SUPREME COURT

Wellington Independent, Volume XXVI, Issue 3148, 15 March 1871, Page 3

SUPREME COURT

CIVIL SITTINGS.— -Tuesday, Makch 14. (Before liis Honor Mi 1 Justice Johnston and a Common Jury.) rAMIRR V. FIELD. This case, having been restored to the paper, was taken this morning, the defendant, an infant, appearing by his next best friend, Joseph William Day. The action was one for damages for false imprisonment. Mr Allan, with Mr Cooper, for the plaintiff, and Mr Travers, with Mr Ollivier, for the defendant. Mr Allan stated the facts to the jury, and called the following evidence : — William Palmer : I am a waterman, living at Wanganui. On the sth November I was on the Wanganui river. I and a man named Beattie, niy mate, wore engaged in bringing down firewood for ourselves, and for other people. After freshes there is always a great deal of timber brought down the river. On tue sth we were on the river, and when returning home we found wood all along the banks, and some in the water, which wo took into the boat. Some of the wood had been sawn in ■ two. I was afterwards charged with stealing a piece of wood that I had found near Mr Field's house. It was low water, and the wood was on the bank, about three inches from the water. There had not been a fresh for a week. It was not wood that would float, it ■was waterlogged. Between the river and Field's house there is a Government road ; there is also a bank between the road and Field's house, so that the wood was not on Field's property. The bank is about eighteen foot high, so that only the top of Field's house could be seen from the river. The wood was tho trunk of a small tree, with the top sawn off, and was about nine feet long. It appeared to have been a long time in the water ; I should think for inauy years. The wood was only •worth about 3d. We took away tho whole, cut it in two, and split it up. We put, it into the boat, and took it to Wanganui. It was not marked in any way, and there was nothing to distinguish it from ordinary drift wood in the river. I saw a woman at tho time. After we bad split some of it a boy came down and asked us/ what we were doing with tho wood. I told him that we were taking it ; that we had a right to it. The boy said, "We brought the wood here ; it belongs to us." We said we had a right to the wood, and we were going to take it. Afterwords Mrs Field came down and asked what we were doing with the wood. We told her we, or anybody, had a right to all wood below high water mark. That is the practice on the river at Wanganui. Mrs Field said that her son had taken the wood out of the river, and had cut a post off it. Wo Baid, " How are we to know that ; we are entitled to all wood below high water mark." My mate asked if all the wood along the river bank belonged to her. She said she didn't know. She asked us to put it out <-f our boat. My mate said she could not expect us to put it out after we had cut it tip. We then got into the boat, and started away for Wanganui, about one and a half to two miles away. When we arrived there we saw Field with a policeman waiting for us. The policeman asked us where we were going to land the wood. I said, "Where we always do, below Bett & Robinson's wharf." He said, " You might as well give us a lift down." We said, " All right ; wait till we get to the steps." Just below the steps the policeman got in, and we asked him what was the matter. Ho said there was a row about some wood. When we landed Field was waiting for us. When we got out my mate said to Field, " What's all the row about ?" Field said, " You've beon stealing my wood." My mate then said that ff he would put a value upon it we would pay him for it sooner than have any row. Field said, "Oh no, you've stolen the wood." The policeman then said we had better go to the station and see the nergeant. We went voluntarily to the station and the sergeant was there. He said to Field, " Are these the men ; do you wish to give them into custody ?" and he said " Yes." Field then signed the charge sheet, and we were locked up and searched. We were locked up from 5 o'clock on Saturday until Monday morning. Tho case was then heard before Mr Buller, R.M. Field gave evidence at the hearing, and the case was dismissed. Cross-examined by Mr Travers : We have been in the habit of dealing with • Atkinson and Brown, settlers, for firewood, but have latterly bought from them on our own account. We cut the log in two before we aplit it. We had split the log before the boy came to us. We took the whole of the log. I saw no other wood close to the log. We persisted in taking it because we considered we had as much right to it as Field. Mrs Field told us that the log belonged to them, that her eon had brought it from up the river. I can't say whether the log was maire or not. Hugh Beatty : lama boatman, working in partnership with Palmer, at Wanganui. We were in the habit of bringing down firewood and bricks. Our boat would carry about six tons. On sth February we went up the river to gather driftwood, hating nothing else to do that day. Opposite Field's houße there was a great quantity of driftwood. The_ wood we were charged with stealing was lying on the beach. Field's house is some distance from the beach. The wood was close to the water, and the tide was nearly out. The piece of wood was a common trunk of a tree and appeared to have been in tho water for years. There was bo mark whatever upon it and it wos about nine feet long. We cut it into three lengths and split it up. Just as we were splitting the last piece of the wood, 6ome children came down the bank. They told us to leave the wood alone, as it belonged to them. We told them, we had as much, right to tho wood aa them, as it was a long way below high watermark. After that a woman, whom we afterwards found to be Mrs Field, came and told us to leave the wood alone, as it belonged to them. I asked her if all the wood on the river bank belonged to them, and she said she didn't know, bnt that piece did, as her son had dragged it out of the river and cut & post off it. I said that as wo had that piece split we might as well take that, but we wouldn't take any more. She went fco fetch her son. We got ready to go away, when Mrs Field came back and sung out something but I didn't hear what it was, as the wind was blowing freßh. When we got to Wangamu we saw Field, a policeman, and Field's boy oa horseback. The policeman asked us where we were going ' to land, and I told him at the wbarf. He asked us to allow him to get into the boat where we were, and we did so. When we landed, I said to Field, " What's all the noise about ; if you claim the woed, put a value upon it and I'll pay you." He said " No, you've stolen the woo'J, and I'JJ give you into custody." We then went «p of our own accord, and the sergeant asked Field if these were the two men, and be said yes. Field told the sergeant that we had stolen the wood. Sergeant Reid asked

him what he intended to do, — whether he intended to give us into custody for stealing the log of wood. He said yes, and we were taken into custody, Palmer being searched. The ouse came on at the Resident Magistrate s Court and the case was dismissed. I think the log was not worth more than threepence. Cross-examined by Mr Travers : Wo took tke wood away after we were told that it belonged to Field. It had the appearance of having been cut months previously. Mr Travers applied for leave to amend tho first two pleadings, by inserting the words that the defendant had reasonable cause to bolieve that a felony had been committed, quoting authorities in support. Mr Allan was heard in reply, and his Honor refused leave to amend. Eichard "Reed : I am sergeant of police stationed at Wanganui. I remember the sth November, and the defendant Field coming to me on that day. He enid he wished to give ( two men in charge for stealing a log of wood from the river bank in front of his premises. He said the men were coining down tho river in a boat with the wood. 1 sent a constable with him to take charge of tho men. About half an hour after, Field, the constable, and the two men came up together. I asked Field if they were the men, and ho said they were, j I aslced him if he intended to give them in charge for stealing the wood, and he said he did. I then told tho men to go inside the station, and asked Field to sign the charge. I gave him no advice in the matter. In consequence of Field signing the charge sheet the mon were arrested for larceny and charged with stealing a log of wood. Field saw the wood ou Monday, and identified it as his property. Tho wood appeared to have been in the water for a long time. Its value, when cut up, would be about Is. Tho men were searched, and locked up from Saturday afternoon till Monday morning, when the case was brought before Mr Buller and dismissed. Field said he did not want to press the charge, he wanted to try a right. Mr Field was a surveyor, and is now farming. Cross-examined by Mr Travers : There was no information laid, and it was on that ground the men were discharged. This was the case for the plaintiff. Mr Travers addressed the jury and called the following evidence : — Henry Augustus Field : I am son of defendant in this action. Somo tiino ago we had some wood lying on the bank of the river, opposite our promises, particularly a log of niaire, a wood that never floats when sound. I got tho log at the bottom of tho river. I dung it at the bottom of a canoe when T raised it from the river. I used half of the log, and was prevented from using tho remainder, in consequence of a fresh in the river. I intended to cut it up when the fresh subsided. The portion of wood I left was about 10 or 12 feet long. Cross-examined by Mr Allan : I got the wood out of the river, about a quarter of a mile from our place. Wo were in tlio habit of getting wood out of the river. I took any wood I found. It is tho custom of the people on tho river to take tho wood in tho same way. The piece I left was perfectly sound. I know that it had been in tho river a groat many years. Charles Edwin Field : I remember the sth November last. I saw two men taking a log belonging to us out of the mud on the rivetbank. When I first saw them they were cutting it up. They had cut it into two lengths. I said, "Do you know whose log you are cutting ?" They looked up, and said it ought to bo above high water mark. I said it was our log ; my brother had raised it, and they had better leave it alone. At that time they had not taken any of it into the boat. After that my mothor came out and said, " Will you bo kind enough to leave that log alone." Tho log had been lying on the river bank about three weeks before that. I and my brother had been cutting the log, and the marks of the axe and saw were still fresh. It hud a nick of tho knife where we were going to cut off the nest length. There were other logs lying about. Cross-examined by Mr Allan : When I first saw them I was on top of the bank, and we had to cross the bank to get to the house. Margaret Symes Field : I am wife of defendant, and remember sth November last. On that date I saw plaintiff and his mate cut up a log belonging to us, which was lying opposite to our house. The log was lying between high and low water mark. I desired them to leave it alone, as my son had raised it for making posts for our garden fence. They persisted in taking the log, stating that we should have put it above high water mark. I don't know the nature of the wood. Henry Clelands Field : I am defendant in this action. I have been acquainted with the Wanganui river for the lust twenty years. There is a great deal of wood in the bed of the river. There is evidence of trees having remained in situ where they grew, beneath the bed of the rirer. The custom of taking wood from the river is a common custom in Wanganui. No objection was made on the part of the Crown to the removal of these logs of timber. I appeared at the Resident Magistrate's Court at Wanganui as prosecutor, but the case was not heard, Mr Cooper raising an objection as to informality. Mr Travers and Mr Allan having addressed the jury, and having consented to a general verdict, without separating the issues, The jury found a verdict for the plaintiff, damages, £50, and expressing their opinion that there had not been any intention to commit a felony. This was the last of the common jury cases, and the Court adjourned till to-morrow morning at ten o'clock.