RESIDENT MAGISTRATE'S COURT.

Hawke's Bay Herald, Volume 8, Issue 631, 1 July 1865, Page 2

RESIDENT MAGISTRATE'S COURT.

. Friday, June 30. Inciting to Fight a Duel. (Before John Curling Esq., E.M., G, S. Cooper Esq., R.M., J. A. Smith Esq., J.P., and H. B. Scaly Esq., J.P.) John Buchanan appeared to answer an information charging him for that, on Wednesday, the 28th day of June 1865, at Napier, in the Province of Hawke's Bay, unlawfully, wickedly, wilfully, and maliciously did utter, pronounce, declare, and say, to and to the presence and hearing of one Edward Spencer Curling, and divers other persons then present, certain provoking, malicious, and scandalous words, with intent toj instigate, excite, and provoke the said Edward Spencer Curling to fight a duel with and against the said John Buchanan, againfet the^peace of our Lady the Queen, her j crown and dignity. J A conversational discussion was permitted by the court with the view of a compromise being effected. • ; I.Mr. Curling said that the word he used 1 — " disgraceful," as applied to certain proceedings at a late public meeting, and which was the origin of the affair under investigation, was not addressed to Mr. Buchanan at all, but to Mr. Colenso. Mr. Buchanan. — Quite true, but I was within ear-shot and caught the words. It occurred just after an exciting debate, in which the Speaker had commented freely upon my conduct. It was impossible to divest the matter altogether of a political aspect, seeing that, although the Council was not actually sitting, what took place might almost be said to have been a continuation of the proceedings. Capt. Curling said that the court would allow 15 minutes in order that opportunity might be afforded for accommodating the matter. The charge was {in exceedingly serious one — one that could not be dealt. with summarily, bnt must, if it went on and a prima facie case established, go to a jury. Mr. Curling.— -I can only consent to the case being dropped, upon receiving a full and proper apology. [He here read an apology such as he would require.] Not only in words but in manner I was .grossly insulted— insulted as I had never been before. At the expiration of the fifteen minutes, — Mr. Buchanan said that, before the case went further, it was desirable, considering the political aspect it assumed, that any person who was referred to, or whose interests were touched upon, in the petition adopted at the public meeting, should not sit on the Bench. Capt. Curling. — There are only three gentle- j men on the Bench besides myself; and when you talk of adjudication, you should remember that it does not lie with this court to adjudicate at all. ' !,' Mr Buchanan. — If I must speak out, I object to Mr Cooper taking a seat on the Bench. ; Capt. Curling. — We must stop this ; it cannot go on. Mr Buchanan. — Now, your Worship, with reference to — - ■ Capt. Curling. — You cannot be permitted to go on. Mr Buchanan.— l thought some reference had been made to an apology. Capt. Curling. — You have had ample time to arrange all that. Mr. Buchanan. — I must, then, have misunderstood you. I understood it to be the wish of the prosecutor that an apology should be made in open court. Captain Curling said — Even now, when the prosecutor has been sworn, the Bench will give you another chance — will allow you a few minutes ; but it will not be fooled any longer. Mr. Buchanan. — Then, can I go on with my explanation ? Capt. Curling. — We don't want any explanation. Are you willing to make that apology ? Mr. Buchanan. — Certainly ; if the prosecutor will state distinctly that the word "disgraceful" was not applied to me ? Mr. Curling. — I- have nothing to allow — nothing to explain. Capt Curling. — Let the case go on. The first witness called for the prosecution was— Edward Spencer Curling on his oath saith as follows: — I reside at te Kopanga; — I am a sheep-fArmer and I am also a member of the Provincial Council of Hawke's Bay. On Wednesday evening last about half past five, immediately after the adjournment of the Council, I said to Mr. Tiffen and to Mr. Coleuso in the Council Chamber, (Mr. Colenso was sitting next him), that some of the proceedings at the public meeting which had lately been held in the Council Chamber were very disgraceful. Mr. Buchanan, the defendant, who was sitting next to Mr. Colenso, immediately came behind Mr. Colenso's chair towards me and demanded an explanation as to what I meant by those words. As I had had several opportunities of seeing his violent conduct since I have been in town, both in the Council and out of it, I declined having any conversation with him < whatever on the subject, In. answer to those ; remarks of mine he insisted upon having an explanation in a very coarse and rude manner, ap-

proaching me at ihie^am^time; As -^fchei^; passed mm, to >go;d^^ he first of all called me a lickspittle, and then a - toady of the Governmenir— that I always sup-/ . ported them through thick and thin-r—thatl was: .; not an independent member, and that I had no - mind of my own. He then made use pf«othe£. ; . violent expi*essions. He then added,— rtf. you ■>■;, were not an old man I would put you on your. back on the floor: — ai the same time shaking his vr : hand in my face, and>gnashing,his^tes% 1< moved away and put up my hand, as I ,tJjough;fc.w he was going to strike me ; I then went^roundv^ to the other side of the. tabhv, He then i.fol- . lowed me round the table. I repeated that I declined holding any intercourse with him until he could govern his temper.' He then repeated . the expression again that he would put me on my back. At the time he was speaking, to me ~. two other town members, were also addressings me and calling my, attention to what I had said with reference to the public meeting in question -r-they were advising me to give an explanation: - of what I meant, or something to that effect. The defendant then again approached me^and,; shaking his hand within a few inches of my face, said " You are an officer and wear a sword, I'll meet you if you know how to use it." He then added; — "You may choose yoiir owft weaponsr-r-youmay take pistols if you like/—or some such words. ; His manner was excessively violent and coars^.- AsJ; saw .thing^y' were getting intoa very questionable state, and< - I had some difficulty in controlling myself, I left ; the room. He, repeated the last challenge /to - " . me twice. He walked, a few .paces in tremen- . dous agitation, stamping his feet, and then came . back again, The coarseness of his manner waa very offensive. I omitted one expression which he made use of. He called me a "coward." I never gave him any provocation. My impression was that he was very anxious and desirous to create a quarrel. , . . Cross examined by the defendant :— -The lasfc matter that engaged .the attention of the, Council on that day previous to this affair had reference to the Speaker — some statement which had been made in reference to him, the Speaker, at the public meeting. The debate was not a . more excited one than others had been. In the . course of that debate the Speaker stated that the member for Napier, the defendant, was, a calumniator, I heard the debate, but lam not prepared to say that the Speaker wished to- . get a vote of censure against the defendant. At the close of that debate the Speaker expressed his intention to resign his seat. I- do not recollect whether Mr. Ormond spoke or not. lam not aware that there had even been any occasion of quarrel between myself and defendant previous to the session of Council. We are neigh? bours. I never had any intimate intercourse, with him before coming down here. '-> William Airey Richardson, on oath, saith:*— I waa present in the Council Chamber on the occasion in question. I did not hear the commencement of the altercation, that istosaysT did not hear the language used by Mr. Curling. My attention was first drawn towards them by hearing Mr. Buchanan calling Mr. Curling a "lickspittle." Whilst Mr. Buchanan was speaking, Mr. Curling waived his hand, saying, - " I don't wish to have any discussion with ydu. ? ' ' v Immediately after calling Mr, Curling a v lickspittle," the defendant also called him a "toady," and said that he had no mind of his ' • own. Mr. Curling was walking to the opposite side of the room whilst this was going on. Mr. Buchanan then said, " You wear (or carry) a sword ; I presume you know what it is intended for. lam prepared to give you satisfaction at anytime you like." Mr. Curling repeatedly said that he did not wish to enter into any discussion. Mr. Buchanan said, "Curling, you are a coward, and thesis not the slightest principle of a gentleman in you : you are an old man, otherwise I should put you on your back on this floor." ' Immediately after that, Mr. Curling and I left the room. Cross-examined by defendant : — 'From the language, and the way in which it was put, I believe it was calculated to induce Mr. Curling to fight a duel. Had such language been addressed to me, as I have an antipathy to fighting duels, I should have declined; but I should have committed a breach of the peace. Philip Dolbel, on oath, saith: — I was 'p 1 resent on the occasion referred to. I am a member of the Council. I did not hear Mr. Curling at the beginning. My attention was first drawn to Mr. Buchanan calling Mr. Curling a "toady." Mr. Curling said, "I decline to have any conversation with you on the subject." Mr. Curling walked to the opposite side of the room. Mr. Buchanan followed him and said, " Sir, you wear a sword, I hope you know how to make use of it." Mr. Buchanan said something more, but I did not catch what he said ; I was on the other side of the room. Mr. Buchanan was walking back and forwards in the room, and he went back to Mr. Curling and told him if he were not an old man he would lay him down on tKe' floor. Mr. Cur- ''" ling still repeated that he would decline having any conversation with him. Then Mr. Curling left the room. I forgot to say that I heard Mr, Buchanan tell Mr. Curling that he was a coward. t Henry Stokes Tiffen, on his oath, saith : — I was present on the ' occasion. I heard Mr. Curling use the word "disgraceful" in reference to a public meeting which had been held in the Council Chamber the Saturday previous. Mr. Buchanan then said, "Explain your meaning, Sir." Mr. Curling said, " Sir, I was not addressing you ;- I was speaking to these gentlemen." Mr. Bu6hanan insisted a second time. Mr. Curling said, " Sir, I wish to have no intercourse with you." Mr. Curling then, and myself, went towards the door to go out. Mr. Buchanan then stopped him, . and said,' "Sir, you are a toady of the ; Government : you are a lick-spittle : you have not a mind of your own." Mr. Buchanan was gradually getting more and more excited. He was very- much excited. Mr. Curling then went to the opposite side of the room where we had previously been sitting (I believe to reply to Mr. Colenso who was addressing him across the table) — Mr. Buchanan then came up and, shaking his finger at Mr. Curling, said, "Sir, you are an officer ,• you wear a sword. Do you know how to use ," it, Sir? If so, I'll meet you when and where you will." (I s h ou ld here state to the Bench that I have given the wprds as nearly, as I could catch them, as there was a great noise in the

is«&^&^&-^<n^ ; v.> ■'■■■■- ■-. ,;■.-. ;^-^^>v- ->-^--w- ' \ : ■'■ -'•■. mixed up V Ib'^erl expletives, some of them :" Qr you may take pistols ;;' ;rif^&if -.fibh'pbSe;" ;: Mn Curling waived Mr. ;^u^^^a#ajr.i^n/.sayibg, "I don't wish to ; ; Jha^fayr'.wiyere'ation^with^'you?'' Mr. Bu- ; chanaf rthen said to him v " Sir, you are a coward; *nd it ybu were not so old a man, I should put ?you v on that 4 f166r." There was a consider^e? amount of further talk, but I did r noi hear itjCas -my attention was turned towards C: seji^Mng^tfe' gentlemen. Mr. Curling, my- : gelf,'%nd Mri Isiehardson, : then went away. I think nothing could have prevented them fighting ft duel had Mf. Curling said "yes." J^ C;,L. Carter, on his oath saith ::— I was i^ the : Chamber dm-rng the latter part of &$ altercation. I did not hear Mr. Curling use ?ahy: offensive words/ When! first went into- the room Mr. Buchanan was approaching Mr; Curling, and I heard him say to him, " Sir, youvare an officer.' You wear a sword. Perhaps you how to use it." Mr! Curling said to -Mr. Buchanan, " I don't wish to have anything to say to you" Mr. Buchanan afterwards said, "You are no gentleman, you are a coward.'' My impression was that Mr. Buchanan's conduct and language amounted to a phallenge. ! V This ended jfche case for the prosecution. .: • 'Caution having been read to defend^^iiff was asked whether he had' anything to '&$•• f ; He" said he had nothing' tosay now, but presumed that, at the close, he would be permitted'to address a few observations to the court; ..Could he now oall witnesses for the defence? • ' ' ' Capt, Curling read an extract from a law book bearing on this. If the evidence was not such* as was intended to rebut the charge— if the receiving of it wasiiot likely to lead to the dismissal of the case, the hearing of such cvi* dence would be injudicious/ . Mr; Buchanan said the evidence he had to offer ; was with the view: of rebutting the charge. He first called the—*-' , Policeman who was on duty at the Council Chamber on the' day in question, who stated that 1 he 'had left- Before the. altercation took place; and that it was the practise for a policeman to" be in attendance while the Council was 1 pitting.. ■ ; ■ '"''"'>'■ • ■ WilUam Colenso then made a statement, which,- however, 1 was ; not spoken so as to be taken down. He referred first to what had taken place previously in the Council Chamber r—saying 4;hat," from the fact of" Mr. Curling having made a speech, which he had. not done befbi%'as>weU as'frona other, circumstances, he y was 'led' to infer thdt he had had too much . wine.y ; After tHe Council had adjourned — he, Mr.rTiffenandMr. Buchanan being all sitting together— Mr. CurKng, at the back of his (Mr. Colenso's) ''■■, chair, made use of the expression, with 'refererice.to the late meeting,— "Most disgraceful language." 1 ' Mr. Buchanan came up and-saidj-r-Po. you apply that to me ?. Mr. Curling.; replied,— -I will not. speak to you; I wUl.hold no intercourse with you." Mr. Buchanan, then, in . a louder tone, demanded an explanation and received a similar, reply. He , /(M^ljpjle^ can^act like that^ ybu /inusrexpain^ydurse^ Mr. Curling went towards the door, and then Mr. Buchanan called ■ him a* toady and a lickspittle, and said that he always voted with the government and had no mind of his own. Mr. Curling then went 'to the opposite side of the room, towards the fire-place. He (Mr. Colenso) endeavoured several times to call his attention so as to advise him. to give an explanation ; at last he i shouted out, so loud that he must have been; jbeard in Shakespeare road, — "If I come across the room I will make you hear me.'C At. this time Mr. Buchanan went up to Mr. Curling and said,— "You have a sword by your side, havh ? t you.''^Afterwards he said,— "If you- were not an ola man I would put you on the floor*" -He (Mr. Colenso), when he heardthis, was cheered, for he felt there would -)>e no duel, seeing that, if Mr. Curling was an old man that day he would be equally so the nextl, . . Heathen ,shouted f out;r~# Curling, you were once an English gentleman, if you do not explain youwUl no longer be an English gentleman.'' Soon after, Mr. Buchanan, Mr. Tiffenapdhpnself retired. V Cross-examined by Defendant.-- -I considered the fault, to be entirely on Mr. Curling's side, and that you had no intention, of fighting a dueL I did not hear you say anything of "pistols," nor of •" militia," nor, u?e ( the expression, " officey." I will swear^distinctly that you usec] none of those words. . Mr DolbeTs evidence is correct, but that of thejbther witnesses for the prosecution is not, Capt. Carter told me that he knew very little abouiitj audlknow thathe is very. deaf. . .',,.- ... J. i/jL Stuart.— Examined by defendant.— I never heard the ..word '> pistol" used by you; Ido not think it possible- it could have been used without my knowing it. My impression was not that you had, any intention to fight a duel.: I, regarded the language used as mere noisy 'iwords; such- as, if taken up seriously, , would lead to a court case like this ever day. By the Bench. — I did hear the word " Cow- , ard"' made, use of; but the language used by Mr Curling was highly provocative, in characterising the proceedings of the meeting as disgraceful, and the speeches as ungentlemanly. T^e Bench. — -All we want to know is this, .—Had l the defendant any serious intention of inciting Sf r Curling to fight a duel P Witness.— Nothing of the kind; were the same words addressed to me I would simply isay, shut up. „ ' ThpinasEdwards.— Examined by defendant. I was present on the occasion in question. I never heard you offer Mr: Curling the alternative of>pistols. I was a' quiet looker-on, and ;y^iicotild:ndt;have used such an expression having heard it. It was not my ": that you had a decided intention "to incite- ! Mr. Curling to fight a duel. Your : bbj^tsißißmed'tobe-to'gethim to retract certanf pjsle^atibns he had made, and this led to ■;;. :^fV|it^f(M^onV, In- 'my opinion Mr. Curling '■£ '^te^|??j^P^Bor» and I 1 was greatly surprised eße prp^edings.. Finding he ,V^^^^^o^xXy ypu^ treated * him with con|''2^p^^j^^an^iiig\e'lse. i ..-•;:' y ■ \ ■ tl.-^v^^^v^mo^. incite^Mr. 'Curling^ to ' ■

Witness.— Certainly not: there had been a noisy . altercation aIL the afternoon, and this was simply a continuance. of it. •>./'• ■{■ The 'Magistot^s then retired. , At the expiry of twenty minutes they returned to court. Capt; Curling said that the Bench had given ■ a great dear of attention to the case, and had come to this conclusion, \ However cjisgraceful i Mr. Buchanan's cpnduct was— and the court ; coutd^kbt but express an, opinion that it was very bad, very disgraceful— they could not go so far as to suppose that it wds his deliberate intention to provoke Mr. Curling to fight a duel. They could not think for a moment that any jury would find a verdict to that effect. But, in dismissing the case, the Bench could not but pronounce their condemnation of his conduct in very strong language. Mr. Curling (to the Bench).-— I beg to call the attention of your Worships to, the fact that, after you retired, the defendant came up to me and said, "Curling, I congratulate you upon perjury." . , The Bench.— rlt is your own fault that Mr. Buchanan has escaped from, well-merited punishment, by your having made the charge too strong against him. The case was then dismissed. The court was crowded throughout, and, upon the defendant leaving, he was received with three cheers from a- number of persons assembled outside. [Before the same Justices.] Robinson v. Ulph. Claim, £20 1 55.. 6d. for board and lodging supplied, and for cash and sundries. Judgment for plaintiff . for amount claimed, and 15s. costs. Reardon v, Danvers, Claim, £15 19s. 6d. for goods supplied. Judgment by default for amount claimed, and 15s. costs. , JDrinkwater v. Hudson. Claim, £30 for a certain horse, the property of plaintiff, lent to the defendant, and by him lost. Settled out of court. „. . Slaughter House License. A slaughter-house license was granted to Thomfts Atkinson, of Petane, for Section 10 of Block 2, Eskdale, Petane. • •■