THE COURTS. SUPREME COURT. — In Banco. Monday, August 29. [Before Sir George A. Arney, Chief Justice.]

Daily Southern Cross, Volume XXVI, Issue 4063, 30 August 1870, Page 3

THE COURTS.

SUPREME CO URT. — In Banco. Monday, August 29. [Before Sir George A. Arney, Chief Justice.]

Mohi Manoakahia v. Thomas Craig.— This was an application to dissolve an injunction. Mr. Hesketh appeared in support of the application, and Mr. MacCornu'ck to show cause. — Mr. Hesketh said there had been no rule nisi obtained in this case, and he now moved that the rule be made absolute. The injunction, which it was now applied to get dissolved, arose out of an action heard m tlie District Court, in June lasb, brought by plaintiff to recover the sum of £2,000 damages from the defendant for trespass by enteriug upon plaintiff's land and cutting down certain timber there and carrying it away. Since the writ of injunction had been issued, on the 24th June, the effect of ifc had been that defendant's steam saw mill at Whangapoua had been stopped. The injunction had been granted upon the affidavit of plaintiff, dated the 23rd June, which showed that the defendant had, daring the year 18G2, made an agreement with some natives for the purpose of cutting timber thereon, but that none of those natives had any right or interest in the laad so leased. It was also shown that the plaintiff had objected to the defendant taking the timber logs that were cut and lying on the Opibinui and other creeks ; that he had marked them, and that they had afterwards been taken down to defendant's mill by some of the men in defendant's employment ; and that he had taken more logs down the creek, after plain- [ tiff's objection and marking the same. An affidavit was read from Mr. A. T. Nation, bearing on the same question, «nd generally supporting the same statements. A large number of letters were produced from Mr. McKechnie, the plaintiff's solicitor, showing that the defendant had been warned that the plaintiff, if defendant did not desist from cutting and removing timber from off plaintiff's land, would apply for an injunction to compel him to do so. The affidavit of defendant, Thomas Craig, showed that on the 30th June he was served with a writ of provisional injunction to prevent him cutting and removing timber, and that until that day he was not aware that such a writ had been issued or applied for. In 1862 and 18G3 he had made an agreement with the natives, of whom the plaintiff's mother was one, a3 to purchasing and cutting the timber upon the land ; and he continued in undisturbed possession, cutting and felling timber, until ISG6, without any of the natives having ever made the slightest objection to his doing so. In 1566 he disposed of hia mill to Harris and Laurie; bub, on their becoming bankrupt without fulfilling the terms of the purchase, the defendant made application to their trustees for permission to again get possession of the mill, which they granted, and in December, 1867, he resumed possession of the mill under the circumstances stated above, and continued so until the 11th January, 18?0, without challenge. 1 On the 25th January, 1870, he had an agreement with C. A. Harris, jun., to have possession of the mill and to cut the logs lying on the Opitinui Creek, but not to fell any timber, Harris having on that day acquired a right to the land from the nativos without defendant's knowledge. Soon after that, the nativos began to complain of the defendant. On the 23th of January, 1870, the Opitinui land was passed through the Native Lands Court, and a certificate of title issued to Mohi Mangakahia and Paora Matutaere, and numbered 1,037. He believed his agreement with Harris was a good one, as he had the land leased for 99 years from Mohi aud Paora, and that no trees larger than 24 inches in diameter »vere to be cut, unless by paying a sum of £3 for each tiee so cut. The defendant ha r l 40 men employed, and the loss caused by the stoppage of his mill was very considerable. The timber cut on the Opitinui Creek had cost him £3,000, and was all of valuable kauri. It was alleged that the present action was brought at the instance of C. A. Harris, jun., and that, although the injunction was issued on the 24th of June, it was not until the day of making the affidavit, the 30bh June, that he was sorved with copy of the order; and the delay thus caused was said to be wilful, and done with the purpose of permitting the Chief Justice to go away to the South, so that he (the defendant) might not have an opportunity of applying to have the injunction dissolved. Affidavits were also read from Mr. H. H. Lusk aud Mr. Richmond, in reference to the service and the obtaining of the writ of injunction. There Were read affidavits from Mr. MacCorarck, James Y. Flynn, and Mr. E. A. McKechnie, in reply to the allegation in defendant's affidavit, and to show that there was no wilful delay on the part of plaintiff or plaintiff's solicitors in serving the writ of injunction. The delay was caused by defendant himself keeping out of the way when efforts were made to servo the writ. Then there were read affidavits from Mohi, Paora Matutaere, C. O. Davis, and Christopher Atwoll Harris, jun.; the last of which asserted that there was no agreement made between himself and Craig ; that he had driven Craigs meu off the land when he caught them working there, and had taken away their tools. Craisj brought an action against him in the Police Court, at Coromanlel, for a breach of the peace, which cause Craig lost. Mr. Davis's affidavit showed that he had made application on be half of Riria, plaiutiff's mother, to defendant in 1865 or 1866, for payment for the timber cut by him, but which he refused, alleging that he had paid Riria, the deceased, she having died in the year 1564. — Mr. Hesketh now moved that the injunction be dissolved, and he would do so upon the following grounds : — First, that the order for the injunction was improperly^ obtained, and without any notice being given to the defendant. Second, that on the affidavit of Craig it seems an appsarauce hid been entered on the 10th of June, on his behalf, and no notice was -taken of this appearance in the affidavits in support of. the application for the injunction ; and that the affidavits do not show sufficient urgency for the injunction. Tnird, that the plaintiff has been guilty of delay in bringing the application for the injunction. Fourth, that^ the affidavits do not show forth the material facts of the ci.se ; they do not disclose the fact of JMr. Craig having put in an appearance on the 10th June, as refcitred to in tlie 'second objection taken ; they do not disclose the fact of the lea^a to Harris, on the 25th of January, for 93 yeira, of the whole right to cut aud use the timber on the land upon the Opitiuui Creek, and the conveyance in fee simple of this land to Harris on the 18th May; and they do not disclose the_ fact that Mohi got back from Harris any portion of the interest in this land on the day before the present action began. All these ..were material facts,- and ought to have!, been - disclosed in the" affidavits. The ) true test ' in this case was — s "H{is I the j plaintiff in this , case acted 'fairly -and 1 honestly ?< He maintained' that, had all these ,fa.cts b,een disclosed— h.a4 it"

been shown that, from January to May, tho plaintiff had parted with his right to the timber upon the land in question, and that it was during the3e foui* months that the matters complained if were alleged to have | been committed— the Court, he was sure, would ( nevev have granted the injunction. i The fifth objection he took was, that the writ does not carry out the order, inasmuch as a perpetual injunction has been issued instead of a provisional one. The whole transactions between Harris and Mohi were so strange that they appeared to be almost suspicious ; Mohi in all the transactions seemed like a man under his keeper. The affidavits showed that Harris had a saw-mill of his own within a quarter of a mile of Craigs mill; and the effect of this injunction, coupled with the selling of the land to Harris by Mohi, would be to put the whole timber trade of the district in Harris's hands. It was during the winter time only that logs could be got down to the mill, and if the injunction were retained the effect would be that no lo»s would be got to the mill, and there would be no work for the mill during the summer, — indeed up to the 11th of January, 1871, when Craigs agreement expired. At that time Harris would resume possession again, and, being the owner of the land, would take all those logs upon which Craig had already spent a sum of £3,000. All these circumstances, to say the least, were suspicious. So far as the allegation in the affidavits went, that the defendant could not be found to be served with the injunction, it appeared strange that, the day they wanted to serve him with ib, he was found walking in the streets, with no attempt at concealment. He concluded a long address by asking the Court to dissolve the injunction, upon the grounds stated, and desired that tlie plaintiff be required, to find security to re-imburse the defendant, in case he should have sustained any damage by the injunction. Such was the practice now in the Courts at home.— His Honor said, as the Court had now sat so long, it must rise at present, and the argument be continued on the next sitting- day. —The Court was then adjourned.

POLICE COUaT.— Monday. [Before J. M. Dargaville, Esq., J.P.] Drunkenness.— Robert Wood, Timot.hy Cronin, John Bi-oughton, Charles Furlong, David Williams, Sober b Stevens, George Qtiinn, Henry Johnson, and William. Napier were punished for drunkenness. Offensive and Provoking Language. — John Bent charged J. M. Perrier with offensive and insulting conduct towards him on the 26th August. — Mr. Wynn for the prosecution, Mr. J. B. Russell for the defence. — John Bent, manager at Jones and Co.'sprinting office, said : On a day within the last fortnight I was talking with Mr. Lord in Queensfcreet, near the Theatre. — (Mr. J. B. Russell objected to general evidence : itmnsfc be fixed to the date of the informati on. Mr. Wynn answered. Examination continued.) Mr. Perrier crossed over from the theatre i door, passed by me, and remarked, "There's | a man I always spit at" — or "spit on, "l forget I which — "whenever I pass him." Fromdefen- I dant's manner I know he meant me. On the 2Gth inst. I was at the theatre, and at the end of the first act, as I was leaving the theatre, I noticed defendant walking delibei'ately before me — that is, studiously walking slowly. On reaching the landing defendant turnod round and spat at me ; the saliva struck me. Mr. Neill was with me. I am afraid, if not restrained, he will continue this conduct. — Mr. J. B. Russell cross-examined : I have the management of Jones and Co.'s business. Invariably my conduct has been courteous towards the defendant, as a business man. I won't withdraw that statement. Since we ceased to print the Tomahawk I have never spoken to him. At the time I refer to as conversing with Mr. Lord, we were speaking on general matters. On this occasion, defendant spat at me, and I spoke of it as a dastardly act. Mr. Lord was also annoyed. At the theatre, on the'|2Gth, defendant was not snmking, and did not spit except when he spat at me. — To Mr. Wynn : It was a deliberate act of spitting at me. — To the Bench : In taking these proceedings, lam not animated by any feelings of malice against defendant. I swear it. — John Lord was called in support of the case. He said he did not take the first insult as applied to him, as ho was always on the best of terms with defendant, and is now ; in fact, defendant told him as much afterwards. — To Mr. J. B. Russell : lam aware that actions are psnding in which both complainant and defendant are concerned.— Mr, J. B. Russell addressed the Bonch. — Ths Court said that under the circumstances there was no alternative but to bind over the defendant in two sureties of £25 each, and himself in £50, to keep the peace for three months.

WAIUKU R. M. COURT.- August 13. [Before C. Mellsop, Esq., X.M.] T. Übid v. D. Dunn.— Claim, £2 10a., moiety of damages done by defendant's dog worrying plaintiff's cattle. No appearance of plaintiff. Case dismissed. Djruxxenness. — G. Gilmour suffered the usual penalty for this offence at Waiuku, on July 30. Assault. — David Bert v. A. Sherdan and B. McCann. — This was an aggravated case of assault committed on the public road at die Mauku, on 2ith July. The defendants weie fined £2 each with cewts, or one mouth's imprisonment. NON-PAYMEXT OF HIGHWAY RATES. — Waiuku Highway Board v. William Aitkiii —Defendant was charged with neglecting to pay the sum of £7 75., rates due for the year ending September 30, 1870. No appearance of defendant.— Judgment by default.

Waiuku Highway Board v. William Aitxiit. — The game defendant was charged with neglecting to pay the sum of £7 73., the amount of rates due by Mm to the Board for tho year ending September 30, 1869. No appearance of defendant. — Owing to the defendant not having been assessed for the whole amount in his own name, judgment only was given for £2 6a. Bd., and costs of Court. Same v. Thompson, Brothers. — The defendants were charged with neglecting to pay the sum of £15 Bs. Sd., amount of rates due by them to the Board for the year ending September 30, 1870. — Judgment reserved till next Court- day. Same v. Francis Cherry. — The defendant Avas charged with neglecting to pay the sum of £1 15s. Sd., the amount due i»y him to the Board for rates for the year ending September 30, 1870. The defendant pleaded, first, that he was not legally liable, as he did not own the quantity of land for which he had been assessed ; and second, that the rate had not been legally demanded. — The collector proved that the amount was still due, and that he had posted an application to defendant, who lives in Auckland.— The defendant admitted having received the application from the collector.— Judgment reserved till next Court-day.

Auuust 27. [Before C. Mku^op, Esq., R.M.] Waiuku Highway .Board v. Thompson Brothers, .Same v. J. CHEP.iir.— The Bench gave judgment in the above cases, stating that they must dismiss these complaints on the ground that clause 3!) of the Highway* Act, 1887, had not bean complied with l.y the collectoi-.

Waipipi Highway Board v.G. Ckummer. —The defendant was charged with ueglecting to pay .the sum of £'S 55., the balance due by him to the Board for rates for tho year eiriiiig September 3()fch, 1870. — No appearance of rtefencLxnt. — JuJgrnenfc for £3 03. and costs of Court.