THE COURTS.

Marlborough Daily Times, Volume II, Issue 129, 15 June 1880, Page 3

THE COURTS.

SUPREME COURT. Blenheim, Tuesday, June 15tii. [Before His Honor the Chief Justice.] The Court sat at eleven o’clock. The following Grand Jurors were sworn : —J. H. Dalton, G. H. B. Monro, T. Horton, W. Syms, F. Redwood. A. E. Hyde, C. Coulter, R. W. Parker, A. Dobson, J. R. W. Cook, T. Norberg, W. Blick, T. H. Hustwick, J. C. Chaytor (foreman), A. Brown, J. R. Gard, W. Evans, junior, W. Douslin, C. Redwood (excused), S. Swanwick, A. T. Card, J. 0. W estern, C. Davis, and R. D. Nosworthy. His Honor, addressing the Grand Jury, said there was but one Bill for them to consider and the district might be congratulated on the fact. The only case they had to consider was one arising under the 30th section of the “ Malicious Injury to Properties Act,” for malicious injury to a dam erected over the Omaka river by the Lower Wairau Rivers Board to which the Spring Creek Board objected. The Spring Creek Board had obtained the advice of Mr Conolly, a counsel of good reputation not only here but in other parts of the Colony, who had advised tuat the dam was a nuisance which might be removed. It did not appear on the depositions whether that opinion was directly communicated to the defendants. To sustain a primafacie case they must be satisfied that the cutting down of this dam endangered any land and that the act was done wilfully and maliciously. This indictment was for felony, and if the jury were satisfied that defendants were acting in the honest belief that they had a right to do what they had done it would not be a felony. From the evidence he could not say whether this was a private or public river. If it was a public river and this dam was a nuisance anyone would have a right to remove it. It was not necessary for the jury to be satisfied that defendants had reasonable ground for believing they were right. It was enough if they believed there was honesty of purpose on the part of defendants to warrant them in throwing out the Bill. The petty jurors’ names were called over and Mr W. B. Earll was fined 403 for nonattendance. Subsequently a certificate from Dr Cleghorn was handed in, and the fine was not imposed,

TRUE BILL. Tqe Grand Jury found a true bill against the defendants, and the trial was fixed for next morning. The Grand Jurors were discharged, with the thanks of the Queen for their attendance. BANK OF N.Z. V. J. B. WEMYSS. This was an action to recover the amount due on two bonds for £024 2s 5d and £594 3s 9d respectively, given by defendant to the Bank of New Zealand, to secure advances made to the Sutherland Goldmining Company in IS7O. Mr Conolly appeared for plaintiff and Mr Acton Adams for defendant. RESIDENT MAGISTRATES COURT. Blenheim, Thursday, June 11. (Before 11. Mclntire, Esq., R.M.] DIVERSION OF THE OMAKA RIVER. Mr Rogers asked (under section 5S of the J.B. Act) to dismiss the_ case as against o‘Dwyer and Dickens, against whom there was not sufficient evidence to warrant their committal.

The Court declined to adopt this course at the present stage of the proceedings. A j/rima facie case had so far been made out that defendants had injured a river bank, the defence being that they did so in the exercise of what they believed to be a legal right, which tcok away the element of malice. Mr Rogers said he should call evidence to show that the dam was removed under le f, al advice and in the exercise of a supposed right, and also that the dam was injurious and that it was not a dam belonging to the river. If the dam were put there wrongfully it could not be part of the river as those who put it there could be compelled to remove it. He contended that the powers under the “ Hawkes Bay and Marlborough Rivers Act ” did not five them power to erect this dam which was not within their district. The Wairau Board had exceeded their Statutory powers and had no right whatever to erect this dam. The river at this point was not under their control and jurisdiction. He also contended that Mr M’ivor could not legally give them the power. He was only a riparian proprietor whose rights did not go to the extent of allowing him to cause an obstruction to the river or divert its course. He quoted from the judgment of Mr Justice Richmond in the case of Parker v. Dodson (reported in the Marlborough Times of September 16th) in support of his argument. Thedefendants wereactingunder the advice of their counsel, Mr Conolly, in what they did. He asked the Court to dismiss the case. The depositions having been read over, each of the defendants was asked what he had to say. Mr Dickens said he had nothing to say except what had been stated by Mr Rogers. He acted under the advice of Mr Conolly, who told them that anybody could go and knock this dam down but not the Board collectively as they had no jurisdiction. Mr Bowler said he acted under Mr Conolly’s advice. Air Robinson said he had nothing to;say as did also Mr Withey and Mr Andrell. N. 'l'. Pritchard was called by Air Rogers and stated that lie was a farmer at Spring Creek and had resided in the distiict foi 20 years. “Witness’ property is bounded on the South by the Opawa river. “Witness knows the site of the dam and channel. There has been no Hood in the Omaka since they have been erected, consequently there has been no damage to his property. Since the erection of the dam all the water in time of Hood will go from the Omaka into the Opawa. Witness’ property will be liable to be more extensively flooded now than heretofore. Witness has known both rivers to be Hooded at the same time. Witness is a member of the Spring Greek Board. There are extensive embankments erected by the Board on the North bank of the Opawa. These banks are endangered by the diversion of the Omaka into the Opawa. Air Conolly’s advice was taken in the matter. Air Conolly wrote to Air Dickens stating that the dam could be removed. The Resident Alagistrate said the evidence against Air Dickens was so very slender that he felt inclined to discharge Air Dickeiis and take his evidence as to Air Conolly’s letter. [Air Sinclair said he would not object to Air Conolly’s letter being put in.] The witness Pritchard went on to say that he intended to have accompanied the others to the dam and had his horse and dray ready to assist but as the weather looked bad he did not go. He did not believe in the doctrine that if an extra quantity of water were put into the Opawa it would cause such extra velocity of the stream as to carry it all off without raising the river. That was all “bosh.” The letter produced contains Air Conolly’s opinion which I read. George Dodson, farmer, Spring Creek, Chairman of the Spring Creek Rivers Board, deposed—Our Board recently instructed Air Conolly to take an action against the cutting of this channel. At that tune we were not aware there was to be a dam, otherwise that would have been included. Before the channel was cut the water from the Omaka occasionally found its way into the Opawa. lhercis a depression there. Now all the water from the Omaka runs into the Opawa. The Spring Creek District will, in -witness’ opinion, receive considerable damage from the cutting of the channel. Before it was cut, in flood times, the water in the Opawa has been within six inches of the top of the protective banks erected by the Board. One of the banks is within two yards of the river, but most of them are about two chains distance between them. The water now comes ud the banks three feet in flood time. » itness is convinced the water will now rise to a greater height, and will most likely cause a bank of shingle to be deposited across the bed of the Opawa. Witness has been confirmed in his opinion by the evidence given by Air C. Redwood in the Court to-day. Both rivers are shingle bearing, except in times of extraordinary flood all the Omaka water -would go through the channel, which would in fact be the Omaka river. About £ISOO has been expended by the Spring Creek Board in the protective works. The lesser floods do more damage than the big ones in eating away the banks. Witness considers the work of the \\ aiiau Board would have been just as efficacious without the dam as with it. The channel would have been sufficient to have caused a diversion of the stream. Air Dickens was here discharged and put into the witness box. In answer to Air Rogers, the witness said—l am Secretary to the Spring Creek Rivers Board. On the 3rd June I saw Air Conolly by direction of the Board, and took his advice as to the dam across the present bed of the Omaka. The plan I now see and the one Air Conolly saw are the same. Air Conolly said any ratepayer could knock the dam down. At the time the injunction was got we were not aware they were going to make a dam, and that is why it is not mentioned iu the injunction. I did not give Air Conolly to understand that the erection of the dam might be considered as a reclaimation of

land carried away by the river. I understood the river had rmi in the same channel for the last 12 years. I told Air Conolly it was probable that great damage would result. Mr o‘Dwyer was discharged. The Court reserved judgment as to the others until next morning, the defendants undertaking to appear at .11 o'clock. At eleven o’clock next morning the four defendants, Messrs Robinson, Bowler, Withey, and Andrell appeared in Court and answered to their names. The Court said this was a case of most extreme difficulty and nicety. It had been heard at great length, a mass of evidence had been taken and points of law adduced, and it now remained for the Court to give its decision. The defendants now before the Court were chargad (with two others discharged the previous day) under the 30th section of the “Malicious Injuries to Property Act ” with feloniously, unlawfully, and maliciously damaging a certain dam of the river Omaka, whereby certain land was in danger of being overflowed and damaged contrary to the Statute, &c. As to the bare naked fact that injury had been done to the dam in question by these gentlemen there could be no doubt whatever, for it had been unmistakeably proved in evidence that they had done so, but the question remained for him to decide whether it was competent for him, sitting ministerially in this Court, to go into the defence set up by defendant’s counsel that the act was done in the exercise of a supposed right and not maliciously. The learned counsel for the defence that there was evidence to rebut- the presumption of malice, and that the dam was put in by wrong ; that defendants had a right to remove it, and that Air C. Redwood had exceeded his powers under the “ Hawkes Bay and Alarlborough Rivers Act.” Now, whether the Wairau Rivers Board had a right to erect this dam, and whether the Spring Creek Board had a right to pull it down, were questions of title involving subtleties and niceties which it was not for this Court to determine. It was somewhat different he apprehended with regard to the question of “ malice.” Air Sinclair, for the prosecution, had contended that this was analagous to a case of libel and that it was not for this Court to go into the question of justification, but the Court was of opinion that it could take into consideration whether there was evidence to rebut the presumption of malice. Had the defendants rebutted this presumption ? As against Air Dickens lie considered no case had been made out. The part he took arose out of a case pending between the Spring Creek Board, of which he was the Secretary, and the Wairau Board. He was therefore the representative of one of two Boards in litigation with each other and was acting under the advice of eminent counsel, Mr Conolly, therefore it could not be said that he was acting “ maliciously.” Air O’Dwyer was also a member of the Board and acting under the same legal advice. But so far as the other defendants were concerned, had the evidence adduced rebutted the presumption of malice on their parts ? They were not members of the Spring Creek Board. What they did appeared to have been done under the advice and by the direction of Air Dickens, and there was nothing to show that they did the act being legally entitled to do so to protect their own property. Whatever might be his own opinion as to the points raised in the case as to right and title, or what a jury might be likely to say about it, or what the Supreme Court would be likely to direct, he could not decide such points. It was for him sitting here ministerially to say whether there had been a prima facie case made out against these four gentlemen. On careful consideration of the whole case he had come to the conclusion that there was no other course before him than to send the case for trial at the next sitting of the Supreme Court which would be on Tuesday. He should not call upon defendants to find bail but should be satisfied by each of them entering into a recognisance of £IOO to appear at the Supreme Court on Tuesday next.

Monday, June 15tii. (Before W. Douslin, and S. Johnson, Esqs., Justices.) rOLICE v. CHUCK. Walter Chuck, butcher, pleaded guilty to a charge preferred against him by Constable Rogers, of being at such a distance from his springcart, whilst passing through the street, as not to have control over his horse. The Magistrates imposed a penalty of 10s and costs 7s. PARKER V. W. S. COLLIER. This-was a claim for £3 13s Gd on a promissory note. The defendant, who lives in the Wairarapa District, did not appear. Plaintiff proved the debt, and obtained judgment for the amount claimed and costs. BARTLETT V. J. HOWARD. This was a claim for £l6 ss, for work and labor. Defendant did not appear, and Mr Bartlett having proved the debt, the Court gave judgment for the amount claimed and costs. EARLL V. J. HOWARD. Claim £5 Gs, for cash lent, etc. No appearance on the part of defendant. Judgment for plaintiff with costs. DIVENS V. STAGG. This was a claim for £2 19a 3d, for board and lodging, etc. The defendant admitted the debt, but asked for a mouths’ time. Plaintiff said he had no objection to give time, and the Court gave judgment for the amount claimed and costs. DRAPER V. MURPHY. This was a claim for 15s for goods sold and delivered. Mr McNab appeared for plaintiff, and Mr Rogers for the defendant, who put in a set off for the same amount for damages to a fence. Mr McNab contended that these damages must form the subject matter of a separate action and could not be set off. Moreover he had received no notice until that morning. The Clerk of the Bench said there had been a payment into Court of 4s. Mr Rogers contended that under the J.P. Act any demand could be made the subject of a set off. Mr McNab contended damages could not be set off against an unliquidated debt, and the local Statute could not over-ride the English law : moreover the local Statute did not pretend to do it. Moreover, no notice of set off had been given to defendant until this morning.

In reply to Mr Rogers, Mr Draper said he got a letter from Mr Murphy one day last° week about some damage done to a Mr Old, Bailiff of the Court, deposed that the notice of set-off was received at the Clerk’s office on Friday morning last. The summons was served on defendant on Thursday. The Bench decided that the document purporting to be a notice of set-off was insufficient. The debt having been proved, the Court oave judgment for plaintiff with costs £1 Is. The Court then rose.

DREAM OF THE FUTURE, 1950.

Under the above heading a contributor to the London Trade Journal indulges in a little mild prophecy or “dream” as to the position which Great Britain and her colonies will occupy seventy years hence, under a free-trade policy. “In IS7S the total number of articles in the English tariff of import duties was 15, as compared with 1046 in 1840, and the revenve derived from Customs and Excise in 1840 was .£35,536,467, and in 1878 it amounted to .£4B 577,222. In 1879 we were elated by the receipt of orders for iron and steel rails from the United States, sent us as a sequence of the splendid harvest of that year, but our foreign trade was on the decline, while our export trade to the colonies had increased. The Commissioners of Customs stated that, taking for comparison the years 1872 and 1877, the exports to foreign countries diminished from .£195,700,000 to .£128,969,000, and that the export to the British possessions increased from .£60,556,000 to .£69,923,000. These figures showed the tendency of our foreign trade, contending on the one hand against protective duties, encouraged on the other by our own descendants. The year 1950 opens upon the old world hemmed in more than over by its prejudices and contrivances for dealing with a superabundant population starving in the midst of plenty, but precluded by the abominable laws of protection from supplying itself in the cheapest market. England only of all the European nations is saved from the curse, thanks to its colonies, but the Continental trade is at an end and is amply compenseted by the exports to the colonies, which have risen to .£700,000,000 to supply the wants of 50,000,000 people. The Eastern question has long since been settled by the abolition of the Turkish rule in Europe, the establishment of Constantinople as a free port, and the retirement of the Turkish population to Asia minor, where, under a mild protectorate, they not only support themselves in comfort, but export a considerable quantity of corn, silk, and other produce, which is brought to the Mediterranean ports by the Euphrates Valley Railway. England has abolished the Custom House against the colonies, and the colonies in return have a differential duty in favour of England which effectually excludes all foreign trade, so that as the home population, according to Mr Toussiant Lona, doubles itself in seventy-two years, we have, in 1950, 48,000,000 of Englishmen dealing with 50,000,000 in the colonies, and England can afford on such terms to be isolated from the Continent. The gross income of England increased from .£155,000,000 in 1800 to £571,000,000 in 1875, consequently in 1950 it may reach L 1,000,000,000 and as by an improvement in the means of locomotion Australia can be reached by steamer in fifteen days, there are the same facilities for transport as we enjoy with the United States in the present day. England and her united colonies, too powerful to attack, peaceably disposed and secure from war, devote themselves to the highest interests of the civilisation of the twentieth century. Africa being thoroughly explored and opened up, is the field for the foreign commerce of England; and the Continent, having no vent for its redundant population, is the scene of perpetual warfare and revolution. India is at length self-supporting, owing to the railways falling into the hands of the Government, and the possibility of reducing the army by the abolition of the semi independent nations, which in 1880 required more or less supervision. Thus the battle of Free-trade against Protection has been fought. and the blessings which the British Empire enjoys may be attributed not to her superiority over other nations, but to the perseverance which her statesmen have shown in continuing the policy laid down by the great Sir Robert Peel when ho abolished the duty on the greatest necessary of life.” —Auckland Weekly Npacs.

The Liability of Bankrupts.—The following extract from a Northern paper will prove interesting : —“ Trustees of J. T. Anderson and .1. E. Gilbert: —Judgment summons.—Claim, £3l Gs. This was a case that came on before E. Hardcastle, Escp, at the R.M. Court, Wanganui, ov May 14, 18S0. Defendant’s counsel contended that his client had been insolvent since the judgment was given, and therefore the debt was not recoverable. This objection was over-ruled on the ground that tiio debt was incurred and judgment given before defendant filed his schedule. It was then urged by defendant’s counsel that the fact of bankruptcy was proof of inability to pay. On the other side it -was shown that the defendant was in constant employment as hotel manager at Bull’s, Eangitikei. The Court ordered the debt to be paid by weekly instalments of £2.”

Poisonous Honey;—A curious circumstance, showing the danger which persons run from eating wild honey, occurred near Maketu the other day. A native who was on the search for honey (says the Bay of Plenty Times) discovered a fine hive close to a wharangi bush, and having eaten plentifully of the honey, he was attacked a few hours afterwards with violent pains similar to those resulting from taking strychnine. No medical assistance was available, and the unfortunate sufferer died in the course of the night. The bees had gathered their honey from the flowers of the wharangi, which is one of the two poisonous plants to bp found in New Zealand,

A pompous lawyer ’'said to the keeper of an apple stand —“Your business cares seem to be too much for you. You should go into something which is not so trying to the brair.” “ Oh, ’taint business,” replied the apple-seller, “its laying awake nights, trying to decide whether to leave my fortune to an orphan asylum, or to a home for played-out old lawyers, as is killin’ me.” Somnambulism extraordinary. The Guildford correspondent of the Mount Alexander Mail relates the following singular instance of somnambulism which occurred recently at Tarilta:—Mrs Edwards, who lias two sons, aged 15 md 9, allowed them to go on a fishing excursion up the river Loddon, with the intent to stop all night. The younger, who had previosuly walked in his sleep, was cautioned, and the elder enjoined, if they slept, to carefully watch his brother. The night—or, rather the early morning—became pitch dark, and the hoys, who intended to keep awake, decided to lie down ; and in a few minutes the clever lads improvised a mia-mia and slept. During the pitch-dark morning the younger one got up, and, with liis eyes closed, started for home in a bee or direct line, and when reaching it took oil'his boots, opened the window abutting on his bedroom, crawled in, and slept. Iu the morning the mother was astonished to find her child in bed. Inquiries and examination proved that the little one had not the slightest idea how lie got home. The boys were four miles from their residence, and the ascertained track of the somnambulist hoy showed that he had come in a direct line, but in a direction never previously traversed by him, and over country that a man would in daylight hesitate to cross. Holloway's Ointment ami Pills. —A cure for Abscesses, Piles, Fistula, and Sores of every description. —The very satisfaactory results arising from the use of this invaluable Ointment, when the patients have been suffering from any of the above disorders, have induced the Medical Profession to introduce it into the hospitals and their private practice, and in many instances where the sufferer was considered incurable Holloway’s Ointment, in conjunction with his Pills, healed the most desperate cases. They are also unequalled for the cure of scrofula, scurvy, and all diseases of the skin, and cures they effect are not temprary or imperfect, for by tlieir purifying powers they bring about a marvellous and most beneficial change in the whole system, and enable it with renovated powers, to resist the approach of all future attacks of the same disease.