SUPREME COURT.—Thursday. [Before his Honor Sir G. A. Arney, C. J., and a Jury of Ten.]

Daily Southern Cross, Volume XXVII, Issue 4407, 29 September 1871, Page 3

SUPREME COURT.— Thursday. [Before his Honor Sir G. A. Arney, C. J., and a Jury of Ten.]

The Court resumed sitting thisjmorning at 10 o'clock, on the adjourned case of Carlson v. Corcoran. — Counsel on both sides having addressed the jury, his Honor summed up, and at a quarter after 3 the jury retired to consider the verdict. At 6 o'clock they returned into Court with a verdict for the plaintiff upon the whole of the issues. Sauerbier v. Dtlworth. — This was an action for specific relief, asking the Court to order the defendant to cancel and deliver up to the plaintiff a certain deed of mortgage held over a piece of land, situate in the city of Auckland, allotment 4 of section 7, upon the ground that the plaintiff never transferred such land to the defendant, neither had he received any money for such transfer made by way of mortgage ; and further that he had never authorised any one to make such transfer. It was not set up that the transfer was a forgery, or that the defendant had not received a transfer of the land in question. — John Sauerbier, called, deposed : I formerly resided in Auckland, but am now living in South Australia. lam the plaintiff in this action. The deed shown me is dated September 29, 1866. At that date I was living near Adelaide, in South Australia, and had resided there a little more than a year. The deed now in my hand is not subscribed by me, It purports to be signed by E. J. Cox, as attorney to me. I never gave Mr. Cox any authority to mortgage property for me. I appointed Mr. Cox to act as my agent when I left Auckland, but I never authorised him to borrow any money on my behalf, and I never authorised him to receive the sum of £1,000 mentioned in this deed. I first became acquainted with the existence of the deed by receiving a letter from Whitaker and Russell, in April, 1567, requesting me to make provision for the interest. I did not reply to that letter, but made preparations to come to Auckland, where I arrived on the 23rd April. No attempt has been made to enforce the provisions of that deed against me. T did not write a letter to the defendant, Dilworth, at anytime. I saw him when I came to Auckland. I had an interview with him, but it was understood to be in confidence. No letter was ever sent to me addressed to Mr. Dilworth to be signed by me. I recollect Mr. Gilles sending me a letter in 18G9. The letter produced is my signature. I now perfectly well remember receiving that letter. I did not know what you were alluding to at the time. Having signed the letter, I returned it to Auckland. Since the time of that letter I have not been in Auckland. I know allotment No. 4, section 7, of land in the city of Auckland. lam owner of it. I produce the title deeds. I have received the rents from it ever since 1559. Before that time I occupied part of it myself, and received rents for the other part. My title , to the land has never been disputed to the present time. — By Mr. Rees : I recollect receiving from Mr. Cox in November, ISG6, a draft for £300. The letter with the enclosure was dated October 1. — By Mr. MacCormick : That money was for a mortgage to that amount which 1 had requested Mr. Cox to call in. (Plaintiff's title put in. It was a Crown grant conveying to John Lord and Thomas Brown on October 6, 1842 ; reconveyance of the same, for the northern half, to one John Gatenby, dated 26th October, 1847 ; reconveyance Bth January, 1849, from Gateuby to Allan Mcfiower ; reconveyance 3rd January, 18.">0, McGower to Laurie ; leconveyance sth October, 1853, from Walter ■ Laurie and his wife to Thomas Outhwaite, being a conveyance of the whole allotment. ) — Mr. Kelly, clerk in the "Registry of Deeds Office, Auckland, produced a copy of deed of land conveyed to Sauerbier by Outhwaite. • — Defendant had received notice to produce the original deed, but it was not produced, defendant's counsel contending that it must be shown to be in his possession. — Mr, Sauerbier, re-cilled : I havo seen the deeds of conveyance from Outhwaite to myself. The la*t time I saw it, it was in possession of Mr. Thomas Russell, paitner of Mr. Wliitaner. This was when lan ived from Adelaide. If I did not see the deed, Mr. Russell himself told me he had v,ot it. Previous to that I had seen the deed in possession of Mr. Cox —Mr. Rees submitted that the deed fiom Outhwaite to Sauorbier was still in possession of the attorney for his client. — John Richmond, solicitor, of Auckland, knew Mr. Thomas Buddie ; he was a clerk of Messrs. Whitaker and Russell. Witness was solicitor for the plaintiff in this action. Hid seen Mr. Whitaker some time ago, who had ollVrod to i>ive him up the deeds, hut upon conditions winch he refuped. — Mr Kicimoiid, recalled : Had a civile in 1800 naniid Gille^. Re -was now in Ota^o. Would know his handwriting. Mr. Gilles sent a letter to jvuierbior at Adelaide ; they vvero returned in duplicate. They were received in order to send one to Mr. Dilworth. Had seen Mr. Dilworth on sevci.il occasions in reference to the matter befoie the C.mrt. lie refenvd to the Litter lie hail caused to be served on lipi, and :iskod whether lie (Dilworth) intended to reply to the contents of it Dilworth said, h1)h 1 ) did not intend to do so. Witness did nob tender him any conveyance. The letter ftom Sauerbier to Dilworth was then read. It ran to the eficet that lie had never aulhoused Mr. Cox to tike a mortgage on las behalf ; and to consider that such mortgage was void. — At this stage of the proceedings, Mr. Kecs, counsel tor defendant, asked his Honor if ho would adjourn the fnither he.uing of the case until next day. Hi* client was sulluiin^ from a ohe&t complaint, and it would not allow him to encounter the night air. — His Honor believed th-'t Mr. Dilwoith did so suffer. It Mas now (> o'clock. The jury had sat last nisjht until S o'clock, and until 7 o'clock on ♦-.he night previous. They had given a long attendance. The Court was shortly afterwards adjourned.