SUPREME COURT—CIVIL SITTINGS.

Southland Times, Volume I, Issue 21, 19 July 1864, Page 3

SUPREME COURT— CIVIL SITTINGS.

Monday, 18th Jcly, 18G4. (Before His Honor Mr. Justice Chapman). His Honor took his seat on the Bench punctually at eleven o'clock. M'KAY V. COUTTS. Plaintiff in this action is a Mr. Donald M'Kay, a, settler at Wallacetown ; and the defendant is his brother-in-law, Mr. Donald Coutts, also a settler, residing in the Province of Canterbury. The issues before the jury were the following : — 1. Did tlie defendant assault the plaintiff, and cause liim to be imprisoned as in the declaration alleged ? 2. Did the plaintiff, before the committing of the said grievance, assault the defendant? 3. Were the said grievances committed by the defendant under a reasonable apprehension that the plaintiff was about to renew the said assault upon him, the said defendant, and to commit a : breach of tho peace, and were the said grievances committed solely with the object of preventing such renewed assault, and such breach of the peace ? 4. Did the defendant do, or cause to be done, move than was necessary for the purposes last mentioned? 5. Is tlie plaintiff entitled to recover any, and, if any, what amount of damages from the defendant ? The fallowing counsel were engaged in thisoase: — :Mr. George Elliott Barton (of Dunedin), Mr. C. E. Button, and Mr. S. M. South, for the plaintiff ; and Mr. James Harvey, for the defendant. Mi% Barton opened tlie case for the prosecution, and went into a complete narrative of the circumstances attending the case, but as we find that such narrative is an exact counterpart of tlie evidence given by, plaintiff in his examination (which follows) we do not think it nesessary to give it twice. The learned counsel concluded- by claiming damages to the extent of £2,500. j The evidence then called was as follows ,:= — Donald Mackay deposed — 1 am a settler' at, j Wallacetown. My wife's maiden name is Ann. , I know defendant, Scott, who. married, my 'sister; and resides at Canterbury. He, with his wife and family came ou ; a visit in March and Apoil, 1813:- He (Coutts') wife was in a very delicate - state of health. Coutts and I- were .very, friendly. T made luma'triisteeiri'mywul. I told him 'of my wife, and her actions. I told him of John M v "Kay and Scott having, improper, intimacy with .her'/" also of Scotit's kissing her' hi tho kitchen/ Coutts advised me-Jp; watch Scott. and her, but they were , never ', caught- Coutts discharged Snott at my instigation. After Scott left, Coutts cbntinuedtblive dt hiy house: Oh the night of the 22nd October,: Coutts and I sat nv/tfte parlor bf my house. It was about ten o'clock. Mrs. Coutts and my; wife-: were- up stairs-iri her bedroom chatting. T noticed that it ceased, and Coutts abruptly dropped the J newspaper lie -was reading,, aind'^ent.up.^-, A short time .afte^ I/gpt upland crossed the passage to get into the kitchen. o; The; door of a.closet,. lipwever,;,preyented me, as it is* s'p constructed, that,., jwhen open it prevents one getting' im I saw -sufficient to observe my;;'wife',s,i\dr.3Bß at[ the; back ol, j the. rdppi^ as.if/she..had\b^ Coutts came mahnos'fc.ojnme^ and trenibhng, into .the, parlor. My wife also came in and sat down/by... the fire There was- no- conversation. carried ,ph. .Thb^safefpil/abpht tyrb minutes^ jsncT then got up to retire . tombed. Mrs. Coutts and cliild left for Finlayson! s -next morning, r } , Coutts,, himself remamed^tiil/thb iniddlapf .the- next week. On the Sunday, "hi "this interval;' the servants were ordered, out-, of >tho. way- by,pQutts, ; . ! unlmovm r .fp:; me..:, J 'i.jabtace^ 6put'tsV tiiai)fehday ; atterhbpn/.went7tp put some; . calves' 'jn^&:\v^^o^''i?K^i $. ffek^^Mffil ' ',' as; my c wile, in opposite' toectibhs.r.T-n v Minutes I saw him going„in_the saW direction i /that my wife had takonJ,and ? when, a little further ,- bff, I observed huh' -making^Bigna to her to go '■ | .«i*aoifttfi:' t .OX) UTiii ' ;io3l£sl£Q&

towards tlie s^D-leT*- I gave him to understand .that he had;beJ;ter;leaye:?>;H:e:d^ 4th November.,..he^came^back,«between^nme^a^uL. . ted o'clock. I saw.lihn coming to .the front door. I Wit to preventXnis;Vgytiin v gain, WEe said, " Good, morning," and „ I did. .not; r„eply, but a3ked' ; wh^t ''he'- Wanted.';-^He^Said he' wdnted. j his 1 things. I said. '^ "Stand ( outside, and - I'll get then\'ifog yjOUj"T They gvfere- put outside, by the 'servant.;.. ( When; this was bemg done, Coutts ruslied , ''p ! ast'mb'"info the hall. I asked'himtb~go'out,""bu6^he'' would' not; "as h3 said"" the house was much^Jiis <as mnne',]j which it was not. There was then a'sfruggle/and I put him but and shut the door. My-wife then came down stairs, and opened the^door, and said, '' Come in, Mr. Coutts, comb'-iii} -Mi-, ye'butts."^ «We were both outside. Coutts a-ncLmy wife commenced r abusing me, and he called me a " vile spiteful shiner/? nr Afcj this-' time ->I- • isaidf tp,*himt ' \\Go\itbs,{ i you' must retract that, else T ll pull your nose. He did nptfdq jsonandfl/did puUlusjn'oie.^yHe did not retaliate"/ and T walked'away. 7 /When a few paces off, Mr. Coutts- caught me by the legs. £ jgrapnled. with him and p^fed^n, -and^ !.again went aWay 'towards the house;, as 1 saw he was ! n'ot going to fight, and he also turned his back. I ''^adnb/sbonerithriiM than'he>attabked"t'meJhyi Jthe \ legs again, and very nearly, had me do-wn. before 1^ '"was aware/ T J putTn£dbA^ 'fell. - My wife then rushed at .me-.and^seizedj-me f sby the^throai '/Tney bottfshbuted' but that 1 was" mad, and gotaladnanied John Gimn^to^assisfcthpini , They ■ got me do wn— overpowered me/ and my wife kept;cbqking'me. T : They then tfed^my^handsj with ahofse-cbilar strap behind hiy back. They also " tied my legs with ropes.O( ; They hurt me very much. I struggled ..very violently, and when I shouted out for Mr. Pemng;">- neighbor,,, being,, sent for to see fair play, my wife lay on my mouth to? smother my voice, and'l bit heparins. Half-anj-hour after I was tied, -Mr.' Pelling camo. I was fuhy an hour tiod up. W£env;he came he asked " what's the matter ? " Coutts" said " I was mad," and that he sEdlddJnbti tbuchlihe. I told hhn what had taken place, and he then slackened !the cords round my wrists to relieve me of the pain, and unloosed the ropes off my .body. I went then into the house and asked Mr. TeHing to put his name to the draft of a letter. I was writing before Coutts came (paper prbduced)7 He then untied my hands from behhadrand^tied them in /front. I then took some clean clothes, and locked -ithe door of the EonmCwhere 'my.:papefs were, and . went with Mr. Pelling to his house.. . When I got there he untied my hands, and ttaok'm'e to a room to! wash myself. afterwards he and I went to Invercargiili/ and 'saw' 'Miv'M'Donald, solicitor. On coming out of, his office, I saw Coutts. He followed us, and' called' a policeman, and both came up to us. , "Policeman took me and asked Pelling to accompany lis 'to the station. I said " Must I consider myselLarrested," and the policeman said' " Yes." ' There were two medical men in the'pblice station at the time — Dr. M'Clure and Dr. Grigor.- Besides these two, other-three-came to examine me before I -was-.- brought up before the police 'court! 'Dr. Berndt and Dr. M'Clure are. hot here .at;_presentJ r.Next Monday T was brought before the -magistrate and discharged. ..[.•;>:" '■ ■■ - - ' ■''. Cross-examined by Mr. Harvey. — I have detailed the strongest reasons of my belief in my wife's .being unfaithful to me. I have, accused .her of improper conduct 'with' Jameß Wilson',' *a 'settler. 1 have also accused Mr; Wilson bf that. I mentioned this to Mr. Coutts likewise. Coutts told .me he believed -it, -and advised; me:. tOKhftve/^yJ wife watched. He was my chief confidant in this matter, . and . suggested, , what- should , be. ; done.^. In order 'tb watch' her,*! represented thatT'-waa going to Dunedin, but. remained concealed in the house, and neighborhood. I lived most of the , time in a tent at the back of. the house. — Ij-also.; bored holes in the wall to see through. I carried firearms 'part' of the7'timc. I he.ver7tbldiobu-fisr that I had a revolver. I did not intend doing ; anything 'in particular with it -when- staying in -the tent. It was sometimes loaded with ba11. . , „Lgot a rope-ladder made at this" time. I wanted this for the purpose bf watching my : wife'wfth'JScbtt, by the window. One morning, at six o'clock, I saw Scott and rriy wife come out bf the scrub. , Coutts was ,liot /living in. the house that day. ' Sarah M'Kay was the only one living in the house that day. She was in my confidence* at this time. She is no relation; pf mine. Sheiwas; %merely a visitor. I did not explain my family disagreements to every one. - Coutts, Sarah ; M'Kay, and John Gunn were my only, confidants.,. party, of thb name of Walker, knew' about it. Mrs- ■->■ Barclay •' (my sister), >andiT<her family, likewise, were aware of. my. ..affairs. I asked' 'John 5 Gunn 'to assist ;i me' "in getting further evidence. (Witness ; then again detailed the circumstance of Scott's kissing his wife.) The servant girl was milking' the cows at the time. There were. ; no other, , ,par ties in the house but Scott and my wife. I said nothing of this to Scott. After Colitis left, I mentioned it to Mrs. M'Kay, who denied it. Mr. Harvey then asked witness how ho came to suspect Mr. James Wilson ? liis Honor did not see what bearing this would have on the case. . -, ■ • , : <t • ;j Mr. Harvey.— l mean tb show that Mr7M'Kay was suspicious' of all and sundry; '■ His Honor.r— There is no doubt he is a very jealous man ; but jealousy is not madness in the eye of the law. " Cros-uxamined. — I.. never tried to get Mrs. M'Kay to take chink to confess her guilt. I never offerod to give her silk dresses. I gave her a glass of wine in the tent. On the day of the assault, my;wife- and servant; girl werej in, the house. Mrs. MChrystarwas' present before they had done tying me,up. . , Gunn was. there, -but not till Mr. Coutts came. I did' not. see George Hunt there at the commencement of the struggle. . , ■ ,-My mother was ill in bed, in a house close by at the commencement, and before the end she came up. She had not'been'Outbefore for several weeks. When I was crying out, she said she could not go forfeiting. She did not say to Coutts -i-" Take me away/ 1 am not safe near him." I pidled Coutt's hose- when he had a bag in his hand. I did not strike him, or knock his hat off previously. I did not strike him at all. It was my wife, and not Mrs. M'Chrystal,- who first came to Coutts' assistance. Re-examined.— rThe plan produced", -shows the relative positions of the house and outhouses. My mother's house was about thirty yards dis.tant.-' " '*'' ' : '"7-"-"' .-AlsiLA-rj ' Frank Pelling deposed to being sent for to M'Kay's farm on the day in question, and gave evidence descriptive,; of, the severe treatment,plaintiff had received at" the' hands" of defendant and Mrs., M'Kay. Witness 'then' went on to describe what lie himself did— how'hb'/iuitied/ lus- bauds' and legs, took' him 'to' his own. house, and then -to . Ihvetcargilkta consult alairyer; ;andwliehthere;' i how he, M'Kay, was arrested by the 'police/'at the' instigation,; pfcCputts, -and put. into prisop for trM next' morning 'as a lunatic. - Cross-examined. — When I saw M'Kay., on., the ground, his mother was leaning over, liim, /"and" crying. When I untied his 'legs/ihe' -parties/who insisted on me not to do so, did/hot go.'away. I did not hear liis mother make 'any remarks;j she was crying bitterly. «-••>..■'.-■ .. u.-h/,. j John Gunn, a lad about twen^ybars'of- age, ' deposed to being a witness t^the'-scuffie^he^ween, M'Kay and Coutts, and described the binding of "M'Kay, ht which'he lobki-part- at theifeqiiest of Coutts. His evidence was!mamlycor r oboratorv of that already-repbrtedias^iyenhy^M'SayJ'inl " ) D£:^uiL%y.uepoßeatbe'xaininmgM^^ Roliee Depbt in November last.---:a had conversation for about a quarter of-au hour with him. He appeared to be quite^sane. .. /Thg opmion of the medical men was mi'ahimoiis.-' 1 have had ex- : ■• perience of. lunacy r casjC^^ >%T - * Cross-^'xa'mined^B-sbinetmfes 'happens that -oVeniiiVlbng examihation a lunatic may exhibit; ! -no "signs-'of -insanity: * ' ! " 1 The deposition of pD^ M'Clure, ; now an inmate in 'Dunedin Hosfiita^ was, read regarding an ; examination r ofh^miesrmflicteAiOn;^M^ ■i also a-sHS" his sanity; ■' which' corroborated;' the ,; l evidence of Mr Mni'rayil ffl'B-YAT' / ' , ■ '■ " " f « < This concluded the case-for the plaintiff. ■■_"' M ' iMi^^MSDbhalcbifi&en 6penediithfeJi.qasefjfor2ishei defbndant, t va^^rarn v ark'b r d fliafAHef shoulujprincij baliv confine tho evidence to be adduced to what •I ■ ■ ■ .oirAKOcrOAM moxr. ■ ..'" '/ " .

•<«f£3e^^ pl^nti^^a^origmat^dithei ih^appy«quarreli'S.au:iC ..that,asiegar.dß^the„infidehty. of „Mrs_ MLKay,„he«.- - believed that her husband had conjured up in; hia own mindlkgreat dealbf^wluit^nbvKr^!existed]/and never took place. He would: show that Couttsto M'Kay's house with the most peaceable : mf>entions on the mornings of- the assault, and that everything that had afterwards taken place was purely in consequence of M'Kay ? s jealousy and bad tbmpeifanH actions.. jj vJ.T il-U 0 -L..H. t7,i' — Donald Coutts deposedthat he was an old friend. He had known him for three years, and married his sister. The first time M'Kay fold me of his wife's infidehty was about three years ago, by letters. Some .werejof'suoh arnaturo^hag'l ha^{tosfesfrpy'| \J\ them incase my "wife ' slibuld see them. _ I wenttoj.f j pay M'Kay a visit in April, 1863;. I went a day .sor-^^pjlhefbreffimy ?KWifagoinedbas;«oThoV':i i first' night I was there he kept me nearly ' ahi night; irelatingiiKis ?tro r ublesi;4 LTehsonedwith/ 1 6 him at that tune that ah he ( coidd iu-ge againsti MrshM'Kayjic^uldimbtlconvince W7of-b/er v giiiltl f: -'' ! ' I don't remember ever going out of his rbpm, and.. «. xoming:^ba^^er^bpaie■-'¥nd <f ti J emblisg/ I, • M'Kay ' |old me of the parties^vvho ;,were suspected^of^-jj improper intimacy wibh J 'his^'wife. lS 'When* T-'wa»' the calves' out of the paddock I did not ; mdke signs to Mrs. M'Kay, Such a thingnever 'tbbkapjaeq.-,- About days^after^thisTlrleft the H'j ?, M t Kay did not" tell me to go away. . On ,f, 4tß/ November I returned- at about ,ten in the , .morning, to got some clpthe^s I left, p y '"" His Honor.-rTlieh jfou did not go away in consequence of M'Kay's turning you out? v 1 jWitness. — No ; your Honor. Examination continued.CisWheh I called/that morning Mr. M'Kay opened the door. I said that I; had come for my things that were there. He called Kitty, the servant girl, to give me them. Herasked pic if* I ihad said* 1 tc^anyone that he had^saidtthaf?- there was not such* a thing as ia virtuous woman. I hesitated a little,' and ho repeated his question, threw of his coat, waistcoat, and necktie. I never ,-rephed.Tq^e then commenced squaring his nand^'mjrfacb, and saidr— "By. God, if you said so, I'll knock off your head." I did not observe any one present. He put his fists in my face^andl begged, jth.at.-he,* wpuldyhej *. quiet/ and nbtuse ahyjfoplgnce.l Ildid ! s6 Jtwicev - H? then lowered hishands from my face, and then said— -"Now, I'm quiet." I told him then that he had been wrongly informed, and that- 1 never said so. Havmgle&:something in the hall, I stepped inside for it, when he took and put me out. I made no resistance. I believe I^d^sav that the;li9USo7was , LnsotjhiK When Mrsl^My scame down stairs, she asked for Mrs. Coutts. and the children, and said that,it served ; me T rigM ; ;for ~j: behevihg'what-'her^usbW^ i replied that it did, and that I never believed she was imfaithful. When M'Kay became more violent, and continued threatening me. I was walking away with the bag of clothes, when M!K-a-y/ran^after^mre, andjstbppedSi&^Haiaiked^ " _me to retract something which I had said. I said that I wanted to get away. He then struck me twice, knocked my hat' 'off; and "afterwards twisted my nose. I dropped the bag, and caught hold, of him. ,, We steuggled, > and.feh^down>on tbe;ground.\ ;, He c&iignt hold "of my heck-tie/ahd almost, choked me. I asked for assistence. Mrs. M'Chrystal, his sister, came. SheUsai"d^'-Oh\ Donald, leave Mi-. Coutts alone." Afterwards his wife came iip. She assisted to get__my_hand from off his nebk. His Honor.— Ypur.hand? r , „.. . ; ,-, »,,', T cio.> ;,r ; j T Witnsessl-^— Oh, 3? beg pardoir ; T meant M'Kay'*; " i. His Honor. — Why did you say your own hand, when it was his ? •'. : < ' A. > -'.', ':i ■:. °- ! Witness. — I made a mistake. Examination continued— l thought it was ; heCessary to have him bound^and examined by a -medical man. I was led to this from previous 'knowledge pf.his ac.ts. Plaintiff, preyipusly.tpldm© A; he; w'ould-lcill' Scott if he caught him. ' ' iHis Honor. — Caught him where ? With his wife ? - — - Witness. — Yes. I think he meant that. His Honor. — Perhaps ypu|.wpuld have done the same? ! " "" '"' * continued. — I gave him no provocation whatever T beyond not replying to, his questiqn. I did hot "use more violence than was necessary with him. He struggled violently, and bit his wife's, cheek. He was much excited..- He ■ ; ae;tedlike>' a man who cbuld not control himself. )Mr. Barton. — I should not wonder at it. I should rather he would., .... ■:•.,.- .-:•;. {Examination continued.— George Hunt is about 11 or 12 years of age, and was present. I amnot a wealthy man. ! Mr. Barton. — If evidence is" taken as to this man's wealth, I beg to state that I am prepared tb go into it also. After -a ; few: more iwords from' defendant's counsel, - Mr. Button was getting up. to cross-examine the witness, when ; His Honor postponed the further hearing of the case till this morning, at. ten _p' clock. ■ The Court then adjourned.