LAW AND POLICE.

New Zealand Herald, Volume XXVI, Issue 9255, 8 January 1889, Page 3

LAW AND POLICE.

SUPREME COURT.—Civil Sittings. MonDaiK

[Before Hie Honor Mr.: Justice Gillies.] Hkkmak Nashelski v. H. Slakby.—This was a claim for £66, damages for breach of agreement. Mr. Theo. Cooper, who appeared for plaintiff, said the case was in process of settlement;, and by consent, he asked that the case might; stand over until March. The adjournment was granted. David Goldik and Others (trustees of the Auckland Total Abstinence Society) v. Wμ. Thomas.—Claim, for possession of land and £50 mesne profits. Mr. Theo. Cooper, who appeared for plaintiff, said that by agreement with Mr. Hosketh, who appeared for the defence, he asked that the case might stand over till March. ' Application granted. Wilson v. Mackay.—Mr. Theo. Cooper for plaintiff, and Mr. Button for defendant. Mr. Cooper said the case was in process of settlement, and ifc was allowed to stand over till March.

William Earl and Others v. Heta Te Haara.—This was an action brought for specific performance of an agreement to lease certain lands. Mr. Theo. Cooper appeared for the plaintiffs, and Mr. Baume, instructed by Mr. Griffiths, for the defence. The plaintiffs are William Earl, A. Bull, and David Hean. Mr. Cooper read the pleadings. The statement of claim set forth that on the 17th November, ISSO, the defendant was the owner of certain lands in the Bay of Islands district (Ohaeawai), containing 621 acres, and on that day, by means of alease under the Land Transfer Act, leased to plaintiff the land and all minerals contained in tho land for a term of two> years, afc a yearly rental of £1 a year, with power to renew for a term of 21 years. On the 12th of June, ISBS, notice was served on the defendant, requesting him to renew the lease, and the defendant stated lie would do so to Mr. William Kemp, the agent of the plaintiffs, and a native interpreter, and appointed a day for that purpose, but lie then declined to execute the lease, stating that the terms were too long, as he wished to sell the land. They again requested him to execute the lease, and presented it to him, offering a rental of £100 a year, that being tho maximum named in tho clause of the original lease. Oh the 16th of October they served on defendants further notice calling on him to execute the lease, and at various times subsequently the lease was presented to him for execution, and plaintiffs now prayed that he be ordered to execute a lease for twenty-one years afc a rental of £100 per annum, and also claimed damages for delay. Mr. Cooper put in the lease for two years, which contained a clauso stating, that if tho lessees be desirous of having a renewal of lease for twenty-one years, the lessor shall, within one month, execute such lease at a rental to be agreed upon, the maximum being fixed at £100 per annum. The statement of defence admitted the first paragraph of the statement of claim, also the second paragraph, bub alleged that he did nob understand that there was a clause in it agreeing to grant a renewal of tho lease, and that that clause was not read and explained to him at the time he executed that deed. He admitted that notice had been served on him calling on him to execute the lease, but he denied that he agreed with William Kemp, or any other person, to execute a renewal of the lease, and he did not execute it, as he did not feel that he was bound to do so. At the Lime of the execution of the first lease, he admitted tho subject of a renewal of the lease was spoken about, and ho was agreeable to it, but no maximum was mentioned, and the understanding was that it was to be on a rental to be mutually agreed on. For a furthsr defence ib was set out that at tho time of the execution of the lease defendant did not receive independent advice, and that ho was misled by Mr. Earl as to the value of the land. That £100 per annum was totally inadequate to the value of the land, and that the terms were one-sided and inequitable. Mr. Cooper said that upon these pleadings the questions left for His Honor's decision were two questions of fact, and the remainder were questions of law. The two questions of fact were—first, was defendant induced to sign the lease by William Earl, and that the terms of tho lease hud not been properly explained to him ; that was for the defendant to prove ; and second, that -no proper lease in terms of tho deed had been tendered to him for execution, and the proof of this rested with tho plaintiffs. There were several questions of law raised. The most important were— first, that raised under- the Native Lands Act, as to the.validity of a covenant to lease for 21 years, after the expiration of the two years' lease; and second, that tho ront was to be mutually agreed upon, and that- until that had been done no proper deed of lease could be tendered to him for execution.-. There were other questions of law raised in the defence, but these were the principal ones. It appeared that for somo time Mr. Earl had carried on prospecting operations for cinnabar, and it was in consequence of certain indications found that the renewal of the lease was desired. William P. Kemp, native interpreter, residing at Waimate, Bay of Islands, knew defendant perfectly, and in the month of November, ISSO, ho obtained his signature to a lease of a certain block. It was signed in presence of witness, Mr. Baldwin, and Mr. Henry T. Clarke, J. P. He explained the lease to tho defendant at his place before he went over to Mr. Clarke to have it signed, and he had at that 'time made a written translation of tho lease into Maori, and that produced was a true and correct translation of the English lease. He advised him to think well over it, as there was ii clauso which would compel him to sign a fresh lease for 21 years at £100 a-year, and he replied that it was perfectly understood, and ho was willing to sign it whenever called on, and he was so satisfied with the lease that he asked witness to make a copy of it for him. They attended on the 17th November at Mr. Clarke's house, and witness again interpreted the. lease in Mr. Clarke's presence, and defendant then again said that he perfectly understood it, and it was quite clear. No special reference was made at that time to the ronewal clause, but ib was accurately and correctly interpreted, and defendant signed it. Witness knew the land, but was not at that time aware of any mineral deposits on it, and it was very inferior land, there being only a few small cultivations on it, and the land had nob been utilised. In June, 18S8, witness served a notice on the defendant relative to fixing tho reut, and he said he would not sign a renewed lease, but g - ave no reasons at first. Witness told him he should have considered that befom he signed the first lease. Ho considered over it, and, after a long time, he said .he thought 21 years too long , , and he would rather sell it altogether. Witness told him it was too late to consider that now ; ho should have thought of that before. After some farther consideration, he said he would sign. Witness had ex-, plained to him that he was to get £100 a-year. The new lease was not then prepared ; and subsequently, on the 9th of October, he served another notice on the defendant? and tendered him a lease for signature, which had a Maori translation attached. This he read over to tho defendant, and accurately interpreted, and asked him to sign it. He declined, stating that the term was too long, on several occasions subsequently he refused on the same ground. The witness was cross-ex-amined at some length by Mr. Baume. Hβ [ said he had known, and acted as agent for, ' Mr. Earl for about sixteen years. When tue negotiations were made, Heta vas nob represented by a solicitor, nor did vitness advise him to get one. He was aware that there was a clause in the new lease which he submitted to Heta, empowering the lessees to terminate their lease ab three months' notice. He said he had made a copy of both deeds, and gave them to Heta. He was asked why the copy produced by Mr. Cooper was not the same as that given to Heta and which included a clause providing for a renewal, of the lease at the end of 21 years, and said he did not know. "Kbere might; h&ve been a second deed. His Honor remarked that Mr. Kemp, occupying the position of interpreter, ought to be dhle to explain why he endorsed as a true copy what was not a true copy, and r. Kemp said he could not; bub there might have been another deed. Mr. Cooper then said that he probably would have to ask for an adjournment of the case, as he would now require the evidence of Mr. Earl, the solicitor who had prepared the deed. 'His Honor said they might go on as far as practicable with the evidence. Henry T.

Clarke, J. P. and Judge of the Native L'and Court, deposed to Mr. Kemp cOming to his place and reading over the. deed of 1886, which Heta signed after it had been read over to him. It contained a renewal of the lease for 21 years, but there was uo discussion over it. He never read the English version of the deed, his duty being simply to see that the native understood it, and the Maori translation wa r s read to him, and he was asked if he understood it and he said "Yes." Witness was asked to read over the clause referring to " mutual agreement," and he admitted that it was very vague and ambiguous. Subsequently when Heta was asked to sign for che renewed lease he refused on the ground that the term was too long, and-he was desirous of selling, nob leasing. At the conclusion of this witness's evidence His Honor asked him, as a Maori scholar, to look over the Maori interpretation of the original lease and say whether ib contained anything which would convey to. the native mind that it was, "Heads, I win; tails, you loee;" that while he wasbound to give'up his land for a small rental, and that if they found anything to make it valuable that he must lease ib to them for 21 years for £100 a year, while they had the power to give it up at any time, and be allowed six months to remove their plant. The witness said he did not think Heta fully considered the whole of the facts. The Maori mind often stuck to one point and overlooked the others. Edward Baldwin, attesting witness to Heba's signature to the original lease, who was at the time in Mr. Clarke's employ at Waimate North at the time, gave evidence bo this effect. At this stage Mr. Cooper announced that his friend had consented that the case should be adjourned till March, as it was necessary thab bins matter should be settled. He admitted that ho would be bound to prove tender of a proper lease. The case was then adjourned, plaintiffs to pay costs of adjournment. R.M. COURT.—Monday. [Before Dr. Giles, R.M.] Judgments for Plaintiffs.—H. Hewin v. F. Box, claim £3 15s lid, costs £1 4s 6d ; A. Heather and others v. J. H. Pearson, claim 19s 4d, costs £1 3s ; N. Harker v. J. P. Watt, claim £65 98 6d, costs £5 4s ; W. S. Whitley v. J. Porter, claim £11 16s 2d, costs £2 2s ; L. A. Levy v. J. L. Cochrane, claim £27 Bs, costs £2 14s; W. Whitley v. 11. E. Evans, claim £12 2s 6d. costs £2 9s ; A. Heather and others v. W. A. White, claim £2 3s 6d, costs 18a ; School Commissioners v. R. Cochrane, claim, £11 0s Sd, costs £2 2s ; Same v. G. T. Clenlon, claim £5 10s, costs £1 12s; J. Banbury v. W. W. Taylor, claim £11 10s 3d, costs £1 7s ; McCullough unci Co. v. G. W. Purdie, claim £1 10s, costs 10s; J. Turner v. B. Mcßrierty, claim £2 19s Gd, costs nil; H. Peck v. J. Gleeson, claim £3 13s 6d, costs £1 7s ; Te Aroha Soda Water Company v. J. L. White, claim £3 12s, costs 16s 6d; McCullough and Co. v. J. Garmon s claim £1 10s, costs 7s; same v. A. Henderson, claim £i I Is, costs 17s 6d; Thos. Lonergan v. J. Foley, claim £4 ss, costs 16s o*d; Hesketh and Aitken v. Wah Lee, claim 14s 6d, costs 7s; same v. E. P. Doauelly, claim £8 11s 9d, costs £1 9e ; Thomas Andrew v. Thomas Henderson, claim £5, costs 19s 6d ; Lewis Moses v. R. Sandall, claim £13 ss, costs £2 Is ; A. Heather and others v. N. Newbold, claim £5 13a Id, costs 18s. Marshall Laing v. G. Thomas.—Claim, £4 lGs 6d, for firewood supplied. Mr. Johnston appeared for the plaintiff, and defendant appeared in person. Judgment was given for the plaintiff for £3 15s, with costs £2 10s. James Rae v. Roberts (Roberts and Donaldson).—Claim, £25 3s, on a promissory note. Mr. Humphreys appeared for the plaintiff, and Mr. A. Whitaker for the defendant. Judgment was reserved. Hesketh and Aitken v. Simpson.— Claim, £2 12s <3d. The evidence showed that the defendant, who lived at Wanganui, sent a cheque for £4 11s in paymenb of an account due to the plaintiffs, but a portion of this sntn was put bo bhe credit of bhe plaintiff Aitken. His Worship ruled thab there is no ground for such a proceeding and nonsuited the case. POLICE COURT—Monday. [Before Messrs. S. Y. Collins and H. R. George J.P.'s.) Drunkenness.—Two persons were punished for first offences of drunkenness. Vagrancy.—William Brannigan, charged with being an idle and disorderly person and having no lawful vliuble means of support, was sentenced to three months' imprisonment with hard labour. Disobedient Seamek — John Miley, Henry Cook, and Alexander Jackson were charged thab being articled seamen on board of the Swedish barque Orskar, they committed a breach of the Foreign Seamen'sAct by refusing to go to sea in thab vessel. Mr. James Russell appeared for the master of the vessel. Captain Enetrom, master of the barque Orskar, deposed thab bhe three men before the Court shipped on board thab vessel, from this port to Falmouth, on the 31st ult., and signed the ship's articles to come on board the following day. Witness gave each of the prisoners un advance note for £4, but the men did not come on board ab the hour fixed. The police brought Cook and Jackson to the ship, and Miley came on board subsequently with the police, and the prisoners then said they would not go with the vessel, and thab if they were taken they would.not work. Witness said ho would hoist the flag for the police, and Miley said this was jusb what he wanbed. i The ship had been delayed bhrough bhe i men nob shipping at the proper time. During cross-examination of the witness, Cook stated that bhe pigstye of the ship was cleaner than the forecastle. August Fostrom, chief officer of the Orskar, deposed that when Cook and Jackson came on board he ordered them to "turn bo," but in the afternoon they and Miley came to witness and told him and subsequently told the captain thab bhey would nob work. Miley said thab he was drunk when he went to the barque on Friday, and probably did nob know what he was saying when ho spoke to the captain. Cook said that he shipped with the full intention of going in the vessel, but afber seeing what kind of a man the captain was, getting into a passion for the least thing, he thougnbib was better for him nob to go. The captain had told people that he (Cook) was not a sailor, but he had been at eea for 22 years, and if he was not a sailor in that time, ho did nob know what he (tho captain) was. Ib had been etabed that the ship had been delayed,, but he had never seen a ship go to sea with half of her sails bent. The three men were each senbenced to twelve weeks' imprisonmenb with hard labour. Larceny. — Horace Louis Wood was charged wibh the larceny of £1, the property of A. B. Smith, on the 21st of March last, and of £2 15s 9d, the property of C. W. Murray, on the 28th April last. Upon the application of Sergeant-Major Pratb, bhe hearing of tho charges was remanded to Te Aroha. Edwin Donovan was charged thab being the bailee of a pair of skates, a scarf pin, and a boating shirt, the property of C. Carter, ho unlawfully converbed them to his own use. The words "scarf pin" and " boating shirt" were struck out of the information, and Mr. Cotter, who appeared for the prisoner, then pleaded guilty to the charge, and also to another againsb tho accused of having unlawfully converted to his own use a pair of skabes, the property of D. Anderson. Mr. Cotter said that the prosecutors would consenb bo withdraw the charge, but. ho preferred to plead guilty. The skates were nob sbolen, and were in possession of bhe prosecutors. The fact was that tho articles wore pawned for a very small sum, and bhe persons who owned them were friends of the acoused ; otherwise, probably, he would not have committed the offence, the goods having been used by him to meet acbual pressing needs. The prisoner bore a very respectable character, and he therefore urged that the case .be dismissed, or the accused admitted to probation. Mr. Collins said that a conviction would be a stigma upon the character of the accused, and the Bench would therefore act under the 19Sth section of the Justices of the Peace Act. The case was accordingly dismissed. William Latter pleaded guilty to a charge of stealing £5 on the 4th instant. Sergeant-Major Pratt stated that the prisoner, who was a seaman on board the Arawata, had taken the money from the cabin of a companion. The case was remanded for a week to allow the Probation Officer to report. Wm. Linkey was Charged with the larceny of eight billiard balle, the property of S. C. Caulton, licensee of the Wharf Hotel. S. C. Caulton deposed that on the 3rd inst. he missed the balls from the billiard-room, and the prisoner, whom he suspected of having taken them, from his being in the room on the previous day, met \> ibnecs in the street ancf said he knew who had taken

them, ahd then said that he was himself the guilty party. Mr. Partridge, tobacconist, subsequently told witness that he had purchased, the balls from the prisoner. Patrick Mooney, billiard marker ab the Wharf Hotel, deposed that prisoner came into the billiard-room on the 2nd inst. and played two games. Witness left the room for about ten minutes, and when he returned prisoner had gone. Witness did not then notice whether the balle had been taken, and they were missed on the following morning. A. Partridge deposed that he purchased the billiard balls from witness. Constable McCoy deposed to arresting Linkey. Accused promised that the offence would never occur again ; he was very sorry, and he had tried to make the matter right, but could not do so. He asked that the case be dealt with summarily, and a sentence of six months' imprisonment with hard labour was imposed. Ali&ged Breach of Game Laws. — The charge against Arthur Barnett, for shooting gam " at Remuera during the close season, was withdrawn.