AN IMPORTANT ACTION.

Evening Star, Issue 6262, 11 April 1883, Page 2

AN IMPORTANT ACTION.

Judge Richmond has been occupied at Wellington for the last two days, sitting without a jury, In hearing the case of Olegg and another v, Martin. The action is one to eject the Hon. J. Martin from possession of an acre of land in Ghuznee street, Wellington, and also to recover mesne profit, estimated at L 2,000, from the defendant for unauthorised occupation since 1865. The Crown grant for the property was Issued In 1854 to the original purchaser, Thomas Hodgson, a resident In England; who, however, had died there some mouths before the grant was issued. He left a will, dated December, 1853, devising his real and personal property under trust to Messrs Taylor, Porter, and Holland, for the benefit of his wife Mary, a sister also named Mary Hodgson, and a brother. The action is brought in the names of Clegg and Mitchell, as the surviving trustees, A lease was made of this property referred to by Mary Hodgson, the widow of the testator, to the defendant in the year 1860, the lease being for five years, and the defendant entered into possession originally under the terms of that lease, and during its currency paid rent to Mr John Howard Wallace, a well-known estate agent, who acted on behalf ofi Mary Hodgson, the lessor. After the expiration of the lease the defendant still held the property, and has still continued to do so. The mesne profits were claimed from the date of the expiration of the lease. Frequent demands were made by Mr Wallace, as agent for the present plaintiffs, for the delivery of the possession of this property and the payment of something in respect of the occupation of it. For all these years the defendant declined either to give up possession of the property or pay anything iu respect of it. A writ, therefore, was issued on the 6th July, 1832, and the defendant put a negative plea to put the plaintiff to the proof of every legal technicality. The time was rapidly approaching when effluxion of time would give the defendant a good hold upon the title, A com* mission was sent Home to take evidence, but though ample notice was given to the defendant he took no steps to be represented, and the evidence was now returned and put in, Evidence was also taken of the general facts, and a good deal of contradictory evidence given as to the present value of the section and what its past occupation; bad been worth. It was proved that the defendant had offered L 16,000 to buy the land, but without anything for profits. The defendant had throughout paid the rates and used the land. Mr Stafford (for defendant) raised a number of objections, and contended that Thomas Hodgson’s will was not sufficiently proved. Mr Ollivier (for plaintiffs) asked that a formal verdict might be returned in the case, just the same as if a jury of twelve had been trying the case, subject, of course, to defendant’s leave to move for a nonsuit on the points already raised by them. During the argument: which ensued. His Honor (aid if plaintiffs’ case really depended on the will of Thomas Hodgson, he did not think the fact of the will had been legally proved. if the plaintiffs liked they could elect to take a nonsuit. He felt bound in < the interests of justice to give proper facilities to the plaintiffs to prove their title, considering the difficulties which existed. Certainly our law of evidence was in a very chaotic state, and strange as it might seem, he was not aware the point had ever been raised in New Zealand before as to how you could prove an English will affecting property in New Zealand. The only real way would be by a commission Home, and then the officer of the registry could attend with the original will there. That would be the regular way, he apprehended. Mr Ollivier thought the whole of the ground was covered by the points raised by the defence for a nonsuit, so that the best way would be for His Honor to give a verdict for the plaintiffs, subject to the reservation of those points Eventually it -was agreed that any point which had arisen upon the facts as they appeared on the Judge’s notes, and the documents exhibited, should be afterwards decided, and that the damages should be assessed contingently, the Court in Banco to have the power to direct a verdict to be entered for the plaintiffs on a nonsuit. His Honor said he would give counsel his assessment of damages in the course pf a day or two.