DISTRICT COURT, WESTPORT.

Westport Times, Volume VI, Issue 1017, 29 October 1872, Page 2

DISTRICT COURT, WESTPORT.

Fjuday, October 25. (Before his Honor Judge Harvey.) CRIMINAL BUSINESS. Regina v. Andrew M'Shane—The accused charged with maliciouslyassaulting John Williams, and discharging a gun at him on the 10th September last, pleaded not guilty. The Crown Prosecutor, Mr J. B. Fisher, stated the indictment, and the facts of the case, shewing that the prisoner, his mate, and the complainant, Williams, were small farmers, residing at Fern Flat, and there had been a standing dispute between them as to the right to certain ground held under the Agricultural leasing regulations, and that on the day in question prisouer attempted with his partner, to exercise right of possession, that Williams ordered them off, and threatened to remove by force a small house the prisoner had commenced to

erect, and that thereupon prisoner had fetched a gun from his dwelling and discharged it at Williams. John "Williams, storekeeper and publican, Fern Flat, deposed that on the 10th Septemher last he saw the prisoner and his inato .Roberts, going into a paddock occupied by witness, and erecting there a bit of a house, about 6 feet by 0 feet, covered with calico. There was a previous dispute between witness, Roberts, and the prisoner, as to the ownership of the ground whereupon this erection was placed. Witness went to his own house, yoked up his plough and horses and went towards the paddock with them to commence ploughing. M'Shane and Roberts came running towards him to stop him and both said witness should go no further, Roberts had a stick in his hand and he took hold of one horse while M'Shane took hold of the other; witness pushed M'Shane away from the horse he was holding, whereupon M'Shane said " will you fight me," witness declined, M'Shane then again seized hold of the horse, and witness again pushed him away, M'Shane then retreated about six chains oft', saying " I'll soon malec you," and then came up with a gun, and standing about twenty or twenty-live feet off presented it at witness, and said "look out lam going to shoot you." He then drew the trigger and fired the gun. "Witness was not hit, and ca'led to the men standing round to take M'Sh'me in charge. In the struggle with M'Shaue he dropped the gun and ran away, aad Tom M'Grath followed him. M'Shane ran to the heap of stones, and taking one in his hand struck at M'Grath with the stone. Roberts then came up with the gun and gave it to M'Shane again, and said to M'Shane " give it to him." A man named Jimmy Haviland took the gun from prisoner, and present then all arrested him. M'Grath kept prisoner in charge until Constable Jeffries came down, he having been sent for.

By Mr Shapter: Went first on the ground on the morning of the lOfch, saw Roberts there, asked who was erecting tho hut, Roberts replied that he and M'Shane were to live in it, and he then called out for M'Shane to come up. Prisoner came up and witness told them they were building on his ground which he intended to plough. Roberts said they were building the hut to take possession of the ground. Witness said that he was best entitled to it, having fenced, cleared, and tilled it for five years, and that he would not allow the hut to be built, also that he was going to bring the plough down and commence to put in oats. Then went for the plough and horses, returned within half an hour, with three other men, one named M'Donald, the ploughman, Jimmy Haviland, and himself; his son came afterwards. It would take one man only to plough the field, the others came to work, or looking for work. Witness held the horses, but tbeir heads were not pointing towards the hut. When M'Shane seized the horses, witness did not say " what are you about boys? go ahead and I'll be responsible for any damages," merely said to M'Grath " are you going to let your horses be knocked about like that." M'Grath was theu holding the plough, and the other men were standing alongside. After the shot was fired, witness saw a knife in Jimmy the Rambler's hand, as he chased M'Shane. Witness was kept by Roberts close to the horses, until M'Shane brought back the gun, and fired. Don't know whether the gun was loaded or not, there was an explosion, and in t"h« senfflo afterwards the hammer of the gun dropped off. Did not actually see it fall off Have not made a bet with M'Ginlay of a new hat that prisoner would get sentenced to any number of months imprisonment. Merely made a fireside bet that he would be found guilty. Thomas M'Grath deposed that he was present at the occurrence with Williams and others. Roberts attempted to stop the horses yoked to the plough witness was driving. Williams was leading the horses, and tried to force his way on. Roberts had a stick and the prisoner got another which witness took from him and threw away. Prisoner then went to his hut, and brought his gun and said when right opposite Williams, " look out," and putting the gun to his shoulder, fired in the direction of Williams. Prisoner then clubbed the gun in his hand, and witness ran up to him. Prisoner then cither dropped the gun or gave it to Roberts and ran away. Witness followed and caught him, and kept him until constable Jeffries came.

By Mr Shapter Roberts and M'Shane came up together to the plough, as witness aud Williams came in to the field and tried to stop them. Did not see Williams put his han 1 on M'Shane, he might have done so without witness seeing him. Was standing 7 or 8 yards from the horses head, Williams asked him if he meant to see the horses knocked about, I then went forward and told prisoner and his mate not to (ouch the horses whatever they did to AVilliams. Witness took the stick from M'Shane, but did not strike him. When prisonerfired thegun he took a sido shot at AVilliams, looking from the point at which witness stood. When prisoner had the gun clubbed witness walked up to him, but said nothing. Jimmy the ltnmbler was then standing near the horses, or walking about near them. Never saw Williams's son threatening M'Shane. By Court: No blows were struck

before the gun was fired. A fterwards, young Williams and Jimmy took part in the struggle. Witness saw both M'Shane and Roberts come up to the horses heads, and each take hold of one. Before this they told Williams to go back. Williams touched neither of them before they seized the horses, nor did witness. Saw a tomahawk in Williams's hand after the firing of the shot, when witness had M'Shane a prisoner. Did not see Williams's son strike Roberts with a stick. Don't know who brought the tomahawk into the paddock. Constable Jeffuries, sworn, said on the day in question went to Fern Flat, on arriving there found the prisoner in the custody of Williams, and gave him up to witness on a charge of shooting at him. Cautioned prisoner that any statement he made would be taken in evidence. At prisoner's request went up to see the pegs on the ground in dispute, and prisoner said that he went to prevent Williams ploughing the ground he claimed, holding up his hand to put back the horses and that Williams had then pushed him away. Prisoner said he pushed Williams, and blows were exchanged. Prisoner said that he saw Williams had four or five men with him, and that it was no use to resist by forci, so thought to frighten them off, and went to the tent about two chains away, to fetch a gun. He came back and told Williams to clear off, and then discharged the gun at him. Witness asked him if he knew at the time whether it was loaded with shot or ball, prisoner said he did not know, that he and his mate had brought the gun there to shoot pigeons, but that afterwards Roberts had told him it was only charged with powder. Witness had the gun produced handed to him by Williams.

By Court: Noticed prisoner at the time of arrest. He was a little excited but bore no marks of violence, nor did any of the other man present. Mr Shapter pu!; in as evidence, Q-azette notices referring to the agricultural leases on the Goldfields and the certificate granted to Roberts and the prisoner, for occupation of the ground in disputeWilliam Roberts, sworn, said the certificate produced referred to the ground in dispute. The Court objected to the evidence as not being proof of any particular area of ground being grantedAfter argument by Counsel the examination proceeded.

Had seen Willi ims on ihe morning of the lOrh. Williams then threatened to tear down the calico hut, and that he would bring his horses and plough and turn it over. A quarter of an hour afterwards Williams returned, witness was then standing near the hut with M'Shane. Williams came with the plough and horses, luree men and his oldest son, two of the men were Jimmy the Rambler, and Yankee Bill. Witness and M'Siiane went towards them, and told them they had better not tear down the hut. "Yv ritness took hold of one of the horses, and M'Shane held his hands up to stop the horses. Williams was waving his arm about and struck M'Shane in the face with the back of his hand. Five minutes passed and Williams shouted to his men " come on men, any damages you do I'll be responsible for." The ploughman then came up. Young Williams said to M'Shane he would knock out his brains. Young Williams then commenced beating witness on the back and arms. Next thing witness saw was a scuffle between M'Shane and the ploughman, for a stick, and M'Shane got the ploughman down. Witness then had a scuffle with Williams for another stick, and Jimmy the Rambler joined in. Witness seized him and put him down, and he then walked away. Next saw M'Shane with tho guu in his hand, and he cried out "I'm going to fire," holding the gun to hiship he fired in the air, over Williams's head, but ten feet to the side. Witness had loaded the gun with powder only the day previously. Witness had loaded it thus because there had been rows and distm-bances and he thought to frighten away any intruders coming during the night to his hut, by firing it. Did not see the tomahawk in any one's hands until after the shot was fired. The tent has since been pulled down and thrown about four chains away across the river.

By Mr Fisher: Pegged out the ground two years since ; part of it had then been cultivated by Williams, and he has since continued to do so, notwithstanding the warnings of witness and M'Shane. The paddock was fenced in by "Williams, and he had a crop off it before they took possession. "When witness and prisoner put the hut up they knew of Williams's claim, and the dispute had been heard by the Warden. Williams's objection and the maps and papers had been referred to the Superintendent. He had no conversation with Williams since the hearing at the Warden's Court. Built the house to live in, and not for the purpose of taking possession of the land in dispute. Had another house, 14 chains off, but not more convenient for their work on this particular ground. The new place was built of calico and sawn timber, a tent in fact. The gun was lying outside the tent which they were building. M'Shane merely said " Look out I'm going to fire," but did not address Williams particularly. By Court: Began to build the hut about five o'clock in the morning; the frame was made previously. Brought the gun with other things down, as we intended to sleep there that night. Did not bring any blankets. Theliut

was fourteen chains or so from our larger dwelling. Had told tho Magistrate that M'Shane had hoi 1 the gun towards Williams, and fired over his head.

Mr Fisher's request that he might bring evidence to prove there was nothing else in the new hut but the gun was disallowed.

Mr Shapter, for the defence, pleaded that his client was justified in resisting intrusion on land between tho four corner pegs marking the area for which a certificate had been granted him, and as to which Williams had shown no proof of title except the verbal statement that he had on one occasion tilled the land, and that Williams had no right to assert his presumed title vi etarmis ; and in doing so had committed an indictable offence. As regards the assault, the whole question narrowed down to the firing of the gun. It had not been proved that the gun was loaded with anything but powder, nor that it had been fired point blank at Williams, but merely over his head. In fact the discharge of the weapon was as boys fired sometimes at crows, merely to frighten and with no intent to wound or endanger life. Mr Fisher argued that the plea of justification sot up by prisoners counsel could not be entertained, as being opposed to every law for the protection of the lives of her Majesty's subjects. It was a perfectly understood axiom of law that the man in possession was the man to defend possession against all comers, and that he might defeat force by force, sufficient to repel aggressors. In tbis case Williams was in actual possession of the land and was justified in taking men to assist him in repelling intrusion and as regarded the act of the prisoner, the attempt to frighten a man by firing a gun was an assault within the meaning of the statute, even if the gun was harmlessly loaded. The Judge in summing up and reviewing the evidence, gave as his ruling for the guidance of the jury that Williams being in possession was entitled to repel the intrusion of the prisoner, who had no right to attempt to take forcible possession, but should have asserted his alleged right by an appeal in court of civil law. The jury retired at half-past one and were locked-up till 3 p.m., when they were recalled by order of the Judge. The foreman, G-. Jarvis, stated that they could not agree as to the verdict. The principal point in question being as to who was the rightful holder of the land.

His Honor explained that the question did not affect the point at issue they were called on to decide, except so far that the person in possession would, prima facie, have the most right thereto. The question for the jury to determine was solely the alleged assault.

The jury were again locked up, and about live p.m. returned, and gave a a verdict of " Not Guilty." This ease closed the criminal business.

Saturday, October 26. IN BANKRUPTCY, He James Simpson—The bankrupt having failed to comply with the order made at the last sitting of the Court to prepare a full statement of accounts from the date of his bankruptcy, the Court now postponed further hearing of the case until December. Protection in the meantime being withdrawn. Be G-eorge Nicholas. By Mr Fisher. Mr Shapter for creditors. Applicant was examined as to disposal of certain property previous to declaration of insolvency. He said he had transferred his hotel furniture and stock-in-trade at Black's Point to Vincent Fama in paymentof£lsoborrowed money, which sum had been disbursed among creditors at Westport, all but about .£2O. The hotel when sold was worth about £BO only; in consequence of depressed trade. Applicant's wife was at present keeping a public house at Black's Point. She had left bankrupt at the time of the sale to Fama, and bankrupt had no communication with her since. Did not know where she got the money from to start in business. She might have put it by out of their former takings, as she had sole control and did a good business for some time. Bankrupt had been working in the Invincible Claim, holding a half share, w hich was also sold to Fama. Another half share in a broadside claim, the Golden Bell, on Adam Smith's line, was sold by some of the creditors, Eamsay, Franklin, Allison, and the brewer, under distress warrant from the Resident Magistrate's Court. Had sold property to Fama because he had previously taken legal action to recover debt. Mr Shapter applied for an adjournment of the case for further hearing at Keefton. The bankrupt, by his counsel Mr Fisher, expressed his willingness to this. Adjourned for hearing at Beefton on the sth November ; the bankrupt's wife to be summoned to then appear. lie Charles Bishop —ln person. The statement of accounts sworn to by bankrupt showed that his receipts for the six months previous to filing schedule, had been, from news-agency £2Ol 16s. aud from his hotel £6l ISs 6d; aud his payments on agency account £221 18s. 6dand on hotel account £SO. lis 3d. He had thus paid nearly £lO more than he had received which he accounted for as money he had previously put by. No evidence as to other liabilities was given. There was uo opposition, and the bankrupt stated that various creditors living on the terraces had promised to pay him

amounts due. Certificate and order of) discharge granted, conditionally 0 J applicant assisting trustee to realise' outstanding accounts due to the estate George W. Brown—Did not appear'! hut sent telegram stating that ho w not able to attend hy reason of want of funds. Case struck out. Protec. tion withdrawn.

Be C. A. Earwig—ln person. Bank.l rupt was examined as to the value ofl quarter share iu No. 1 North, Frank! M'Leans, Keefton. Said he hadgivenj £2O for it, and paid calls £%l The claim had not yot been registerejl but had been protected for a certain! time. He believed work was still J being carried on in the claim, and bad! been told by the manager, F. Powell 3 that it was worth £IOO. Allassetsin] tho estate had been sold at Ecefton and the creditors were principally] Ueefton and Greymouth men. Certain sums shown on the schedule as assets had been repudiated but bankrupt said they were all due. No creditor had proved iu the estate or opposed the application. Certificate granted. Be John Frederick Eockstrow—ln person. The requisite statement of account had only been filed the day previous to sitting of the Court, and the case was adjourned until Dec-ember next, to be heard, by plaintiff's request at Eeefton.

Be E. Valentine "Kirby—No final statement of accounts had been filed and bankrupt did not appear. Adjourned until next sitting of the Court.

Be James Kogers.—Mr Shapter ] applied to vary order of Court with- ] holding certificate of protection ap. plied for in June last; but then refused for twelve months owing to ! opposition of creditors in the estate. Bankrupts counsel now stated that such creditors were ready to afford Rogers further means, on condition that he first obtained protection, and put in letter from a creditor named Lamplough expressing his consent. The Court said on the first hearing of the case there had been no satisfactory explanation of an arrangement between Rogers and Grraham relative to transfer of shares in certain mining leases j showing prima facie evidence of a fraudulent preference. Eogers had obtained credit by reason of his presumed possession of this mining property, but afterwards repudiated his debts on the plea that he had made a verbal agreement with Grraham to sell him his three shares in mining leases for £l9 and a future supply of stores. He thus alleged that he had divested himself of any right to such shares on the 20th February, and on the 19th March following filed a declaration of insolvency. The total amount owing in the estate was £-190 15s, part of which was secured. Lumpplough could only claim £7 10s 2J unsecured debt, while other unsecured creditors were owed about £370. The application would be refused now and hereafter, unless a memorial was signed by the larger proportion of unsecured creditors.

The Court then adjourned sine die.