SUPREME COURT.—CIVIL SITTINGS.

New Zealand Herald, Volume II, Issue 502, 22 June 1865, Page 6

SUPREME COURT.—CIVIL SITTINGS.

"WEDNESDAY, JUNE 21. <rteforo Sir CI. A. AnN'Er. Chief Justice, and a Common Jury) His Bonos took his seat on the bench at ton o clock. EDGECOMHE V. EDGECOMBE. Tliis -was an action for slander, the damages wero laid at £2000. The parties are farmers at "Wninu near Wtihiku. The action arose ont oJ'sorae squabble and a number of words used in the Duko of Marlborough Hotel, Queen-street. The words used wero admitted at tho close of the c»«o, and 110 evidence was called to rebut the plaintiff's case. The pirtieß have been exceedingly bad frien'S owinc to one party purchasing a certain farm for which the other was negoeiating the purchase of the same property. Mr. Weston appeared for the plaintiff. Mr- Brookfield for the defendant Richard Clarke examined by Mr. "Weston, said : That he was in Queen-street on the 4th of March, with the defendant. Thero were six or eight people in a room of the Duke of Marlborough Hotel, Queen-street. Defendant and himself had just como down from the country. Lived at Waiau near Waiuku. The plaintiff was in the room of tho Hotel at tho table. The defendant and himself down opposite. After being seated about ten minutes most of the people left the room. The plaintill", defendant, a. stranger and myself remained. Ifenry Edgecombe said to William Vdgccombe, " I font you a letter tho other day complaining about the cattle." Witness could not give all the words. He said: "I do not intend to take proceedings this time, but I would like you to go and see the damapre they have done yourself. But if it occurs acain " The defendant said, "You are a bad man; I shall have nothing to do with Ton." Each of the parties wore rather ansrv. "William Tldgecombo said when Henry came to the cnlonv, he (William) had given Henry a home, and that in return Henry had robbed him of cooking utensils and tools. The words " rob" and " steal" j were used. He charged tho plaintiff with killing his bullocks. His Honor insisted on witness arivinp tho oxaet words used by the parties, not his own interpretation of them. The witness repeated the wo T ds containing tho slanderous matter which formed the subject of the action. The action arose out of the interpretation of these words, which in the course of cross examination were wrested into almost every conceivable meaning. Tho witness at last said that there were a great deal of ansrry words. He could only recollect the "heavy" words, such ns " liar," " thief," " prisr." and sknilnr amenities. The witness added that "William Edgecombe had told him in September la=t that Henry "Fcl seeombe had killed some of his cattle. Witness had bod some 200 head of cattle running in the neighbourhood of the Waiau, near the Waiuku. Henry Kdgecombe had taken charge of witness's cattle. When witness first came to the colony, Wm. Edgecombe came to tho hotel where witness was staying, and in the course of conversation, gave the plaintiff a vile character, called him a "London pri<7," " swell mobsman," &e. Defendant advised witness to have nothing to do with him, called the plaintiff a common thief and liar, and many other expressions of a like kind. Cress-examined by Mr. Brookfield : said he could not recollect that defendant had said to plaiutifi' that he would have nothing to do with him, or to '■ shut up."' The witness went through the whole of the polite conversation a second time. There was a good deal of (|iinm'llirg. Defendant again accused the witness of killing his sheep, and added that he had four witnesses to prove it. Mr. John De Yaynes j'.arnsley said he lived at Remuera. and that the plaintiff had purchased some land of him, which the defendant was about to buy. iJn several occasions the defendant said that plaintiff had role ed him of tools. Murdoch McKay also described the transaction at the Duke of Marlborough Hotel, and reiterated the conversation Jilready deposed to. Wilii.tw Elinton, examined, said the defendant in the year 1 Sf>4 bad some conversation with witness about Kemy Edgecombe. Wm. Edgecombe cautioned him against having anything to do with the plaintiff. Me said pl-iintiff was a bad fellow—nothing better than a London swindler. Wm. Edgecombe hired me as his oveiseer, and he told me tho day after I got down to have nothing to do with Henry Edgecombe — tr-.at plaintiff had bought a farm out of his hands, that he Wm. would see Mr. Barnsley an 1 have the fa(m frum him by some means or another. Th.t- plaintill" alleged that he had money in tw hanks, but couid not remember the name of one of the banks. 'J he defendant said this proved plaintiff was not an honest man, because if he had money in a bank, he would be sure to remember the name of it." Cro.S;-':xmiir.ed by Mr. Brookfield : I have gone by the n ui:o of Eliuiou for the last seven years. My real name is "William Eli/iton Mathias Houlton. T go by ilm name of Elinton. I took mv passages in the name of Elinton. I had no particular reason for doing so. I am known by the name of Elinton. Thousands of pounds have passed through inv hands to Mr, Buckl tnd, who nlwaj 3 knew me )>y tfco naire of EJi ;i ion. I came from Norfolk in England. On re-examination the witness spoke of several unsettled disputes with the defendant. The reason he had taken the name of Elinton was that an uncle had left him some money, and he was determined to t:ker his uncle's name, as he had xeeeived some good from that relation. insolvency. j At this stage of the proceedings his Honor adjourned for an hour to hear petitions in insolvency of persons in prison, and to settle days for adjourned an<i final hearings. HE W. .1. MABsDEN. Mr. Brook-field asked for renewal of protection. Mr. "Weston asked that Mr. G. S. Graham should be appointed a trustee. Mr. Beveridge agreed to the proposal. The Court made an order to execute tho assignment accordingly. Protection was granted to the 31st August. UK 00LTN MACDONALD. Mr. W ynn applied for this petitioner's discharge from private debts. There was no opposition. The Court granted the application. I:E GEORGE OAr.I.AI'GIIEIi. Mr. "VVynn applied for the petitioner's final discharge. There was no opposition, nor any estate. Final discharge granted. HE SiNDI'ORI) 710 WE. Mr. Beveridge, on behalf of the petitioner, asked for a final discharge. Discharge granted upon the execution of the usual assignment to Mr. Vernon. 31E WILLIAM STEPHENSON. Mr. Weston applied for the insolvent's final discharge. Mr. Brookfield opposed. The Court declined to grant final discharge, but enlarged the protection till the :<lst of August. The Court renewed the case which had been adjourned. Henry Edgecombe: I am plaintiff in this action. I arrived in Now* Zealand, in January, 1864. I went to see the defendant at the Great Northern Hotel, i n the Great iS'orth Bead. He kept that hotel. It was on a bunday. I went to see if the defendant was .-..niieeted with my f-nnily. He was not "Wo talked al out. house rent. Defendant, said ho had a house at Mount Albert, to which I was quite welcome. I was to live in it with my 55.119, who were aged 13, Hi, and J?" v, ' ure to look (liter his cattle, and I was to give jp.m t,d. a week as an acknowledgement. "We were house iraui Eebruary 7th, to tho latter end ol I'i'il. The defendant meanwhile offered me fiu. acres of land at the Waiau. I saw it, and refused to purchaso it. I subsequently puichased 200 acres of Vr. Barnsley. I left the defendant's ho,use. Defendant had cattle at the Waiiu adjoining m"ne. His cattle trespassed upon rry Hue. I complained to the defendant's oveiseei, and requests! him ti remove them t) the redoubt. I had a conversation with the d-dendimt on the subject. J saw him at the Marlboiough Hotel, Auckland,on the 4 th of March.- I entered the room first, an I.'. • ■. ifcCoy v?as with me. Defendant, and Mr. Claii.e. afterwards came into the room. The witness here detailed the squabble at the Duke of Marlborough, of which the details are given above In cross-examination tho plaintiff stated that 110 had notice to quit the house at Mount Albert; that the reason was tho buying the land from Mr. Barnsley, which the defendant wanted to purchase. Plaintiff stated that he had only met tho defendant once. Had usked Mr. Hare whether 110 had lost any sheep. Mr. Hare thought it bolonged to Mr. Hargreayes.

Plaintiff saw the defendant kill one which "wa9 not hie. The defendant summoned plaintiff for threatening language. Tho summons wm dismissed, l'luintift lodged an information against defendant for perjury The defendant was brouxht. from Waiuku U> hind, 'llie summons wie allowed to stand over, i'lie defendant lias brought an action against- witness tor false imprisonment. In re-examination the plaintiff said that the case was not heard before tho magistrates, ns he (plaintiff) had omitted to take the summons with him. Mr. Brookfield addiessed the jury, but tendered no evidence. His Honor having summed up, tho jury retired. The jury were absent hult'-a:i hour, when they returned into Court and said they could not agree. His Honor informed them that this was one cf that kind of actions in which tliore was no standard for liiCHsuring damages. Mo proposed that they should again retire and consider their verdict, with the \iew to the adjustment of their differcnc.-s. The jury retired again, and after the lapse of lialt-an-hour, cauio into Court with a verdict for the plaintiff, damages £20. IIAOJN V. I'OCIIItANE. This was an action nrising under somewhat peculiar circumstances. The plaintiff had purchased four allotments of land at the defendant's auction mart, 011 the loth of April, tSG4. frome time alter tho purchase it was discovered that one oi tho allotments had been previously leased. Ihe plaintiff had however paid a deposit of £120 on the purchase of the four allotments. He went to the. defendant, who offered to return £22, the deposit 011 the allotment which had been sold by mistake. The land had belonged to Mr. Bussell, solicitor. The plaintiff'declined to give up his claim to the land. Eventually he consented to accept the deposit on the four allotments, which Mr. Cochrane refused to give. 'X'lie question for the jury was, was thero a contract, was thero a separate contract—were the lots sold separately. It \yas left to the jury to give a vordict upon tho facts, the points of lav.- arising out of the construction of the conditions of sale being reserved. Sir. Wynn appeared for the plaintiff". Mr. "Whiraker was counsel for the defendant. Mr. Cochrane .xaminol by Mr. Wynn: I remember in April, 1864, putting up lor sale several allotments at my auction mart. Before the land was sold there were conditions of sale read out. Mr. Bacon, tho plaintiff, bid for certain lets under those conditions. They wero lots 11 and I' 2of section No. 1, Newmarket. Also section No. 2 lot 1 and section No. 3 lot 7. This is the , receipt (receipt produced). This is a receipt for £120 for land bought at Newmarket Received the sum £120, per cheque, from Mr. B:;con, in payment of lot", of land at js'ewmarkt. 1 hold a bill of p iiticulars of land sold to Mr. Bacon. It is dated the same day as sold. It shows tho amount of deposit on the several purchases and the balance due. My clerk, I believe, gave a copy of these particular. I did not give him P. copy. Each purchaser signs the book. Mr. Bacon signed the book when the sale was concluded. I received by cheque I the sum of iCliO. I put the cheque in tho bank of Xew Zealand to my own account. The amount j was paid to Mr- iiussell, less £22. I think that was , before the 2tith of July. It waa not after that date, ( lam quite certain on that point. I saw Bacon about a week alter the sale. 1 saw him about this trim - , suction. I told him that I had sold him a wrong lot. [ That one of the lots had been leased, and that there was a house upon-it. It might be eight, nine, or ten days, but 1 think it was about a week. lam quite sure it was not six weeks. Z think it, was to Mr. Bacon, and not to his solicitor that I said I had made j. a mistake. Bacon said that if a third nart-y were injured he would give it up, but if the property j belonged to Mr. Kussi'd he would not give it up on any account. I don't recollect, whether it was to Mr; Bacon or to his solicitor. 1 think it was to Mr. Bacon. It was a very short time alter the sale. 1 sold tho land on the 13th of April. I saw Mr. Bacon and offered him the deposit buck on the 20th j. of July. I will not swear that six weeks might not have elapsed before I told Mr. Bacon. I do not j. think it was three weelc-J. I told him he could not liavo No. 7, and I offered hi:n the deposit back, viz., twenty-two sovereigns. Mr. Bacon came clown within the month prescribed by the conditions of sale. Ho came and said he was purchaser l'or cash. I There was a conversation about the mistake. Xdo not know whether it was 0:1 that occasion that I refeired the plaintiff' for particulars of title to Messrs. j Wh.taker and Kussell. I found out the mistake in ; Russell's cfliee. I cannot rtco.lect whether it was Mr. B tcon or his solicitor made 1 lie mistake. Tliev ofieied me 110 deed for w'lat Mr. itacon said he bail j purchased. I made repeated endeavours to settle thii matter with Mr. Bacon. He has offend to lake back tho £l.liO, with 10 per cent." added. . I offered him tbe £22. I cannot say !• whethor he offered this more ihan once. I referred him to Sir. Kusseil. 1 know Mr. liigg, the nuctioneer. , I employed iiim as an agent t ' seulethis matter wiih Mr. Bacon. I asked Mr. Bigg to persmuie tho plaintill' to give the matUr up, as it was a mere bagatelle, and merely an annoyance to me personally. I wanted 1 themattersettUdiisoiicfriend wouldsettl.-twithauother, m i-liout coming into Court and giving so much I trouble to his lienor liere and vourself. There was a map of tie; allotment, a>.d the lot number seven was on the map. There were a number of allotments which had been sold marked 011 the map " sold." A long discus-ion arose as to tho issues which should be submitted to the .jury. Examination resumed: f demanded a settlement of this matter frequently. I told Mr. Bacon that if 110 did not settle the balance the deposit would be forfeited. Mr. Whitakcr explained 111 answer to a question by the Court, tlmt ;he conditions of sale were that, if purchasers did not do rcrtain things within a month they were to be deemed purchasers for cash payable 011 demand. Mr. Whitakcr, before cross-examining, informed the Court that he would only question Mr. Cochrane I as to the following issues upon which counsel had agreed. 1-irstl}-, Whether there was a mistake? secondly, Whether there was a tender ? and thirdly, Whether there had been any mortgage executed ? Mr. Cochrane, cross-examined by Mr. Whitakcr: I had no authority to put up the lot 2<o 7. I was agent for Mr. Thomas Butseli at the sale of this land It was put up by u mistake. Mr. Russell authorised mo to put up certain allotments without housus 011 them. This lot had a house on it. i t was asked whether I was selling the allotments with houses on. I said I was not. I tendeied money to Mr. Bacon, on the 26th July, 22 sovereigns. That represented the deposit on lot No 7. Tho lot fetched £Gfi. The deposit was one third of that amount. 1 never gave him the promissory notes and ho never executed a mortgage. Re-examined by Mr. Wynn : I had the £22 sinen the 33th of April. I offered no interest upon it. We had the promissory notes r?ady for Mr. Bacon, and he suid he would buy for ca 11. '1 he notes wero prepared alter the sale. I cannot say how long, but it was within (he month. Mr. Wynn : Now, Mr. Cochrane, why keep one half an hour without, an answer. Mr. Cochrane : Oh 110, Mr. Wynn, not at all. You promised me a good badgering to-day, and I'll oblige you. There was 110 mortgage executed because there was no conveyance. M.r. Thomas Russell, examined by Mr. Wvnn : I am aware that Mr. Bacon became a purchaser of some of the.-e lots A deed of conveyance was tendered to me for the particular allotment, T refused to execute it. I have no doubt the deed produced is the one presented to me. A sum of money was ottered to mo at the same time. I hud nut authorised tho property in question to be sold, f cannot recollect when the deed was presented, it was some time a-'.out the end of last year 1 thin!;. It; was about October. Mv. Baeon, examined by Ah'. Wynn : I recollect attending Mr. Cochraue's sale on the E!th of April. I was declared tho purchuser of four allotments. I waited upon Mr. Cochrane within tho month. I asked for particulars of the title. I told him I would pay cash. Mr. Cochrane told me he liud not. the particulars ; that I must go to Mr. Russell's office. I instructed my solicitor, Mr. Maiston. There was nothing said by Air. Cochrane about, the mistake. Mr. itigg about a week or a fortnight alter calling upon .Mr. Cochrane, came to me and"told nit that there had been a mistake. Mr. Cochrane came to my house. I bad said that I would take the deposit ottered by Mr. Cochrane it a third party wou'd bo injured, but I would not up to Mr. Russell. Mr. Cochrane came again and asked whether I wanted any money, and offered me £20 to settle the difference. I refused tho £20. Mr. Cochrane said my offer was liberal, to take deposit b.ick, and said he would see Mr. Russell. I called on Mr. Cochrane a dozen times to try and settle the whole question." Mr. Cochrane never oflered me any promissory notes for signature. I had the money" ready, and could have paid it at any moment.

Cross-examined by Mr. Whitaker: Mr. Cochrane when my house sat down# had a gluss of ale. T never saw anv money. I would not have taken £50 then, I had had too much trouble about it. Mr. James Vann Marstnn, n solicitor residing i i , Auckland, said that bo bad been, instructed-.by tho plaintiff to investigate a title to land. Mr. Baeon brought a receipt fiom Mr. Coehrano for money which lie had paid to tho defendant. I took immediate steps to investigate tho title. Mr. Rigg camo to me. He said thero was some mistake about, the matter, and that Mr. Cochrane wanted to see mo. Mr. Cochrane asked me to see Mr. Bacon, and try and arrange the matter. Mr. Wynn and Mr. Whitakcr agreed to take a verdict fo'r the plaintiff for £200, subject to adjustment by the Court upon special case to be submitted for the decision of the Court. The jury found tho tender had been made by tho defendant of £22. CA.VSES WITHDRAWN. At tho rising of the Court fit was announced that in tho following causes tho records were withdrawn. John Bolous v. Christopher Maxwell. Henry Lew-son Brewer v. Robert James Creighton, for the present. ]•;. B. Grey v. Heron, David and Co. Thero is ' only one caus3 left for a special jury, a ease in which ' Messrs. Morrin and Co. are defendants. This is sot down for hearing on Friday at, 10 o'clock, to which period the sittings are adjourned.