that Plaintiff sought to procure any improper diversion of the road for the enlargement of his section, ft was to be borne in mind that the contractor was quite at liberty to put the road upon any part of the reserved site.' On 25th March, the plaintiff was put into possession of his sectioni* by Mr. Jollie, one of the surveyors, to whom he complained of the road encroaching upon his section, which was thereby divided into two parts. The certificate of section had been given for 47 acres, in one piece. He should put in evidence the draft of conveyance furnished by the Solicitor of the Association, describing the same section in two plots, and containing only 45 acres, shewing that, by the admission of the Association themselves, the diversion of the road had caused a reduction in the extent of the section. The plaintiff, immediately after his complaint to Mr. Jollie, had a survey of the land made, by which it appeared that the extent of the land was in reality much less still, and that a considerable portion of the frontage land between the river and the road had been altogether abstracted. The plaintiff commenced a correspondence with the Agent of the Association, calling his attention to the diversion of the road and to the injury done to him, and which letter contained the following sentence: " I should be sorry to call for a diversion of the road to the reserved site, being now so far advanced, but I must ask you to repair the injury which this variation of the road occasions me"; and proposed a meeting with the surveyor for investigation. The plaintiff received a reply from Mr. Brittan, appointing a meeting with the surveyor at the Land Office. At that meeting Mr. Dampier and his Surveyor met Mr. Brittan and Mr. Cass, the chief surveyor of the Association,and pointed out the encroachment; and Mr. Cass admitted that some mistake had arisen, as he believed, from the angle poles having been removed, and also that orders had been given, but by whom did not yet appear, to make the road touch the river at the two bends. Mr. Brittan stated that the Association were not responsible for the errors in the plans, and that all that could be done was to allow purchasers to abandon their selection and choose elsewhere. In consequence of this interview a new survey was ordered of that portion of the road. On the 30th April, Mr. Brittan wrote to tbe plaintiff, alleging that " there did. not appear to have been any deviation of the road, affecting the plaintiff's choice, from the line of road as originally marked out on the chief surveyor's map," and offering an inspection at the Land Office, of the Special Survey. On the 13th May, this Special Survey was inspected by plaintiff; it shewed no space between the river and the road as there laid down. On the 15th May, plaintiff wrote Mr. Brittan to the effect " that he found beyond all question that the road made and the reserve as now set out for widening it was not confined to the reserve declared on the Map upon which the selections were made ;" and he proposed to refer the question to the decision of some competent person, or make some other fair arrangement, with a view to avoid the necessity of altering the'road made. Mr. Brittan rerdied declining to accede to the proposal or make any alteration. The Plaintiff returned an answer declining to abandon the section, and stating that he should insist on the performance of the contract. From these circumstances the Jury wouJcl clearly see that Mr. Brittan was perfectly vvell aware of Mr. Dampier's claim, and that he was openly urging what he was justly entitled to. The minute containing the libel referred to a. previous communication from Mr. Godley with reference to the plaintiff in his character as Solicitor of the Canterbury Association, and which was read at a meeting of council on the 19th April, and a copy ordered to be forwarded to Mr. Dampier. At a meeting on the 26th of April, at which Mr. Dampier was not present, a resolution was passed approving Mr. Godley's communication. On the 2nd of May, Mr. Dampier replied to Mr. Godley's letter, but the reply was not in time to be received at the meeting held. on that day, and its consideration stood over until the 26th of May, the day on which the libel was composed. The general minutes of the council would shew

that the defendants were the parties by whose direction the offensive minute was composed . and published, it being signed by Mr. Brittan as chairman. For the purpose of further proving the animus of Mr. Fitzgerald, he should put in a letter written by that gentleman on the 29th May, intimating that the course adopted by the council' met with his entire approval. Nor was this all: a meeting of the council was held on the 31st May, at which the plaintiff moved that the offensive matter should be ex- \. punged, before the minutes of 26th May should rN.7 be signed, and professed his willingness to afford every explanation in his power, so soon as that should be done, but not before. That motion was seconded by a friend of the plaintiff. A counter-motion was proposed by Mr. Fitz- - gerald and carried, upon which the minutes were signed by Mr. Brittan. The, plaintiff, , being able to obtain no redress, demanded the name of the chairman at the previous meeting, -and of the mover of the resolution—intimating his intention to bring this action. At the next meeting, on the 9th of June, at which the plaintiff and defendants, and certain other members of the council, were present, after the minutes of the former meeting were signed, it was suggested by one of the defendants that Mr. Dampier should resign, which he declined to do upon principle, and consequently several other members present, who had been on terms of intercourse with, and clients of, the plaintiff, tendered their resignation. A general meeting of the Land Purchasers' Society was then called by Mr. Brittan as president, "to take into consideration the circumstances which had compelled nine members of the council to tender their resignation, and to take the necessary steps for the election of a new council." He (Mr. Hart) further proposed to shew the animus of the parties, by putting in evidence the newspaper report of that meeting, containing the speeches of the defendants on that occasion, and the then republication of the minutes and libel. His Honor here interposed and objected to the several speeches of the defendants being taken as evidence in support of a joint libel. Mr. Wright, Sheriff, and late Clerk to the Council of Land Purchasers, was then put •into the witness box, when, upon - the same ground, the Court refused to permit the signature to the minutes of one only of the defendants, although chairman to the meeting, to be received as proof against the other. His Honor stated that it would be necessary to prove the joint composing and the joint publication, and that the animus of the defendants could not be proved by evidence of what each defendant had separately done or said; but that as the damages were indivisible, so must the defendants be .proved to have acted in concert, though not in \ -every transaction proposed to be proved in sup.port of plaintff's case. The counsel for plaintiff having failed in proving in their first wit- | ness, Mr. Wright, that the defendants were \ joint parties to the publication of the libel— | elected to be non-suited. This case terminated v. the Sessions. I . On Friday evening, his Honor, accompanied | by his Legal retinue, embarked on board the | Government Brig for Wellington, taking the | prisoners Johnston and Godwin.