DISTRICT COURT.

Westport Times, Volume III, Issue 512, 3 June 1869, Page 2

DISTRICT COURT.

(Before His Honor Judge Clarke.) Tuesday, June 1. malicious ixvfuby to buildings. Henry Collins was charged with the indictable misdemeanor of unlawfully and maliciously pulling down a certain dwelling-house in Westport of which he was lessee. The indictment contained three separate counts. On the list of jurors being called over, the Clerk of the Court (Mr Harris) intimated that there were nine absentees from among the number summoned, and seven from those whose names had been drawn. A fine of £2 against each of the nine was recorded. Mr Pitt acted as Crown Prosecutor, and Mr Home appeared for the defence.

The Crown Prosecutor stated the case. The defendant was the tenant of premises in Molesworth street belonging to Mr J. A. M. Turner, watchmaker, who had purchased the leasehold from Adam Porter, and the freehold from Thomas Freeman. In April last the defendant left the premises, aud on doing so he pulled some of the buildings down. He was remonstrated with by the prosecutor, but he still persisted in the act, and did not desist until a warrant was issued. The Crown Prosecutor explained that, although the word " maliciously " was used in the indictment, it was not necessary that there should be actual malice proved. The law would assume that it was an act of malice against some one. The witnesses for the prosecution were J. A. M. Turner, Andrew Corrigan, Adam Porter, John Acheson Carr, and J. "W. Gr. Beauchamp. They proved the ownership of the property, the actions of the defendant in removing portions of the premises, and the construction of the building removed, which they described as attached by nails to the main building. Mr Home contended that the defendant, by his lease, held only a portion of land. He was not a tenant of buildings. The only clause in the lease which might be so rendered was one that all improvements should be left on the ground at the expiration of ten years. Mr Pitt, in reply, held that, although the defendant was not bound to put up buildings, if he did build the property became subject to the lease and must be left on the ground. Although not bound to build, all the covenants of the Conveyancing Ordinance came into force. His Honor was not inclined, on the point, to withdraw the case from the jury. Any person choosing to put buildings on land let to him, and attached to the soil, did precisely the same thing as if the property was there when the land was leased. How the building was attached to the soil was, however, a question of a different character and importance. Mr Home took some other objections as to the proof of the leases, but they were over-ruled by his Honor, who held that, though they were all worthless, the landlord's title was good.

For the defence John Clark and "Walter Bull were called. They described the building which was removed as self-supporting, detached, and resting only on skids, not attached to the soil. On that ground, and on the ground that the defendant was only tenant of the soil, and could during his lease move or alter his own buildings as he liked, Mr Home claimed from the jury a verdict for the defendant. In proof of the understanding which the defendant had as to his possesion of the property, he quoted the fact of Turner having, in his own evidence, stated he was in treaty for the purchase of the buildings. The Crown Prosecutor, in reply, contended that there could be no understanding but one as to the terms of the lease—that buildings put on the premises should remain, and could not be remored. And, although the general law did not apply to buildings not attached to the soil, the special agreement between parties was that all buildings or improvements should be left. Any offer by Turner did not imply that the offer was made for the buildings, but merely for the right of possession for the remainder of the lease. His Honor, in summing up, said the facts were very simple j indeed, undis-

puted. The defendant acknowledged his removal of the building, but stood on his right. The prosecutor stood equally on his right. Such a case was not recorded as having been previously tried in a Court of Justice, still there must be a first case on all points of law, and this case rested chiefly on a point of law. He had endeavored as far as he could to ascertain how the main building was attached—whether it was attached to the freehold or not; but he had not elicited any satisfactory evidence. "He considered that there was quite sufficient evidence to show that there was, in the case of the building removed, an attachment which rendered it a portion of the main building. > A building even a distance from a main building, if connected by a roof, would form part of the same building. Here the building was attached to the other. Whether it could stand by itself or not, he had no doubt, as a point of law, that it was attached. The material question was how the main building was attached, and upon that point he would advise the jury to acquit the prisoner, for there was no proof whatever as to how it was fixed, or that it was in any way fixed, to the freehold. The jury, having retired for a few minutes, returned a verdict of Not Guilty; and the defendant wa3 discharged. labceot. Mary Ann Hanuah was charged with stealing two £lO bank notes and a cheque of the value of £2 10s. A fresh jury was impannelled. Eight whose names were called failed to appear, and a fine of £2 in each case was imposed. Mr Tyler appeared for the defence. Julia Hennigan: lam the wife of Patrick Hennigan. I have been acquainted with the prisoner for a little time. I went to her house about seven o'clock on the evening of May 24th., and I slept there for the night. I had in my possession two £lO notes, a <£l note, and a cheque for £2 10s. I had the money in a pocket-handker-chief, and placed it in my bosom. In the morning, the handkerchief was in the bed betwixt the prisoner and me. It contained only the £1 note. The other notes and cheque were gone. I asked the prisoner if she took the money, and she said she had not. I went to the door, and called a man to go for a detective to search the house. Constable Neville came. Mr Southworth came immediately afterwards, and he allowed Constable Neville to search the house. I found one note and the cheque behind a box near the bed, and used as a dressing table. The prisoner slept nearest to the box. The other note was behind a box used as a dresser in the other room. The prisoner was present when the last note was found. I was sober on the night I slept with the pi-isoner. By Mr Tyler: I went to the house about 7. I cannot be positive when I went to bed. It might be two or three in the morning. Mr Southworth was there, another man called Bill Dams, and another young man named Fred Jackson. There was some drink about. There was beer about all night. I had some beer. It had not the slightest effect on me. I saw Ike (Mr Southworth) to-day. He asked me if I would say one word—that I was drunk—and it would clear the prisoner. This is the first occasion on which I have lost or missed money. I never put any money away which I was unable to find. I never mislaid any in my own house. I once put the handkerchief under my bed pillow. I asked my husband if he had it, and I afterwards got it under the pillow. I never left £4O or any other sum with Mrs White or any other person. Mrs Haynes never had any money belonging to me. It was about half-an-hour before the Constable came. I was looking for the money during the time, and the prisoner was worrying about also, tearing down the paper. When Ike came in he said he was very sorry I had lost the money, and that if he had been there it would not have been lost. He afterwards said he was glad I had found the money. The prisoner said she knew nothing about it. Ido not think it possible that I hid the money myself.

Ee-examined : Tbe only persons in the house, besides the prisoner and me, were two children of mine and one of hers.

By the Court: I believe it was the prisoner who fastened the door after the men left, if the door was fastened, but I do not know that it was. I saw the handkerchief in my breast when I went to bed. The men were in the house when I went there, and were drinking beer then. The room is quite a small one. Constable Neville: "When I went to the house, and was told, in the presence of the prisoner, that she had lost some money, the prisoner said she knew nothing about it, and defied me to search for it, as I had no search warrant. I searched the house, with Julia Hennigan and Ike Southworth. I was close to Julia Hennigan when she pulled out a box from the wall, saying " "What is this ?" It was a £lO note and a cheque. A second note was found in the other room, between the cupboard and the wall. I then arrested the prisoner.

By Mr Tyler: I declined to search at first, because I had no warrant, but the owner of the house, Mr Southworth, gave me leave to search. I could not see that the prisoner was under the influence of drink. She certainly conducted herself in a peculiar manner in the court at eleven o'clock. She was remanded because Julia Hennigan would not appear to prosecute.

By Mr Pitt: Julia Hennigan was sober that morning. Mr Tyler asked His Honor, at the conclusion of the evidence, if there was a case to go to the jury. His Honor thought there was, although it might be a weak case. Mr Tyler addressed the jury for the defence. The questionable sobriety of the parties, the tendency of the prosecutrix to conceal her money, and the action of the prisoner in the morning, when she had sufficient time to replace the money or to thoroughly conceal it, wore all circumstances in the prisoner's favor—to the extent that not only was the charge not proved, but that she was innocent.

Isaac Southworth, called by Mr Tyler, said he visited his house at 12 o'clock, and found the two women and the two men named by a previous witness in the room. They were drinking beer out of cups, and were under its influence. They were pretty well tight. He staid about ten minutes, returning to Mr Trimble's bar, where he was engaged. He called again between three and four in the morning, and they were still drinking. In the morning, when the money was found, the prosecutrix said she had probably mislaid the money—that she did not want to do the prisoner any harm. He denied that he asked the prosecutrix to say that she was " tight "-—he knew that she was " tight."

William Dams said he was in the prisoner's house on the Queen's Birthday evening. He came away in the morning with Mr Southworth, when he called. All that were there, including the prosecutrix, were the worse of drinlc. He was not drunk not beastly drunk. The Crown Prosecutor left the matter to the jury, under His Honor's direction. His Honor, in summing up, said the evidence was certainly very unsatisfactory for a conviction. The jury, without retiring, found the prisoner Not Guilty; and she was discharged. These were the only criminal cases for trial.

Wednesday, June 2. His Honor sat at eleven o'clock for the bearing of muring appeals. MARSHALL T. TUPPER. Mr Pitt appeared for the appellants, and Mr Tyler, with whom was Mr Button, for the respondents. Several technical objections to the appeal were made by Mr Button, and one objection was argued at some length by him and Mr Pitt. It had regard to the mode of inserting the names of the parties to the appeal. It was insisted by Mr Button that, according to the regulations, the names of all the parties concerned must be given. Mr Pitt referred to cases in which the formula of " Marshall and party" or " Tapper and party" had been used as in the Court below, and had not been objected to. His Honor said that, although the objection had not been taken, he had on several occasions directed attention to the irregularity; and he dismissed the appeal, but without costs, as he thought the appellants had been led into the error by the case being so headed in the lower Court.

baeker and anotuer v. tapley's and BEADLE Sf's PARTIES.

Mr Pitt and Mr Home appeared for the appellants, and Mr Tyler and Mr Button for the respondents. The same objection was made by Mr Button; but His Honor would not entertain the appeal on account of the incompleteness of the certificate.

To-day His Honor will hear the applications in Bankruptcy.