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SUPREME COURT,— Saturday, June 7. (Before the Hon. Chief Justice Arney.)

The hearing of civil causes was begun to-day.

SPECIAL JURY, Messts. James Williamson, (foreman) ; James T. Boylau, James Burfc, Henry Gilfillan, Walter Giahara. Win. Hobson, Robert McLean, Thomas 1,. Macky, John Roberton, Samuel Rout, James Smait, and Robert Waterston.

BUSBY V BELL. This was an action of libel, brought by the plaintiff, James Busby, of Auckland and the Bay of Islands, a;aiust Francis Dillon Bell, Corainiesioner of Land Claims. Damages were laid at £5,000. Mr. Busby was unrepresented by counsel ; Mr. Bell was defended by Mr. Wlutaker, of the firm of Whitaker and Russell. The following is a copy of the declaration ;— The plaintiff saith that in or about the month of September, 1860, the plaintiff transmitted to his Excellency the Governor of New Zealand, a certain paper writing or memorial for the pin pose of being forwarded to his Giace the Duke of Newcastle, and the same paper writing or memorial having been referred to the defendant for his comments thereon, the defendant in making his said comments thereon falsely and maliciously wiote and published of and concerning the plaintiff in the words following :— " I received the icference on the 31st October, but it was not till yesterday I could find time to go through Mr. Busby's memorial and its long appendices. I really wish to offer no observations on these papers. Tf I were to expose the exti.ivagant misstatements in which they abound, I should make as big a volume as they do; and as regards the particular land claim in winch Mr. Busby prays the interfeience of the Secietaiy of State, I was sustained by the Chief Justice in every point I had taken, and I adhere to the decision communicated to Mr. Busby It has been in his power, atany moment he pleased, to obtain a giant by surveying the claim as the act lequired it. Foi reasons best known to himself he has never done this, and has insisted on my issuing him instead scrip for a pnrticulai sum which I have steadily lefused to do. A gentleman who asks the serious consideration of the Secretary of State to statements such as I have noted below is obviously not open to the influence of leason or common sense. — F D Bell, November 8, I860." " The proceedings of the geneial government and legislature as well of some of the six provincial goveuvments bear more resemblance to those of a society of gambleis intent upon securing a large stake for themselves, thau to the oidinary functions of government, exercised for the benefit of the community." (Pamphlet of 1858 pieface ) "For I, who have set myself to get rid of those monstious impositions on human credulity and human patience, called the New Zealand Constitutional Act and Responsible Government." (Ibid, page 11.) "In the history of governments, ancient and modern, the ingenuity of man has not been able to contrive a system that did moie to stir up party strife and ill-feeling, and to corrupt and debauch the people than the constitution of New Zealand with its responsible government." (Ibid, page 15.) "I express a decided opinion that they who acted upon "The good old mle, the Bimple plan That they should take who have the power," were respectable, when compared with the men who | framed and would carry out Mich a provision as 'this," &c. (Pamphlet, 1860, page 15.) , Wheiefore the plaintiff seeks to recover the sum of £5,000. To this declaration the defendant for plea saith— That he did not publish the matter of and concerning the plaintiff as in the declaration alleged ; and for a second plea the defendant says that before and at the time the defendant wrote the matters of and concerning the plaintiff in the declaration mentioned, he was, and still is, a land claims commissioner, appointed under an act of the general assembly of New Zealand, intituled " The Land Claims Settlement Act, 1856," and being, as suoh land claims commissioner, an officer of the government of the colony, his excellency the governor of New Zealand lef erred the paper writing or memorial in the declaration mentioned to the defendant, as such officer, for his comments thereon, and the defendant in making his said comments as suoh officer as afoiesaid, officially wrote and sent to his excellency the Governor of New Zealand the matter in the declaration mentioned, aa he lawfully might ; 'and for a third plea the defendant says, that with the paper writing or memorial in the declaration mentioned, the plaintiff transmitted to his then excellency the Governor of New Zealand several papers and documents, and that the said memorial, papers, and documents, -were referred to the defendant, as such officer, as in the second plea mentioned, for his comments thereon, as in the declaration mentioned, and the defendant says that suoh matter is substantially true. On the 1 10 th of May the plaintiff, by way of replication, saith, that as to the first pleafi he joins issue thereon; that asjto the second plea, the plaintiff saith' that notwithstanding the defendant being such' 'Hand claims commissioner, as in the said plea, set 'forth, it was not lawful for the defendant to write and send to his then excellency the governor of New 1 Zealand, in manner set forth in such plea, the matter in the declaration mentioned. That as to the third plea, the plaintiff saith that the laid matter in the declaration mentioned is not substantially true. Issues— Plaintiff alleges, and defendant denies, that the defendant published the matter of and concerning the plaintiff as in the declaration mentioned. The ,<}e- 1 fendant alleges, anhthe plaintiff de^iesj'tha't the "matter in the declaration mentioned is substantially true. -' Mr. Bosßif said' the case he vrtk about' &"taW"to l them was of a rather peculiar character, I 'antl would'require their patient attention.' He'WouWendeavour to give them a fltyrt outline of tlte mots, ifi'drder td ir'epare them-for' the receptldh of 'the eViden&Ve'-tfould lay before them bfthe peoulutr nature 'tff this 'action' as distinguished from ordinary aotions'for defamation. He would- briefly advert to 'the -law, merely tb-ghdw how the law was applied to faqta, and. then, ho wpyld lay betorej them the evidence under which he claimed damages from the defendant, and 'to prove that this was a case for aotual damage.' After having considered the facts, it waa for the jury, in their' judgment, to say whether this was a case in which the injured party was entitled to redress under the law, and if bo, to estimate the magnitude and nature of the injury which he had sustained, and for whioh he sought redress i The commissioner for land claims, to whom was referred the claim for' land undor a certain statute' of the legislature of this country) having delayed 1 to give his decision in a caie,

, theparty ftggriev,ed,(theplainti£F) applied to.the Governor, • requesting, him t |o .vindictfft^he fw^h o£ th^publjo, j wiuoh^M pledged tp/tb.e,parfry,whd considered himself ! aggrieved jroder ,» , different^tajflte, from (that amder* which tho,cpmmiisipuor,wM,empoiypreA'to act.' AFiAi'-t tine ,to 'ffMNewieoWt relief turnip* Governor, he t (the plaintiff) a pph e d r by ( meHionivI 1,,t 1 ,,to )^e Secretly of. iS^ate, in. the formal way, tending it' to the, Governor, with a request that it might, be, larded to the, JSecretory, of State for, the,, Colonies .The,, Governor sent the meinon*l to his minuter^ »nd by the , ministry it was sent to the commissioner of land i olaimi for his report thereon. fThe memorial to the Secretary of State was in the form of an appeal against the decision of the Governor, in not taking up the case as one in which the public faith was pledged, to. The commissioner of land claimß, who is thededefendant in this aotion r on receiving the memorial and certain other documents .forwardedjWith it by the,, plaintiff, wrote in relation" to that memorial,^ Which mfyuJ^Afcs'the-.cause-of action. It wa3 trans-* fiSSM to.'WSecretary of State by the Governor, and Itheieply of the .Secretary of State to the Governor,, .would 'enable them to judge of the injury which aroie' to the plaintiff from the transmission of this minute. "Mr. Busby then read the minute which appears above in the declaration, and continued. The jury would perceive that this minute ascribed the memorial as containing. go many extravagant misstateraent* as wo jsJd takefa volume to expose, but it did not specify a kngle instance of misstatement made in it. The minute also represented that the Land Claims Settlement Act required the claimant to survey the land claimed, and that it was because the plaintiff had not complied with the law, in that lespect that the claim had not been satisfied; audit led naturally, to the conclusion ihat the commissioner had decided the case, and that , ; it was through the fault of the plaintiff alone that the claim had not been satisfied. Now, the act under which the Land Claims Commissioner acted did not require a claimant to havahis claim surveyed ; but the rules laid down by the commissioner, for his own guidance, and which having been approved of by his Excellency in Council, had the force of law, did provide that in small claims the claimants should , have them surveyed, but not when claims were of , such magnitude as this one. He thought it would appear to them that the necessary tendency of these statements was to mislead the [Secretary of State, and from the leply sent to the" Governor it was evident it did mislead him, for the Secretary of State declined entering into the investigation of claims with which he said the home government had long since ceased to iuteifere and which had been dealt with by the colonial legislature,— v the opening up of which seemed to be the purport of the memorial. Mr. Busby then aigued that the ( malice of the defendant must be infeired from the contents of the minute, which had charged him with embodying exaggeiated misstatements in a inei orial and certain other documents transmitted to the Secretary of State, when in point of fact there were no misstatements in these documents, except two slight mistakes in figures, where £800 was in one place stated for £727; and 4,2?0 acies ,for 4,225 acres. When they consideied the position which he (plaintiff) held in relation to the Colonial Office, they would see what great injury that minute was calculated to inflict on him. He had been appointed British Resident in New Zealand by his Majes-fcy King William the Fourth, befoie this was a British colony, and had received instiuctions from the Governor of New South Wales ' as to his mode of proceduie in this countiy. When New Zealand became a colony, a dispatch from the Colonial Office to the Governor was received, piomising him an adequate public appointment in recognition of his public services, which promise had been communicated to him by the Governor. When in England at a subsequent period, the Earl of Derby had assured him that nothing to his detriment was in the lecords of the Colonial Office, and caused the Under Secretaiy of State to write to him to that effect, at the same time lenewing the piomise of a suitable appointment. When the jury therefoie consideied the relation in which he stood to the Colonial Office, they would see how great must be the injury he had sustained in the eyes of the Duke, of Newcastle, Secretary of State for the Colonies, fiom the communication of the minute written by the defendant. Mr. Busby then addressed himself to the law of the case, reading extracts from , Lord Campbell on libel, and Storey on agencies, to show that the minute in question could not be considered a privileged communication, and must therefore subject the writer to the consequences of its publication. He then said he would put in his appointment as British Resident in New Zealand, from King William IV., signed by Viscount Goderich, Colonial Secretary, and sealed with the seal of the Colonial Office. Mr. Whitakeb wanted to know if Mr. Busby had finished his speech, and was now giving evidence. Mr. Busby said he had finished his speech, but would comment on the evidence as he went along. air. Whetaker would object to that. The plaintiff could not be counsel and witness alternately in his own action. The Chief Justice remarked that gicat inconvenience might ariso fiom this cour&e. Mr. Busby had best fiuish his speech, and then wiud up by pioving what v.is necessaiy for his case, Mr. Bdsby desned to hand in his appointment ; but Mr. Whitakeb objected. Supposing i# to be admissable evidence, Viscount Goderieh must be called to prove it an original document. The Chief Justice— What harm can it do to admit it. Is it objected to that Mr. Busby acted as British Resident ? Mr. WhitakeU— No, your honor. I believe lie was legularly appointed and acted, but it has nothing to do with the case. However, I v ill admit it. [Document hauded in.] Mi. Busby then asked leave to put in evidence the instructions from Sir Richaid,Bourke, Governor of New South Wales, dated 13th April, 1853, adchessed to James Busby, Esq., British Resident at New Zealand. Mr. Wihtakcr objected to the document. He objected to going back seven or eight years beR-ie the foundation of the colony. The Chief Justice said if the document went to pi ove the position iv which the' plaintiff stood in relation to the colonial office, and if, as he alleged, that position had been altered by the action of the defendant, then it would become evidence. Mr. Chailes H. Mackintosh was called as witness, and proved the signature of Sir Richard Bouike, to the document. The paper was sealed with the public seal of the colony of New South Wales. The Registiar read a paragraph from these instiuctions, and Mr. Busby said he proposed to read a letter showing the relation in which he stood to the Colonial Office. This was objected to, and Mr. Busby said it was important that he should show his relations to the Colonial Office in order to establish his claim for £5,000 damages. The Chief Justice said no one attempted to impeach the plaintiff's chaiacter, which was unimpeached and unsullied. That he was accredited by the government was an admitted fact ; and the importance of his public services would be at once admitted by the jury. The only way in which he could make it evidence was to show that Ins character had been assailed by this particular publication. Mr. Whitakeb submitted that the sending of the minute to the Governor was not a publication by defendant : and even if the plaintiff Buffered from its communication to the Secretary of State, the publication was the act of the Governor and not of the defendant. Mr. Busby — The question is whether my position in the Colonial Office is of such a nature as to be damaged by this minute ; and to what extent it is liable to be damaged I can only show by establishing my relations with that office. The Chief Juswce — There is nothing in the declara ; tion setting out your position. I take it for granted that the highest personal tespect is paid to your posi f ' tion in society and elsewhere. No one disputes that. I think that Mr. Whitaker will admit that to any jury he' addresses. The Chief Justice then made a note of the objection to the admission of Lord Glenleg'a letter, recommending the Governor of New Zealand to provide for Mr. Busby a, suitable appointment. ' • Mr. Busby then sought to establish his claim to the particular block of land referred to in the memorial, by producing a letter from the then Governor of New South Wales, appointing C*pt Macdonnell an addl- , tional Resident in New Zealand, because he held land, and sanctioning the purchase of lands from the natives except in cases of disputed title, althoughhesa'id the origi1 nal claimants had been treated u if they" had been guilty of an offence in dealing with the natives of this country. The Chief Justice— Does that' document refer to the specific block of land the subject of the defendant's deoision ? \ ' v ' Mr. Busbt^-No. My object js' to show that the Goyernor did not objeofc to the abqulsitJon of land by European residents. ' ' ' ' ■ ■ ' The ' Cms]? ' Justice— The defendant cannot b made responsible for the acts of the 1 government man years ago. , Mr. Busby— What I blame him for is for preventing the consideration of these facta by the Secretary of State. ' ' The Chief Justice— The libel is that he sent a certain reply to the Governor of the colony. Whether the Governor of the colony sent it to the Secretary of State or not the defendant cannot be made anivverable ! for that. If you can show how tfyeso communications of etvrly times can affect the truth oFtiiis statement it r will b« adinusable, but I cant tell how. - ' " ' .

' 'Mr.~^Vr^#£pifeaw ftWtHiflinutrsKoNime amount of Uainageby the'extehttof 'injury TSuitained. " The CraEF-JußTlci-^But'no such special damage is alleged. 1 J All that 1 the' jury' Cari'ijlve'is damages arising directly from writing the "publicati6n referred to. 1 The plaintiff may bedamaged'in a way that no jury can be able to'redress,bufhe ean 1 only obtain damage* ari«ing> directly out of the publication of the libel. ' ' u Mr. Busby— lt' appears to me that my eridence will bring it into that category. The Chief-Justice— lf you are' to show' that you have lost your title to the- lands by the writing of this libel it should have been stated in the declaration, but there is nothing of the kind alleged. '' After some further discussion, and an objeotion by Mr. Whitaker, the Chief-Justice decided that the letter was too remote to be admissable evidence. Mr. Busby — The next document which I propose to submit is a dispatch from Lord Normanby, with instructions to the Governor in^rdation to these land purchases. " **•"*'■s?, "^ , Mr. Whitakbr— l object to this. -#&f f ' The Chief-Justioe — Are not these a series of doeu-, ments giving the history of the land claims in this colony ' Mr. Busby— Yes. The Chief Justice — Then I am of opinion they are not admissable in this case. It is an action of libel. Mr. Busbt— And of course it will show the jury how to estimate the amount of damage. After some discussion as to the admission of the document in evidence, the Chief Juttice inquired the date of the despatch, and was told it was in 1839, and his honor asked how that could be shown to be a result of a publication in 1861 ! Mr. Busby said it was not a result, but he used the document to show that the defendant's minute had prevented the Secretary of State investigating the land claim, which his predecessor had recognised in 1839. The Chief Justice— You must produce the Secretary of State to prove what was passing in his^ mind, and that it was this minute that prevented the investigation. [Document not admitted.] Mr. Busby then sought to read a letter dated Auckland, 4th January, 1854, addressed by himself to the Colonial Secretary of New Zealand. It came within the scope of the commissioner's functions. Mr. Whittakes objected. v The Chief Justice— What is the purport of the letter? , , Mr. Bdsby — It is to allow the law of the question affecting native title to be tried. Mr. Whittaker— lt is an invitation to the Colonial Secretary to fight Mr. Busby in the Supreme Court. (Laughter.) The Chief Justice — That class of evidence cannot be received. Mr. Busby — I now propose to read the memorial on which the minute was framed. [This document which, as well as most of the others in the cause, has been frequently before the public, was handed in and read.] Mr. Whitaker — I presume that is the whole of the documents. Did you not send printed documents with the memorial ' If so, you must produce all. Mr. Busbt explained that the pamphlets accompanying the memorial were only sent by him, in the "belief that Sir George Cornwall Lewis was Secretary for State, and as he hud written on the colonies that possibly the pamphlets might be of interest to him. t Mr. Whitaker — These pamphlets must be put in with them. Mr. Busby here tendered himself for examination. The Chief Justice remarked that it was a proceeding most prejudicial to the course of public justice for a man to be counsel and witness in his own case. When a hitch occurred in the case the counsel became witness, and might alternately act in either capacity, proving whatever piece of evidence he found necessary as he went along. To prevent this, he suggested to the plaintiff to finish his case as far as he could without giving evidence, and then to finish by hia sworn testimony. Mr. Whitaker objected to Mr. Busby acting in both capacities. When he was sworn as a witness he had lost the right of addressing the jury. Mr. Busby would accede to his Honor's recommendation. He then sought to put in evidence the copy of a letter of his, addressed to the Colonial Secretary of New Zealand, dated Victoria 19th June, on the subject of the land claim mentioned in the memorial. Mr. Whitaker objected ; and the hon. Mr. Fox, colonial secretary, who had been subpoenaed^ produce it, was called to the witness-box. Mr. Fox, having been sworn, said he wished to apply to the court in this matter. He had no \nsh to *ct contumeliously in any way, but he believed it to be his duty to decline to produce the document mentioned in the subpoena under which he appeared in court, on the ground that its production would be detrimental to the public service. He was entirely in the hands of the court. ■ The Chief-Justice — Is it a state document * Mr. Fox— l claim, on behalf of the colonial secretary, the Fright of deciding whether the production of any document in his custody be prejudicial to the public service or not, and I leave it to the court to say if he enjoys that privilege, without specifying the contents of the document. The Chief-Justice said this point came on him by surprise. He wovdd like to hear arguments. Mr. Whitakeb contended that by the decision of Chief Baron Pollock in the Court of Exchequer, in Beatson r. Skeen, 1860, it was ruled that the Secretary of State had the right of deciding whether or not a document was a state secret. The learned gentleman read the ruling in the cause, which was heard before the full court, the ground of the decision bejng that the judge could have no private cognizance of the contents of any document produced in a cause, and the very fact of making public inquiry regarding the contents, would effect the publication against which it was necessary to guard. It was, therefore, clearly the privilege of the Secretary of State to decide whether it should be made public or not. The Chief Justice said that was a very recent decision, and he could not set up his judgment against the decision of the learned and eminent barons of the Court of Exchequer. Their decision, however, was in accordance with his own opinion, for if the colonial secretary had not the right of determining what would be prejudicial to the public interests, it would be too late to determine that point when its contents had been stated in court. What documents were called for 1 Mr. "Fox— A number have been called for, but only the one I have now in my hands is in my custody, or under my control. It is a letter to the colonial-secre-' tary of New Zealand, dated 19th June, 1850, but for the reasons I have stated I decline to produce it. The Chief Justice: — A.re you of opinion that it would be detrimental to the public service and a breach of your duty to produce it J Mr Fox — I presume you do not ask me on what specific terms I am of that opinion ? The Chief Justice — No. Mr. Fox — Then on broad general grounds, I say that I do. The Chief Justice (to Mr. Busby) — I have no power to compel the colonial-secretary, in the face jof that declaration, to produce it. Mr Busby contended that the letter in question, which he was at liberty to publish in any newspaper, was not in the nature of a state secret, and argued that the text writer (Taylor on Evidence, page 776, para. 860) was against the position taken by the colonial secretary. There was nothing secret in the matter. He also quoted " Holme v. Bentinck," as bearing upon the point, and submitted that as there were exceptions to the rule, from the text-writers, the colonial secretary should not have it applied to him on this occasion. The Chief Justice remarked that the case cited by Mr. Whitaker from the Law Journal Reports, was far weaker than the present, and he was unable to compel the colonial secretary to disclose what he said would be prejudicial to the public service. After a lengthened discussion, the colonial secretary was relieved from further attendance. Another discussion arose as to the right, of plaintiff to act as counsel and witness in his own cause, which wa< finally decided in Mr. Busby's favour, by that gentleman quoting Lord Campbells decision in Cobbett v. Hudson, Nov. 20, 1852, Law Journal, Queen's Bench Reports, page 11. In the course of this argument Tiie i Chief Justice mentioned a caie , in which he had himself been^ engaged as couniel, in which he said the plaintiff, who' had at stake his reputation and all a man held dear in, life, was prevented by Mr. Justice Wighjanan from giving evidence. That showed how^ stringently , the rule f was applied in England ; ' but it appeared that in Cobbett and Hudson the rule had not ; been made absolute,' although the inconvenience arising, from the^practlce had been forcibly pointed out. , •, Mr Busby continued his case, , Captain Francii Eastwood Campbell examined by Mr. Busby— l am clerk- to the house of representatives. I received a supoena to produce a return to an address from the house of representatives to hii excellency the, Governor. 1 have that return in' my hands, but I decline to produce a document belonging to' the houie of representative! 'without their order ; Ido io, le*t it would be an infraction of the privileges of the houie, , By the Justice— l am inolined to think/^hat the order of the, Speaker would not be enough for, their production. I think the house mu»tf make the order. By Mr. Busby— l don't consider the reporters ,of the public prets have a righ^'to allihe docunpnteof the house/, I do not remember lever 'baring refuted a" C,repoj#er;of the^prej^taking^ej^py of a,renly tojny .' ,1» produced! [Document* produce^ 5 ,' .',,,- ~, tv - x , tv \

iments? .v ". ■ .'c<' if i' p i\i\fV>f , Witness— They are the origin*! documents, us livid on the >table of , the house, of j representatives j , but are themselves copies of original dooumenti'., , The return ii composed of copier of certain dooutnenti. . - ,-, ,",,;>, Mr. WHrrAKaB — r object to this .being received ,as evidence. They are copies of, original, documents merely. u ' , , , , i <i> , ' , The .Chief Justice — I do not v recei,ve them not as, copies of, documents, but as an original return to the house of representatives.. What, are, the doouments, and for what purpose are, they tendered ? , , , , -Mr. 'Busby— The document* are copies oficorreßpoiii dence in relation to my claim, in return to, .an address of the house of representative, and are tendered in proof of publication of the libel. The Chief- Justice— How can they be proof of publication of the libel ? This, is a return from the Governor to the house of representatives, and the publication is the act of Governor. MrifßuSßY— I am entitled to have them read, and ' then, let Jthem go for what they are worth. ' J{ > ? ThVOHtw- Justice— They cannot be received as evidence of publication.' Mr. Busby— 7l will prove to you by them that there is a libel, and that the colonial secretary withheld is not a secret of state as itis published in this manner in the house of representatives. The Chief Justice— l can't say what are or what are not secrets of state, seeing that the officer having charge of the document withholds it. I cannot stultify my former ruling by admitting the letter in this indirect way. The publication must be by the defendant, and not by the Governor, but this would go to prove it was by the Governor. Mr. Busby then questioned Captain Campbell as to his knowledge of the contents of the documents ; but the question was over-ruled, a written document being the proof of its own contents. Mr. I'ranois Dillon Bell, the defendant, examined by Mr. Busby — I am commissioner of land claimsj under the Land Claims Settlement Act, 1856. I received a subpoena to produce the record of a minute addressed by me to the Governor, in relation to the memorial which you sent to the Secretary of State. I have not produced it, because it is not in my possession. The clerk of the court usually holds the custody of all documents, but you may say they are in my custody. The letter from you to the Governor, covering memorial to the Secretary of State, dated September 22, 1860, is not in my possession. My court is a court of record. I did not record a copy of my minute on your memorial. I did not state in the house of representatives that I had made such a reoord. I have no recollection of that speech in the house of representatives on the subject. To the best of my belief and recollection I never made any such statement whatever. There may be a minute of mine on a letter of yours which you might have seen in my office at the time. I have the date of your letter in my office, for it never was my property. In writing that minute I was acting officially as commitsioner of land claims. I have made no record in the land claims office of that minute, nor do I believe any record of it exists there separate from that on the back of the letter. All the papers relating to your (Mr. Busby's) Numeru land claim were at the time in my possession ; several other communications from you to the Governor have been returned by me to him. I returned the minute in question to the Governor about a fortnight ago. I was aware at the time that this action was pending. The minute was not a record of the land claims court. The letter on which it was made was the property of the Governor. It might have been seen till lately in my office by you or others, as it was seen. If my clerk had made a record of it there would have been a record. Mr. Busby — You state that your court is a court of record. Have all your official acts been reoorded ? I must decline to answer that question. Is it not the duty of your clerk to make a minute of all your judicial acts ? If you had asked the question in that way, I would have answered you. The Chief Justice said that much correspondence must pass between a person holding a judicial position, and the government, which could not be said to be part of the business of the ccjurfc. For instance, in the Supreme Court a great deal of correspondence pasted, which not only was not part of the business of which, until lately, it had not been the practice for the judges to have a copy kept. Examination resumed — I ask you whether, under the general instructions on which your clerk acts, he is not bound to make a record of all minutes and transactions which you enter into your record of proceedings as land claims commissioner ' I think you misapprehend the duties of the clerk and my duties as well. All acts having a judicial character are duly recorded without instructions from me ; but the minutes, and letters, and memoranda of jry own are not necessarily recorded, nor do I give directions that they should be so. Am Ito consider that the writing of this minute was esteemed by you as of such trivial importance that you thought it unworthy of record ? Ido not consider the minute nor the memorial on which it was written of the slightest importance. Did you read the memorial, may I ask, Mr. Bell « Yes, indeed I did. Were you not aware that the memorial brought under the consideration of the Secretary of State an equitable claim for between £18,000 and £19,000 1 lam aware that' the subject of the memorial was to bring such a claim, but if you ask me if it was an equitable claim 1 must say . Ido not ask your decision as to whether or not it was equitable : was it represented as an equitable 'claim ? Yes, it was, And do you not consider that of the least importance ? Mr. Bell — Yes ; and would you like to know the reason ? Mr. Busby — Certainly. Mr. Bell — The reason that I did not think it of any consequence was that a good deal in it was quite irrelevant to the case which the object of the memorial was to bring before the Secretary of State, and a great deal of it was entirely incorrect. Mr. Busby — Under these circumstances, seeing that it was referred to you to report upon it as land claims commissioner, did you not think it your duty to specify the instances in which it was incorrect ' Mr. Bull — No, it referred to the case laid before the Chief Justice, which contained all the facts, and was, therefore, quite sufficient for the Secretary of State or for anybody else. Mr. Busby — I think his honor the Chief Justice was only called upon to gire his opinion on dry points of law, and that the facts had nothing to do with the case ? Mr. Bell — The facts in your Numera claim were fully btfore him ; and the case was agreed to on both sides. Mr. Busby— Certainly. The Chief Justice— l have no recollection of it. If any question turns on it you had better produce the case. Mr. Busby read an extract from the case, and resumed — you observe it was only dry points of law on which the Chief Justice gave his decision. Do you mean to say that these were the only point*) raised for the consideration of the Secretary of State? Mr. Bell — the case which was laid before the Chief Justice contained all the facts of the Numeru claim belonging to you, of the slightest importance. If there had been any facts of importance besides those stated in the case you certainly would have claimed to have had them inserted there. The Chief Justice's opinion was asked on the points of law, but the statement of facts was complete. I think it right to add that instead of limiting you to raising the dry points of law in that case, which I might have done, I assented to the whole statement of facts which related in any way to the case, being brought under the knowledge of the Chief Justice. Mr, Busby — That is not an answer to my question. That relates to the case, my question related to the memorial to the Secretary of State. The Chief Justice — His answer is, that all material facts were in the case. Mr. Bell— Yes, your Honor. Mr. Busby — Did you consider whether there were any important facts in the memorial which were not in the case ? I did not consider that j I only considered [ what I thought to be important. Then you do not object to any portions of the case that wa» laid before I the Chief Justice as^a misstatement ? Certainly not : it , was the statement of facts. Then you must have made some investigation of the other points in the memorial which you characterised as " Extravagant mis-statements?" Yes. Then, be good enough to state any that you oall a mis-itatement ? Mr. Bell — If you would be good enough to give me the memorial and pamphlets that accompanied it, and it would not tire the court and the jury too much, I would show what these mis-statements were. (Memorial handed witness.) ' Mr. JWHITAKEB— The libel is not before the court ; and it is irregular to seek to justify it in this kind of . way. , The, libel hai not bee^pipved. ', ,' 1 ■ , The Chief Justice;--^! have felt, that for,iome time. The libel is, not before the court, and j Mr. Busby is ( asking a 'series' of questions regarding the,contents of a , certain minute,, and. yet, i nevertheless, that minute being a written document,, is> not in 'evidence. , This w*s i irregular,! but as neither counsel for the defendant, ' nor the tf^neijs .did »'ijqt f ' object,, < I did interpose, but from stage ,td 'stage' of .this examination reference is made toa.'inttHpj dpcjugjent which is not before the J COUrt.' ,'- ' ,' \, %\ lf Vr) 1„' '.)..*',, - 1 > , Mr. Bbi-u—J humblyi submit that I ( was asked no .'question* about the contents of that .document. -, „ '; , The Chief JJusmok— Yes, indiwotly ;' and now that document on which the minute was written, .is put into your hands ito £ state, what i« or, is not, a queitjion of fact, If it is not a question of truth or npntruth in the mind 'hi the witness, it .is wholly irrelevant to the cause.' >„ r J t j<.Mr. B ( pSßY— X, 'defer, this queition ,then, titfLpufc' ■pine others. 'You have' already, informed the .court that you, w^ote^certauimjnute, upon ascertain, memo-. rial, which you the> t Gpvernor-4-n6w, ,

■acd'py'ofthW'minute? 1^ I '^ ' ' ' <-»",-■"' 1 MmWHrrAKEß— lobjeotto that question. >'<' ," jr> Mr. Bcsbt — tr.will put ft speoifjc question. , I ask you, Mr. Bell, whether you did not write these words on &»t minute? 1 -" , ' ' ' ,' " Mr. 1 WhtttAkib— Now; lobjeot. " • ■ :> • ■> > TheiCHißF Justice — Itis'objebted to,- and you cannot prove the contents of a written document, but by the production of the document itself. , „ Mr. BuSBT— I am just in this position that loannot procure the document, and I do not know whether Loould force its production. , But within a fortnight, and in contemplation of this trial, the dooumen,t js^ removed from the office of the witness, { to enable him, to give the answer, when called on to produce it, that it ii not in his possession. l The Chief Justice— Wa« the defendant (übpcenaed at the time ? , ;,,,.! Mr. Bubbt— He was not at the time, but he knew the trial was coming on. ' The Chief Justice— How can he ' be> compelled to produce it when he has not got it. The witness swears upon his oath that he has not got it. If he had made away with it after getting the subpoena it would be the strongest matter of comment to the jury, and 1 do not; knowto what length I might not then have gone to compel its production, if such had been the case ; but he swears the document had gone to the proper quarter for its custody before the subpoena was served, ■ Mr. Busbt— His first plea is that he did not publish the matter as is alleged ; the second plea is that at the time he wrote the minute he was and is still a land claims commissioner, and that his communication was privileged and lawful ; and the third plea contains the following words :-■-" That with the paper writing in the memorial in .the declaration mentioned, the plain-, tiff transmitted to his then Excellency the Governor of New Zealand, sevenvl papers and documents, and that the laid memorial, papers and documents were referred to the defendant as such officer, as in the second plea mentioned, for his comments thereon as in the declaration mentioned, whereupon the defendant wrote and sent to his said Excellency the matter in the declaration mentioned, &c." Now I have to ask you, Mr. Bell, if you sent this, as you state, in the discharge of fyqur duties as commissioner of waste lands, why you did not keep a record of the minute? Mr. Bell — 1 object to answer that your Honor. > Mr. Busbt — Doe« he mean to say that it is not necessary to prove tho matter in his pleading to be true? (Laughter.) (! , The Chief Justice — That brings us to the refinement of pleading. The defendant, in hi» pleadings, is setting up a privilege : he says first, prove that I sent it ; then if you prove that I sent it, I claim that it is privileged ; and last he says, if you do prove that I sent it, and that it is not privileged, I plead that it is substantially true. The burden of proof lies on you. Mr. Busby then continued to examine Mr. Bell on a variety of points from the memorial, but was at length stopped by the Chief Justice, who said there was really no case before the court. The libel had not been proved, and it was for Mr. Busby to consider whether he would have it sent to the jury in that form, or take a non-suit.. . Mr. Busby said ha would elect to be nonsuited. He hoped if there was a question of costs raised, the court would consider the obstruction that had been put ' in his way to defeat the ends of justice. A nonsuit was entered, and the Chief Justice certified this to be a proper case for a special jury. The court adjourned till eleven o'clock on Wednesday.

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SUPREME COURT,—Saturday, June 7. (Before the Hon. Chief Justice Arney.), Daily Southern Cross, Volume XVIII, Issue 1522, 9 June 1862

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SUPREME COURT,—Saturday, June 7. (Before the Hon. Chief Justice Arney.) Daily Southern Cross, Volume XVIII, Issue 1522, 9 June 1862

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