SUPREME COURT.-Civil Sittings.

New Zealand Herald, Volume I, Issue 265, 17 September 1864, Page 5

SUPREME COURT.-Civil Sittings.

Fbiday, Septekbek 16. rßofore His Honor the Chief Justice.! Although the sittings of this Court stood adjourned till ten o'ulock, the jury liad not been summoned till eleven, so that it was quite that hour beforo tho business was commenced. A special ju:y was empanelled, consisting of only eleven members—the whole number present out of eighteen who had been summoned. .By consent of both sides it was decided to go on with the trial with tlie diminished number.

Captain llarrison appealed against his summons on the jury, he having been subpeenaed as a witness in the muse. Mr. Wvnii objected that he having struck the special jury, it was not competent to the opposing party to strike a name off the panel by calling him as a witness, and submitted that the whole panel should be balloted for.

The Court took a note of the objection, but thought it could fjOt be entertained, unless authorities were shown him for so unusual a course. It was obvious that it would bo attended by great public iucoiivenience if a gentleman were first to stand in the witnessbox to give liis evidence and tlieu to return to the jury-box to deeidc upon it. It might so happen that tho whole case turned upon his evidence. Mr. Wyiiu said that what lie complained of was, that having empanelled eighteen special jurymen they were reduced by non-attendance to eleven, and now it was sought still further to diminish the number by taking one oil' as a witness who was only subpoenaed yesterdaj. J,r - Gillies, lor the plaintiff, said this was not an application made by liim, but by tile juror himself. It was not a question ol hiking his evidence or not taking it, but whether he should sit as a juryman. The Court Bottled that he should take'his place on the jury, and when called upon for his evidence it would be open to Mr. Wvmi to object to its beinu received. Iho jury was then sworn. Tho names were Messrs. J- -K. Harrison, Gr. lioskell, G-. Wynyard, A. tSpieor, D. liurn, J. H. liurnside, W. Graham, E. . Grillitlis, 11. TVelvetrees, X. Paton, and J. Taylor. The ease of m'livek v. thwaites was then called, but the hearing adjourned till Monday. PKNTON (ADMIN'ISTftATOIi) V. MACFAULANE. Ml-. Gillies appeared for the plaiutiir, Mr. Wyun for 1110 defendant. -Air. W yim applied to have another issue added, to j tho plea, tu make the case complete, viz., as to what sum, if any, the plaintitf is entitled to recover. j The Court: Put it in tho sluipe of a question j merely. In actions founding on damages, the jury I have always hero iound in the shape of damages. Jn the South it is the practice always to put in tho shapo of a question. lUr. Gillies said that it wns his duty to state the nature of the case, although it would be liiu learned friend's duty to open the pleadings. Tho plainiiff, Mr. Fenton, appeared there ils administrator of the late Hubert iJonald McLeod, to claim from the deiendant restitution of the sum of £yUO, a portion of a sum of £2,700 received by him in payment of an allotment of land in Queen-street, sold to Messrs. Morrin and Jones in ISG2, and which £300 was retained by him as commission, for alleged services rendered to plaintiff in the sale of said land. The pleas are, Ist. is there a special agreement to pay £300 ; 2nd, Jf not, is .6300 a fair commission F 3rd. Jl not, what is a fair commission ? Mr. Wynu said it would be for tho jury to decide what wa:; a fair prieo lor the trouble that Mr. Maeiarlane had unquestionably had in uisposii.g of the property, and the greater uiflieultv in obtaining possesion of it. The facts were tiiese. Some years since Mr. McLeod entrusted to i\lr. X'eltou Mathew.s, money ior the purpose of investment in land in Aow Zealand. Mathews purchased with that money, but in his own name, the l;»nd on which Canada .buildings now stand. Milhew died, and alter liis death steps worn taken by Mr. McLeod and Mr. Jl. 3?. Bairow, w ho was a associated with him, to assort their claim to tho land bought with their money. Mathews being dead, the property he died possessed of revei ted to his widow. Sir. McLeod, residing in Australia, had instiucted Mr. Maefarlane, who was a resident of Auckl and, to obtain jjossession of his propertv, held by Mrs. Mathews, to dispose of it, and re-invest the procc-cds in New Zealand. The original pur-chase-moncy ol the block of laud in (iueeu-street was •£2-0. At the sale to Morrill and Jones it fetched £2,700. It had been agreed by Mr. McLeod that Mr. Maefarlane .should retain, lor his own use, any sum over £i!, 000 the propel ty might icteh. lie had, however, not availed himself of this, but had paid over to McLcod's solicitors admit for £2,400, retaining only tho £31)0, which he charged ior commission and risk.

Mr. Gillies objected that his learned friend could not import the item of " risk" into his case, as it had been expressly excluded from his plea. The Court : Mr. Wynn, you inn only go for the specific agreement for commission. \ou may remember the long struggle in Chambers on this very point of risk. The pleas were then fully argued. The particulars could not be got at, and cannot bo given now. Whatever was tione, there can be no charge now for anything but commission. Sir. Wynn : 1 am not going now, your Honor, to open the question of expenses incurred—simply this: to show that alter a very great deal of trouble, and a lengthened correspondence, the sale was effected by Mr. Maefarlane's agency. If he became guarantee lor putting the purchaser into full possession and giving him a legal title before he had the documents in his hands, he is surely entitled to be remunerated for the risk.

'1 he Court: I cannot consider the question of risk. If lie lost by his guarantee, lie must prove his loss, but separate considerations cannot bo imported into the ease.

ilr. Wynn said, a sale was ultimately elTcctcd to Messrs. Motrin and Jones for £2,700. A tetter from Mclieod to deftnidaut, dated 20tli January, 1559, ■winch would be put ill, would show his great anxiety to have the sale elicited, and that he gave him instructions on the matter. With reference to the allotment in Queen-street, he tells him to lease it, let it, or build a miall house upon it, to the value of about ii'2so, to serve as an out-liouse. lie also expresses much fear tlmt the people of -Ne\\ Zealand arc little better than those of .Botany Bay, and wonders that what ought to bo the elite have a preference for the most tortuous mode of procedure. He winds up by begging him to settle it without the intervention of law or lawyers, and, above all, to "act promptly." The defendant did so—doing all that an upiiglit, honourable man should do in acting for another. £'300 could not be considered an unfair commission on a transaction in which over £2UUO had been realized. Mrs. Matliews continuing to hold the property in her own name, there was some uoubt if it could have been got at all, Liut lor Mr. Maefurlane's energy and decision. Jb'or this the plainull's were now unwilling to allow him even a sixpence. John fcjangbter Macfarlane examiued by Mr. Wynn : lam the defendant iu this action. 1 recollect (lie late Donald MeLeod of Uanderos, .New South Wales. J met liiiu in fryducy at the end of ISO 7. JLie gave me some letters which 1 investigated, lie and liarrow were entitled to some property in iNew Zealand, as heirs-at-law. f _lhe letters were troin iingland mid India. 1 made enquiries and reported to him, and then he came down here himseli about December 'SS. lie tried to sell the property to Connell and Hidings, but did not succeed. After remaining a month, he said he was disgusted, went awuy again, and wrote me this letter on the day he left. (Letter read.) I acted on that letter. 1 did the best 1 could. There had been two previous powers of attorney to nie—one drawn at G-oulburn, and the other at fcjydney. They were both declared to be open to objection, and I then obtained this one from MeLeod at Auckland. Mr. Macintosh, whose name is joined with mine iu the powers of attorney, never acted in the matter. It was dated 2 l Jth of January, 1859. This is a subsequent one dated 2nd December, 1562, made to me only. Under its powers 1 executed a deed of conveyancc to Messrs. Morrill and Jones. 1 previously leased to them on the 7th July, 1859. Mr. Gillies objected that the claim was that in or about 18G2, the plaintitl" was employed by the defendant as his agent. His learned friend was now going into malters long previous to that period. Tlio Court said that the lease containing a purchasing clause, it would lead up to the act of sale. Mr. Gillies asked to be furnished with a copy of the record, but was informed that there was none.

Mr. Macfarlane's cvidenco resumed : Tho property was not conveyed by Mrs. Mathows to McLood, until tho 20th December, '61. It was signed in Sydney. She would not do it here. She left, intending to go to England. I waited upon Mrs. Matliew with Mr. jUcLeod, and tried every possible means to got her to sign (lie conveyance, but during eighteen months

"without success. Iliad.nlengthened, correspondence With India. I returned all "tlio documents to Messrs. Dunsiman and" Stafford,. Mr. McLeod's solicitors in Sydney, when I made the lost remittance. On one occasion, in Sydney, Mr. McLeod seemed to doubt the agreement with Morrin and Jones. . He did not se6m to like it, and said if X could manage the sale, I was to keep the £700, and remit him the £2000. I sent him copies of all documents and corresponded regularly with him on the business as it went on. I had at least one letter in which he mentioned the remuneration I was to receive. From 1859 to 1862 I was engaged in this business. The last time X. was m Sydney, Mr. McLeod was ill, and I had to communicate with liim during several days by telegraph to Goulburn. Immediately Mrs. signature was obtained, I gave his solicitors a draft on Auckland for £2000. It was at some days after sight. I then came down to Auckland, expecting to get the money from Morrin and Jones. On my return from Sydney, I had a great deal of trouble to get the money, fcomo copies of wills, or register of death, or something, had to be procured from India before I could complete the title to Morrin and Jones. I got over the diiliculty by giving a bond. During the time I was engaged in it, I carried out the business to the best of my skill and ability. I paid & great deal of money. "When 1 made the last remittance, I deducted £'300 for my commission and expenses.

Cross-examined by Mr. Gillies : I acted for Mr. McLeod in other mattors besides this, .with regard to other lands besides this- The £300 was to cover my trouble in the whole business, not including money paid out of pocket. Uy other lands I mean the rnuco elaun. I acted also for him about some money Canterbury. That was quite a separate aifair, and is all settled. These are letters from me tO Mr. McLeod. One is only a copy. This is an original in my own hand-writing. It is an account current. The copy is from Mr. .3xll to me ; the endorsement. is mine.

A great number of letters, from Mr. Macfarlane to Mr. McLeod, extending over the period from 1860 to 18G-X, were here put iu and read. They contained much that "was quite irrelevant, but went on the ay hole to show that the writer liad acted as the acknowledged agent of the plaintiff. One or two of them caused much amusement in Court by tljeir unspaiing objurgation of, and inuendos against, the Aliorncy-G-cnerul. Cross-examination resumed: The letters which have been read are from mc, but they are not a iourth part ot what I have written in the matter. I, had more trouble to get possession than anything else; Low and Motion had fenced it in and refused. lO go out. There was a great difficulty in getting the title completed. I had meetings about it at Mr. Jackson s ollice at least tilty times. I conferred with Mr. A\ ynu at one time. 1 had on many occasions to transmit documents to the solicitors. X was acting under the directions of Messrs. Dunsiman and Stafi'ord. iho great trouble was about the signing of the bond. 1 do not know that I objected to let the lawyers share in the plunder. I saw Mr. McLeod several times in Sydney. I was up and down there by nearly every steamer. It must have been about March, ISUO, that he expressed some doubt about my being able to complete the bargain, with Morrin and Jones, lie expressed himself disgusted with the whole affair. He never made any agreement with me.

Examination resumed by Mr. "Wynn: I swear positively that Mr. McLeod said* on ono occasion tliiit I could keep all I got over £2000. The Court here adjourned for half-an-liour. Upon the re-assembling of the Court the following witnesses were examined. a Mr. Hussell, examined by Mr. Wynn : I am a solicitor, practising in Auckland. X recollect the negotiations with Messrs. Maei'arlane about this property. When McLeod came to this country he came to me about his claim. His Honor: What does this lead to Mr. Gillies ? I think this line of examination is trenching vory closely upon the privileged communication between solicitor and client. Examination continued: He offered it to me. I did not purchase it. Xho reason Mr. Crilliys objected to the last question. ILis Honor : It is hardly evidence wliafc mav ho pat-sing in his own mind some days since. Witness : I knew that his title was a, bad one. The legal estate was vested in another person, and there was very insufficient proof .of his being entitled to the equitable estate. iJis Honor lxcputation is not evidence of private claims—reputat-on is only evidenco of public right. *Ur. Wynn: I wish to show from letters already before the Court, what the witness, from his knowledge ol' the fact*;, knows.

Witness - I did not make an ofier, becauso X did not consider his claim good. Mr. McLeod stated to me the nature of his claim, and I learnt tho partiirom private documents. I declined to havo anything to do with the property. I cannot say tliat any price was fixed, but the offer was made. X v onld not entertain the question on the ground of defective title. Mr. Kidings Mr. Gillies : Mr. Ridings had nothing to do with it. It is not evidence. I really do not wish to shut out any evidence. The defendant in this case has to show his claim for labour done. Tin's is' not shown, by anything that may be said by previous sale or a previous agent, or somebody who made negotiations which, have nothing to do with the issue in this", case.

Mr. Wymi : I will not press it, but I thought it might curne in Quantum meruit. Witness: I have hoard Mr. Macfarlane give his evidence to-day. 1 havo had considerable experience in Auckland, in connection -with the sale of property. I have heard that out of this purchase money, he deducted the sum ol ,£3(JO. I consider, from my own experience, ancl the evidence of Mr. Macfarlane, that it. is a reasonable charge. Mr. Gillies: I object to the last question and answer. It is putting the -witnesses in the position of tho jury. The question whether a particular charge is reasonable or not, is the very question which the jury are sworn to decide. Mr. AVynn: Contended that the purpose of the inquiry was to inform the jury what was a reasonable charge for a particular class of service. A witness therefore might very fairly inform' the jury what would bo a reasonable ehfuge. If the ease, instead of being in New Zealand were heard in England, it would be competent there for a witness to speak to what is reasonable or otherwise. The objection was 011 the assumption that all or most of the jury were commission agents, and therefore more particularly acquainted with transactions of this sort. He supported his position by Taylor, on evidence 11., 1273-4 showing that skilled witnesses or experts wero allowed to givo their opinions in evidence. llis Honor: That is not objected to when the facts are admitted, but whon the witness is asked to speak to the very question, which is left to the jury to deteimine. '•

Mr. Wynn thought that the question ought to bo admitted inasmuch as the witness w;is simply expressing his professional experience as to a charge, and this answer might go to the jury quantum valeat. Witness: l'roin my own knowledge, and after hearing Mr. Macfarlane's evidence, I think the charge was not excessive.

Cross-examined by Mr. Gillie ■ : Tho usual charge for the sale of land is from i and 2\ per cent, up to o per cent. The objection 1 had to this property was principally arising from defect in the title, other parties being in possession. It is not strictly a land agent's business to remove defects in title. Ido not know what steps a land agent could take to remove dcicct in the title. A general agent might procure the evidence .lie might write for it, He did write to Mrs. Mathews. There.were other difficulties also—that of ejecting, the parties in possession, for instance, an agent might persuade a purchaser to take the title as it stood. That is a common case. A land agent is not usually inclined to sell a bad title. I mean a defective title. I have never known instances where ton per cent, was charged for the sale of land.

Samuel Jackson examined by Mr. Wynn : I am a solicitor practising in Auckland. I was concerned for Messrs. Morrin and Jones in purchasing this land from Mr. McLeod. I myself attended to this transaction. There was an agreement to leave a deed of declaration of trust, a power of attorney, from Mr. Mathows t > McLeod, a conveyance, &c. There was a great deal of trouble in going through this matter. Mr. Mcl'arluno had a great deal of dilliculty. There was not so much difficulty in giving possession as in getting tho title. I do not think £300 anoxcessivo charge for the trouble he had taken. When tho money was paid and execution of the deed some conditions were imposed on Mr. Macfurlane. When the deed came down from Sydney I had advised Mr. Macfurlane not to pay the money. Mr. Macfarlane entered into, a bond of £3090 to produce such documents relating to the property when called upon. He agreed to pay tho money if he got the bond; that -was not, however, under my advice. Tliis is tho bond.

Mr. Gillies objected. The plea was that-defendant •was employed to sell and give possession; that was entirely independent of a bond. The defendant that no right to give in evidence of having done any thing else but having effected a sale. Ho had not objected to a great jmass of irrelevant evidence brought forward merely to cfTect the minds of the jury. He did not intend to interfere until the object beeamo palpable. His Honor said that this question bad reference to facts upon which tho witness had been examined. Ho -would admit tho evidence subject to a point of , law to bo reserved. Cross-examined by Mr. Gillies; Tho rates for sale of property above £100 is 2£ perctnt. Both Mr. Macfarlano and myself had a great deal of trouble. I do not know whether I had as much trouble, but I had a great deal more responsibility. If I had received £200 I should not havo been overpaid. Mr.JMcLeod was continually at mo to accept tho title on behalf of Morrin mid Jones. I told him what I required. The matter was thrown off from time to time, till I was satisfied. Mr. Wynn put in tho lease. This closed tho case for the defendant. Mr. Gillies explained what tho plaintiff's position was in this case. The plaintiff was tho representative of Mr. McLeod. The property was sold for £2,700. £2,400 had been remitted, and the charge of £300 withheld. This, on the first blush, appeared an enormous price. It wi:s said that in case of defective title, 2;V was too little, but 5 per cent, would be ample remuneration, and that wculd amount to £135. Tho grout amount of trouble soemed to have been going about amongst the lawycis. He had not induced them to go beyond their duty. Some of tho objects of this trouble would bo inforred from his letters. He was anxious, no doubt, to havo a lawsuit with Mr. Whitaker. He had be(ri very solicitous about the Thames, and then he wished to purchase a land claim of £500. Tlio trouble in this matter was not a land agent's, but a lawyer's trouble. Had lie gpne to a lawyer, ho would havo told him what was necessary to make the title, good. If Mr. Macfarlane wished to exercise his personal influence with tho lawyers in Auckland to ac< opt a title, that was not a matter for which ho should chargc. Ho would call witnesses to show the pioper charges for the trouble taken by the defendant. Mr. Joseph Cochrane, examined by Mr. Gillies : I am an auctioneer and land agent. I have been so for several years. Tho eustomaiy charge is 2-J per ccnt. for the selling, exclusive of other matters. There conies the expenses for diffusing information, and other outlay. When there is no anangement it would not affect that price, whether there was much or little troublo. Such things are frequently matters of arrangement. I havo charged 6 per cent, for an extraordinary amount of trouble. 1 havo never known 10 or 12 per ccut. charged. I havo never known moro than 5 per cent. Cross-examined by Mr. Wynn : The case in which I charged 5 per cent, was in Auckland. I>'rom the time I received instructions till I expcctcd the sale, perhaps six months elapsed. I stated to the owner there would be an extra amount of trouble. It occupied my time, my attention bung drawn oft' from other matters to attend this one. The trouble was attending to persons calling, and frequent references to the proprietor. I had no difficulties in the case, about possession, I speak of, nor no corretpondencc. I came to Auckland in 1554. I began business as an auctioneer in connexion with my brother in the year 1859. Mr. Morton Jones, tho hon. Fred. Whitaker, and Mr. Aitkcn wero called, but d'd not answer to their names. Mi. Gillies: regretted that the witnesses 'nlio had been supoenaed, were not prisent, to lay befoio them what was the charge, usually made for the selling and giving possession of land in Anckland. The first question was whether there wss any special agieement between McLeod and Macfarlane, the former to give tho latter £300. The jury had only to consider what ■was reasonable, for effecting the sale and giving pos-

session of the property. Besides a charge fer all the lawyers, there was £300 demanded by Macfarlane. Hie reasonable and customary chaiges were 2J per cent. Mr. Macfurlane had not always contemplated charging £300. He had furnished accounts in which £10 per cent was charged. Of course, ifMr. Macfarlane had expended any amounts lie could charge, these amounts over and above by per centage. He considered it would be reasonable to allow Mr. Macfarlane, 5 per cent. There was a great deal more trouble in the sale of ordinary merchandize. Even where they had a guaranteed solvency, they had onlySJ per cent for all tlie trouble they might take in moving goods. In cases of a defective title, the agent could not do anything himBelf, he conld get that by writing for the necessary evidence. In this case the property was leased to Morrin and Jones, with a purchasing clause binding the lessee to purchase when the title should be made good. There is no evidence of the trouble, he had not written to India, he took no doubt a great deal of trouble to keep out of legal espense, but creating very large amount of It gal expenses for his principal. Mr. Macfarlane was going about amongst tho lawyers. He entered into a bond, but this

wholly beside the question. There was no trouble.in giving possession, for Mr, Macfarlano had possession before the sale. The question here was no for "investigating title for trouble or outlay, personal and unavoidable, but the question was solely for selling, and giving possession, the 6ale of property is according to the usage. It may be by agreement, by usage, or the valuo of services might be estimated by a jury. "Where there is no special agreement, yet a local usage, an agent is not entitled to recover unless he shows trouble that is very unusual, or some specific expenditure of time or.money to the service of the vendor. "We admit that he has taken a great deal of trouble, we are willing to pay him not simple 2J but 5 per cent. £135 would remunerate a man for ti great deal of trouble, but an arbitrary amount of 12 per

cent, is an exorbitant charge. Mr. Macfarlano- by implication had admitted that 10 per cent, was as

much jis he could ask. The evidence of the gentleman, who stated that the charge was not excessive, was most vague, and not calculated to enlighlon the jury as to the justice of this ease. He trusted that jury would not sanction this exorbitant claim, which could not reflect any credit upon the commircial usage, or principles that obtained in Auckland. Mr. "Wynn in reply said that while he congratulated Mr. Gillies on his first appearance in the Court he sympathised with him on account of the cause which ho had to conduct, Mr. Gillies had promised evidence of the usages of the professional land agents and others of great experience in Auckland. He called Mr. Morton Jones, he was not there, then the Hon. Frederick Whitaker, he was not present, then Mr. Aitken he did not come. He did not call these gentlemen upon their subpoena, as he ought to have done. He'left out the question of a specific agreement. In the letters produced it appeared that Mr. Macfarlane had followed Mrs. Felton Matthews to .Sydney, and other incidents showed that he had taken a great deal of trouble on behalf of his principal. It had been said that he had gone about among the lawyers, that he was a land agent, but these considerations were no evidence. The case in hand extended over three years, and required voluminous correspondence to make ready for completion. Gentlemen of proficiency and experience, Messrs. Jackson and Kussell, had told them that the charge of £::00 was not only not excessive, hut very moderate. The evidence of the other side was meagre, vague, and inconclusive. llis Honor; in summing up, left it to the jury to pay, the first issue as to a special contract being no longer before them, whether the charge considered as a commission, was in excess of that established by usage, and if so, whether there was any extra amount : of trouble taken by the defendant to justify such charge. The jury would best arrive at'a correct conclusion by taking the whole case together, instead of in parts, applying to all the facts which had been elicited their- common sense as business men. We have a letter in which some mention is made of McLeod giving £700, then to the effect that defendant stated'his claim to be £270. The jury would be best able to eliminate the matters important to assist them in arriving at a sound conclusion. The'ijury retired, and after deliberating about a quarter, of an hour, found a veidict for the defendant on all the issues. ■ Mr. Fenton.applied for a writ of habeas corpus to to bring, up beforo the Resident Magistrate the body of Edward.. Lawrence, now in civil custody, on a charge of felony, for that he on the 11th of May last, being in command of a company in a "Wnikato regiment of militia, did obtain from the Colonial Treasury money for the .purposo of paying men under his corn maud,i which he fraudulently embezzled and ap-

plied to; Ilia own purpose, &c. The Court,adjourned to 10 o'clock of this day