Law Intelligence.

New Zealand Mail, Issue 318, 16 March 1878, Page 8

Law Intelligence.

SUPREME COURT.—IN BANCO. Tuesday, March 2. (Before his Honor Chief Justice Prendergast). PATERIKI TE KIRIHEKE V. J. D. ORMOND. This was an application for leave to appeal against a judgment on demurrer. Mr. Bell appeared for the plaintiff ; Mr. Edwards for the defendant. The application was granted, by consent. TAMO ANA V. ORMOND. Application for leave to amend a declaraclaration on payment of costs.—Granted. EVANS V. HORSFALL. This was an appeal from the Resident Magistrate’s Court at Poverty Bay. Appellant, who was captain of the steamer Rangatira, had been sued by defendant, a draper at Poverty Bay, for damage done to certain goods through the steamer grounding at Napier, and in that case judgment was given for the plaintiff Horsfall. Mr. Edwards, on behalf of the appellant, argued that Captain Evans was not liable for the damage done, inasmuch as the vessel was in the hands of a pilot at the time, and she was compelled, by the Marine Act, 1867, to take on a pilot. Mr. Hart, for the other side, contended that the case, as stated, did not sufficiently show that the vessel was compelled to take a pilot, nor did it clearly show that the damage arose wholly from the fault of the pilot. His Honor reserved judgment. The Court then adjourned. RESIDENT MAGISTRATE’S COURT. Monday, March 11. (Before J. C. Crawford, Esq., R.M.) FALSE PRETENCES. Robert Jacobson, alias Count Andrd Mouravieff, was charged, on remand, with having, on the sth March, at Pahautanui, obtained, by means of a valueless cheque, from Henry Hillen, a pony and mare, and also £5 Is., with intent to defraud. Prisoner was undefended. Mrs. Bouisa Caroline Hillen, wife of the prosecutor, said her husband kept the Pahautanui Hotel. At the beginning of the present month accused came to stop at the hotel, and represented himself as belonging to the Russian Embassy, and stated that one object of liis mission was to gather information and write a book on New Zealand. He lived in high style at the hotel, always having extra dinners, with poultry and champagne. He also received a great many visitors during his stay, and took a fancy to a mare belonging to witness, which he purchased. He gave witness two cheques, each for the sum of £5, in payment of his account, but on the cheques being presented at the bank for payment, they were dishonored. He had also given a cheque for £2O, and received £5 Is. balance in cash. It was on his representation she took the cheques, as he informed her that he had £2OO in the bank to his credit. Alfred Godfrey Martelli, ledger-keeper in the Union Bank, Wellington, deposed to the accused having no account at that bank. Witness knew accused very well by sight. He formerly had an account at the bank in the name of Jacobson. There would be £lO to his credit on the 23rd instant, of which they had been advised from their London office. This concluded the case for the prosecution, and prisoner said he had nothing to say at the present stage of the proceedings. Accused was then charged with having, on the 4th of March, at Pahautanui, obtained from Thomas Robinson, by means of a valueless cheque, an opera-glass, a watch and chain, a saddle bridle and horsecloth, a pair of spurs, a waterproof coat, a pair of leggings, two pairs of socks, and a woollen shirt. Prosecutor, a laborer, said he made the acquaintance of accused at the Pahautanui Hotel, and he took a fancy to an opera-glass belonging to witness, which the latter agreed to sell him for £5, and did so. Prisoner then said he wanted a watch, and described one which he had seen in Wellington, marked at £l3, as having taken his fancy. Witness promised to purchase it for him when he went to Weliino--ton, and on a subsequent date he went to town and bought it. He handed it to accused, and afterwards let him have several other things including a waterproof cloak, saddle, bridle* stockings, and leggings. As payment for these articles, he gave witness a cheque on the Union Bank for £3l 2s. 5d., and this on being duly presented was returned marked “ no account.” He represented himself to be Count Mouravieff, of a Russian nobleman’s family, and he said he was reporting for the Government on the general aspect of the colony. He also showed witness a letter purporting to come from bankers in the Strand, London, "and stating that £2OO had been paid to his account at the Union Bank, Wellington. It was on these representations witness let him have the articles mentioned. Prisoner was fully committed to take hi 3 trial on both charges at the next criminal sessions of the Supreme Court. HORSE-STEALING. Richard Buckridge and William Neill were jointly charged with having, on the 20th February, IS7B, at Manawatu, stolen two horses, the property of Alfred Edward Capper. Mr. Buckley defended accused. Prosecutor stated that he resided at Manawatu, in the province of Rangitikei. He had lost two horses, which he described, both bearing brands, and one having his tail docked. A description of the animals had been forwarded to the police. Cross-examined : The brand was that of a native, now dead. Detective Farrell deposed to having been informed regarding the horse-stealing, and on the Ist instant he saw some horses answering the description being shipped iu a steamer at the Wellington wharf. They were being shipped

in the name of John Oswin, Christchurch. He seized one of the horses.

John Osborne, horse-dealer, residing at Christchurch, said he came to Wellington and went to the Hutt on the 24th nit. for the purpose of buying horses, having heard that there were some for sale there. He saw the prisoners, who showed him horses, which they said were for sale. There were fifteen or sixteen of them, and prisoners asked £7 10s. each for them. Witness asked what they would take for the pick of six, and Buckridge replied that they wanted to sell the lot. They then asked £6B for twelve horses, and early next morning, before going away, witness told them he would toss them whether he would give £66 or £6B. They tossed; witness won, and gave a cheque for £6B to Buckridge, and received £2 back. The cheque produced was the one given by witness. It had not been paid by the bank. On the same day witness saw prisoner on the road to Wellington, and asked if they were in a hurry to see whether the cheque was right. He identified one of the horses in the Courtyard as part of his purchase. Its tail was different, having been bitten short by calves or foals. This concluded the evidence adduced by the police. Mr. Buckley submitted that there was nothing to warrant Neill being sent to the Supreme Court. His Worship was of opinion that there was sufficient to commit both men for trial. After the usual caution had been administered, Buckridge said he had purchased the horses from a native named Tawhera, and Neill had nothing more to do with the horses than help to drive them down. Prisoners were then charged with having on the 20tli February stolen a bay mare, the property of Rewi Pata Ivakariki. Prosecutor stated that he last saw the mare running at Kalcariki in January. He it in February, but had authorised no one to take possession of it. Witness heard from the police that the mare was in Wellington. Prior to this the horse had been missing for some time. Prisoners were fully committed for trial on each charge. LICENSING COURT. Tuesday, March 12. (Before Messrs. Crawford, chairman; Ivebbell and Moore, commissioners.) TRAMWAY HOTEL. Application was made by Mr. Fitz Gerald, on behalf of Mr. C. Moody, for a license for the Tramway Hotel, Adelaide-road. He stated that the house was situated in the centre of a large and rapidly increasing suburb, and was distant 500 yards away from the nearest hotel —the Caledonian. A numerously signed petition had been got up in its favor, but it had been mislaid with other petitions. He then proceeded to call witnesses. A. G. Pilmer, architect, gave a description of the building, which he said contained every accommodation for an hotel. The Rev. Mr. Coffey presented a petition against the granting of the license, and crossexamined witness regarding the number of rooms in the hotel. Applicant produced a letter from Dr. Watts, who stated in it that although he was opposed generally to the increase of hotels, he was of opinion that the Tramway Hotel would be a boon to the neighborhood. Mr. Moody stated the number of houses in the locality, and the rateable value of property. Cross-examined by Mr. Coffey : The Caledonian Hotel was situate about five minutes’ walk from the Tramway Hotel. Witness had built the Newtown Plotel, and sold it at a profit of £6OO. He also built the Star Hotel, and sold it at a profit of £SOO or £6OO, but the conditions of sale were not yet fulfilled, mid he had hitherto received no actual profits. He hoped to make at least £IOOO on the Tramway Hotel. There were ten bedrooms in it, though one was used as a bathroom. Inspector Atcheson was called and asked by the Rev. Mr. Coffey whether his experience of hotels had not taught him that, no matter how well a house might be conducted by the proprietor, it would still cause au increase of drunkenness iu the surrounding district ? Mr. Fitz Gerald having objected to the question as irrelevant, The Chairman said the Court could not entertain abstract questions of words, and they must guard themselves against getting into controversies which did not directly affect the application under consideration. The Court had merely to see that the requirements of the law were fulfilled, and to use their own discretion as to whether any particular hotel was needed. Inspector Atcheson said he did not consider that another hotel was needed on the Adelaideroad. The Tramway Hotel structure was an inferior one. The Rev. Mr. Coffey quoted the remarks made use of by the chairman at the last sitting of the Court, regarding their being too many drinking-shops, and it being the duty of the Court to provide accommodation for travellers. He was startled with that last remark, because he could not find in the Licensing Act any clause which gave them discretion to issue as many licenses they pleased, merely to accommodate travellers. Mr. Crawford : We can license every house in town if we choose. The Rev. Mr. Coffey did not dispute their power, but contended that the Act did not contemplate any license being issued to provide lodging-houses. To say that they would grant licenses to houses which provided accommodation to boarders, was a serious misreading of the Act. Mr. Crawford : Your argument leads up to this : that we should license grog-shops, and not hotels. Mr. Coffey: No; you have tied your hands by declaring that there are too many grogshops. You provide accommodation for lodgers as if they were dangerous characters. I say, why not let the law of supply and demand regulate boarding-houses ; it regulates ether

shops. Mr. Coffey then went on to say that the vicinity of the Asylum was an objection to the hotel. There was no finality in the rule laid down by the Court, as a man had only to build a better hotel than any existing in the neighborhood, and he would get a license. Mr. Crawford: No; not at all. Mr. Fitz Gerald having replied, Mr. Crawford said the Court considered the application should be treated in the same manner as Mr. Duff’s. The bedroom accommodation was insufficient; but so far as they could pledge themselves the Commissioners would grant the license on some future date if the bedroom accommodation were increased. The license would, for the present, be refused. The Court then adjourned. ENGLISH CIRCUIT CUSTOMS. (From the Leisure Hour.) Many of the old circuit customs are amongst the “ things that were.” The writer, in an experience of not more than thirty years, can recollect when in every garrisoned town the soldiers could not leave their quarters without the leave of the judge had first been obtained, and to procure which the officer first in command, in “ full fig,” with adjutant attending, waited at the judges’ lodgings on the commission day for the requisite permission to loose his men from barracks. He presented to the :udge for approval or alteration the table of rations accorded to the troops, and handed in the surgeon’s report as to the health of the soldiers. I he late Lord Chief Justice Campbell some twenty years since passed a Bill through Parliament which annulled this old custom. The Governor of Lancaster Castle and the Mayor of Lancaster, until reeentlv, severally gave up their keys and staff of office to the assize judge when he visited that town; while both at Appleby and at Chester the judges resided during the assizes in the castles themselves, and every night, after “locking up,” the keys were brought to them as governors of the fortresses. Durham is now the only town in England which receives the judges into a castle, and a grand one, too, with accessories of aucient carved oak, tapestry, and most ghost-like state-rooms. The Mayor of Banbury, accompanied by several members of the corporation, until lately presented themselves at the judges’ lodgings at Oxford, and offered the judges Banbury cakes, wine, six long clay pipes, and lib. of tobacco, accompanying the gift with many complimentary expressions. This custom has been recently discontinued. Until 1859 the ancient Corporation of Ludlow were accustomed to come to the door of the judges’ carriage, as they travelled by rail from Shrewsbusy to Hereford, and to offer them cake and wine, the former upon an ancient silver salver, the latter in a “ loving cup” wreathed with flowers. The late Mr. Justice Hill, travelling the summer circuit in 1858, stopped this old English practice, by informing the Mayor of Ludlow, by previous letter, that, owing to the delay (!) occasioned, her Majesty’s judges would not stop at Ludlow to receive the wonted hospitality. The mayor and corporation were offended, and did not offer to renewthe ancient courtesy. Weobserve, however, that Baron Huddlestone has revived the custom, and lunched in state with the Mayor of Ludlow on the recent Oxford Summer Circuit, while travelling between Shrewsbury and Hereford. Not long before the time just adverted to, the judge invariably took his carriage on circuit, and even rode in it frequently on the railway truck, with his marshal, in solitary grandeur. He posted in it also from town to town, drawn by four horses, and by aucient custom no one was allowed to pass him on the road. When he reached the border of the county in which his assize was to be lioldeu, he was met by the sheriff with full cavalcade of javelin men, trumpeters, &c., and stepped from his own carriage into that of the high sheriff, having previously, whilst journeying, donned his wig and black silk gown. The bar might not ride in any public conveyance, nor put up at any inn or tavern in the assize town. All this is now abolished, and the ruthless “ iron horse” and palatial hotel have levelled all such distinctions, just as the recent provisions of the Judicature Bill have plucked the venerable “coif” from the judge’s wig, and tom the “ serjeant’s tippet ” from his shoulder ! Who shall say when the abolition of the solemn “opening of the commission” and “churching of the judges” shall not in its turn come about ; the high sheriff, javelin men, and trumpeters he dispensed with ; curled horsehair and ermine be amongst the things of the past ? THE WHITAKER LIBEL CASE. (PER PRESS AGENCY.) Dunedin, Monday. The libel case, Regina v. Jones, came on to-day. Mr. Haggitfc appeared for the prosecution, and Messrs. Rees and Hislop for the defence. George Jones, of Oamaru, journalist, was indicted for that he, contriving and unlawfully, wickedly and maliciously, intending to injure, vilify, and prejudice one Erederick Whitaker, and to deprive him of his good name, fame, credit, and reputation, and to bring him into public contempt, scandal, infamy, and disgrace, on August 13, 1877, unlawfully, wickedly, and maliciously did write and publish a false, scandalous, malicious, and defamatory libel, containing divers false, scandalous, malicious and defamatory matters of and concerning the said Erederick Whitaker, who on the day and year aforesaid held and filled the office of At-torney-General for the colony of New Zealand, and of and concerning his connection with a certain Bill, then already prepared and intended to be introduced by the said Erederick Whitaker, in the House of Representatives of the said colony of New Zealand, intituled “An Act to amend and consolidate the law i-elatiug to the Native Land Court,” the said libel being in the words and figures following, that is to say :—(Then follows libel with iimendoes.) The said ! George Jones, knowing the said defamatory libel to be false, to the great damage, scandal, and disgrace of the said Erederick Whitaker. There were two pleas, first not guilty, and second pleading justification, alleg.

ing that Whitaker’s dealings as agent for himself and others in obtaining native lands and waste lands of the Crown were to the injury of the public. Objection was raised to the plea by Haggitt contending that it was no answer to the charge, it should not be received. He entered a demurrer, and the whole afternoon was occupied in arguing the point. At five o’clock his Honor reserved his decision till tomorrow morning. Tuesday. In Jones’s case the Judge upheld the demurrer to jdea, and the case was adjourned, till to-morrow in order to allow defendant time to plead afresh. ; W ednesday. The plea in the libel case Whitaker y. Jones will be argued to-morrow. Counsel for the prosecution notified that lie would demur to the plea, and the matter will probably be discussed before two Judges. Thursday. The argument on the demurer raised to defendants’ second plea of justification, in the libel case against Geo. Jones, junr., was heard in banco to-day, before two Judges. Mr. Haggitt appeared to support the demurrer, and Mr. Rees and Mr. Hislop in support of the plea. Mr. Haggitt argued that the demurrer to the plea must be sustained on the following grounds: —1. That it does not in the manner required in pleading justification to an order for slander or libel at the time of the passing of statutes 6 to 7, set forth the facts by reason whereof the publication of the alleged libel was justifiable. 2. That the plea introduces and attempts to put in issue matters ' not alleged in the indictment, nor necessary to be alleged, in order to support the plea itself, aud seeks to justify the libel complained of in the indictment by accusing Mr. Whitaker, the person mentioned in the indictment, in general terms, of acting illegally and fraudulently in a number of land transactions, some of which appear by the plea to have been connected with native lands, whilst others are shown to be quite unconnected with native lands and some transactions are not particularised with any reasonable degree of certainty, whilst none of them are referred to in the article complained of. 3. That the plea does not cover the whole libel. 4. That the plea is informal, uncertain, and argumentative. 5. That the plea does not set out any particular facts by reason whereof it was for the p-ablic benefit that the article should be published. The Judges intimated that they would give their decision at noon on Saturday. The jury trial commences on Monday. ME. BARTON AND THE BENCH AND BAR OR NEW ZEALAND. (From the London Law Times, November 10.) “ The Australian newspapers, or at least some of them, have been occupied in commenting upon several unpleasant incidents which have occurred of late to disturb the harmony and good feeling that are generally expected to be found in the relation of the Bench and Bar. As we gather from the details furnished by those reports, it appears that Mr. Barton, a member of the New Zealand Bar, made certain charges against the Chief Justice of New Zealand iu October, 1876, demanding a Government inquiry. Having sent a letter to the Chief Justice informing him of this charge, Mr. Barton was called upon to answer for an alleged contempt of Court. His answer was successful, and he subsequently withdrew the charges made. So far so good. Mr. Barton, however, alleges that after the withdrawal of those charges, instead of meeting with courtesy, or even justice from the Bench, he ‘ foxxncl himself,’ to use his own words, ‘ exceptionally treated by the Judges just as before,’ and found also that endeavors were made to cause him to he looked upon ‘ as a person to whom insults might be offered, and upon whom imputations might be cast with impunity, not only without rebuke, but with a consciousness that such insults and imputations were not displeasing to the presiding Judge.’ He complains of sneers and disparaging remarks coming from the Bench, and what amounts to a vexatious exercise of judicial discretion in questions of costs. Under these circumstances he determined to seek relief by petitioning the House of Representatives, and prayed, first, an inquiry into the allegations made on his part against the Judges; and secondly, that if the result of such enquiry showed that justice had not been impartially administered, an address should be presented to the Governor, praying for the removal of the offending Judge. The case upon which the most stress is laid in the petition is as follows At a trial before a special jury, Mr. Barton’s firm represented the plaintiff, and obtained a verdict. During the trial the plaintiff acknowledged a payment to the amount of about £2O. The jury awarded the plaintiff £lO5 14s. 9d. for work and labor, and £l5O for property of the plaintiff appropriated by the defendant. After the trial the defendant’s solicitor applied that the above sum of £2O odd should be deducted from the amount awarded, a request which the plaintifFs solicitor refused to grant. The defendant then took out a summons in Chambers to compel the amount to be deducted. The Chief Justice dismissed the summons, and in doing so is reported to have said that the plaintiff, ‘ though not in law compelled to do so, ought iu common honesty to have allowed this deduction.’ He refused to allow the plaintiff’s costs. Unfortunately, after this petition was sent to the House of Representatives, the members of the Bar, many of whom were also members of the House of Representatives, were so forgetful of what was due to their position, that they presented an address to the Judges, in which, while confessing that ‘ they are ignorant of its statements (namely, those in the petition), except from common rumor,’ they stated they had no sympathy with such a px-oceeding. Such an address can only be characterised as being most ill-advised, and can be compared only with those comments upon a case which proceed from the mouths

of that large class of persons who decide offhand, without so much as considering the evidence. It would, too, have been more dignified on the part of the Bench if the Judges had checked this excess of zeal. The petition was discharged, after a warm debate, on the ground that the allegations, even if proved, were not of a character to justify its prayer. We have nothing to say with regard to the decision come to. It is sufficient for us to remark that all this ill feeling might have been completely allayed by the exercise of a little moderation on all sides. If advocates have sometimes to bear the sneei'S or disparaging remarks of Judges, it is no less true that Judges are themselves sometimes condemned to hear inane or frivolous arguments. How the case between Mr. Barton and the Judges stands in its true merits it is, of course, utterly impossible to say ; but the petition, take it in its greater force, does not appear to indicate anything more than a petty spirit of revenge, acting upon the Judges’ discretionary power. Assuming that such a spirit prompted the Judges, of which, of course, we have no proof whatever, it would be a very questionable proposition to say that sufficient ground existed for removing them from their high office.”