SUPREME COURT.—Thursday.

New Zealand Herald, Volume I, Issue 126, 8 April 1864, Page 3

SUPREME COURT.—Thursday.

CIVIL -SITTINGS. j [Before 111% Houia- Judge Johnston.J j The Court met yesterday forenoon for the despatch I of the civil business of the district. The Court in the { first instance met at the Court-house, Queen-street, l and after a little fomad business adjourned to the I; Council Chambers till 12 o'clock. | .Several volunteers having claimed their exemp- | lions, his Honor excused them, aud stated that it was f only necessary lor them to inform tho officer sum- { moiling them that they belonged to the volunteer j force. This would be the more convenient coarse, as the Court could then bo sure of securing a lull panel. 1

1.111E1.. j IiUUItV r. 111'KIIAI.L. | This was tin action brought by Capt. Drury against Cliarles Cavendish HurraU (both being officers in the Waikuto regiments), for having written ami posted up in the room of the Q.C.Ji and another billiard room in Auckland the following document: — "Auckland, Sth December, 181KS.—Capt. Uruiy of the 2nd Waikato regt., falsely representing himself us having formerly held a commission in it cavalrv regiment, having made certain accusations against me, Charles Cavendish HurraU, which he declines to explain or apologise for, I hereby post Captain Drury as a liar, a coward, and an impostor.—Ciias. CaVKNDIMI HIKKAI.L." Mr. Wynn appeared for plaintjlf; Mr. Merriman for defendant. A jury was then impannellcd, Mj\ James Tavlor being chosen foreman. Mr. Wynn opened the ease, and asked the jury to bring in such damages against tho defendant as" he tliought his client was entitled to. Mr. Wynn then called the defendant,

Charles Cavendish Hun-all—[A document handed in to him.] —That is mv writing. 1 posted it at a hotel called the Q.C.JK. I road it over beforo doing so. There were a great many present, amongst others some AVuikuto officers. I "was not an officer at that time. I had applied and obtained tho promise of a commission as Lieutenant in the Waikato. 1 had formerly held the same employment in tho militia embodied in England. [Another document handed to witness.] That is also my hand-writing. 1 posted one at the Royal Hotel. Since tho action commenced 1 have had no letter making overtures of any kind from the plaintiff. i. am quite sure of this.' 1 received a letter from you intimating tho commencement of the action. I gave a verbal answer to the messenger. As far as 1 can remember 1 said I would not accept the tcims. I have said I was willing to apologise for having posted tho libel, and withdraw the word "coward."

Mr. Merriman was about to ask some questions relative to the accusations which had induced detondant to post document complained of, when his Honor refused to allow the question to bu put. If Mr. Merriman had intended to set up those accusations as a defence for the conduct of his client, he should have set it foith before; or if lie inti nded to plead it in mitigation of damages it should have been given notice of, in order that evidence might be brought on the other side if deemed necessary.

Capt. Piury was then called by Mr. Wynn, and deposed:—My mime is Harvey Kingston Drury. I am a captain in the '2nd Waikato militia. I got my commission on the 3rd iScpt. I brought over the first detachment of volunteers that arrived from Sydney. I have been in the regular service. I was lieutenant in the li2nd in the l'unjaub campaign. I was two ytars in the Crimean war les a volunteer. I was altei wards captain in the English contingent in Garibaldi's service. I retuniid at the close of tho war to England in command of upwards of 200 men. I have leccived three medals, and am entitled to others, which I have not yet received.

By Mr. Merrinian : —I havo the medals in my possession. They are not on mo now. The medals weio given me for service as u volunteer. 1 swear that 1 did not list in any dragoon regiment whatever as a private. 1 never stated to any person that I sold a commission in a cavi lry regiment in her Majesty's service. I was sivjierintendent in tho Turkish land transport corps, which entitled me to rank as a commanding officer. 1 knew Mr. HurraU in the Garibaldi service. [A document was handed to witness.] 1 don't know what the document is. I don't recognise the signature. 1 served in the Garibaldian service till peace was proclaimed. I went out as sorgt.-major, with the understanding that I should have a commission on arriving at Gibraltar.

This was the case for the plaintiff. Mr. Merriman then opened the case for the defendant. He admitted that his client had acted very ioolishly in posting Mr. Drury, but he should bring evidence to prove that plaintiff had been guilty of falsehoods, and thus also laying himself open to tho charge of being an impostor. Ho contended that plaintiff was not entitled to any damages. Mr. Merriman called Capt. George to prove that Capt. Drury had made statements to him which were untrue.

Capt. George, sworn, stated : —I am a Capt. in the 3rd Waikato regt. I saw the plaintiff, Capt. Drury, at Otahuhu, on 3rd October last. I mot him in a billiard-room. After playing two gumes wo went down stairs, when Capt."Drury told mo ho knew a Mr. HurraU who wajß in town and had deserted from his regiment, tho English Legion in Italy, and that he had been sent with a party of men to Naples to capture him. Mr. Wynn objected to this modo of examination, it had nothing to do with the ease at issue. His Honor said he could not take down such evidence ; it formed matter for another trial, but could not be received in the present. Examination resumed :—Tuesday afterwards at Kerikeri, I went to Capt. Drury, at the request of Mr. HurraU. I asked Capt. Drury in course of that conversation, whether he had ever been a commissioned officer in a cavalry regt. He replied ' \es.' I then asked him to shew me his name in tho Army List, or his commission as such. He refused to do so, but said, "If yon liku I will show you my medals." I said " Very well, shew me them." Ho then said " Let Mr. HurraU find out himself," and half rose out of his bed and laid down again.

Cross-examined by ih: Wynn : —I put these questions to Capt. Drury for the information of Mr. HurraU.

Jsy his Honor ;—I do not recollect tho number of the regt. he said. Mr. HurraU w;w then recalled by Mr. Merriman, but his examination was objected to, on tho ground that it had nothing to do with the case, and was out of order.

Mr. Mcrrinmn then addsessed the jury for the defence, and maintained thiit the plaintiff was not entitled to a verdict for damages, for had his client used rather too strong terms, still Capt. Drury had not suffered through it; he still held his comuiisMOli, no steps hail been taken to remove him, and that it had been clearly proved ho hud told a lie, and was therefore an impostor. Ho had stated that he had been a commissioned officer in one of her Majesty's cavalry regis., and it had been proved that ho was not one. Mr. Wynn then addressed the jury for the plaintitf, stating that after the manner tile counsel tor the delenee hud acted, ho thought that the jury hud.no doubt for Vbwni the verdict, should b« Thd

. defcnco was one of tha most disgraceful trumped up eases ever brought into a court of justice. If one officer goes to Kerikeri and asks another if he was ever a com missioned officer in her Majesty's sen-ice, and he says " Yes," is that to justify a third partv going down to a hotel, and posting up in two places in the one day, a written placard that he was a "liar, a coward, and an impostor." The defendant certainly had offered to settlo it, but in -what manner, ho said he was very sorry that he had posted him up, but would not retract it; could his client accept that ? Would that wipe ««av the slur cast upon his character ? He contended that a verdict for heavy damages must be given for his client to justify him in the eyes of the public. His Honer in summing up remarked that it was one of those cases, which in former days, would never have been brought into a Court of Justice, but would have resulted in the more common practice among military men—a challenge and a duel. It was oue of those many quarrels which often arise between young men, and sometimes end iu serious consequences. Bat in this case defendant was wrong, he had uttered a libel which was not justified, and no doubt the plaintiff was entitled to a verdict, but for what amount it was for the jury to decide. The s plaintili too, hail laid himself open in a great measure by his statement to the witness, Captain George; upon being asked the question ho said "yes." Not hut what Captain George in his evidence spoke the truth and the whole truth, but still plaintiff's answer might have been a rash one, and he at the time not thinking of what he was saying, replied "yes." Capt. George went as a friend' of the defendant's and plaintiff's proper way would have been to have rebuked him for interfering with what did not concern him, instead of answering the questions. This was the only time he had shown himself guilty of telling a falsehood; but still, because he said that, that was no reason why such a HI el should have been uttered, or more especially posted deliberately in a public billiard-room in a hotel. Then * again there ivaj no evidence produced to show that Capt. Driirr was not brave, btit then they _had retracted that j statement. It should have been proved whether j Capt. Drury made that statement falsely in order to ( mislead i\n\ party, and then this argument might be j raised—lie might have forgot himself, or confused, ! and it was for them, the jury, to consider whether ) that answer was J given wilfully or not, if so! he must be rebuked, if not he must be justified before the public, for it was not a voluntary statement, but pressed upon hbn by a question put by Capt. George, and it was not a written answer with intention to deceive, but a mere verbal one. Then the libel was a most serious one. posted in a public

place, the resort of a large portion of the military and the public, and therefore a great slur would be cast upon the plaintiff; in point of law it was a libel, for it says "anything written throwing discredit, ridicule, or contempt, upon any party, may be deemed a libel." • Then again, the very manner in which the defendant persisted in the 'libel in this Court was suliicieut to increase the verdict for damages ; his character, in the position he held, must have suffered

considerable damage, and plnintilf must lie compensated. There was no doubt but that il was a hasty, and one of those rash acts frequently occurring amongst young men during quarrels;' instead of doing ns he did, defendant should have gone to the military authorities and given notice of the circumstance, and if it was found that a person who was serving in Jler Majesty's service, was an iiu]ioster, they, the authorities, would have acted in the matter. It had been said that the case should not have been brought into this Court, but Capt. Drtiry had no other way of acting, for it was impossible, and could not be supposed that he could accept so monstrous au apology, which would have given him no compensation, and therefore he was bound to justify his character by bringing the case into this Court. After a i'ev.- more remarks to the jury, he desired them to consider whether there were any, ami to what amount of damages the plaintiff wc.s entitled. They retired for a short time, and then returned with a, verdict of £50 damages for plaintiff'. BREACH OF COUTKACT. YOUNG r. VVALTBKS. This whs an action brought by Mr. "W. J. Young, on the ground that 10 tor.s of potatoes purchasod from Mr. G. Oh Walters, at £10 per tou, in good condition, and fit for Commissariat purposes, were unsound and altogether unfit ior human consumption. Mr. "Wynn appeared for plaint ill', and Mr. Merriman for defendant. ' I Mr. Wynn opened the case for the phiintiH', and | called as first witness William John Young, who deposed : Tam plaintill'in this aeiion, and reside near Otahuhu. 1 know the defendant and recollect meeting liim half-way between .Auckland and Drtiry in October last." 1 i entered into conversation about liis having entered into a contract with the Commissariat for supplying potatoes, for which he was to get 15s. per lOUlbs. Alter turther conversation I proposed to purchiu-etlic contract from him. lie said that lor the purposes of the contract he had ].unhased ten tins potatoes, lie said he had purchased them at £10 per ton. 1 gave him £100 for his bargain, and purchased the 10 1 tons from him at the price he gave for them. The potatoes were spoken of in general terms as being lit for the purposes of the Commissariat, and that he intended to deliver them to the Commissariat as a part of the supply. I think he said he had a portion of them gent home to his own place to the Queen's Bedoubt lor the purpose of supplying the hospital. I think it was for two or three hundred tons I paid £10 per ton less 2$ per cent, which heallowed me for giving cash. That was £!i7 10s. 1 paid him at Drury The potatoes were at Kattray & Matheson's store at Auckland. 1 sent a carrier for the potatoes directing him to deliver them t,o the Commissariat otlicer at Drury. Mr. Du Moulin was then in charge ol the department there. 1 was present when some of the potatoes were presented at Drury. 1 called at Drury to see if they had arrived, and Air. Du Moulin said they had, but, were very bad. 1 went to the boat and saw some of them ; they were not lit for human food. The quantity in the boat was about live tons iilteen hundred. 1 think eighteen days elapsed between the time T made the contract with Walters and tho time of my seeing the potatoes at Drury. They could not have been in the condition they were when 1 saw them at Drury hud they been sound when 1 purchased them. 1 had called a few days alter purchasing the potatoes at Kattray & Matheson's, and informed them that I had an order for the potatoes, and they said they would deliver them anywhere I might choose. One ton five hundred were sent to Onehunga for the purpose of sending them to another post ; Mr; Williams was my carrier. The seven tons were rejected by the Commissariat. The defendant's agents gave nie three tons of good potatoes for those 1 had not removed. 1 gave the Commissariat notice of tne change of the contract, and was treated by Mr. Jones as the contractor. The Commissariat supplied themselves with the seven tons and I lost therefore the £10 a ton I paid on the potatoes, and £K proiit on each ton making in all a lots of £1S on each of the seven tons. This was the first transaction I had with tho Coniniisiariat about potatoes. The transaction took placo on the 2nd October and the potatoes wm at Drury on the ISth of the same month. I know the name of the boatman who took tho potatoes from Onehunga to Drurv. It is Ogden. Cross-examined by Mr. Merriman : —Williams did not accompany the potatoes., to Drury. I saw ;>. person in the boat named Ogden. It was a few days after tho engagement with Walters that I called at Kattray and Matheson's. It was nearly three weeks after the arrangement with Walters that I saw them at Drury. 1 did not see them leave tho store in Auckland. Samuel Jury Williams deposed : —I am a commission and shipping agent residing at Onehunga. 1 know the plaintiff and recollect an engagement with Mr. Young about potatoes; about the beginning of October. Remember receiving instrurtions to go to Kattray and Matheson's for some potatoes. I sent carters for them and they got seven tons which tliuy brought to Onehunga. There they were put into store; they were commenced carting on the Sth and were shipped on the ISth. They were shipped on the 18th in the ' Florence', Ogden master. 1 saw them when they arrived at Onehunga ; they were in a very bad state and appeared to be sweating, they were not in my judgmrnt, fit to be supplied to the commissariat. It would be impossible to say how long they had been unsound; that wittld very much depend upon where they were stored. The carters were employed by mo in carting them. When they were returned bv the Commissariat they were thrown into a corner and never used. Cross-examined by Mr. Merriman: —l believe it was fine weather when tho carting took place ; I am not certain as to tho weather. The potatoes could not get wet as tarpaulins are always carried by my carts. I cant say whether there were any good potatoes amongst those returned. I don't remember telling Mr. Walters a good many of the potatoes might have been tuvud by being piek'jd; 1 did not

send to Rattray and Mafheson eaying many of the: potatoes would be all light if tiu>y were picked-. They weie in a worse condition when they were sent back from Drury than when they were sent. John Bcarcion, examined, deposed : lama carter in Onehunga, in the employ of last witncsi. I recollect carting potatoes from Kattray and Matheson's ia October. They were for Mr. Young, and were to bo shipped to Drury. I took two or three loads, a ton. and a half each load. I asked at Euttruy & Mafheson's for the potatoes for Mr. Young. I observed thePlate of the potatoes, and made a rumark, at the time. 'Ihey were in a bad and rotten state j the bagß wereactually growing together. 1 took them to Onehunga. as best 1 could. Sono that I took got wet. There was no roof on the store where they were kept. Cross-examined by Mr Merriman : I was not the first carting party. I don't recollect the day of the month.

William Shale, deposed: I am a carter residing in Onehunga. 1 was employed to cart potatoes from Rattray & Matheson's store, for delivery at Mr. Williams' store in Onehunga. I was to have taken a ton and a half, but they were so bad I could not get that quantity. The potatoes were tumbling out of the b.-igs. I delivered them at Mr. Williams' store. I don't remember the state of the weather. The potatoes did not get wet ; I always i arry a tarpaulin. I delivered them at Williams' in the same condition as 1 got them liotn Hat-tray & Matheson's P tore.

S-Jimou YVrslley, deposed : 1 am a carter, and recollect taking potatoes, early in October, from Kattrav and Matheson's store. I took two loads. 1 enquired at Kattray A: Matheson's for potatoes for Mr. Y'oung and got them. They were \ery rotten, and others were very much grmvii out of the bags. I think I took the Krst load. Tart of the first load was in tolerable condition, the other part was bad. I always cover mv load in bad weather. Kot sure whether it was wet that day. I delivered them in the condition I got them.

Crossexamiued by Mr. Merriman : I'art of them were good.

Hichard Ogdcn, deposed: I run a boat on the Manukuu. i was running tlie 'i'loreuce' in October last, and recollect carrying potatoes ironi Onehunga to Drury about (he beginning of October. I got tiie.ii i'roin Ith: "Williams', and took them to the Commissariat officer at Drury. They sinelled very bud when they were were put or. board my boat. I Wim betveen mo and three days going to Drury from One luuga. The, potatoes were not injured in the boat. 1 put some dunnage under them to keep them from bilge water. I took them back to Onehunga. They were in a very bad state when Mr. Du Moulin examined them.

John .Rattray, examined: I reside in Auckland. I kjow 31 r. Walters. 1 recollect his purchasing'a quantity of potatoes from our firm, about ten tons. Pi,rt ol them were in our front store and part in the buck stove. I'm not aware that Walters saw them before he bought them. I know of the transfer of the coutn.ct to Young. A few bags had been supplied to Walters before the transfer of the contract. The potatoes purchased by Walters uciv the same as delivered to Young, about seven tons.

Cross-examined by 31 r. Vlerriniau : On the Ist of October, when sold to Walters, they were in good marketable order. At that season of the year, one week was sullicicnt to nuke potatoes bad. Every care was taken to keep them in good condition while they were in my charge. I saw the potatoes delivered to one carter; tluy were in good condition, but not so good as when sold to Walters. 1 sold some of the ten tons to several persons, both before and after the transfer of the contract. 1 did so with Mr. Walters' permission. 31r. Young knew nothing of this. We knew we would be able to let Air. Young have his ten tons when he-wanted them.

John l'eter Du 31oulm deposed: 1 was Chief Commissariat Ollicer at Drury. I recollect early in October some potatoes condiig'to Drury in pursuance of Young's contract. There were about hve tons I should think. I'iity yards from the potatoes the stench of the potatoes was dreadful. Ti.i-y were not lit for pigs. They could not have been" in such a condition unless they had been in water. This closed the case for the plaintiff. 31r. Merrimun would consent to a verdict for plaiiitih", subject to adjustment. 1J is Honor thought the counsel would act wisely in doing so.

31r. Wynn would consent to this, if a moderate oiler were made.

3lessrs. AYyim and Jlerriman retired for a few moments; having relumed, Mr. Wynn said the case must go to the jury, 3lr. Meirimaii having declined to make a suitable oiler.

Mr. Mailman then proceeded to open the case for the defence, mid contended that deiendant was entitled to a verdict, the potatoes being damaged having resulted entirely lrom the negligence of plaintiff. He called upon — (jeorgo (jouid Walters, who deposed : lam defendant in this action. I purchased potatoes lrom riattray ami Mathes<ju's. They were in a good condition. There, were ten tons ;" there might have been more or lees than that quantity at the Btore. This was on the 3Uth September. I took two bags and sent them by my own cart to the Queen's ltV-doubt. They were for the hospital there, and wele not rejected. 1 examined the bulk of the potatoes. Had they received ordinary care, and been taken away within a week lrom the time ot purchase, they would have been in a goe.d condition. They were properly stored lor shipping when 1 saw them. On the 2nd October 1 translerrcd my contract to Mr. Yomig, and sold him the potatoes at the samo time. He paid me the same as I had given for them, and I gavo him an order to receive them. I did not see Young for three or four weeks after. He wrote to me about the 23rd. I never saw the potatoes alter 1 sold them. I gave no order to any one else to get potatoes. The two bags I received were not a portion of the ten tons, but out of the same heap. Of tho bulk I should suppose there were lrom 12 to 14 tons. 1 never authorised Mr. Kattray to sell any portion of the ten tons; 1 could not do it, they were not mine.

Benjamin Giluiore deposed: I am clerk to Rattray aiid Mathesou. I sold ten tons of potatoes to Mr. "Walters. They were marketable potatoes. Mr. "Walters looked at them. Mr. Waiters had two bags which he paid tor separately. I delivered nearly seven tons to Young's carters. .After they had got marly seven tons, 1 lefused to deliver any more, as we had no more to give them. They were not very goc d when delivered to the carters. They were in a marketable state when Walters purchased them, fit to be taken to Drury by the ordinary method of carnage. Fart of them were marketable when the carters took them, 'lhe weather was showery when they were taken away. 1 did not see ihem covered. I saw them uncovered while it was ra ning. I sold some potatoes to Mr. Motion a week after "Walters had purchased them. Motion had five bags; they were taken promiscuously from the same bulk as those Walters purchased.

Cross-examined by Mr. Wynn : One day in particular two loads went past the stoie uncovered. 1 hoy were not uncovered in the store.; there was no root on the store, but the corrugated iron and tarpaulin covered the potatoes.

Mr. liattray readied : I saw some of the carters taking away the potatoes. My attention was drawn - to the potatoes being taken away in an uncovered state during a heavy shower. For a space of 200 or 300 yards they were uncovered. It was sufficient to damage potatoes at that season of the year.

Cross-examined by Mr. "Wynn : We "did not sell three tons to unv one else.

William Motion deposed : I bought five bags of potatoes from Mr. Kattray about the 6th October. Liny were very good. 1 kept them about a fortnight or three weeks. Some I ate, some others I planted. By the jury : The potatoes were purchased prior to the potatoes being picked.

Mr. Merriman and Mr. Wynn then addressed the jury, Mr. Merriman claiming the verdict for his client; and Mr. Wynn for the piaintitf, and thought it fair that £10 should be awarded as the price of the potatoes, and another £8 per ton to cover the expense, and the profit he had lost on them. His Honor summed up the ease at some length. It' it were proved that all the potatoes were damaged when delivered to the carters, plaintiti would be entitled to the £ 12b pounds ; if it be proved that a part of the potatoes were good, the plaintiff should not have had them carted away with the bad ones, this causing the spoiling of the lot; in the latter case it was impossible for the Court to say what amount of damage should be assessed. Hishouorthenreferred to the leading portion of the evidence and left the ease in the hands of the jury.

The jury retired at 7 o'clock. After an absence of fifteen minutes they returned with a verdict for plaintiff; damages £60.

His Honor before dismissing the jury felt it hia duty to thank the authorities tor providing a better place ti.au that, which he had the misfortune to conduct the criminal business. He hoped his Honorthe Chief Justice would soon be able to resume hia functions, and dismissed the jury, thanking them fo# their attendance;