RESIDENT MAGISTRATE'S COURT. This Day.

Nelson Evening Mail, Volume I, Issue 200, 25 October 1866, Page 2

RESIDENT MAGISTRATE'S COURT. This Day.

[Before J. Poynter, Esq., R.M.] Mr Hamilton, the phrenologist, was charged by Mr J. W. Tatton, that he did feloniously steal, take, and carry away, from the premises of Mr Rout, on the 24th instant, three plaster casts of the heads of Burgess, Levy,, and Kelly, value -£30. Mr Pitt appeared for the prosecution, and Mr Kingdon for the defence. . Mr Hamilton had been liberated on his own recognizances, and appeared. 'in Court to, instruct his counsel. The casts had been obtained by Messrs Tatton and Knight, by means of a search warrant, and Avere placed on the table of the Court. A large number of townspeople assembled, and appeared to take a great interest in the proceedings, Mr Pitt called the folloAving Avitnesses: — Edward Moore: lam clerk in the employ of Mr Rout. Yesterday morning I was at the office in Hardy-street. I saw Mr Hamilton there about halfpast 9, at the door as I Avas going to work. I opened the door and told him Mr. Rout Avas not down. He did not ask for Mr Rout. He walked into Mr Rout's room and staid' there a few minutes, 'and took some newspapers from his pocket. He did hot tell me what he wanted before this. He said he vvas going to take a' cast to have some diagrams taken from it. There were three casts there, of Levy, Kelly, and Burgess. He did not claim them as his property. lie wrapped

the casts in paper, and 7 left a letter for Mr Rout on the table. I made no; observation, atfd allowed him to tak.e.,them away. „Ii, Ii did; not .know' if he had any right to/them^ (The casts were produced and identified by the witness). These casts' lffip^ Hamilton took away with him off the premises. 7 Mr, -Rout: lam a commission agent MNelson, and my office is in Hardy-street. I had; three plaster casts in my office on Tuesday evening, of 'Burgess, Kelly, and Levy; which Mr Knight brought there. They were the property of Messrs Tatton and'Knight, I believe. They brought them to me" as their property. The casts were brought for. the use of the Phrenological Society. I cannot say if they were on loan. We had stipulated for three sets, and I cannot say this was a first instalment. The word was used, I lend, when the casts were brought. When I received them I gave an undertaking to Messrs Tatton and Knight. That produced is the same. (The Magistrate said that the document would bear the interpretation that the casts were a first deposit). I gave no one authority to take the casts from my office. Mr Hamilton had no authority from me to do so. I produce a letter I received from my clerk yesterday morning in Mr Hamilton's handwriting. The letter was to the purport that Mr Hamilton had a moral right to the first three casts, and that the Society had waived their right to them. It charged Messrs. Tatton and Knight with having recourse to intrigue to cover their falsehood. Witness continued: I told Mr Hamilton the previous evening that we should have to give back the casts. I and Mr Burns afterwards saw him and told him what we were doing. He said he would not take as a compliment what he demanded as a right. I saw him no more till he was in the lock-up. To Mr Kingdon : I applied to the Sheriff for leave to take casts of the heads. The first time the Sheriff gave a general permission. Afterwards he said he had given permission to Mr Knight to take them under the inspection of Mr Hamilton. Two days before the execution, the Sheriff told me that in consequence of a slight misunderstanding, he had given this permission. I saw Messrs Tatton and Knight taking the casts, and Mr Hamilton either superintending or inspecting, in the gaol yard. He was looking on. I did not see him take any active part with the plaster. The Superintendent, Messrs Williams, Blackett, and others were there. I believe Mr Hamilton was there, inspecting with the Sheriff's permission. I heard him say he was to have the three first casts. I know not what terms were made. He afterwards lectured on similar casts. I think they were the three first taken. I did not see them after the lecture. They were taken away. I think he did not get the proceeds of the lecture whose object was to benefit the Monumental Committee. When the casts were delivered to the society, the' members were annoyed at the agreement I had made, not to lend them for a specified time. The committee did not say they were the first instalment, they might have thought so. Mr Hamilton wished to put some questions, but was told to put them to his counsel, fie said he would put any questions at present. To Mr Kingdon: The general permission to take casts was asked first. When Mr. Hamilton arrived it was understood that he should act for the Phrenological Society and on his own behalf, in getting tho casts. The understanding was with Mr Hamilton and not with the Sheriff. The Magistrate said it would be necessary to have the Sherift here to understand the matter. Witness: The agreement in reference to taking the casts was between tlie Sheriff and me. Mr J. T. Knight : I ani a plasterer in Nelson. In conjunction with Mr Tatton I took the casts now produced, and others of the men who were executed. The casts belong to myself and Mr. Tatton. On Tuesday last I took the set produced to Mr Rout's office. They were taken for the use of the Phrenological Society, on loan for that evening. I never gave Mr Hamilton authority to get thosecasts; they were lent for that evening alone^ and not an instalment for the society. The value of the casts is £30, for this reason ; we did not intend to issue casts, till we had received a sufficient number of orders to cover the expense. We wished to be paid for our copy-right, and we did not want the casts to go out of our possession. I would not take less than £30 now for a single set ; after tlie complement is full I would take £3. We did not intend to sell the casts except at a figure that would cover the first expense; if we got 20 or 30 subscribers we would sell the casts at £3. The casts were not returned after they were lent to Mr Rout. To Mr Kingdon: There was no arrangement as to what sum should he paid Mr Hamilton. I visited him once or twice in consequence of Mr Rout stating that the Sheriff had granted him and me permission to take the casts, under Mr Hamilton's superintendence, phrenologically. I said I was capable of taking the casts without his assistance. 1 agreed to take the casts after objecting to a certain extent. We did not notify any amount of subscription, but we reckoned on 30 subscribers at £3 each. I offered my half share to Mr Hamilton for £30, but this was a half not a third share. We lent the casts to the society for one night only. The reason we made an agreement with" Mr Rout for three months was that we thought at the end of that time to furnish others. Our object was to prevent the casts going out of Lir Rout's possession. He drew the agreement. His Worship here observed, "Is this what they call the * bond ' ? " To Mr Pitt: The other share was Mr Tatton's. The reason Mr Hamilton was not present in the gaol all the time *was, he was ordered out by Captain Clouston for cutting off the hair of Levy and Kelly without permission. He was requested to leave not because he did jthis before the allotted time, but about 10 o'clock in the morning. When he returned

later in the dayi had, half ; taken the casts, by halfpast 4or 5 o'clock. " ' ' ~ Through the Court: I don't recollect what time Mr Hamilton -went out to get some refreshment, if he went put at aU. Mr Tatton: I am a chemist in Nelson. I took three casts in conjunction with the last witness, of which those produced are a set. These casts left my possession on Tuesday-" Mr Knight" took them to Mr Rout's office; for the use of the Phrenological Society, Mr Rout, the secretary, asked permission to have them; I assented on his giving a guarantee he would not allow 'them to be used for any other purpose. They are the joint property of Mr. Knight and myself. 1 solemnly affirm they db not belong to the Phrenological Society. I never gave Mr Hamilton permission to take them fi-om Mr Rout's office. I never promised him a set except by paying* for them. Mr Hamilton had asked for a set, and said as a lecturer he could sell them. I valued this set at £30 the first cast, £15 for myself and £15 for Mr Knight. If other casts had been taken these would have been cheaper. Mr Knight and I entered into a written agreement as to partnership. I contracted to deliver three sets to the society, but not in any specified time. The casts I was to supply were, to be mounted. To Mr Kingdon : Before permission was given to take these casts, I had an interview with Mr Hamilton. The Superintendent gave me the privilege of taking casts before any one else applied. It was during the trial. He said he would arrange with the Sheriff. The Superintendent asked me if I objected to Mr Hamilton's presence during the taking of the casts. This was before I arranged with Mr. Knight. " I entered into no arrangement with Mr Hamilton. He told me he knew I had the (privilege of taking the casts ; he said if I took the casts he would pay me handsomely for my trouble. I said I was open to treat with him or any one. He proposed to sell the casts, if I would supply them at a moderate cost, saying, as a lecturer, he could make a great noise, and excite the people in Nelson, Otago, and the West Coast ; he came to no terms. It was not arranged that he should attend phrenologically, and see everything done in order. I did not promise him he should have the three first casts in time to lecture for the monument fund. There was no agreement in any shape or form whatever. He had nothing to do with the casts. He took the liberty to insert a notice in the paper, before we had finished taking the casts ; when asked for the casts I refused to lend them, till the Monument Committee waited on|me, and guaranteed their safe return. Mr Hamilton never saw the casts from that time till they were colored for remoulding ; the first time he saw them was at his lecture. When they were finished Mr Hamilton asked to see them, he was allowed, expressed his pleasure, and said they were beautifully done. The morning after, he said the casts were successfully taken under his immediate superintendence; all he had done was to pare down a bit of a ridge; it was a piece of impudence. The Society ordered casts of* me, and also arranged with Mr Rough. They ordered four sets; the set they got on Tuesday was borrowed Mr Rout had a plain understanding no sets should leave till they were all completed. We lent this set to the Society — a set different from the one arranged for. No time was specified. The bond was not made bjjtne. I held Mr Rout responsible for the casts. To Mr Pitt: I asked Mr Hamilton for the casts yesterday. He refused to deliver them to Mr Burns, and assigned no reason. The Superintendent told me Mr Hamilton had no claim on me. On Mr. Kingdon proceeding to open the defence the Magistrate told him it was not necessary, as he had made up his mind how to act. The whole affair appeared to be a series of criminations and recriminations between tlie parties. Had the Sheriff been here he might possibly have thrown some light on the origin of the dispute, and what ground there was for defendant becoming possessed of the idea which he entertained that he had some right to the casts of the nature of copyright. It was not possible from the evidence to say if this was the case. One thing it was incumbent on the Court to say, and tliat was, that Mr Hamilton had done wrong, very wrong in taking the casts away. Had the matter fallen into other hands, he might have tbuud himself in a serious scrape. He would advise Mm in future not to act in a similar way. It was hardly a case to send before a jury, arid he had therefore resolved to dismiss it. A case involging questions as this did of phrenological bumps would only be laughed out of Jcourt. Under all the circumstances he should therefore dismiss the case, and the property would be returned to Messrs Tatton and Knight the owners.