SUPREME COURT— Tuesday. (Before His Honor Sn G. A. Arney ) CIVIL CAUSES.
BusiNLib was resumed this morning at ton o'clock : at which hour the Chief Justice took his sent on the bench.
Bu,sßY v. Bell. Befoie the examination of witnesses was proceeded with in this case, Mr, "Whitaker rose nnd said he wished to intimate to his Honor, that in consequence of what occinred on Monday, the defendant was about to take a different course in legard to the acceptation of the document, and said to be a true copy of the libel. The plaintiff had applied some time befoie the trial, requesting the government to produce the libel ; nnd they had lefused to do so, and still refused. They aigueJ, and very justly so, he (Mr. W.) believed, that if an officer in the government weie ahvajs to write under fear that his communications ■ttonld be liable to be dragged before any comt, and in.idc public in every shape and form, such a state of affairs would veiy materially >nteifere with the pnblic good. Under such chcutnstances they had resisted, and they still refused to give up the documents, unless oideied to do so, under a direct command fiom the court. He (Mr. W.), bad theiefore endeavouied to show the plaintiff that it was possible to put the question before the juiy in another way. The government weie no doubt acting from a conscientious conviction that under the circumstances, should a public functionary be foiced to pioduce all documents in his care, very material injury would ensue to the public. The defendant would therefore propose to admit the document, or copy of the memorial and minutes which had been sent from the House of Representatives, and they should be considered in evidence, as the original document— leaving, of course, the objection which he might afterwards take as to its adinissibility, when the case should be laid before the jury. Ho thought this courso of proceeding would lelieve the government fiom any responsibility as to the refusal to give up the original document, and the defendant was only wishful to bear all the blame upon his own shoulders. His Honor said it was entirely what he might have expected, both from the defendant himself and fiom the course adopted by government under the peculiar circumstances of the case. Ho quite agieed with go veinment in taking the opinion of the Couit on the occasion, whether they were bound to prodxice documents which might be considered necessary in cases of like natuie to the one in question. It was essentially necessary that the government of the country should be able to communicate with its officeis, and at the same time that those officers should enjoy full confidence that that which they might disclose should not be mado the subject of perpetual litigation. It was a principle well known in all law pioceedings, and they were all well aware of the confidence which a prisoner — even a murderer in the dock— treated his solicitor ; and did that solicitor, knowing the man's guilt, make any statement as to such being the case, it would be the duty of the Comt at once to commit him to prison. It was essentially necessary that the fullest confidence should be established between the responsible advisers of the government, and nothing could be more detrimental to the public good than any attempt which might bo made to destroy this feeling. The case of Bcetson v. Skttnc had been stated on Monday as an almost similar suit ; but there wore many points oi difference. It would appear that when the officer in connection with the government had produced the document sought to bo obtained, he had stated that its being made public would be prejudicial to the public interest. Under these circumstances it remained with the judge to enquiio how far those reasons should interfere with the document being used as evidence. If ho were to take upon himself to pronounce an opinion that it should be produced, then in the exercise of his discretion ho would be entering upon a very bold stop. For these reasons he (his Honor) had thought as a
general principle the judge w*s bound by the announcement made by the responsible head of the government that the production of the document would be injurious to the public welfare, and had consequently decided that it should not be enforced. Mr. Busby said he would now call Mr. Dillon Bell to answer a few questions. Mr. Bell then entered the box and was sworn. The memorial and minute were handed to witness, upon which - Mr. Whitaker said the case had arrived at that stage at which it was necessary for him to object to tho document being admissible. Seeing that defendant had been called as a witness in the action, and to swear as to the document, he would now st»te his objectiins to the document being accepted. The case Wyatt v. Gore would fully bear him out in the view he had taken. His Honor remarked that there weie many points of difference in the two cases. It appeared to him that were was a substantial distinction between the case alluded to and the one in which they were engaged. In the case undergoing discussion, the defendant was the party complained of as the person committing the libel by his own net. In the one quoted the governor was tho defendant in the action. He was the pc/son complained of, but merely took his course of action from the advice of ono of his responsible advisers. In the one case there was a plea on the declaration as to tho defendant, and he who wrote the minute was the very individual complained against. If the governor iv the case cited ha<LLeen the individual against whom the libel was charged, then he would be the party complained against and would be at the same time the person who had issued the libel. Tn the case then pending, if the answer which had been received from the Duke of Newcastle had never been sent to the complaining party, then the governor would have been in ft much more similar position to the case quoted. Here the officer was charged with his own act, and consequently stood in a different light. He (his Honor) would therefore rule that the evidence should be admitted, but would reserve the point. Mr. Whitaker would ask that the point might be reseived. He had offered this objection at the outset of the examination, as it would be unfair to ask his Honor to reserve the question unless he hail shown his reasons. His Honor would perhaps be kind enough to make a note of his objection. His Honor answered in the affirmative. The examination of the lion. Dillon Bell was then proceeded with. He deposed : I sent the memorial produced, the letter which accompanied them, and the pamphletß down to the Governor. I forwarded everything which I leceived. I was a member of the House of Representatives when the memorial was received. I believe I bhowed the document to Mr. Stafford before sending it to the Governor. I either took it or sent it. I believe I sent it. I have since showed it to many persons, when investigating a petition in committee by yourself. It has been shown to members of the government, under secretaiies, and other officers in the government. I don't recollect having showed it to any other person. I should say it may have been seen. | I did not show the oiiginal to Mr. Wynn. I believe he saw it. Mr. Wynn was examining some papers with me, and I believe he saw it then. I don't think Mr. Wynn applied for me to show it to him. Kobert William Wynn examined said : I did not apply to Mr. Bell to see the document. Mr. Bell showed it to me He showed me a letter with a minute upon it ; I believe the document produced is a copy. Cioss-examined by Mr. Whitaker : 1 went to Mr. Bell in the capacity as Mr. Busby's solicitor. I went theie when the pievious action was entered in Court. A plea was put in by Mr. Busby that theie were a number of documents too numerous to set forth in the plea. 1 saw Mr Rewell and he leferred me to Mr. Bell. I wanted a schedule of the documents, and Mr. Bell took out a bundle of papers, amongst which I saw the memorial and minute written upon it. Mr. Bell drew my attention to it I believe it was at the top of the bundle of papers. Theie weie a great number of papers; but I cannot say they were pamphlets. I did not ask Mr. Bell to show me the pamphlets. I asked him for a list of the documents referred to in the plea. I think Mr. Bell pioduccd the bundle of papers incidentally ; and I read the minute merely from curiosity. I was well acquainted with tho contents of the minute, having so often read it before for the pin poses of the action which was then pending. He examined • This would be about seven months ago. It would be about a month before the sitting of the Supreme Court, at which the action was tried. The Foreman of the jury said he had been requested to put a question by one of the jury ; and with his Honor's leave he would ask, was Mr. Bell aware that witness was acting in the capacity of solicitor for Mr. Busby.? Mr. Wynn • Yes, he must have been awaie. Mr. Busby then °aid, the publication of the libel having been pioved, he would put in a copy of the memorial sent by him to the Duke of Newcastle, and also a letter enclosed with the memorial and dated 19th June — addressed to the Colonial Secietaiy of New Zealand, in i elation to a judicial decision given by Mr. Bell, also the case submitted to the Chief Justice lelative to that decision, being enclosed with the memorial. The four pamphlets were also handed in to the Registrar. Tie likewise produced a document icgardiug his appointment as British Resident here. His Honor Baid the fact of his appointment was not disputed. It was not necessary to put it in. Mr. Busby theu put in a letter of instructions from Sir Richard Burke, relative to his (tho plaintiff's) instiuctions to assist settlers in this country. A letter was also sought to be introduced as written by Loul Normandy in 1839, and containing instructions as to the pui chase of land to any extent. His Honor decided that it could not be received : likewise a document received from the government of New South Wales ; and other papers. Mr. Busby then applied to be allowed to hand in letters forwarded by himself to Mr. Bell on tho 12th June, 1859. The fiist, legarding the depreciation in the value of land at Nguruiu by delay in investigating tho title, and the removal of timber : and accompanied by a letter dated 6th January, 1841, addiessed to the New South Wales government, and describing the boundaries of land at Nguiuru — enclosing 40,000 to 50,000 acres. The leply of defendant, dated 18th June, 1859, was read. Plaintiff then read a letter i dated 23rd June, 1859, requesting that compensation should be made for land, under the 3rd clause of Laud Claims Extension Act. Letters dated 4th October, 19th December, 1559, and lGth day of January, 1860, were also read. His Honor said he must object to the time of the court being so occupied with the reading of voluminous correspondence, and which upon the face of it, so far as legruded the defendant, bore every possible proof that defendant li*d been throughout the whole proceeding actuated by feelings of unexampled kindness, and gleatest patience- : and had even courted enquiry. Mr. Busby said, he submitted the evidence as showing that in every possible way defendant had thrown out expedients to deprive him of his claim. Two letters from the Duke of Newcastle were then put in, also the Land Claims Extension Act, 1856. After which Mr. Busby said that would conclude the case His Honor asked Mr. Busby what he relied upon as the expressed malice. Mr Busby said he depended upon the statement in the minute — that in appending the minute to the memorial, defendant had effectually defeated the object of the petition, and had so excluded any hope of having the claim entertained by the Duke of Newcastle. This was plaintiff's case. Mr. "Whitaker said it now became his duty to address the jury for the defence, but he might inform them at the outset that his remarks would not be of any lengthy character. The question before them was, whether the writing of the minute upon the document could be considered a libel or not a libel. It did appear to him (Mr. W.) that if the evidence was carefully looked over, the defendant would be considered fully justified in doing what he had done. In fact he had administered an extremely mild commentary upon n great number of very offensive remarks, which had been made upon his conduct. But the plaintiff himself in coming to that court, must prove that actual malice had been displayed. He must prove that there was no occasion or probable cause for writing the offensive remarks — tho subject of the present Action. They would recollect most likely very well the occasion upon which tho minute was written. Mr. Busby sent in to the Governor a number of documents, letters and pamphlets, the whole of which contained serious imputations against the defendant The documents were handed to the defendant, as Land Claims Commissioner, and be then wrote upon them that which had been read and which was the cause of the action. Now before plaintiff could make out any grounds whatever against defendant, it was necessary for him to prove that express malice had been shown. But this he had failed to do ; and had proved nothing which was sot forth in the declaration. It was absolutely neceßSary that he should prove this, but he (Mr. would »sk the jury whether they considered plaintiff had given any evidence whatever in proof thereof. He had offered nothing so far but the bundle of letters, and it must be said that those letters showed on tho part of the defendant a careful con* sideration of the plaintiff's case and a most patient and the eailiest consideration of his claims. Some of the earliest letters received by plaintiff frpm defendant, in rofeionce to his land, contained suggestions ol having the claims brought before that Court, and in every way had ho shown his desire to settle the difficulty. The case was really and so palpably in favour of the conduct of defendant, that he (Mr. W.) was almost
ashamed to ask them to go over it. The plaintiff had put in a lot of letters which had been received ; but the jury would know which could be taken as evidence. He had not noticed in anything the plaintiff had said any fact stated which would show malice on the part of defendant, and it was necessary in such cases, as they well knew, to chow the probable cause. (Mr. Whitaker-here read an extract from Taylor on Evidence as to the probable causes.) There must be something to show malice beyond the libel itself ; there must be Borne extrinsio ovidenco; some oudence must be produced on the part of plaintiff to show distinctly and clearly that he was actuated by probable causes of m&lioe. And now he would ask them whether any malice whatever had been shown on the part of defendant by plaintiff. The defendant was bound in the performance of hia duty to write what he did. He had had all the papers submitted to him for his remarks thereupon, and he (Mr. W.) was sure it would be a ■waste of time to hand them over to the jury for their inspection ; they were sufficiently well acquainted with their contents. But the passages in the pamphlets which referred more especially to defendant, were intended for the purpose of showing gross cases of inconsistency against the defendant, and accused him of malversation of office. All that, however, he (Mr. W.) would forego and leave it only to the duty of the judge to find any expressed malice on the part of the defendant. Ho could only remark that were he to say any more upon the subject he felt he would be wasting their time to no purpose. He would, therefore, leave the case in their hands. Mr. Busby addressed the jury in reply. He said they had had placed before them he feared a very wearisome account of a wearying trial : aud had thus became aware of a few of the cruel persecutions he had suffered at the bauds of the government ; yet he had done nothing to provoke this treatment. His Honor said that he could not allow that style of observation to be made use of in that Court against the government. The law must be taken as it stood. Whilst he presided in that Court, it would be his dutj to see that the government and the law were spoken of with respect. He was sorry to speak so imperatively, it was however his duty, and Mr. Busby would be kind enough to refrain from such objectionable observations. Mr. Busby expressed his sorrow for having given occasion to his Honor to think that it was his iuten tion to speak disrespectfully. Ho had spoken from his convictions. His Honor could not but* remark that it was not decent to make use of such language. Mr. Busby resumed. He had stated the whole case at the commencement of proceedings, and hat! since called witnesses. The jury would consequently be in a position to judge what he had suffered in this colony. And yet he was not aware that he had done anything to provoke such great injustice at then hands. His Honor said if Mr. Busby continued those observations he would lose the opportunity of addressing the jury at all. He must, in that court, at all events, comply with the necessary forms of procedure and refrain from issuing vexatious language. He had just repeated again almost the very same woids which had been spoken of before. Mr. Busby again apologised. He then went into the facts of the case— again tracing the acquisition of land at Ngururu by himself and partners, its abandonment in consequence of the war ; depreciation by loss of timber, neglect of Government to give a title thereto, and other reasons stated on Monday. Mr. Whitaker said the land had been surveyed for plaintiff, and the timber was on the land. The surveyor was present in court. Mr. Busby could not believe the statement. Possibly a small tract of land might have been surveyed for him — some 1,100 acres, whereas his original claim was for 40,000 or 50,000 acres. He then referred to the pairphlets, and read an extract • adverted to the sending of the memorial and letter to the Governor, aud read the minute which constituted the libel, — concerning which the present action was brought. In conclusion he said he must ask the jury to excuse him for wearying them in detailing the facts of the case. He had token every step to obtain compensation, but had been unable to do so, from the Commissioner's proceeding in the matter. He maintained that the Secretarj of State was misled, and wilfully misled, by the minute of the defendant, because it could not be otherwise that from the knowledge that gentleman had to decide otherwise than against him, after reading the minute. It was not in his (Mr. Busby's) power to survey the land on account of the unsettled condition of the native mind, and he had no intsntion of doing so. He had informed the defendant that he did not mean to survey the land, and he questioned very much if it would be worth surveying seeing that the timber was gone. Therefore he asked for other land to be given to him. And now he had come to the court and would ask the jury — seeing that he had been denied justice and hi 3 rights elsewhere — to consider his case and award their decision according to what they believed he merited. He would leave tht case in their hands. His Honor remarked that Mr. Busby had finished his case in the same style that he had begun. They would observe that he had thiown himself upon their hands, after having been denied justice and right in respect to his land. He called upon them to decide to give him his lands. Why, dearly, he was sure they could see that was not the question at issue : the question was whether Mr. Bell had libelled Mr. Busby : or whether the minute was upon the memorial, and had done him such injury. He (Mr. Busby) had told them at the outset of the case, that the action was not one of an ordinary character : not one of private interest only, but of great public importance the result of which he would not be surprised were it made the turning point in the misgoverning of the country : which misgovemment the inhabitants hod too long suffered under, and must have reached its acme Then, the case not only concerned themselves, but would affect the interests of their children, and their children's children : and that the eye of God was upon them : with such like language. It was, however, necessary for him (His Honor) to tell them that they must not in any way consider as coming within their province any power to reverse the decision of the Land Claims Commissioner — although it might in the words of the plaintiff, constitute the turning point in the history of themisgovernment of the country. He had repeatedly told the plaintiff that the jury had nothing whatever to do with land questions and could not constitute themselves a land court. They had nothing whatever to do with such subjects. In one respect the correspondence which had been submitted would be considered as evidence to show whether defendant was actuated by malice. He might tell them that in cases where there was no evidence of malice it still was the duty of the judge to decide, and tell the jury to find a verdict accordingly : though it could not be denied it was a safer course to leave it with the jury to decide as to the question of malice ; and on that ground he might as well say that he would leave the question in the present case to their consideration. It was admitted by the defendant again and again, that he had received the memorial, and it was admitted to be the truth that the document was a privileged one. Unless, therefore, there was anything upon that document, which, taken concurrently with the minute, indicated a malignant mmd — unless they were satisfied that such was the case, it would be their duty on the first issue to find the verdict for the defendant. It was seldom indeed, he thought, that in this colony juries could be considered very stringent upon the persons said to have committed a libel ; and they allowed a very great latitude. And now he would ask them what was the object of the memorial, but to overturn the decision of the Land Claims Commissioner. After a referrence to the Supreme Court, the plaintiff decided to placed his case before the Secretary of State ; and in bo doing it would be seen he would naturally impugn the conduct of the Commissioner. The memorial, letters, and pamphlets, were forwarded to Governor Gore Browne, who sent them to the Commissioner, as the letter expressed, to have any comment attached which might be thought proper. They must consider that the Commissioner was the party accused, and so he had his privilege. The words " extravagant misstatements " had often been quoted, yet, as refering to the memorial or pamphlets, could not be considered by plaintiff as impugning his moral character, nor did he urge any such thing. It was rather curious to see how indiscriminately a man used the same words. The plaintiff had repeatedly made nse of the word "statement" and "misstate ment," in the course of the trial. He had asserted his right to make any statement, equally with ttie defendant to deny it ; to transmit hifl statement to the Duko of Newcastle ; and other instances. Coming, hpwever, to review the cause of the minute, it was his (Hie Honor's) duty to tell the jury that the occasion justified the defendant writing the minute — unless they •hould be of opinion that he wrote it with a malignant feeling, with a purpose to injure the plaintiff. He might state to them that if a gentleman wrote such a thing when irritated, yet, if when he wrote the words he believed he was writing what was the truth, he could not be considered guilty of libel. It would, therefore, be their duty to consider the documents privileged and they would find a verdict upon the first issue for defendant. Then, they would have to consider *s to the bearing of the wordji complained of in the minutes — the extravagant misstatemente — and apply the words to the pamphlets appended to the memorial. The defendant alleged that the words were substantially true. It would be their duty to see whether there was any language in the pamphlets which would admit of the plea of justification. If they were of opinion itutt iliose worcU were true, and it rrxa plaintiffs duty to write them, then they would find a verdict
for defendant ; but if they were of opinion that ho wrote the words without justification, and that they were not true, then they would find » verdict on the second count for the plaintiff. They would please to retire to their room and consider their verdict. The jury then retired, and after an absence of about seven minutes, returned into couit. The Eegistrar of the Court : Gentlemen of the jury ; are you agreed upon your verdict ? The Foreman : Yes sir. The Registrar : Do you find for the plaintiff, or for the defendant? The Foreman : For the defendant on all the issues. His Honor said, thero was an allegation as to speoml damages ; but, of course, under the circumstances, it could not be entertained. He might add, that if it would be any consolation to Mr. Busby, he would state he had ever been prepared to realise the legality of land claimi, and had a httle argument laying before him on that question. He had, therefore, felt prepared to tell the jury what he had done, after Mr. Busby had introduced the question of land claims. , The court then adjourned for half-an-hour.
Littlewood i. Williams. This was au action for malicious prosecution and false imprisonmeut. Damages were laid at £300. Mr. Whitaker, instructed by Mr. George, for plaintiff; Mr. Wynn, for defendant. A common jury was empanelled. Mr. Whitaker opened the case by stating, in outline, the circumstances connected with it. The first witness called was :—: — Robert Clapham Barstow, Resident Magistrate at the Bay of Islands. He deposed : I have been subpoenaed to produce cert iin documents. I produce the original depositions in the case of Williams v. Littlewood, taken on the 26th June. In consequence of this deposition, I lemauded Mr. Littlewood on those depositions. That is Mr. John Bernard Willmms's, the defendant's signature to the deposition. It was sworn to by him in my presence. Mr. Whitaker submitted tho depositions as evidence. Mr Wynn objected to them ; submitting if what Mr. Williams said in Court was evidence, they should have the words from the witness now. He submitted the depositions were not evidence on the issue. Mr. Whitaker quoted f torn " Anderson, on Wrongs and Remedies " in support of their admission. The depositions were then admitted. Examination continued : Those were Mr. William's depositions, and in consequence of those depositions I remanded Mr. Littlewood from the 26th to Hie 27th. Mr. Williams was the person who made the chaige against plaintiff. I presume that the man who made the charge is prosecutor. After remand, Mr. Littlewood was committed to the custody of the gaoler ; that was on the 26th June. On the 27th June, Mr. Littlewood was brought up in custody on remand I told him I should feel it my duty to remand him to Auckland, in consequence of th-i nature of the case, unless he could produce some exculpatory evidence. He then requested that the evidence of a Mrs. Callaghan should be taken, which was taken. The result of the evidence was, 1 discharged him from custody and dismissed the case. Cross examined by Mr. Wynn : The charge was one of forgery. I produce the document alleged to be forged. It is dated—" Russell, 22nd February, 1862," and luns- — "Received fiom Mr. Littlewood, by cheque on the Union Bank of Australia, the sum of £10, for cash advanced and lent." It is signed " John B. Williams." I know Mr. Williams's writing. I don't believe that any pait of that document is Mr. Williams's writing. The charge was made in the month of May previously. He did not make any oath. When he made the chaige it was accompanied with a threat that he would take pioceedings. Mr. Williams was plaintiff in a civil action in my Court — to which Littlewood was defendant. It was for goods delivered. The amount, I think, was 7s. After the trial, Mr. Williams Baid to Littlewood — what has become of that receipt, or whatever you call it, that was forged ? Then, addressing me, he baid, if ever I get hold of that document I will prosecute him (Mr. Littlew ood) for it. There was no remark upon the subject before that. Subsequently, at that time, remarks were made Mr. Littlewood said to Mr. Williams, why don't you get it ? — meaning the receipt Mr. Williams said I have done my best to get it ; I have tried by my agent to get it from the Resident Magistrate's Court, in Auckland, and it is not there. Mr. William? also said feome solicitor tried to get it, but could not. Mr. Littlewood said "get it if you can." This occurred in my Couit, in my presence, early in May. It was that I meant when I told Mr. Whitaker that Williams made the chaige. I received the receipt from Mr. George, solicitor in this cause, on the 23rd of May. I sent it to his Honor the Chief Justice. I received it back. I was aware that Mr. Littlewood would shortly appear befoie mo in another action, and I determined then to investigate the charge. I compared the signature with 13 or 14 authenticated signatures of Mr. Williams's, and found them not to correspond ; in fact I did not believe the signature to be Mr. Williams's. It was from that circumstance, and considering it was my duty to investigate the charge, I determined to do so. Mr. Littlewood was in Court as a defendant on the 25th of June. I told him that that document had come into my hands, and I considered it my duty to investigate into the charge that had been made against him, but as he was not then, and had not been for some days previous, in a sufficiently sober state to answ er for himself, I considered it my duty to hand him over to the policeman, as gaoler, to give him an opportunity of becoming sober. This was between 11 and 12 o'clock in the forenoon. I would have investigated the case that day had Mr Littlewood been sober. The original cause of his being imprisoned was that he was unfit to hear the investigation. That was the primary cause. I caused defendant (Mr Williams), to be summoned to give evidence. Before I took steps in this I saw Mr. Wilhnrna on the matter. Mr Williams said he was a soft hearted man, and he would rather not prosecute on account of Mr. Littlewood's family. I then told him I felt it my duty to investigate the charge, and would insist on his coming as a witness. Mr. Williams did not come befoie my Court and lay a formal charge. It was, in truth, my having heard Mr. Williams charge Mr. Littlewood in the Court-house, that induced me to investigate the charge. I think I had to call Mr. Williams to order for some expression he used, and that gave rise to the charge being made Re examined • This document came into my hands from Mr. Littlewood's solicitor. Mr George was acting as Mr. Littlewood's solicitor when I received the receipt. Mr. Williams did not, at the investigation, swear that it was his writing. He said " WilliamVs is like mine. To the best of my belief that's what Mr Williams said. It was not solely on account of the deposition that I leraanded Mr. Littlewood for one day but that I might be certain he was in a sufficiently sane state at the time to understand the charge. I mean, that after keeping him twenty-four horns. I instructed a medical man to go and see him. He would not have been in gaol if the charge had not been made. The expression used by Mr. Williams, when I called him to order, was " You have rogiied me before and you're trying to rogue me again. " He did not seem to have lost his temper. Henry Littlewood deposed : I am a solicitor, and am plaintiff in this action I reside at Remuera Pro viously I resided at Russell, Bay of Islands ; defendant also resided at Russell when 1 resided there. I saw him in the gaol at Russell. He sent for me. While I was there he asked me if I would lend him £10. The first occasion I did not lend it because I did not know how I stood at the bank. The second time I went to him, having found I had funds in the bank, I drew a cheque on the Union Bank of Australia for £10, which I gave him. I signed the cheque for £10. (Cheque handed up.) That is the cheque. I have the receipt ; the body of it was written by myself, in the gaol. It is signed by John Bernard Williams. I saw him sign it. I have seen him sign his name a number of times. The whole of the body of the receipt was written by me prior to Mr. Williams signing it. The last four words are "cash advanced and lent." I sued Mr. Williams on that receipt in Mr. Beckham's Court, and recovered the money. I went up to the Bay of Islands subsequently. An action was brought against me — an unjust claim — I went to defend it. In the month of June, while at the Bay, I was given to understand that an information would be laid against me for forgery. On the 26th, I was brought up and was imprisoned until 10 o'clock next day. I was discharged about 11 o'clock, after giving my evidence. Cross-examined by Mr. Wynn: When I lent Mr. 1 Williams this £10, if there was a balance account struck I think he would be in my debt. After I lent him the money he continued in prison ; I can't say how long. I will positively twear that he did not ask me for £10 on account of some moneys that I owed him. I heard Mr. Barfltow state that Mr. Williams sued me for 7s. and gained the case ; I did not tender my own evidence. I made no defence against the action, and the caio went againit me. I have had a running account with Mr. Williams for «x years, and generally upon settling accounts I had something to take, (Looking at the signature of the receipt) I cannot positively »ay whether that ii the usual way Mr.Williams sign* his name. Ido goroetimes take receipts as acknowledgments of lending money. I will not mention, instance*. Sometimes I take a promissory note, or an IO U. I never lent Mr. Williams any money before. I positively swear the words '•cash advanced and lent " were there before Williami ■igned it. I hive not a perfect recollection of the hour. It »M in the fore part of the cilljr. I wjll swear that at that time I was sober. I was given to
undetitaud that an information had been laid against mp for a high crime. This was on the 26th, before I was brought up for examination. On the 25th I had acase to defend in the court. After the case wa« decided, I was taken to gaol. Mr. Barstow gave me into custody. Ho told me it was for being drunk. I don't think Mr. Williams was present then ; Mr. Barstow did not then tell me anything about the charge that he was to investigate. I swear it. Somo days previous, I osKed Mr. Barstow to give mo some papers Mr. George Bent down. He gave me some of them, and shewed me the receipt. He said I will not give up this. At that time I was not aware what was his object in keeping it. I will swear that he did not remind me that he was going to investigate a charge against me. I was perfectly sober on the 26th, and in a fit state to hear an investigation. Shortly after lending the £10, I left the Bay — two months after. Mr. Williams did not apply to mo for a balance of £5. He gave me a bill for £15 the evening I was leaving ; the bill gave me credit for £1 0, and, in fact, it was ft bill for £5. T did not say thnt I would pay him when I got to Auckland. I don't think I said anything to him ; I passed on — I was in * hurry to get on board the -jessel. T sued him (when I came to Auckland) for the £10. He was not present. Re-examined by Mr. Whitaker : I believe an arrangement waa made by whioh Mr. Williams gave his evidence before the cose came on. Thomas Hhayle George deposed : I am a solioitor. As plaintiff's solicitor I sent the receipt referred to plaintiff to the Resident Magistrate at Russell. •The blots on the receipt were made in Court. The words were clear — " cash advanced and lent. " Mr. Williams was not present when the case was heard. Cross-examined by Mr. Wynn : I was present when Mr. Williams gave his evidence. The receipt was not produced to Mr. Williams. Mary Callaghan, deposed : lam a married woman, residing nt the Bay of Islands. I know plaintiff and defendant in this action. I recollect being in Auckland in Novomber, last year, and seeing Mr. Williams and his son on that occasion. I saw them in Queenstreet. On that occasion Mr. Williams said " What do you think ?" " What is the matter," I replied, and he said " Mr. Littlewood lent me ten pounds when I was in the lock-up, and he has now summoned me for it." I asked him if he had anything to show for it ; and he said he had given him a receipt. I asked him if he signed his name to it, and he said he did. Then, I remaiked, that Mr. Littlewood was sine to gain the case if he had the receipt Mr. Williams then said he didn't think Mr. Littlewood could sue him for it, as he owed him £15 I then asked him why he didn't get Mr. Littlewood to allow him the £10 and place it to clearing off his account ; he leplied he was hard-up at the time, and was glad to get it. He Baid he had to sign the receipt on the floor, as there was neither chair nor table in the lock-up, and his hand tiembled so much that he could scatcely hold his pen. Cross-examined by Mr. Wynn : I have known Mr. Littlewood for some years. He stayed ab my house a couple of times. Williams said he is summoning me for £1 0, he paid me on account of his bill. I said he treated my son very badly, he owed him £12, some of it for money lent — not for grog score. That was plaiutifTs case ; the first witness called for the defence was John Bemaid Williams, he doposed : T am defendant in this action. I reside at Russell, Bay of Islands. I formerly kept a public-house there ; Mr. Littlewood then lesided at Russell. I do not keep a public-house now. Mr. Littlewood used to fiequent my house at tho Bay, eveiy day almost. He was in the habit of running up bills. Early in 1861, I got into some trou ble which led to my being imprisoned. It was for striking a man, Mr. Barstow gave me a month in gaol. Duiing thattime plaintiff owed me £15 Is., for drink. I asked him several times to pay the bill. He always promised to pay me. He used to call and see me almost eveiy morning while I was in goal, until I believe the constable stopped him, as being too drunk they would not let him in. I asked him for the money while in gaol. He promised to let me have it — he paid lie would write me a cheque. He wrote me a cheque for £1 0 — hesaid that was all lie could give me. I swear positively I never asked him to lend me money. I gave him a receipt ; I think I wrote it myself ; I don't believe I ever signed that receipt. I will Bwear the words "cash advanced and lent "were not in the receipt I gave him. I never had occasion to borrow money, I had £60 or £70 in my house at that time, and hundreds in the bank. About twelve months afterwards I came to Auckland While here I leceived a summons for £1 0 ; in consequence of some engagements I was unable to attend the trial. By content my evidence was taken. I did not then see the receipt. Subsequently I met Mr. Littlewood in the Court house at Russell ; I sued him for some few shillings for wines and ales. That was all that I thought I could recover in the Coiut. After the case was over, I said to Mr. Littlewood, where's that receipt for the £10 that you sued me for. He said, it is in the Resident Magistrate's Court in Auckland ; I told him it was not — that I had wtitten to my agent and could not get it T don't recollect having said to Mr. Litfclewood that if I got it I would prosecute him ; I might have said so. The next thing I knew of the document, Mr. Barstow sent for mo ; he said I have got the document you were talking about. He asked me what proceed ings I wns going to take about it, and I said none. I did not take pioceedings against him. 7. told Mr. Barstow I would be sorry t > do so, he (Littlewood) being the father of a family; I would let him fall into some other hands. I then left the Court House. Mr. Barstow sent for me some time afterwards. The constable came to fetch me. My son and I went to the Resident Magistrate's Court at Russell. When I anived there I found Mr. Barstow and the constable there. Some time afterwards Mr. Littlewood was brought in. I was then examined as a witness. I sweai positively that I did not lay any formal information before any justice of tho peaco or request any one to do it. In fact I did not know anything about plaintiff being in gaol till I wai sent for. I never said anything to any one about prosecuting Mr. Littlewood. I asked Mr. Littlewood for the balance of my bill, £5 Is. I asked it the day he was going to sail ; he told me not to bother him; he would pay me and my brother, and eveiy body else, when he got to Auckland. He did not pay me. It was subsequent to this that I sued him for seven shillings. I recollect meeting Mrs. Callaghan in Auckland ; I said to her, what do you think of old Littlewood, he has summoned me for £10 that he paid me of the £15 he owed me. She said, oh I the old villian, I'll make my son John summon him for £12 he owes him, when I get back to the Bay. That was all the conversation. My son was present. Cross examined by Mr. Whitaker • My memory at times is very bad. I could not recollect everything that took place in tho gaol ; I can't say my memory was more defective then than at other times. I can't think of everything. I may have forgotten some portion of the transaction in gaol. I might have forgotten who wrote the receipt — Mr. Littlewood or I. I say that I signed a receipt on that occasion, but I don't write my name as it is signed to the receipt produced. The reason I know tho words " Cash advanced and lent," were not there waa because the money was in payment of an account. Re-examined by Mr. Wyun : T think the receipt went thus — "Received from Mr. Littlewood the sum of £10" John Bernard Williams, junior, deposed : lam son of the last witness. I was residing at Russell, when my father kept a public house. I recollect my father being in prison. Mr. Littlewood then owed my father £15 odd. I asked him several times for it, and he promised to givfi me a cheque for £10 on account. I was present when Mr. Littlewood gave my father the cheque for £10. I saw the receipt, and lead it. The receipt was something in these words (words of receipt). I swear positively the words cash advanced, and money lent weie not there. I was present the whole time that Mr. Littlewood was with my father that day. My father did not ask Mr. Littlewood for the loan of £10. I know my father had from £60 to £70 in the house, and money in the bank. Cross-examined by Mr. Whitaker : lam sure those words were not in it. I was looking over the writer's shoulder. I can't recollect who wrote it. I am quite sure that I did read it. (Depositions produced.) That is my signature, I believe. The wprds above it are, " I did not read the receipt or hear it read to me." [ believe I did read the receipt, but it is a long time ago. Christopher Hammon, deposed : I am a constable at the Bay of Islands. I recollect the investigation that has been referred to. I took Mr. Littlewood in custody at Mr. Barstow'a request. No formal information was laid. I had no written summons for Mr. Williams. T went for him at Mr. Barstow's request. I only told Mr. Williams that tho Resident Magistrate wanted to see him at the Court-house. Mr. Littlewood waa in custody then. He had been in custody since the day before— the 25fch. I rather think Mr. Williams was not present when Mr. Littlewood was given into custody. This was defendant's case, and Mr. Wynn addressed the jury on the defence, urging that the defendant did not prosecute in tho case ; that, in point of faot, it was Mr. Barstow who prosecuted. He contended that it would be extremely improbable that Mr. Williams with £6Q or £70 in his house and some hundreds in the Bank would borrow £10 ; it was also 'improbable tljat a solicitor would take a receipt in such a form— he wonld surely have taken an 1.0. TJ. or a promissory note. As for the money being recovered on the receipt in the Resident Magistrate's Court at Auok-
land, Mr. Williams deposed ho most certainly did not sign tho reoeipt produced. He was perfectly satisfied that tho jury had arrived at the conclusion ■when they heard Mr. Barstow's evidence, that Mr. Williams was not the piosecutor, — that he was only an unwilling wituess. The defendant was fully entitled to a verdict, and Mr. Littlewood had no one to thank but himself for the position he was in. Mr. Whitaker replied, arguing that Mr Williams, the defendant, did make a charge of felony against the plaintiff, and upon that Mr. Littlewood was tried. Mr. Baratow giving his advice, in no way exonerated the defendant. Mr. Barstow could not proceed with the caso ; it rested upon the defendant to proceed with it, who did proceed with it, and upon that his client was justified in bringing this action. He urged that tho evidenco of the witnesses for tho defenco was most convincing against the defendant. He referred to defondaut's contradicting the evidence ho gave at the Resident Magistrate's Court, at Russell. It was painful to see that father place his son in the witness box and perjure himself to support the defendant's case. The evidence told most conclusively against defendant. His client was a professional man, who depended for his living upon tho confidence reposed in him, and ho was chaiged -with a forgery. His client's character demanded that that imputation should be removed. He was confident the jury would award damages for the loss and inconvenience he had suffered and the pain and anxiety he must uccessarily feel upon being placed in such a position. His Honor then summed up, and directed the jury that, to notice a cas>e of this nature, they should be convinced that the defendant prosecuted maliciously, falsely, and without reasonable or probable cause, for preferring his charge against plaintiff.^Thoy would consider whether Mr. Williams causea Mr. Littlewood to be imprisoned ; if he did, did he do so maliciously ; and had he leasonablo and probable cause. If lie really and conscientiously believed that the signature was a forgery, tfaon he had such a cause, — that would depend upon whether he was smceie in fcho lest of his evidence. If he originated the charge and afterwards relented, he was* not the less responsible, if it was commenced in a malicious spirit. Tho question of damages rested wholly with the jury, and if they should come to consider them, they would do s>o in proportion to the malice evinced, and to the injury plaintiff suffered. The jury then, at a quarter before sevon, retired to consider their vei diet. After an absence of fiftyfive minutes, they loturned a verdict for defendant. May Lean v. Somi:kvili,e. Tfiis was an action entered to recover the sum of £IG9 Bs. sd. for freight. Richard May Lean, captain, of the 'Blimdell,' was plaintiff, and Mr. Someiville, merchant, defendant. Mr. Wynn and Mr. Beveridgo appeared for plaintiff; Mr. Whitaker for the defendant. A. verdict for the whole amount was taken by consent. The Court then, at 8 o'clock, was dissolved, and thus brought to a conclusion the business of the session.
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SUPREME COURT—Tuesday. (Before His Honor Sn G. A. Arney) CIVIL CAUSES., Daily Southern Cross, Volume XVIII, Issue 1687, 17 December 1862
SUPREME COURT—Tuesday. (Before His Honor Sn G. A. Arney) CIVIL CAUSES. Daily Southern Cross, Volume XVIII, Issue 1687, 17 December 1862
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