MAGISTRATES' COURT.

Nelson Evening Mail, Volume XV, Issue 90, 15 April 1880, Page 1

MAGISTRATES' COURT.

YESTERDAY. [Before John Shaep, Hon N. Edwabds, B. Beeves P. Donald, and T, Mackay, Esqs., J.J.P.] Chabge of Pebjuby. W. Acton B. Adams appeared in answer to' a summons charging him with having committed perjury in the testimony which he gave upon oath, as a witness, at the trial of a certain cause between . W*. Action B. Adams, plaintiff, and E. Boyes, defendant, at the Nelson District Court, holden on vthe 12th February last. Mr Pitt, instructed by Mr /-'•Bunny, appeared, for the prosecution, and Mr ie Conolly, with him Mr Percy Adams, for the def fence. - ■-„., Mr Conolly said before the, case -was, proceeded with he had two points to bring before" the Bench. The first was as to the publication of the proceedings j about to take place that day. Their Worships were aware tbat they had the power, if necessary, to exclude all parties from the hearing, but he had uo desire to do that ; but' he did wish the Bench to intimate that it was not advisable for representatives of the Press and telegraph agents to make the evidence public till the case was completed.. When finished, his client was desirous that it should have the fullest publicity; but till then it was obvious that a report of a portion of the evidence only might be most damaging to the defendant, as, for instance, a telegram might easily be sent in the middle of the day, when it was possible only such evidence as was damaging to the defendant might be given, and that consequently a different impression might be conveyed tban would be the case were the whole of the evidence made public at one.time. The present was not an ordinary case, and the defendant was in a peculiar position, for both as a. solicitor of, considerable standing and a member of the House of Bepresentatives that prosecution was not only interesting to the inhabitants of Nelson, but to those of the whole of the Colony ; and there were certain facts relating to the cose that made.it very undesirable that there should be published reports of portions only. Already a report that the summons was issued was published some 18 hours before it was issued or made out. Indeed Mr i Adams first heard- of it through the evening paper, and net oaly did this paragraph appear, but it was telegraphed all over the Colony. Mr Pitt said that as for the paragraph appearing 18 hours before the summons was issued, he thought his learned friend would find this was not a fact ; Mr Adams, ■wras out of Town when the summons was issued. It was issued just after 4 o'clock, and he himself met Sergeant Nash proceeding to serve it. ' The Chairman said .the Court : would make the order. At the same . time ,they thought the representatives of the .Press would not attempt to publish evidence till the Court saw fit, or, the case was over. There were, -too, other people in Court, as well as reporters, and they were warned in the same manner. ■ . ■ -' " .* Mr Conolly then called attention to the information, and urged that the 'defendant ought to be made acquainted with what part .of the evidence the allegedperjury was committed. Mr Pitt had no objection to amend the information, co as to give the particular!,', and after a short delay he amended same, alleging tbat the perjury consisted of the defendant swearing — 1. That he did not muke tbe agreement with one Robert Donald .'for ■ ; the eale of ; Marahau (meaning certain freehold lands mortgaged by Edmund Walter Thomas, the informant, to 'the eaid William Acton Blakeway Adams, i ■ •■■': 2. That he never authorised tbe said Robert Donald to take possession of Marahau (meaning the eaid freehold land?). 3. That he '-never gave the said Robert Donald authority to take possession of Marahau (meaning the the said freehold lands). 4. That he denied thafc the said Robert Donald was in possession of the said freehold lands in pur- ,. fluance of an offer made by him (meaning the said Robert Donald) to the defendant. " 5. That he never accepted the offer of tha said Robert Donald for Marahau (meaning the said, freehold lands). 6. That he made no" charge against the Baid Edmund Walter Thomas' in respect of any such sale, because no sale '(meaning 'the said freehold lands) ' was completed. . Mr Pitt then opened the case for tbe proseoufcion at some length, and, baying done so, called H. Clinton Salkeld Baddeley," who stated : lam the District Court Clerk, also the Clerk to tbe Resident Magistrate's Court, at ..Nelsop' On the 12th February, ISBOJ I was acting' as Clerk to the District Court at Nelson. I produce the proceedings in the action, Adams y. Boyes ; the -summons to a plaint, and tbe defence (marked A). Tlie present defendant was the plaintiff in. tbat action. I produce the Gazette' establishing tbe boundaries of the District Court, dated April 10 ti, 1?79. The defendant, Edward Boyes, is descr.bed as of Motueka, wbich is witbin the boundaries, given in that proclamation. That case came on for trial on the 12th February last, before Lowther Broad, Esq., the Distriot Judge for the Nelson District. 1 remember Mr Adams giving evidence afc tbe hearing of that ease. Be was eworn by mein t|?e usual way. Mr Pitt: Do you remembar a subpoona' bejng issued ? Witness: No, I do not. Mr Pitt : I call for the production of tbat Bubpenna. Mr Conolxt:. Wedo.not admit aoy such document. J; ,■ • Mr Pitt to Witness : -Wlio issues tbe subpoenas ? • Witness : Usually tbe Assistant Clerk makes out tbe subpoenas, and they are signed by me. . Mr Pitt then read the defence in the Vet ion, Adams v. Boyes. ' : ' • - ■■ •• Witness continued : The judgment in that action was for tho plaintiff, for £34 16s, and costs £) 16*. Cross-examined by Mr Conolly : Would not jour book show wh.ether. ! a subpoena was issued ? Witness: AU fees are now paid by stamps, bufc I have a private book showing wbat subpoenas aro issued, bufc it does not show whab sort of a subpoena. I will get the book if you like. Mr Pitt : Never mind* I can prove it. Witness : A'pfoducVthe proceedings in the action in tbe Resident Magistrate's Court, Boyes v. Thomas. Tho judgment was, that theplaintiff was nonsuited with costs £11 35. ". "1t. was heard on the sth : April, this year, before Lbfrther Broad, Esq., R.M.

Lowther Broad,, sworn, and examined by Mr Pitt: I am tbe Judge of the Nelson District Court : and was so on and prior to the 12th February, 1880. I produce my appointment. lam a barrister of the Supreme Court of New Zealand. I remember hearing the case of Adams v. Boyes on that day, the 12th of February. I tried ifc myself without a jury. Mr Adams, the plaintiff in that case, is the present de fendant. The defence I hold was the defence in tbe . case. I remember Mr Adams being examined as a witness. I remember his being cross-examined by tbe counsel for the defendant. I took some notes of hJB examination and cross-examination, and I- have those notes before me now. I will read my notes. [Witness then read his notes.] The cross-examina-tion of Mr Adams- was lengthy, and there was a good deal asked with regard to the sale of the Marahau property. The cross-examination was nearly Jail directed.to the fifth ground of defence. I understood Marahau, mentioned in my notes, referred to a mortgage bf freehold land from Mr Thomas to Mr Acton Adams. The notes do not contain all the cross-examination, but only such parts as I considered would be of service in refreshing my memory in-order to give decision. I don't recollect Mr Mr Adams being asked whether he wrote a letter to Mr Donald. He was asked, to the best of my recollection, by myself whether there was any memoranda between him and Donald. I made the enquiry, was there any written agreement? remarking that under the Statute of Frauds none other was binding. I said, I suppose you mean a written agreement, as no other would be of any use under the Statute of Frauds, being for the sale of land. I asked this after he had repeatedly said there was no agreement, and that he had not accepted Donald's offer. My object was that I supposed the defence were going to set up a verbal agreement. I remember remarking that it appeared as though Donald was there without any right or title, and was incurring all kinds of liabilities. I remember a letter on pink paper being referred to. Mr Pitt : From the evidence given by Mr Adams had you any impression that there was any other letter besides this ? Witness : I understood that there was nothing else in writing between them ; that he had never replied to this letter ; that the pink letter was the only writing referring to the sale of the Marahau property. I think Mr Thomas said Donald was in possession. After the examination of Mr Adams, the line of defence, as stated in the fifth ground, I understood was abandoned, and I did not decide, the case having reference to it. I decided it on the point of law that Mr Adams, as owner of the Bill of Sale, had an immediate right to the possession of ; the sheep, there been a default under the Bill of Sale. I relied on the evidence of Mr Adams to come to that conclusion., lam also the Resident Magistrate for the district of Nelson, and was acting as such on the sth April. I hold in my hand the summons in the • action Boyes v. Thomas, heard before me. I remember Mr Acton Adams being called as a witness and sworn. [The witness read his notes] I remember'the agreement referred to was produced It is dated 24th March. The deed produced is the agreement, and this letter is tbe letter A referred to in my notes. Mr Pitt: Mr Adams said, according to your notes, "that the terms of the agreement would be entered in my day book." Witness : Yes, and he then, as far as I remember, said he thought there would be something about the lease entered. I have read the agreement. I believe Mr Adams said it contained no mention of the leasehold, because Thomas would not give it but that he was still to try and get the leasehold. There was nothing in Mr Adams's evidence to show that he knew Donald signed this agreement on the sth January. I thing the agreement says that interest is payable from the 31st December last. Cross-examined by Mr Conolly : The action was for wrongful conversion of sheep by reason of their being at the time under a bill of saletothe ; plaintiff, Mr Adams. The fifth ground of defence includes two questions, namely, .whether the plaintiff had been paid prior to the 10th December, or prior to tbe commencement of this action. The date of the pliant is die 10th Jauuary. Mr Conolly : You, sitting there as a judge of fact and of law, was it not immaterial whether the "amount of tbe bill of sale was paid? Witness : That is a matter of law. I did not treat it at all. There appeared no dispute as to date of the conversion. Mr Conolly : Did you understand all the questions put to Mr Adamß to bear reference to matters before the 10th December ? ( ■ -...-.., Witness : No ; ifc appeared to me tbey bclfl reference tq anything . up/. to the time Mof the briugii g of the action. Mr Conolly : You observe, the very first answer was, " I did not make tbe agreement." Witness : I understood that answer to refer to the agreement set out in the plea. . Mr Conolly : I can nofc see any agreement get ont in the plea. Witness: The plea says tbat he, did sell or agree to sell, and I understood him to mean that be did not make the agrooment set out in tbe plea. Mr Conolly : Were there not a groat number of questions asked of which you took no note P Witness : No doubt. Mr Conolly : Was there not a good deal asked about the pink letter ? Witness :. Yes? * , ,' . ■ . : ' ". Mr Conolly : Mr Adams by your note says, " I did nofc accept that proposal." Was there any question about any subsequent arrangement after the pink letter? Witness : ; I do, not remember any. . Mr ConomiX ';.' Tben do not 'the words refer to tbis pink letter, and the letteif in reply ? AVilness: I should Bay, looked at by the light of the 5Lh plea, they would. , Well, it might, or might not. I thought Mr Adams meant be had made no agreement before the 10th December, or briore the action. Mr Conolly : Then why do you say in your notes the agreement if it did not relate to. the pink letter only ? Witness : The the would refer to the agreement eet up by the defendant. When Marahau was spoken of in the first case, I understood it to mean such estate aB Mr Adams had control ovor. I understood Mr Adams bad- no control over tbe leasehold. I understood Mr Adams tb mean all through that he agreed with my proposition that no other agreement was jof any use, and that he stated there was no J , written agreement—in laW that there was ni) agree»w ment at all. After Mr Adams's ovidenoe the detenoe I

on, this, point was virtually abandoned. 'Under the Statute of Frauds an agreement ! refarrinf to| land must, prima facie} be ; in." writing." The defendant tendered no evidence of a written ajtraement. As to Donald taking possession; I think the evidence was, : that he went there by the taoit permission, of Mr Thomas. .Mr Adams said " I never told Mr Thomas I had sold for £700, bufc that I sfcicll was negotiating for the sale, but that the leasehold was' wanted." There was no atteibp't to keep the negotiation ! from v Mr Thomarf. i It appeared to me that Mr 'Thomas wai a defaulting mortgager j and that Mr Adads was trying to find a purchaser, with Mr Thomas's consent. At the first 'trial nothing was asked about thei supposed agreement signed pn the sth Jahuary. •peoial agreement' was referred' tbi: -On ' the • sth April when Mr Adams was. examined about jit he ; madeino concealment j h^ admitted; there-Was ; an' agreement, and produced jt. He said, he signed it on the 24th March. Ha also, referred to his day book, in wbioh instructions were given. , ' j 'i;w Mr Cokoliy : Urileis Mr Adams hsid mentioned ' tie day book; tbey could not bar* found out about ■»'■?'■ •■..•'.-.■ •.-..: 1.-,.- i ".';.'.' „ Witness,: I don't .know, I think ho volunteered! tbe information. ' Mr Adams said, I think, that' ho had not seen the agreement before Februar^; I ; don't remember whether Mr Bunny did notistato, Donald says you were present when it was; signed.. He may have done so. Mr Donald did not say Mr Adams was present when be signed. Mr Thomas was also examined at this trial ; ho said something about giving Donald possession, if showing him, the boundary was doing so. Evidently Donald took possession before the conversion of the sheep, and tbat he was in undisturbed possession from before the conversion on the 10th December. Be-examined by Mr Pitt: I do not remember any objection being taken as to the relevancy of the cross-examination. The whole of the crossexamination was of such a nature as would go a« to his credibility. The effect of his evidence was that be bad not sold or agreed to sell ; that there was no binding agreement between tho partie^,- or either of . tbem. In support of =the: sth groiyid of the defence j „it vras more important to Mr. Thomas that Donald should be bound to purchase, than Adams bound to ; sell. Mr Adaras was not asked whether'! Donald had ; signed any formal agreement, but he was asked as to whether, thera was an agreement between him . ani Donald. Donald .having signed thit agreement on tbe sth January, it was binding on hin. There was no evidence of any ' contract bafore me in the' District Court. t .:,',': \ '. 'I Mr Pitt : But suppose the day book with . the, entries in Mr Adams's handwriting, and the agrees, ment signed by Donald, had been before you. i Witness : That is a large question. I should say that in all probability Equity would have, compelled specific performance. , I bare no doubfc that suoh would have been sufficient 'for a Court of' Equity. „< Mr Pitt : And if tbaV letter of the 13th November had been produced f \ -<"• ■'' | v ",. Witness: In that leiter! there was something wanting, ifc appeared that , one wanted 10 per cent, and the other was only willing to give 8 per cent. , ' Mr Pitt : In the second case my friend says Adams made no secret of the day book, was not Donald present then ? Witness: Yes,. •, The examination of,. his Honor Judge Broad then terminated,,. and his Honor remarked to the Bjnoh as to committing the case to the Distriot Court, pointing out that he being a> witness in the oaee, it would be preferable, in the event of a committal, to aend the oase to the Supreme Oour'. . The Chaibman at this stage referred to his remarks at an 'early period pf the case having reference to the publication of tbs report of this ease, and said there had been an erroneous impression as to. the order of tbe Court: The order made was that publication should not. be> mode of portions of the evidence, nor comments on the evidence, not that the depositions of any witness as a whole should not be published.