THE COURTS

Marlborough Daily Times, Volume II, Issue 130, 18 June 1880, Page 3

THE COURTS

SUPREME COURT. Blenheim, Tuesday, June 15th. [Before His Honor the Chief Justice.] BANK OF N. 7. V. J. B. WEMYSS. This was an action to recover the amount due on two bonds for £G24 2s 5d and £594 3s 9d respectively, including interest, given by defendant to the Bank of New Zealand, to secure advances made to the Sutherland Gold Mining Company in IS7O, and to cover an overdraft to Mr Harry Pitt. Mr Conolly appeared for plaintiff and Mr Acton Adams for defendant. The following Jury was sworn :—Cornelius Ryan, J. L. Hilmer, R. Beatsou, E. Stratford, T. Seymour, C. Elliot, N. Curnow, R. Register, J. Davis, E. Carvell, W. Jones, and W. Bright. Alfred Rogers, solicitor, proved that on the 2Sth October, IS7O, he witnessed Mr Wemyss’ signature to a bond (produced.) Witness was then articled clerk to Mr H. Pitt. B. O. Waddy, agent of the Bank of New Zealand, Picton, deposed that on the 27th October, IS7O, he was accountant at the Bank at Blenheim and witnessed Mr Wemyss’ signature to a bond for £SOO to secure advances to the Sutherland Gold Mining Company. He also attested the signatures of the other parties to the bond. Mr Adams said one of the parties signed by power of Attorney to Harry Pitt and he objected to the bond being received as evidence unless this signature (that of Dr Squires) was proved. The objection was over-ruled. The witness proceeded :—There was a payment made by Mr Wemyss of £137 2s Odin IS7I. A cash credit was allowed to Mr Pitt. £GP2 Ss was due by him for principal and interest a year after the bond was made. He had also a trust account and a liability account. The £137 2s 9d was paid by Mr Wemj ss as what he considered his share of the amount due. There were three other parties to tlie bond. [The

witness produced vouchers for amounts paid on Mr Pitt’s account, &c.] Mr Pitt was the Bank solicitor. The Bank was not indebted to Mr Pitt for costs that witness is aware of. • Pie ceased to be a solicitor some two years after the bond was given. Witness is not aware that the Bank lias made claims against the other parties to the bond. They arc all dead but Mr Eyes. In 1871 Mr Wetnyss squared up his private account with the Bank by paying £450 ISs 3d in addition to the £137 2s 9d before referred to.

Mr Conolly, after a consultation with his learned friend, asked for an adjournment so as to give time for search being made at the Bank for further vouchers. Since the transaction occurred which formed the subject matter of this action, the Bank had been burned and some of the documents had been mislaid.

Mr Adams submitted that plaintiffs had had plenty of time to get ready and were not entitled to an adjournment. They ought to go to a jury with the evidence as it was.

Mr Conolly said he would withdraw his application for an adjournment and have all the vouchers in the Bank brought into Court, but it would take some time. Mr Adams said he would not press for these particulars, hut would admit the items in the Bank’s books as true, but that some of the items should not be chargeable against his client. Subsequently Mr Adams said lie should require about 20 vouchers to he produced unless Mr Conolly would agree to certain terms, which he would not. It was then agreed to let the case stand adjourned until Thursday morning to bo tried by the Judge and four jurors. Mr Adams asked for costs of the day, but the Court said the application came too late.

Mr Adams then said he would not press for an adjournment but let the case go on. For the defence Mr Adams put in a declaration by Mr Wemyss, taken before a Commissioner in London, stating that lie had paid his share of the bond (£137) to the Bank of New Zealand prior to his leaving the Colony and considered that he was discharged from further obligation. He also considered that as this was a joint bond the other parties to the bond should have been joined in the action. Mr Adams said everyone who knew Mr Wemyss would know that he would not go away from the Colony in debt, if he was aware of it. He asked the jury to look very carefully into the accounts and to consider the position of Mr Wemyss in the matter. The Bank at the time never intended to ask Mr Wemyss to pay another penny on behalf of the Sutherland claim. He asked the jury to take the surrounding circumstances of the case, and not allow the large amount of interest charged which amounted to half as much as the principal. Mr Conolly replied, contending that his learned friend’s defence amounted to nothing more than this—the claim was a very large one, and has been standing a long time. But was that a reason why it should not be paid, and was it a principle which any men of business would apply to their affairs. He contended that the Bank was entitled to a verdict for the amount sought to be recovered.

His Honor summed up and the jury after an hour’s deliberation found a verdict for the plaintiff for £049.

Wednesday, June IGtii, DIVERSION OK THE OMAHA RIVER. —THE QUEEN V. ROWLER AND OTHERS. Samuel Bowler, William Robinson, Geo. Withey, and James Andrell, were charged with feloniously, wilfully, and maliciously, cutting down a certain (lain of the Omaka river, whereby certain land was in danger of being overflowed, contrary to Statute. Mr Gordon Allan and Mr Sinclair appear ed for the prosecution, and Mr Conolly and and Mr Rogers for Messrs Bowler, Withey, and Andrell, and Mr McNab for Mr Robinson.

The defendants pleaded not guilty. On the names of the jurors being called over the following were challenged : —John Ewart, George Moore, George Storey, R. Register, Eli Carvell, James Ryan, Joseph Gridley, William Dick, William Newman, William Jones, Charles Elliott, Robert S. Forbes, William Bright, Ed. Stratford, Peter Kellor, Henry Hilton, Nicholas Curnow, Daniel Burkett, John Maxwell, Robt. Beatson, Cornelius Ryan, Thomas Hill, John Healey, John Muncastcr, and Robert Hnmbcr. Of these eleven were challenged by Mr Robinson, and seven were challenged by the Crown, which challenges were subsequently withdrawn. The following jury were sworn —John Morrin, Thos. Seymour, James Fuller (foreman), John Maher, James Gilchrist, Joseph Davies, J. Kilmer, Robert Logan, Henry Hilton, John Healy, Senior, Hamber and Birkett.

Mr Gordon Allan, in opening the case, explained the facts, which will be familiar to our‘readers having been detailed in evidence at the R. M. Court and published in our last two issues. The learned counsel contended that under the Hawkes Bay and Marlborough Rivers Act, the Wairau Board had full power to divert the Omaka, and to erect this dam, which the defendants subsequently cut down, thereby rendering the adjoining land liable to be damaged by over flow.

The evidence of the witnesses was substantially the same as that previously given when the defendants were committed for trial.

Mr Charles Redwood deposed to the work done by the Wairau Board on section I(J-4, which was Mr Mclvor’s property, the Board having obtained that gentleman’s consent. The value of the dam was about £SO. No other Board had control over the Omaha river. He described the action of the defendants on the 10th instant when they cut down and removed the dam. In reply to Mr Conolly, Mr Redwood said Dr Horne had first gone with the rest of the Board in this work, but afterwards appeared to have funked it, and now said he was not in favor of the work. Witness understood from what was said at the time that the defendants were acting under legal advice. In reply to Mr McNab, the witness said Mr Davies’ land and Mr Parker’s would be benefitted by the work. Those gentlemen were members of the Board, and were on the Grand Jury on the previous day. Witness had taken out a patent for a scheme to deal with these rivers. It was not borrowpartlyfrom his brother and partly from Mr Douslin. There is a good deal of gorse in the bed of the Omaka. Mr Seymour has the reputation of having introduced it. Witness is acquainted with all the defendants. He applied for a warrant for their apprehension on the advice of his solicitor. In reply to Mr Allan, the witness said that the effect of the work stopped by the first injunction was to divert the water of the Opawa into the big river. No notice had been given that defendants intended to cut the dam. At the close of this witness’ evidence, the Chief Justice asked if the prosecution could ask the jury to infer that what defendants did was done with a wicked mind. So far there appeared no evidence of it.

Mr Allan said he proposed to call further evidence, and quoted from the cases of the Queen v. Palmer, and White v, Feist,

His Honor said he should tell the jury that the defendants' belief that they were doing what was right, need not be founded on researchnble grounds. It was sufficient if there was honesty of purpose to rebut the imputation of malice. He thought some other course should have been adopted to settle this dispute than by taking criminal proceedings against these defendants.

In reply to the Court, Mr Redwood said he had endeavored to get the two Boards amalgamated, but so far had not succeeded. Mr Allan submitted that the question of belief shaild go to the jury, but he suggested there might lie a case stated to determine the right of the parties. Mr McNab addressed the Court and jury on behalf of his client, Mr Win. Robinson, and contended that the erection of this dam by the Wairau Board was illegal, and that Mr Robinson was quite justified in what he did. This dam was to protect the properties of Messrs 0. Redwood, Parker, and Davies, members of the Wairau Board, who now sought to brand these men as lelons for seeking to protect their homesteads. It was in evidence that the Board was not unanimous. It had been stated that Dr Horne “ funked it.” He (Mr McNab thought Dr Horne had acted very properly in not joining with that log-rolling body—the Wairau Board of Conservators. T. A. Dickens stated that lie took Mr Conolly’s advice on behalf of tne Spring Creek Board in this matter. Mr Conolly said the dam was a nuisance which anybody might knock down. An injunction had been applied for to restrain the Wairnu Board from proceeding with the diversion of the river Omaka but at that time the Spring Creel; Board was not aware that it was intended to erect a dam. The turning the water of the Omaka into the Opavva endangered the property of defendants. They were told what Mr Conolly’s advice was, and acted upon it.

By Mr Allan: —I did not tell Mr Conolly that the place where the dam was erected was private property. I told him that the dam was being put across the natural water-course of the Omaka. The Board did not direct me to knock the dam down. I was at the dam as a ratepayer, not as a member of the Board. It is very likely the Board approved of it. George Dodson gave evidence of the liability to damage arising to land on the North side over the Opawa from more water being turned into it. What defendants did was not done by the order of the Spring Creek Board. William Douslin, architect, &c., stated that he had for years made a study of the rivers and had obtained the premium offered by Hawkes Bay Board for the best means of dealing with them. He had also made an official inspection of the Hutt river. Where the Waihopai river joins the Wairau it comes at right angles and throws up a lsrge shingle bed which drives the latter to the rock on the North side. Witness’ opinion believes a similar result would take place with the Omaka. Every flood raises the bed of the Opawa which has risen 12 or 14 feet within the last few years near Mr H. Dodson’s, where there was a dam erected. Witness lias seen the two rivers in flood together —in ISOS and 1877. Where the dam is the river is shinglebearing. Peter O’Dwyer, farmer, Spring Creek, stated that the protective bank near his place would be endangered by more water being put into the Opawa. In 1870 ltobinscn’s bank broke and his family had to take refuge on the top of a haystack. John M’Calliun, farmer, Old Renwick Road, and a ratepayer to the Wairau Board stated that lie had lost about a third of his farm by Hoods. He apprehended further damage from the turning of more water into the Opawa. Mr Conolly addressed the Court and jury for the defence, contending that the prosesecution had altogether failed to make out a case against the defendants, who had acted under advice and in the bona fide belief that they were justified in what they were doing, and therefore could not be convicted of felony. What they had done was to remove a nuisance. The dam in question was erected by the Wairau Board, who acte" in a very high handed way in the matter of dealing with these rivers, and already had had t o injunctions served upon the . The people living on the north of the Opawa, naturally dreaded the water of the Omaka being turned into it, as it endangered their properties. It was ridiculous to treat these defendants as criminals, and he was surprised that when so many other courses were open to be persued that this course should have been adopted and it was right the public should know the highhanded manner in which the Wairau River Board rode roughshod over their neighbors, and carried on this prosecution in a most vindictive spirit to the last, even after the Court had suggested that it should be withdrawn. In considering the evidence that had been given as to these rivers, lie asked them to contrast the careful manner in which Mr Douslin, who had scientifically studied the subject, had given his evidence, with the loose but positive way in which Mr Redwood spoke. Every word of Mr Douslin, on this subject was worth ten of Mr Redwood. Mr Gordon Allan addressed the jury in support of the prosecution, saying it had been undertaken on public grounds and in the discharge of what they believed to be their duty. He urged that the mere fact of belief that they were right if unsupported by evidence was insufficient to excuse what defendants had done. His Honor summed up, telling the jury that if they believed defendants were actin, r without any wicked mind, and in the ex'ercise of a supposed right, they were entitled to an acquittal. The jury retired, and after an absence of five minutes returned ' into Court with a verdict of “ Not guilty.” There were some manifestations of approval in Court when the verdict was given which were suppressed. This finished the criminal businesss and the Court adjourned until eleven o’clock next morning.

CIVIL CASES. PASS.VU V. OOOCII. This was an appeal from a decision of the Magistrate’s at Kaikoura. Mr Sinclair appeared for the appellant, and Mr Conolly for the respondent. The facts of the case were that defendant was charged with negligently suffering a sheep to stray. The sheep in question being found on the high road. The Bench dismissed the case on the ground that there was no evidence to show negligence. Against this decision the Inspector of Sheep appealed, the department considering that the fact of this sheep being found on the highway, was prhna facie evidence of negligence which it was for defendant to rebut. Otherwise it would be impoesible for the department to carry out the provisions of the Act, for if it was incumbent on.the part of the prosecution to prove actual negligence they would be unable to do so. He contended that that Magistrate had drawn a wrong inference in law. The case was brought forward to establish a principle in accordance with instruction from Wellington,

The Court said that the question of negligence was one of fact, not of law. He did Hot think it was meessary to call on Mr ‘Conolly. The Magistrates had fc and the fact that there was no negligence, and lie could not see that they were wr g. He should, thereto e, dismiss the appeal with costs. Mr Conolly said he wished to bring a matter under the notice of the Court. The Resident Magistrate had been under the impression that fn these prosecutions under the Sheep Act, the Sheep Inspector was the Crown, and that he (the R.M.) could not give costs against the Crown. M r Sinclair said the amounts recovered, and fines, fees, etc., were paid into the Consolidated Fund. The Court said so they were in police cases. Costs could be given. This concluded the business of the civi Court.

RESIDENT MAGFT VTES COURT. HAVE MX X. [Before W. E. Dive, Esq., J.P., on June 9.] Drunkenness. —Peter Thomson, a seaman belonging to the Spec, charged with being drunk, was dismissed with a caution. [Before John Allen, Esq., R.M., and W. E. Dive and A. S. Duncan, Esquires, J.P.’s., on June 10.]

Police v. Wilson. — Defendant was charged with a breach of the Marlborough Publicans Act, by not having a lamp affixed over the principal door of his licensed house at Canvass town, was dismissed. Samev. Doreen. —William Doreen, land lord of Gavrod’s Hotel, was charged with a breach of the same Act, for suffering alcoholic liquors to be drunk in his licensed house, by Robert Alexander and James Wilson, between tlm hours of 11 p.m. on the loth May, and 1 p.m. on the 10th, May, they not being bona fide lodgers or travellers.

Mr McNab appeared for the defendant, and stated that Mr Doreen was treating these people as guests, and that no money passed. William Doreen, sworn, deposed—l ain landlord of the house in question. On the night of May 20, about 5 minutes past 11, there were at the house, Mr McNab and a few others, who wanted drinks, but I declined to serve them. The persons named in the information were not lodgers. Mr McNab was a lodger, I entertained them as guests. The bar was closed. The liquor was supplied in the dining-room. Mr McNab submitted that a licensed publican had a ‘perfect right to entertain his private friends. Sergt. Hogan said he had no questions to ask; he only wanted the question settled. The defendant was fined 40s with 9s costs.

Police v. Green.— Defendant was charged with a breach of the same Act, by not keeping his name and “ licensed to sell liquors ” painted on his licensed house at Kaituna, North Bank of Wairau, on the 15th May. This case stood adjourned from last Court day, and the defendant in tho meantime having complied with the law, the Police withdrew the information. Police v. Maule. —The defendant was charged with a breach of the Constabulary Ordinance, 1849, on the 22nd May, 1880, in riding in the public street so as to endanger the lives and limbs of persons passing by. He was further charged with using obscene language in Lucknow Street, Have lock, on the 22nd May. When the defendant was called did’not appear. Sergt. Hogan proved the service of tho summons on the defendant, and a warrant was granted for his apprehension. Police v. Wilkinson —The Defandant, who was charged with being drink, was dismissed with a caution, this being a first offence.