DISTRICT COURT, REEFTON.

Inangahua Times, Volume IV, Issue 66, 10 September 1877, Page 2

DISTRICT COURT, REEFTON.

Thursday, September 6, 1877. (Bdfuro His Honor Judge Wcslon ) : Rkevks v. jVl'Lkan. Tho hearing of this case was- proceeded, with this morning on the Baffin j'jtioitj of v thb sittine. The cu.se for ibo i__.Vtiir.,,Wa-« dotiT eluded on Tuesday last, u^|jthii|anoriiing . the ense for the defenco .wasfgofle into. The, first witness called was— Hgy *%&< -#0 William McLean— l anf an ntfetionoer residing at Reefton, and the p'aintifF in the present action. I know section 97 in Rr'oadw'ay/plO ferae'inberf insti'ucltid'ns 1 eing give'n-to mo- about 4l_o sale r of this „l.u;qpexty l ,x a J,t. s WQul.d, be ..as.. nearly as possible about the 18th or 19tli of November lust. The instructions were 'from Mrs. Cole, she came to my office, ancl had a •*lonw' < ~eirffiVfer^irtiO*r'reltftiVb''"fo'',''h'fer son's (I.O(*he' ! sj'afralrs. ; S_e ; 'fold 'mo her soii h«d "a" taction and shop for sale in Broadway, J'eefton. She then pave me verbal instructions to sell by auction. if lie said the property consisted of section 97, and witli shop aDd stock of stationery I (old her that I' had business in Greymouth, and was leaving next morning by coach. She said not to sell for less than £120, nnd that that was all her son had out of "the affair. About the terms she said I had better see her son, and I assented. Nothing was said about the title up to this time. After. saying I was going to Greymouth I asked her where was the Crown grant or,,.whether* l it~was issued; She r ßaidshe had not got ib^bufo'She^SUp. -••posed ' lhaV it"' wds' eftl.ier v m ,Nelson or that her, son had it.- Next morning I went to Greymouth and called on Bocho on either the ,20th or 21st of November. to that I had inserted an adveriisement in the paper at Mrs. Cole's request. When I saw Mr. Roche I told hiflfwhafc had passed between myself and his mother, and he said it was all right. Mr Collins was ,'present at tlie, time. I said would .show him the advertisement, and having- left 'and got a copy of .the paper and showedjiim'tTie advertisement. ;As to tlie. terms,' he said he would leave that to me; but he would not fake less, than. £l2Q. : . When I showed him the advertisement •, he ,saicl it .was all right, everything was at-Rfeftoti; and'bis lawyer "had^told liiln.it was all, right;. I asked him übout the. Crown grant,. and he told me to see about it. I -understood from him that the section 'wus his, but ths-t the grant was: not ready* He said that his brothe'r^n law owed him about £30'Cfand! that he' had been keeping his family ever siiice, now Mrs Shannon -wasleaving and he Wanted fd sell. I cannot fix tbe exact daje *r*r,hen j first |teiegi ; apiied' about the title., To the bestr of<.my belief I telegraphed before the- sale to Adams and Kingdon wiio are acting as my agents in Nelson.., ..^hat I ; said ; . was, .as nearly as passible^- as- toiiwhethv'r the' grant; was ready Oi* whether iilie "section, was sold. I anil quite I did- hot. ask as to whose 'name: the-. section was in.. I got a reply to the effect that i'tlie' grant was ready. Do. not recollect^'.any' further interview with Mr Roche before the sale. I think Mrs Cole called on me before the sale,' and gave mo„tbe bill ot sale. I told; her that I had seen her. son in Greymouth and that' he'had' confirmed lhe instructions she had giveu me, . and the reserve was £120. At .the sale the goods were put up first. Prior to this I read the advertise* mont of the sale.' I prod u era conditions, of sale, .read after the advertisement/ When starting the section and house I said, "I am now going to sell tlie section and shop on beball of Mr Roche, of Grey mouth," I said I did not know much, about the title', but I beliored' the Crown grant was forthcoming; I mentioned the terms as half cash, half three and sit, months bills secured on the property and bearing.bank interest. I, did . not before the bidding give any guarantee of the title. I did not mention the : Word guarantee. I never do at sale unless I have the guarantee in my hand. The property was knocked down to Mr Reeves ' Hut a dispute arose between him and Mr Butler, but ultimately Butler gave way,; and Reeves was entered as the purchaser. Reeves subsequently' paid a deposit of £14, and not £10 as he stated. He then went away to ; Ahaura, -and'! o 'did "riot see him after, the sale. He wrote to mo from ] Ahaura enclosing a cheque for £65 [letter read;] On' the '2nd December Reoves ea\toy,onl me,, and "asked . for .the £14 deposited .and- I handed it. to him. He then asked-'rnVabout'the^ titlo, and I told blip Mr R6clie'wits;the s seller of 'the property. I produce the agreement drawn v-> at the time. It recites the terms of the sale.' I received th6'sas_ and bills. I .allowed Reeves, who waa present all the time,' to dictate a large portion' of the contents of tho 'receipt. : The bill's^ were drawn before the receipt. The bills' were completed 'and 'signed by me, and as they are how, witH'the. 'exception of Roche's name before the agreement was drawn. ■By His; Honor*- I*With'1 * With' the exception of tliii Bank marks aricT Mr Lucas's 'daarks, and,. Roohe's, endorsement .the bills, at the , time they wore signed by Eeeves 'Were 1 as Cliey arc now? T's'wear distihotTy that the ;name of (RoohejiWas.., in, .th embody of the bills beforeißeeves accepted* tbemv r ' ■' ' ! i Examination contiuued—.Tjfe, 'bill's and acjoo.un t,.s.a les, werp Jq rw.ardeil; on* sth c. , following day to Roche. Roche did' -not ;acknoWlecl'c(e're'cei^fc'of' the account sales nor return'oft cither the bills or tlie money.

About a month or six weeks after the s«le I met Roche in Greymouth, and told him Mr Pitt vt anied a tr.-.i^fcr for Mr Ueeves, and tbat 1 had given the bill of sole to Mr Tit', and that lhe latter bad said the bill contained no title. Boche said be would see Mr Guinness. I recommended him.Jfco do so and getthc matter cleared up.> Sa\V;. him again before this action commenced!* M|^erkiWs.:and Mr Beeves went with me toßoehe'sf I asked Roche why he did .notj.ja.ke sjteps to give mo a title,- arid "be said he would see his solicitor. I have no ; recollection of au interview with Reeves' When I referred him lo Roche I gave l Reeves j;he key of the premises on the day. the bills -were drawn and he took possession. I Ci'das-exnmined — Amongst tlie condij tions ofjsale were the following : The bighest li^^^^fee the purchaser. Half cash andp||sl»at . three and six months. I deny Mr Reeves asking as to my having guaranteed "the title. J think I could sell 'ihe property if I expressed a doubt about tho title. I did say that I knew very little about the title. I would have bought the property myself. I say that the evidences of Reeves and Campbell as to the use of tho word " guarantee " is untrue. Recollect Mrs Cole saying tbat she instructed me to sell under the bill of sale ODly. That is not correct. She did not hand me the bill of sale then. I never read the. bill of sale before the sale. Ido not recolloct telling Mrs Colo when sho gave mejthe bill of sale that I would tele,graph abloutthn title. ; .'" :'•■'*£■ By the Court— .On one of the occasions I did i s^'"t ! o Tiei-^that I' would make ingv i rio&kb__ut; ,t h c, ]fci tl c . Examination continued — I asked Roche whether liW required mc to seize under a bill of sale, ancl he said not, that ho had been iv possessions for the last three years and the property was : His. I did not sell under a bill of sale. Mrs Shannon was carrying on business herself, and' Mr Bocbe instructed me. I did not seize anything. T sold all that wus given to me. Kocbo, said ihe did not know where' tho grant was, bpt that I had better try and find out. I cannot say positively whether I telegraphed, about the title before the sale. I said in my examination that I inquired of Adams and Kingdom whether the section was ready. I may havo use tho term "bought." I withdraw that ns ■ not been applicable. The goods wero sold on behalf of Roche. I told the public when itsjirted the saio on whose behalf I sold. There were no extra conditions •relative to. the sale bf tlie section. ' Idid say thai I did not know much about the title. Roche told' mo tbat the property was bis, and.,lj,s.)hl as he instructed me. I had no legal or documentary proof of the ownership of the section. I Bold under tbo full belief th.it llu section v»,-is tbo property of Roche, I was quite sati-fi d with the fillcV-Jf I bad bought this section. I would. have -fnkw-i eiirt! not to part whh my money before I obtained ntitle. Heard Ueeves sweir positively that the name of J. B. Hn'che •vas no! upon tbe bills at 'the time he accepted. I state positively that Roche's name was upon the bills before Reeves signed across, and that no writing was added after bis signature was affixed.It. came to my knowledge on __d August,' that the Ci own grunt was in the nnme of Richard Shannon. I Re-examined— lt was after I showed Roche tho advertisement that I asked him ; whether I was to seize uuder the bill of sale. ' By the Court— Mrs Cole handed mo the bill of sale. I do not know why she' left it with me. She said she had a letter from her son. I understood from her she said j she had a letter from her son instructing her to get the bill of sale from Mr Pitt, and on the next? timo she brought the bill of sale, I do not think there was any connection between the instructions to sell, and the bill o.f sale. There was no connection. I never opened or read the bill of. sale until after the sale. I only referred to tho bill of sale after receipt of a letter' from Mr Pitt. Roche referred to the deed, which he said was iv Mr Pitt's possession. I understood from Roche that the section was in his own name. William Dunn — I am a carpenter resid» ing in Reefton. I recollect Mrs Cole coming to me about seotion No. 97. Iv October or November she, wanted to sell the section In question. I do not ; ; kno*w that she offered t'osell it to any one else.She told me to sell 'the '-section/ if '_ could get a purchaser., , M I tried' to effect, a sale. I never saw a. bill of sale. She said her son held a bill of sale over the property, and that the title was good. I was present at the sale of the property. I was there at the commencement of the sale of the seotion. I heard the conditions read out but I could not repeat them. He said he was selling under a bill of sale, and he believed the title : was good. He said he was selling for Mr Roche. Do not remember the word " guaranteed" being mentioned by the auctioneer, He said something, to the effect that the title would be forthcoming or was goed. He did not positively say anything about guarantee while I was there. The property was knocked down to either .Mr Reeves or Mr Butler. I always thought :! the l: title was aU right. ,-. „- •, - , (i .. , v .... JameSr.Swans.onr-i am, a clerk inthe, employ W. M/Lean and Co. I recollect; tbe'sale of scetibn' ; '97,"Broadway,'oti c the; 25th. November. ..I, was present; .during j tlie, wholo time ol the,,saje. Mr M'Lean I mentioned/ the naWo, of Roche, ' arid Ij j believo he said he .was soiling under a' mortgage, lie 'said he believed the title

wou'd be rielif enough. He did not guarantee the title, and never does guarantee a title unless lie has tlio titlo in li«s linnd. I have acted as Rale cli-rk for Mr M'Lean for lhrp« or four years. A dispute arose about vho purchase. Cross-examined — I did not hear Reeves put a question to M'Lean. I will not nndertaafe to say that he did not. but he ...was standing a good way off. nnd if he liad asked a question everybody would have heaijd him. 1 know. Mr M'Lean did not guarantee .the title. He 'said he supposed the' title would be all right. Re-examined — I saw where Reeves was . standing. He was at the door of the \ house, and was in a position to hear what Mr M'L-an said, I do not remember whether Mr M'Lean telegraphed to me 'from Greymouth about the section. Thom;.s Collins— L am a fruiterer livieh at Greymouth. I am acquainted with McLean and Roche. ' Recollect, gointj with McLean to Roche's shop. McLean spoke to him about tbe sale of a piece of land in Reefton. He asked Roche if he bnd seen an advertisement pf tlie pale, and Koche said he had not. McLean then said he would go and fetch a paper, and we both left and went to Gilmer's and he got a paper and put it in his pocket. I was not present when lhe paper was shown to Roche. Roche had spoken to rae previously about the section and house. John Butler — I am a miner living at Reefton. I recollect the sale of section 97 Broadway. Reefton. I was not present at the starting of the sale. Did not hear (lie farms of the sale. I bid £125 I for the section, and Reeves bid £130. W. Edward llicksou— l am manager of the Reefton branch of the National Bank.- I was stationed at Greymouth some months ago. I recognise the bills produced, tbey were~<banded by Mr Roche to the bank for discount, and were both discounted nnd the proceeds handed to Roche. Neither of the bills have since been paid. We obtnined judgment against Reeves for tbe amount of the bills. Tbi9 closed the case. Mr Reid proceeded to address the jury for tbo defendant. The defence was reduced to tbese grounds. Ist. That;- t**e conditions of sale referred to in plaintiff's declaration were uot those upon which the sale 1 was conducted. 2nd. A denial of all the material allegations, and lastly that defendant never was indebted to plaintiff as alleged. The defence rested upon tlie fact that prior to tbe sale defendant disclosed the name of hi"-, principal, nnd buy* ing done so, the principle of caveat emptor applied nnd absolved tbe defendant from liability on nceount of bis subsequent liability to maVe a good titie to the"] and cold. Mr Pitt replied for the plaintiff, gong over the evi!l<jnco ancl thvcllihg upon certain de9cre pan oio3. His Honor then summed up ©xhaiistirely, reviewing and sxnalrf-ing the evidence minutely, ftnd placing tho mean facts before she ; jury with great oli'iirueos_ft The -jtiry then'retired, and after an absence of about fifteen minutes, returned -"with a verdict, for plaintiff for • £144 6s 10 1, being £132 9s fid tbe ''nmrnint of* cash, bills, and interest therein, paid 'by plaintiff. £3 3s tbe cost of 'investigating* the title, and £8 14s 4d being' in terestat the rate' of 12 per cent on the amonnt since tbe date of tbs sale. Judgment was n^ord ined y given for plain* tiff for that .-am witb £23 8s costs. Saturday, .sF.rTi'siisEU 8. 1877. In lhe matter of ibe K'.viNY Creek ("VnnuNY (in L'q-ii lation). and Vv.yym RUKCKT.Ii. ..This was art: application by Mr Reid, on b»bn!f of^hp; 'iqpjdator, for an order fo place Uie mine of Piireeli upon tin- liV of contribn'onc-5 in ihe above Company jn respect to 500 slni'"s. Mr Gumess appeared to oppose tlie application on behalf of Peter Pun-ell. Mr Heid in opening said the case had been partly hoard on two former occasions and had been finally ndjoured for , the purpose of allowing Mr Purcell to be pre' Se" 1 "- "■ " , . „ ' . ,„ ■ V. Purcell — The signatures of myself and'Hulpin n"ppetn\ upon the transfer. I saw him sign. The name on the affidavit is the. 'signature of Hulpin, the snmo Patrick Hulpin mentioned in the transfer. In "one. document Hulpin is de'eribed as of Grevrnouth, and in the other of " Maori Gully." the reason is tbat ono document was drawn in Grevrnouth, and the otber at Maori Gully. The transfer was sigued at Maori Gully by Hulpin, I filled up the first portion of the transfer in Greymouth. I cannot say positively wbat portion Was filled up in Greymouth. The numbers were not included in Greymouth. Hulpin lived most part of the time in Maori Gully, that was his home. At the time I filled in bis place of residence I did not think it made much difference where he lived. Tbe negotiations relative to the sale were first opened at Maori Gully. I told him I had held the. shares for a long time arid could not afford to keep them any longer. He agreed to accept the shares for £50, and gave me a promissory note for the amount at simonths. The bill has since been paid, at the time I was indebted to him for labor. When ihe bill matured, he, paid me £40 in cash. I did not advance him the £10. I paid him what I owed him and he repaid me. If Hulpin is made a Contributor. I shall ■nofr*b,e*_ade responsible. I absolutely transferred tbe shares.; .Hulpirii worked for me ? for some time/ He 1 lias never taken 1 shares 'from ; me pn; any former occasion.' 'The signature at ' the 'toot of the affidavit 'is $hat of Patrick • Hulpin.', I sent the" traWfer fo Mr Brenhan. I agreed to pay the transfer fees. It is usual for the seller to pay the, transfer fees. At tho time I sold, there was no word of the. winding up., , By Mr, Reid— Hulpin ..was working; for me. lam a storekeeper. He Was; packing and driving.- Tho account be"! tween us is for wages. . He had 80s per week and found. I could ' not > say. the' exact amount of wages 'due - to 1 him' afc : thej time. It was about the 26th -or* 27tli of June that the negotiations l commenced. I swear that at the tinie I had not heird that tlie Company was likely to be *^oWd up. I thought the shares would become of some value. The call paid by' me iii July was due upon the shares at the time, of transfer. It was agreed that I .should i . pay all calls up to ; the date of transfer. ! I wrote up to Brennan to cffeGt the trans- : fer, andihe refused unless I paid a call of £62 10s. I paid that call, and Hulpin paid £32 10s of tho amount. I made up j. his account,' and gave him £32. 10s which was' the amount of one of Hhepromissory notes which bad falleh'diie. '■•'_ did 'riot pay him his wages 'regularly. I think I; ']]iiid ; £!0 !i irt March. He entered 'thy, oiupTdy* in August; 1875. I advauced him | sums of money at djfferent.tim^s.' ' He'is| still in my employ. I can't* say that .at-

the time I credited him with tho £30 10 that am^u-i' was due to liini. By tbe Court— Tbe i'_o cash which I paid bim wus to meet tiie bill, I owed bim the money. I paid bim tbe mono.-, and he returned it to tne. I can't say that the whole thing was a sbam. By Mr Guinness — At the time I gave the £40 to Hulpin, that amount was due to him. The necessity for meeting tho bill was the only reason for the money passing. Tbat £10 has been credited against Hulpin in my book. Tbe witness waa not quite clear as to certain dates whicb lie dould clear up by the I production of bis books. ' I His Honor then suggested ibat tbe case should stand adjourned fo Greymouth, and in tbe meaniime notico to be served upon Hulpin to be in attendance. In the same matter be Benjamin Gough. This was a similar application in respect of 500 shares. The case had been beard on a former occasion, and was adjourned in order to allow certain points i.i doubt to be cleared up. Mr Staite appeared to oppose. Benjamin Gou_h — I am a ferryman residing at Ahaura. I know Patrick Gawn. I sold him some shares in the Rainy Creek Company. I produce the transfer. It is in my handwriting. It was about the 17th May, the consideration being £40. I sold the shares for the sum mentioned, and received the money from M'Gown. Mr Thomas Navis, a miner, was present when the money was paid. Nnvis works up the Ahaura. My reasou I for sellirg was that the management of the Company was bad. I bad no knowledge that winding up proceedings were probable. M'Gown was working about tbo Ahaura. At the time I wrote out the transfer, I did not mention the man's occupation, and when I forwarded the paper lo tbe manager for registration, he returned it to me directing rae to fill in the man's occupation. I then tilled in the word " laborer." I knew nothing- of the I man's financial position at the time. He was never in my employ. Ido not know where be is now. He remained in the district five or six months after the sale. I have never paid any calls since the transfer. By the Court — I beard the management of tbe Company wns bad from a carrier on the road. I did not know at the time what tbe shares were worth. I went to M'Gownn and told him I wanted to sell some shares in the Bainy Creek Company. I told him I had 500 shares. I have some land at Ahaura. M'Gown was never in my employ in any shape or form. I told him I wnnted £50 for the shares, and he off>red £10. and I ultimately accepted it. I then cot the transfer from the post office, and on the same evening ho came to my bou«e and signed the transfer. Ho paid the £40 in notes. I did not owe him aGd at the time. I sinned at the time M'Gowan signed. When Mr Brennan returned tbe transfer. I wro^e in the word " laborer" to M'Gowan's name, aud then went to M'Laughlin and not him to witness my signature. Not a word was said at the time about my receiving back either the money or tbe shares, I have not sihee paid any money to him. I told bim all call-" wore paid on the shares. By His Honor — I suppose he got Hie money as wai/p*. I did not think it strange tint tin- man should have £10. T did Uot f*'v l < him particularly to sell tlie sh-uvs. I told him my fears about the wi* ag°inetu. Mr Beid said tbe explnmtions of the witness appi-ared q-iite s iti-f icfitry, and in fhe face of this bo co.ild press tbe application n"> further. His Honor was of tbe same opinion, and tho applicants name was accordingly offered to be removed from tho list of contributorics.