New Zealand Gazette AND WELLINGTON SPECTATOR. Wednesday, February 1, 1843.
•We were in hopes the result of the proceedings in this' Court,, in the case of Wakefield against Smith, would -have terminated more satisfactorily, if not to the. parties themselves, (for' that in cases of law proceedings is scarcely to be expected) at least to the public. We were induced in our paper of Saturday last, to enter upon the question as raised by Captain Smith's letter, and, although we had not the advantage of hearing the arguments of the Bar and the Bench on t the case;, v -flatter^puxselves there would Jbave" been
little or anything to correct as to our view of the real merits of the case as it stood then and now. * ' " / Dr. Evans moved the Court upon an affidavit of Mr. Chetham, the Defendant's | solicitor, either to set aside the writ of execution on account of irregularity on the part of the officer of the Court, or to reduce the damages on account of excess, it having been, if not admitted on all sides, at least understood to have been so by every person in Court at the time of the verdict ' being given, that . there were to be no cost in the cause ; but that his Honor conceiving he had an equitable jurisdiction vested in him as Judge of the County Court, declined to make any order about costs. Upon this point rested the question of the regularity of the subsequent proceedings. Mr. Hanson on behalf of the Plaintiff, as appeared by his own statement, had never doubted his clients right to costs, and had after judgment made repeated application to the Defendant, by letter for the payment of the debt and costs, having first moved* the Court for an order for taxation of the costs in the cause, and after serving the Defendant's Solictor with the proper notice, called upon the officer of.the Court to tax the same. It so happened that the Defendant's Solicitor was present at the Clerk of the Court's Office at the time, though not in consequence of, or in obedience to such summons, and being requested to attend to that proceeding declined to do so, resting his opposition to any such proceeding, on the streugth of the entry on the Clerk's Books, (which he considered the record of the Court,) whereas it expressly states, Verdict £2 10s. no costs. Notwithstanding the Clerk of the Court having also his doubts, (and they must be considered legal doubts, he being a most respectable member of the profession himself,) how in conformity with that entry on his Book, he' would be justified in proceeding to tax a Bill of costs, where none appeared to exist. Mr. Hanson, however, relying no doubt upon the correctness of his view of the law of the case, threatens the Clerk of the Court with a. mandamus attachment and all the terrors of the offended majesty of the law, which so far overcome the scruples of the Clerk as to induce him (after we believe appealing to the Judge,) to proceed to taxation and ultimately to granting a writ of execution. These were points which we were unable to answer in our last,, though it will be recollected we noticed their omission. Mr. Hanson then proceeded to argue in support of the correctness of the proceedings, and to oppose any arrest of the execution, relying first upon the general rule of law that a verdict above forty shillings carries costs with it as a matter of course — secondly, that his learned friend must have been equally aware of that fact, and that he was too late according to. the Rules of Court in his application, it being therein laid down that ali applications for setting aside judgments or reviewing oramending them must be made at the time of announcing them, or at the next sittings of the Court, neither of which steps had he done, and consequently he was shut out of Court. On the other hand, Dr. Evans contended (and we think correctly as far as common sense and justice is concerned,) that it was not until the actual enforcement of the writ of execution by levying on the goods and chattels, and the introduction of Messrs. the Bailiff and his Secretary on the premises, that his client felt dissatisfied with the proceedings of the Court. The defendant, as he abserved, had in his opinion a right to have expected a verdict in his favour, but of that he could not complain ; and when a verdict was given against his client for the amount of damages and no costs, he bowed to the decision of the Court, and was prepared to pay the amount. Here we are sure that everybody who was present on that occasion will recollect the contest between the two learned Counsel, the one contending for the award of costs, the other as strenuously for no such addition, and bis Honor the Judge declaring, " I will make no order for cost," or words to that effect, and the continued discussion pro and con. The entry was made,- verdict £2. los. and no costs. It has been observed that he who pleads his own cause has a fool for his client. In the case before us, we think fool as Captain Smith might have . proved himself, he could not have suffered much more from the consequences of his folly, than he appears to have done by, if not the folly, at least the forgetfulness, for we will not call it ignorance of the Bar and Bench. If the .argument of Mr. Hanson was correct, that a verdict of the Court for 40s. carried costs, why did he raise the question at all. If Dr. Evaus admits the jcorrectness of Mr. Hanson's dictum, why contend with bis opponent. Surely the more straightforward course would have been, on' the jpart of Mr. Hanson, to have submitted- to the Court the question of— How far it had power to inter-
fere upon the subject of costs, and, if that had 'not been satisfactorily answered, then, that the learned Dr. should have given notice of a motion to reduce the damages, to meet what was evident the justice of the case in the eyes of the Court, below 405. ; whereby each party would have to pay their own costs, unless, indeed, in cases where' the verdict is the result of the decision of a jury (which is not the case here,) the Judge may think the verdict ought to have been sufficient to carry costs, in which case he may certify as to costs. That is to say, a verdict below 40s. does not carry costs with it as a matter of course, but the Court has the power to certify for them ; whereas, a vedict above 40s. carries costs, and as long as it stands above that amount the Court have no alternative as to costs.
It is evident, in this case, that the, Court considered it had the power to decide the question of costs, or it would not have suffered the impression regarding costs to have proceeded after the Judge had pronounced a , verdict of £2 10s., and thereby tend to confirm the erroneous impression with which the public left the Court. It may be all very true that every body is bound to know the law according to common interpretation of that phrase, that is, if you do not know the law, you must nevertheless submit to the consequences, if you infringe it ; that is, ignorance will not exonerate a man from the consequences of an illegal act. But on the other hand it is but reasonable and just that those who are to administer the law, and those who engage to plead the cause of the ignorant, should themselves be conversant in that law, so as not to subject the poor fool to the double consequences of the penalty of his own ignorance, and that of his lawyer and the Court into the bargain.
The result of the proceedings, as far as we could collect them, were these, — The execution of writ has been staid, whether by leaving the sheriff in possession, or by the undertaking of the defendant not to remove stick or stone, until the final decision oS an appeal to the Supreme Court, upon some point of law, -not yet we believe finally agreed -upon, or by the payment of the amount with costs.
By the arrival of the Ocean from Nelson we have the Uelson Examiner of the 21st instant. We are sorry to learn by that paper that the supply of labour-, of the various classes of mechanics and labourers is more than the private demand will absorb, and more than the Company's Agent, with every disposition to meet the energies of the times, can satisfy. We have heard from private channels, , that the emigrants who are thus temporarily (as we hope) suffering from this periodical fluctuation of supply and demand of Jabour, seem , to have gained very little experience by their change of situation, in flying, or threatening to have recourse to violent measures to remedy their present circumstances, which would, if carried into execution, not only destroy all confidence in the employers of labour now resident in that settlement, but most assuredly deter those who may have contemplated immigrating thence, and improving their property by expending their capital and skill, and thereby securing the general improvement of the settlement itself, and that of a great body of the labouring portion of the population.
We perfectly agree with our contemporary, that the apparent disproportion of labour in comparison with the amount of capital, imported to their several settlements, has placed the New Zealand Company in such a situation as to subject them, under the implied promises held out to Emigrants at home of constant employment under their Agents, of a far heavier expenditure than they could have contemplated being called on to meet, for at least such an extended period, which according to the late and present state of money matter at Nelson, they appear likely to be subjected. We know how difficult it is to argue or reason with " empty bellies," and almost equally so with those who from neglect of all education, are incapable of understanding or feeling the force of the appeal made to them. Judging of the state of Nelson, by what we have occasionally witnessed' here, we cannot for a moment bring ourselves to suppose, that the emigrants who have displayed these symptoms of discontent, can be classed under the head of the " empty belly class," and still less should we be justified by any comparison with our own class of mechanic's or labourers in coupling them with the " no education class." Still as we have but the alternative, we must consider them as ranging under the second class, and can only lament that they should have been induced to give the remotest suspicion that they were so far lost to a just sense of .wright and wrong, as to threaten the security of private property, though belonging to a public company. This would indeed be going back to the worst times of history, instead of the " good old times." \We a. c glad however, to learn by the succeding observa-
tions of out contemporary, that their good sense got the better of their angry feelings. They are free to try their fortunes elsewhere, but as they were very properly forewarned, it behoves them to look before they leap, and take care they do not jump out of the fryingpan into the fire. They had better, accept the Captain's offer, than go fatther and fare worse. Which they assuredly will do if they once take to tramping from place to place in search of high wages, which are as shifting in their nature as the sand on the sea shore.
Mr. Wilcox, a week or two back, laid the keel for a culter of thirty-five tons burthen, at his ship-yard, Jak-e-wai, and she will soon be ready for launching. This kind of craft is best adapted for the coasting trade, and we doubt not she will meet wjth success. We believe it will be the tenth vessel built in our port, a proof that the Colonists are progressing in this part of their resources.
We have hitherto neglected to announce a disastrous fire at the Manawatu River, which totally destroyed the premises and saw-mill of the Messrs. Kebbell, best !es a quantity of tools belonging to their workmen. The fire was accidental.
Workmen have again been placed on> the Karori road, near Mr. Hair's allotment, were they had stopped for the purpose of finishing off the lower part of the road. It is intended we believe to carry the road through the district on to the Makara flat, which contains nearly as much level land as Karori itself* Several working men are now clearing their" lots of five and ten acres, and in the course of the following summe" Karori will be stud* ded in every direction with farms of this description.
The late disastrous fire, as far as house building is concerned, seems to have proved very beneficial. In place of the Raupo warres, large substantial brick erections are rearing their heads in every direction, and the days of toe-toe seem numbered. At the present time ten brick houses are in progress, and others will be shortly, giving employment to a far greater number of hands than wooden buildings of the same size would do.
We advise those gentry who are constantly running this place down for want of something better to do, and who are continually, stating that" nothing will grow on We hills," * to pay a visit to the tea gardens of Mr. Wilkinson, on the old Kafori road, and the cottages in that vicinity, when the fruitfuluess of every thuig that meets the eye will quickly prove the falseness of their assertions. Tliis place, which ought to" receive the title of village, for there are a great many inhabitants, is about three hundred feet above the level of the sea. We think our contemporary might readily answer the sapient who wrote " rejected correspondence " in the Mangle, from this specimen alone, without looking out for any other part to refute his queries.
The settlers ought to encourage Mr. Wilkinson, for he has laid his land out tastefully, and formed tea gardens, which the Wellingtoniaus will find well worth visiting.
On Thursday morning last, a man named David Monro, was found lying dead in a deserted house near the gaol. • The body was conveyed to the Suffolk Hotel, and a jury summoned by the Coroner. The body was opened, and from the evidence of Dr. Featherstone it appeared the unfortunate person had been suffering from a diseased chest, and that any thing over exciting him, would cause instant death. Another witness deposed to seeing him lying the previous evening on the beach drunk, and to his (the witness) having placed him in the house where he was found through a feeling of pity, thinking that in the course of an hour or two he might recover sufficiently to go home. After a lengthened enquiry, the jury returned a verdict of " died a natural death." :'
The barque Glenarm, arrived on Monday last, from Liverpool via Adelaide. The latest English news received in Adelaide was up to the sth of September. The rioting still continued, but trade was improving. We have received an imperfect file of Adelaide' papers by her, but the news is unimportant. The crops are stated, to be good, and Adelaide is evidently progressing.
Yesterday afternoon the -long looked for Thomas Sparks arrived. She had the misfortune to be run foul of by the brig Margeret, ' from Sydney, while beating into this Harbour, by which she had her bulwarks stove in ; and the brig lost her bowsprit, which disabled her and caused her to bring up inside Barrett's Reef. She is, we understand, laden with sheep and a general cargo. The Thomas Sparks was out 50 days from the Cape, and besides cabin pasengers for this place, and some live stock belonging to
Mr. Petre, (who has returned in her) she has a feY emigrants for Nelson, for which place she will proceed as soou as she has discharged that part of the cargo destined for this place.
We have to announce the departure of his Excellency, lady, and suit, for Akaroa, on Monday Jast, from whence he may be expected . back in the course of a week, or ten days at farthest, when we believe that something decisive will transpire on the subject of the Land Claims question.
♦ To the Editor of the " New Zealand Gazette land Wellington Spectator." Sib, — I observe a notice in the Colonist of Friday, respecting the introduction of a supposed new seed to this Colony, called Alfalfa. The account given of it is, in most respects, correct, but the statement that it differs from theclover we call lucern will, I apprehend, be eroneous. Alfalfa is the Spanish term for lucern, I entertain, therefore, little doubt that the seed, which has been brought by the Brougham, is no other than the clover so named by us, and which we already have in limited cultivation. I have grown a small patch of it at Wanganui for the 1 lust two yenrs, nnd previous to my leaving that place, an Saturday last, I had cut four crops in the interral,' from the Ist of Octaber, and left it then quite in a sufficiently advanced state for the fifth cropping. From this experience I should venture to say that eight crops, at least, may be expected in the couVse of every summer here; but it would only lead to disappointment to aver that in this climate its growth will extend to three or four feet. At Wanganui I have found it 3 height to average about eighteen inches, ar>d rarely to overrun two feet, and such, I suspect, will be the experience of others. In the South of Spain, where the summer heat is considerably greater than it is here, I have cut the alfalfa for four successive months at from 30 to 36 inches, every fifteen days, but this was extraordinary production, and only obtained by the expense of almost daily irrigation. Tho name of the clover is of little conseJuence, be it alfalfa or lucern, but, I confess, am glad of the opportunity of seconding the ColonisVs reccommendation, and I do so after a considerable, and well repaid experience of its value to the farmer. The Spanish growers are in the habit of sowing it broadcast, but I think the wide drill system preferable, say 18 inches, and thinly sown. It stools amazingly, indeed so greatly that I used after the second year to remove and transplant intermediate roots, so as to leave the original continued rows in dots of foot distances, and thus gain advantageously an increase of clover .space. It does not arrive at perfection till the third .or fourth year. It should always be cut down £b«fnre it flowers. It requires very careful .•weeding, but no tenderness of treatment : On the contrary, after every cutting it should be sharply grass raked, or harrowed, and should be mawn, or reaped, as close to the ground as possible. One great advantage of the wide drill system is that the horse hoe mounted with tines instead of hoes, can be used freely in the spaces between the rows, and these not only loosen the soil, but also the lateral roots, which, where left undetatched, arc- detrimental. A3 the Colonist observes, the lucern grows best in light soils, but even there ought to be well and deeply trenched before sowing, for the tap penetrates many feet, if unimpeded by hard subsoil, and the deeper it goes so much, the better is the clover. I am not aware how they manage the culture in Chili, but I know from repeated experiments that liquid manure, given at least, once in the season, meets ample reward. I am, Sir, Your obedient servant, P. Wilson. Friday, January 27, 1843.
■♦ To the Editor if the " New Zealand Gazette, and Wellington Spectator." Sir, — The proceedings since I last addressed you, upon the extraordinary execution put into my house, by Mr! Hanson, as solicitor to Mrs. Wakefield, might in other cases operate so oppressively that I am induced again to address the public? on the subject, through your columns. As I anticipated in my last communication, a Sheriff's sale was announced. It was ordered to take place at my residence, on Saturday last. The advertisement to that effect appeared in the Colonist of the preceding Friday. On Saturday morning; my counsel submitted the case to the Judge oi'the County Court. To my surprise I found Mr." Hanson utterly without the ability to' defend the extraordinary position in which he was placed. Indeed the information ~ furnished ' by my counsel placed him in a still worse position, though it in a degree relieved the Clerk of the Court from blame. Mr. Hanson asserted that my counsel had agreed to his bill of costs being taxed. I'his was most promptly denied I—and1 — and circumstances were stated which proved Mr. Hanson's statement not to be true ; but had it been correct, it would not have availed him, though it 'night have cast a charge of thoughtlessness upon m y legal adviser. The ground upon which a Pplication was made to the Court, arose out of the writ demanding what the record of judgment did not sanction, which no agreement to taxation could have affected. The Clerk of the Court was bound to tax the costs if Mr. Hanson made the. demand, for though Mr. Hanson had no claim against me for the costs he had against his own client, and might have desired to have his bill taxed for her satisfaction. It appeared that at first the Cleik of the • Uurt refused to grant Mr. Hanson a writ jor more than the judgment. Mr. Hanson wen threatened him with a Mandamus. According to the statement of my Counsel, neither "»e learned Crown Prosecutor, n,or the learned uerk of the Court was aware that, it was * big word without a meaning, on such an occasion. A mandamus in such a case would
in fact have been a farce. The one used a big word in ignorance, and the other succumbed to the big word in ignorance. Big words without meaning, it is well known, have often been found to frighten folks into the. preformance of acts from which they should abstain. There was no attempt to deny that the writ was not a copy of the judgment as it stoQdupon record. His honor the Judge did seem certainly to intimate, that the record was not a faithful copy of the judgment given in Court. He did not sanction, and of course would not have sanctioned any alteration of the record, otherwise than in open Court, and before the parties concerned. This intimation surprised many, and especially some who heard the judgment given, aud the remarks make by the Judge at the time of giving the judgment. His Honor's memory certainly proved treacherous to him. This is an infirmity, however, common to us all as we advance in years, though there are abundance of cases in which persons from childhood have been afflicted with it, both to their own and the inconvenience of others. It having been made evident in Court, that the writ was inconsistent with the record, I looked for a verdict in my favour ; but it pleased his Honor to stay the execution until the arrival of Chief Justice Martin, for what purpose I could not understand, as the Ordinance by which the County Court is constituted, declares that its judgments shall be immediate and final. All may not understand the meaning of staying the execution of a writ, and therefore I will state it, as I desire to show the painful position in which parties may be placed by such a judgment. It means just that a man's house or property shall continue in the possession of the Sheriff^ unless he is rich enough to pay the amount in dispute into the hands of that officer, or into the Court. If the amount in dispute was large it might bring down misery even upon a wealthy family, for they might not be able to find the sum without selling the property in dispute, nor security for the amount. Failing finding security or the money, the house would really be vigilantly watched over by the Sheriff s officers, who would reside there. Staying the execution of a writ, would however be sure to bs attended with hardship to the poor man. He could notaiford to pay Sheriffs officers, and the consequence might be that the bed might be taken from a sick person, whose life might in consequence become a sacrifice. Such an event may not happen, but the course pursued in my case shows to what evil such a decision might lead ; while the result might show that the writ, as in my case, was illegal. I believe I have no remedy until the Chief Justice arrives. After that period, I shall possibly be in a position to pursue the parties who will have caused my property, by the issue of an illegal writ, to have continued in the hands of the Sheriff, between two and three months. I am, Sir, Your obedient servant, W. M. Smith.
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New Zealand Gazette AND WELLINGTON SPECTATOR. Wednesday, February 1, 1843., New Zealand Gazette and Wellington Spectator, Volume III, Issue 216, 1 February 1843
New Zealand Gazette AND WELLINGTON SPECTATOR. Wednesday, February 1, 1843. New Zealand Gazette and Wellington Spectator, Volume III, Issue 216, 1 February 1843
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