DISTRICT COURT, WESTPORT.

Westport Times, Volume II, Issue 271, 13 June 1868, Page 3

DISTRICT COURT, WESTPORT.

Monday, Juke 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 Eees. 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 UNDEK FAXSE PRETENCES. 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 willixigness to be bound again as bondsmen for the accused, and he was liberated on the same bail. ASSAULT WITH INTENT. George Shipley, 31, and Micyacl Barrett, 23, were charged that they on the 19th day of April last, on board the steamer John Penn, did unlawfully assault John M'Grillivray, 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. Alexander 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. I 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 assaulted me, and attempted to push me through the port. A man named M'Kay came to my assistance and prevented them, and subsequently the captain. 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 rae ; 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 out 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, let 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. Win. 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 tho 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 borno 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 ho considered both prisoners equally culpable. If mutiny was to be permitted on board vessels thero 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. j CROKEK V. CASSIUS ANI) COiITSKET. This was an action to recover £IGG 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 very simple. As the subject came before him the document was inadmisaable 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 received unless or until it was b tamped. 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 sth of December last he sold butter to Cassius 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 least pay the costs out of pocket. His Honor declined to allow costs of any kind. It was a purely technical question, and one that in his opinion should not carry costs. EHRENEEIED V. SCOTT. Mr Tylc.r said this had been settled. It had not been settled in Court as it should have been, for it was settled behind his back, but he was perfectly aware that it had been settled. LEACH V. JOLLIFEE. On this case being called, Messrs 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 tho following order : E. 11. Campbell; King and Cowley; Gr. 11. Clutsam ; Henry Mann ; Henry Wright; Georgo Anderson; 11. L. Kennedy; Wm. Nahr; Alcorn and Co. ; B. Rogers ; Ehrenfried Bros.; Wm. Courtney. There are two mining appeals, viz., O'Brien v. Scott and others, and Same ■v. Mitchell and others. Tuesday, June 9. (Before His Honor Judge Clarko). LEECH V. JOLLIFFE. This was an action to recover the sum of £IS4 Bs, alleged to be duo for 1 wages and for cash lent.

Mr Tylor appeared for the plaintiff. Mr W. Pitt for the defendant. * Tho action in ono form or other had been tried some five times previous to the presont suit, with varied success, but no final conclusion had ever been come to. It appears that some time ago plaintiff and dofendant entered into some business arrangement in reference to opening a public house at Charleston. Plaintiff maintained that he was merely a servant in tho matter, and that the cash he advanced was by way of loan, and not as a contribution to any partnership. Defendant, on tho other hand, asserted that plaintiff and he were in partnership in the speculation, which proved a disastrous one, and the whole issue lay on this. As might be imagined the evidence on either side was most contradictory, and the case lasted from eleven in the morning till nearly five in the evening. Both of the legal gentlemen engaged exerted themselves to the utmost for their respective clients, but the fates proved adverse to the defendant.

In giving judgment his Honor said that during the whole course of his experience this was one of the most unsatisfactory cases he had met with, the evidence on either side being so point blank contradictory. He would be sorry to impute perjury to witnesses, though some of the evidence seemed to bear that complexion, but he would rather account for some things that had been sworn to by a defective memory |on the part of those giving evidence. He was, however, fully satisfied that he would be doing justice by giving a verdict for the plaintiff for £93 lGs., with costs.

After some further desultory remarks the Court adjourned till this morning, when the insolvency cases will be proceeded with.

"Wednesday June 10, (Before his Honor Judge Clark.") When the Court opened it was occupied with an assessment of plaintiff's costs in the case of Leach v. Jolliffe, and the agreed amount was set down at <£12.10.6. MINING appeals. o'rrien and another, appellants V. SCOTT AND MITOIIELL, RESPONDENTS. Mr Tyler appeared for the appellant. Mr Pitt for the respondent. This was an appeal against a decision, of Charles Broad Esqr., Warden at Brighton, in reference to a riglit of water. His Honor asked for the production of the notice of appeal. Mr Tyler said, it was not necessary. The respondents appeared and that was sufficient proof that they had been served with notice. His Honor considered it absolutely necessary, as he had no jurisdiction without it. Mr Tyler said that it had not yet been the practice in that Court. His Honor said, that might bo in cases where all was admitted, but not otherwise. Mr Pitt had been aTjput to take that objection, if his Honor had not pointed it out. Mr Tyler did not care, he would prove it without. He then called Thomas Mitchell who admitted that he had received a notice of appeal which was in writing. Mr Pitt objected to this course and his Honor concurred, observing that there had undoubtedly been some mistake in the case; if however the witness produced the notice of appeal, that would be sufficient. In this however the learned counsel failed, and a rather warm discussion between his Honor and Mr Tyler arose, in consequence of the latter insisting that in the previous practice of the Court, this notice had not been required to be proved. His Honor at last said that Mr Tyler was insulting him, by persisting in the repetition of the statement. Mr Tyler explained, that he had no desire to insult the Court; his own stupidity might have misled him, as to the previous practice of the Court. After a long consultation, His Honor in order to allow the matter to be remedied, adjournod the Court till two o'clock On tho Court rosumiug at two o'clock, the above Mining appeal case was adjourned till Eridaynext, in order to allow evidence of the notice of appeal to bo furnished. Subsequently Mr Tyler said that he was prepared with the necessary proof, and after some conversation it was arranged that the subject might be mentioned to-day with a view to its. being proceeded with at once.

The business of tho District Court is almost concluded. On Wednesday n mining appeal was sot down for trial but was postponed as will be seen by our report. Several insolvents passed through the fiery ordeal, and obtained i their conge from his Honor,