DISTRICT COURT.

Southland Times, Issue 1648, 15 October 1872, Page 2

DISTRICT COURT.

(Before His Honor Judge Waed.) Friday, 11th Octobsb. His FTonor took his seat on the Bench at ten minnt.f-s pa*t. ten o'clock. Michael Clear, charged with attempted suicide on 15th August last, pled guilty. His Ftonor enquired whether any counsel appeared for the prisoner, and no one having responded, asked the prisoner whether he could call any witnesses to character. After some delay the prisoner called Michael O'Shaughnessy. who stated that he had known Clear fop ten yoar3, that he bore a good character, and that he coull assign no reason for the act he hart committed. In repiy to the Judge, Clear said he thought he could not have been fii his right mind when he male the attempt. His Honor said that the case appeared to him rather to be one for the hospital than the prison, and ordered the prisoner to be discharged, on finding two sureties of £100 each that he would appear for sentence when called upon. His Honor explained to the prisoner that if he conducted himself well in future he would not be calle.l upon, but that otherwise he wouli be punished. John Christie was charged with being illegally at large during the currency of a sentence of four years' penal servitude. The Ju Ige objected to the form in which the charge against. Christie ha I been m lie out, as an information by the Crown Prosecutor, and stitel his opinion lhaV, it should be in the shape of an ordinary indictment. Tiie Crown Prosecutor sii I that the forja was the same as that which hal been followed in previous c.ise9, and after a short argument, state I that as a matter of course he would yield to His Honor's opinion. The hearing of the chargo agiiust Christie was accordingly delayed for an hour to give time for the preparation of an indictment. In the meantime the appeal of Richard O'Brien from the Warden's Court at Orepuki was partly heard. The Crown Prosecutor having returned to Court, Christie was ajrain place 1 in the dock, and pleaded guilty, and called Sub-Insp: ctor Fox as a witness to character, who stated that during the time the prisoner had been at large he had not committed any crime, and that when he w.*s arrested he made noresisrance. but conducted himself peaceably. In reply to the usuil question, ths prisoner said that when he was sentenced to sir years' imprisonment he felt very down-hearted, and d -termined to try to escape, but that he had done nothing wrong when he was out, and that he hoped the Court would be as lenient with him as possihle. The Crown Prosecutor explained that at th» expiry of the present sentence, with regard to which the offence had been committed, the prisoner had to undergo two years' imprisonment. The law provided that sentences for being illegally at large during a term of punishment should take effect from the termination of such term. Therefore the sentence for this offence would be concurrent with the two years which had been already awarded the prisoner at the close of hit present sentence. The Judge said that considering the previous career of the prisoner, he could not be so lenient as he might otherwise have been. The legal sentence was five years' penal senitude. Ho would take into consideration the fact that the prisoner had conducted himself inoffensively when lie was at large, and would pronounce a sentence of three years' penal servitude, to take effect from the expiry of the sentence the prisoner was at present undergoing, thus practically adding nine months to the°term of his punishment. He hopei that when the prisoner was again set at liberty he would continue the course of conduct which he appeared to have begun while he was recently at large, and endeavor to become a useful member of society. O'Brien appellant, and Forbes and Watson, respondents, was an appeal from the Warden's Court, Orepuki. Mr Wade for appellant, Mr Ha-vey for respondents. Owing to the inadequacy of the Warden's notes of the evideuce, parties consented to waive the appeal and have the case reheard in the District Court. Forbes and Watson having been the complainants in the action helow, the case in this Court thus assumed the form of Forbes and Watson v. O Bnen.—lt appeared that O'Brien had taken the whole of the water from a certain creek, for use in a water race, his property. Forbes and Watson brought an action against him for a breach of sub-section 10, slause 21, G-oldfields Act, 1866, which provides that two heads of water shall be allowed to flow down the natural bed of any ei-eok, if required for general use. Me ll&rvey for complainants, Mr Wade for defendant. John Forbes, complainant, stated that he was a miner at Orepuki. He had laid an information against the defendant for taking the water from Fall's Creek into Sandy Creek, contrary to subsection 10, clause 21, Goldfields Act. The defendant had made a dam in Pall's Creek on complainant's claim, and diverted the whole of the water into Sandy Creek. The water was required by complainant to sluice with. Defendant uses the water for his own ground on Sandy Creek. Sold defendant a right to his half share of a race, but told him that he (complain-

ant) would require the water to run down the Fnll's Creek as before. Cross-examined by Mr Wade — Gf-ot £20 for his hnif-share. There was gold enough in the race to pay the £20. whether the race were used again or not. Defendant and he had been mates, but did not agree very well, so witness sold out his half-share to him. Very few of the natural creeks on the Orepuki golrfield contain more than two heads of water. Water for domestic purposes can easily be obtained by sinking a shallow weJl. Thomas Howard, miner at Orepuki, stated that the whole of the water of Fall's Creek had been diverted by O'Brien's race. In fine weather, in ordinary tJmee, the water contained in Fall* Creek would be about three-fourths of a head. The water is required in the bed of the creek for the use of the miners. The dam on Fall's Creek is about three-quarters of a mile from the sea. Cross-examined by Mr Wade — The ereater part of the water on the Orepuki goldfield is derived from small creeks which do not contain two heads of water. Eichard O'Brien, defendant, stated that he was the owner of the race about which the dispute existed. (License produced.) Ihe race is supplied from Fall's Creek. The water is not required in the bed of the stream /or general purposes. Was once ki> partnership with Forbes in this race. Bought him out. Forbes nev<r said the water must go into Fall's Creek. Would not have bought the share of tV>e race on such conditions ; it would have been of no use. "Water for domestic purposes can be had easily by sinking. Cross-examined by Mr Harvey — The race takes all the water that comes into Fall'a Creek from above, but the tail-race of another party runs into Fall's Creek below, and brings nearly two heads of water, which Forbes was using. Counsel having addressed the Court, His Honor, in summing up, eaid that althoush the. expression " water required for general use" mndoubtedly included water required for mining purposes, it appeared to him that it ought to have been proved that the water was so required, and that had not been done, as it was merely shown that the complainants alone would benefit by the water if allowed to pass down the natural bed of the creek. Judgment for defendant. The question of costs was postponed till the 'following day. The Court then adjourned till ten o'clock on Saturday. Satttbday, 12th Octobeb. Forbes and Watson v. O'Brien. — Behearing of case decided at the Warden's Court, Orepuki. The Court was occupied some time in the consideration of the costs in this case, in which judgment was given yesterday for the defendant •with costs. After argument, the Judge struck out £3 15s Bd, being charges for affidavits in support, thus reducing the costs, originally charged at £22 lls 2d, to £18 15s fid. Grant v. Wood. — This was an action to recover £100 for breach of contract for the sale of a section of land, being section 1, block 4, town Of Birerton, sold by Mr Peter Grant, commission agent, Riverton, to the plaintiff as agent for the defendant. Mr Wade for plaintiff, Mr Macdonald for defendant. Peter Grant, commission agent, Riverton, stated that on 16th April last he sold the land in question to the plaintiff. He did so as Mr Wood's agent. He had authority from Mr Wood to do so, partly verbal, and partly in writin?. Produced a letter dated 25th November, 1871, which contained, among other matters, the following reference to the land in question : — " My price for section 1, block 4. is £100, onethird cash, balance eight per cent, interest for twelve months, or longer if required." Had never received any instructions, either written or verbal, countermanding the letter. Mr Wood had previously authorised witness, verbally, to sell the section for £75 Wrote Mr Wood that he could get £70. The letter quoting £100 as the price was in reply to that offer. Had acted as Mr Wood's agent since. Informed Mr Wood when the tale was made, by letter. Letter produced. Mr Wood did not. repudiate the sale immediately. Saw him three or four weeks after ; he never said to witness that he had no authority to sell the section. Cross-examined by Mr Macdonald. — Relied on Mr Wood's verbal authority and his correspondence when he effected the sale. Prior to November 25th, Mr Wood gave witness verbal authority to sell that section for £75. This was ie witness's own office in Riverton, two or threu months prior to 25th November. When the letter of 16th April, advising Mr Wood of the sale, was written, witness had signed the agreement with George Grant, the purchaser. Air Wood might hare been in Riverton on 21st April. Could not say the exact date. When Mr Wood came to Eiverton he saw witness and plaintiff, but he did not tell witness that he had no authority to sell, nor did he tell plaintiff so in witness's presence. Mr Wood did tell the plaintiff that one or two other partiei were anxious to buy the section, and that he was very anxious to give them a chance to make an offer. Plaintiff made no objection ; he seemed indifferent. Mr Wood said he would like to sell the property by auction. Plaintiff particularly requested him to give him notice in event of his doing so. Mr Wood said that witness would have notice of it ; the auction sale •would be in his handi. After they left Grant, told Mr Wood he (witness) had signed the salenote. By Mr Wade — Mr Wood did not repudiate ■witness's authority to Bign the sale-note ; he merely eaid he would go and see Grant. George James Grant, blacksmith and hotelkeeper, Riverton, stated that ho purchased the section in question on 16th April last. The salenote was produced, but not being stamped, Mr "Wade offered the amount of the stamp and fine, which was accepted by the Court. Witness etuted that about a fortnight or three weeks after the sale, Mr Wood told him that he understood that Mr Grant had sold the section to witness, but there had been so many persons enquiring for it that he would like to put it up to auction. Mr Wcod did not tell witness on that occasion that Mr Grant had no authority to sell. He did cay something to that effect on a subsequent occasion, in Invercargill. Would give £150 for the land now. Had been put to private expenses, about £10, coming to town, and £2 2s to a surveyor for surveying the section. Cross-examined by Mr Macdonald — Did not acquiesce when Mr Wood said, in Invercargill, that he thought of putting the land up to auction. Went to Mr Wade about it. This closed the case for the plaintiff. William Wood, defendant, stated that he never gave Mr Peter G-rant, or anyone else, verbal authority to sell any property for him. No one bad ever sold any land for him ; he had always done it himself. Mr Peter Grant had acted as his agent in collecting rents ; but he never leased land for witness with a purchasing clause. Did co b : mself, in the instance to which he supposed Mr Grant referred, though Mr Grant might have assisted the lessee in drawing up tre agreement. Was at Riverton on 21st April. Told Mr George Grant then that Mr Peter Grant had no authority to sell, and that the land would be put up to auction. Mr George Grant did not seem disappointed. Never heard of the written agreement until long after, in Mr Macdonald's office. Cross-examined — Told Mr Peter Grant in Riverton that he did not acknowledge the sale. Was quite sure of this. Did not recollect ever •peaking to Mr Peter Grant about the value of the section prior to the 21st April. This closed the case for the defendant. Mr Wade, for plaintiff, contended that Mr Wood's letter, stating £100 as the price of the land, taken in connection with the previous verbal instructions to Mr Peter Grant, constituted a sufficient authority to sell the land, and quoted cases to show that under some circumstances verbal instructions had been held to be sufficient authority to an agent to sell real estate. Mr Macdonald, in reply, contended that the letter in itself did not constitute an authority to j

sell, and that no evidence had been adduced of any verbal authority having been given. In giving judgment, His Honor remarked that the case had been argued on both sides with Croat ingenuity, and that there was no doubt that counsel for both parties had done their duty to their clients. It was clear that Mr Peter Grant hud entered into the agreement of sale wiihout sufficient authority, and consequent v that the defendant was not bound thereby. The lefTer addressed by defendant to Mr Peter Grunt on 25th November, did not amount to an authority to sell the section, but could only be construed as intimating the price which Mr Wood was willing to accept. There were no circumataacea which could lead the Court to the conclusion that Mr Pefer Grant was then aehntf as defendant's ag9nt for the sale of his properties. The letter, moreover, from Mr Peter Grant, of 16th April, containing the expression, " if this suits your views, please let me know, that I may arrange with the purchase," seemed to show that Mr Grant himself was aware that he had no authority to conclude su?h a sale. Judgment for defendant, with costs, £.3 7s 6 1.