DISTRICT COURT.—Yesterday.

Thames Advertiser, Volume VIII, Issue 2177, 20 October 1875, Page 3

DISTRICT COURT.—Yesterday.

(Before His Honor F.B. Fenioh, Esq., District Judge,) Pjjedk. Bennett v. William: E, OissiN.—This was a claim for' £100 damage's, for alleged false imprisonment. The case had previously been heard before a jury, and a verdict of £50 for Jiliiihtitf was given, but an application for a new trial was ,made, on the ground that the damages were excessive, "and the application .ps/,granted sit a previous Bilting, ,of the ,Court.— Mr Macdouald appeared for tEe plaintiff, aiid. Mr Tylei.' Mr Brassey for the defendant,—When the jury was being called; Mr Macdonald ros9 and said that the case had been before the Court, and thoy wore now herd on an order from his Honor that a new trial should be granted, on' condition that ..defendanfcgavesecurityofjudgmenfccoststo : the satisfaction of the plaintiff's attorney. Up to yesterday afternoon-nothing had been done to comply with this condition, and as they now stood there was no security at all offered or tendered under such circumstances as the plaintiff could acceptor the refusal of which would render him liable to suspicion of refusing the security to avoid the new trial. Yesterday evening something was pitchforked into the "office of the plaintiff's attorney , which did not appear to emanate from any one, except that it had Mr name on the back of it, and was Signed by a person who, so far as he knew 1 , was an entirely new person in the transaction—W. H. Cassia.- He may or may-not be" the. defendant. This document proposed a person named C. IV Quint as' surety." He (Mr'Macdonald) •lidd no: opjwrtpnity of satisfying himself on the point of 'vvlie'ther Mr Quint was a sufficient''security., The document carefully;coi,ifliied itself to ono security/and according to the rules of the Court thejc should have; been; two. Here :now was -the' day, appointed; for the new: trial to take place, ifr it was to take place at all. The iorder for' the new trial was conditional, and the condition had not been fulfilled; and therefore the new trial could not ' procecd, and the original judgment stood.-Mr Tyler said that he was not present in Court when the ordei for the new trial was made, and he hac therefore no personal knowledge of its nature, but, according to his instructions Mr Macdonald was quite wrong; that n< such cendition as that referred to wai made that the order for the new trial wai granted unconditionally.—Mr Macdonah said that he might save his friend thi trouble of argument by telling him as i matter of fact that such a condition was made. Then it was on his brief. Hi took it down at the time and read it ou aloud, and that was what was agreed to —Hjs Honor said that Mr Macdonald': notes did not agree with his. : According jo his notes the , order for thenesvtria was (granted,, and Mr Macdonald after wanjs asked'for terms, which wero set tied.! It certainly looked like negligenc on the part .of the defendant for..theri was ample'time'to''arrange sureties to tlii satisfaction of the plaintiff's solicitor, am everything hfid been put off until th 18th. The man proposed as security ma; be gbod enough, but they gave no pape from him agreeing to become socuritj

1 and besides the time was insufficient to 1 allow the plaintiff's - attorney to ascertain whether the security was satisfactory to him,—Mr Tyler said that there being no order made, as appeared by the judge's i Own notes, how should they becompelledto do that for wkich.no order was made P; He had his instructions from Mr Brassey's 'brief, and, according to that, which was quite as reliable as Mr Macdonald's brief, there tfasno mention of any such order, i -rHis Honor said that Mr Brassey having ' agreed . .to give security to the satisfaction of plaintiff's solicitor, it was unnecessary to make an order, lie-must accept-it as : if an order had been made. He could not understand why this delay 'had'occurred, and told Mr Tyler to address himself to that point.—Mr Tyler said'that Mr Brassey would address himself to .that question, as he was more intimately acquainted with it. He appeared to h&ve been under the impression -that : no 6rder had been made, and when ho heard that there was to be an objection 1 made on this point he went to - the Clerk of the Court, who told , him- that no order for security had been made, but he took steps to furnish security.—Mr Brassey agreed, that this was how it was. He ' wduld have no difficulty in arranging with Mr. Macdonald if Mr Miller had not appeared on the scene.—His Honor suggested that they should , give security now, 'Lot the defendant give in a cheque for £100 now, and that would do,—lt was finally agreed between the-counsel that! the defendant should pay £50.into Court. This-0 sum --was - paid into Court by Mr Quint on - account of MrCassin, to abide the decision.— . T.he ! panpl haying, been called over, the following were selected: - J. Clark, W. Carpenter,'A. Campbell, J. Crocker.selected having been sworn in, Mr Carpenter was chosen foreman.—Mr Macdonald said that the case was a twicetold tale. At least to the Court, his learned friends, and himself, it lost the charm of novelty, and no doubt tbey were also aware of the circumstances, from the reports published in the news- ' papers. It would, however, be necessary for him to address thembrieflyon the facts of the ease. He then proceeded to detail

tho circumstances of the,case, and tlio relative positions of tho parties, and the nature of tho partnership which existed between Cassin and Bennett.. Having, on tho occasion of the provious trial, published .a full account of the transactions, it is unnecessary to giro .details-. —The plaintiff examinod by Mr Macdonald, and cross-examined by Mr Tyler, .his evidence being the same as that |previ6usly i published; 1 He relatod the circumstances under which he had; in . the first instance taken ■ the trees from | the garden, how. ho had been arrested at night and.taken to Shortland Gaol, where ho was kept all night, and .when he'was brought up next day he was ■ He was searched, and' his pipe and other things wqro taken from him. Ho was cross-examiued at considerable length as to the state of his feelings on being arrested and looked up. He did not think £10, paid into Court, sufficient compensation. He left the amount to men of better principle and better judgment than himself. He wanted : a sum of money, and to set himself right with the public. He considered the apology made by Mr , Brassey whon the case was withdrawn against him as being a very poor one. If he did not shed tears when he was looked up, thoso at homo did; cried all night, in fact, Tho apology published in tho newspaper did not satisfy him. It might have been more satisfactory if it camo from Mr Cassin himself, but Mr Brassey spoke so low that ko could scarcely, be beard. He claimed his rights. Ho had an equal right with Cassia to what tho land produced.—He was examined by his Honor as to ; those rights which were invaded. The agreement was placed in his hands to point out those invaded rights., but he wished Mr Macdonald to point them.out, but his Honor insisted on tho witness answering. Ho then explained that Caesin was to hold the premises while the lease, lasted, and he was to havo a' comfortable living while the lease lasted, 110 considered , the calling of the auction on the 9th March an infringement of his rights, Then.he refused to pay him according to agreement,—His Honor said- that ho had r already denied that'tllat was one of the' causes of action.- Defendant: Oh, that was one, bf tho principal reasons. Then,) [ Cassiii jfol'd'.a stack of hay" 1 and kept'th'e: money, and he took everything.; oui.of the greenhouse. (His . Honor was all- knew.) (Defendants He, accused me\ of taking somo . of the; plants out of -the greonhouse, and I had taken nothing up to that time. Then he refused .to let me sell anything, or to sell himself, and give me part bf the money;' and everything that was growing there that wa3 of any value he took possession of and sold, and kept the money. I offered to clear put for £25, but he would not accept the offer, andjhe caused an illfeeling betweon Mr Spencer and myself. I had offered to carry on the gardens up to November without expense to Mr Cassin. This was shortly before he was evicted from the gardens.—lnspector Bullen deposed that he remembered the occasion of Bennett's arrest. Cassin told him that a quantity of fruit-trees and shrubs had been stolen from the Parawai gardens, and that Mr Brassey would give hiiß further information on the subject. • He had a conversation with Mr Brassey, who informed him that Bennett was suspected, In the course of. conversation something was said about an agreement between Bennett and Cassin,' and this made him hesitate to take* action, but Mr Brassey telling him. that a felony had' been;committed, he said if Cassin gave. Bennett into custody he would have him : arrested. This thoy agreed to. W illiout thit agreement he would not take him. He was arrested by Constable Brennau, whom he instructed how to act, The morning after _ he was charged with larceny on an information sworn toby Cassin, who the night before had signed the book. Cassin at first declined to sign tho information, saying that his solicitor told him not to sign any document. When the case was called them was no one to prosecute, and witness appliedforaremand until the following day.— Detective Brennan was also examined, and deposed to the circumstances of Bennett's arrest. After he was arrested he said ho was advised by Mr Millor, and was acting under his advice, and ho would make Mr Cassin suffer for it. Ho didjnot seem to display much feeling or depression,—lu answer to tho jury witness said that Bennett was not in any way hurried from the house. He waited to fill his pipe after dressing himself.George Jeanes deposed to having gone one day to' the Parawai gardens ■ tojbuy BOmo 1 cabbage, Cassin told him that if b'e.bought any. cabbage from Bennett ho would have : him locked up. Bennett' asked him would he allow him to sell his portion of it, arid he said he would not.— /This closed tho plaintiff's case.—Mr Tyler then opened the defendant's case. He read the cause of the action, and pointed' out that there were no special damages claimed. Even if that was not answered all that remained for the jury was to assess the amount of damage which he had sustained by pain of mind and body in consequence of his imprisonment. They had not left the matter in that case; they had filed a plea in mitigation, and had paid £10 besides costs into Court, and this sum they thought abundant compensation, tie read the pleas in mitigation, .and after some further comment he called the defendant. He wished to put into evidence the deeds by -which Mr : Cassin held under Mr fpencer. — Mr Macdonald objected, except the attesting witnesses were produced. • Some discussion ensued, and Mr Macdonald, finding that Mr Tyler was making capital out of it, first objected to his making a speech to the jury on what was a matter of evidence, and subsequently offered to withdraw his objection to the deeds being putin evidence, but Mr Tyler then declined to avail himself of the permission, The witness was examined as to the. arrangement' between himself and Mr! Bennett, Boforo' this arrangement was made he would have thrown it up only' that Bennett wanted to be taken in as partner, and said he could see his way to making £600 a-year out of the gardons. (After the arrangement the carrying on of the business resulted in loss for the last quarter, and lumping tho whole year there was a loss on tho whole transaction.' Before he advertised the place for sale he told :Bennett they were losing, .and he had I no money to; keep it 1 going any longer. He said' he was' sorry to hear it. Witness then said he would advertise it for sale, and if it brought anything over, the loss they would divide it. He said, " All right, boy. I'll not be a bar in your way. I'm sorry to hear - the gardens are not paying." That night they went through the accounts, after which Bennett said it was a bad job, but he saw they would not pay. He would put all hands to work on the paths and borders to make it look better for the sale. Witness told Bennett he would pay him up to the loth of February, and Bennett said," All right." He appeared l

quite satisfied, Some'time after lie said he had been to his solicitors, and they ndvised him not to let the sale on without he (Oassin) guaranteed'htm a ' certaiu sum of money. Witnoss said he could not do so, that he had already.-lost enough, but if anything > v came out; of tho ground ho would , . v get his share.'Witness afterwards offered-' v him £10 to give up all right to thoplaco," ; arid he agreed. to' take it. ; Witness told ;him to oall in for the : monoy in Grahams?-;, town.' Ho : afterwards carno' to witness againj and said'he had seen Mr' Miller,"his solicitor, and Mr Miller told him ho must the. £10; that ho owed , : , r more than that sum to him (Mr Miller). " :He wanted a larger sum, which wi'ness refusedtoßive. .Afterthat ha came,outoccasionally, but did, not work ns usual. The loss was £75, exclusive of the wages V,:; paid toßonnett, nearly £200 in all. Ho ascertained on a 'Monday morning, and found that a nurnbor of trees hadbeen removed.' H.o never gavo authority to remove them, nor did ho know they were to be removod. Ho considorcd ho had no right to remove tho trees." (Mr Macdonald said he did not claim for i'onnott tho right to remove the trees.) Witnoss.. . consultod Mr Brassey, solicitor, and it wrb in eonsequeneo of tho advico which ,> he received that ho gavo Bcnuctt into custody. Ho did not know up to tho : 1 timo Bennett said so iu the house, when he was bring arrested, that he claimed tho tfght to removo trees. Whcnho was, arrested ho did not show any symptoms of having his feelings wounded. Ho said he was quite willing to go; that what ho; ■ had done, ho had done under advico* * Next, morning ho signed tho information, having first' rofused, as . lie was waiting for Mr Brassey. Ho subsequent instructed Mr Brassoy to withdraw tho' information, and apologiso 'iu tho Court. Ho gave Mr Bennett into custody in tho. honest belief, from the advice which he received, that , ho had committed a felony. Ho did not •••'. do"so- from malieo.—The witness was . cross-examined at- considerable length. This olosed the. defendant's oase.--Mr i Tyler then addressed the Court and jury ; on behalf of the defendant with a view of 'showing to the jury that the sum of £10 paid into Court was ample compensation ' for the injuries sustained by the plaintiff by teasopef his imprisonment, He quoted." , froii Mayne on and , continued ' for a, considerable'length, of; ,tim>e.f-Mr Macdonald replied, following' Mr,Tjlcr's remarks.; In reference to tho apology, this, Mr Macdonald replied, .was . nothing more than a cold-blooded, piolitio, !,! well-considered speech, and no apology at all.—His Honor then summed up tho ovidonce. The question was one of extreme simplicity. There, were very few ' leading facts for thoir consideration. The jury would be sure to take a broad view of it. There was, no doubt, a misappre- ' heiision regarding tbe contract, Cassia may havo exercised too much, power; it was certain that Bennett did so. Ho charged the jury on those' various points clearly in favour of tho defendant.—Tho jury then retired to consider their verdict, and roturned into Court after an absonoe.' of about twelve : minutes, with a verdict . of damages to the extent of £10 paid into. Court.—Mr Tyler called his ..attention to the fact that the question of costs in the. first trial were to await the result • of this trial, and he would apply that tho costs of tho former trial be paid by the .plaintiff, the non-successful party in this trial. It was a matter in the dis« , cretion of the Court.—Mr Macdonald said that at the, former trial tho action , was fairly conducted and placed before the'; jury, and the jury, of their own ; motion, came to a verdict.—Tho Judge said, in his opinion, they ought in the 1 first instance to have accepted the £10, and not come into Court at all. He would like time to consider the question over before coming to a decision. _, • , Absent Jukoe-Ou calling over the jury panel one man, named John Campbell, was absent. While the jury were absent considering their verdict, his Honor took this case into consideration,—J. Brooks Mason, bailiff of tho . Court, deposed that he left a subpoona at the house of Mrs Bruce, who keeps a boarding-house in Coromandel-street, addressed to John Campbell. That wa& his ordinary place of abode. This was on Friday last. He did not appear this morning when called. The person who . received the summons said that Mr Campbell was at Tararu, and might not be back in timo to attend the Court,— His Honor inflicted a fineof£s, but instructed the : witness to inform Mr ; Campbell that if ho attended next Court, day,! and showed good reason for not' attending, the fine would be remitted.,; :

: "Ke Daniel Tookby and John Webb. —The bankrupts applied to pass their final examination and receive their dis-' charge. Mr Tyler appeared for tho bankrupts and said that Mr Macdonald appeared for the-creditors. It was in such, a state that they were not prepared to go on with it, and he would therefore ask to have it adjourned.