SUPREME COURT.

Press, Volume XLVI, Issue 7262, 23 January 1889, Page 6

SUPREME COURT.

SITTINGS AT JflSl PJSIUS. Tuesday, January 22. [Before his Honor Mr Justice Ward. ] i The Civil sittings were resumed at 10.30 ! ROSEWARNE V BUXI. AND OTHERS. The hearing of this case was continued. For plaintiff, Mr Joynt; for defendants, Mr Stringer and Mr Martin. ~ Mr Joynt said he proposed to call iretts Way mouth. ' The Foreman—Before Mr Joynt pre ceeds to call evidence, as we presume, witl reference to the condition of the meat, 1 may at once say, as it is likely to save time, that the jury have made up their mind upon the subject. I mention this as it may save the time of the Court in calling this kind of evidence. Mr Joynt—But the other side may have evidence on the subject contrary to that which I have already given. His Honor—Have you many more witnesses, Mr Joynt, as to the condition of the meat? _ Mr Joynt—A good many, your Honor. I may say at once that I will not call any more if the other side come to the same conclusion. The Foreman—Three of the jurors, your Honor, .have seen the meat themselves, and have formed their own opinion as to the quality. lam one of thos* who saw the meat, and I may say that if a hundred witnesses were called as to the condition of the meat it would have no effect as to the altering of my opinion. His Honor — Well, that seems to be pretty conclusive Mr Joynt. The jury have, it appears, had a view of the meat. When did you have this view, gentlemen? Was it immediately after the fire ? The Foreman—Yes, your Honor. As I have said I saw the meat myself, and have made Up mv mind as to the quality. Mr Stringer—Will the jury say whether they saw the meat in situ at the factory? The Foreman —Yes, some of the meat was seen at the factory and some whilst it was being removed at some distance from the factory. . Hfs Honor—There is just this, that the removal might change the condition, and, therefore, it would alter what die members of the jury saw. ■Mr Joynt—But we say, your Honor, that there was no bad meat at all there. His Honor—What I want to see is that the jury in the view which they tell us they had of the meat saw all samples. __ The Foreman—l think so, your Honor. Of course, I do not give any indication of the direction in which the jury have made up their mind on the subject of the quality of the meat. Mr Joynt—l take it the jury would not stop mc in calling the evidence I intended to call on this subject if they are against mc. His Honor—l don't know that, Mr Joynt. , ~ The Foreman—l may say that if a hundred witnesses were called it would not alter my mindon the subject. Mr Joynt—l think it is very hard that I should be cut off in the midst of my case. I have prepared ■ myself most thoroughly as regards this part of the case. I shall be prepared to produce themen who handled the sheep from the first. Your Honor will see that if anything arises out of the paucity of evidence, I should be to blame for not calling it. ' His Honor-Well,- Mr Joynt, when the jury say they have made up their minds on the subject, that is to say, that they have put down the floodgates of their understanding and refuse to bear any more, then it' Will be'of no earthly use counsel bringing any amount of evidence The jury tell you plainly. Mr Joynt, that they have made up their minds as to the quality of the meat, and therefore it seems that it would be utterly useless to go on with that class of evidence. Do I express your views, gentlemen ? The Foreman—Yes, your Honor. Mr Joynt—Well, your Hon..r, I desire to call evidence, as to the water which was pumped on to the fire that morning. It was insinuated by the defence that the water was foul. . * . _. .. v PfSF. .H*.HobbSi a,memb«t"Of the Christftsfwrcb; Fire deposed that the water used by the ermine was perfectly sweet. .He drank the water several times during the morning. ■ Tiy Mr Stringer—The "railway engine Was below us on the creek -near the bridge crossing the line. "" Charles Armstrong, a member of the Christchurch Fire Brigade, stated that be had drunk the water in the creek several times during the morning of the fire. It was perfectly sweet. Mr Joynt said the question might arise on the taxation of 'the costs'as to'the "expenses of t the witnesses who had been Summoned by him if he did not call them. iTbey were all relevant, i :Jifs Jury having said what they have, there is.no reason at all to call them. Could not an"arrangement be fjme to that the expenses of these witesses should be paid ? v Mr Stringer said he would not take any objection or advantage to the witnesses not having been called. , His Honor—Then, I presume, Messrs '. Martin and Stringer, youwill not call evidence on the point referred to by the jury- after what -they have said on the matter. ' . _ '.. Mr. Martin and Mr Stringer stated that tbey did hot intend to call evidence Of this class. ■■' '■'■'■ - ; •• '■■-•'■••■■'•

Mr-Joynt : said he desired to call one witness' to* disprove Mr GressweU's evidence as to • the meat becoming stinking after eight days.

Samuel McCracken deposed that he sorteo the various carcases at the Belfast Factory. - He was at work about nine days. Some of the-carcases smelt a little fusty after some days.' The good carcases did not, as they were frozen hard. The last day-some that had been burnt smelt, but they were not what could be called Stinking. .

Joseph Randle Rosewarne deposed that he was the pluintiff in the action. | The witness then' went on at some length to described the negotiations for the purchase of the' sheep by Cooper and himself, and the condition of the carcase? as seen by him at the works.] Witness bought 0544 carcases ai.t the commencement; of these46ooodd were boiled down, leaving roughly about 2300 for sale. Of these 1053 were sold by auction at Belfast. Of the others 653 were sold by witness at his shop, and 453 at Mr Cooper's. On Monday,. Tuesday, and Wednesday witness could not supply the demand. The denijind continued up to the Thursday, then the demand fell off very considerably. The demand did; not revive again. Folly 1500 of those boiled down -were as good as those sold in the shops. • They had to be boiled down in consequence of the demand "falling off. The meat was bought by witness' regular customers land the outside public. The latter, bought for cash. If tbe demand had kept up witness was nearly positive he could have sold quite one thousand more carcases. Witness made more profit out of the sheep sold in the ' shop than boiling down. He reckoned that the receipts for each carcase came to Bs, whilst the cost was Is 9d, leaving a profit of 3s 3d per sheep. The tallow from those boiled down came to 3s 8d per sheep, or £774 for the whole number. The cost and expenses were-£387 2s 7d. His share of the profit came to £11)3 8s 84d. Witness attributed the falling off solely to the advertisements. The loss would be the difference between the profit made on the sale of the sheep' in the shop and that made on those boiled down. The net profit on 1000 sheep at 6<* 3d was £312 10s, and deducting £1938s Bd, half profit on the tallow, left £119 ls4d which he calculated as his loss. When he found the sale had been checked owing to the advertisements he sentali the carcases remaining to the boiling-down factory. Those who had had the meat came again, but, as he had sent away the meat, he could not supply them. The meat was very good, and witness had had it himself; it was very good and could not be better. The advertisement that he had disposed of two thousand carcases of. the soiled and burned was merely a trade advertisement. His Honors-Is that your idea of a trade advertisement? ... - . Witness, said lie had .no idea when he put the advertisement in beyond calling attention to it. Several butchers came to witness for frozen meat. Witness supplied the' Chriatchureh Clnb, Coker*s Hotel, the Empire, the Hereford, and others. All these had frozen-meat supplied to them, and there was not a solitlgy complaint; -- by Mr Stringer—Tie %st advertisement stopped the sale of the injfttoa. The inntton hams saved by witness would come to about £20. After Monday, lOfch, the carcases at Belfast were not fit for sate. There was a! very steong nor'-wester, and the place was being opened up by the carpenters. The people who came a second time for the mutton were supplied, bat the demand 'was not so great. The purchasers at auction had to take the carcases as they -hoM, Witness had no motive in stating

that the 2000 carcases sold were soiled and burned. He desired the second advertisement as an explanation. His Honor—You see, Mr Rosewarne, that if you say that the carcases which you say were as cood as those which you sold in the shop were soiled and burned, you cannot complain of other people saying it about yon. T .„ Mr Joynt—Oh, no, your Honor. I shall be prepared to show that there is a great difference. _„.. Cross-examination continued— V* lcness meant his second advertisement as explanatory of the first, meaning that the carcases had gone to the boiling down factory. Witness intended to give the trade a rap for their advertisement. By " cag mag," in his second advertisement, he meant second-class meat. He meautto imply that several of the butchers bought second-class meat. He understood that "cag mag" meant bad meat—an old cow. Wituess put the advertisement m the Press as well as in the Lytteiton Times, so as to give them extended circulation. He did not know that the Press people cut out the words with reference to "cag mag." He only knew that he paid for the advertisement. He intended the advertisement as a slap at the butchers for stopping the sale of his meat. Witness charged the Christchurch Club, Coker's, and the other hotels the ordinary price for frozen meat. He did not get any message from the Empire or any other hotel to stop sending frozen meat. He got a message from the Insurance Companies to remove the carcases as they were in the way of the builders. Re-examined by Mr Joynt—The tallow was the only thing divided between Cooper and witness. Neither had any interest in the other's sales of carcases at the shops. Cross examined by Mr Stringer—The meat that was booked to ordinary customers was charged at the same price as ordinary meat, though witness was advertising the frozen meat at Id per lb. It did not matter to the customers, as they did not know what they were getting. This closed the plaintiffs case. Mr Stringer said he did not propose to call any evidence.

Mr Martin said he did not intend to call any evidence. Mr Joynt addressed the jury for the plaintiff. Mr Stringer addressed the jury for some of the defendants, pointing out that the statements made in the second advertisement divested of the verbiage were substantially true. It had been stated in the advertisement that the carcases lay amongst the ruins. This was proved by evidence. Then it went on to say that the meat was unattractive. This also was proved by evidence, as all the witnesses testified to the fact that the canvas coverings were stained. It was further stated that there was filth in the ruins, and this too was proved pretty conclusively. Then Mr Rosewarne could hardly come to the Court and ask for sympathy when he had published an advertisement reflecting on the butchers, and publishing a, greater libel than the alleged one which .he now complained of. There was a very good exposition of the principle he was contend. ing for in one of the,cases in the book, where it was laid down that when a man entered upon a newspaper warfare he must not complain if he got the worst of.it. He wjuld also refer to the Pasquin case, which was tried before Lord Kenyon. In this plaintiff, who was an author, complained of libel, but when Lord Keuyori read the works of the plaintiff, which were far more libellous he, to use the words of the book, crumpled up the parchment, threw it at the plain till, and dismissed him from the Court with iguom'ny. His Honor—l do not think I shall follow that precedent, Mr Stringer. Mr Stringer then went on to say that the decision of Lord Kenyon came before Lord Ellenborough, who said that the decision was one with which he perfectly agreed, as being sound law. but he somewhat differed from the manner of delivering it. Under all the circumstances he submitted that the plaintiff was not entitled to a verdict.

Mr Martin, who appeared for some of the defendants, urged that as regarded Jackson Bros, jaothiug to conn^^themwOtStlwa^irtirtfsemenTi.^ Mr Joynt said he took it that Jackson Bros, might be considered as out of the case. The learned counsel then went oa to deal with the various points of the case, submitting that the allegations in the advertisement were sustained by the evidence, and that the plaintiff had suffered no damage. His Honor summed up, and pointed out that there was no question that in laW the depreciation of the goods of one tradesman by another constituted slander. There was no need for him to go into this.' It then became necessary to see whether there was evidence of publication. As far as Messrs Jackson Bros, were concerned, they might be at once dismissed from the case. As regarded Berry Bros., they only ■had the evidence of Mr Berry himself, and it was for the jury to say whether, aS he knew nothing of the advertisement appearing, be was connected with it. As to the rest, there was no doubt they were responsible for the first advertisemeut. As to the second, which was the more serious of the two, Hansen admitted that he heard something about the advertisement, but never saw it, and all the rest, except Harris, denied that they had seen the second advertisement. This being so. he did not see how the damages were to be assessed if the Jury found, they could award damages. Mr Joynt pointed out to his Honor that Harris had stated that at the*ya-ds it was arranged that one or two advertisements should be inserted, and that Aherne should have carte blanche. .

Mr Stringer pointed out that they gave Aherne certain notes, and certainly did not empower him to put in a libel. Mr Joynt suggested that it might be put to the jury to say who was responsible for the first, and who for the second advertisement, and the damages on each.

His Honor then went on to comment on tbe advertisements, pointing out that Mr Rosewarne had opened the ball by stating that he had sold 2000 of the soiled and burned, reserving only the good for himself. This being so, could he come to the jury and ask for damages? This was a question for the jury to consider as regarded the first advertisement. As regarded the second advertisement: The advertisement appeared in the Lytteiton Times on Saturday, December Bth, and it appeared that, notwithstanding the advertisement, Mr Rosewarne did a pretty good trade in the frozen meat. It would be for the jury to consider on the whole whether Mr Rosewarne was entitled to damages. The jury would have to take into consideration the fact when they were assessing damages that Mr Rosewarne had supplied the Christchurch Club, Coker's Hotel, and other places, where there was considerable consumption, with frozen meat at ordinary prices. The Jury retired at 1.20 p.m. to consider their verdict, and at 1.55 returned into Court with a verdict of £5, divided amongst nine defendants, excluding Jackson Bros. Mr Joynt moved for judgment for plaintiffs for the amount. Mr Martin moved for judgment for defendants for Jackson Bros. His Honor entered up judgment for plaintiff's for £5, with costs on the lower scale; and for defendant in the case of Jack, son Bros, with costs on the middle scale* DAVIS V MILLER. In this case Robert Davis was plaintiff and — Miller defendant. In the year 1881 the plaintiff purchased a small piece of land situate ac New Brighton, but got no transfer. The plaintiff now asked that he should be declared to be the owner of the land. Mr Slater appeared for the plaintiff, and there was no appearance of defendant. Robt. Davis deposed that be purchased the piece of land referred to, and paid £15 for it to Mr Withers, the clerk to Mr Matson. He got tbe certificate of title produced, but did not get a transfer. He had lost sight of the defendant Miller altogether, and had not been able to obtain a transfer.

Gideon Withers deposed that he was a clerk to Messrs Matson and Co. He remembered tbe sale of the land in question in December, 1881. He was instructed to sell by Mrs Miller. Witness signed the receipt produced, and gave it to plain till. Witness paid the money received from the plaintiff lor the land to defendant. His Honor said that the evidence was sufficient, and he would make tbe order as prayed.'

IN DIVORCE. HOATSON V HOATSON AND GILPIN. In this case, after hearing the evidence for the petitioner, and there being no appearance either of the respondent or corespondent, his Honor made an order niffi on the application of Mr Beswick.

An interesting circumstance is reported by certain whalers lately returned to Norway. On the Lapland coast there was captured toward the close of tbe season an immense female piked whale with twins. The babies measured about ten feet each. According to Professor Cottett, of Christiana University, only once before has a like thing been heard of In conaectUm with the northern whale fishery.