SUPREME COURT.—Civil Sittings.

New Zealand Herald, Volume I, Issue 266, 19 September 1864, Page 5

SUPREME COURT. —Civil Sittings.

Tiiuhsdav, SKI'TKMISKII 15. [Before His Honor the Chief Justice.! Tho Civil Sittings which had been postponed to this day, in order to allow several of tho heaviest ol the criminals charges to be disposed of and struck oil' the calendar, opened at 11-o'clock this morning—the adjourned Criminal Sessions commencing on the 2(jtl» inst. A jury was struck, consisting of the following gentlemen : —Mr. AVhitson, foreman ; Messrs. J. ifrook, AY. AVil'iams, I). Keene, K. Law ford, P. Walsh, AV. J. Shane, Jrl. Grcenncre, tf. 33ond, T. Barr, W. Goldwater, AV. Scott. Mr. .Tames Brady was fined d£s for non-atten-dancc. The first case called was DAKUY }\ IUTXCIMAIf, but. Mr. "Wynn on behalf of the plaintiff withdrew the record. COSTLEY V. MOUItIX AND OTIIRUS. Messrs. Merrimim and Ueveridge appeared for the plain till', Mr. AVyim for the defendant. Mr* Mr~riman asked tho Court's permission to retire with his learned friend for half an hour, to make hiinsell acquainted with tho details of the case, as ho had hud so harassing a duty to perform last week, that he had not yet been able to give this matter the attention it required.

Mr. AVynn 011 the part of his client, who was not in the colony, at first objected, but it being shown that there was a prospect of settling the case out of court, and it being peculiarly one for arbitration, the Court allowed the half-hour for consultation of counsel.

The half-hour having expired without any arrange, ment having been come to, the case was brought before the juiy.

.uir. Merrii.ian in opening forthe plaintill'regrcttod that the ell'orts to sett le the case out of court had failed, as he still believed that it could have been easily arranged by reference to a competent, surveyor. It would be on just such evidence, proved by a number of witnesses, that he should have principally to rest his plea, which was for restitution of a piece of land improperly built on by the defendants. He should bring forward a witness, who passed over the allotment before the first sale in 18-13. He would swear to the position of the pegs with which the allotment was marked out, and the corner pegs showing the line of Queen-street, and would speakas to the original boundaries. Surveyors would speak as to the position of the buildings on that portion of the allotment that had been sold by Whitaker. This was a question of fact peculiarly for surveyors to settle, ami the jury would be called upon to decide it mainly upon their evidence. It would be for them to find whether defendants had encroached upon tho lands of Costley, whether to the extent claimed in the declaration, or only to the extent of one inch, made no difference in point of law. It would be for them to assess the damages. The deeds were admitted on both sides. Mr. Men-iman put in the Crown Grant, dated 15th August, 1812, by which conveyance was made to Frederick Whitaker, of whole allotment. No. 7, ol section 11, in the town of Auckland, in the Parish of Waitemata, County of JCdcn, containing 1 rood and 3 perches, bounded on the north by allotment 8, 2GS li'iks; oil the east by Lower Queen-street, 10G links ; on the south by allotment (i, 2GB links; ami on the west- by a lane formed out of allotments 7 and S. 100 links.

lie then put in n conveyance by Wliitaker to the plaintiff Costley, of a ponion of this property for the -tun of £231.

Dime liarnard cne of (lie partners of Laniard and Allan architects and surveyors was the first witness examined by Mr. Merriman : I was instructed to make a survey from the comer of Queen-street down to the lane formed out of lots 7 and S. Mabin and Graham's store forms a portion of allotment !), see. 17. 'there is a lane between that stoic aud Giltillan's. 'taking the "William Denny to be the correct line of frontage of Queen-street, and Gilfillan's store as another correct line, Mabin's store encroaches on the public road 17 inches. The encroachment on the street is the brick building occupied by Charles Davis, aud Mabin and Graham. The southern corner does not encroach upon the line of street. The whole ol' the eastern face of the building gradually encroaches towards the northern corner. Along the line of the middle of the lane, the entire distance with the encroachment from the corner of the building to Morrin's store is 103 feet S inches. There is a bonded store at the back of Mabin and Graham's. The main building runs back -12 feet 3 inches in addition to the 17 inches of encroachment. There is a small dwarf wall from the end of the building 20 feet G inches long, including a gateway four feet wide. You then came to tho bonded store 3U feet G inches, then a space of 0 inches for tho down-pipe of Morrin's roof, then Morrin's store. Deducting 17 inches from the side frontage of Mabin's store it is

102 feet 3 indies to tho corner of Morrill's. 1 got to the back of Morrill's store by traversing up West Queen-street, and up u lane leading to it. I mean the lane almost parallel with Queen-street at the side of Morrill's store. The plan I have now marked is correct.

Cross-examined by Mr. Wynn : I made this from 11 ground plan. I started from tho point at which 1 could see up the lane Mabin's and Gillillan's stores. The plan does not purport to show the correctness of the lino of Queen-street. The two points of the William Denny and Gillillan's store I take to be in 11 correct line. It is from that line that I assume the fact of the encroachment 011 tho road. I learnt, my profession inJingland. I have been a surveyor eight or nine years, and have practised my profession here live years. I served two articles, one in London, and one 111 Dorsetshire. 1 have had a good deal of experience in Auckland. I do not know how many surveys I have made here. I have had 11 complaint of one survey made for the Provincial Government. They said it was not right, but, however, they paid me tho money (laughter).

The Court said in. this case 110 doubt one of the two parties would iind iault with Mr. Barnard's survey. 1 said the entire distance is 102 feet 3 inches. Tho various items add up to 102 feet S inches. The discrepancy is accounted for by the six inches for the down-pipe, which should be excluded. 1 made this plan yesterday, and worked tiie greater part of the night at it. I received my instructions yesterday.

At this stage of the proceedings, the Court was adjourned hall'-an-hour for refreshment. At a quarter to two it re-assembled.

It not seeming likely that UlO present ease would be concluded before evening, the jury in waiting was dismissed till 10 o'clock this mornin". .Edward Costley, examined by Mr. Merriman : I am the plaintill' in this occasion. I recollect the fvst land sale of Auckland town lands at Government house in ISII. I recollect Mr. Wliitaker purchasing allotment 7 of section 17, of which lalterwards purchased a portion. I recollect at that time going down to look at the Government pegs, numbered, and denoting lhe ground to be sold. I went down there before and after tho sale. Tho peg of No. 5 allotment marked the corner of Wett Queenstreet. (Witnesses ordered out of Court.) That corner peg was where the William Denny now is. J recollect a peg at No. 7 particularly, iu the line of Queen-street, and all the line down to No. 10 quite perfect. The peg between allotments 7 and N was ill the centre of what is now tho iane. Kive feet were given from each allotment to make the lane. The surveyors put the pegs very straight in a line. lam still the owner of the land No. 7. 1 recollect the purchase of the allotment at the corner of West Queen-street. It was pegged. The tide used to come up to those pegs. I have seen the tide come up beyond that point. The line of Queenstreet is now as nearly as possible what it was when laid out by the lirst survey. I did not myself measure back the ground from Mabin ,t Graham's More. I have seen the ground measured back from Mabin & Graham's stores. It was measured up the lane as far as my line went.

.His Honor: Is not the question now in dispute— " Whcro is luv line ?"

Witness: Tho ground is situated one foot five inches upon Queen-street. One foot live inches gives the line of Queen-street.

Croas-exnrained by Mr. Wynn : Felton Matliew laid out the line. I did not givo Messrs. Heaphy & Co., instructions to take the line. It was not a gully, it was a fine beach. I think a boat could at that tiuio come aa far as tho corner of Wyndhamstreet. (Laughter.) I have never seen it. I'he store was built ou my ground, which is now occupied by Messrs. iUnbin and Graham. 1 think it was built about throe yeiu-s ai'ier it was purchased. 'Uiero was a building on it before. It was not. much ol' u one. It was a mere wbare There was no alteration in tlie line of Queen-street. Queen-street is now in the line that it was first laid out. I did not see the yiegs put down. I saw them first in March The sale took placo in .April; I recollect that particularly. It was in the beginning of March I saw them first; 1 think it was abouttlie 10th. The sale was on the 19th or 20th of April ; that is the nearest I can recollect. I took notice of the depth of them behind. 1 have seen some of the pegs that denot ed the depth. 'JL'hey were of a similar character to those that denoted the frontage. I think it was in jS : oveinber, ISG2, I took this action. Mr. Morrin, one of the defendant.!, was then out of the colony. He had just lcit. By Mr. Merrii nan : G-ooOl'ellow had a bakery at the corner of Wvnclhani-street. Tho ereek went through Montcfiore's yard, a Jiltle to the westward. I never saw a boat come beyond Montcfiore's yard, and then only at high tides. lam confident that the pegs indicated the line in which the street is now built.

Mr. Charles ITeaphy, examined by Mr. Merrinuui: lum a surveyor. lam chief surveyor to the General Government. I have made u survey—that is, certain measurements of some land there in my private capacity, between West Queen-street and the Wharf. 1 know ibis plan. j" LMan handed to witness.] I made it. The plan is based on the western side of Q.ueen-strcet. At the corner of the lane it shows au encroachment at the promises of Mabin Graham. It is an encroachment for a brick house, known as Armson's brick, house. It is the next house to the sout.li of GiUillan's, with a lano running between. I did not measure the width ol the lane. Assuming the lane from "West Queen-street to Gillillan's to be the correct one, the encroachment is one foot iivo inches coming olf to nothing at the southern corner. The front of the building is not on the piano of the street. 1 made measurements backwards up tho lane. I measured in the first place tia feet. That measurement came to tiie middle of a stone store. It is marked bonded store in the plan. I made further measurements back to the extent of 24 I'ectO inches. That brought mo to n brick storo known as Mr. Morrin's store. Taking those two measurements together, assuming them to be correct, the encroachment of the store has been seven i'cet. 1 cannot swear to those deeds. Home deeds were placed in my hands indicating the points to which my measurements related. The measurements delineated are correct on this plan. They bring the encroachment about licveii feet.

Cross-examined by Mr. \Yynn : I started from the line oi Queen-street. I had plans, anil my own knowledge of this lino of street. I had a general oflicial knowledge of tho lino of the street. Thole are points in Queen-street which I believe to be correct ; one point I know, which is the guard-house and gaol. 1 did not check tho survey with that point; not from a point so far.

Examined by Mr. Meriiman: I checked it from the William Denny, what is now West Queen-street, it is a fixed point—tho one that 1 believe it.

By Mr. Wynn : I was not hero at tho time of tho sale.

John Anderson Brown, oxnmined by Mr. lioveridge : 1 was present at tho sale ill IS-11. I purchased some ol the allotments —number 5 lot. It was then a lane, and is now West Qucen-stieet. I observed how tlxo ullotments were pegged oil' from the corner of West Queen-street to the Wharf. They were pegged ofl' in the same line as the street now is. 1 know that it was pegged off from my own allotment to the water-line in the line ol the street, I caused to be made a sketch of tho manner in which the idlotments were pegged off. It was done before the sale. This paper 1 hold in my hand is the sketch. lam perfectly acquainted with it. This is tho whole of tho plan connected with those four immediate allotments. Tho lane has been widened 10 frei. 1 gave up five feet. lam perfectly sure that tho lino ol l.ower Queen-street- is correctly delineated on this sketch. 1 remarked the pegs months before the allotments were sold and years after. I cannot say who were the purchasers of those allotments. It would tax my memory too much. J purchased No. 5 ; Dudley Sinclair, purchased JNo. G. JL merely heard from hearsay who purchased No. 7.

Cross-examined by ill". Wynn : I do not know what the maker of this plan was ; he was not n lawyer. (Laughter.) It is the same now as it was then, 1 mean the line of the allotments. Ido not know that Queen-street tiiul the lane are parallel. I presume this sketch represents tho situation of tile lane and Queen-street, but I don't know that they run parallel.

Alexander Black, examined by Mr. M crriiuan: I am one of the oldest inhabitants of Auckland. 1 was here in IS'll when lhe lirst lnml sale took pJacc. Mr. Dingwall bought ail allotment. I think it was allotment No. S section 17. It was next. Mabin and Grahams. Mr. Wliitaker purchased No. 7. AVe gave up live feel each to make a lane for our mutual convenience. That was between Mr. Wliitaker ami us, Messrs. Dingwall, Marshall and myself being partners It is the lane running between Mabin and Graham's and Gilllillan's store. 1 have often seen the coiner peg of No. 7 and No. 8. I have felt it and laid ; tones against it where the tide came up and washed it. 1 have seen oilier pegs in the l.'ne of Queen-street. The lirst land sale described the exact quantity of land in each allotment, nol more or less. AN 0 found that the allotment was short of the measurement, and we made application to the Government, and they sent a surveyor down, and commenced what is now termed West Quecnstieel, on an angle running out l'rom the beach. This was a couple of years after the sale. I was employed by MacGuire to build a house where the A\ ilJiam Denny now stands. .That was the allotment purchased by J. A. Brown. The south corner was on the original corner, but I had to build upon the new line of liueen-itreet, standing oil'to the east.

By the Court: That new lino would slant oil'to ;he cast.

By Mr. Mcrriman : The present, fence of the William Denny is not 011 the hue I orignally built up. Tne original house is as near to the line as possible The line of street is as near as it can be to the line as laid out by the lirst survey. For the late Dudley Sinclair was built a long skcllan going past the old line. I was bomo 12 or 1-1 feet past the original line that was given. That was to the eublwaid. The Government gave £50 to take that portion down that stood 011 the street. 1 built a Jlou.su for myself 011 that line. J had to build one for Mr. Marshall, and another one for Mr. Dingwell. 1 built those threu houses 011 No. 8 allotmeiit. Marshall's, house was southernmost. Mr. Ligar was surveyor-general, and he sent Mr. O'Malley, a surveyor to give us the lino, which he did with his theodilito. 1 did not see any of tho original pegs them. 1 cannot say when I last seen any ol' theso pegs. I suppose a couple of years" would elapse between tho time ot the completion of tho building, and tho time wo saw tho pins. I have 110 idea what was the last of the pegs. Tho water came over those [legs twice every twenty-lour liouis, aiul I have seen alter a storm two I'eet of sand mid sea weed against them. I helped to build the houso now occupied by Gilfillan. Marshall was tho master worksman, and 1 helped him to build it.

Cross-examined by Mr. Wynn: I recollect the lano runing at tho back of ( theso allotments. J have in my Jiand tho crown grant. 11l tho plan they seem level, that is Queen-street and that lano It the lines were continued tlicro might bo a divergence. 1 don't th ; nk they aro parallel. I remember Mr. {Sinclair buying No. 12. Mr. Sinclair said 110 would have the land, but liu did not say whether he would have the whole of it or not. I cannot swear ot this sketch as though the lane and Queen-street were parallel, but I cannot say what would be the elleet if tho linos were continued. Tho line of Queen-street alter that alteration was altered to tho eastward, from the corner of West Qucun-street, coming down to lot 8, it would givo MO or 10 feet moro land. It was a mistake of tho Government as to tho line of tho street, that induced them to givo £00. I and my partners put in a claim for compensation. This was because the allotment Ko. 8 did not contain tho amount which which wc bought.—They returned £37.

Cross-examined by Mr. Merriman: I have no hesitation to say that with tho exception of tho lirst a inches, the line of tho street is now as it was then.

Sir. Dingwcll, examined by jMr. Beveridgo : I was present at the iirst Government land sale in ISII. Before the Hale I looked at the pegs of each allotment. Tho peg in AV'est Queon-Mtreet wan. at the corner wlit-ru Ihy William Denny is nou-. That is as near

as I can recollect. It -would not ho at tho exact corner, as there wero five feet given afterwards to mako tho lane. Tho line of street is at present as near as possible to that of tho first surveyor's plan. From tho William Denny to the comer of Gilfillan's store, that was tho line. The peg dividing allotments sev an and eight was situated in the lane dividing Gilfillan'B and Graham's Btore. Tho lower corner projected somewhat into the street. lam not cei tain how mueli. lam positive Gillillan's store is in the hue of tho original street. Cross-examined by Mr. Wynn: I purchased lot eight. lam not certain whether the lane alluded to ran parallel. I know how much I purclisised, and I got compensation from the Government for deficiency. 1 cannot 6ay what wag the depth of my own allotment then, or what it is now. I remember when iueen-strcet was altered, a short time afterwards. When altered I could not say I had the quantity of um ocausu n °t get a surveyor to measure it. W hen, however, they put tho lino back, I sued the (rovernmont i'or compensation. lio-oxaiuined by Mr. Bcveridge: I am sure my present building is on tho right line. So is Gillillan's store.

lexander Marshall, examined by Mr. Bcveridge: lhe cxam"iation of this witness was almost word for word the same as the last two witnesses. John Goldie, examined by Mr. Bcveridge: I built a house for Sir. John Anderson Brown, in 1841. I saw the Government pegs ; I also Baw the othor pegs towards the water. Tho -peg was about five feet to the southward of the \Vi"mm Denny. The line was the same as it is now, as far as I can judge. Another line was subsequently laid down, and part of it built on. Those buildings on the new line are not still there. I believe the lino of the William Denny is the original line. Tho present, is the original line down to Gillijlan's store. If it had been built upon the new hue it would come across the streets. Cross-examined by Mr. Wyim : The peg I think was about five leet-from tlio corner- The present AVilliam Denny is now on the site of the one pulled down.

lCdward Costley , ve-called by Mr. llcrriman : I see this plan put in by Mr. Barnard. I seo the part coloured green. According to the best of my knowledge it represents the property I purchased, but the other plan, proved by Mr. lleaphy, represents it better. Mr. Morrin's brick store stands upon the corresponding part on Mr. Hoaphy's plan. I was in possession of that before Mr. Morrin's storo was built. Tho part which I have marked with pencil, fur the information of his Honor, represents the portion of my property which Mr. Morrin has built upon. I enclosed it with a stono fence, together wiili tho property I had purchased from Mr. Whitaker.

Cross-examined by Mr. "Wynn: I say that Mr. Morrin has built upon my property. 1 had some words with Mr. Morrin about it. It was a short time before he took it. Ho had threatened to eject mc from this piece of land, lie took possession. The house was a good way up before 1 knew that he liad taken it. 3 commenced the action as soon as I cotdd but utter be lelt the colony. lie did not give me time before ho left. 'Ihe building I think was put up in April, IS(>2. I think the frontage ho has built upon is about 7 loot 8 inches. _ There is about G i'eoi at the baek. 1 swear there is more than. 3 feet. As near as I can enmo to it, it is 3 feet G inches. Ido not know that I have compared the plan with tile-d-own grant. I have not compared Mr. Heaphy's plan with the ground itself. The value of the land is according to my mind. 1 never asked compensation i'roni the Government.

Mr. jVTemnian : We <irc for possession. Ijy ill-. Wynu : 1 could not state the value. I place some little value on it. iiveryone likes to. have liis own, be it !ittle or much. (Laughter.) It might be tlie contrary in my mind.

He-examined : Mr. Mcrriu offered me £100 for the land. Mr. Morrin gave it to Mr. Marston or something of tho kind.

Tho further hearing of the case was fixed for Saturday next, and the Court adjourned to (this day) at 10 o'clock. Saturday, Si.l'temisek 17. The business of the Court, couuncneecl soon after 10 o'clock, with the ailjourned case of Costeley v. Morrin and others, before the same jury as oil Thursday.

Mr. Wynn opened the case for the defendant, at great length : He said that ho regretted equally with his learned friend, t hat this cause haduot been settled by arbitration, as it was uow very dillicult to decide about a boundary which had been left- uudeeided to many ycais, unless the jury could be satisfied lrom the plans and evidence produced, that it has remained undisturbed all that- time. It was for the plaintiff to prove that the defendant had trespassed on his land. The defendant was not at all called upon to show that he was on his own land. An unfair prejudice had been attempted to bo thrown on to liis client's case, in the minds of the jury by the statement that an ell'ort to compromise the matter had been made on his behalf. 'JLlie statement had not been admitted, and had been struck oil'his Honor's notes ; but still he feared an unfavourable impression might thereby have been left- on the jury's mind. They had been told that- an action had not. been brought until Mr. ..Yion-ill had left the colony. liut. they had not been told that tho first notice received ol any such intention was the serving a notice of summons oil Mr. Jackson. The plaintiff, although just as well aware of what his real rights were before as after, had waited until Mr. Morrin had put up a cot>lly building (he did not mean by this that it was on Costley's land though)—a. building on which he believed ;C1,8(J0 had been expended— and then made a demand for a portion of the land on which it was erected. Mr. Jackson, in the absence of his principal, had, it was true, —and he thought, very wisely—rather than have any further bother about it, made au otfer of £100 to Mr. Marsden, the defendant's solicitor, to settle the matter.

The Court suicl that this was a matter entirely between the two solicitors and could not, be imported. If professional gentlemen did not keep tlieir own eoniidences, many very useful amicable arrangements would become impossible. Mr. Wynn desired the jury to dismiss from their minds any idea they might- have conceived that Morrill, was, in making tins oiler, conscious of any wrong towards the dcfeiidcnt, or ot any Jlaw ill 1113 title. Ji.vcii it lhere was it wrong, Mr. Jackson was thoroughly justified ill making such all oiler. lie loured lhat unlets personally acquainted witli tlio locality, the jury would have great dillieulty in understanding it from the maps and evidence that had been prouuecd. lie proposed to put into then* hands a plan of Auckland. ill-. Merriman objected, that the plan hud not. been proved, and could not be brought lorward. 'lhe Court supported Llie objection, 'lhe map was merely good by reputation. It showed what a man represented to be the slate of the country perhaps 15U years ago. Mr. Wynn, you should show on what principle of law you deem it admissible. It i» a very jiiee point to go 011, if you have a sale verdict without it. Mr. Wyim : "Well, you all know Queen-street and Albert-street are nearly pavallel. According to a sketch which will be produced by a witness—a sketch made by himself, and which he w ill swear is correct — 1 shall prove lhat at the time the laud was laid oil' into allotments, Albert-street, Queen-street, and the lane—called, I believe, Governmeut-lnne—ran exactly in straight, lilies. No doubt the surveyors who laid it out lor the sale of allotments, cut it up into straight lines, fciince then, it has been found more convenient to give a bend to Queen-street, and this lias had the elleet of giving increased frontages to that street, but the land in the back allotments lias been, by the same process, diminished. When the owners of these allotments found that they hucl not got as much land as they had paid for, they went to the Government and asked lor compensation. In one instance, I believe an action was brought, and the Government recognised the claim by pay ing for the delicicney of the land shown by the Crown grant, but not. forthcoming in fact. When a witness was asked the tjuestion, be bad staled that it was not the frontages that were short, but the depth. He should prove that the various lots of section 17 were all sold at the same time. They were then described as containing so much land. When measured it was found it did not. Why should Mr. Costley now coino forward and say to my client, " I must have mine at all events, and you'vegot it" Why docs he not go to tho Government, or to the individual from whom ho acquired the land ? The surveyors seem first to have made the street straight, then crooked, and then moved it back again. liecause it is thus jumbled up, after twenty years, why should Costley come and say to Morrin, " you're the trespasser." Mr. Wliitaker was tho original purchaser. Why was he not brought? Tliey have brought the purchasers of all the other allotments, but it very singular tbuy have uiit brought the man who could best speak to tho fuels of this particular case. All tho vitnciscs pro-

duccd have contented themselves with measuring the frontages. I sliall put into the box, Mr. Kelly, who was subpoenaed by the plaintiff, but whom they were afraid to call. He was a joint purchaser of this allotment, and measured it in every way, backward and forward. The deed of conveyance from "Whitaker to Costley, dated February 6, 1843, recites the description of the property more carefully than it is the practice to do now, and I wish to call your attention to its language. .After the usual technicalities, it- conveys to Cost-ley 41 all that piece or parcel of land of allotment seven, section seventeen, bounded on the point by a lane of ten feet laid out between allotments 7 and 8, and bounded oh the other side by land sold to Chishotm and Porter." This land sold to Cliisholm and -1 'or;rr is precisely the same us that on which Morrin's building now stands. Its boundaries arc thus shown by plaintiff's own deed. He bought his land actually by the boundaries of that already sold "Wliitukcr could not convey to Costlcy what had been already sold to Chisholm and Porter. The deed contains a covenant to produce the deed of conveyance to verify Cliisholm and Porter's title, so that Costley is constituted a party to the deed as the largest purchaser. I can't understand what plaintifl'can have to say. It is dear his remedy, if he has one, lies against "Whitaker. It is also quite clear there's too short a quanttty somewhere. It is for you to say who's the cncroacher.

(Various deeds were here put in bringing down the conveyance from the original purchasers to the :iutual holder, Morrin.) Itobcrt James MacFarlane examined by Mr. "Wynn: I am a surveyor currying on business in Auckland, under the firm of Davy and MacFarland. I made i ome measurements yesterday of section 17, of the j'own of Auckland. I have here a rough eketcli of tiiem. I had not tune to make a proper plan. The ttore erected by Mr. Morrin is marked here. I measured the ground on which the store is erected. The nest side fronting line measures 54 feet 1 inch; the J.orth end 3fc> f'oet iuclies; the south end 38 feet II inches. The east I could uot get measured on aecouut of other buildings. I believe it is as near as possible to 54 feet. Tins sketch shows those measurements.

The Court to counsel: Do you agreo as to the depth irom tlio side-lane.

Mr. Wynn: Yes, your Honor, as to the 54 feet running south. The two plans agree ; but we do not a ;ree iu tlio other measurements.

ill-. MaeFariand's t'xaiinnal 1011 resumed : 1 made iv.eusurcments through Queen-street and West Queen s; reel, unci up to Albert-street. Assuming Albertstreet as correct starting-point. Air. il orriu's s; ore would appeal- to encroach on the lane about 4 feet l> inches.

Cross examined by Mr. Merriman: I went by the general run of the fences in Albert-street. I had not time to take any lixed point to start from. I could not swear that the l'enee is in its original position. I have nuulu measurements from tho northern andeasterncor-m.-rof Mabinand Graham's store iii Queen-street, up to IWorrin's store. Mabin's stole is out of tho lino of Queen-street, drawn between the William Denny aucL Gillillau's store. It appears to encroach on tho road about 18 inches, i'rom that poiut where the encroachment is to the end of Mrs. Costley's building is 101—llv.. From the comer of that building to the corner of .Morrill's, is about 0 inches, partly occupied by Morrill's down pipo. lloratia Xelson Warner, examined by Mr. AVyim : I am Deputy Waste Lands Commissioner for the Province of Auckland. I have been here twenty-four years. My profession is that of surveyor. 1 havo the custody of the plans of this province. I have been in the Waste Lands Department since August ISOS. That was my lirst connexion with tho Government. I entered the department as chief clerk, and have not been employed by Government as surveyor. T:ie plan in my hand is an oliieo record of the plan ox the town of Auckland, kept in my office. It has been there as a record during the time I have been there. The Waste Lands Oliieo is the proper place of deposit lor these plans, inasmuch as the old plans were handed over by the General Government in lSuo. The custody of tho plans was then transferred Irom the Suiveyoi-General's Department. Tne 'Waste Lands Ollice io tho proper place of deposit for the ancient maps of the town of Auckland. I now produce a plan from that office. I know it to have existed since 1855. [Considerable discussion here aiose as to the admissibdity of the plan in question, which was ultimately stopped by Mr. Wynn reproducing another plan, wliich was placed in tho wunecses hand.] This is a plan of the City of Auckland. The general bearings of Queen-stieet, ■iVlbert-sU'eet,audanintermediate lane appear to me to bo fairly represented, but I would not swear to their accuracy. L don't know of ;uiy lixed point from which io ascertain the correct position of any allotments. 1 know of no point at all irom which I couia start to chcck tho correctness of section 17 and its allotments.

Cross-examined by Mr. Merriman: I merely speak to mis plan aa generally correct.. 1 cannot spcalc as to wnore any pugs were in the ground ill 1843. Ido not iceollect a very accurate survey being made of eliortlanu-street by Mr. Orinsby. I was not connected with his department.

Julm Kelly, examined by Mr. "Wynn: lam a settler residing in Auckland. I was present at the first Government land sale in 1841. X was then a surveyor. X was connected with Mr. 'Whittaker, who bought land then. I was part purchaser of lot 7. Tlio back allotments up towards Albei t-6treet wero sold the same day. The whole section was, as far as 1 remember, sold that day. X supposo X went over their whole ground, as X wanted to see the lund I was to buy. X saw a plan of the land for sale, and examined ii. 1 saw the line of Queen-street and Custom-house-street marked on this sketch X hold in my hand. Tins paper appears to represent the piece of ground then =oid laiiiy enough. X was a purchaser myself, and subsequently soiit portion of.my share to Messrs Cliisholm and X'orter. X eub-aivided allotment number seven. I pegged those allotments of Gliisholni and X'orter myself. I tliink tliey were 20 leet irontage. Air. Wynn asked to put in a deed of conveyance of the land to Porter. Mr. ALerriman objected. The witness was no party to the deed. Mr. Wynn: I beg your pardon, lie is an attesting witness. liis Xfonor thought that tho deed ought not to bo handed to witness. VV ltness: Then these allotments were 61 feet li-ontage. Mr. X'orter bought two, and Mr. Cliishoim bought one. 111 making the measurements X cannot quite recollect where 1 started from, but there was a great cutliLuity in starting from any part of there being no line, the greater portion was mud or lock, i remember all tne pegs blown away but one; one stood lor along time, 'lucre was at one time two l^ueeii-streets —mere was an inner y ueen-sireet. lam quite positive when the land was sold iu 1841, it was a rectangular block. Mr. Costley purchased but subsequently to the auction, lie purcnased three lots altogether, but whether they were all bought privately 1 cannot say. X do not know which allotment were put up, those fronting Queen-street or those behind.

Cross-examined by jvtr. Merriiuan: I am not aware whether at, tlie time of the sale the pegs wore nil in, but they were kept pretty well up lor the ljijunnalurn of the public, siixty-one feet was the allotment with live feet taken oil. Two would bo lect each, and the remainder for the hind lot. There was 2S feet of allotment that had never been sold, it eould never be found, it has never been found, yet (Laughter.) There was some incorrectness in the depth of the allotments. I imagine to get to the depth of the allotment, the measurement should be from a iixed point in the lane. Indeedthe landwasnot the same shape as certilied in the grants. My impression that there are its feet in the depths that nave never been sold. We did not sell according to the grants, for if we sold according to the ground that we thought we had purchased, wc should liave to come out on Queen-street.

To Mr. VVynn through the Court: I have been subpuMicd by both parties.

Mr. J amea TiSeiU examined by Mr. Wynn: I am a member of the General Assembly, and also of the Provincial Council. I have been about 23 years in Auckland. I remember purchasing lot G, section 17, from Dudley Sinclair. There was a long store as well as a largo house, the long store ran out to the frontage of tne street. 'The end of the store abutted on Queen-street, as then understood. It curno to my knowledge.

All*. Alerriman objected. Witness : Iliad to remove 14 feet of the end of the store that abutted on Uueen-street. I had to make it level with the line. it narrowed off towards the south to nothing. The arrangement was made with Sinclair, and I wrote to the Government saying that as 1 was owner of the land I expected compensation should bo made to me. I received £50. Ido not law** whether it was for the removal of tho house or for the use of tho laud.

Tho Courtfor ialf an Lour. Upon tlio Reassembling of tho Court— Mr. Wynn addressed the jury for tho defendant. Ho thought the -question and the only question for tho jury was "whether Mr. Morrin had encroached on tho property "of the plaintiff. He would show tho contrary. Mr. Morrin was himself short of land. "Was Mr. Costloy to say that because his property "was not 'clear up in a straight lino, according to what lie conceived to be his property, that therefore ho must call upon Air. Morrin for property for which the defendant had paid. Tho truth appears to be, from tho evidence of Mr. Kelly, tho land never "wtis there at all. It was said that the land was 'sold in rectangular allotments, but an examination of tho Government plan showed that there were narrow strips going off to a point. Was it to bo supposed that a deficiency of land being proved by Mr. Kelly, the plaintiff should thcroforo come in and claim tho lull amount of land. As for tho pegs, it was in evidence that they had to be attended to — they had in fact to be watched. Ho begged to put into the hands of tho jury, explaining fully how the matter stood. (Deeds handed in.) Mr. Kelly became the purchaser of allotment No. 7. This is subdivided into three. Mr. Porter has two, Sir. Cliisholm buys one. It was agreed upon that starting from the Government lane there would not be enough land for all parties, according to the grants. Mr. Kelly stated that he measured 40 feet depth, and it is found that Mr. Morrin hud only 40 feet in depth. The plan in the Crown grant confirms Mr. Kelly's evidence, and it was in evidence that all the purchasers of land who complained had compensation. The land was sold not as Queen-street now, but as was on the plan. Assuming that ho had a right to go in Qucen-strcet, according to the plan, ho should go against the Government, and not aguinst Mr. Morrin. nis Honor: It is somewhat perplexing. It is puid that Sinclair encroached 14 feet: if the Crown grant did not contcmplute such encroachmcnt —if there was a mistake, and then the persons in possession should go back 14 feet without any Crown grant, why, the Crown grants would bo altogether wrong. Mr. Wynn : It would appear that tho feo of this land was in Costlcy and in O'Neill. Costloy might go on Queen-street if he were to insist upon the correctness of the original line. The truth was there was a mistake. His Honor: You had better tako caro how von deal with Crown grants, for remember that a Crown grant based upon error is void. Mr. Wynn : If so, where would bo Mr. Costlcy's claim. His Honor: As regards tho Crown. Mr. Wynn : Even then tho clmm of Mr. Costley's would bo untenable. He would bo in a worse condition. Ho (Mr. Wynn) would leave the whole matter in the hands of the jury. It was rather late to come into Court. This matter had not been done in the dark. Mr. Costley knew very well what Mr. Morrin was doing. Ho did not move in the matter until Mr. Morrin had gone out of tho colony. The jury would inquire why the delay had taken place— wherefore some proceeding had not been taken in the matter before. He trusted tho jury would weigh all the circumstances ; and he had confidence they would not return a verdict upon evidence so insufficient as had been adduced by tho plaintiff. They would return a verdict of yea or nay upon the pleadings. Mr. Merriman addressed the jury for the plaintiff. Ho relied upon the deeds from which it appeared that Costley had purchased this land, that his titlo had never ceafod, and that his claim had been substantiated by credible witnesses. The plans which had been put in, though very nicely got up, he would undertake to say were not correct. The plans were nothing as compared to tho deeds which described wholo transaction, and included tho very fact that Costley was taken in and mado a partner to them, and ho was called upon to produce the Crown grant when called upon. The peg which forms the line of departure in the measurements was sworn to by several witnesses, and this boundary was watched by all the parties to the purchase of "the allotment. The plans upon which the jury will bo asked to form some opinion of the real direction of the line would show the facts, and although an attempt had been made to discredit the surveyor who had madejthe plan for the plaintiff, it was the old plan. No defence but abuse the plaintiff's attorney. The evidence produced was of tho most misty description. The witness relied upon could only say that he " thought" this was so, and that was so. It was necessary to have something moro than opinions so expressed. Tho deeds and plans would be handed to tho jury who would give their opinion upon the whole question.

After somo discussion, in order to avoid confusing tho jury by laying before them technical issues, it was agreed to ttfke a verdict upon the main issue —encroachment or no encroachment. To do this, however, it was necessary to annex a plan to the declaration other than that which had been submitted to the Court, on the ground that it described more accurately the property claimed by tho plaintiff. This --vas done accordingly under leave of the Court. His Honor : That the jury would find a verdict upon the first two issues for the plaintiff. It was on the third issue that everything, and the jury would say whether there was or was not any encroachment by the defendant upon the property of the plaintiff. It was very important that the jury should say how far the defendant had so encroached, for as the sheriff would probably be called upon to give possession, he would be embarrassed very much if he "were to require A B to give back land which he had taken from C D, and no dimensions were stated to guide him as to the description or extent of the claim. The evidence was very voluminous, and a good deal of it very loose as regarded this particular portion of the case. It would be advisable if the counsel for the plaintiff Btated clearly for the information of the jury, what the extent of tho encroachment had been.

Mr. Merriman: From the plan which has been annexed to the declaration it is seven feet six inches. I believe, your Honor, these are the correct figures. His Honor: The jury would have the deeds and plans before them, and all the assistance it was in the power of the Court or the gentlemen in the cause to give them would readily be afforded. The only point us based upon the evidence was that one of the parties claimed to measure the quantity of his land from the back lane of which so much had been heard, and the other insisted that it should be measured • from Queen-street. They would also have to consider whether the exact position of the peg which had been spoken of had been so accurately fixed as to lead their judgment. The frontage up this" side lano was the difficulty they had to deal with. Tho claim of the plaintiff under the grant from Mr. Whittuker is of course prior, and if the point lie has fixed he tho right one, the jury wotdd find a verdict in his favour. Eut the jury must bo reminded that the plaintiff must prove his case. He must not bo allowed to rely upon tho weakness of tho defendant. The defendant is not called upon to do anything further than to answer tho evidence of the plaintiff so far as it relates to the property alleged to be wrongfully held by him, or so far as tho plaintiff alleges somethiug calling on the defendant to answer.

The jury at four o'clock retired to consider their verdict. They were absent an hour when they returned into Court. The foreman said they had not been able to agree upon their verdict. llis Honor said he could not discharge them after so short a consultation.

At eight o'clock tho jury returned into Court with a verdict for the plaintiff on all the issues.