DISTRICT COURT.

Hawke's Bay Times, Volume I, Issue 4, 25 July 1861, Page 5 (Supplement)

DISTRICT COURT.

In consequence of the non-arrival of the steamer with his Honor the Judge from Wellington, this Court was adjourned by the clerk from Wednesday, the 17th, to Monday, the 22nd instant. There were live criminal and twenty-six civil cases set down for trial. His Honor the Judge having arrived on Wednesday evening, the following cases came on for hearing by consent. Friday, July 19. Marshall v. Crawford. W as an action brought by Mr. John Marshall, the landlord of the Settlers Hotel, Napier, against Mr. James Crawford, a clerk in the employ of Mr. T. H. Fitzgerald, for board and lodging supplied to him at the hotel, and his claim amounted to .£55. The defendant pleaded a set off amounting to £73; for services rendered to the plaintiff in keeping his accounts and books. Mr. Allen appeared for the plaintiff; Mr. Wilson for the defendant.

Mr. Marshall was called, and proved the residence of the defendant in his hotel from 12th March, 1860, to 2nd March, 1861 ; that his weekly charge was 305., but that after the third week the defendant volunteered to keep his accounts, as he was then out of employ, and that for such services he reduced his charge to 255. a week. Some little amusement was occasioned by the enumeration of the list of “ extras” in the shape of glasses included in the account. To answer this case, the defendant was called, and asserted that he was asked by the defendant to keep his books, and consented to do so, and did so, for which he expected payment. He considered his services worth 7s. a day, or two guineas a week. On cross-examination, he admitted that he never asked for, or said any thing about, payment during his residence, or until he received the plaintiff’s account. ■ He considered the reduction of ss. a week insufficient, but thought that his services were an equivalent for his board and lodging. His Honor took time to consider, and on the following morning gave his judgment for the plaintiff for £36 13s. 3d. Saturday, July 20. Worgan v. Hutchinson and Charlton. This was an application to the equitable jurisdiction of the Court made by consent to obtain the opinion of the Judge as to what quantity of land passed under a certain contract made between the parties, and involved a question of considerable difficulty and importance. Mr. Allen appeared for the plaintiff; Mr. Wilson for the defendant Hutchinson ; and Mr. Carlyon for the defendant Charlton. The plaint set forth an agreement dated the 2nd of May last, whereby Worgan and Charlton agreed to sell to the defendant Hutchinson 1000 sheep and 8000 acres, part of a run occupied by Worgan under a despasturing license, for £IOOO, possession to be given on the 12th December next; it then alleged that by a further agreement, dated 29th May, the original contract was extended, and Worgan and Charlton sold to Hutchinson all that run at Patoka formerlyoccupied by H. B. Sealy (with some otherproperty) for £7OO more, possession to be given on the 12th of June then next; and after alleging that the intention of the parties was, the one to sell, and the other to purchase, 10,000 acres and no more, it alleged that the defendant Hutchinson had refused to complete the purchase unless the whole run, which included about 6000 acres more than the 10,000 sold, were assigned to him ; and it prayed the Court to alter and vary the agreement in accordance with the actual intention and meaning of the parties. The defendant Hutchinson pleaded that he was entitled under the two agreements, which he treated as one, to the whole run ; and the other defendant pleaded that he was induced to execute the second agreement in the absence of his attorney, and without proper t advice. Allen, in opening the case stated that in 1858, Mr. Sealy applied for a run at Patoka, which he estimated to contain 10.000 acres, though then unsurveyed, but which he described by certain boundaries, and that he paid a deposit of £25 thereupon ; that the Commissioner, finding that the run contained more than the quantity stated, gave Mr. Sealy a portion of it, and issued a license to him therefore, which was described by its boundaries, and in the license stated to contain 10,000 acres, though still unsurveyed. This run he sold, in 1859, to Worgan and Charlton, who, on taking possession, found that it contained about 16.000 acres. A portion of the purchase money remaining unpaid, they gave Sealy a. mortgage on the run for it, which became due in March last. In June. 1859- Worgan

and Charlton dissolved partnership, and the latter transferred his interest to Worgan, taking a second mortgage on it for a portion of the purchase money. In April last, Hutchinson accompanied Worgan to the station to look at it, with a view of purchasing some sheen and part of the run ; and on their return to Napier the agreement of the 2nd of May was entered into, under which Hutchinson was to acquire that part of the run known as the valley; but Worgan was to have the benefit of the year’s wool and in.cvease. That subsequently, Hutchinson agreed to purchase 80 acres of freehold, 50 more sheep, .and 2000 more acres, and by taking possession of the px-operty in June he was to get the wool and increase*. The £7OO purchase money under this agreement was to remain on mortgage at interest. In part execution of the first agreement, Hutchinson paid £6BO to Sealy, and was to pay the balance of the £IOOO on receiving possession. The Counsel stated that he should show that on the 12th June the plaintiff was prepared to complete and give possession, and had 1050 sheep mustered and ready for delivery, but that Hutchinson made some excuse, and did not then come up ; and that he did not attend at the station until about the 9th of July, when, the sheep having begun lambing, they could not be mustered, and that the whole flock, consisting of 2000 sheep, was shewn him, and possession offered of them, the 1050 to be selected therefrom as soon as might be. To this Hutchinson objected, but after consulting two neighbouring sheep farmers—Mr. Monro and Mr. M. Hill, he assented thereto, and promised on his return to give a cheque fin- the balance of the purchase money. Mr. H. L. Skcet, a surveyor, had attended at the station for the purpose of marking off the 10,000 acres, which, however, was not done in consequence of the non-delivery. On their return, Mr. R. M. Skeet attended the plaintiff, Hutchinson, and his solicitor, at the office of the latter, and the 10,000 acres were marked off by Skeet on defendant’s tracing of the map of the property, when defendant objecting that there would he no natural barrier between his and plaintiff’s property, the line was extended to a creek which would give a good boundary, and 1000 more, acres to Hutchinson. With this he professed himself satisfied ; but after having been advised that he was entitled to the whole run, without regard to the quantity of acres, he afterwards declined to complete. Mr. Allen stated that he should shew that the 10,000 acres were expressly mentioned and stipulated for ; that the plaintiff had other sheep on the run belonging to a third person, which he was bound to depasture there, and that the plaintiff never would intentionally have parted with more than would leave him sufficient remaining to do so : and that Hutchinson knew of this, and had discussed with him the method of separating their flocks. It was argued that Worgan, Charlton, and Hutchinson had independent and opposing interests on the matter, and the difficulty which had arisen was attributable solely to the fact that one solicitor only had been concerned for the three parties, whose endeavors to perform the hopeless task of protecting all their interests had of course failed. It would be shewn that Mr. Wilson had acted for all the parties during the negociation, and he would be called as a witness to explain what his instructions were as to the quantity of land intended to be sold and purchased. It was further argued that if a clear and indisputable mistake could be established, the Court would grant the required relief and rectify the agreement; and would admit, parol evidence to establish the mistake, and explain the real intention and meaning of the parties. Mr. Allen cited numerous authorities from Story's Equity Commentaries, Sugden’s Vendors, and Taylor on Evidence, on the subject, and on his proceeding to call the plaintiff, Mr. Wilson objected to the authorities as insufficient to establish the plaintiff’s contention ; but the Judge having ruled that he was satisfied therewith.

Mr. Gr. T. B. Worgan was called, and proved the foregoing facts; and he added that he gave Mr. Wilson instructions to transfer only 10,000 acres, and had objected to the words used in the agreement; hut received from Mr. Wilson an explanation that Sealy’s application being for 10,000 acres, no more would pass; and that when Hutchinson declined to carry out the contract unless he got the whole run, Mr. Wilson said that if defendant required more than the 10,000 acres, he could not assist him to get them. He also stated that the excess over the 10,000 acres were sufficient for his purpose ; that he never intended to part with them, and they were of the value of .£SOO to him. That he had several conversations with Hutchinson as to depasturing their

flocks, aud the crock waa. fixed as the boundary ; and that throughout Hutchinson was aware that plaintiff was to retain a portion of the run. In cross-examination by Mr. Wilson lit; admitted that he had made an application for the excess of 6,600 at the date of the second agreement; had paid a deposit thereon, and considered that his application would be successful; but that the land being part of a reserve- it had failed. Mr. Charlton proved that lie had an interest in the run as mortgagee ; that the sale of the whole rim would greatly depreciate his security ; that he never would have assented to the sale of the whole, aud only agreed to concur in a sale of 10,000 acres, which Hutchinson knew well. That he instructed Mr. Sheet to go up and mark oft’ the 10,000 acres, and that lie did so with Hutchinson's aud Wilson’s knowledge ; and that Mr. Wilson told him that he would not assist Hutchinson to get, more than 10,000 acres. That when the question of the delivery of the sheep was settled, Hutchinson promised him to hand over the cheque and complete on the following day, but had not done so. He also, on cross-examination by Mr. Wilson, denied that he had authorised him to use the words of description in the agreement, and asserted that he had required him to insert the quantity of acres in the assignment wlien prepared. In cross-exami-nation by Mr. Carlyon, he stated that in consequence of being dissatisfied with Mr. Wilson, he had gone to Wellington and retained Mr. Carlyon as his attorney ; aud that he believed that when he signed the second agreement after his return he was not represented by any solicitor. Mr. H. L. Sheet proved receiving instructions to go to the run to mark off the 10,000 acres; and he stated that he had surveyed the run, and found its contents to be 16,600 acres. That he accompanied Charlton for that purpose, but did not accomplish it because Hutchinson refused to accept delivery of the sheep. Mr. R. M. Skeet proved that lie was sent for to Mr. Wilson’s office, Worgan, Hutchinson, aud Wilson being present, wlien he marked off 10,000 acres on Hutchinson’s map ; and on his complaining of the want of a boundary, with Worgan's sanction he increased the quantity by 1000 acres to bring it up to the creek. Mr. 11. I). Sealy proved that lie applied for, paid a deposit and rent for, 10,000 acres. That he .believed lie had possession of about 12,000, but that he did not go to the. boundary line of Ogilvy's run, and that he only sold 10,000 acres to plaintiff. Mr. J. N. "Wilson explained the circumstances under which he received his instructions on the matter ; and, after admitting that Worgan did not, direct him to sell ail the run, stated that he had some time previously applied on behalf of Worgan for a license of the excess, had paid a deposit for it, and believed that it would be granted; and that as that would reduce Scaly's run to its proper size of 10,000 acres, instead of mentioning the quantity, he used the description given. He admitted that he knew Mr. H. L. Skeet went up to mark oft’ the 10,000 acres, and that he was present when Mr. R. M. Skeet marked off the 10,000 acres on Hutchinson’s map. That he was well aware that plaintiff had sheep on thirds, and had no other place to put them on but on the excess of the run. The case having lasted the whole day, was adjourned to Tuesday next. Monday, July 22. Tito Queen v. Georye Sinclair. The indictment charged the prisoner with stealing a teapot, the property of 11. S. Tiffin. Mr. Wilson, the Crown Prosecutor, conducted the case for the prosecution ; the prisoner was defended by Mr. Allen. Mr. H. Stokes Tiffin, the prosecutor, proved that the teapot produced was his property ; that he had seen it in use on Thursday, the 25th of April last; that when required on the following Saturday it was missing ; that, from intelligence he received, he wont to Mr. Topping’s store on the Spit, and there saw and identified the teapot as his property. He looked at the number stamped on it, and on comparing it with his invoice he found that it agreed. Mary Ann Simpson, the servant of the prosecutor, also identified the teapot, and proved that it was used by her on the Thursday and missed on the Saturday. John Bowles, storeman to Mr. Topping, proved that on the morning of Sunday, the 281 h of April, about one or two o’clock, he was roused by a knocking, and on getting up, the prisoner spoke to him at the door, and offered him the teapot and clothes for sale, and asked 80s.: but that he subsequently reduced his price to 10s., when, to get rid of him, he paid him that amount and took the things. He thought the teapot was of tin. The man told him that his name was Sinclair, and that he was going to Havelook. He identified him without hesitation. He heard him speak in court, but did not recognise him by his voice. He had never , seen the prisoner before. In cross-examination by Mr. Allen, he asserted that it was b’ght enough to sec the prisoner’s fea-

turps clearly. He admitted that he had been hiifisell’ apprehended on a el large of receiving, and that whilst in custody in the gaot, the prisoner was brought in, and witness there at oneu identified’ him as the man from whom he bought the teapot, lie denied that he had staled iu the hearing of hL? fellow prisoners that he did not recognise him. He stated that it was too dart to enable liim to see if the teapot was of tin or silver.

Mrs. Martha Shepherd proved that she was awakened on the Sunday morning about one o’clock by a knocking. That she slept in a small house at the rear of Topping’s store ; that there was a glass door, and on looking through she saw the prisoner, whom she identified, and heard him say his name was Sinclair. That she recognised him as a man w-ho had been hi the store on the preeeeding Thursday, and had then told her his name was Sinclair.—On cross-examination, she stated that the prisoner and Bowles wx-re in conversation for some two or three minutes, and that on his turning round she distinctly saw his face and recognised him.

For the defence, Mr. Allen, after admitting that the teapot was proved to be the property of Mr. Tiffin, denied that there was any sufficient proof of the identity of the prisoner, and in commenting upon the evidence of the witnesses, he called upon the jury entirely to discard the testimony of the witness Bowles as unworthy of belief and self-con-demning. He laid stress upon the fact that Bowles, having the teapot in his hand, was, through the darkness, unable to sec if it was silver or tin, though it was light enough to identify the prisoner. He should prove that Bowles failed to identify him in prison, and commented upon the improbability of his having published his name, and so convicted himself of felony. He accounted for Bowles knowing Ins name by the statement of Mrs. Shepherd that he had mentioned it on the preeeeding Thursday. He set up an alibi , and called Thomas Brighouse, who proved that the prisoner passed the eight of Saturday in the hay-loft, and was let out of it by liivn at seven on the Sunday morning.—He also called James Lane, a prisoner, who proved that Bowles- had altogether failed to identify Sinclair in gaol. And Mr. Hodges, the gaoler, having also proved that Bowles had failed to identify him, The Judge lucidly summed up the case, mid the jury, with little hesitation, returned a verdict of Not Guilt//. The Queen v. James Lane. The indictment in this case was preferred against the prisoner under the Fraudulent Trustees Act, 1860, and charged him with fraudulently converting a horse, the property of a Mr. Bray, entrusted to him as bailee, to his own use. The Crown Prosecutor conducted the case against Lane, who was defended by Mr. Allen. Hugh Marshall, livery stable keeper, was called to prove that, on the 2Sth of January last, he received into his stables a horse belonging to Mr. Bray, branded J JK, which had been ridden down from Havelock by a Mr. Cony, and was to he returned to Bray. That, on the following day. Cony brought the prisoner to witness and fold hhn to "give him the horse, as ho was going up to Havelock and would deliver il to Bray. That lie did so, taking Lane’s receipt for it. Frederick Dyett, of Waipurcku, storekeeper, deposed that he knew the prisoner, who had been working in the bush for some time, and bore a good character ; that he had frequently employed him ; but that some nine mouths since he had 1011, and then owed witness £3O. That, on the 30th January, he was accosted by the prisoner at Waipurcku, who reminded him of the debt, and offered to sell him a horse, which he said he had received as wages from a gentleman in the Wairoa. That, not knowing the horse or the brand, he dealt with him about it, and agreed to give him £2O. Thai Lane stated he wanted to pay a bill of £'2 10s. to Mrs. Fougerc, and witness ultimately gave him £1- ICs. fn cash, and credited him in account with £ls 10s., and that he took a bill of sale.—On cross-examination, he denied that the prisoner was drank at the time of sale, but admitted that he had been drinking, and* was found within an hour afterwards lying in the road helpless, and was locked up for drunkenness. Benjamin Cavill, a publican at Waipurcku, proved that he w:us present when the sale was effected, and signed the bill of sale as a witness. That the prisoner had previously ottered him the horse, which, however, he had declined to buy, and although he knew Bray well, he did not know the horse or the brand. The horse was placed by Dyett in witness’s stable.—He also, on cross-ex-amination denied that prisoner was drunk. He, however, described him ns getting on and jolly. John Bray, of Havelock, publican, stated that having heard that his horse had been stolen, and was in the stable of the last witness, he went there, and recognised, claimed, and at once received.it from Mr. Dyett. The prisoner a counsel made an effective address to the jury on his behalf, setting up that the prisoner was too drunk at the time of the sale to,be morally responsible for his conduct, and although admitting that the plea of drunkenness, if proved-, afforded no valid legal defence, -ho endeavoured, by narrating some domestic troubles to which Lane had been subjected, to excuse him for being drunk, and to excite their sympathy on llis-behalf. His Honor, however, having pointed out to the jury the direct nature of the evidence, and called on them to give no effect to the plea of drunkenness.—The prisoner was convicted, and sentenced to six months’ imprisonment. Tuesday, July, 23. The Queen v. John Wilks. In this case, the prisoner was charged by the indictment with having stolen a saddle, the property of Edward "Watts, and it was attempted to support the charge by the evidence of Sir. Watts, who stated that he attended the Waipnkurau roses in February last, riding a mare with a new saddle. That lie stopped at Moss’s accommodation house, and fastened his Iforso by the bridle to the fence ; that the place was crowded, and there were numerous other horses fastened to the fence. After staying there about three hours; he left, and on going for his horse found that the saddle was gone. In June last ho heard that his saddle was at- Mr. Tanner’s. He went to see, it, and at once identified it. lie had beared other

saddles were lost there, and horses as well. Mr. Tanner proved that on the 4th of May the prisoner, on his applying for payment of a small account, offered him a saddle on security. That saddle was owned by Mr. 'Watts. George Bradshaw, labourer, stated that he saw the prisoner go to the races, riding a horse with an old saddle ; and that he returned on foot, ahd stated he had lost his horse. That, on the Sunday following he had tea with the prisoner, who with one John, and returned afterwards with his horse and a new saddle, whereupon witness remarked that Wilks had not lost much by the absence of his horse for a few days, as he had got a new saddle for an old one ; upon which Wilks replied that the new saddle was his own, purchased by him for £5 at Waipawa.—On cross-examina-tion, he admitted that 'on the committal of the prisoner he had been called as his witness and examined on his behalf; that two other witnesses were called, and examined for the prisoner, the first of whom had stated that he had found the horse on the (Sunday straying at large with the new saddle on, and had brought him to the prisoner.

For the defence, Mr. Allen commented on the impropriety of calling Bradshaw as a witness, without giving liim notice, and commented upon the improbability of his repeating his previous evidence, word for word, after an interval of four months, unless he had been primed. lie explained that the horse being found with the new saddle on, and Wilks having no means of ascertaining to whom that saddle belonged, treated it as an exchange, and had no guilty intent in retaining possession of it ; and cited authorities to shew that if the original possession was not unlawful, the mere pledging the saddle to Mr. Tanner, would not affect his credit.

His Honor having summed up the case, and put it to the jury that if the evidence of Bradshaw was true, that he was told by the prisoner that he had bought the saddle, his intention of retaining possession at any price was sufficiently proved, The jury retired to consider their verdict, and after an absence of a few minutes, returned into court and acquitted the prisoner. The prisoner was then given in charge upon a second indictment, for stealing another saddle ; but no evidence being offered, he was again acquitted. This terminated the Criminal business. Wbrgan v. Charlton and Hutchinson.

This case was resumed, on the conclusion of the criminal cases.

Mr. Carlyon, on behalf of the defendant Charlton, contended that his client was entitled to relief from the agreement, under the circumstances proved, on the ground that his interest,was not properly protected on the execution of thie second agreement; t and he admitted that the plaintiff’s contention was correct, and that lie was entitled to the relief he sought. Mr. Wilson, for the other defendant, whilst admitting that he had been guilty of groat imprudence in drawing the second agreement in the hasty manner in which it was done ; and in acting for all the parties thereto, contended that he was misled by the parties themselves, and produced several documents to shew the instructions he received from the plaintiff, and stated that his client would be called to prove his belief that he was purchasing the whole of the run, and was entitled to have the contract carried out on its present basis, without any alteration ; and he endeavoured to show that the property offered by the plaintiff was inadequate to the price required from the defendant; and he called

Massey Hutchinson, who denied ever having understood that under the second agreement the plaintiff was to retain any portion of the run, or that he knew the purpose for which Mr. Skcet had gone up to the run, or acquiesced in the measuring of the 10,000 acres on the map by the other Mr. Sheet.—On'cross-examination, he further denied that any conversation had taken place between him and the plaintiff as to 10,000 acres only being sold, or any arrangement being made for the separation of their flocks ; and he stated that when he knew Skfet was going to Patoka, lie never enquired the object of his journey, or objected to the 10,000 acres being marked off on the map, which was done in his presence and under his inspection. He admitted that he desired Sheet to alter their position so as to give him the creek as a boundary, stating that when he did so he said that if he was not entitled to the whole, he should prefer to take that portion. He admitted that he had been over to the land office to the commissioner and ascertained that the plaintiff’s application had been refused, but he did not mention the fact either to his attorney or to any of the other parties. Mr. Tiffin, the commissioner, and Mr. John Chambers, his trustee, were also examined, but did not carry the case any further. . Mr. Allen, in reply, showed how the original difficulty, occasioned by the employment of one solicitor only for all parties, was enhanced by the course adopted: Mr. Wilson being called to prove one state of facts, and then advocating tho contrary, and calling his client to prove a totally different state of things. He urged that the knowledge of the solicitor was the knowledge of the client; and that it opened the door to endless fraud, if one was allowed to contradict the other and set up a different interpretation. He contended, further, that the reticence of Hutchinson in withholding tho knowledge he had acquired at the Laud Office had occasioned the whole difficulty, and the fault being his, he alone was responsible. He also commented strongly upon the conduct of Mr. Hutchinson with regard' to the two Skeets, and in allowing the 10,000 acres to bo marked off on the map. His Honor took time to consider his judgment.