DISTRICT COURT.—CRIMINAL SITTING.

Westport Times, Volume III, Issue 409, 21 November 1868, Page 6

DISTRICT COURT.—CRIMINAL SITTING.

"Wednesday, Nov. 17. (Before His Honor, Judge Clarke.) LARCENY AS A BAILEE. John Hooper was charged with larceny as a bailee. Mr Pitt acted as Crown Prosecutor. The prisoner was undefended. He pleaded not guilty. George James llooke : I have known the prisoner for about fourteen months. In September last I delivered to him, at the Police Camp, a watch, with verbal instructions to him to deliver the same to Mr Wm. Harrison, Griles Terrace, along with a raffle paper. A few days afterwards I saw him in the street. I asked him if he had delivered the watch. He said" Yes ; that's all right." I next saw the watch in the shop of Mr Bruce, jeweller, Gladstone street. 1 never authorised the prisoner to dispose of the watch. By the prisoner: I gave you no letter along with the watch.

William Harrison : lam a storekeeper at Giles Terrace. I never before saw the watch now produced. The prisoner never delivered to me that watch or any other watch. By the prisoner: I never expected a watch from Mr Rooke. I had no message from Mr Rooke on the subject. Samuel Jones: I am a miner at Giles Terrace. In October last I bought from the prisoner the watch produced. He told me a woman had given it to him as a present. This was the case for the prosecution.

The prisoner said he had nothing to say, except that Mr Harrison was never authorised to receive a watch from Mr Rooke. The jury, without leaving the box, found the prisoner guilty, and he was bentenced to nine months' hard labor. STEALING GOLD "PROM MATES. James Mahone was charged with stealing a quantity of gold, of the value of £9 12s, from Hector Urquhart and others. He pleaded not guilty. The Crown Prosecutor stated the circumstances of the case. The prisoner, with some others, was at work as a miner on Poverty Terrace. The gold was kept in the hut occupied by the prisoner and the others. On the occasion of the first washing-up, Urquhart considered the gold was far from being equal to the prospects, and the yield contiuued very much less than the prospects. The prisouer was suspected, and another man was employed in bringing the gold into town. Subsequently the ground was abandoned, and, about that time, the party heard that the prisoner was selling gold to the Bank of New South Wales. They made inquiries, found it was a fact, and that the gold was similar to the gold obtained on the particular terrace upon

which they had been at work. The prisoner, iu explanation, stated that after the party had separated, he contiu, ued to work for a day—on a Tuesday—and that the gold in question was the produce of that day's work. But witnesses would be called who would show that he could not have been at work at the time he represented. The Crown Prosecutor, in conclusion, referred to the legal peculiarities of the case. Be submitted that there were circumstances in which the appropriation of a partner's property was theft, and he also quoted the 39th section of the Larceny Act, as applicable to such a case as that against the prisoner. The evidence iu the case was fully reported at the time it was heard in the Resident Magistrate's Court. His Honor was of opinion that a partner could not be indicted for stealing part of the partnership unless, as in the case cited by the Crown Prosecutor— Regina v. Rogers. 1 Cox, c.c. 13 —there were facts from which a bailment might be implied, in which case an indictment might stand. His Honor thought, with the CrownProsecutor, that the Resident Magistrate had done rightly in sending the case for trial. He hoped that public notice would be attracted to the question, in order that miners might be protected from such thefts. The jury accordingly returned a verdict of Not G-uilty, and the prisoner was discharged. ASSAULT AT ADDISON'S FLAT. Michael Cullen and George Blackwere charged with a serious assault upon Henry Christenson. They pleaded not guilty.

The circumstances under which the assault was committed, and under which the defendants had heen apprehended, were fully reported at the time of the occurrence. Christenson had gone to Addison's ?lat to work in a claim for his relative, Mr Brown of the Camp Hotel, who had purchased a share in the claim, at a bailiff's sale. On this account Christenson was obnoxious to some of the other claimholders, and, although they were friendly in their behaviour to him on his first visit, shortly after he had left their hut he was knocked down and so seriously assaulted as to be for some time confined to the house. He identified Black and Cullen as his assailants, and there was corroborative evidence of some of the circumstances given by the police. For the defence, witnesses were called who proved that Black was not in the hut or its neighborhood on the night in question, and they also stated that, after Christenson had left the hut, and after the cries of a person were heard outside, Cullen continued in the hut and in their company. His Honor, after summing up the cases, said it would be for the jury to say whether they thought there was sufficient identification of Black to warrant a conviction. There were no corroborative circumstances to assist them, or anything beyond the testimony of the prosecutor, and Black had neither been previously seen by the prisoner, nor had he been at the hut on the night in question. The prosecutor misiht be stating what he thoroughly believed to be true; still something might be attributed to the state of excitement in which he naturally was at the time. If the jury had any doubt as to Black, he recommended them to give him the benefit of that doubt. With regard to Cullen, it was for their consideration whether they were to believe three or four witnesses who had positively stated that he had not left the hut for fifteen minutes after the cries of Christenson were heard. If these witnesses were to be believed, Cullen could not be the person, or one of the personswho had assaulted Christenson; but, against their evidence, there was the distinct identification of Cullen by Christenson, who had seen him in the hut only a few minutes before, and there was the subordinate facts that the witnesses were Cullen's mates, and that tbeir evidence was suspiciously similar.

The jury were absent for about an hour and a half. On returning they found Michael Cullen guilty of a common assault, and George Black not guilty. Michael Cullen said —I have neither been justly nor fairly dealt with. It is a well-known fact that I am innocent of the charge, and I have been unjustly dealt with. That's all I have to say. His Honor said the observations of the prisoner tended rather to aggravate the offence. Indeed his whole conduct throughout had been extremely reprehensible. Had the Crown Prosecutor not abandoned the chief count in the indictment, the prisoner's sentence would have been eighteen months' imprisonment. As it was,the sentence of the Court would be that he be kept to hard labor for nine months.

This concluded the criminal business ■of the session, and the Court was adjourned until cleveno'clock, Wednesday when the appealed mining case between Luko and party and Perry and party will be heard.

"Wednesday, Nov. 18. (Before His Honor, Judge Clarke.) XVKE V. PEKiIY. —I'IiOXXAOE SYSTEM. nuneoETi.Ni 1 case. His Honor took his seat on the bench at ekven o'clock. The only case to be heard under the appellate jurisdiction of tho Court was the appealed case of Luke and party v. Perry and party, both miners at Giles Terrace. The appeal was made by Luke and party against the decision of the Warden at Westport (Dr. Giles). Luke and party had been the complainants in the case heard in tho Warden's Court, and Perry and party were the defendants. The appeal was heard before four assessors—Messrs Grady, Yv r cst, Roach e, and Bull. Mr Tyler appeared for the appellants and Mr Pitt, with whom was Mr Button, of Hokitika, appeared for the respondents. Tho grounds of appeal were—that the decision was contrary to the weight •of evidence ; that it was contrary to the spirit and intention of. the Kelson South-Y/est Goldfioids Eulcs and Regulations ; and that it was bad both at law and in ecpiity, and the appellants were therefore aggrieved by it. Mr Button took objection to two of the grounds of the appeal, one of which was that the decision was " contrary to the spirit of the rules and regulations of the South-West Goldfields," and was "bad both at law and in equity." He objected to those grounds as too wide and general. His Honor said it was usual to insert a ground of appeal such as the second,. although it might have no definite meaning. "With regard to the first ho thought it too general. Mr Tyler was agreeable to amend the first ground of appeal to the p.ffect that the decision was " contrary to the spirit and intention of the eighth part of the rules and regulations of the Nelson South Goldfields ;" and this •amendment was agreed to. Mr Tyler opened the case for the appellants. Their original complaint, heard before the Y/arden, was that on the 10th of August last, the defendants unlawfully interfered with their claim, and that they should be adjudged to desist from such interference; This complaint was made under the first •clause of the seventeenth part of the Rules and Regulations of the Nelson Goldfields. On that complaint a summons was issued, the case heard, and judgment given for the defendants with costs. He proceeded to state at length the circumstances under which the two parties marked off their claims, and quoted the particular por- ! tions of the rules and regulations which were applicable to these circumstances. Ho called the following witnesses : R. 11. Coe, William Luke, Cornelius Gilchrist, George Hums, William Watts, John Gardiner, Richard Hume, Angus Sutherland, Robert Brown, Donald Beaton, and John Mees. The evidence of these witnesses concluded the case for the appellants. Tho case was so fully reported when before the Warden, and the evidence would be so incomprehensible without references to plans, that we do not report it. TircmsDAY, Nov. 19. His Honor took his seat upon the bench at eleven o'clock. Mr Button said that, upon consultation with his learned friend, Mr Pitt, it had been determined to take His Honor's opinion as to whether assessors could properly sit in the Appellate Jurisdiction of the Court. He contended that they could not. The other side might object that it was too late to take the point—that the objection had been waived. He, however, should insist that although an irregularity might be waived, it could never be argued that a jurisdiction which did not exist at law could be conferred by a waiver. Mr Tyler having replied, His Honor said he did not think it was too late, but considered that assessors could sit. A note of the objection was taken at the request of the respondent's counsel. Mr Button then addressed his Honor upon the law, aud contended that there was no question of fact to go to the assessors, which could in the least affect the main question at issue. It was purely one of law, involving the construction of the Goldfields Regulations. The learned gentleman argued that the ground claimed by the appellants must come either under the tunnelling rules part 8, by which the appellants were, by the amendment of their notice, confined, 'or be considered as an ordinary

under the general regulations. Now it was admitted on the other ride, and the evidence abundantly proved, that it was not a tunnelling claim, as contemplated by the rides. The Counsel on the other side had complained of the inapplicability of the rule?, and of the distance allowed for tunnels. Ho was not there to dispute hardship or inapplicability ; ho found the law, and that they must abide by. Then the ground claimed by the appellants was not; a claim under the ordinary regulations. It was, to begin with, about three times the area allowed, and in the next place it was not even pretended that it was so held; therefore he contended that the ground must be regarded as unoccupied ground, and liable to be pegged off at any moment, Upon these grounds he very confidently asked his Honor to direct the assessors that the respondents having pegged off this ground were entitled in iaw to hold it. Mr Tyler-, in reply, urged the equities of the appellants' case, and, at considerable length, remarked upon the objects and intentions of the framers of the rules, and their desire to induce miners to expend their time and capital in tunnelling for leads of gold. The learned gentleman remarked upon the conduct of all the parties in taking up ground under the same circumstances, and argued that the appellants were entitled to an equitable consideration at the hands of the Court. By the rules, protection was granted for tunnelling for a distance of GOO feet, but the selection of that number had been made evidently on the supposition that the leads of gold were usually struck within that distance from the face of the hill or terraces on the "West Coast. But in this case the conditions did not admit of the rules being so carried out. They were not applicable to the circumstances, for two reasons—it was neither practicable to get at the gold with a tunnel of 600 feet, and it was impossible, if the ground were to be worked profitably, to drive at right angles to the lead. In that case, was it not the province of the Court to apply the rules, as far as they could be applied, to the existing state of things ? Knowing the difficulties of the case, the parties had (Explained them to the AVardcn at the time, and they all proceeded to tunnel the ground on a mutual understanding that they were driving to the claims which they had marked out on the face of the terrace. On that understanding Perry and party had also driven, and, for their numbers, were really occupying a much larger area of ground than was occupied by Luke and party —in fact six times as much as they 'were entitled to. Were they, when coinciding with this arrangement up to the moment they struck gold, to be allowed to abandon the agreement and design which were imposed upon all parties by the peculiar conditions of the ground—to act a lie—and to possess themselves of the gold found in the claims of others, when driving to their own'? Mr Button replied, and asked his Honor to sustain the objections he had made. His Honor said that, whatever might bo Ids opinion, it would bo unsatisfactory for him now to withdraw the case from the assessors. The Court was adjourned- until two o'clock. On the Court resuming, Mr Button stated that it was not his intention to call any evidence to establish the case of the respondents. Mr Tyler urged that the respondent's case should be gone into, believing that it would tend further to establish that for the appellants. Mr Button insisted that the case rested entirely upon the points of law which had been raised. His Honor, addressing the assessors, said it might be somewhat satisfactory to them that they were relieved from giving any decision in the matter. The read points in the ease were admitted. It, therefore, rested upon a point of law, and it would not be necessary for him to go so fully into it as if it had taken a different turn. He might state this—that the principal fact relied upon by the appellants was the circumstance of iheir having taken up this piece of ground, and —as it was represented in the opening, although it did not satisfy him—of their having been granted an extension of that ground by the Warden. Supposing, however, that the Warden had made such a grant, he had no power to do, so ; ho had no power to grant any extension of ground. In fact the question whether this piece of ground was extended or not had nothing to do with the ease. If the appellants moved their pegs for the purpose of extending their ground, they did so illegally. The ground was, therefore, vacant. It appeared, then, that Perry and party,

as soon as gold was struck, marked oft' what was called a block claim. That was the first time that thoy knew anything about block claims under those rules. The object in taking up such large areas was to give the parties a chance of striking gold, and, when they did so, to mark oil' these block claims. That was done by Perry and party. Whether they had a right to the ground which they occupied by doing so, it was not for the Court to decide. The whole thing was obviously a mistake from beginning to end, and on the part of all parties concerned. This, however, did not improve the position, or establish the right, of Luke and party. It was incumbent upon Luke and party to upset the claim of Perry and party by proving their own title. They had failed, however, to show their grounds of title. In short, upon the point of law, all the facts amounted to nothing. Besides the other circumstances, reference had been made to an arrangement between the parties, but of that arrangement he had had no evidence. Even if there were evidence, it was an arrangement which could not hold good; it was an arrangement which could not be binding on any of the parties. The law, in such a case, could not be strained to suit particular parties. Equity could be administered so as to tone down the fall effect of the law to a certain extent, but it could not overturn an Act of Parliament. However desirous these parties might have been to act under a frontage system, the system in this case was not a frontage system —a system which, in the colony of Victoria, had led to the greatest amount of litigation. Here there was nothing to guide them as to the frontage system. At all events, whether Perry and party had the right or not, they had done as far as the rules required—that as soon as the gold might be struck, they should mark off a claim. It was not necessary for him to go into particulars as to how these blocks were laid out. They w r ere obviously inconsistent with the rules and regulations. They were not taken from the face of the hill, and the blocks were altogether much more extensive than the parties had any right to hold They were, as he had said, altogether in a mistake. This, however, did not specially affect the question before the Court. The question was, had the appellants made out their case or not ? Had there been such an interference as that which was complained of? In his opinion there had not been such interference. The ground of appeal had not been proved. It was of no use his alluding to the question of facts, because these were admitted. As to the question of law, it was simply against the appellants. Therefore, the appeal must be dismissed. He would take the sanction of the assessors on that point. The assessors, after consultation, said they agreed with His Honor. His Honor allowed £l2 as fees for counsel on the part of the respondents, £lO of which had been paid into Court by the appellants, Luke and party. The appellants had also to pay the fees of Court, and their own witnesses. The assessors contributed their fees to the Hospital funds. ESTATES IST BAjN-KUTTPTCY. Mr Harris and Mr Yfhiteford explained to His Honor that there seemed to be some misapprehension as to the payment of fees to provisional trustees in bankruptcy. They had refused to make up reports until the fees were paid, and they wished to know whether they w r ere justified in that coui'se. His Honor considered that the course should be followed which was followed in the jurisdiction of the Supreme Court —that trustees were not bound to furnish reports until the fees were paid. The Court was then adjourned until noon to-day, when His Honor will hold a sitting for the hearing of applications under the Bankruptcy Act.