SUPREME COURT.

New Zealand Times, Volume XXIX, Issue 4154, 14 July 1874, Page 3

SUPREME COURT.

CRIMINAL SITTINGS. Monday, July 13. (Before His Honor Justice Johnston.) SHOOTING A HORSE. Alexander McDonald, who pleaded guilty at the ordinary sitting of the Court to shooting a horse, the iiroperty of Mr. Andrew Young, was brought up for sentence. The Crown Prosecutor (Mr. Izard) and Mr. Travers (for the prisoner) were present to watch the proceedings. His Honor intimated that he had postponed sentence immediately after hearing the case, in order, as he stated at the time, to give counsel an opportunity, if they so desired, to make any further statement, or bring forward any additional facts connected with the case, which might induce him either to mitigate the punishment to be inflicted, or alter or modify the opinion he then held, which was of course founded upon the evidence given in the case. Mr. Travers said he had not been instructed to say anything further in the matter. Mr. Izard informed His Honor that Mr. William Fox was present, and could, if His Honor desired it, give the Court some information in regard to the state of matters in the district in which the crime was committed. His Honor expressed the opinion that it should not be leftto the Court to say whether or not such evidence should be tendered, if it were at all important ; it was the duty of the prosecution to have, produced it during the hearing of the case. However, it had been admitted in the evidence submitted that the land upon which the offence was committed was Native land, still owned by the Maoris, although a Government road had been made through it. It was also stated that the piisoner had tendered on behalf of the Native owners, for making the road, which went to show that they were agreeable to it, or at least that they entertained no objection to the road being made. Under the 71st section of the Act under which the prisoner was tried, the Judge had power to vary the sentence, so that instead of imposing upon him a long term of imprisonment, he might inflict a lesser punishment, and exact sureties on his behalf for the maintenance of the peace, after his term of imprisonment had been served. Mr. Travers said it would bo very difficult for a person in the position the prisoner now occupied to find sureties such oa were required by the Act, but possibly His Honor might impose an alternative sentence, so that in the event of the prisoner failing to find the necessary sureties he should be compelled to undergo a longer term of imprisonment. His Honor said ho could not frame the sentence of the Court in such a manner, and then proceeded to interpret the language of the statuto bearing upon the point. Mr. Izard reminded His Honor that it was now admitted that the land upon which the horse was shot was not Native land. His Honor said that gave another complexion to tho case, which changed the impressions created in his mind by the statement that the road was on Maori land. Mr. Travers said that as the offence was committed on a bridge over water, it could not be asserted positively which land was nearest, It was very certain that a few steps furthor would havo brought the horse on to land belonging to the Natives., His Honor remarked that tho admission was not at all favorable to the prisoner, but possibly

he might feel justified in abbreviating the term of imprisonment if the prisoner were prepared to find substantial security for subsequent good behaviour. His Honor asked Mr. Read, Governor of the Gaol, whether there was any provision for classifying prisoners in the gaol ? Mr. Read replied that hitherto there had been no such provision, nor was there at present; but the Provincial Council had voted a sum for the enlargement of the gaol, such as would enable him to k<ep prisoners convicted of less heinous offences separate from those of the worst type. His Honor, after reiterating the opinion that a radical reform in the arrangements of the gaols of the Colony was an absolute necessity which had long been neglected, proceeded to explain that the case had caused him great anxiety on account of the large discretionary power which the law placed in his hands in meting out punishment for such sn offence as that to which the prisoner had pleaded guilty. First, he had to consider the necessity of suppressing crime of this character ; second, the frequency of the offence ; and, third, the character of the person committing the crime. The consideration of all these circumstances gave the case an aspect of considerable difficulty, and he had taken the fullest amount of time to consider the duration of the sentence to be passed, and also to give opportunity to counsel for the prisoner and the gentleman who conducted the prosecution in the interests of the public, to produce proof of extenuating circumstances or aggravating circumstances an the case might be. So far, however, he was still in the same position as he was at the conclusion of the previous hearing. The prisoner admitted that he shot the horse, but he denied that he entertained malice toward Mr. Young. At the former hearing he pointed out that according to the law of she land it was not necessary to prove actual malice against the owner of the horse ; but it was sufficient that the act was done voluntarily and in an illegal manner. On those jrounds he (the Judge) refused to accept the plea until the prisoner had had an opportunity of consulting with his legal adviser. At the same time the prisoner made some observations, apparently with the object of justifying his action, or at least of showing something which should have the effect of extenuating the penalty. In point of law there could be io justification, because, the prisoner had no right to take the law into his own hones. Even had he been acting in defence of his own freehold, his own garden, or his own house, he would not have been justified in acting as he did. An owner of the soil must first warn trespassers that if they proceed further they run the risk of incurring certain consequences, and then he must use only such a reasonable amount of violence as is necessary i o remove them. But no warning whatever wa? given to Mr. Young. It was not even- suggested by prisoner's counsel that such had been the case. Had the conduct of the prisoner bean simply that of a rash, reckless man, unaccustomed to control his passions, who gave way momentarily in the heat of temper, whose vanity had been wounded by some supposed slight, and who acted on the impulse of the moment, he should have felt justified, however shocking such an act might be to a well-regulaiedmind, in passing a very nght sentence. Unfortunately, however, the acts of the prisoner could not be thus regarded, for it seemed that he had had a discussion with the Natives about this matter, and in vindication of his offence he sfeited that he did this act for the purpose of pi-eventing the Natives doing something more disastrous. That only aggravated the offence, for having done all this and having met Mr. Young in the most cordial manner, and gone so far as to solicit his driver to take him in the coach to Palmerston, the prisoner had act?d most treacherously, and such a wicked act aggravated rather than mitigated the crime. In a somewhat similar case which came before him in a neighboring Province he had sentenced the offender lightly, because there was evidence of his general respectability of character, and it was shown that the man acted hastily and without malice prepense. Their was an absence of general recklessness in the man's character, but in the present case there were recklessness and treachery jwlded to illegality. He alluded to this matter because it was customary to draw comparisons as to the difference of sentences without understanding the special circumstances which govern each case. The prisoner in the present case had set himself up as the vindicator of the Maoris as against the Government, but the simple fact could not be ignored that persons of this class who possessed a power whi ch they had not sufficient wisdom to exercise in a proper manner were a great hindrance to the enlightenment of the Natives, and the progress of the country, and gave gret.t difficulty to those who were engaged in promoting its welfare and advancement. He would be compelled to pass a substantial sentence, because the circumstances of the case did not admit of his adopting any other course. It was farthest from his thoughts to display any vindictive feeling in the matter; on the contrary, he thought he could appeal to the people of Wellin,-jton to bear him out in the statement that on no occasion since he had had the honor to preside on that bench had his judicial actj been tinged with vindictiveness ; but, unpleasant as it might be at times, a Judge should never shrink from the performance of his duty to the community as a whole. The sentence he was about to deliver might appear severe, but it was justified by the circumstances. As to the manner in which it might be carried out, he was not responsible for that, for he had constantly advocated a change in the gaol arrangements, by which prisoners convicted of different offences might be classified. Considering the position occupied by the prisoner, and the probability that he would be able to find sureties for his future good conduct, he would be sentenced to the shortest period of penal servitude allowed by law, namely, three years. His Honor also ordered that before the prisoner's release, he should enter into his own recognizances in the sum of £SOO to keep the peace, and find two sureties in the sum of £250 each. The prisoner was then removed.

CIVIL SITTINGS. BORT V. BOOTH. Mr. Travers appeared for the plaintiff ; and Mr. Izard on behalf of the defendant. This was an action for tresspass upon la ad of tho plaintiff, and damages for cutting and taking timber therefrom. Defendant justified this by his right as purchaser of the timber, under agreement. The main point of the case was, whether an agreement entered into for the sale, to tho defendant, of the timber in question, by the plaintiff's son, who had been acting as agent for his father in other particulars concerning the land from which the timber was taken, constituted the bargiin a legal one, and by which tho plaintiff must abide and be responsible for, or not. The following evidence was given : Thomas Burt, plaintiff, stated: I am lessee of section 116, Upper Hutt. In February last there was a large quantity of standing tinber on the land, consisting principally of iratai and totara. I did not visit tho section during that month, but about three weeks ago I went to the section and found that all timber of any value had been cut down. My son, William, who keeps a store for me at tho Upper Hutt, had authority to look after tho section merely in the capacity of servant. There wiw no manager there ; that is to say no manager but him. On the 9th February I wrote a letter to Mr. Booth, giving him notice that unless ho gave compensation for the timber removed, I should proceed against him. I nover gave "Air. Booth authority to cut the timber, nor did I give my son any authority to dispose of the timber. My Bon may have received cut timber from Mr. Booth, but he did not receive it by authority from me. Cross-examined by Mr. Izard : My son has been managing my store for about twelve months, certainly not for two years. I can;iot say whether, previous to the causo of this action arising, my son had pven authority to anyono to cut timber. I never gavo him authority to do so, but I havo heard that Jny son gave authority to a man named Rouse to cut timber off the soction for piles. My son, at any rate, never accounted to mo for any timber or standing bush disposed of from

the land. My son has sold hay off the land according to my instructions, but I am not aware that my son, in selling the hay, mentioned that I was the owner of the land. He has taken in cattle to graze, and has accounted to me for the moneys accruing therefrom. Previous to my occupancy of the land it had been in the possession of Mr. Plhnmer, Mr. Haslem, and Mr. Lawrence, all saw-mill proprietors, who had cut a good deal of timber from the land. I had cut a good deal of timber myself for the purpose of fencing the river boundary. Henry Burt, brother of the plaintiff, stated that in November last there were about sixty totara and seventy matai trees on the section, and several white pine trees in addition. These trees have since been cut down by men who said they were in the employ of the defendant. I told my nephew that I had seen defendant's men cutting clown trees and taking away the timber, and that they had no right to do so. Cross-examined by Mr. Izard : I saw the timber being removed, and told the men that my brother, the plaintiff, would repudiate the contract entered into by my nephew. I told them there would be no objection to the removal of the dead matai, but that they had no right to cut the totara. I know that the land had been occupied for some time by sawmillers, who had picked the best of the timber. I don't know whether House cut any standing timber to get the piles I saw. No fencing has been put up on the land since Mr. Booth went there.

John Robinson stated : I am a farmer, but was formerly a. saw-mill proprietor for some 12 years. I have noticed standing timber on the land before my visit to the section with the Burts. The timber was totara and matai. There were a good many timber trees. When I went again the timber was all gone, and Henry Burt pointed out to me the stumps and tops. I made a calculation from a memorandum taken on the spot as to the quantity of timber removed. There were upwards of 38,000 feet of totara and of matai, and 3,000 feet of white pine. The value of the trees was 2s. 6d. per hundred feet for totara, Is. 6d. for matai, and Is. for white pine, as they stood growing. The trees I saw were all fresh fallen.

Cross-examined by Mr. Izard : I saw the bush some time before I went with Mr. Booth. I had some timber of my own that I sold to Mr. Booth, for 3,000 feet of good sound timber, valued at 10s. a hundred at the mill. I got my land cleared by the sale, and thought I made a good bargain. I cannot give any estimate of the number of trees I gave in exchange for the timber. About fifteen years ago, Mr. Maby cut timber on the section in question ; then Mr. Himmer; then Mr. Haslem; then Mr. Harris ; Mr. Lawrence then worked it; and then Mr. Booth took it. These different sawmill proprietors cut the timber pretty closely. They used to pick the best. The timber was not quite all gone. I wanted to buy, but was refused, and did not examine it. Mr. William Burt, jun., has not dealt with me about the timber. Re-examined by Mr. Travers : I am quite sure of the value of the timber I dealt in with Booth. Thi3 closed the plaintiff's case. Mr. Izard reviewed the case for the defence, and called— William Booth, jun., who stated : I am a partner in the firm of W. Booth and Co. The defendant is my father. Last year our firm, consisting of four partners, were carrying on business at the Upper Hutt, as sawmill proprietors. I negotiated for timber with Burt, jun., at his store. My father was present at the time. Wo all went together to look at the timber before making any agreement. We did not go over the whole of the section, but went to a place from which we could see it all. We saw the timber, and talked about it. There was both growing and felled timber on the ground. [An argument here arose as to whether the term "timber" included both growing and felled trees. His Honor held, after some discussion and reference to authorities, that it did.] Examination continued : I wrote the agreement produced. [Copy of agreement.— " Memorandum cf agreement made this second day of September, between Mr. Wm. Burt and Messrs. W. Booth and Co. The aforesaid William Burt agrees to allow the timber now on his land to be fetched away by W. Booth and Co. at their convenience. And the said W. Booth and Co. agree to give in payment 3000 feet of picked offal timber, cut at the mill, and to keep the fences in good condition while bringing the same away. Signed, W. Burt, W. Booth and Co., W. Booth."] In pursuance of this agreement wo went on the land and cut matai, totara, and white pine, which we afterwards removed, with timber already felled. The totara trees were almost all saplings, from a foot to fifteen inches through, of value for some purposes, but not as totara timber. It was fit for scantling, &c. The larger trees were lying on the ground, and not of much use.. It did not pay us to take a\yay the dead timber ; vre lost by it. It was a benefit to the ground to clear away this dead timber. We got about 25,000 feet of sound timber from the section, valued at about lis. or 12s. per 100 feet all round; the cost was not less than from 9s. to 10s. The average value at the mill of picked offal timber is 6s. per 100 feet. The first intimation that I had from the plaintiff of any claim was about the 9th of February. Previous to this notice our men had been cutting for more than two months. I had a conversation with Mr. Henry Burt, and he said nothing about any objection to cutting the timber. Some time before Christmas I had dealings -with Mr. W. Burt about some standing grass on part of the section referred to. He said he had not thought of selling it, as he had arranged with a man to cut, thresh, and stack it at 30s. per acre. The dealings came to nothing, as he wanted £3 per acre. He did not say that his father had anything to do with it. I had other dealing with the son about this land. Some time before Christmas I asked W. Burt what he would charge per head per week for agistment of some bullocks. He only agreed for two bullocks at Is. 3d. per head. At this time he said nothing about the land being his father's. I knew nothing about his father until the notice of prosecution came. I saw Mr. Rouse upon the land, preparing piles for removal. I don't know that he felled timber. He crosscut timber both before and after we had anything to do with the land. When we left the fences were in good order. Mr. W. Burt came to the section about the middlo of December for timber. He said, " I've got a lot of timber to get out." I said, " Yes, about 3,000 feet, I suppose." He ssid, " Which can I have ?" I told him to pick whatever would suit him best from two or three heaps of sawn timber lying before him. He took- what he wanted, and called me to count it, which I did, debiting him with it in the books. He took about 208 feet, and removed it to the back part of the store. Before he left the Upper Hutt I gave him notice that the remainder of the 3000 feet was at his disposal. He did not take it. It is customary to cut timber on "tythe." Incutting a, good bush a " tythe" of 6d. per 100 feet is usual. A good marketable totara would run from 1000 to 1500 feet of good timber. For inferior bush the " tythe" allowed is much less. The 3000 feet of offal timber was quite as much as the timber we got was worth. At this stage of the proceedings Hia Honor adjourned the Court for thirty-five minutes. On'resuming, the witness, cross-examined by Mr. Traverß, stated : All timber that was totara and not heart was treated as red pine. There was very littlo of matai on the ground, but some standing that was useful. I was on the ground six or eight times. We left timber on the ground, some of which was totara, some matai, and some white pine. We left nothing that was available for timber. Wo do not keep special accounts of results of different purchases. Mr. Robinson's timber was about the samo valuo as Burt's timber. When I dealt with Mr. William Burt I took him foe the principal in the transaction. The accounts of the store wero rendered in the name of Thbs. Burt, but I did not know that ho was connected with William Burt. It cost 3s. 9d. per hundred to send our timber into town. We sold totara for 17s. per 100 feet to the timbor merchants. Red pine we got lis. Od. for, and matai 12s. 6d. The cost of delivery in town was included in the cost estimated by me just now of os. to 10s, per 100 feet. _ We got about

25,000 feet off the whole section. I have been in the mill-sawing business for about two years. I have not worked in the mill. Have' mostly bought and sold. "We could cut about 15,000 feet a day with good timber. Re-examined by Mr. Izard : Scarcely any of the timber lying on the ground was worth cutting up. A few of the standing trees produced good timber. Wm. Booth stated: I am the defendant in this action. I never saw plaintiff until to-day that I know of. I did not know of his existence until I received the notice of action. I had previously dealt with W. Burt about the timber in question. He said nothing about his father in the matter. I was present when the arrangement was made with my son and W. Burt. The latter said nothing about the ownership of the land. I had been cutting timber before Mr. Henry Burt came up. When he came he said, " You must stop cutting " I replied I had nothing at all to do with him, and would .not take any notice of him. He did not say. it belonged to his brother. He said wo might take the matai, but mustn't touch the totara. There were about from 20,000 to 25,000 feet of good timber cut from the section altogether, which was worth at our mill about 9s. per 100 feet. The value of picked offal timber at the mill is about 6s. per 100 feet. The bush in this instance had been cut very close for fit timber. I do not know whether any fencing has been done since we left the land. Mr. Rouse cut timber for some fencing which he put up whilst we were there—some forty or fifty chains.

Cross-examined by Mr. Travers : There is not much timber on any of the sections about that neighborhood. The stuff we cut down would not have been of much use for fencing. Material of any kind is difficult to get in the locality. • Benjamin Sewell stated : I am in the employment of Booth and Co., and have been for some time. I saw the timber on the section in question, and helped to cut it. There was about 20,000 or 25,000 feet of timber cut by Booth and Co. off the section, consisting of matai, white and totara, worth about 9s. per 100 feet at the mill. The profit would be about 2s. per 100 feet on such timber. I think 3000 feet of offal timber was the full value of the timber. I would not give any tithe on such timber. My estimate of the 25,000 feet of timber is formed from the number of logs put into the mill, which I should think was about 150. The average size of the trees would be from fifteen to eighteen inches through in the centre of the log. There were some larger. They would average about 200 feet of good timber. Very little of it was good for fencing. W. Burt stated : I am a son of plaintiff. I keep a store for my father at the Upper Hutt, and am managing man for the place and land. I had some dealings with Booth about the land, and showed him the timber. The agreement produced, marked D, is signed by me. I did not say anything about the ownership of the property when making the bargain. I had not dealt with any one previous to this agreement. I dealt with Mr. Booth about the grass in a part of the paddock, and named a price. I had permission from my father to sell it. I dealt with Booth about cattlegrazing, and also with other people. I had permission from my father to do so. I knew that my father was bound to cut so much timber every year, and he told me to sell the matai that was lying on the ground. I keep accounts between myself and my father. I got some timber from Booth, and used it for placing hay upon. In my accounts I never entered the offal timber. I did not take the timber which I placed the hay upon on account of the 3000 feet named in the agreement. I did not enter in the accounts between myself and father the grazing. Cross-examined by Mr. Travers : I had no authority from my father to sell the growing totara timber on the land. The transaction between Bouse and' myself was for some totara logs for clearing some of the ground. He also did some fencing, which was paid for in goods but not timber. I had authority from my father to graze cattle on the ground, bnt no authority to sell the growing timber on the section in question. When Booth went on the ground there were about fifteen acres of timber growing. When I went with Booth to the section and said I supposed he knew the totara wasn't included, he said, "oh ! he knew all about it." I said my father would not like him to cut the totara. He said that I had signed the agreement. After getting the note from my father, Booth came and asked me if I was going to unlock the gate. I said no. He said " you had better say, 'here Booth, cut it all, and I'll give you all my custom.' " He then took off the hinges of the gate. I was merely looking after the place. Be-examined : I could not when my father got the lease to his property. James Bayliss stated : I live at Upper Hutt, and occupy land adjoining Burt's. I have had dealings with Booth and Co., and sold them timber. My land had been picked through by saw-mill proprietors in the same way that Burt's had been. I was satisfied with my bargain. This closed the evidence for the defence.

Mr. Izard then addressed the jury at some length for the defence, dwelling chiefly on the point that the plaintiff had placed his son in such a position with regard to the store business and supervision of land, negotiating for the sale of grass, agisting stock, &c, that defendant or any one would naturally recognise him as an authorised agent, with power from his father to deal about the timber on the estate in the same manner that he did with other property. Mr. Travers, in addressing the jury on behalf of the plaintiff, amongst other arguments contended that there was no evidence to prove direct agency in the matter of the timber in question. His Honor then directed the jury on the following issues : 1. Was the plaintiff, at the time of the committing of the alleged trespasses, in the declaration mentioned in the lawful possession of the land in the declaration mentioned ? The jury would find in the affirmative. 2. Did the defendant commit the alleged trespasses, in the declaration mentioned or any of them ? In this Mso they would reply yes. 3.' If so, did ho commit such alleged trespass with the leave and license of the plaintiff 1 This was a matter for the jury to decide upon. 4. Was one William Burt, in the fourth and fifth pleas respectively mentioned, the agent of the plaintiff for the purposes and with the authority therein respectively mentioned, and did he as such agent, and for and on behalf of the plaintiff, make and enter into the agreement in the said several pleas set forth in manner therein mentioned ? This, also, the jury would have to consider upon. 5. Had the plaintiff, at the time of the committing of the said alleged trespasses or any of them, notice of the said agreement set forth in the fourth and fifth pleaß respectively, and did he ratify and confirm the same as in the said fifth plea alleged ? On this the jury would decide in the negative. G. Did the said William Burt, in the said fifth plea mentioned, with the knowledge and consent of the plaintiff receive from the defendant the offal timber in the said plea mentioned, in part payment of timber Bold to the defendants, as in the fourth and fifth pleas alleged? In this the jury would return a negative. ■ 7. Is the plaintiff entitled to recover any, and what, damages by reason of the cause of action in the declaration set forth ? This tho jury had to consider. The jury then retired, and after an absence of a quarter of an hour returned with tho following findings : On the first issue, " Yes ;" on the second, " Yes ;" on the third, " Yes ;" on the fourth, '"Yes;" on tho fifth, "No;" on tho sixth, "No ;" and on tho seventh, "Yes; one sliilling." Judgment for defendant. The Court then adjourned until 10 o'clock this morning. '