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SUPREME COURT.

FRIDAY, DECEMBER 12th. Sojiekv lle v. Lean. Mr, Meuuiman then addressed the Court on behalf of defendant: lie must congratulate the jury, and felt thankful that this case was coming to a conclusion. 11 was his duty to address them on the evidence brought before them, but he was in considerable difficulty as to the manner in which lie should do it, being fearful that if be went into detail lie should tire them; and ou the other hand, that if be did not go into the whole, lie might fail to bring under their notice some portion of the case of his client necessary to he considered. Having, however, to address men of practical experience in business matters, he should not review the evidence in detail, but endeavour to draw attention to several points which lie deemed important. He was there on behalf of defendant under difficult circumstances. There were two issues to be considered: first, the non-delivery of goods; secondly, on the point of damage done to the portion delivered. He would first take the issue of non-delivery, and afterwards go into the question of damage; and then draw their attention as to the way ia which the damage occurred. On the first point, with regard to the short delivery, he would not address many observations, because it must be quite clear that the plaintitf had failed to prove his case. Some of the goods were proved by bis own witnesses to have been left at .Jones’s, some at Hobson’s, and some at Somerville’s; but lie had not proved what packages were deficient, and at the present moment they actually diil not know the number of packages that were wanting, and had no evidence of their eontents, except that Mr. Hell gave what lie supposed to be the contents ot three packages. They would have to be satisfied in the first place that there was short delivery, and afterwards would come the consideration of the damage sustained. The mate most distinctly swore that certain packages belonging to Mr. Somerville were put over the ship’s side; that there were four drums of oil and other goods fur which to the present moment there hud h- en no claim—nobody could tell to whom they belonged. He would draw attention to the fact that there was a book kept as to the packages landed from the ship, and that his learned friend failed to show what had become of certain numbers of the packages landed. The evidence of the carters came to tltis, that certain of the packages were carted from the Queen’s warehouse to Jones’s; but he would call attention to that very peculiar part of the evidence, which came mu on examination, namely, what became

of tbe packages after they got into Jones’s custody. Mr. Jones said some of the packages were carted back to Mr. Somerville’s, but they bad no account of what those packages were. There was a most important link of tiie evidence deficient! Mr. Wadham, the wharfinger, said be never checked any ot the boatuotes of the parties who brought packages on shore, but said lie was close beside where the packages were landed. He would draw the attention of the jury to Wadhara’s statement, that some of the boat-notes did not come to bis hands till a day or two after the cargo had been delivered. They had also had in evidence that it was the duty of the mate to deliver boat-notes to tlte boatmen, and the mate had told them he had Hone so. It was then their duty to deliver the notes to the wharfinger, and if they failed to do so, his client ought not to be held responsible for it. He quite admitted that the cargo-boatmen might have put the cargo on the wharf, but the wharfinger having nothing to check it by, could not tell whether the goods were delivered or not. They had not at that moment received any name, number, or mark of the deficient packages, and were as much in the dark as it was possible to he, and as they were at the commencement of the trial. There had been no evidence on the point, and therefore he could not lay it before them, hut he w’ouhl put it to them as men of business, whether it was not a thing of every day occurrence for hills ol lading to be signed by the captain which were not properly checked oil by the agent at home; and whether it might not occur that a careless agent might give wrong marginal references to the hills ol lading. He did not wish to he understood to say that they were not bound to follow the bill of lading. He admitted they were hound by it as it stood, but he maintained that if there were deficiency in the delivery o! goods, ! they should have had full and fair particulars, to enable i them to trace out the packages said to he shortdelivered. They had no proof that the missing pack- j ages were not delivered over the side of the vessc 1 , except the general information that all that was put over the side had been landed on the wharf. He

would leave the matter before the jury, being quite j sure that as practical men they would he able to say | whether that was a proper way of having the matter brought before them. As to the damage of packages, I he would assume for the sake of argument that their j opinion was against his client. It was unfair that the j defendant should he called to account for every single | package, (and nut of the large number of 9.sopackages ! only 21 were alleged to he deficient,) without any light | as to what those packages were. With regard to the | amount of damage, they had been most unfairly treated j by the plaintiff by having had two subjects mixed j together. The question of short-delivery, which, j putting it at his own valuation only amounted to £lO, ! might better have been brought before the District i Court. Mr. Somerville was not hound to pay duty on | the packages when they were not received, but he did ■ so that he might claim damages for the non-delivery j of those goods. If those goods had not been delivered i he could go before the Commissioner of Customs and ] get his money bach ; it was absurd to say they were bound to pay duty on goods not received, lie was sorry he had detained the jury so long on that question; it was a very minor one, and should never have been brought before the Court. He would now refer to the major question—the damage sustained by the goods—and he would not bo required to address them at any length on it. It was a remarkable thing that there had been no point of law raised on any single question. The questions laid before them were merely matters of fact, and as such they would have to decide upon then. That the captain was hound to have his ship in every respect fit to perform her intended voy- ! age, he admitted ; she should he tight, staunch, and strong; and the question simply resolved itself into this, —Was the vessel in such a condition when she left London ? Without drawing attention to every question, he would ask them to consider what really was the evidence brought before them. The defendant had submitted positive evidence that the ship was tight, staunch, and strong when site left London. He would not insult the jury by asking them to review the evidence of Dalhy IJrookfiehl and the hoy 15111; their conduct in the box sufficiently showing that they were not the witnesses of truth. He felt that he was treading on delicate ground, but he believed the feelings of the jury would be rather on the side of his client, who was a stranger amongst them, and that they would not he influenced by such narrow motives as, “ We have known the plaintiff a long time; he is a very gooil fellow; we will not give a verdict against him.” He did not wish to impute that plaintilTs witnesses had sworn to anything contrary to fact, but it should be |

remembered that some portion of those witnesses were | men whose livelihood was earned from plaintiff; that, therefore, their leaning would rather be to colour the cause against the captain, who was a stranger amongst them, and whom they would probably never see again, than against the plaintiff, who would he likely to employ them hereafter. He put it in that way, not saying that the witnesses had been so influenced, but because they were, imperceptibly to themselves, likely to be so. Before concluding on that point, ho would call attention to Capt. Daldy’s evidence. He acknowledged that Capt. Daldy was above suspicion; still, he was largely interested in the Insurance Company, and it would not be unfair to say he might have a leaning against his client on that account; and it was quite clear that if he could prove the vessel not to be right, staunch, and strong, it would exonerate the insurers. He was sure he would be acquitted of any intention of being unjust to Capt. Daldy, but urged the point that where there was personal interest it must bias the mind in giving cvMence. He would refer as a proof of this, to the witness’s going into such minute detail on matters which did not affect the question, hut had a tendency to mislead a jury not acquainted with the nautical terms employed. They would, he trusted, only consider that which appeared the common-sense \lew, and not enter into technicalities. He would now briefly draw their attention to the evidence called as to the stale of the ship. The captain, mate, second mate, and carpenter, had all proved that she was tight and seaworthy on leaving home. They had had a description of the voyage, and it had been distinctly sworn that the weather was so heavy as to curry away the rudderhead. His learned friend, the counsel for plaiutill, scorned to make a great deal of that point; hut, like the ship, had evidently “ laboured on tlie rudder.” They must be convinced that the ship had experienced very heavy weather; and it was, therefore, hardly nccessc-y to go into detail on the evidence respecting the eaitying away of the rudder-head. Questions had been asked as to the repairs done in Fowey; but it must be apparent that till damage which the vessel litis sustained when she went there, had been attended to. The straining might not have been apparent, but what was seen no doubt bail been repaired, and when a leak w.as pointed out it was promptly caulked. They bad laid a description of (lie deck, and the witnesses certainly gave very different accounts of its stale. Capt. Casey told them that the vegetable matter wt s so thick that a man might write his name upon it; but it was very | strange that nobody had seen the slimy matter thus [ spoken of. In fact the whole of this witness’s evi-

I dcnco was of a vet/ ridiculous nature: bo spoke of the vessel as being “like a hoi” ig pot, that tuns of water had got down, and that she was the boy that could do it.” Such language only showed what his stylo of e\'deuce was, and the credit to be given to it when contrasted with that of the other side. The evidence on the part of defendant had been that of men entirely unprejudiced in the matter, and well able to form an opinion, and they had stated the ship to be perfectly sea-worthy. The only thing that could be said against some of them was, that as shipmasters their ships might sometime be in the same condition ; hut they might judge from the demeanour of the witnesses whether thoi” evidence was sustained by fact, or contrary to it. The evidence of the captain and surveyors was, he thought, as conclusive ou the one side as tiiat produced by the plaintiff ou the other, and entitled to equal weight. The surveyors, after a cireful survey, gave their opinion that the whole leakage could ho accounted for by the straining caused by stress of weather, and the long voyage. It had been proved that the vessel had to he hovo-to on more than one occasion, and that site had experienced heavy weather from London almost to the Auckland port. There was positive oath on part of defendant’s witnesses that the ship was tight and staunch when she left England. There had been no contradiction of that; the evidence of the man brought out of gaol, and who had been put there by Capt. Lean (or desertion from the Blundell, did not really go against the ship, but merely that he had suffered from his bed being wet, and that khid of thing. It was absurd to endeavour to shake the statements of defendant’s witnesses by the evidence of that man. It was then sought to be shaken by Mitchell, then by Dalby Brookfield, and by the boy Bill. The evidence of the two latter witnesses might be dismissed entirely. Mitchell’s evidence went to prove that bis leg went dowu by the side of the fore-

mast on the lower deck, because the coal was not sound. In opposition to that the mate said the coats wore all good. If there was that groat leakage, how was it that none of the surveyors had said anything about it? A great ileal had been ironicpf some trenail hole ; but on sending surveyors on examine this dreadful alia r, it turned out of a t'cuail had been diivcn 100 tar they had tlie evidence of the carpenter that it go through the timber. Another point was the worm holes said to exist, lie had had a piece of wood cut out of the ship's side, and which showed no indication of decay; and he could put it with contidenco to the jut / whether the ship was not in good condition when she left England, and that any leakage in her must have been occasioned by the straining she experienced. With reference to the storeage and dunnage; the witnesses and surveyors seemed to be quite satisfied that she was properly stowed, and the cargo could not be properly stowed it it were not properly dutmaged. Not only had the defendant’s witnesses proved that, buthis learned friend’s own witnesses bore strong evidence to the same fact. The principal evidence of bad stowage was that of Mr. Lundon, but whose antecedents gave him no right to express an opinion on such a subject. lie would not have alluded to this evidence if it had not boon to show that no boat-notes bad been produced, which would have proved not only the quantity of goods put over the side of the vessel, hut also the condition they were in : this they were fairly entitled to, nd the jury should have had them before coining to a conclusion, lie would go to the jury with confidence ou tiie point that any damage done to the cargo had been done without negligence on the prt of the captain. They had been in the disadvantageous position of having had to prove that care had been taken of the cargo, instead of the plaintiff having had to prove the reverse. He admitted there was damage sustained by the cargo, but it had been occasioned by stress of weather—accidents of the seas—and for which the defendant was not responsible. It was not worth his while to go into the question of the amount of damages. What was the amount sworn to ? Mr. Bell swore to THOU ; Mr. Jones said considerable, but did not go into particulars. The only evidence, therefore, was Mr. Bell's, who recollected all about the damages, but abstained from telling them what was the cost ol the goods at home, and the cost of bringing them out. He gave tiie total, but should have gone into detail. The measure of compensation to be awarded was the difference between what those goods brought, and what sound goods could bo sold at. But how could they' estimate the damage without data? The only means of cheeking it they had was the manner in which the goods were disposed of. Jones had proved that some portion of them sold at market prices ; and they had i

this extraordinary fact before them that Mr. Somerville was the purchaser of the best part of this damaged cargo ; he picked and choosed what should be sold, and when it came to an auction sale purchased the most valuable portion himself. That was the man who came to them and asked them to assess damages for the wrong sustained, when it was proved that he himself was ttie purchaser of the most valuable portion! Would Mr. Somerville tell them the profit he was lively to make oat of those goods ? lie was not surprised plaintiff had not been put in the witness-box ; had he been so, he would have put that question to him. He did not think the jury would get to the question of damages ; hut if they did, he hoped they would consider this last point very carefully. He would leave his case with confidence in the their hands. Mr. Whitaker then addressed the jury. From the issues put before them they wor'd find there were three points for their decision : first, whether the goods in question were shipped on board the lUandcU in good order ; secondly, whether the hill oflading was signed by the Captain, and thirdly, what was the cause of the damage which resulted to the goods in the course of their being brought from London to Auckland. Ho d : d not know why his learned friends gave the Court the trouble of going into the first two, because by an Act of the Legislature of New Zealand founded on the I J nperial Act, the bill of lading in the hands of the consignee was conclusive of the shipment of the goods, and the Captain had admitted the signature of the bill of lading. There was therefore but one question to be determined, a question of groat importance, because by it must be determined what arc the relative duties of consignees and masters of ships, and the decision would have a great ell'cet upon future trausac lions of this nature between the port of Auckland and other ports ; and it was necessary that it should, that such cases as the Blundell'x might be saved in future. The question resolved itself into two—what were the duties, and what were the responsibilities of a master mariner with regard to transporting cargo from other places here ; and on these points he would read to them the law from hooks which ho had brought with him, and which would he more satisfactory to the jury than anything he could say. First, what wore the duties devolving upon a master as to properly shipping and slowing the cargo before commencing the voyage, taking care of it on the voyage and making a proper delivery of it on arrival ? With regard to tbs seaworthiness of the ship, he found in “A igcll on Curriers,” section 173, these words—

“ In respect to seaworthiness, the want of which was the ground of the decisions in the cases cited in the two preceding sections, the general rule of law is well settled. It flows directly from the position, that the master and owners of a freighted ship are common carriers, that their first duty is to provide a vessel tight and staunch, and furnished with all tackle and apparel necessary for the intended voyage. If the shipper suffers loss or damage by reason of any insufficiency of these particulars at the outset of the voyage, he will be entitled to recompense. It is a term of the contract on the part of the owner of any vessel or lighterman, implied bp law, that his vessel is tight and fit for the purpose or employment for which he offers and holds it forth to the public: it is the very foundation and substratum of the contract, that it is so ; and every reason of sound policy and public convenience requires that it should be as the law presumes. * * * * ***** It is, moreover, the duty of the owner to keep the vessel in that condition, unless prevented by perils of the sea ; and if, during the voyage, the vessel meets with an accident arising from such cause, it is the duty of the owner to see that she is put in complete repair, at the next convenient port; for it is of the essence of the contract of the owner, that his vessel shall be able to receive, retain, and transport her cargo. These arc principles which are not only applicable to contracts of affreightment, but •'overn in charter parties and in policies of insurance. An insufficiency in the furniture of the vessel cannot easily be unknown to the master or owners ; but in the body there may be latent detects unknown to both. It may bo observed, however, that defects of the latter sort cannot exist, unless occasioned by age, or the particular employment of the vessel, or some accidental disaster that may have happened to it; all of which ought to bo known to the owner, and ought to lead to an examination of the interior as well as the exterior parts. Besides, the carrier is an insurer against all but the expected perils ; and on this ground, it the goods arc lost by any defect in the vessel, whether latent or visible, known or unknown, the owner is answerable to the freighter.”

That was the foundation of every contract for carrying of goods from one part of the world to another. Then as to stowage they found in section 212 : “ With regard to the manner of putting up, and packing of the goods, if it is not done in a proper manner by the owner or shipper, the carrier is not responsible for loss in consequence thereof. For careful stowage of goods on board the vessel, the carrier is responsible. The vessel must he furnished with proper dunnage (pieces of wood placed against the sides and bottom of (behold) to preserve lin; cargo from the effects ol leakage, according to its nature and quality. And cure i,n! i be taken by t he master (unless by usage or agreement litis business is to be performed by persons hired

by the merchant) so to stow and arrange the different articles, of which the cargo consists, that they may not bo injured by each other, or by the motion of the ship. Lord Lyndhurst says, ‘ the master, as servant ot the owner,’ is bound to superintend the stowage ; and if in consequo ice of improper stowage the owner has been called upon, and has satisfied any claim for damage, the master is liable to him.” Now, he would proceed to show, what the master was bound to do with regard to the delivery. At section 286 it was laid down that—- “ The carrier is bound in all cases to make a proper delivery with reasonable expedition . if no particular time is fixed upon ; for the duty to deliver within a reasonable time is a term ingrafted, by legal implication, upon a promise or a duty to carry generally.” These then were the duties of the master, to provide a seaworthy ship, properly stow and lake care of the cargo, and properly deliver it within a reasonable and proper time after arrival. Next, what were his responsibilities? Me was responsible as a common carrier, and they would find in section 152, Chief Justice Best said :

“When goods are delivered to a carrier, they are usually no longer under the eye of lie owner ; he seldom sends any servant with them to the place of their destination. If they should he lost or injured by the grossest negligence of the carrier or his scivant, or stolen by them, or thieves in collusion with them, the owner would be able to prove either of these causes of loss His witnesses must be the carriers’ servants ; and they knowing they could not be contradicted, would excuse their masters and themselves. To give due security to property the law has added to that responsibility of a earner which immediu' ;ly arises out ot his contract to carry for a reward, namely, that of taking all reasonable care of it, the responsibility of an insurer. From bis liability as an insurer, the carrier is only to be relieved by two things, both so well known to all the country when they happen, that no person would be so rash its to attempt to prove that they bad happened when they had not ; namely, the act of God and the king’s enemies”: and section 153, said:— “ The English books, it may be added, abound with strong cases, in which the above salutary rules have been enforced ; and the steady and firm support, which the English courts of justice have uniformly and inflexibly given to them, without yielding to the hardships of the particular case, has in onr country met with unqualified approbation and declared by the best au'hority worthy of admiration.” Therefore they got the principle here, that under all circumstances a man who took charge of another’s goods to carry them (ns in this case many thousands of miles) had so much in his power that he was held tightly to his contract, and held us an insurer responsible that they should be properly delivered. Again—

“ Judge Bronson quoted the opinion of Lord Holt and Chief Justice Best, with the view of shewing that the law in relation to common carriers is simple, welldefined, and what is no less important, well understood ; and in its vindication says: There is less hardship in the case of a carrier than has sometimes been supposed : for, while the law holds him to an extraordinary degree of diligence, and treats him as an insurer of the property, it allows him, like other insurers, to demand a premium proportioned to the hazards of his employment. The rule is founded upon a great principle of public policy ; it has been approved ol by many generations of wise men; and if the Courts were now at liberty to make, instead of declaring the law, it may well be questioned whether they could devise a system which on the whole cot d operate more beneficially.” Juries sometimes did not to the full cany out this law, looking on the Captains’ case as a hard one, hut in this case there was no hardship at nil ; nobody in the world ought to be held so responsible as Capt. Lean. He was in the ship and had charge of her during her last voyage; no man knew more about her. While in the docks he lived ou board, superintending the caulking and directing in every way the management of the ship and the stowage of the goods. He was therefore personally responsible on his own evidence and his own admission. He (Mr. W.) next proceeded to apply the law he had read to the circumstances of the case. The

plaintiff's claim was divided into three, first, a claim for non-delivery of packages ; secondly, a claim for damage other than by seawater, being by broken packages and deficiency in packages; and thirdly, a claim for the damage which had admittedly been done, by salt water. These three of course stood in somewhat different positions. His learned friend had told them there was no evidence as to non-delive /, and made complaint that his cUent had been badly used by not being told what the non-delivery was. Hut it was with the defendant to know all about that ; having his bill of lading and receipt from the boatmen for goods delivered over the side, ho knew of coptsc what was the non-delivery ; but if his learned friends had any doubt as to the non delivery they might have asked for further pardet ars, upon which he (Mr. W.) should have answered that they hail got the particulars from which make it out better than he had. A dozen witnesses, however, had proved that a quantity of goods were not delivered; bat it was the defendant’s duty to prove the delivery. All the plaintiff was required to do was simply to call the man who ought to have received them to swear that he had not done so, and it was then defendant’s duty to prove a proper delivery under the terms of the bill of lading, and nothing could exonerate him from that delivery. The plaintiff might have stopped at Mr. Bell’s evidence and left defendant to prove delivery. But they had conclusive evidence that the goods never went ou: of the ship, whether they were Lost in London docks, broached on the voyage (as some of the cargo was), kept in the

mate’s cabin, shifted from one package to another, they did not know, hut Mr. London (tidewaiter), had proved conclusively that they neve; went over the ship’s side, having suited that eighteen of Mr. Somerville’s packages were not accounted for at all ; that sixteen packages on which there were no marks went to the Queen’s warehouse ; while Mr. Hell stated that Mr. Somerville had received thirteen of those from the Queen’s warehouse, and had not received eighteen. Nothing could be plainer than that. The chief mate had been called to move delivery, and it was he that could have proved his boat receipts which, however, were not put in evidence till at his (Mr. W’s.) request. Jf the jury thought it worth while to go through these boat notes they would find as he had done that they showed a short delivery of 33 or 34 1 >ackages ; eighteen of which were Mr. Somerville’s, and sixteen without marks bad been sent to the Queen’s warehouse. They had proved from defendant’s own witness that be never delivered the packages, and though Mr. Pill ventured the general statement that he had delivered all fhe packages that were shipped, he contradicted himself and admitted that packages were in the ship at this moment, some of which considered as overplus, were in Mr. Pill’s bunk. (Mr. Beveridge : Not of Mr. Somerville’s) —No, not proved to be part of Mr. Somerville’s ; it was impossible for them to say whose they were. They would have brought better evidence before the jury to-day had they had the same access to the ship which the other side had had. instead of making surveys every day as the defendant had done, they had to send all their witnesses at once under an order from the Judge. All the means of proof were with his learned friend, but he had not produced an atom. Had he (Mr. W.) known what all the defendant’s evidence would have been, he would have slopped at proving that the goods never reached Mr. Somerville’s hands. Ho did not anticipate, then,

1 hut there could ho any question or doubt on the question of non-delivery. Then they came to the delivery, wore the goods delivered in a reaso .able time, as required by law ? 11c asked them to look at the evidence and say what was the proof that the cargo was delivered in a reasonable time. II is learned friend had not touched that portion of the case in any way | whatever. Mr. Pill, it was true, had sworn generally that they were often kept waiting for boats, but look at what the boatmen swore, without being controverted, as to the detention they experienced. The ship was two months discharging while it ought to have been a fortnight or three weeks only. It had been proved also that she was short handed. They did not sue the Captain for delay in delivery, but it must be recollected that the goods were brought into port in a damaged state —such a state that every means at the Captain’s disposal ought to have been used forthwith to put the goods out of his hands into the hands of the owners, for could it, lie supposed that these goods would not be the worse for lying longer than necessary? The captain under the circumstances should have used extra expedition, and had he done so he might have discharged in ten days, lint he had shown most gross and wilful neglect in the delivery of the cargo, leaving it to lie and rot. with the utmost disregard of the interests of all concerned, never going into the hold himself for nine days; for that ho was responsible and no one else ought to lie responsible. Now as to the damage which arose from breakage and not from salt water. They could not give evidence of what had occurred in Loudon or on the voyage ; in nearly all that they were tit the mercy of the master ami his servants, whom they could notcxpccttocondomn themselves,but they might expect a little more truth from them, and to this the observations which ho had previously read were particularly applicable. How did these breakages arise ? certainly not from salt water, but it was for the defendant to show how they arose; there being no question that the packages were broken. The second unite knew nothing ol the stowage in London, hut the master and the chief mate clearly knew all about it- He (Mr. W.) had not put Mr. London forward as a witness that knew anything about stowage, hut he could toll them at Jill events whether wood, cheese or candles was between the cases, and whether anything wits against the side of the ship to keep the goods from the wot. Uohiuson, Wells, and iVters, every one of them

proved that in many respects the stowage was good, and in many respects bad, especially with regard u> Mr. Somerville’s candles, tea and cheese. Some of plaintiffs own witnesses certainly had said that the cargo was stowed well, hut they only went once, and only saw what was at the top at that particular moment. Mr. Lundon was a disinterested and unwilling witness, who had given no information in former trials coni nected with the Blundell, Messrs. Robinson, Wells, and Peters, were also disinterested witnesses, unlike the Captain who had a direct personal interest of tnc largest; amount, and the mate who was to be charged with deficiencies. The jury as practical men would know that cargo stowed against the side of the ship without anything between was not properly stowed and dunnaged. Then, how easy it was to break packages in breaking them out with crowbars, if care were not taken. Rut that would not account for the deficiencies. Were she properly caulked in London, and the driest ship in the world, she still would be liable for broken and deficient packages no matter what the perils of the sea were. The perils of the sea did not eat the cheese, tea, &e., though some other people did perhaps. If, as his learned friend (Mr. Merriman) suggested, they were oaten by rats, the Captain was Still responsible. Ho i should have had them smoked out, and he should have proved that they did eat them. The mere fact of nondelivcilng them, or delivering them broken and deficient was sufficient for the plaintiff’s case, and threw the onus upon the defendant to prove that the damage and deficiency arose from ciicumstanccs beyond bis control, lie now came to the real question, th« damage by saltwater ; and first, was this ship when she left Ijondon in a seaworthy state? They had the general evidence of the captain and mate that she was, but here was this tainted evidence again, and it was the only evidence they had for it. They had evidence to the contrary of two boys, whose interest would he to screen the captain. He did not know why Brookfield’s evidence hail been discredited. In the previous actions against the captain, B'ooklield bad not been called, which made him (Mr. Whitaker) feel certain there was something beyond, and accordingly he deteimined to have him examined. He was subpoenaed only last Saturday, and it was fortunate he was subpoenaed, for he had given the best testimony that this ship was not seaworthy when she left London. She had been to Honduras for a cargo of mahogany, which strained and tried a ship much, and they were told no ship should go to sea again without been thoroughly caulked, after taking such a cargo. The captain had admitted, (and he was willing to rest it on this alone,) that not one fourth of the deck had been caulked at London. They

had also the evidence of the boy Brookfield that he was employed to caulk the deck, and the carpenter having declared that he had nothing to do with cau'king the main dock, whatever was caulked was dona by Brookfield, who had told them that ho went on car king till he was slopped because there was something else wanted doing, and the result was that the decks were not done, though preparations were made tor caulking a portion of them; and Captain Daldy confirmed Brookfield’s evidence by telling them that these very seams which the boy said were not caulked, had not been caulked for a twelve-month. Then they had the evidence of the boy Heath confirming Brookfield in every respect. Mark their evidence of what took place while the cargo was being stowed —that the stevedore marked several places which ought to be caulked before the ship proceeded to sea, and showed them to the mate, who now denied know’ng anything about it. They had also the evidence of Mr. London that these marss were on the deck when the ship came to dis- i charge; and Heath had told them that he scraped them olf within the last three weeks. Notwithstanding those leakages, Captain Lean went to sea in that ship, and caused damage by his carelessness and mismanagement. It was true they had had a number of witnesses there on behalf of the defence, one of the best of which, Captain Rich, “ tried the seams where he had any suspicions,”—evidence which, coming from a friendly surveyor, did not go far. Captain Pearson left satisfied with the look of the side without trying, and went j round in a boat sixteen feet below the deck examining the seams just above the copper line. Then, how very cautious this evidence was—the leakage might have arisen from one of two causes, the straining of the ship or neglect of caulking. But they had conclusive evidence on the other hand, that the ship had not strained; and he would he perfectly willing to put the

verdict on that single question, of two independent rncu going on board the ship and saying whether she had strained. Defendant’s evidences had told them that one seam had been strained, and all the rest were in good condition, which Captain Daldy and other of the plantitt's witnesses told them was impossible, as, if the straining had been such as to have '- J sl—waterway spmn ... tu.uj.ieieiy, it must have shown i self in other parts of the ship. They told them that flic proper places to look for strains were the knees, beam-ends, and bolt-heads; that this was a good ship, but most shamefully neglected; and on this, as far as it went, the plaintiff rested his case, and it was for the defendant to prove the contrary. Defendant had proved that the only places of leakage were the waterways, hut in that case only the cargo under them would have been damaged; ho had proved that the damage did not take place at all, bat there he got into a difficulty which people sometimes get into of proving too much; he admitted that the water went in, and said it was from straining, but that it only took place in those particular waterways between the poop and the mainmast: but that would not account for the damage under the poop and lower forecastle ; defendant, therefore, had not proved how that damage had occurred at all. The reason was because the timber ports were improperly caulked, daylight could be seen underneath, and they bad not the usual protection, which it was, in fact, dangerous logo to sea without. He had been in a vessel that had been nearly lost through not protecting those ports. Well, that accounted for the damage under the poop; that under the forecastle was caused by holes bored in the fore-

castle deck, through which a quantity of water went down early in the voyage; and these holes, instead of being bored close to the ship’s sides, Mr. Nicoi and Mr. Daldy told them were put in improper places, and the water which went through them must have gone amongst the cargo. Mr. Nicoi was sent by the captain to inspect the ship while discharging, and he made a report the production of which had been refused to-day. Ik (Mr. \V.) would have been very glad to have seen it produced. Mr. Nicoi had now been aboard again, and his evidence was of the greatest possible value. No one, he was sure, would impute that Mr. Nicoi said anything more or less than the truth. If no other witness had been produced, the}' would have been safe in taking his testimony. Then, with with regard to the weather. They had been told of a hurricane, hut he (Mr. W.) had never heard of a hurricane in the English Channel. They were peculiar to the West Indies. The ship met with a strong gale of wind, which they had been told was merely such as was to he expected in the Channel at the season of the year. The captain then put into Fowey, and what for? Would not they have supposed that in such a gale of wind as had been described “ a hurricane,” sonic damage must be done? Could they imagine a “hurricane” that hurt none of the live stock kept on dec»? Hut all they went into Fowey for, was to repair a rollon rudder. This was conclusive against the story of the hurricane. If they had received other damage, it was the master’s duty to have had it properly repaired at Fowey; but nothing was done there except to the rudder-head. His learned friend was pleased to observe, with regard no the bowsprit and main-yard, what could they have to do with the leakage of the ship? Nothing; but if the bowsprit and main-yard were not sound, could it be supposed they would withstand any bad weather? If she had had bad weather, those spars would have been carried away; but she came into port with a fished bowsprit and iorc-topsai'-yard, which latter was carried away somewhere off the coast of New Zealand while making sail, ami notin heavy weather at all. Did not this of itself contradict the Captain’s tale? For further evidence he (Mr. Whitaker) asked one of defendant’s own witnesses, Capt. Lord, who, he must say, was a conscientious witness. But still there was sympathy among all these Captains, and if they could establish the doctrine that they were not liable, how delighted they j would be ! Capt. Lord was obliged to say, after much pressing, that lie never hoard of a hurricane in i which close-reefed topsails could he carried. Of course,

he never did ; he (Air. Whitaker) had been round the world two or three times, and would have been glad to have met with the weather which the Blundell appeared to have had. Mr. Lord’s evidence was material: he would not make out that the damage arose from bad weather, but he said it might. Well, of course, it might; but if the weather produced that, it would have produced a great deal more. The bulwarks, however, came out right, and so did the doer 1 Then, said his learned friend, look at the length of the passage, 16S days ! Now, there were several reasons why the voyage was of considerable length, in the first place, they put into Fowey, and the passage was really only 155 days. As Oapt. Casey said, they probably took it very easy. All admitted that she was not a clipper; ami the mate himself said that, looking at the ship, it was not such a bad passage. lie only asked the gentlemen of the jury to consider all they had heard of the Blundell in the last live days, and say if she came up to the passage Ids learned friend was so fond of quoting, and which she was bound to come up to, tight, staunch, and strong, well victualled and found, and in every respect lit to perform her intended voyage.” Capt. Williams was called to prove the defendant’s case, and ho appeared desirous of throwing the onus otl the Captain, but was compelled to admit that the ship had been “ most shamefully neglected.” There they bad the whole easy at once. A man who took cargo

aboard a ship was especially bound not to neglect it hut to give it all the attention it required. Gross neg’ loot had been shown, and he ventured to say they would find a dozen times in the evidence that the shin had been greatly neglected, the strongest expression coming from defendant’s own witness. The trenail hole was another piece of neglect. The Captain swore distinctly that it was only half an inch deep, while the man who found it tried it with his pipe 5 inches long and did net touch the end. Capt. Lord said it cidedly was not proper for a ship to go to sea in such a state; that no man in his senses would do so. Plaintiff had made endeavours to produce all the sailors, ard would have examined every one if they could’have found them; hut they were not to he found. It was no matter how deep this hole was ; they had proved that enough water went into the hold by other means; bat that was an additional proof of the negligence of the Captain with regard to the condition of the ship. They would find throughout the evidence, wherever they took it up, at the caulking (or rather the not caulking) of the ship in London, the passage to Fowey, fro® Fowey out to this port, or at the delivery of the cargo; everywhere, they would find that there had been and scandalous neglect. Never was there a » elusive case proved before a jury. It was learned friend to have exonerated the ‘Cti shown how the damage took place; bat he had not done so, except in a small part of the ship. He (Mr. Whitaker) had shown how the damage took place, from shameful neglect only, admitted by defendant’s own witnesses. The only question then remained, what was the amount of damage which the plaintiff was entitled to. In the first place he laid down this principle, that if a witness was called who distinctly swore to a fact, and that was not impeached by subsequent evidence, or shaken by cross-examination, it must be considered by the jury as proved. He asked them thus to consider the evidence of Mr. Bell, with regard to the damage. He was the only man who could possibly make up the account of the damage, Mr. Somerville knew nothing about it, Mr. Bell having charge of this part of his business. The plaintiff was, as his learned friend had fairly srated, entitled to the difference between the price for which the goals were sold, and what they would have brought if delivered sound. The witness Bell, had sworn that the damage by breakage was £7O, It was then for his learned friend to prove that such was not the case, and he was surprised that he did not attempt to do so. His learned friend became virtually indignant because Mr.

Somerville bid for 20 or 30 of the 537 packages sent to Mr. Jones’s store —a proceeding which could but have the effect of enhancing the price, for he said that all the retail dealers in Auckland were there, and Mr. Somerville hid against them. If there had beer, any suspicion of collusion between the auctioneer and Mr, Somerville, there have been some foundation for his hon. friend’s complaint; but they were told it was a good sale, and the greatest prices that could he had were realized. It seemed very much like making a mountain out of a molehill, and the man of whose case that form'd an important feature, must have a very weak one indeed. Being uncontradicled, Mr. Bell’s estimate was the estimate of damages which the jury were to take : —loss by non-dcliv-ry £4b, damaged by breakage £7O, and damaged by sea-water £490. lie asked them then. looking at all the circumstances, whether any case could come out clearer-than this had? There was no difficulty as to either kind of damage. Mr. Bell, who alone could know, had sworn that the amount of damage was £6OO, and for that r nouat the plaintiff was entitled to their verdict. It was now ten minutes past six o’clock, and his Honor intimating that he could not think of summing up at this late hour a case of this length and importance, the Court was adjourned till Saturday at ten. [We regret that these speeches of counsel in this important case being intended for insertion in hist Saturday’s issue, were not taken down so fully as they otherwise would have been.]

SATURDAY, DECEMBER 13rn. Somerville v. Lean ( concluded ). The Chief Justice resumed his seat on the Bench at !0 a. m., and having discharged the Common Jury till Tuesday at ten o’clock, proceeded to sum up iu this case. His notes, he remarked, extended over thirty-three sheets of foolscap of closest writing, on looking over which be felt it his duty to read over to the Jury a considerable portion of this nu'- of evidence. It was a matter of great regret that one of the principal witnesses, the one most interested in the issue of this cause, should have been brought into Conn day by day from that shocking place adjoining—tin debtor’s orison r »•>* • --i might be the cause of it hk believed the professional men were m no Way to *' •tome. The gentleman could not have been taken will I the authority of this Court, and that authority /ever granted unless there were facts before the Cf ; *7. that satisfied the mind of the Judge that the p.tt?y*vas about to leave the Colony. Unless, therefore, such facts had been adduced, no snch proceeding could have taken place, and if the facts alleged had been untrue it would have been in the defendant’s power to have applied to the Court declaring the facts to be untrue, and on satisfying the Court, he would have been at once liberated. So far as the professional gentlemen were concerned this proceeding had been a disagreeable necessity arising out of the circumstances of this remarkable case, and the gentleman’s evidence was to be received with respect and perfect co ifider.ee in his veracity, the same as any other evidence in the case, unless there was something proved against the witness to affect his character and lead to a doubt of his veracity. The defendant in this case, Mr. Lean, was sued for damages for the loss and injury sustained by defendant

in respect of certain goods committed to Ids charge to bring from London to Auckland. As they had been told by Mr. Whitaker, the issues were three. The first and second issues he directed the Jury to find for the plaintiff, the bill of lading being evidence of them. There was, therefore, but one issue on which the whole of this case turned. If any portion of the goods were proved to have been not delivered, the plaintiff was entitled to recover, unless accidents of the seas, rivers, or navigation prevented the delivery in good order ot the whole or any part of these goods. It would be for the Jury tc say, presently, whether there was any evidence that the non-delivery ol these goods was caused by perils of the seas. He was not sure that it was said anywhere that these goods were thrown overboard, or in anv manner annihilated by the dangers of the seas, and if that were so it appeared to him that the plaintiff was entitled to their verdict as to those portions not delivered to him in this port of Auckland. Assuming that the greater portion of the goods still remained and were divided into two classes; cases broken with the goods damaged or lost from them, and goods delivered entire but damaged by salt-water; and the question was, were they injured by dangers of navigation of the rivers and seas. He would give them very shortly what was the law in cases of this description. It was quite true, as laid dowu by plaintiffs counsel, that by the law of England the masters and owners of a vessel were common carriers, a position which pat upon them a responsibility that did not rest on even’ kind of bailee. It was the master’s duty to take the utmost care of the goods while in his custody, and he was responsible for any loss or injury sustained by them, occasioned by any means whatever except the act of God, the Queen’s enemies, the dangers of rivers, seas, and navigation; and if this was the law in England, where the means of transit was so perfect, it was still more important that it should not be relaxed in cases like this where 17,000 miles of seas were to be traversed. It was not denied that the captain was so responsible, hut he said he was not responsible here because the injury sustained was occjtsioned by the dangers of navigation of the seas, and on that point waa the main sti aggie. It was especially the duty of shipowners and masters that they should produce a good ship (not a new one any more than a land-cat rier was bound to produce a new carriage every journey), but one fitted for the duty she undertook. If the master

had produced a ship so fitted to carry perishable cargo like this, and she had been properly managed since leaving port, proper care taken to prevent injury from the dangers of the seas, and a proper delivery made, then lie was not responsible under this contract. The very foundation of the contract, of which the bill of lading was an evidence, was that the ship should be sound and tight, and in every way fitted to carry the cargo to its destination. With regard to the onus of proof in cases like this, it might occur to them as a matter of common a man living at a port on a small island 16,000 or 17,000 miles from the port from whence the goods were sent, could not know the details and particular reasons why they were not delivered; and therefore it was common sense that if he. said I have not received my gopds, or, 1 have received them, but in a very bad state, and here is a document in which you admit you received them in a good state, the onus was cast on the party who had undertaken to deliver them in good order and condition, to show the reason why he had not so delivered them; and in this, as in almost cvc»y other case that had come under his notice, whatever was common sense was common law. If the counsel, therefore, proved by a strong witness that he had not received his goods, that was to be taken as proof that he had not received them, and threw the proof of the affirmative upon, in this case, the ship Blundell• He would now proceed to read over to them and comment upon the evidence. The depositions of the lightermen and carters single it would not be necessary for him to read through; but he could not pass by them without a reference to the mode of business disclosed by this evidence, and the boat-notes which would be laid before them. He could not conceive it possible that business could be done in such a way that

each party could know how matters stood if conducted in such a way as by these boat-notes. The boatmen, it appeared,carried pell moll from the vessels any goods put into their hands, no matter lor what consignees; and in each note they had goods consigned to different persons; and although the words “ in good order and condition” at the top of the note were often not struck out. there were minutes below that the goods were damaged, others that they wore disputed, and in one single note they would find these contradictory assertions —first, that the goods were all in good order and condition; secondly, that they were not in good order and condition, but some were disputed as not being there at all; thirdly, that some were damaged; fourthly, that some were damaged by the sea water; and he believed they would find the word “broken” also’ nil being signed by the boatman. When, therefore, such documents as these were relied on as evidence, ho did not wonder that no one could tell from them what goods were damaged, and how many; and the wharfinger himself must have inextricable difficulty in

checking them off, especially as he did not sometimes /ret them till the next day. About the goods left on , ..c wharf, there was no material difference in the evidence, and the jury might leave them out of their calculation. The worming might also be left out of their consideration, no evidence of any consequence having been adduced with regard to it. Nor need he trouble them much about the deadlights, of which there were only two worth taking any notice of. Mr. Bell, Mr. Jones, and others, having been called by the plaintiff to prove the damage to his goods, it remained for the plaintiff to prove by what means the injury was sustained. To prove that the injury complained of was nothing but what would have been occasioned Inheavy straining at sea, the defendant called a series of captains, and brought the evidence of the captain and mates to show that the ship left London in good condition; to which plaintiff had called a series of witnesses in

rcply. He would ask them carefully to balance the depositions of these two sots of scientific witnesses, who on one side stated that the ship had strained heavilv, and appeared to have left London in good condition; while on the other side the witnesses stated that she showed no signs of straining whatever, and could not when she left London have been fit to carry a perishable cargo; the main question in dispute being whether the scams of the vessel were opened by straining, or the caulking deficient at the outset. His Honor then proceeded to read through the evidence, commenting on the peculiar points of the agreement and the differences of the evidence, and credibility of witnesses, after which he proceeded to give further directions to the jury. What they had to determine was, whether the damage proved was caused by excessive dangers of the seas, which the utmost caution on the part of the captain could not guard against. If they did not find that so, the captain’s duty as a common carrier being to take care of and safely deliver the goods entrusted to him, and if the goods were proved not to have been delivered in sound condition, plaintiff was entitled to damages. Then, as for the nondelivery, the clangers of the seas would not account for that; and, if they found that some of the goods were not delivered, they would give their verdict for plaintiff on that issue. To prove the non-delivery Mr. Bell had been called, Mr. London said there were 18 packages not delivered. Mr. Bell swore that 21 packages were not delivered, and estimated the value of them at £4O, reckoning as if the freight and duty had been paid. The freight if not paid certainly would have to be, whether delivered damaged or not. The jury must consider the freight on those packages as paid. Then as for the duty on them, it would make no difference in the price the things would fetch at auction, as the duty, they were told by the plaintiff, if not paid would have to be. It would be for the jury to say whether these 21 packages were worth £4O as sworn to by Mr. Bell. For the other damages, the witness, Mr. Bell, said he calculated it as the difference between the price the goods actually did fetch as damaged, and the price they would have fetched if they had been delivered in sound condition, and that was the correct system of calculation. But nothing could be more loose than the information given them on which to calculate it. They might take it tor granted that the plaintitf had claimed the utmost amount o' damages that he could reasonably come before a jury to claim, and it was for the jury to come to their conclusion the best way they could, applying the experience which many of them possessed to working it out. It they determined to give anything above £4O, they would give their damages in the gross; but if they determined that the damages were accounted tor bv the dangers of the hc would request mem to sever that £4d and giv“',, (.hing for the rest. He did not know that it was QOW • ary for him to say anything more to them. 19-Vf might now retire and consider their verdict. '

The jury then retired at five minutes to four o’clock, the judge’s address having lasted nearly six hours. At ten minutes past seven they returned, being absent 3} hours, and gave a verdict for the plaintiffdamages £536. His Honor then discharged the jury, and said the country was much indebted to them for the attention they had given to the trial. The Court was then adjourned to eleven o’clock on Monday.

MONDAY, DECEMBER I Cm. The Chief Justice took his seat on the Beach at 11 o’clock. BUSHY V. BELL Was first called, and the followmcn gentlemen were sworn as a special jury to try the case:—James Thomas Boylan, John Kerr, Henry Gilfillan, David Graham, James Green, James Bum, Ralph Keosing, B. Maclean, Every Maclean, Robert Patterson, John Roherton, and J. A. Gilfillan, foreman.

The amount sought to be recovered was £7,000 damages alleged to have been sustained by the plaintiff from a libel written by the defendant. Mr. Whitaker appeared for the defendant, plaintiffs case being conducted by himself. Mr. Busby said the case which he was about to open to the jury was one which he cons idered not to be of private interest only, but of great public interest. lie should not be at all surprised if the result of this action might not be the turning point in the misgovernment to which he thought this country hud been for a long time subjected, and which he thought must have reached its acme. Therefore, though he must trench largely upon their patience, he hoped they would the importance of the case; and he wished to impress upon their minds the necessity of his laying before them every point that was necessary for them to come to a conscientious judgment in the subject they had to consider —a subject which would affect them and their children’s children after them. The case was peculiar as well as important. It was an action for defamation against a judicial officer of the government, in that he wrote what he knew to be false. This he (Mr. Busby) undertook to prove; for if the defendant satisfied the. jury that what he wrote was written bona fide, believing it to he true, ho (Mr. 15.) was not entitled to a verdict, lie had, therefore, to prove that it was written with a knowledge that it was false, and with a malicious intention, lie then proceeded to quote from Lord Campbell on libel, Storey on the law of agency, page 397, 398. par. 319; Powell on evidence, page 59; Cook on the law of defamation, page 63. To prove the malice of the defendant it would bo necessary for him at some length to trouble them with a history of the case. Ho was perfectly aware, judging at least from what the public prints said, that the public were tired of him and his complaints and claims. lie had had great occasion to come before this Court. For twenty-two years ho had been subjected to the most unjust and illegal treatment, which he believed he should convince them was such a persecution as could not have been believed, were it not capable of being proved by authentic and unanswerable evidence. Ho then went at considerable length into the history of Ids early residence in this colony, land purchases, and proceedings with regard to thorn. In 1840 he purchased a property called Numuru, containing about 100,000 acres, out of which this action arose. By an Act of the General Assembly, passed in 1858, he thought he might get as much as 4270 acres out of this, and being pressed by circumstances ho took the necessary steps. The Commissioner, however, refused to admit his claim to tire extent which the Act provided; and to this day no decision had been pronounced. He complained to Governor Browne, who declined to interfere; and ho then appealed to the Secretary of State, and sent a memorial, dated 29th September, 1800, which he read to the jury, and which is probably well known to most of our readers. '* 's he sent to Governor Browne, with the request I he would transmit it to the Secretary of State, nral requested him also to send his four pamphlets on “Kesponsible Government” and “Colonies,” as he thought they might ho interesting to Sir G. C. Lewis, whom ho supposed to he Secretary of State at the tune. Tiie Governor sent the memorial to the Land Claims Commissioner, who wrote a minute upon it which he (Mr. Bushy) was not permitted to see before it went away, and which by the misstatements it contained ruined his case with the Duke »t Newcastle. Ho requested their attention to three points connected With this minute, iingeuiouslv contrived to defeat the ('hjeet of the memorial. First, that it and its appendiees abounded in extreme misstatements which it would take a volume to expose; secondly, it led the Secretary of State to suppose that tiiere had been a decision in the case, which there never had been; and dfirdly. that it was his (Mr. Busby’s) own fault that oo had not got his land, because he did not comply with what the law required, when really the law required nothing of the sort. By the Act of 1850 the

Commissioner was not bound to conduc the pro •ced - ings in his Court according to the letter •• ... i i, o in equity and good conscience; and i i ;., .I,.* jury as an evidence of defendant’s mah . oat be i,, i not done so in bis (Mr. Busby’s) case. At the c inclusion of his speech be called * His Excellency Sir George Grey, who being in attendance in the .1 udge’s chambers, ap'icared. end took a seat near His Honor. Mr. Bushy then put tho'quc.-tion. Is vonr Ivscellencv aware that the present action involves a charge of false and malicious libel against a member of your Executive Council? Iho Ghiei Justice: ft is.hardlv iikelv that such things can ho known to His Excellency.' If behave not seen the declarations am! pleadings, ho cannot know that. However, 1 will inform His Excellency that it is so. Mr. Busby: I hold in my band two letters from the Private Secretary and Under Secretary respectively, In reply to letters addressed by myself to' His Excellency, requesting him to authorize the production of certain documents in this Court.

Mr. Whitaker: 1 have given the plaintiff the fullest latitude while making his statement, but now we come to questions of proof and all things not admissublc in evidence, I shall object to. 1 object to the production of those letters. The Chief Justice (to Mr. Bushy): Evidence cannot he given on any subject but those at issue. His Excellency has been pleased to attend in the Court as a witness, and no doubt will do all that justice requires; but evidence must he confined by the. rules of law, and kept fixed to the point at issue. Mr. Busby: Your Excellency received a subpoena to produce certain documents? His Excellency; Yes. * Mr. Busby: Do yon produce them? They arc (1) a letter from James Bnsbv to Governor Browne re-

questing him to transmit a memorial to the Imperial Secretary of State tor the Colonies; (2) copy or record of Governor Browne’s Despatch to the Duke of Newcastle, transmitted lath November, 1800; (3) Mr. Dillon Bell’s minute on the same, dated Bth November, 1860, copv of which was transmitted to the Duke of

Newcastle; (4) the Duke of Newcastle’s Despatch to Governor Browne in reply to the same, and dated April 17th, 1801; and (5) Duke of Newcastle’s Despatch to Governor Browne, conveying Sir G. G. Lewis’s thanks for the pamphlets sent to hint, dated May 20th, 1801; aLo till documents, papers, entries, and letters in your custody, possession, or power relating to the trial

His Excellency; Before answering that question I wish it to be distinctly intimated whether the Court has the power to subpoena me for the purpose of producing documents.

Tite Chiel Justice: I have no doubt in my own mind that ‘if is in the power of the Supreme Court to subpoena any one of Her Majesty’s subjects; but it is in your Excellency’s power alone to consider whether the disclosure of any document tends to the prejudice of the public service; and then either yourself, or through one of your Ministers, claim that it should not be produced. His Excellency; 1 wished the question to be decided, not in a litigious spirit, but for the protection of Governors hereafter.

The Chief Justice ; lam not aware of any precedent or any rule of examination that would enable a Judge of the Supreme Court to deny to a suitor the evidence of the Governor and refuse to allow him to subpoena the Governor in evidence. If the counsel should think there is any such objection 1 should be willing to hear it. Mr. Whitaker said ho did not know of any.

His Excellency : Your Honor having ruled that, i will now answer the question put to me, desirin'; at the same time to be allowed to make an explanation. I understand the question to be whether 1 produce the documents in Court; to which my answer is that 1 have not produced the documents in Court ; that 1 know nothing whatever in relation to those documents; that to the best of my belief 1 have never seen one of them ; that I consider it au extremely improper tiling to have summoned the Governor of this colony to appear in this Court to briny; up public records which, if brought up at all, should have been brought up by his responsible advisers. The first document is a letter to my predecessor ; 1 consider that as Governor of this Colony, so long as I have, a ministry possessing my own confidence and the confidence of the legislature of the country, it rests entirely with them to produce or to withhold documents of such a nature. The other documents in so far as they tut: named tire despatches to and from the Secretary of State. On this subject 1 should wish to put in evidence a copy of the instructions directed to till Governors of Her Majesty’s possessions, and the particular clause to which 1 draw attention is this, Governor’s are forbidden to give copies of the Secretary of State’s despatches or instructions, or to allow them to be taken unless by desire of the Secretary ot State. 1 wish further to explain upon that point that virtually L am therefore prohibited generally from doing that which I am now ordered under penalty to do ; but as a general rule where the Governor’s responsible advisers advise that the good of the public service requires the production of a despatch, 1 should consider that 1 had the Secretary of State's permission so to produce it or to cause it to bo produced. I believe that all those papers are in the hands of my ministers, who will, I have no doubt, take such course in regard to them as they think the good of the public service requires. Mr. Hushy : Is your Excellency aware that the documents required were not treated by Governor Gore Browne as confidential communications or secrets of State, inasmuch as he made them the subject of a return to the House of Representatives, and thereby published them. j\!r. Whitaker ; I object to that question.

Tiie Chief Justice: You may ask Ids Excelicnc whether those documents have been published.

His Excellency : I have heard in conversation that in some way the papers were before the House of Beprescutatives. I know nothing more. The Chief Justice : I can’t write down that. It is mere hearsay not evidence.

Mr. Bushy : The fact being that these documents have already been published to the world as not being a confidential communication or State secret, and as it appears to me, no object in withholding them can he effected unless it is to impede the administration of justice, is your Excellency still disposed to withhold tiie production of these documents ? As I read his Excellency’s commission, I don’t recognize mu other power in his advisers, hut what is derived from his Excellency, and I claim therefore on this occasion the right that his Excellency should form his own judgment.

His Excellency: I think, your Honor, that my answer has perhaps been misunderstood, for I have already said that if the documents were in ray possession I would not produce them except on the advice of my responsible advisers, and that I consider whether they are in my possession or in the possession of my ministers is a totally immaterial matter, and that it is not for the Governor of this country to come into Court laden with a mass of papers, and say by himself whether he will or will not produce them. I don’t say they tire not in my possession for the sake of avoiding the production of thorn ; but I say I will not produce them or suffer them to be produced except on the advice of my responsible ministers; if they will produce them they can. The Chief Justice : Of course your Excellency is not under the power of the Supreme Court. Mr. Busby : 1 apprehend that the documents are in His Excellency’s power to produce or to order to he produced, and I therefore wish to put the question distinctly to his Excellency as one which it. is of public importance lie should exercise his own judgment upon, one of his responsible advisers being the defendant in this action. «>

The Chief Justice : I can only deal with the witness ns if he were the humblest of Her Majesty’s subjects. When a witness says he has not got a document 1 cannot make hint produce it ; and I am not aware of any Court that could wrest those documents out of the personal possession of the present witness if having them he declined to produce them. Mr. Bushy: I nskyour Excellency definitely whether, considering that this is a question in which one of the members of your Executive Council is concerned, and that the documents required have already been made public, does your Excellency still refuse to order their production by the party under your orders in whose hands they may be. His Excellency: 1 have nothing to say but my former answer, that I fconccivc that in such a matter 1 can do nothing myself, but through my responsible advisers. 11 I might explain to your Honor, I think it would he extreme!; inconvenient that the Governor should have the absolute power himself to decide in such a case. Your Honor Ims decided that the Court has no power to compel the Governor to produce those papers. The Governor, moreover, is not under the power of the Legislature. Ho might, therefore, obstinately refuse to produce papers which the cuds of justice and the good of the country might require the production of with impunity if it depended on himself. My responsible advisers are within the power of the Court and of the Legislature, and it is much better that the power of giving or withholding documents should rest with persons answerable to the Courts and people of the colony, than that it should rest with an entirely irresponsible agent; and, 1 believe, in deciding as I hayc dime (having no opinion in this mutter myself) i am doing (ha? which is best for Her Majesty service and the interest 1 I her subjects

I'hc C! icf Justice (to Mr. lfii«by)t^&th)\Go\ r ernor of ■ ■ dotty i • fuse to obey the ordorsJs>tp|mps’erne Court,

Miaa- not i he same power ovo- hi u : ■ subjects. ! His per,- in (rout hi,- position is iij'ocssarilv sacred, j and therefore if the Governor being subpomaed to pro--1 duett a document, does not do so, tins Court has no i power to grant an attack against the person of the j Governor. Suclt a tiling is not to be thought of. Tito j Court might give its ruling that it ought to bo produced ii the Governor ha ! i: In his possession, or in other words might request it to be produced, but if be has it not the Court can do nothing. Mr. Busby : Under the circumstances 1 have stated then. do n syciir Excellency decline to order the production of these documents. Ills Excellency : Yes, unless my ministers advise me to give such an order. Mr. Busby having no further questions to ask, ids Excellency then retired. Captain Campbell called and examined by Mr. Busby: My name is Francis Eastwood Campbell, and am Clerk to the House of Representatives. I received a subpoena to produce before Court the return to an address to the House from Governor Browne, asking •for copy of Governor Browne’s despatch to the Duke of Newcastle, of the date of 15th November, 1800. I must beg to deebne to do so, except by the oiler of the Court. lam authorized to refuse to do so by the Speaker of tlie House of Representatives, tinder whose orders I act. Did not make application to the Speaker for leave to produce the document ; but should add, inconsequence of the Speaker approving of my not having done so on a former occasion, I pursue the same course now. 1 permit the reporters of the press and other persons to take copies of returns to addresses to the .House, and,other documents of a like character. 1 do remember the reporter of the Aucklander making application, which I declined. I recollect his begging me to do him the favor to compare with him the copy of the address in question, which he held in Us hand, with the original in the House. I did compare them. [Mr. Bushy submitted that the document should he laid before the Court. Mr. Whitaker objected. A conversation on the subject ensued.] The Court ordered the, document to be produced. It being tendered as evidence, Mr. Whitaker objected to it being produced as such. After a long conversation between the Court and Mr. Busby, the Hon. Alfred Domett was called and examined by Mr. Busby: lam one of His Excellency’s advisers. I am in possession of a letter addressed to Governor Gore Browne bv voursclf, and dated St It October, 1800. 1 object to produce it in evidence. I have not been instructed by I Lis Excellency to object to its production. 1 have not been instructed to produce it. I object on the ground that it would bo detrimental to the public interest to do so. ! am not aware that it wrs the subject of a return from His Excellency to the House of Representatives. lam aware ir has become public through that means. I am not aware that a return to the House is not treating it as a confidential communication. 1 think it is not a proof that it was treated otherwise than as a confidential communication by its being sent to the House. lam aware that the defendant in this case is a member of His Excellency’s executive. 1 decline to produce the document. Mr. Bushy went at great, length into an argument to prove that the rule of exclusion was not universal, Mr. Domett remaining in the witness-box.

The Court remarked that it would have been better for all concerned had Mr. Busby engaged the services of a lawyer to conduct his case ; the business would have been got through in a much shorter time, lie pointed out some defects in the plaintiff's management of his own case, which a lawyer could hardly have fallen into. Mr. Busby said he was conscious of his own inability, both mentally and physically; but he had already been at so much expense and trouble that ho was not in a position to offer such a fee. to a lawyer as the importance of the ease would require. Examination resumed: 1 cannot say whether the document itself was laid on the table, or merely a cooy of it. I received the document that day from the Under-Secretary, Mr. Gisborne. Mr. Domett having retired from the witness-box, Kir. Busby took oath that the ih -uncle held by him was the same as that shown him by the Clerk of Council as the return to the a Mr -s by the House of Representatives Bv the Court : What the Court wante 1 to know was. whether <«• not that w-.’S a true ropy of the d.-wm incut itself, lie wasatrai I it v ut a copy of a eoj y. Mr. Bushy; He was prepared to swear it. was the copy of the original of his letter to the Governor. The Court doubled whether it was not exc e ling Its duty; but on the oath of Mr. Busby, and Mr. Domett's statement, that Copies Mint down were treat d as trn • copies of the original, he would .allow it to be treated n< an original copy of the letter, hue could admit none of the oilier documents attached to it as also true copies. It being past six o’clock, the Court was adjourned till ten to-morrow, the Judge remarking that he believed the case would not occupy .more than another hour. TUESDAY, DECEMBER Him. 1562. Bnsnv r. Bki.l. The proceedings in this ease were resumed at the usual hour. Kir. Whitaker said the defendant was about to take a course which would put the ease on .a different footing to that on which it stood the day be'ore. The question then was the admission of the libel to enable them to consider it. The defendant had early applied requesting the Government to produce the libel which they had refused to do and still refused, upon the principle that if a Government ollieer was always to write to the Government under the impression that what lie wrote was to be afterwards produced for the purpose of trying a-tions of libel upon, it would be entirely destructive of the Government service. 'The Government having last night again refused, lie (Mr. W ) had explained to the defendant that it was possible for him to put it before the Court in another form without interfering with the conscientious conviction the Government were under, that in no case should it produce a confidential communication, —by producing the copy us an original and proceeding upon it as such. This course would relieve the Government, from the difficulty in which they were placed, and did precisely that which defendant had been anxious to do from the commencement, viz., to submit the case to the jury on its merits. The copy got from the House of Representatives would now be produced and treated as the original document, leaving, of course, the oilier point whether such a document could be produced in evidence at all. The Ciiicf Justice said the, course taken was wind he should have expected both from the defendant and from the Government. lie agreed that on this occasion the Government were right in taking the opinion ol the Court, whether they wore hound to produce documents like this in evidence. It was essentially necessary for the conduct of the Government of this country that its officers should enjoy the full confluence that that which they informed the Government of should not he disclosed and made the subject of litigation in a Court of Justice. The principle was one well known in our laws. They all knew how sacred was the confidence of solicitor and client, so that though the murderer were in the dock and the solicitor might be able to give evidence of the tact, il he attempted to do so it would be the duty of the Court to commit him to prison. Bo there was also the confidence that must exist between the responsible advisers of the Crown and the Government conducting the affairs of the Colony. It was perfectly true that when a responsible officer of the Government, appeared in Court with a document and objected to produce it on the ground that the disclosure ol its contents would he prejudicial to the public service, the Judge was bound by that opinion and could not take upon himself to pronounce an opinion upon as circumstances and facts with which lie was wholly unacquainted. He was glad to he relieved from delivering a formal judgment in the present instance, but it had been so much discussed that lie did not hesitate to give his own opinion upon it. it must ho open he thought to a party claiming justice and seeking !o have a stale document introduced, to produce extraneous cvideneiqio show, without disclosing anything t > affect any officer of state, that that document was not an act of state. It, could not he supposed that it should bo in the power of an ollieer of the Government of the Colony, of his own motive, to call any document which ha pleased on account of state and reiusc its production, for to cany the doctrine to that extent would he placing the right of the entire subjects of the country at the mcicy of the Government, lie could not help thinking he was right, therefore, in allowing Kir. Busby to produce extraneous evidence in order to satisfy the Court that that document was not an act of state, and to show, also, that the document was not in fact a document connected with carrying on the government of the country. This case was a very different one from that quoted of “ Beat,son v. Skeen.” This was a ease between Mr. Bushy and an officer of the Government, which the la ter did not object to I e inquired into, rather than an act of state arising in the course of the government of the country. The document was also claimed to he a privileged one, hut this, was one ol the picas, and the plaintiff had admitted that the document was privileged in its integrity, and that lie was hound to show absolute malice in the defendant U» make it L r against him. Deffnd ■ ■ that ltd- matter should .1 1 ■ before and be liuallv (

I decided by a jury, and had taken the course just proI posed by Mr. Whitaker. His own opinion would have I been that, the document having already been pub- ! lishcd to the world through a return made to the j House of Representatives, it could not now ho 1 held a private document against the Supreme Court i and the administration of justice; hut there was this I special reason why he, was thankful not to be compelled I to rule in that direction, viz., if the Court had decided j that the privilege was good the defendant would be entitled to apply for a now trial involving more delay, , litigation and expense, and if on the other hand the Court had decided that the privilege did not extend to the case and that the document ought to he produced, then the Government might he irretrievable wronged, because they could not apply for a fresh inquiry, their ! witness whoso privilege had been overruled, not being | a parry to the cause, and the precedent might have j proved it dangerous one. Ir would be felt therefore j that a wise coarse had been taken by the defendant, j The documents was then,produced, upon which

Mr, Whitaker objected to its being received in evidence on the general principle that n communication made by an officer of the Government for the information of the Government was not admissible as evidence in a Court of Justice. In support of which he quoted Taylor on Evidence, page 781 ; Wyatt v. Gore, at page 303 of Holt’s Reports. The Chief-Justice said it appeared to him there was a substantial difference between that case and the present. In that case the evidence sought to he obtained was advice given to a Governor (the defendant in the action) .by one of It is advisers, his Attorney-General, and such advice must be protected, but here the party who wrote the document was the party complained of, was a judicial officer whose acts were called in question. He ruled that the document must he admitted, but he would reserve the point.

Mr. Whitaker said that was all lie wished his Honor to do.

Francis Dillon Bell was then called, and being examined by Mr. Busby, deposed: Iscntbackto the Governor the memorial and all papers sent down to me. 1 was a member of the House of Representatives at the time of writing that minute. I think I showed it to Mr. Stafford before sending it to the Governor. I have since shown it to members of the House of Representatives, at a time when a committee was sitting to investigate your petition, to members of the Government, undersecretaries, and other officers of the Government. I remember there was a debate on your petition before it was referred to the committee. I took part in that debate. I did not then say it was not a secret document, but open to any one to see at my office. I don’t recollect having shewn it, to any other person. It may have been seen at my office. I did not show it to Mr. Wynn. I believe he was examining some papers with me. I don’t think Mr. Wynn applied to me to shew it to him.

Robert W. Wynn deposed : I did not apply to Mr. Bell to sec this minute. (Letter and minute produced.) Mr. Bell showed me a document of which I believe this is a copy.

Cross-examined by Mr. Whitaker : I went to Mr. Bell as Mr. Busby’s solicitor. I went there when the previous action was pending. Documents were referred to in the plea, which I wanted a schedule of, and went to Mr. Whitaker, who referred me to the AttorneyGeneral (Mr. Sewell), who referred me to Mr. Beil, and he showed me a bundle of papers, of which this letter was one. 1 had already a copy of it myself, and he showed it to me as the original. It was tied up with a number of papers which might have been Mr. Busby’s pamphlets. What 1 asked Mr. Bell for, was a list of those referred to in the pica. I don’t think those were included among the bundles showed to me. I think lie merely showed me them incidentally in course of conversation, as a matter of curiosity, and I read it as such, having seen a copy before. Re-examined: This was about seven months ago. Mr. Bell made some observations to the effect that the documents were open for any one to see. By the Juiy; 1 have no doubt Mr. Bell was aware that 1 was acting as Mr. Busby’s solicitor. Mr. Busby then put in copy of the memorial sent by him to the Duke of Newcastle, and also a letter enclosed with the memorial, dated 19th •Tune, la , addressed to the Colonial Secretary of New Zealand, in ivkilion to a judicial decision given by Mr. Bell; also, the case submitted to the Chief Justice relative to that decision, an 1 likewise enclosed with the memorial ; also his (oar pamphlets on Responsible Government in the Colonies; his instructions from Richard Bourke, Governor e.f New South Wales, to render his assistance to snit’ers in New Zealand. Mr. Busby wished to put in a number of other documents which was not permitted, it being ruled by the Court that they did not hear on the present action. Correspondence between .Messrs. Busby and Bell, relating to plaintiffs land claims at Ngunguru, were then read by Mr. Busby, and handed by him into Court. The Court con id not admit those letters as evidence; they did not prove what the plaintiff wished to establish, but rather showed great kindness, consideration, and patience on the part of Commissioner of Land Claims, than any indication of mahee. It was not competent for any man to occupy the time of the Court bv reading voluminous correspondence, gathered at public olliecs, not at all bearing on the ease. A verv important trial was being delayed, and the time of jurymen in waiting lost by the unnecessary time which Mr. Bushy was occupying. The Court objected to receive acts which Mr. Bushy wished to put in. The jury were supposed to bo ac* quaiuted with all public acts. This finished the plaintiff's ease. Mr. Whitaker submitted that plaintiff must be nonsuited, lie nut having given any proof of malice. The Court thought it should go to the jury, the defendant being an official ollieer, and the charge of malice having been made against him.

Kir. Whitaker was then proceeding to call evidence of justification, but at the, suggestion ol the Court determined to let the case rest where it was, lie then addressed the jury, and said lie should submit to them but this simple question, whether or not there was actual malice in the defendant in writing this communication, which was fully justified, being an extremely mild commentary on a largo number of extremely offensive personal observations upon Iris conduct. The plaintiff was bound, in a case of this kind, to prove actual malice, and must prove that there was no kind of probable cause lor writing the document. Mr. Busby sent in a large number of documents to the Governor; the celebrated memorial, two or three enclosures to it, and four pamphlets, all of them containing serious imputations against the defendant, who then wrote this minute upon it, which had been read. What evidence then had the plaintiff given of the defendant having been actuated by express malice in writing this ? He had offered nothing but a quantity of correspondence which, as it appeared to him (.Mr. Whitaker,) so far from showing any malice on the part of the defendant, showed a careful consideration of plaintiff, and a most patient consideration of all the circumstances connected with it, and some ol the earlier letters even suggested the course which the plaintiff ought himself to take to bring his claims fairly before the Commissioner. The {.list of the discussion between Mr. Bushy and Kir. Bell was submitted to the Chief Justice, and the opinion given by him on the case laid before him had been put in evidence, and it entirely confirmed Mr. Boll’s decision. He did not sec, therefore, what ground there was for alleging any malice or want of probable cause, and they could not inler malice from the libel itself, but plaintiff must prove some distinct acts or declaration ol defendant exhibiting malice. The occasion was one on which Kir. Bell was bound to write what he did, and it was not easy to see how he could have

said less or otherwise than lie did. He (Mr. Whitaker) would not read any portion of those pamphlets and documenis to the jury, because it would he a waste of time; hut they contained, the jury would find, gross imputations against the defendant of malversation of office, the mode in which he had prostituted every office to which he had been appointed, &c., Nc. lie now simply put the question to the jury, was there a probable cause lor the defendant’s remarks ou Mr. Busby’s documents? Did be write it upon lawful occasion, being called upon by the Governor for his opinion? and had he shown in what lie wrote any malice against the plaintiff?

Mr. Bushy then commenced to address the jury on the continued oppression which ho had suffered at the bands of the Government of the Colony, being several

times requested by the Judge to confine his observations to the question before the Court, and concluded by submitting to the jury that, proof should have been

given that the misstatements affirmed in the libel were really such. Such a charge, ho contended, was in itself a proof ol malice, as well as the false representa-

tions made by tho defendant that the ease had been decided, and that ho (Mr. Busby) might have had his land had he complied with the law.

The Chief Justice, in summing up, referred to the drill; of the plaintiffs arguments when opening ids case, conducting it, and in Ids concluding speech. Mr. Bushy's land-claim was not the question at issue; but the-question was whether the defendant had libelled him. Mr. Busby had told them at first setting out that it was not an ordinary ease of libel, but one that might lie tiic turning point in the new government of tins country, a case the result of which would affect their children’s children; evidently labouring under the notion that it was in the power of this jury to reverse the decision of a Land Claims Commissioner respecting certain claims tor land, or pronounce a verdict that the Land Claims Ordinance was not within the power of the Parliament to pass. In one respect the letters between the plaintiff and the defendant weir evidence in the cam I’m' from them they mi,.ill voiiee. oiiotie r

the defendant was actuated by express malice, in writing that minute. As a general rule it was the duty of the judge to tell the jury, when there was no evidence, to find a nonsuit, or verdict for the defendant, but as the question of evidence of malice was such a refined one, it was best to leave it to the consideration of | the jury; and he would do so in this case, though in; could not see that any evidence of malice had been produced. As admitted by the plaintiff, this document was on the face of it a privileged communication, i. c. the occasion justified the writing of it Ly Jlr. Bell, and unless there was something ou the document, which, taken together with the other evidence produced by the plaintiff, indicated malice, it would be their duty on the first issue to find a verdict for the defendant. The plaintiff had sent up a quantity of documents to the Governor, with the view of their being seat to the Secretary of State, the foundation of which documents was to pjet a decision of’ the X/ond Claims Commissioner reversed and overturned. That decision had already been laid, with a view that it might be overruled, before the Supreme Court, which did not feel itself justified in doing anything of the kind. The plaintiff, therefore, forwarded a memorial to the Secretary of State, impugning the conduct of the Commissioner; and Governor Browne very properly sent it to the Commissioner for his comments generally. It thus became an absolute duty of the Commissioner, as a public officer, to make his comments upon this document; anti when they considered that he was also the party accused, surely it was his right to answer for himself in some manner. If a man was to be guilty of libel because he said an attack on him contained extravagant misstatements, he really knew not how the peace of society was to be maintained. It was not as if the general moral character of the plaintiff was impugned; there was nothing of the sort here. If they believed that what defendant wrote, he wrote bona Jut e, i. e. believing at the time that he was justified in what he wrote, lie was not guilty of express malice, and they must find for the defendant, on the first issue. But if they found that lie wrote malignantly, with a deliberate purpose to injure plaintiff, they would find for the plaintiff In regard to the other issues, they would consider what was the meaning of those words “extraordinary misstatements.” Apply that language to the pamphlets appended to the memorial, and see whether there was anything in them to justify that charge. If there was, they would find for the defendant in the second issue also; if not, they would find on that issue for the plaintiff. The jury then retired, and after an absence of five or or ten minutes, returned with a verdict for the defendant on all issues. Littlewood v. Williams,

A petty jury was sworn to try this case, which was an action tor false imprisonment. Damages Jai<l at X3OO.

Mr. Whitaker, instructed by Mr, George, appeared for the plaintiff, and Mr. Wynn lor the defendant. Mr. Whitaker, having briefly opened the case, called

Robert Clapham Barstow, who stated: I am Resident Magistrate at the Bay of Islands. I have been subpoenaed to produce the original depositions taken in the ease Williams v. Littlcwood. I remanded Mr. Littlcwood in consequence of those depositions. The signature to them is that of Mr. Williams, the defendant in this action. [Mr. Wynn objected to these depositions being put in as evidence.—Depositions admitted.] Mr. Williams was the person who made the charge against Mr. Littlcwood, and I presume is the prosecutor in this action. In consequence of those depositions I remanded Mr. Littlcwood till the sue- | ccediug day; in the mean time he was in the custody j of' the gaoler; that was on the 26th. On the 27th I Mr. Littlcwood was brought up on the remand. I told him that from the nature of the evidence f should i feel it my duty to send him to Auckland, unless he I could produce some exculpatory evidence. 11c then requested that the evidence of a Mrs. Callaghan should he taken. The result was, I did not think there was ! sufficient evidence, and discharged them and dismissed the case. Cross-examined by Mr. Wynn: The charge was one | of forgery. This is the document alleged to be forged, i [Document real.] 1 know defendant’s writing, and don’t believe any part of the document is his writing. Mr. Littlcwood had been defendant and Mr. Williams plain’lff in my Court. The subject of the action was a bill for goods delivered. The amount was some few sliilll; gs ; 1 think 7.-. After trial, Williams said to Littlcwood " What has become of that receipt that you ; forged.” He then said to him, ”If ever I get hold of ; that document I shall prosecute you for it.” There was no allusion made to the subject before that time. Subsequently, remarks were made in Mr. Littlcwood V presence. Williams said lie had tried to get the docu- > meat fr :n the Resident Magistrate in Auckland, hut it ! was not in his possession ; ihat lie had applied for i: hut could not get it. This conversation took place in . my presence in the Court early in the month of Mav. It was that conversation I meant when 1 said Mr. Williams made the charge. 1 received the note with | other papers from Mr. George, solicitor in his cause. Oii the 23rd of May I received it. 1 sent it to his ; Honor the Chief Justice. 1 received it back again, i was aware that Mr. Littlcwood would soon appear < before me in another action, and I would then investigate the charge. I compared it with documents of Mr. Williams and found the signature not to correspond with his writing. It was from that circumstance j I determined to investigate the charge. Mr. Little- j wood was in Court on the 25th June as defendant. I ; told him that the document had come into my hands, and that I considered it my duty to investigate into the i charge with reference to it, but that as he w r as not then and was not for some time afterwards in a sufficiently sober state to answer for himself, I considered it my duty to hand him over to the policeman who acted as gaoler, to give him an opportunity of becoming sober. It was between 11 and 12 o’clock, a.m. I should have j taken the case in hand and completed it that day had he J been sober. The sole cause of his being imprisoned | was his not being in a proper state. That was the 1 primary cause ot ids being imprisoned. I caused Kir. ) Williams to be summoned to give evidence in this I matter. I saw Mr. Williams before I undertook the \ examination. He said Kir. Littlcwood was a j soft-hearted man and lie would rather not prose- | cute him on account of ins family. 1 told j Mr. Williams I would insist on his coming I as a witness. Kir. Williams did not make a j formal charge. It was Ins having charged Mr. Little- i wood in the Court house, that induced me to investi- 1 gate the charge. •

Re-examined by Mr. Wynn: Kir. George was acting as Littlcwood’s solicitor at the time he sent me the receipt. Kir. William’s didn’t swear it was his baud-writ-ing; he said the word “ Williams’’ was very like his writing. It was not solely on account of the depositions 1 remanded him, but also that he was not in a sufficiently sane state; 1 mean that, after keeping him 24 hours imprisoned: he would not have been in gaol if the charge had not been made. Mr. Williams said to Mr. Littlewood, “ You have regued me before and are trying to do il again.” Kir. Henry Littlcwood called and examined by Mr. Whitaker: My profession is that ot a solicitor. I reside at Rcmuera, and am plaintiff in this action. Previously, I resided at the Bay of Islands; the defendant likewise was residing there. I recollect seeing the defendant in the gaol at Russell; he sent lor me; he asked me if 1 would lend him £lO. Un a second occasion when he asked me for it, 1 gave him a check on the

Union Bank for that amount, and took his receipt lor it. 1 didn’t give him the check at first not knowing how my funds stood. (Check produced.) I hold the receipt in my hand. The body of that receipt was written by myself; the signature is defendant’s writing. I saw linn write it, and know his writing even had I not seen him sign it. I believe the body ot the receipt is in the same state as when he signed it. The four last words (cash advanced and lent) were on it when he signed it. 1 took steps to recover it, and was successful. 1 went to the Bay after that. 1 went to defend an action brought against me there in the month of June. 1 was given to understand an action was to be brought against me lor forgery. 1 was imprisoned on the charge on the 2Gth till 27th at ten o’clock, I was discharged about eleven o’clock. Cross-examined by Kir. Wynn : Williams was in my debt at the time I lent him £lO. I cannot say how long I was in prison after I lent him the £lO. I swear he did not ask me for £lO on account of XT 2 which 1 owed him. 1 have not taken any steps against Mr Williams for the recovery of any balance duo to me. I could not swear to the signature to the cheque produced. 1 cannot say whether that is Kir, Williams’ usual way of signing his name. I have several times lent money on a receipt. 1 knew Kir, Williams’ circumstances at that time. 1 never lent him money before. 1 swear that the words “cash advance and lent” were there before Williams signed it. This was (lone in the middle of the day. 1 swear I. was sober at that time. On the 25th I hud a case to defend in Court. After the case was decided J was taken to gaol. Mr. Barstow gave me into custody for being drunk. I don’t think Mr. Williams was then present. Kir, Barstow did not tell me on that occasion the nature of the charge about to he investigated against me. He merely produced this receipt refusing to give it up to me, I was not then aware of his object iu retaining it. I swear that the evidence given by Mr. Barstow that he reminded me of it, isnot true. 1 swear that I was perfectly sober at that time. [Here the examination was stopped, a heavy shower of rain falling on the roof making the voice of the witness under examination inaudible—the rain, too, falling in heavy drops on the Counsels’ tabic and papers, and, to the ; at discomfort of the jurv, amongst those gentle-

Cross-examination continued. I left the gaol about Smooths after I lent Williams the £lO. Williams never applied after that for a balance of £o. He sent me a bill for .£ls the evening I left gaol givme credit for £lO. 1 never said I would pay him when I came down to Auckland. I sued him for the £lO in Auckland. lie was not present when the case was heard.

Examined by Hr. Whitaker. There was an arrangement by which his evidence was reserved. T. S. George deposed: I am a solicitor. As plaintiffs solicitor, I sent the receipt referred to, to plaintiff. The blots on the receipt were done in the Resident Magistrate’s Court on hearing. The words were very clear before: “cash advanced and lent.” Mr. Williams was not present when the case was heard. By his own request it was taken before, and read in Court. Cross-examined by Mr. Wynn: The receipt was not produced to him. It was not in my possession at the time.

Mary Callaghan deposed: I am a married woman resident at the Bay of Islands. Know plaintiff and defendant. Was in Auckland in the month of November last year. Recollect seeing Mr. Williams and his son on that occasion. Saw them in Queen-street; a conversation took place. Mr. Williams met mo and said “ what do you think,” 1 said what’s the matter. He said, “ why, Mr. Littlewood has summonsed me lor £lO that he lent me when in the lock up.” I asked if Mr. Littlewood had anything to show for it. He said yes, he had given him a receipt; I asked him if he signed it, and he said lie did. I told him that Mr. Littlewood was sure to gain the case then if he had given his receipt, and he said he did not think Mr. Littlewood would have sued him for it as he owed him £ls. I asked how it was then that when Mr. Littlewood lent him the £lO, he did not get it placed to his account; ho said he was hard up at the time and glad to get it, and that when he signed it he had to do so on the floor of the lock-up, and he was in that state of mind that hi* hand trembled so that he could scarcely hold his pen, and he wrote it imperfectly. Cross-examined by Mr. Wynn: I have known Mr. Littlewood some years; he has stayed at my house oh otic or two occasions. When I met Mr. Williams in Auckland he did not say Littlewood was summoning him fur £lO, which he had paid on account of his (Littlewood’s) bill. I said be had treated my son very badly, owed him £l2 Hut it was not for a grog score, but part of it money lent. This was the plaintiffs case. The first witness called for the defence was

John Barnard Williams, sen., the defendant, who being examined by Mr. Wynn, deposed: I reside at Kussell. Formerly kept a public house there. Mr. Littlewood also resided there at that time. Ido not now keep a public house. Mr. Littlewood used to frequent my house every day, anil was in the habit of running up bills with me. Some time in 1860 I got into some trouble which led to my being imprisoned for striking a man. Mr. Littlewood then owed me £ls Is., for drink supplied to him in my house. I applied to him several times for it. He was always promising to pay. lie used to call and see me almost every morning while I was in prison, till, I believe, the constable stopped him because he was so tipsy. While in prison I applied to him for the money, lie wrote me a cheque for illo, and said that was all he could givb me. I never asked him to lend me £lO or one penny in my life. 1 gave him a receipt. 1 think I wrote it myself. (Receipt produced.) I could not swear that is the document; hut I never signed my name that way, to my knowledge, in my life. The words “ cash advanced and lent” were not in the receipt I gave him. I had never any occasion to borrow any money; I had between £6O and £7O in my house at the time, in sovereigns, and hundreds in the bank. About twelve months afterwards I came to Auckland, and Mr. Littlewood sued me in the Resident Magistrate’s Court for £lo. 1 was unable, in consequence of the maariage of my daughter, to attend the trial, and my evidence was taken beforehand. I did not see the receipt. I subsequently met Mr. Littlewood in the Court House at I’arnell. I sued him ior 11s. or 12s. for wines and ale. That was all f could recover out of the £ls. After the ease was over, 1 said to Mr. Littlewood, where is that receipt for the £lO you sued me for in Auckland? lie told me it was in the Resident Magistrate’s Court. Auckland. I told him I hid written to my agent, and I could not get it. I do not recollect saying to Mr. Littlewood, that if I got it I would prosecute him. Mr. Barstow, the Magistrate, afterwards sent for me, and said he had got the document I was talking about, and asked me what proceedings I was going to take about it, and 1 .>aid none, that I would be very sorry to do so, and I 1•■ ft the Court H use. I flou’t recollect the date of this. Mr. Batst.nv sent for me again some time afterwards; a constable came to fetch me. My sou and 1 went to the Resident -Magistrate’s Court at Kussell; found there Mr. Barstow and the constable. After some conversation, Mr. Littlewood was brought in. I was then examined as a witness. I never laid any formal information before a justice of the peace .against Mr. Littlewood, nor requested any one else to lay one. I did not know anything about the man being placed in gaol till 1 was sent for. It was quite a dream to me. I never said anything to anybody about prosecuting .Mr. Littlewood. I asked Mr. Littlewood for the balance of my bill, £5 Is. when he was leaving the Bay. lie told me not to bother, that he would pay me and everybody else when he got to Auckland. He never did pay me. It was subsequently to that I sued him lor the i w shillings, which was all 1 was advised I could recover. Recollect meeting Mrs. Callaghan, I said, “ What do you think of Littlewood? He has summoned me for £lO that he paid mo off my bill of £ls, while I was in the gaol.” She said, “Oh, the old villain, I’ll make my son John summon him for £l2 he owes him, when 1 get back to the Bay.” That was all the conversation that took place. My son was present. ”

Cross-examined by Mr. Whitaker: My memory is very bad at times, I could not recollect everything that took place in the gaol. I felt hurt at being in prison. 1 might have forgotten who wrote the receipt. 1 don’t swear to it now, but I never sign my name that way. I know I did sign a receipt on that occasion. I know the words ‘‘cash advanced and lent” were not in the receipt originally, because I had the money as part of my bill, and if those words had been there I should have seen it.

Re-examined: 1 believe it went thus :—Received from Mr. Littlewood, by cheque outlie Union Bank of Australia, the sum ot £lO.

John Barnard Williams, junior, deposed: lam son of the last witness. Recollect my father being in prison. Mr. Littlewood owed my father about £ls at that time. I had often asked him for the money, and he promised to give a cheque for £lO on account. I was present when Mr. Littlewood gave my father a cheque lor £lO. I read it at the time. The receipt was something to the effect of the one produced. The words, “ cash advanced and lent,” were not there then. I swear positively. I was present the whole time. My father did not ask Mr. Littlewood for the loan of £lO. lie had at the time £GO or £7O in the house. Cross-examined: I am quite sure I did read it at the time. (Deposition produced.) I believe that to be my signature. The line above is,—“ 1 did not read the receipt, nor hear it read to me.” I believe I did read the receipt, but it is a long time ago, Christopher Hammond deposed: I am a constable at the Bay of Islands. Recollect taking Mr. Littlewood into custody at the Resident Magistrate’s request. I went for Mr. Williamson that occasion at the Resident Magistrate’s request. I only told him that the Resident Magistrate wanted to see him at the Court House. Mr. Littlewood had been in custody from the day before. I rather think Mr. Williams was not present when Mr. Littlewood was taken into custody, Mr. Wynn addressed the Jury for the defence, arguing that it was quite clear from Mr. Barstow’a own evidence that Mr. Williams did not prosecute Mr. Litt'cwcod at all, but declined to do so; and Mr. Barstow felt it his duty to investigate the matter, and Mr. Williams was an unwilling witness at the examination. There would therefore be no need for them to go into the painful question of the forgery. If, however, they did, lie argued that it was not likely that Mr. Williams would have given a receipt in this form for money lent, or that he would have borrowed money at all with £GO or £7O in his house, and if those words were in the receipt, defendant must have been entrapped into signing he did not know what.

Mr. Whitaker argued that the deposition taken at the examination before the Eesident Magistrate at Eussoll was a distinct charge, and that Mr. Williams did, before that, make by word of month a charge of forgery against Mr. Littlcwood, in consequence of which it was that Mr. Uarstow investigated the case. Mr. Bars tow could not have proceeded upon the charge but upon the oath of Mr. Williams, who diil swear to what was necessary. The defendant’s witnesses he contended had placed beyond a doubt the ibrgery question, one ol them having been brought here to swear a false oath, exactly the contrary of what he swore in the Eesident Magistrate’s Cor't at Eussell, Where a case was supported by such evidence as this, by perjury, it must be a bad one. The case was one that required exemplary damages, the misconduct of the defendant having caused the plaintiff much pain and annoyance. The jury retired at a quarter before seven, and after an absence of fifty-live minutes they returned a verdict for defendant. May Loan «. Sauna villi;, Wynn and Beveridge for plaintiff, and Whitaker for defendant. Verdict by consent, £ 169 Bs. sd. Court then dissolved.

MR. GOLDWIN SMITH AND OUR COLONIAL POLICY.

The following letter was published in one of onr (The Times’ ) contemporaries a day or two ago : “To the Editor of the Daily News.

“ Sir, —Few people, except those whoso minds sacred prejudice has closed against the teaching ot experience, will fail to conclude from the correspondence between the Colonial Minister and the Governor of New Zealand, a portion of which you lately gave us, that our colonial system must be changed, and that soon ; whether the change they prefer he the simple and obvious one of political separation, or the less simple and obvious one of a federal union, the working plan of which has not yet been put forth, between two nations at opposite sides of the globe. “ In the case of New Zealand, as of other dependencies, that which is officially styled the ‘ empire is patronage to a few, but to the nation expense, weakness, humiliation ; while to the colony it is a protection which cannot last for ever, and, so long as it lasts, stifles self-defence and kills the root ot national virtue. «» With danger lowering on onr shores, with a war income-tax hopelessly fixed upon ns, with I*ranee mistress of the destinies of Europe, and tramping international rights under her feet, with the defence of the Canadian frontier on oar hands, with a cotton famine to cripple our resources as well as to afflict our people, we are keeping up an army of 5,000 or 6,000 men at an expence of at least half a million to protect the colonists of Now Zealand against a horde ol savages, whose number does not exceed, I believe, that of the colonists themselves ?

To this exertion and this expenditure on our part the colonists respond by discontinuing the annual training of their militia. Onr Colonial Secretary is ‘ surprised’ at such a want of energy, lie might ns well bo surprised at seeing an apple fall to the ground. How many more experiments, and how many more millions of wasted expenditure will our statesmen require before they arc convinced that very moneyloving people, so long as they can be provided with armaments by the mother country, vvill not he at the expense of providing armaments for themselves 7 “The colonists, it seems, would not he unwilling in the abstract to contribute something towards the army kept for their protection ; hut unluckily they cannot do it without imposing additional taxes on themselves, and to pay additional taxes is, as they quiety assume, the function of the mother country alone. No doubt of our unlimited liability seems to cross their minds. A New Zealand financier, in answer to the appeal of the Horae Government, satisfactorily proves that the local revenue is already devoted to local objects, including public works and colonization. •It does not appear to occur to him,’ says the Duke of Newcastle, ‘ that the revenue itself might he increased by the imposition of fresh taxation; that the portion of that revenue which is so applied as to relieve municipalities from the necessity of imposing local taxes might be applied, in whole or in part, to the more pressing needs of the colony, j-ad that the portion of the revenue which is devoted to public works and colonization may in times of disaster, and particularly in time of civil war which is disaster, be diverted to the paramount object of averting absolute ruin. No doubt iu steps like these the colony would he making sacrifices. But this isyxactly what the British Government has aright to expect from them.’ With submission to the Duke’s judgment, the British Government has no right to expect this. It has no right to expect anything but the injustice and contumely which it receives. It has taughf the colonists to draw on the resources of others, and it has no right to expect that they should feel the duty of paying for themselves ; it has taught them to lean on us, and it has no right to expect that they should know how to stand alone. “ While our arsenals and even our capital are proclaimed by the Government to he in danger, the colonists of New Zealand, revelling in the luxury of an unbottght security, plant out-scti!emeuts in dangerous places, and call upon us to send out troops enough to protect them. The Duke ot Newcastle suggests that if it is not worth the while of the colony to protect the outsettlers, it can scarcely be worth while to retain the out-settlements. Again 1 must say I think the Duke is wrong. A gross of green spectacles may he a very

bad purchase if bought with your own money, but u may be a good purchase it bought with the money ot other people. Prudence is not the common attribute of minors drawing on the purses ot their mothers. “ The Governor of New Zealand is a great ruler, and has formed splendid schemes, lie proposes—l, the maintenance for several years of a large military force at the expense of mother country ; (2) a machinery for civilizing the natives, partly at the expense of the mother country ; (3) the construction of roads by the help of the troops in the pay of the mother country ; (4) military commissioners to he posted in the several districts, each paid by the mother country. The large military force is to be maintained partly that the outsettlers may enjoy their farms in peaceful security without lifting a hand in theirown defence; partly as a * standing exhibition of strength, and of the deteimination’ of the colonists not to yield an inch to the enemy while a penny remains in the purse ot the mothci country. An Irish absentee proprietor, being a man of spirit, wrote to his resident agent, who had been threatened by Whiteboys, ‘Toll them they ate vcr\ much mistaken if they think they will intimidate me by threatening to shoot you.’ “My critics in New Zealand, as well as in England, find m’y views very deficient in ‘ sentiment.’ Ido not know, nor do I much care, on which side the claptiap may be, but I submit that some at least ot the sentiment is on mine. The proposal to lay fresh burdens on this overburdened country —to tax the few comforts of the poor labourer here —in order to protect the * outsettlements’ of prosperous and unencumbered colonists, excites sentiments which are natural, if they are not refined. It is, perhaps, a course thing to say,’but the statesmen of sentiment will find in the long run, that as poetry itself, to be genuine, must bo founded on common sense, so political sentiment, to be lasting, must be founded on common justice. “ ‘ A taxpayer’s yell’ was the name given by a colonial journal to Mr. Addcrley’s vigorous protest against the wasteful folly and iniquity of the present system of military expenditure in the colonics. Yes, the ‘ yell’ of some English clerk whose scanty salary is charged with income-tax, or of some peasant whose ounce of tea is reduced to half an ounce that colonial

opulence may go untaxeci, and who in return for the money wrung from him receives unlimited ‘ picstigc. “ Governor Sir George Grey proposes to prolong and increase onr expenditure, and at the same time he proposes to do away with the last excuse for it. He proposes to take the protection and management ol the natives entirely out of the hands ot the Home Government, and to place them, like other local affairs, in the hands of the local Government and .Assembly, Xhc Duke of Newcastle sanctions this most important step. He does so partly, he says, in reliance on the knowledge and judgment of Sir George Grey, but parllv because • he cannot disguise from himself that the attempt to keep the management of the natives under the control of the Home Government has failed.’ Words as true as they arc magnanimous, and as momentous as the are true I Not only in New Zealand, but in all our colonies, the attempts of the Home Government to exercise a special protection over the natives have failed, and bright visions, the incitements to those attempts have found a dark fulfilment W here the natives have escaped the worst late, it has been cither through the sense of moral responsibility on the part of the colonists themselves, which the intervention of the Horne Government impairs, or through their fears, which the military support of the Home Government dispels. The only saviour of savages is the missionary. I believe this may he proved conclusively by historical induction. But what would historical induction avail, compared with the admission of an honest statesman ? Bet ns welcome this admission, that millions have in different colonies been expended in vain, as a ray ol truth breaking through the clouds that surround the official Olympus,and consider whether there may not be still more light behind. “ In these attempts to make the Home Government the guardian ol the natives, we see in the clearest light the inability of Parliamentary Ministers, with their feeble powers and ephemeral tenure of office, to carry on a paternal policy in the colonics. The truth is, if we will have an empire wo must have au Emperor. “ The colonists are, as a matter of course, told they ‘ must expect, though not an immediate, yet a speedy and considerable diminution of the force now employed.’ They were told when the force was sent out, that it should not be employed at all unless they would pay for it; yet they have managed to employ it’ if not in fifhting, in making their roads—this country with its 900,000 paupers, paying XIOOa-ycar per man for their roadraakers. They understand the coyness of the Colonial-office, and know the talisman which will bring the troops back again even if they are withdrawn. Let us hope that this threat ol the Colonial Secretary will produce no effect, for il it docs the effect will he a Maori war. “The case of New Zealand, be it observed, is a crucial instance—an instance by which the system must stand or tali. The New Zealanders are the very flower of our colonists, tainted by no convict ancestry, but sent out under the highest auspices and with the highest aims. Uwe have reason to expect just and liberal treatment from any colonists, it is from them. AVith them, it with any colonists, we might hope to remain united hv an unfailing tic of sympathy and affection. Yet we are receiving at their hands, not justice or liberality, but the reverse, and a dispute is

open by which, if it proceeds, the tic of sympathy and affection may he strained to breaking. “ This is the fault of neither party, it is the fault of the utterly irrational and untenable system by which nations with parliaments of their own are treated as provinces to he governed and defended by another country. To give a nation a parliament of its own is to give it independence. Two parliaments under the same crown never have produced, and never can produce, anything hut clashing of interests, and contradictions of policy, discord and confusion, and, at last, angry separation, the grave of that glory which belongs to England, the mother of nations. When we have given people free institutions wo have decided that they are fit to govern themselves. Let us, then, accept flic consequence of our own decision. Let us accept it quickly, or we. shall imperil l ie highest prize ever placed within the reach of any nation. “ In the next cohnnn to the New Zealand correspondence I read the account of the public meeting in New South Wales for contributing to the relief of the sufferers in Lancashire, and of the noble liberality which was then called forth. These are the spontaneous, unofllcial fruits of the sympathy, deeper and surer than any political connexion, which unites all men of

English blood ; a sympathy which the presence of a Governor-General with the veto does not create, and which his departure would not destroy. This generosity I am told by the correspondent of The Times, is the practical answer to my proposal that the Australians should cease to he Britons. It is the practical answer to much obloquy which The Times has heaped on the Australian colonics and their institutions. It is the practical ratification of my proposal to take the final step in the course which lias hitherto proved so pros porous. The gift of partial independence to the colonies has produced this affection between them and us ; let the gilt of perfect independence make it sure forever. Will men by becoming perfectly free ‘ cease to he Britons ?’ Cannot they ho their own masters and vet ho generous to their friends ? “ I may he sanguine, but I think that this question is making way, and that you will have no cause to repent having admitted unpopular views into the columns of a journal which, so far as I have watched its coarse, has been a constant friend to freedom of opinion. I think that the film of official phrase and unreasoning tradition is passing away from the eyes of the nation, and that, it begins to see the difference between an ‘ Empire’ which is power and wealth, and an Empire which is nothing hut waste, peril, and humiliation. Noram I without hope that the colonists themselves will soon awake to a sense of their highest interests, and perceive that a precarious protection and a temporary relief from expense arc too dearly purchased by a loss of self-reliance, the only sure source of national security and greatness.

“ I am, See., “ Goluwin Smith Oxford, September 13, 1862.

THE CONFEDERATE TACTICS [Prom ilie Richmond Examiner.]

Intelligence has been received from various sources that the enemy has succeeded iu evading or forcing the lines of the Confederates between Manassas and Washington, and reached Arlington Heights with the wreck of his army. This story lacks confirmation, but it conies from so many quarters that wo fear it contains but two much truth. We know from the Northern press that it was the intention of their generals, if defeated on the Rappahannock, to retire to Arlington Heights, there to renew the war of the spade, and reform their broken legions and new lines during the winter. But it was the hope and belief ot the country that the arrangements of the Confederate leaders had been such as would have completely foiled that plan. If the news of their successful retreat to Arlington Heights is confirmed, it will be another of those many disappointments which we have had to support, much resembling and nearly as great as the escape of M’Cleilan after the battle of Cold Harbour and Mal-vcrn-hill.

But if it is indeed true, we hope that our foes themselves will he disappointed in their expectations ot a siege of Washington. The chief prize of the late victories is not the possession of that city, but the opportunity which they would seem to afford" for tlie commencement of an offensive campaign in the enemy’s country. The capture of Washington would produce an immense sensation, hut if unattended by an immediate advance into Pennsylvania, and a menace of the Northern capitals, it is impossible to say that the said sensation would be altogether and necessarily to our advantage. It would he a prodigious mortification to the North, but would not cost it a fatal or even a serious loss of strength. The moral shock might possibly occasion uegociations for peace; but if the Northern people possess any real courage it would more probably result in a general rush to arms. Possession of Washington is only desirable as the open door to invasion; and il it is effectually closed against ns by the occupation of Arlington, we hope that lids precious season will not be consumed in picking the lock or battering it down, while the wall is fall of breaches through which wo may pass as well. Reason indicates that the aim and object of the Confederacy at this stage of the war is, or should be., a transfer of hostilities to the enemy’s soil. It is, in fact, a matter of necessity that we should do so. It is difficult to sec how an enormous army can be subsisted in Northern Virginia during the coming winter. Everything that it consumes will have to he transported there from great distances, for it is now literally an army in the desert. Pew who have not visited it know the extent to which this unfortunate portion of the State has been desolated. At the end ol eighteen months it has been reduced to a condition nearly resembling that of Middle Germany after the thirty years’ war. 'ihc drums and trampiings of three conquests have not produced elsewhere the ravages and waste which the struggles of the Southern and Northern hosts have caused in Virginia during the past and present summers. It will take one hundred full years to restore that country to the condition in which the war found it. Deserted as it is by the majority of its inhabitants, it is not easily perceived how tite scattered remainder of its population hope to escape starvation during the coming winter; and the maintenance of an army of one hundred and fifty thousand men there, dependent on a single track railroad, when the winter has rendered tlie other highways impassable, will bo an experiment not less dangerous than costly.

Even if that difficulty could ho overcome, it is evident that our army cannot waste its time in protracted operations for the possession of a frontier city, unless it desires to lose the only opportunity to make a real approach to the end of the war that wo have had since the beginning of it. Such a delay would be all that the enemy could desire; for it would give him just the time necessary to organize and bring up his new army of 600,000 men, and while Washington should be neither clearly lost nor won, hut a prize still at slake between the two countries, the difficulties of raising that new army would he greatly alleviated, i jlf we cannot take Washington by a cou/i <l<; main, it must he left to take care of itself. The true goals of our course arc the deliverance of Maryland and the invasion of Pennsylvania, and if we ever have uu honorable treaty of peace with the United States it will be signed on the enemy’s territory, and not on our soil. °War is a game of chance, and in all games ofchancc there are unaccountable runs of good and bad luck. In the latter part of last winter and in the beginning of the spring we had our season of evil fortune. Mishap succeeded mishap, loss followed loss, and disaster pursued disaster in a melancholy series so long and unbroken that the Confederacy could realise the sensations of Macbeth, when he asked,—“ Shall thy line stretch out to crack of doom.” The tables are now turned; the cards run the other way. The North has now its dismal season, while the winter of our discontent is turned to glorious summer. Splendidly victorious in Virginia, our first organized advance into Kentucky is also marked by a success oven more brilliant, though of less magnitude. The battle near Richmond, Kentucky, although 10,000 only of the enemv were engaged, is one of the most oneouiaging incidents of the war, if the report which the telegraph brings is indeed true, that the Kentucky regiments which the enemy had raised by compulsory enrolment marched over to the side of their compatriots to deliver up the arms which their tyrants <had forced into their hands. A large portion of the now levies of the North arc to draughted from the oppressed populations of conquered Southern States —Maryland, Kentucky, Missouri, and Tennessee. We now know what these troops will he worth to them and to us, and can indulge the hope that they will organize, arm, and equip us many more regiments from those States as the arm-bearing population will afford. Ihe Kentucky victorv appears by the despatch to have been so complete that we fear the details may weaken the impression that it leaves. But it is at least certain that we arc victorious in Kentucky, and that our troops are upon their way to Lexington. In the West, its in the East, the smile of fortune is manifest, and the masters of the art of war agre with other gamblers, that luck should he pushed.

Fi:om run Conkkdkuate Aumv ok Noktiihux | VIKGINIA. fKrom tJio “ Itiehinorut Examiner."] , Little or nothing Inis been added to the scant stock j of informal ion regarding the recent great battle on the J plains ot Manassas. A number ot gentlemen who j participated in tho engagement reached lids city last evening, hut they know absolutely nothing, except that our army had achieved a great victory on the

same ground on which it was before victorious on July 21, 1861. They know neither our loss nor the enemy’s; the number of prisoners captured by us, nor the route of the enemy's retreat. The most of them say in vague terms that; the enemy fled before our men towards Alexandria, or Arlington Heights, or Leeshurgh, they don’t know which, and they can give no exploitation of how lie effected a retreat in this direction, our lines being confidently asserted to have extended across all the roads leading to Washington, from Union Mills to Thoroughfaregap. Some, however, maintain that the enemy retreated through Centrcvillc. If this be true, he must have broken through Longstrcot’s lines on the Warrenton turnpike. But all of Longstrcct’s men with whom wo have conversed assert that the enemy, so far from bre iking our lines, was driven hack a distance of two miles. From all wo have been able to learn we think it most likely that

the enemy, during Saturday night, escaped toward Alexandria by passing to the east of Jackson’s extreme left. If, in the fight of Saturday, we drove him before ns, as there seems little doubt that wo did, and there has been no subsequent fight, there were but two ways by which be could have passed our army—by hugging the I’otomac on Jackson’s left, or passing clear around our army by a detour to the westward. But with our present scant information, the discussion of this subject is profitless indeed. All agree that the battle was a most disastrous June to the enemy. A gentleman who rode over the field on Monday assures us that be saw ten dead Yankees to one Southerner. Our informant was of the opinion that the greatest loss sustained by us was in General Jackson’s division—the enemy directing bis heaviest columns against this wing, as it occupied the direct and coveted route to Washington city. The following telegram is from an intelligent gentleman connected with the Southern press, and was received in this city hue last evening. “ Saturday night, Aug. 30.

“ The enemy were whipped off the field with great slaughter, and many guns were taken. They ran so fast in some parts of the field that Jackson, who was ordered to press them, replied that they were too fast for him.

“ Sunday morning, Aug. 31. “ Wc are just starting in pursuit alter yesterday’s work; our troops arc doubtless at work, as they were ordered to proceed at daybreak, and it is now an hour after.”

Wo append an extract from a hastily written letter from the licid, by an officer of tiie army to a friend in this city:— “ Manassas, Aug, 30, via Rapidan, Sept. 4. “ The second battle of Manassas has been fought precisely on the same spot its that of the 21st of July last year, with the exception that our troops occupied many positions which the enemy held at that time, and the Yankees fought upon die ground which had been held by us. Several of our regiments entered the field where they had been one year ago. “ The fight commenced near Grovoton, on die Warrenton turnpike, about 3 o’clock. General Lougstrect on tlie right, General Jackson on the left, their lino being in the form of a broad V—the enemy between. The Yankees made the first advance endeavouring to turn Jackson’s flank, but were repulsed with great confusion—a battery of 28 pieces of artillery, commanded by Colonel S. D. Lee, of South Carolina, mowing them down by scores. General Lougstrect at once threw forward Hood’s division, and advanced his whole line, which was in a short time desperately engaged. Jackson now gave battle, and the enemy were attacked on every side. The light was fiercely contested until after dark, when the Yankees were routed and pursued three miles. Their force consisted of Banks’, Morell’s, Sickles’, M’Clollau’s, and Pope's commands. “ The loss of the enemy exceeds the Confederate five to one.”

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Bibliographic details

SUPREME COURT., New Zealander, Volume XVIII, Issue 1751, 17 December 1862

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SUPREME COURT. New Zealander, Volume XVIII, Issue 1751, 17 December 1862

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