DISTRICT COURT.

Thames Star, Volume VII, Issue 2525, 8 February 1877, Page 2

DISTRICT COURT.

THIS DAY.

(Before His Honor F. D. Fenton, Esq., District Judge.)

The Courfc commenced the" last of its regular monthly-sittings-, this -day at ten o'clock. • '._ JOHN BULLOCK Y. WILLIAM HEWITT. ■ Claim, .£'Bl, dishonored cheque. "Mr Macdonald for plaintiff. . There was no appearance of defendant. John Brookes Mason, sworn, said— I know the defendant, arid served, him with a duplicate of the summons on .Nov. 14th, 1876, at Brown street. John Bullock; sworn, deposed.— I am living in this Borougli. I am a speculator, and speculated in the .cheque produced, signed by William Hewitt, drawn in favour of Arthur Anthony. In consideration of money ' paid by me, Mr Anthony handed over the cheque to me; the cheque was dishonored, and I informed Mr Hewitt of the fact. The cheque dated December, 1875, was for £75. The interest up to the time the summons was issued, at 8 per cent., would be £7. Judgment was given for plaintiff, with costs £7 15s. JOHN W. THOBp V. W. B. SOUIEE, JAMES DAKKOW, AND JAMES STEWART. - Claim, £40, trover. The plaintiff claimed the above sum for 8 kauri trees, which it was alleged were, his property, and of which he had been wrongfully deprived by the defendants. Mr Macdouald appeared for Mr IJar-

row, Mr Tyler for Messrs Souter and Stewart. Mr Brassey/ppeared for the plaintiff. . / Mr JTewitt's namoiippeared in the list, bat it was stated he'had not been served with a summons. ■

Mr Macdpnald. took objections in limine—lstj that the name of plaintiff was not set forth in full ; 2nd, that neither the time nor place were set forth in the plaint. Mr Tyler also argued that it was neces* to state time and place, as if this was not done, it prevented their clients from pleading the statute of limitations, . His Honor asked whether if they got the information now could they go on with the case. . , . „-.

Mr Tyler: certainly. Mr Brassey for the plaintiff said that they could not give the information required, and further argued that it was not necessary that they should do .so, as the date had no material bearing on the case. He could riot state the tinie, but the trees were at Ohinemuri, and when v last in plaintiff's possession were growing. ' Mr Tyler pressed for an approximate date to be given, and when the trees were last seen.growing. " J Mr Gr.. N. Brassey—ln January or February 1876. The second name of plaintiff is Wulleanora. The case was then continued.

Mr W. Brassey explained why the case was brought. He said that in March 1875 Mr Thorp purchased 9 kauri trees at 25s each, which werp left, on the ground, the plaintiff requiring them to complete a battery for which he had a contract. He called—

Albert James Allom, who, being sworn, deposed—l am-a receiver of goldfields revenue at Ohinemuri. My appointment is in writing. The receipt" (produced) is signed by me as receiver of such revenue. Mr Thorp paid £11 ss. I never saw the trees. I know the place within a few acres where they were supposed to have been standing. At the time this receipt was issued mining operations were being carried ori in that district. (Several questions were asked by Mr Brassey, and objected to by Mr Tyler, and on these points some discussion arose. His Honor ruled that the questions were not necessary.) Cross-examined by Mr Macdonald—l do not deal in kauri trees either officially or privately. All I know is, that I received some money from Mr Thorp, and gave him of permissioajto cut certain trees.. Under my appointment I receive Native revenue also, that is money which afterwards goes to the Natives. I hand it over to the Government, who give to the Natives. Be-examined by Mr Brassey—Acting as receiver of native revenue I received the money from Mr Thorp, and gave permission to cut. ,

John Oullen, who claimed his expenses before giving evidence, sworn, deposed— lam a carpenter. I know the defendants. I know the Karangahake battery at Ohinemuri, and was working there at the beginning of 1876, I was one of the contractors. A man named Fitzpatrick was another. To the best of my knowledge I took the contract from Mr Slater. I saw also Messrs .Souter, Hewitt, P. Dillon, Darrow, Stewart. I do not know that these gentlemen were the contractors for the battery. T don't know what Mr Slater was. I put the tender into Slater's office. I saw Mr Stewart very often. I was paid by cheques, sometimes by Mr Hewitt, sometimes by Mr Souter. I only heard by rumour that the defendants were contractors for the battery. The bed logs were got from several places. Some of the wood was kauri. Some kauri trees were standing about the Karangahake machine site within a few chains of it. I also saw kauri trees at the junction of the rivers. They were marked.by a piece being taken out almost in form of a square. I don't know\ whether the- trees were cut, except one which.l helped to cut myself.. It was used for a bed log for the battery. „■ There were not many kauri trees there. I had sawyers cutting for me at th/it place. These trees were pointed out to me by Patrick Dillon as trees belonging to the. Karangahake Company. There were 4or more trees, but I didn't count them. I went to Dillon to see if there were any trees belonging to the company. Mr Souter; did not tell me to go. Miv Darrow said there were trees belonging to the company, and I was to get thos^ trees if required. I mean trees growing on the : Banyan claim on the opposite side of the river. There were other tree's with that mark on similar to the one I cut down. Mr Darrow said I was to get information where the trees were, and Dillon went with me to point out the trees. I hid a choice of taking, for bed logs, these trees or others. I could get the timber anywhere I chose under the contract. The agreement produced is that under which all'ldid was done. I erected an old battery taken from Shellback to the Karangahake. There were bed logs in the old battery. Mr Brassey asked if the witness was not to have the material of the old battery. Mr Macdonald objected, as the contract was in writing, aud produced in Court. Examination continued—Mr Darrow said there was a quantity of trees belonging xo the Karangahake company which I could have. I as>ked him whether there was any writing to show this, so that I might be sure I was not trespassing. Mr Mr Darrow said he didn't know. would not have taken the bed logs from the old battery even had there been ho. timber at Karangahake. I went to Mr Darrow to know.if I could get the trees, because I heard there were trees belong* ing to the company. I did not pay the company for the trees. I gained an ad- j vantage by getting the timber for nothing. I would not have taken the contract fit the price I did take'ithad I had to buy bed logs, I understood^ there were treesi which I could usb if required when I took the contract. -Mr Darrow told me this.

At this stage of proceedings a discussion arose as to whether the company were not tho proper persons to sue, as a body, for the damage alleged to have been done. Mr Tyler quoted from Addison on Torts on the subject. Mr Brassey also quoted from the same authority to show defendants were liable. Examination , continued —I used more than three kauri trees in the battery. I don't know that I had any conversation with any other of the defendants about the trees.

Cross-examined by Mr Macdonald-— Tenders were called for this "job," and I and my partner were the. successful tenderers. We heard rumors that there were trees near the spot, and asked Mr Darrow

if itwas true. He said it was. We then sent in our tender, which was accepted. Dillon pointed out the trees, and I helped to cut down one. The other trees were cut down by sawyers, to whom we paid so much a hundred. The^ contract produced is' mine. No one interfered with iny mate and myself. All the men employed were employed and paid by us. As far as I know I have told you all I know about the kauri trees. Mr Darrow told us if any one interfered with us to let him know, .but nobody did. The reason I took the kauri trees was because it was cheaper to do so than to get the bed logs from the old battery. lie-examined by Mr Brassey—l pointed out trees to the sawyers on. the other side of the river.

By the Court—To the best of my knowledge Mr Darrow said the trees "up there " belonged to the company, and we were to have them. Dillon; was at Ohinemuri close to the place when I, asked him if he ; knew of any trees belonging to the company. I had to pass Dillon's house to get to my work. I stopped'and spoke to him on purpo'se. I told him I had received information there were trees. The reason I,asked him was becau.se he knew the country, and I believed him to be a director. Dillon told me the trees were marked with a square, and he believed they might be the company's. I don't remember seeing Darrow again before I cut the trees down. I don't think I -ever spoke to. him again about the trees. Neither Mr Thorp nor anyone else warned me not Jo cut the trees. •

J. W.TJiorpi sworn, deposed—l am the, plaintiff. I live at Ohinemuri. I know Mr Allom's signature to the receipt produced, and I know the kauri trees mentioned in that receipt. I put some of the marks on them. They are most of them on the Banyan claim, opposite the Karangahake battery. There were no .other kauri trees just about there. The trees are now all cut down. I saw them while they were being cut down; some were cut down, and some were standing. I saw about 4 on the battery site. The value of the trees at the very lowest is £ 5 a-piece. (Mr Macdonald stated they would not dispute the value of the trees,: if they were worth anything they were worth £5.) I eaw afterwards that nothing was left of the trees but the stumps, and - I saw no more lying down. I saw Messrs Souter and Darrow at Mackaytown, and remonstrated with them about cutting down these trees without leave. I addressed myself principally to Mr Darrow. Darrow said that Dillon pointed the trees out as belonging to the Karangahake Company, and the contractors would not have taken the contract if ■it had not been for these trees. I said the trees were mine, and that they would have to pay, for them. They said they understood from Dillon that they belonged to the Karangahake Company. I have since applied for payment for these trees to Messra Darrow, Souter, Stewart and Hewitt, and have not received any. I never parted with the trees, or" authorised any one to cut them. Cross-examined by Mr Tyler—The place where the trees were is not my land; it belongs to the Natives, and is leased by the Government. Cross-examined by Mr Macdonald —I claim the trees under the certificate given by Mr Allom. Thomas H. Barclay, sworn, deposed—l am a miner. - I was mining at Ohiaemuri in the Banyan claim at the beginning of last year! I noticed some kauri trees there with a square mark oh them. I saw some of these cut down by sawyers. Cullen was there. I did not see him assist to cut the trees down. I can s'peak as to portions of fopr of these trees which went to the Earangahake battery site. This was the case for the plaintiff. Mr Tyler applied to know whether there was anything to answer regarding Souter and Stewart, as there was no evidence inculpating them. There was nothing to' show that CuHen was told to cut down the trees.

Mr Brassey quoted authorities showing that it was not necessary to prove the manner in which the property came into the hands of the defendant. There was sufficient evidence to prove that the trees had come, into the hands of Mr Souter. They would riot have carried on the contract if they had not the trees. Mr Tyler said that there was no evidence to show that the trees were in the possession of Stewart, Souter and Co: Mr Souter's liability rested on a conversation that he was said to have taken part in, and even the evidence was not strong on the point of Mr Souter having spoken. The plaintiff had said, " I thiuk it was Souter ithat said it." He was not sure.

His Honor said that there was no evidenpe against Souter and Stewart at .present. Mr Tyler asked His Honor to give judgment for bis clients. *Mr Brassey objected, saying that.two judgments conld not be given in the one case. Darrow yet remained to be disposed of. _ • His Honor said lie would not give judgment till the end of the case. Mr Macdonald said be objected to being bung without company. There.was, no evidence against Stewart or Souter, and he submitted that there was none against Darrow either. He then recounted.portions of the evidence, which, he said, 1 showed Mr Darrow's nonliability. Mr Brassey replied, pointing out in the evidence of Cullen that Darrow had iaid that if anybody interfered be was to be told of it, and contended that that showed his (Darrow's) liability. Mr Macdonald, in referring to the permit signed by Mr Allom, said that Thorp's title only rested on the document signed by Mr Alloni) as Receiver of Goldfield Revenue. The Warden and the Warden alone could give permission to cut kauri trees according to the rules of Ihe Ohinemuri Goldfield. TL-e functionary who had given the permit had no right to do so. W. Fraser, Esq., was 'the Warden, and not Mr Allom, and that gentleman did not even pretend to be Warden, but only Receiver of Gbldfields Revenue.

His Honor : It was strange that a Government Officer should so mislead the public. Mr Macdonald said as long as His Honor said the Gorernment Officer had misled the publip he was satisfied. But even assuming that everything was regular, and Mr Allom had right to give the permit, Mr Thorp had "no right to sue on that title,-. He could come on the owners of the ground, Jbut not on - those who took the trees. Another thing was that tjip, trees had. to be used for goldfields purposes, •"' and Thorp would have to show that he wanted them for these purposes.

His Honor remarked that that would not be Thorp's fault, a? the officer signing

the permit had a right to make himself aware if it (the timber) was wanted for these purposes. ; - Mr Brassey said that it must be taken that the Warden had given permission until the contrary was proved. His Honor said it was plain that Mr Allom had no right to issue the document, and it would be hardly right to make Thorp suffer for a mistake of a Government officer. He wor'd do all in his power to set him right. Mr Brassey applied for a nonsuit, but Mr Tyler objected, on. behalf of his clients, applying for a judgment for th» defendants. ' • x His Honor said as there were doubts on both sides he would do'what seemed to him right, and give judgment in favor of Messrs Souter and btewart, with costs £4 3s, and nonsuit the plaintiff with" respect to Mr Darrow, with costs, : £4 3s. C. 3?. MITCHELL Y. BIHITOTO MATAIA.' Claim, £52 6s Id, for goods. 1 This action was withdrawn, having been settled out of Court. . . ~

MO2NING STAE G.M.CO

Mr Macdonald applied for the appointment of a liquidator in the winding up Jof this company. He stated that Mr McDonald Scott had been appointed by the creditors, and asked that the appointment be confirmed by the Court in accordance with the Act... His Honor confirmed the appointment.

IMMEDIATE EXECUTION'. ' - my Mr Macdonald applied, for immediate execution in the case Bullock" v. Hewitt, - and explained that. Hewitt was collecting ' his debts, and had left the Thames, and was probably going out of the district altogether. , Immediate execution was granted. IN BANKBITPTCY. . ' i . Mr G. N. Brassey applied, in the case of Michael McMahon, to enlarge the time for the public sitting and last examination until next Court day. Order granted. The Court adjourned.