Law Intelligence.

New Zealand Mail, Issue 214, 16 October 1875, Page 7

Law Intelligence.

SUPREME COURT. CRIMINAL SITTINGS. Friday, October 8. (Before his Honor Chief Justice Prendergast and a jury of twelve.) The Court sat at ten o’clock. PERJURY. The case against Eliza Smith was proceeded with. Mr. Buckley addressed the jury for the defence, and said he should call before them witnesses who would prove the prisoner’s innocence, and show that the case for the prosecution was of such a nature that lie need not characterise it. He sketched the evidence he was likely to adduce for the defence, and then called a number of witnesses, the examination of whom lasted till a quarter-past three o clock, when the learned counsel commenced to sum up the whole case. He said the present case had arisen out of the criticisms indulged in by a portion of the Press after the conclusion of. Cameron’s case—criticism which not only animadverted upon the verdict, but upon the conduct of the Court in the matter of sentence. This ease was practically another trial of Cameron for rape, for it was the case for the prosecution, or attempted to be proved, that the offence had never been committed. He then proceeded to review the evidence given, first glancing at that of Mr. Jeffs. He asserted that Mr. Jeffs and Mrs. Cameron had for weeks together concocted this case ; that the evidence of the former was contradicted on every point by other witnesses, and was so utterly contemptible that it could not be credited for a moment. As for the evidence of the boys, such a blackguard and disgusting story had never been previously put before a court, and the details of their testimony were so irrecoucilcable that it was clear the story was devoid of truth. The learned counsel spoke for an hour and a half, and at the conclusion of his speech the crowd in court began to loudly applaud him, but the police at once put a stop to the unseemly proceeding.

Mr. Allan replied on the whole case, and contended that he had completely proved that perjury had been committed. It might be that there had been discrepancies, that was to be expected in cases like these, but in the main the story had been thoroughly sustained. Mr. J effs had been doing that which was undoubtedly right, and instead of being censured he should have been commended. His anxiety had been to have justice done, and the reason he gave for the course he had taken was perfectly natural. Mrs. Cameron had been his servant; had been married from his house; therefore he desired to see justice done her. In concluding his address, the learned gentleman said he thought the evidence supported the indictment, and he trusted the jury would convict the prisoner. At 5.20 his Honor commenced to charge the jury, and continued his address for five hours. He first explained the law on the subject, and then gave the leading points of the evidence as it bore upon the two assignments of perjury. These he followed by an exhaustive and searching analysis of the testimony of each witness, showing that the evidence for the prosecution was one continuous stream of contradiction. With reference to the evidence of Mr. Jeffs, his Honor said it was unsatisfactory, and whether from design or inadvertence, he had given evidence at variance with facts. Looking at the whole of the evidence, his Honor put it to the jury whether they did not consider Mr. Jeffs had been guilty of rash, and improper conduct in going to publichouses at Nghauranga “shouting,” talking of Cameron’s heavy sentence, and inducing people to believe that he wanted to get evidence for a prosecution of the girl, and the liberation of the thrice-convicted convict, or rather a convict who was undergoing his fourth sentence. The jury would have their opinions as to whether Mr. Jeffs had merely been the tool of Mrs. Cameron or whether he had gone further than that.

At 9.20 the jury retired, and after an absence of three-quarters of an hour rer.urned into court, acquitting prisoner.

The boys Price and August having been brought into court by direction of the Judge, His Honor said : Price and August, the jury in this case have disbelieved you, and no one who has listened to the evidence given can have arrived at any other conclusion than that you have committed wilful and corrupt perjury. But taking into consideration your age, and taking into consideration what I believe to be the fact, that you have been instigated to this wickedness by persons whom perhaps the law cannot reach, I don’t consider it my duty to commit you for trial, as I have the power to do. You will leave this Court disgraced for life, for no one will ever believe you, even on your oaths. Take that for your punishment, and let it work some reformation in you. I pray God that by some means or other your minds and morals may be the better for what has happened here. You may go. The boys left the court, and Mr. Gooden having been called in, His Honor said : Mr. Gooden, I believe you are a weak and foolish person who have been operated upon by a designing, clover woman Fanny Cameron. Many falsehoods you have told, whether intentionally or not I cannot tell, but one falsehood was certainly wilful, that was the falsehood with reference to what took place upstairs, and within the precincts of this court. [His Honor’s remarks had reference to witness’s denial that Mrs. Cameron had said after leaving the grand jury room, “Why the d 1 didn’t you tell the story I told you.” A remark which Mr. Sam Howard proved to have been made.] I shall not do what I have the power to do commit you for trial for perjury—but I leave it to the Crown to take into consideration what steps shall be taken with regard to you,

your nephew, Collingwood Gooden, Fanny Cameron, and the convict Cameron. I say I shall not exercise the power I have, and commit the whole of you for trial, but will leave it to the Crown to take what steps the administration of justice and the preservation of the purity of justice requires. You may go, The witness then left the Court. His Honor then said : I have one more observation to make in the presence of the jury. I have every reason to believe that these persons who have been instigated to come and give evidence have been partly induced by the trifling error in a date this poor gjhl made in giving evidence on a former occawon ; but I very much fear that the foolish observations of some ignorant writer in the Press have had a great deal to do with this prosecution. The sentence passed upon James Cameron, convicted of rape, was evidently far too light. Of course, I am not here to enter into a defence of that sentence, but instead of the sentence being too heavy it was far too light. The Court then rose. CIVIL SITTINGS. Monday, October 11. (Before his Honor the Chief J ustice, without a jury-) TODD V. CAMPBELL. This was an action brought by Andrew Todd, of Wanganui, against William Campbell, master of the ship Dallam Tower, to recover £lO7 for non-delivery of goods in terms of bill of lading. Mr. Gordon Allan appeared for plaintiff, and Mr. Travers for the defendant. The learned counsel opened the case by reading the declaration, pleas, &c., and stated that forty-six cases of glass had been shipped by the Dallam Tower, on 12th December last. As appeared on bill of lading, the mark was A.T.W., and they were numbered from 472 to 517 ; a further evidence that they had been so marked was to be found in the fact that in the body of the bill of lading it was written, “ Contents rattle, numbers 506, 480, 484, 490, 500, 505.” When the ship arrived in Wellington it was found that there were no cases so marked, and plaintiff therefore claimed £lO7 damages for non-delivery and loss of profit owing to non-sale of the goods. Andrew Todd proved that he was a merchant, carrying on business as a merchant at Wanganui, and had an agent in London named Bernard Lewis. In the course of last year ordered some glass from Lewis, and subsequently received a bill of lading from him [bill of lading put in], as well as a general statement with foreign invoice [both put in]. Had to pay £BS for goods, less £l2 6s. 6d. for some other goods. £72 13s. 6d. is the wholesale price in London ; freight would be £6 9s. 9d. The articles specified hi the bill of lading had not been received. A portion had been sold to arrive. The market price in Wellington is an advance of £IOO to £l5O per cent, upon the foreign invoice. Cross-examined : I glanced at some cases on the wharf, pointed out to me by my agent, Mr. Young. He said there were several cases landed in very bad order and not having numbers corresponding with the bill of lading. I am not aware that there was a fall in the price of glass in April, the time the goods were landed. It was foreign glass, and I had on several previous occasions imported similar glass from Mr. Lewis. The foreign invoice gives a description and the sizes of the glass. I did not take any step to ascertain whether the glass on the wharf corresponded with the invoice; my complaint is absence of the numbers 472 to 567. I do not know that the mark A.T.W. was upon all the cases. I have not taken any steps to ascertain whether they were the cases shipped. I was told that the glass was in bad order. I did not ascertain whether the glass contained in the cases corresponded with that mentioned in the invoice, because I leave all my business to my agent. It is the absence of numbers, and not the nature of the shipment, that I complain of. Thomas Young, partner in the firm of T. and W. Young, and acting agent for plaintiff, deposed : Early in the year, about February, I received a bill of lading and intimation of the landing of the goods. Enquired about the goods in the beginning of April, and found them on the wharf ; at least goods on the wharf were pointed out to me by the wdiarfinger as being the goods after which I was enquiring, viz., those marked A.T.W. I examined them, and found all wooden cases, but they did not correspond with the bill of lading. I could find no numbers. There were numbers upon them, but' they did not correspond with the numbers given in the bill of lading. The condition was bad, fourteen or fifteen were crushed and more or less broken, with lids wanting, &c.; the others were not in bad order. I sent my clerk to examine them more minutely, and upon receiving his report I wrote to Mr. Todd; and on receiving an answer from him made a claim for £lO7 for non-delivery. I refused to accept the goods. The claim has not been paid. To Mr. Travers : I presented the bill of lading to Johnston and Co., paid freight, and got. an order. [Order put in.] It is the ordinary form of order ; the instruction to the person to whom the order is issued is to get the goods and ship them per Manawatu, a vessel trading to Wanganui. I sent the order to the wharfinger, and empowered him as my agent to receive and ship the goods. I believe ho did receive the goods. I examined the goods after he had received them. I made a minute of the numbers on the boxes, and a description of the boxes; in some instances the numbers and the sizes marked on the cases corresponded with the foreign invoice. I did not examine all. All we examined did correspond. It was in consequence of the general bad condition of the shipment, and not merely the absence of numbers, that I rejected the shipment. If they had been in good order I would not have hesitated to take them merely in consequence of the absence of numbers. The general appearance of the cases led me to believe that it was foreign glass. To Mr. Allan : The goods are first landed, and then we get the order, which is addressed

to the wharfinger ; we take the order to the wharfinger, and tell him what to do with the goods. I found the goods on the wharf. I told the wharfinger I would not accept them, and then saw the captain and Johnston and Co. ffo his Honor : The captain did not say the wharfinger had received the goods, and I could not reject them. The captain did say the goods are on the wharf, and are your goods. Mr. Allan : But he did not say they have been received, and we will not take them back again '! Witness : No. If the glass had been in good order, of course we would not have refused the cases, but there would have been some delay, because the Customs required them to be fully verified ; the Customs had refused to allow them to be shipped until the numbers wgre verified.

Charles Samuel Knox De Castro proved that he was shipping clerk to Messrs. T. and W. Young. . Remembered receiving some instructions with regard to goods said to have come by the Dallam Tower for Mr. Todd ; compared some goods on the wharf with the particulars given in the bill of lading, but found they did not correspond. There were foity-six cases marked A.T.W. Made notes of the difference as he examined each case. This paper [put in] contains a list of the cases, giving particulars of the number and condition of each case.

Cross-examined : We have received a good many cases for Mr. Todd ; the list is marked “ A Todd’s glass, Dallam Tower, condition.” I put that merely as a memorandum. Mr. Young, recalled, stated : When I went to Johnston and Co. I asked particularly for the cases numbered 506, 480, 484, 490,” 500, and 505, mentioned as shaky. Mr. Travers: You have dealt in glass. What profit do you generally got ? Witness : About i 0 per cent, advance on cost in Wellington. Mr. Allan said that was the case.

Mi'. I ravers admitted that the numbers were gone, but said he would show there were forty-six cases which were in every other respect idontifiabio with those mentioned in _ the _ bill of lading. There was a peculiarity in the bill of lading, namely, the words “contents rattle” were written by Captain Campbell, but the numbers were written by an unknown persou ; however, little hung upon that, as he should be able to show that the contents of these cases corresponded with the foreign invoice. His Honor : Are there no numbers '• Mr. Travers : Not a trace, and the discrepancy cannot be accounted for. But seeing that the number of cases were forty-six, that the glass answered the description of glass mentioned in the bill of lading, and all were marked A.T.W., it would be a peculiar coincidence if it were not the same. He contended that the identity would be established by the evidence, and also that there had been actual delivery and acceptance, as the goods had been handed over to the wharfinger as agent of Mr. Young. The goods were undoubtedly the same, and advantage was taken of the absence ®f. numbers as a pretext to bring against the ship a claim for non-delivery. Charles Johnston, a member of the firm of Johnston and Co., who had been agents for the Dallam Tower, deposed: Shortly after the vessel discharged Mr. Young made a claim against the ship for non-delivery of glass. We examined these cases, and found them corresponding absolutely with those mentioned in the bill of lading, except in numbers. The usual form is to pay freight, and then receive an order for delivery. Shortly after the arrival of the ship freight was paid and the usual order given. lo Mr. Allan : We give an order upon the wharfinger. Mr. Allan : Then he is your Witness : No. ° llien why do you give an order upon the wharfinger ?—Because the goods are put upon the wharf and are in his custody. llien does not the wharfinger become your agent ?—I don’t know exactly how that is. He takes the goods for the consignee, but cannot let them go till freight is paid. If the freight is paid the ship loses her lien for freight I— Yes. Then when you gave this order on the wharfinger did you consider the ship still had a lien ?—The freight had been paid. Before it was paid did you consider you had a lien ?—Yes. Cross-examination continued : The question of. delivery did not arise; the captain merely said, “These are your goods,” and we then examined the goods. Re-examined: There was no doubt as to the contents. lo liis Honor : Mr. Young did not say anything which led me to suppose he believed the glass in the shed was not the glass mentioned in the invoice ; in fact, he almost said if the goods were in good order he would have taken them. In further examination witness stated that he had received the goods from the ship on behalf of Messrs. Young, and through his clerk notified to the ship that the numbers were missing; and it was attempted to be shown that the plaintiff had accepted delivery through witness. ~ His Honor was not disposed to accept that, because it had been proved that complaint had been made by Mr. Young at the earliest moment. J. T. Backhouse proved that he was cleric to Mr. Jackson, and discharged the whole of the Dallam Tower’s cargo. Kept a record of the whole of the consignments. There were four different lots of glass. One lot was marked E. W. M., in diamond, which went to Mr. Mills ; another lot was marked “ W. W. T.” over I in triangle : this went to Mr. W*. W. Taylor ; another lot was marked “ B. R. over 127 in triangle, which went to Wanganui ; and another lot was marked “ A. T. W.” in’ diamond—the glass in dispute. He gave evidence respecting the landing of the glass ; stated that lie had called attention to damage, and also further stated that he had handled

many hundred eases of glass, but had never known that cases of foreign glass bore the importer’s mark. Some of the cases had been mended by the carpenter of the ship after they were placed in the shed. Gillies Morton, clerk to Johnston and Co., proved that he had made an examination of the cases, and produced a minute containing descriptions of the cases, the result of the examination. [The particulars given in this minute were compared with the foreign invoice, and were found to correspond, excepting that four cases were put down as being in size 28ft. x 15ft. in place 21ft. x 18ft.] This was the case for the defendant. Mr. Allan addressed his Honor on the case, contending that the bill of lading was conclusive evidence, and that the consignee could not be forced to accept delivery. His Honor reserved judgment, and intimated his intention of viewing the cases. Tuesday, October 12. (Before His Honor the Chief Justice, without a jury.) MOUNTAIN V. HALL V. AND ANOTHER. This was an action to recover possession of a piece of land, part of section 490 on the plan of the city of Wellington, a narrow strip, having a frontage of 91 inches on Lambtonquay, and extending back 120 feet, running to a point. For plaintiff, Mr. Travers ; for defendant, Mr. Brandon. Mr. Travers opened the case by stating to his Honor that himself and his learned friend, Mr. Brandon, had agreed, the consent of his Honor being accorded, that certain facts should be admitted in order to simplify the evidence and lessen expense by rendering the institution of a suit in equity unnecessary. His Honor concurred in the arrangement, and

Mr. Travel’s proceeded to give a history of the title, alleging that from the very outset there had been a mistake in the boundaries. He put in the whole of the deeds connected with the property as documentary evidence. Mr. Brandon put in documentary proof of the sale of the land by public auction in 1865 ; and produced an advertisement in which the land had been described as land in the occupation of certain persons at the time of sale, and there was no enumeration of the number of feet to be sold. The same description appeared in the deeds of conveyance. Roland Robert Davies, deposed : I was one of the first settlers here, having arrived 22nd January, 1840. I knew John Minifie, and remember his building a house on Lambtonquay. He was living in it about June, 1842. I know defendant Mr. Hall; his shop occupies the same site that Mr. Minifie’s did ; the adjoining land was unoccupied for a considerable time after Mr. Minifie built his shop. Six months after Minifie built his shop Mr. Tane erected a shop next to him ; that was on the same spot as Mr. Mountain now occupies. To Mr. Travers : To the best of my belief there has been no alteration whatever.

To his Honor: The buildings have been rebuilt, and I cannot say from any measurement that the new building has not been built 9in. in another direction. There was a passage then as now.

John McGlaggan proved that in 1865 he was carrying on business in Wellington as a builder ; in September, 1865, he completed a house for John Minifie, and took down the old building. To his Honor : The building was as far as possible erected on the old site. To Mr. Travers : Did not recollect hearing Mr. Minifie warned against encroaching on the right-of-way ; a passage way was left as before ; nothing was said after it was erected. The building was set out according to the old building. George John Hall, defendant, deposed : I am a plumber and painter, and son-in-law of John Minifie. I remember him buildinjr the place in which I carry on business. With others, I assisted to pull the old building down. There were no alterations made in the measurements of the house. Mr. Minifie and I examined the frontage of the new house with the frontage of the old; and found there was no difference. Cross-examined: Dir. Mountain has frequently told me I was on his land. I got the property in 1867, since which he has told me it was upon his ground. I never agreed that the land should be surveyed in order to settle the dispute. I do not know that in consequence of inaccurate surveys of the lands of the town corrections have been necessary. Mr. Mountain says I am upon his front and he is on my back land. The eaves of his house may overhang my land. I would not say it was so or not. To his Honor: Dir. Dlountain never gave any reason for saying I was on his land. That was the case for the defendant. After Dir. Travers had been heard in reply, His Honor reserved judgment. TOD V. CAMPBELL. His Honor said he had not yet come to a decision in this case. His attention had been attracted by the plea reading “ delivered to ” instead of “ delivered for,” but if he found it necessary he should amend the ploa. YOUNG DICK V. JANE SriERS CASE. Dir. Allan mentioned this case, and said that Mr. Travers and himself would be prepared to go on until it on Dlonday.