SUPREME COURT.

New Zealand Herald, Volume II, Issue 340, 14 December 1864, Page 5

SUPREME COURT.

J CIYIL CASES. | M OX DAY, I2tji DtcEjißEn. ; [JJoforo Chief Justice Sir G-. A. A use sr.] : c:;i:ic;iito.v ic scales v. vAiiir. , A petty jury having been empanelled, this ease was called ibr Jicaviug. jMr. MeiTimim for the plaintiff, ill'. "WyJiu foi* tlie ; defendant. Mr. Merriman said that his learned friend agreed to a verdict of X'3l3. 3 Fr. "W ynn said that eerluin terms had been agreed - on between the parties, and his client offered £313, "which had been accepted. .i U! 'y S avc verdict accordingly, and were then Ihe following gentlemen were then sworn as a . special jury : —S. Brown, David Burn, .lolm Henry Burnsule, diaries Davis, Walter Kwen, William Hobson, John Sangstcr Maefarlane, Hugh Morrow, .Tames bmurt, George Webster, Gladwin Wyuyard, U'alter Orahame, foreman. lIAIMIIXOTO.V AMI ,\.NOT!I l.'U V. l. KKEXAW'A V. This was a case of dispute about property., alleged to have been purchased by defendant from plaintiffs. Mr. Wytm for plain! ill", Sir. Mtmmaii for dc-f.-ndaut. Mr. W'ynn, in opening* the case- said, your Honor, Gentlemen ot the Jury : The plaintilfs in this case arc probably better known to you than they arc to me, therefore I will endeavour to explain shortly the question which you are failed upon to decide. " The case is simply this, that Mr. Hardington and his wife were possessed of certain properties in Symonds.stiYjct ; being possessed of that property, Mr. Harrington gave instructions to Mr. S." Cochrane, ' auctioneer, to put up the remainder of the term of - -Mr. lfardington's lease tor sale. The pi'operty von ' will perceive is marked A in the plan. That was'the ' whole of the property put up at the sale. A certain ' house belonging to Mr. Hardington, then in the ] occupation of 13r. Mouatt, formed one allotment at the sale. ill'. Aitkin attended that sale on behalf of '' the deicndant. 'J he jirice is no matter. Tile question is, what was the allotment purchased bv defendant. At the sale it was explained to ail present which was ' the lirst allotment put up lor sale—and it was there explained that part of the allotment, on which was a s-table, would go with another allotment which had a ! l'loutage to WynyarJ-street. Alter the Jirst allotmeat was knocked down to the defendant, the other * piece was put U[). l.t is a distinct and separate 1 allotment, and sold to Mr. Koonev—and that veryday Mr. Greenaway, finding that piece of land sold to ; Mr. ltooney would be more advantageous to him than to any one else, oli'ered terms to him to purchase ( it. -dr. Cochrane was then ordered to send the title d< eds to Mr. .Jackson to draw out the convej'anee. Mr. Jackson, I suppose, investigated the title, ami without- seeing what iiad been sold, prepared the deeds and convoyed tiie whole of the proper!}'—and * it was not until after they were signed that the ' mistake was found out; and when Mr. Boone." went , to try and get his piece, it was found that the' whole had been conveyed to Mr. Grccrawav. When Mr. ' Greenawny was asked to set the matter right, lie ' tot them at deiiance, and laughed to think that he had got the auctioneer into a li.w He th.'ii called— Wiliiam Aitkin, who, being suoni, said: I am a. j land agent in Auckland. 1 recollect a piece oi" pro- ' pe'.'ty belonging to Mr. and Mrs. Hardington on the [ -Oth -?u!ic last. 1 attended the sale at Mr. (,'oeh- *" rane s Auction Mart. I did bid at that sale for the j lir.-t io! ]iut up by Mr. Cochrane. I bid as agent fo Mr. Green,'lway. 1 cannot tel! the actual property I bid for. 1 know which was the proper! v on which Dr. Mouatt lived at the time." That Mas the pro- - perty I bi i for. There was no information alibrded ' f io the public who were pun 'basing so far as I am j aware. 'J lie auctioneer did not state what it was j lie was selling. j Mr. Merriniau : Mr. Cochrane describe 1 the property as being i:i lh.- oivupaliou of Mr. Mouatt. J { bid a.-> agent for .Mi-. I 'roeuaway. iiL'li '"I James Maefarlane sworn, silted: 1 am a surveyor. 1 was iur-tnicted to prepare a plan by s 3lf. ami Mrs. Hardingt"ii. Tliele was a house oc- j eupicd by Dr. Mouatt on that property. The plan . produced i; Ihe one I made. It is part colored red ; and part yellow. 'Hie ground plan is rurr.at. I was . present at the sale. This plan v.as exposed at the 1 time of sale. 1 have a partner of the name of Davy. .. He was present at the sale. 1 recollect the first allotment being put up f.jr sale. "When the first ; allotment was sold Mr. Davy was close io where the 1 plan was King, and he pointed it out. I saw him pointing out something. After Ihe (ir>( allotment was knocked dowu, the next allotment put up was 1 one in AVymard-streel. i By Mr. Morriiium : 1 cannot di-iinetly state what t the boundaries were that Mr. ibivy pointed out. 1 ; was too far bark i:t (lie crowd. 1 believe llie whole i of these premises were in the occupation of Dr. Mouatt. lib re is a double doorway from the yard i into the coach-house. There is a st drcasj in the ' yard hviding into the upper =iory. That is outside ( the led boundary line, and th:re is no fencing ■ b t ween that staircase and the yard. There is free i a ec-s from the yar 1 to the shed. The whole of ihe allotment is within a fence. < Samuel Cochrane, being sworn : I am an atic- 1 (ionec r, carrying on business i:i Auckland. J recol- i led selling this property at my .-tore in June last, ft I was then in the occupation oi'Dr. Mouatt. It was : divided into two lots. One was called in the adver- - tiscuiciit the .Sytiiomh-i I reel alloimcn!, and the other the Wynyard-.-.lrccl allotment. At the sale 1 this p'.an was produced. It was suspended to a 1 l»reen curtain about tour ieet Irom the ground so ' that the company could sec it. The room is 7(1 x .SO. : Some ewnditions of sale were read by me at ihe sale. These are the eond lions. iKead.) Mr. Davy a!tended the sale, lie poiute 1 out what wa-to' be *old. 1 <iid not see the defendant until after the sale, j lie came out from behind the post. Mr. Davy pointed out a small sh al in a line with the gateway opening into Syinonds-slreet. togeiln r with the allotment marked red. T cannot :-tato the ribbed marks Wire made by Mr. Davy, but the pencil mark ; round the shed was made at the time. 1 pointed out | the piece that was being sold myself, 'ibis allotment i being so put up was bought by Mr. Aitkin, but the j s de book was signed by Mr. Greenaway. Aft r Ihe j sale of till - allotmr'nt the nest allotment was sold. It j was described as the Wynyard-street allotment, with ihe coach-h>u s e upon it. Mr. Greenaway may have lei'r the l-oom. r.v a .1 urvm in : I *t ded before the sale that the first "allotment that would be sold was the house and vard and a small shed. The seeoivd allotment would 'be the one with the eoaeh-liouso upon it. I don't know whether Mr. Ait an heard or not, he is rather deaf. Bv Mr. AV\ nn : 1 ften put up the second allotment and as the bidding was not brisk, I descended and tried to persuade Mr. Aitkcn to buy it, as 1 thought it would be advantage >us to the house to get it. There are no buildings on the allotment, except the coach-house. Til s property had been advertised about a month before being *old. Tliis is one oi' the advertisements in the newspaper (produced). The properly was not sold as advertised. The shed was tbrown into (he lirst allotment. Bv Mr- Merriman : It was sold according to ad-vert'ir-einent. The fowl-house and other ■ utbuildiugs were not mentioned in the advertiseim nt, because they were part: of the premises occupied by Dr. Mouatt. The coach-house was occupied by Dr. Mona't. I said, I sold the allotment along with the shed as tiio'iir.-l aV.otaient. It is not very common io put up an allotment as a whole, nut then in ense of its not realizing a sum suliicient to please the. veu !,.]•, Io st it up piecemeal. I don t recollect h..ving said •' let us go on with Dr. Mouutt's pro-p.-rlv.'' Tin re were a g'>o:i many persons in the rsom. I did not come down and remonstrate with Mr. Aitkcn on selling Ihe ,'!r;t allotment. fiv the Jury: . J M-10s. per annum was the ground rent' ] ai l bv Dr. Mouatt, and £•-> was the ground 1 rent of the * Wy in a- u-.«ti\J<'l alloi incut. I am not ' able lo say wint wa, the =izc of the Vryuyjrd-sireet I ailutmcnt. ! Bv -Mr. Wvun : Tiee:e were 11 > otoer buiuiaigs on i tbat'ailoimeu't, except the coach house, ilr. Grecnai v-iv ecu r.dlv lakes luuchat sueh t.ir.es. ! iiy" i ho .1 ury : i do not know wtictlier tha ground ru'.U'f '-f lt'.-i., decs include the lairl on which, the I co.'ich-l'unise stands. I'i. t■\..iu.!:v'd Mr. v. '.nil, st lied : r am a tu 'v'e;. -r in leu'luors!.:p w j :i Mr. ilacl'.sl lane. : 1 was at the =ale en the-i ill J no-', in 3lr. Co -hruue'.- ; uu.-tiou mart. 'Jhe jr-uprny was :oUi i.i two separate allotment.-. 'j lie ; 1 m pr.-lu-v I exiiib'ted in too .- oc 1 :b - i lie lu-.t be beim:' p V. up- 1 Ccs 'i ib :d on -.be p.'::u bcf..ie :! was ... dd (he property which was abb, bur .-"11. 1 ile-eiil.ed the. allotm u'.t 1 bcl eve atMv. '■ 'oeblaue' ivtju'.'s!. 1 wi !>t-.ui'.iing uu-lernuitli tlf.- pluu it the

;imo I described the property as including tho portion marked <c slied.' 1 ' The pencil raaTkß round \ ho shed I made at tile "time of the sale. I cannotr- ; ay who made the other lines. I made that lino previous to the selling. I did hear Mr: Cochrane nuke a remark as to the advisability of throwing the shed into the first allotment. I did not' hear Mr. ... ..-ochrane say anything "about the coacll-housoili' idling tho allotment. / By Mr. Merriman: The coach-house communicates ■ p.'ilh the yard by a large door. The staircase is in "* he yard. The whole of the area of tho plan is in me allotment. ' ' ' S. M. Busliell said: I am a clerk in 'the ;mploy of Mr. Samuel Cochrane. I recollect the sale of Mr. Hardington's propertyixr'Jnne last. I ,vas in the sale room when it was sold. X put the ilan up myself in the auction room. This is the plan produced. Tho property was sold in two separate" ,ots. Before tho Ist allotment was sold the conditions >f sale were read by Mr. Cochrane. These instruct. ... .ions (produced) were the instructions read. .Mr. [/'ochranc described the allotments to be sold. Ho ;jut up the house and the outhouses with the shed for. !te first lot. Mr. Davy marked round the shed which . ivas sold with tho house with pencil. I made the ~. dbbed pencil marks during the sale—during tho time." .lie allotment was up for competition—and wrote on „ ;he plan " allowed to house." Mr. Cochrane said hat tho coach-house was to be sold with the second illotment- I saw Mr. Davy make the marks round .he shod.. I pointed to this allotment with a stick, shewing what was being sold, that did not include lie coach-house. I believe Mr. Aitkin bought it. Afterwards the Wynyard-street lot was put up. Mr. Koonev became the purchaser of it. ... _ Uy Mr. Merriman : The plan was hung on a green. :>aize curtain. I heard Mr. Cochrane when he put lp tho first allotment, say that the coach-house was lot sold with the first allotment. I was standing ;lose to tho curtain alongside me, nearer to Mr, .' Dochranc. I had a stick about two feet, six inches ong, with a pencil at the end. Mr. Cochrane had jointed out tho allotment with his stick from his ' vulpit. I dare swear that he said the coach-house was lot to be included in the iirst lot to bo put up. There verc two plans, and tho coach-hou3e was. on that >lan. Mr. Wynn : I object to that. • " Mr. Merriman: I will not press that point your' lonor. Witness: I put on the cross marks and ths writing. I cannot swear that I put on the pencil" narks below the red line. I put on the words, allowed l ' 0 tho house. I believe the other plan contained the :oach-house, as part of the Wynward-street allot-' nent. By Mr, Wynn : The other plan was of the Wyn- " •ard-street allotment, and had I believe the coachlouse upon it. By the Court: I rather think it did not include he shed. I could not positively assert that it did. ' wt include all beyond the red liue. Hector Alex. Drake, duly sworn, said : I am a set- : lor, residing in Auckland. I recollect the sale of , * dr. llardington's property. I was present on the "- ccasion. 1 recollect a plan of tho property being xliibited. The plan produced is the one at the sale, believe it was sold in two allotments. Before tllo roperly was sold I remember the coach-house was nentioued by Mr. Cochrane, and pointed out by Mr. Jiivy, as not being included in the sale of the .'first llotiuent. I bitl at that sale myself for the. allotment irst put up. That bid was made after Mr. Cochrane 1 id .-aid that tho coach-house was excluded from the .llotment lirat put up for sale. I don't remember ceingMr. Bushell there. I cannot say whether.the icneil marks were made at the time of sale. I belieV hey were. • .* f i Andrew Koonev, sworn, said : I am a settler re ••.gliding in Auckland. I was at the sale of Mr. Hardingoii's propeity, on 20th June last-. I was present: "lie plan produced was the one exhibited on the day . " t'salc. J recollect Mr. Cochrane explaining that ■ he house with the open shid, adjoining tho coachimise, was the lirst allotment. Mr. Davy and Mr. jusheli pointed out the allotment. Mr. Davy lointed out that the shed was to be sold with the iou<e. Mr. Cochrane said that the eoach-house and .Uotmeats in. Wynyard-street were to go by them-, elves. Mr. Aitkin purchased the first- lot; the eecmd lot was then put, I bid for it and bought it. I • :no\v Mv. (i icenaway. I saw him about half an hour - Iter the sale ; I was goiii!? home in Shortland-street ic stopped me, and said " 1 believe you became tho au'ehaser of the eoaeli-house and allotment." I told lini 1 was the purchaser. He asked mc if I would ell it. 1 said t had not purchased it for myself, and vould not sell it. lie said he would cut down tho lops. Mr. Harris was near us at the time; I seo lim in Court. . . .■ l!y Mr. Merriman : There was nothing more said. Christopher Harris : I reside at Romuera. I recolect the day of the sale of Mr. Hardington's property. - was not there. 1 recollect being in yhortland-strect hat day with Mr. Grec-iiway. T was talking with Greenaway. and Mr. Koonev a:me round tho •omer. Mr. Greenawny then stepped away to Mr. v'.n.ney, and I heard him say " Oh I you have bought lie stables to-day. Some other conversation passed vhieh T did not hear, for 1 walked a little way off. >n coming back-1 heard Mr. Greenaway say "what vili you take tor your bargain r" I heard nothing nure. James Mouatt: I am principal military medical ifliecr in Xew Zealand. I recently occupied a house jelonging to 31 r. Hardington, in Symonds-street. I emeniber the sale of that propeity ; I was present at ho sale-. This plan produced was exhibited at the •' sale. It was too far olff-i' me to sec the particulars ■ ' i f tiie plan. There was some description given as to . - •vhat was to be sold, but I did not hear distinctly. I mderstoud the auctioneer to say that he was about • 0 sell some property in the occup ition of Dr. Mouatt. >onie allusion was nift'le to a coach-house, but I did lot he ir what it was. :■ By Mr. Merriman : 1 cannot say I saw anyone yiint tho poundarics. lie did not, in my hoiringy ■ j [escribe tlie property cither by word or action. The ivhok- of the property was in one allotment. The - • ■onch-hou.se and cow-shed formed she fence between ihe allotment and the one known as the Wynyardstreet allotment. I occupied the two }illotmenta as .ai'\ Uy the Court : T got access to the Wynyard-street allotment through the so-called coach-house. There was a door opening into the Wyn yard-street allotnu'nt: i! was theic when I went there. By the Jury : 1 was aware that the property was put up in two lots. I don't think the coach-house - was in the first lot. ' *•' Mr. Wynn then put in the deed of conveyancefro:n Mr. llardinjiton to Mrs. Hardington, dated July 4th, 18G0, which assigned to Mrs. Hardington. the whole of the property which was sold on the day in question. In continuation is a deed, dated o'Oth J line, ISG-t, between the plaintiii's and the defeudant, which assigns the whole property on which the plaintill'seeks relief in consequence of an error. [Deeds read.' This was the case for the plaintiff. Mr. Merriman opened his case in very few words. He had seriously considered whether it was necessary tocali any evidence at all: but if he had not done so, it would appear that he was keeping it back. The evidence he would call would be the defendant, and lie would pat a different construction on the'conversation which took place between himself and Mr'" ; llooncy. lie employed .Air. Aitkin to bid for him, as a land'ajrent, for it was well known that if a moneyed , man went and bid for a piece of land, there were .. plenty of men there who were ready to run it up for the purpose of drawing the money out of his pocket. ' Christopher Greenaway : T attended the sale atMr. Coehraue's when the property now hi dispute was nut up at auction. I noticed the house on the plan, f and nothing else. I gave Mi. Ait Viii instructions to bid for the licn.-e. I had or.ee before, some years au'O, been in the house. I never inspected the premises before I ha.l b night them. I saw Dr. .Moaatt in possessim of the whole of the pro raises when I went to see the property. I went round the premises to sec what it was. After the s.do I saw Mr. iiooncy. I saw him a day, j or tv.-o afterwards on tho Wharf, near his own prc- ' kmsjs, a leasehold ne bad bought- from Government. • Ho .said I have bought the stable and allotment behind. T said you are mistaken- He said again I lane bought it. Then I eaid it is since I left tlie j aiict: u-room. As soon as 1 Lau paid my deposit, I£l-jO, I loft the uuction-rj-. in. That was all that. .. 1 passe! I etwjen me and Mr. Hw-ney. Daring all tha. time 1 '-uii in the auction-room there was never ; anv .-tick or rod used to point out the plan to "liv th-~ Jure : I was'nol aware. :h .t there was any m:-:n'..e !n tlw.V.l- wh-r 1 s; oko o Mr. lUoney. .1' . h-.t i-i'l 1C el tin d -.".ls at the lime. I left tlie matter ,-i-;:r b in Mr. -1 ieks->:.'-< ha:i-!.s. I had the couYer--1 f'wit i Mi. ii-'onev on the 22nd and on the 24th 1 i ii-! t'ii.- nci to ilr. Jackson. The deeds were ! i'\ mi I -i. 'd until the 30th, and if there was anyj thin"- wiontr. thev never acquainted ifle with-it.' I V, r iij--,m iiav I - original losses c-f the two

allotments lately in the occupation of Dr. Mouatt. I seo on this plan the part marked coach-house. The eastern side of that builcing formed tho boundary of the allotment, and the two allotments were let by mo to Mr. Hardington. I don't recollect whether I have received rent from Mr. Hardington for those allotments. . Mr. Merriman then addressed the jury, ana Mr. Wynn replied. His Honor then addressed tho jury at considerable length, when they retired at twenty minutes past six, ana on their return at ten minutes to seven, gave a verdict for plaintiff on tho first, second, and third issues, and for tho defendant on the fourth, which ves virtually a verdict for the plaintiff. The Court was then dissolved.