SUPREME COURT.—Civil Sittings.

New Zealand Herald, Volume III, Issue 897, 28 September 1866, Page 5

SUPREME COURT.—Civil Sittings.

SEPTEMB.EIi 27.. (Before His Honor Mr. Justice iloore and special juries.) His Honor took his seat on the bench at 10 o'clock yesterday morning. MILLRR y, OTTO.—GURIotIS CAB 2. Mr; McOprrniclf for the plaintiff. Mr. Sillies for the defendant. This wiis »n action to set aside a deed as having bf>en fraudulently and improperly Obtained. Tho defendant was the uncle to plaintiff's wife. The. plaintiff was possessed of certain land in Auckland, and the declaration set forth, that the defendant frequently pressed tho plaintiff to give him the ,m«na»emont of these lands. The issues were verv volumW nous, and. numerous ; (1) whether " plaintiff was induced to execute the deed by professions of friendship by the defendant P (2) whs the plaintiff entirely ignorant of the forms of law? (This issue was withdrawn.} (3) whether plaintiff ever pave instructions for the deed ? (4) wheiher ho had any advice, or yras he ignorant of the contents of the died ? (5) whether he meant only to give the temporar.vnanagement of his land to the defendant? (i>> whether tho defendant bult certain houses with plaintiff's money ? (7) whether there was impro per in 'ucement, and tho plaintiff toll the o intents of the deed immediately before executing it. There wore other issues, which only varied the above allegations. The general allegation -was that the plaintiff was induced by protestations of friendship, and urged by various pretences to .execute a deed, the effect of which was very different from what Was intended by the plaintiff who executed the said deed undor tho idea that it would take effa.t only temporarily. The deed was somewhat curious. It sottloi the property upon the wife of th'i plaintiff, with remainder to the plaintiff, and after his decease " to all and every the ehild or chlidrou " of the sdd Selina Millar, plaintiff's According to defendant's view, he was charged by the plaintiff with a gross fraud, he being merely trustee fo the wife and children, it was gusgested in explanation that the disposition of the estate was such as the plaintiff did not wish, and that it was brought about by tho dofondant with a view to enablo the defendant ti borrow money. The date of the deed was the 2nd of July, IS")!). The defonco was that the plaintiff was under a gross delusion, or was improperly endeavouring to Bet aside the deed. The facts of the ca-o are tho following plaintiff is a master mariner, who had acquired cons-derable property. On the 20th of Juno he executed a mortgage for £100, for the purpose of paying his creditor-", and also redeeming a prior mortgage of £100. . On the 2nd of July following the deed of settlement, which formed IhoVubjoct of inquiry, was signed. The defendonr, in his capacity of trustee for the wife, had raise 1 £30Q by mortgage, under the dead of settlement. . •■-:,,■.■. '-.-.

Alexander Miller said ho was a seaman, and the defendant was uncle to his (plaintiff's) wife. Witness r 'led, in 1859, in Q-reytfcreet, the defendant then 1 •it in West Queen-street. Witness wis. then ]. '3*ed of land in Queen-street, Barrack-street, and Wyndhain.-street. Had frequent conversation with Mr. Otto in. liia sliop about the land. Defendantsaid .f witness gave hi in the land " ho would make a saving's b ink of it, and make it more valu-H-h/le." Witness was then trading in a small sch«oner between Auckland and Coromandel. Kemember.id signing the deed in Mr. Hill's, office. Witness was tarring his vessel in Brickfield Bay, when a witness cime fqr him and said he was wanted at Mr. Hill's ofllco. The plaint iff read over the fore pnrt of the deed. When witness mgned one paper, Mr. Hill told him there was another deed to 6ign. Witness's wife was present at the signing of one deed. Shortly after tho deed was executed, witness told defendant not to piy any of the r hts to his wife. Defendant said he murt pay her the rents. Witness two years subsequently obtlined a cojy of the deoi fr >m tho riegistry oflieo. Tho copy «<« read over and explaine ( to witness by Mr. Martin The matter was also explain -d to witness by Mr. Merriman. The defendant raifcJ three hundred pounds under the deed by a mortgage. There is a shop oh the land in Queenstrej.t, four cottages on the land in Barrack street, and ► everjtl houses and a boat shed on the land in Wvndham-B'.reot. . Defendant paM £100 to a .Mr. Giiublo for witness, also monies to "Messrs.;,Morrin and Messrs. Lilowall and Rattray,",. ..,,,'. ■.y,.':,'.-*;.-,>■■.:■'■

Cross-exsminod by Mr. Gillies : Mr. Merrimandid not tell trie this arrangement was the very best I Could, make, I have been to sot-oral Solicitors about this property. I never spoke to Mr.. Hill, about making the "desd, nor gavo liim instruct! Ms/iv He did not read over the draft of these deeds to me ,on the day thoy wore higned. I swear positively that;, those deeds weie uot read over to me. \ fe:;';r«':;;'-':"";i,£" v " He-examined: Mr. Merrimau would not riiako out tho deed ; he was always busy. He (Mr. Merriman) did not give ti rimrin why ho would .not.'';;'' 'f''.'}■■" Tho doud. of settlement, July 2,18;")!), and deed of mongago under the settlement, dated oth January, 1860, were then put in. The parties to the latter were plaintiff, his wife, the defendant as'trustee on tho one-part, and Frederick Thatcher on the other. tho consideration for which tho mortgige-deod was executed was £3CQ. 'J; '

Andrew Otto examined by Mr. GKllio.S said he wai defendant in the action. Remembered the execution of tho deed produced, winch was prepared by Mr. Hill. Witness novn- gave any instructions for drawing out the deed. Never induced plaintiff to execute . the deed. Mr, Minor did make an application to uio about a lease to Mr. Michael Wood, and in tho course of tho negotiations a Mr. Dry, a solicitor, told him, owing to e-Jirto difficulty which arose, that h? (the plaintiff) ou«ht to have a settlement dvavn up for the benefit of his wife and family, 'there was a. mortgage oh the Queen-street property for £100, and there"were two yetim interest duo for which Morria and othors threatened to sue. Plaintiff wanted to know what was to ho dono, and witness told him tha.t he was in one difficulty to-day and another to-morrow, nnd therefore could do nothing for him unless he, - na 4. his property sottled iti a proper njanner. Subsequently Mr Hill went, to witpesa and requosted him to act. Tho deed was fully explained to the plaintiff before ho executed. Subsequently borrowed £-509 under the deed, pu tho Wyndham street property, Wo all wont over to Mr, Hill's together, and signed the deed. Theo bjoct was to create an additional income on tho property, aiid; a portion of it went to pay debts oi t'h-S plaintiff- The arrangement was agreed to. by Miller, and the moneys wero applied to the, above object. Cross-examined: Mr. Dry has left tho oplony. Miller made several bargains with, his property, He mado a bargain with Mr. Carr, but withdrew from it. Aso wjth Mr. Mark Somerville. The arrangemont to, this burgain was to hive been made by Messrs. Hidings and Dowden, tho auctioneers. I gave an account Of the monoys paid. In consequence of an arrangement witness .received the first mortgage money, £100, making altogether £400, which ho obtained froir Mr. Hi 1. Mi. If. Hill, examined by Mr, Gillies, said ho was a solioitor in Auckland", and wad practising as solicitor in ISO'L I'laUitiU 1 called on witness in the beginning of that year, stated his position and difficulties- He said what property ho had. Wjtnoss advised,, the plaintiff: to. make arrangements aetVQ with )>_•;,. creditors, and to settle his property »or the benefit of tho plaintiff's family. Witness found, in his book an entry Juted lGth Juno, 1851). Heading, " Andrew slillor attending him, taking instru. tions from him for reconveyance from Gimblo (the first mortgagee) to raise £300, and to settle freehold estate* su jectto a mortgage." The mortgage d'eod was executed On

the 201 V Explained tho draft of the deed of settlement to plttiniiff, who eaid it was what he wished Mo also said time he hud «o relatives in Now ZeaiMir 1 , and ho wished tho property to go to thri wile. On the draft was a npto by witiltes to iho effect that ultimate reversion wa* to go to the wife { I,e 1 d Q e . e rt 1 of Battlement was executed on the 2nd of July> ltioJ. Miller thoroughly understood the deed. Witness took unusual euro in explaining it. Knew that Miller'■understood, the do d by. hi* reference to..the power of appointment in one of the children virhieli was especially explained to him. On the 24th of June gave the plaintfi? a; cheque for £2/0, subject to there bein* a deed pi sOtU.ment. and by an arrangement between the pUintiff and defendant. Ino money wa* paid on the mortgage by the ft ew Zealand Insurance Company. . His. Honor, in summing up, said thn plai.ntitt roust have laboured under a .mo delusion unless it were, explained bv the r.ircttmßtiiuce that he now regietterA that his wife had obtained the first life estate, and he derived no present benefit from, the property. Nothing .could be pWner or more straightforward than the answer pf the defendant to the action, \ The jui.y found, upon all the issues for the defendant. EDWARDS T. HENDERSON. This was an action which had been postponed . upon ftSidayita iwufe of th* ab»«ne» of a material

witness. , 7he''Mti6ii'"'Wtks , :fo^ : idsinages~6n'''ac{ro!int of : injury sustaine J by the'plaihtiff on/b.ardthe/barque. . -ir <3eorge 'On>j (CaV;t: She-lopfc), ; belonging to Messrs, Henderson and' Macfarlane. The contention bad been tin. the :goe>tipri fit postponement, Qnpt. oherlook; being h material wjness. The plainr tiff, we were in'ormed, had suffered severe injuries,, for compensation for which hfibr mght his action. tjp'oti the CHBe being called, Mr. Gillies addressing the Court, said he believed this caje was settled. It had however been: settled without his knowledge. He held, in his hand a receipt signed by Mr. J. . Henderson lor Henierson and Mapfarlane, to the effect that the plaintiff' withdrew from the action on receiving £280 sterling. ' n full satisfaction of.all. claims pr demands oa account of the accident which occurred on board the Sir George (jreyi Ho trusted ; that the Court would concur with him in the opinion thatihe proceeding was a most improper one, namely, thac. of persons interfering 'in suits pending tr In .'some it would have very awkward, conse- . qusnees indeed. He: had. come fully'prepared with the case, und ho had only known that the case was buttled between 11 and 12 o'clock that, ■morning, Mr. J. B. Russell sail that he should be sorry to be guilty of any breach of etiquette, and assured the . Court that the only knowledge that he had of the cise hoitig settled was by the receipt being, put into his hund*. Mr, Gillies, understood that the case had been settled the previous night. His Honor assented that the course adopted was one likely to cause cpnsiderahlß inconvenience^ Mr, Albyn Martin said that there were several Bpecial jurymen present, who were put to great inconvenieuce, and were exceedingly annoyed by being taken away from their homes, and having nothing to do. The case had been settled, and blame was due to somebody that earlier information had not been given of the settlement. For himself he would hare been home Ions; before that time (1.30 p.m.), if he had known the ease had been settled. His Honor reminded the gentlemen special jiirorß that there was no blame to be attributed to the Court in the matter. Mr. Albyn Martin acquiesced. He did not attribute any blame to the Court. This concluded the session of the Circuit Court for September, 1866.