DISTRICT COURT, WESTPORT.

Westport Times, Volume II, Issue 267, 9 June 1868, Page 2

DISTRICT COURT, WESTPORT.

Monday, June 8

(Before his Honor Judge Clarke.) The sittings of the District Court opened yesterday, his Honor taking his seat at eleven o'clock precisely. Mr W. Pitt appeared to prosecute on behalf of the Crown. The legal profession were represented by Messrs. Campbell, Tyler, and Bees. On the jury panel being called over, Messrs. Thomas Watson and William Carter did not answer to their names, but they appeared subsequently and saved themselves from fine. OBTAINING MONET UNDER FALSE PRE- , TENCES. Thomas William Melville surrendered to his bail on the above charge. The Crowa Prosecutor applied for a postponement of this trial, as he had not been able to secure the attendance of James Johnstone, a material witness both for the prosecution and the prisoner.

Mr Campbell, who appeared for the prisoner, had no objection to this course, and the case was postponed till the next sittings, which will take place on Tuesday, the 18th August. The sureties were called and expressed their willingness to be bound again as bondsmen for the accused, and he was liberated on the same bail. ASSAULT WITH INTENT. George Shipley, 31, and Micyael Barrett, 23, were charged that they on the 19th day of April last, on board" the steamer John Penn, did unlawfully assault John M'G-illivray, with intent to murder him. A second count charged them with unlawful assault only. Mr Campbell, who appeared for the defence applied for the prisoners to stand on the floor of the Court, as this was a misdemeanour only. The Crown Prosecutor had no objection, and the application was granted. His Honor remarked that he was in doubt about the first count being sustained. The Crown Prosecutor said there was a doubt on that head, and, therefore, with his permission, he would enter a nolle prosequi on that count. His Honor concurred in this course, and a nolle prosequi was accordingly entered. The Crown Prosecutor stated the case, and specially informed the jury that now they had. to deal with a common assaault only. Alexauder M'Gillivray deposed : I am chief officer of the steamer John Penn. On the 19th of April we left Hokitika at six o'clock in the evening. After leaving I went to look for Barrett, and found him in his bunk. He came on deck afterwards. T asked him how it was that he was not on deck on crossing the bar. He said he had been on deck. Some words passed, and subsequently both Barrrett and Shipley as-

saulted me, and attempted to push me through the port. A man named M'Kay came to my assistance and prevented them, and subsequently the captun. It was a dirty night, and we were about a mile from land.

By Mr Campbell: When Barrett came on deck he did not say it was not his wheel. He denied having been in his bunk, though I woke him up in it. When he came up I told him to go below and I would speak to him in the morning. I did not seize him first. I might have said something to the effect that I would have an alteration when we got to Nelson. Barrett did not say to me, " If you will not leave me alone it will be worse for you." Barrett seized me first, and Shipley afterwards. Shipley got hold of me unawares. Barrett attacked me first. I did not speak to Shipley at all. The affair took place abreast of the furnace. They both got hold of me. I was so excited that Ido not remember what was said. I never saw Shipley till he got hold of me; he was not there when the disturbance first began. Shipley used an expression to the effect " Heave him overboard." Arnold or M'Kay called out to let the man go, but not Shipley. At the time I was quite helpless, and I could not lay hold of them. I cannot say whether there were any passengers near, for it was dark. I did not abuse Barrett when he came up, nor did I follow him abusing him ; he followed me. lam not aware that a man on board the Bruce, named M'Ewen, complained of my conduct. I came oat in the John Penn from home. The examination was continued with a view to show that witness was in the habit of illtreating the men under his command, but he denied that such had been the case.

Captain Carey corroborated the evidence of the previous witness, and heard the prisoners using threatening language. Cross-examined by Mr Campbell : Barrett had hold of the mate, when he came up. Shipley did say when witness went up, " Here's the Captain, l«t go of him." By the Court: Prisoner had only been about a month in the ship prior to this. I thought them good men and I never heard any complaints against them. They never complained about the mate. I have known the mate five years .and he has been two years with me and I never heard any complaint about him. Wm. Arnold, a seaman on board the John Penn, gave similar evidence as to the scuffle. This witness's memory was very defective as to the evidence he had given at the Magistrate's Court, when the prisoners were committed, and at the Crown Prosecutor's request the depositions were read over again by the Clerk of the Court. Witness then said on being reexamined that it looked as though the prisoners attempted to throw the mate overboard.

John M'Kay corroborated the evidence already given. Mr Campbell addressed the jury on behalf of the prisoners, endeavoring to show that the mate first attacked the prisoner Barrett and shook him, and that in the scuffle they fell against Shipley. After a short consultation, the jury found both prisoners guilty. Mr Campbell, in mitigation of sentence, handed in several documents testifying to the good characters borne by both defendants. His Honor, in passing sentence characterised the assault as one of a very aggravated nature, and the alleged intoxication of Barrett was no excuse. As to Shipley there was no proof of his being intoxicated at all, and he considered both prisoners equally culpable. If mutiny was to be permitted on board vessels there would be no safety for passengers, and it must be punished severely when it occurred. The sentence of the Court was that they be imprisoned and kept to hard labor for a term of six calendar months.

Civil Cases. croker v. cassiua and comisket. This was an action to recover £166 15s, balance of account for goods sold by plaintiff to defendants, but which they refused to pay for for reasons given in the pleadings. The plaintiff on being called stated that he knew the defendants. In December last year he sold them some butter under the agreement produced. Mr Tyler objected to the agreement being received as it was not stamped. Mr Pitt argued that under the Stamp Act the agreement might be afterwards stamped and received in evidence, provided the fine was then paid.. An argument arose on this point, Mr Tyler contending that the agreement could only be rendered valid by the fine being paid to Commissioners, under the 14th clause of the Act, before coming into Court.

His Honor thought the matter was vory simple. As the subject came before him the document was inadmissable and he did not feel himself justified in making any order on the matter. Mr Pitt again urged that it was open to his Honor to accept the document if the stamp and fine were paid. His Honor said the question was whether the clauses could not be read together, for they certainly did seem inconsistent. Mr Tyler said the document had been in plaintiff's possession six months and he had had abundant opportunities of getting it legally stamped. If he had not done so the fault was his own. His Honor remarked if section 37 was read, it would be seen that Commissioners were again referred to as being the only parties competent to allow stamps to be affixed as now required. The clerk had no power to stamp any document under the circumstances and the Act was very distinct that no deed or instrument should be receivod unless or until it was stamped. He could not see therefore how that document could be received. Mr Pitt persisted in urging his views on this point, but his Honor

could not be persuaded into allowing the document to be put in, and the case proceeded without it. Plaintiff's examination continued. — On the oth of December last he sold butter to Cassias and Comisky. There was about a ton of butter. Mr Tyler objected to this evidence. A. contract had been entered into in writing, and that contract must be put in. The document was in existence, and secondary evidence could not be given of it. His Honor remarked that that document was valueless, and allowed the examination, as introductory matter to proceed. If Mr Pitt went into terms of sale, the objection was good. Mr Pitt, if such was his Honor's opinion, could not well proceed. His Honor thought it would be better for plaintiff to take a non-suit. Mr Pitt said they would be driven to have the document stamped and come before his Honor another time. His Honor could not help that; the fault lay with the plaintiff himself. Mr Pitt would then take a nonsuit, but trusted that under the circumstances his Honor would not allow costs. Mr Tyler submitted that as it was his own fault the document had not been stamped, the plaintiff should at i least pay the costs out of pocket. ; His Honor declined to allow costs of any kind. It was a purely technical i question, and one that in his opinion • should not carry costs. EHRENFRIED T. SCOTT. Mr Tyler said this had been settled. i It had not been settled in Court as it i should have been, for it was settled behind his back, but he was perfectly

• aware that it had been settled. LEACH V. JOLLIFFE. On this case being called, Messrs i Tyler and Pitt, who were engaged on either side, said that it would be a very long case, as it was a question of account, and it was postponed till this morning. The insolvency cases are set down for hearing in the following order : • E. H. Campbell; King and. Cowley; s Gr. H. Clutsam ; Henry Mann ; Henry ) "Wright; George Anderson; H. L. Kennedy ; Win. Nahr ; Alcorn and i Co.; B. Rogers; Ehrenfried Bros. ; t Win. Courtney. i There are two mining appeals, viz., » O'Brien v. Scott and others, and Same i v. Mitchell and others.