LAW AND POLICE.

New Zealand Herald, Volume XVI, Issue 5498, 1 July 1879, Page 6

LAW AND POLICE.

DISTRICT COURT.— Wohday. tßetore F. D. Ftnton,Eeq,, Diitclet Judge. AiTftdK-urned sitting Court wm held this iabrning, and th#:sfollowing b: : aess iV7 t>a disposed 'of:— .?,.. j'x', , R.,G. Dyer v. Nkox Thompson : Claim, ■jEIOO.' ; . JtrbaMEurl— His Honor gave judgment iiT'this "oasV , concluded-:at ttte 1^ at sitting after five days' hearing. The claim waa made for compensation in damages, because of tho destruction by fire of a valuable bush belonging to the plaintiff, the fire having been raised.on the adjoining land by the defendant. The particulars of of the case were duly reported at the time of the hearing. Hie Honor said he had considered the whole of th» evidence, and the impression made on his mind by the hearing remained precisely the same as before. The plaintiffs evidence sought to make out that the fire lighted by the defendant communicated with a certain rata tree, and so on to the bnah belonging to the plaintiff. But he (the learned Judge) had not been able through the evidence to connect the fire with that rata tree. There appeared, therefore, to be a. gap in the evidence fatal to the. plaintiffs case. It was not for the Court to supply the links missing in a chain of evidence and to give a judgment upon probabilities, because there was a suspicion agiinet a certain individual. It might be a hardship that a mfji should have a valuable property destroyed by the wilfulness or negligence of another. But it was an equally great hardship to fix responsibility for such destruction upon a person charged without the completest evidence. The Court was therefore of opinion that the plaintiff had not made out his case. Judgment for defendant, costs £16 12s.

The Gkeat Bitll-stag Cash—Upon the case Te Wheoro and Others v. Hawke being called—"" for a new trial by Mr. Tyler for the plaintiffs—Mr. Hesketh said that before the application ehould be made, he desired to make a request in relation to it. He felt bound to use the word "request," and not "application" or "objection." The request was, that the learned Judge should order the application to stand over until his a accessor was appointed. He made the request because it was generally understood / to be the last day oa which his Honor would' sit in the District Court, having sent in his resignation" to the Government. There might be no ground for making the request. Hie Honor: I am " entirely with yon, Mr. Hesketh. I will grant your request with gre&t; willingness, unless it be shewn there is some Objection, or that I have no power to do is. But, I should like .to do it. Mr. Hesketh: It was well known that his Honor had -expressed a desire not to try the case. .Hβ wished to be relieved of the trial,; it was a struggle with him to get rid of sitting as judge..; His Honor: I certainly had such a feeling, but I was told that there was no alternative; that I had no power to decline "to -hear the cause. Mr. Hesketh: To . me, your Honor expressed such a wish at Mercer. His Honor: ' I 'was very D-.uoh in earnest in what I said about it. If I had any discretion in the matter I would not have tried it at all. ~Mr. Hesketh : It was also a fact that the learned Judge was a suitor against Hawke in respect to certain righta. Hie Honor: I abandoned that when I found 1 had to try this case. Mr. HeakethtAU 1 can say your Honor is, that your sr-liciti v, Mr. Dufaur, came to me on the very etesvag the verdiot was given, and after the verdict, and asked me whether I, as solicitor for H&wke, was prepared to settle that matter. Mr. Heaketh: I am not aware that your Honor instructed your solicitor to abandon the suit against Hawke. So far as I know, Buch. instructions have not been given.' His Honor : Mr. Dufaur had no authority from me to go to yon and ask you to settle. I believe the only thing Mr. Dufaur ever did for me was to write a letter. That, however, is a very old affair. At all events,. 1 determined to abandon those proceedings when I knew I had to try this case. And there was no alternative left to mo. I would not have tried the case if I could have helped it, and I will be very glad to grant your request, Mr. Heskoth, if it be possible. Mr. Hesketh : There is no doubt your Honor ha« made uee of language which shewed that your mind was not wholly free from some feeling. When my learned friend asked for the Court to stay proceedings, you intimated that "you might have to direot proceedings for perjury." That, taken in oonneotion with what you had stated before the case was tried, and this, and coupled with the summing up to the jury, left upon me the impression that your Honor felt that it wenld have been desirable if the matter had been adjudicated upon by some other person. Your Honor made no concealment upon the subject. But what I now say is, that having used these expressions, having employed the language that fell from you on previous occasions, admitting that you were desirous to be relieved of the duty of hearing the case ; it being, in point of fact, with euch feelings iu your mind, almost a struggle on your part to do j'ustioe, I now ask you to leave this application to be heard by your succossor, and tbat proceedings shall be stayed until that is done. In making this statement I have considered two things—(l) My paramount duty to my client; (2) my duty to thii Court. I am free to admit that I could not urge these matters as an objection to you hearing this application, for there is no pecuniary interest on your part. But, at the same time it appears to me you have a very strong personal interest. His Honor: I think you are wrong in thinking so. Mr. Heskoth: It would be more correct to have said " personal feeliDg," not pecuniary interest. I think your Honor struggled hard to rid yourself of any such bias, but human nature is too strong in suoh cases. His Honor : If you felt this you ought to have expressed your conviction before. I can only say now as I have said all along, that I would have been very glad if there had been another judge to try the case. But I could not help myself. I was a part of the machinery to administer justice in the country, and I could not havo left the Court and said that I would not hear a case—there being no one else to hear it. I am ready to grant your request if there be no objection to it, and I have the power. A statement such as is now made is very disagreeable. Mr. Hesketh : I would ask you to grant the request, notwithstanding any objection that may be made, npon the principle fci:at, as another judge would soon succeed you, he would be altogether free from any suspicion of personal feeling. His Honor: But the superior Conrt could compel me to hear the application. Mr. Hesketh: Even so, your Honor, I would ask you to leave this application for your successor. Mr. Tyler: I am surprised at the course my learned friend has taken. His Honor : I think, in consideration of the position in which I am placed, Mr. Tyler, you ought nob to object. Mr. Tyler : But I must object, your Honor. With me, as with my learned friend, my duty to my client is paramount. He comes here as a suitor in this Court to make an application. He has a tight to be heard. His Honor : But he will not bo injured in any way by the postponement of the application. Mr. Tyler: I am of opinion your Honor that ha wilL I take it you have no power to refuse to hear him, I do not believe that the effect of the statement of your Honor's mind (even if it has been rightly described, and I think it has not been so) was to prejudice the defendant, on the contrary, it was highly favourable to him. If it was a struggle in your Honor's mind—as my learned friend states—l feel sure you did "as other judges would do, rather lean to

fte opposite side oE your ° w ° £ tme they mightjiave been. I think that in bum a condition o£ mind; if it existed, the defendant .himself must have had tne greatest advantage. I must ask your Honor that my client shall be heard. Hie Honor : I should like .to take some" opinion; as «o what I should do: I hope for amonient, whil<J I consult a gentleman, for whose opinion Sire aH'iave'muclf respect. [Mrv'Brookfield had Jusli enteredthe Court. J I should be very willing to grant the request, and I will do so il , I have the power. The learned Judge' retired from the Bench, and returned after the lapse. of a short period. His Honor : I find that I have no power;' there is nothing left me but to hear the application. Mr. Tyler then made the formal application for a new trial on the three following grounds :—(1) That tho verdict was against the weight of evidence; (2) that the verdict was contrary to evidence and the direction of the Judge; (3) that the verdict was perverse. Mr. Hesketh opposed the application, on the ground that the Court would not be warranted in grant- : ing a new trial on such grounds. His Honor said he would give his decision at the next sitting of the Court.