SUPREME COURT.

Gisborne Times, Volume XXIX, Issue 3329, 22 September 1911, Page 7

SUPREME COURT.

CRIMINAL SESSIONS CONTINUED.

CONVICTION FOR PERJURY.

SEQUEL TO A WHATATUTU CASE.

The criminal sessions of the Supreme Court were continued before his Honor T lr - Ju s. tice Chapman .yesterday. Mr. d, T U Nolan appeared for the Crown. John Hames was indicted that at a sitting of the Magistrate’s Court at Gisborne on or about March 24th he' committed perjury at the trial of Jas. Glendinning, for suplying liquor to the said James Hames.

The following jury was empanelled:— Chas. Blackburn (foreman), Thomas Bell, Tbos. Haism-an, Valentine B. Gray, Robt. A. Johnston, Thos. T. McAlister, J. Kennedy, O. Courteney, A. Martin, Robt. M. Bell. Geo. Douglas, Geo. H-aill and Clifford Cox. Air Burnard appeared for accused, who pleaded, “net guilty.” Wm. A. Barton, S.M., said he presided over a sitting of the Magistrate's Court on March 24th, when Jas. Glendinning was charged with supplying liquor to Hames at Whatatutu on February 25th. Hames, who was sworn by witness said:—“l was near the Whatatutu Hotel at 6 p.m. on February 25th, and remained there till closing time. I saw defendant there from about 8 or 9 p.m-., and he remained till closing time. I was not on horseback in front of the hotel a few minutes before the hotel closed. I had my horse in the stable at that time. I got on my horse- in the stable. Defendant came into the stable about- 10 p.m. and said: ‘Take this for a minute, -and I found it was a- bottle of beer.’ Constable Doyle came and took it from me in- the- stable, mhich was about a chain from, the front bar door of the hotel. Defendant asked me where 1 was going and I said I was going home ” Cross-examined : I' was sure defendant did not say to me at any time, ‘Hold on and I will get you a bottle of beer.’ When defendant handed me the bottle of beer he said: “Take hold of this while I get on my horse.” Witness then convicted defendant and fined him the sum of £5. Witness produced the information laid against Jas. Glendinning. To Air Burnard: The statement by Glendinning and accused were practically the same. "Hold on, Jack.”

Constable Doyle, stationed at. Te Karaka, said tihat at a few- minutes to 10 p.m on Saturday, 25th February last he was on the public road' in front of the Hot Springs Hotel at Whatatutu. He saw a man named Jas. Glendinning come from the direction of the stable, which was at the further end of the hotel from where he was standing. He rushed urn to the front bar door and the present defendant rode np. Glendinning said to him: “Hold on Jack and I will get a bottle of beer.” Glendinning entered the front door of the public bar. He returned to> the road about- a minute later with a bottle in his hand. As he came out the hotel door closed behind him, and it appeared to witness the time was about ten minutes to 10. Glendinning walked over to Haines, who was a few yards from‘the bar door, and there he handed the bottle to Hames, who was on horseback. Witness walked over to where- they were, and as Glendinning took his hands off the bottle he seized it. Witness said to Glendining: “You have no right to give this man beer as he is a halfcaste.” He held the bottle of beer in his hands and stood by the bar door. The accused said to Glendinning: “Come on home.” Glendinning replied: “Hold on and we will have a word with him.” About a minute later Glendinning beckoned witness towards him. Hames said he was to get liquor, and Glendinning said “Yes. he is entitled to get liquor.” Witness replied: “Yes, you know he is a half-caste and' still give him liquor. You have been at this business for years.” He argued that half-castes were entitled to get liquor off the premises, but witness replied he would not argue with him and he would hear more about it. The accused, when Glendinning was charged at tihe Court, said he was not in front 'of the hotel on horseback at a few minutes to 10. He also stated that the bottle of beer was given to him in the stable and that his horse was in the stable- at that time. He said that witness took the beer from him in the stable and not in front or the hotel. Witness was not m the stable that night later than 9.15. lhe stable door was about a- chain irom where defendant pulled up. his horse and a vacant space intervened. He next went- in- to get his horse about 10. ck p.m. from the stable. The- bottle of beer was hot taken from the accused in, the stable. ' Verdict of Guilty.

To Mr Burnard: He took the bottle from. Glendinning' about fifteen to twenty yards from the' stable door. \Vm. Graham, a laborer, said that on Saturday February 25th, he was _ & stableman at the Whatat'utu stable. He knew the accused, who stabled ms horse with witness that night. He took the horse between 9.30 and 10 p.m. Glendinning, who also stabled ins horse there, got his horse about the same time. He could, not recollect seeing Barnes, Glendinning and Hoyle together in the stable. He did not see Constable Doyle take l a both beer from accnsed. To Mr Burnard: The beer might have been ta'ken from accused in the stable but witness was out at the hack. 11 accused had always borne an excellent character. He could say the horse was in the stable, but- lie could not say whether he mounted it there. Samuel Birkenhead, a blacksmith, carrying on business at Whatatutu, said he was outside the hotel about closing time on February 25th. He saw Constable Doyle there, and just after the hotel closed he saw him speak to Haines. Glendinning asked Doyle what all this was about. Doyle went back towards the hotel and stood between th two doors near the stable. He thought Doyle had something in his hAnd, but it was dark and he could not see what it was. He-thought it was a bottle of beer. This happened after Glendiinning and accused came from the stable. To Mr Burnard: Accused was a respectable man and he had never seen him the worse for liquor. The distance between the b<tr and the stable door was about 22 yards. For the defence Mr .Burnard called The accused, who stated that he was called as a witness in at the hearing of a charge against Glendinning and ho corroborated his evidence in the main particulars. He gave the evidence in the lower court as put in Mr. Barton. The jury retired at 12.50 p.m. and returned at 5.20 p.m. with a verdict of “guilty.” They recommended the prisoner to mercy,, as, being a ha-lf-

caste, ho was not aware of the seriousness of his act. His Honor deferred the passing of sentence until this morning.

CIVIL BUSINESS.

ALLEGED BREACH OF CONTRACT.

James Alexander Newman, of Gisborne, storekeeper, and Thomas Long, land agent (Mr. J.. W/Nolan, with All’. T. Alston Coleman, appeared for the plaintiffs) proceeded against James Benjamin Poynter, of Te Karaka, sheepfarmer (Mr. L. T. Burnard), to recover £497 10s for damages through alleged breach of contract.

In tiieir statement of claim plaintiffs set out:—“1. That on or about the 2 4th day of April, 1911, the defendant contracted to sell and the plaintiffs contracted to buy all firewood and white pine timber in a cei'tain bush, at Ruangarehu, near Gisborne, then in the occupation of the defendant, and an agreement in the terms set out was executed by the defendant. 2. That in pursuance of the said agreement the plaintiffs entered the said bush and cut and removed certain firewood and white pine timber therefrom, and incurred certain liabilities in respect of the said firewood and timber, 3. That the plaintiffs continued to cut and remove firewood and timber from the said busli up to about the 10th day of June, 1911, on or about which date they, the plaintiffs, received a letter from Alessrs. Nolan and Sheet, solicitors for the owners of the freehold, giving notice to cease cutting. 4. That the plaintiffs thereupon caused inquiries to be made, and ascertained that the defendant had not on the 24t-h day of April, 1911, or at any time subsequently to that date any lawful right to enter into the agreement of the 24th day of April, 1911, and the plaintiffs thereupon ceased to cut or remove any firewood or timber from the said bush or any part thereof, and removed atheir workmen and plant therefrom. 5. The plaintiffs have throughout been ready and willing to perform their part of the contract, evidenced by the agreement dated the 24th day of April, 1911. 6. The plaintiffs have, through the wrongful act of the defendant, suffered loss and damage to the extent of £497 10s 6d, wherefore the plaintiffs claim the sum of £497 10s 6d, or such other relief as to the Court may seem meet.” The statement of defence was filed as follows: “(1) The defendant admits the statements contained in paragraph 1 of the statement of claim; (2) the defendant admits that the plaintiffs entered into the hush and got and removed certain firewood and white pine timber therefrom, as alleged in paragraph 2 of the statement of claim, out the defendant does not know whether the plaintiffs incurred any liability of the said firewood and timber, and he therefore denies the same; (3) the defendant dqes not know whether or no the plaintiffs received the letter referred to in paragraph 3 of the statement of claim, and the defendant .therefore denies the same; (4) the defendant denies each and every of the statements contained in paragraph 4 of the statement of claim, and savs that he had on the 24th day of April, 1911, and subsequently thereto, a lawful right to enter into the agreement of the 24th day of April, 1911: (5) the defendant denies that the plaintiffs have been ready and willing to perform their part of the contract, as alleged in paragraph 5 of the statement of claim; (6) the defendant denies that the plaintiffs have suffered the loss and damages alleged in paragraph 6 of the statement of claim, and the defendant denies that the plaintiffs have suffered any . loss or damage whatever through his wrongful act; and, for a further defence, the defendant says: That there is. no memorandum in writing of the alleged contract sufficient to satisfy the Statute of Frauds.” Defendant paid into Court the sum of £IOO, but denied all liability. Evidence for Plaintiff.

Jas. Alexander Newman, one of the plaintiffs, said that after entering into the agreement he went on with the work of getting ready to cut the hush, and he put on men to cut the bush and plant. He worked the bush for a period of about six weeks ~before he was stopped by a letter from Mr. J. W. Nolan, on behalf of the executors, dated June 9th. In consequence of that letter he saw defendant, who said. it was not, and when witness asked him what he Avas going to do about it he said he ivas going to mind his oaaui business. At the next interview he and his partner had to meet him at the Gisborne Hotel, when he denied liability. In consequence of a letter forivarded by Avitness they had a further intervieAV, and defendant gave him to understand he Avould settle. He asked Avitness Avhat he AA 7 ould take, and he said he AA'ould not take less than he demanded. He AVould take any reasonable sum if they got together and decided properly. He met him next at the corner of LoAve Street and Gladstone Hoad, and he again told him he Avonld take a reasonable sum, hut nothing Avas done. Prior to going to Palmerston North he told AA'itness lie Avould meet him and they Avould come to some definite arrangement, hut oAving to him arriving late and the,boat sailing at 4 o’clock, he asked Avitness to leave it till he came back, and they would settle the matter among themselves. He saAV defendant on his return, and he said he had decided to let the thing go through. Witness said, “All. right; it only Avants a month,” meaning the Supreme Court, and he turned aAvay. Defendant re-, marked as AA'itness Avas going, “Unless you can make an offer.” Witness met him later on as he was going to the station, Avhen he offered to take £350 to settle. Defendant said, “All right. I Avill be in toAvn to-morroAv and will meet you at the Gisborne Hotel, and if my laAvyer says pay I Avill pay.” He gave him to understand he Avould give im a definite ans Aver then. He Avent to the Gisborne Hotel the folloAving night, hut Poynter never turned up, and after half an hour’s wait he went home. A feAV days, after that he Avas riding in a milk cart toAvards the Albion Hotel and saAV Poynter again, and Poynter said lie had done nothing at the price, and Avitness walked away disgusted. He was claiming for seven Aveeks’ loss of time at £3 per Aveek. This Avas up to the date of the injunction. He attended to the business in toAvn AA'hile his partner looked after the bush. Long Avas on the job at £4 per Aveek, and these were fair Avages. He had. let tAvo contracts for cutting one hundred cords to tAvo gangs at 6s 6d. He had paid from £22 to £24 to the tAA'o gangs. He OA\ r ed these men about £l2 for Avork actually done by the gangs. The bush contained tawa (ui£“ wood), white pine (milling . and fireAvood), and matai (milling) timber. This was mostly groiving timber, and it Avas in the form of a bush that aauis a small reserve • at the end of the piopeity. Most of the building timber was growing there. Looking at the timber as a Avhole he would certainly say it Avas a reserve. • . . , . Thomas Long, one of the plaintiffs, said that after entering! into, .this contract Avitb Mr Poynter he Avent to the bush and l Avas. there seven AA'eeks, for which he claimed £2B. He Avas overseer and l was continually employed on

the job. He 'had been paid that amount previously, and had been altogether about seventeen years in the bush. He was cross-cutting, splitting buttons and seeing the wagons were sent, off on the contract under notice. He was a land agent at present. He had also cut roads from the bush in order to get the timber, out in the most economical way, , Probably half the bush consisted of black tawia. The pine was really yellow pine and it was worth 13s. There were between forty and fifty white pine trees but he would' not contradict anyone wh© said tliere was only 30. All the standing trees were nullable. There were only two trees that were hollow as far as his memory served him. None of them were dead. He. thought it would pay to take a portable plant into the bush and an offer had' been made for this purpose.

Jas. Drumond, a sawmiller resident in Gisborne, said he had hod many yeans experience at sawmilling in all parts of New Zealand. He knew the bush on Poynter’s place and had inspected it a few weeks ago. He would) describe this bush as two clumps of trees. He estimated the milling timber in the bush at 90,000' superficial feet. The timber was mostly tawa or white pine. H© had been cutting a considerable quantity of white pine in this district which was used' for building purposes to a good extent. There was a fair market just now and the price would be about. 12s 6d wholesale at the present time in Gisborne. 'lt would be worth 12s 6d at this particular hush when it was milled. He understood this was ■the price paid on the adjoining property. A mill could be put in very easily if they wanted to and h© thought a small mill might pay there. The firewood would amount to 150' cords at the least, hut he could not say what the profit would be. W. H. Clayton, contractor and timber merchant, said there was over 200 cordis of firewood. He thought 4s per 100 ft profit would be made out of it. *

Enoch Richards, valuator at Gisborne, who had had. considerable experience with the Kauri Timber Company, said he measured the timber on defendant’s property and there was 84,368 superficial feet of timber. The . timber measured was principally white pine, and he found 38 trees suitable for milling. There were 26 cords of firewood in stack. Out of the remaining firewood considerably over 100 cords could be obtained. He had taken the measurement' of each tree that was suitable for milling. He could not say whether it would pay to put a small portable mill in that bush, but assuming a suitable mill was offered he thought it would pay to put it in. He knew Krause’s bush, which was being milled, and it was similar bush to Poynter’s bush, though the timber was smaller. The nature of the country was about the same. Krause’s bush was paying, and he knew that of his own actual knowledge. .At this' stage the Court adjourned till 10 a.m. to-day.