SUPREME COURT.—CIVIL SITTINGS.

Otago Daily Times, Issue 4662, 26 January 1877, Page 3

SUPREME COURT.—CIVIL SITTINGS.

Thursday, 25th January. (Before His Honour Mr Justice Williams and a Special Jury.) BOBERTSON V. D. M. ROSS AND JANE ROSS. This is an equity suit in which it is sought to set aside a deed of conveyance in connection with certain land at Anderson's Bay and Tomahawk, on the ground that the deed in question was obtained by defendants by means of fraud. Mr Macassey, with him Mr W. D. Stewart, appears for plaintiff; Mr Garrick (Christchurch), with him Mr Stout, for the defendants. Mr He-worth watched the case on behalf of one of plaintiff's daughters, Mrs Miller. On the Court resuming at 10 o'clock, His Honour gave his decision on the application made by Mr Macassey to amend plaintiff's to,defendant's pleas. His Honour said: I think the amendment should be refused. The iule prescribes that all such amendments shall be made as may be # necessary for determining the real question in conitroversy between the parties. What the matter in controvcrsyimay be is a matter of fact to he determined from the pleadings and the evidence. Hero the plaintiff, iv his declaration, ■seeks to set aside a certain deed on the ground that it was obtained iby fraud. The defendant in Ids plea sets out a«contract on which he says the deed complained «of was based, and two other .deeds executed fey the plaintiff—in conifirmation of the first-mentioned deed. The plaintiff replies to the plea by a general denial .and -by two other replications, each alleging specific circumstances of kpud under which he gays the execution of the Instruments se1; out in £he plea was obtained. '[To these replications the defendant has joiced issue. The plaintiff now finds that the efci&nce he has ad duced will not support the two latter replications, and asks to substitute anoSlier for them. In any event, thesa replications -should stand, and the tanendmep-i, if made at gtix, should be in the form of a further replieatisn. The plaintiff has taken -issse on one set «f facts, and if he now puts forward an entirely different set of facts ho mnat submit to an advtrse i&nding on the issues he has jieedlessly raised to determine the question of costs hereafter. J shall, however, refuse this application because I am ; uaable to ascertain fzom the evidence adduced for the plaintiff what the real matter in controversy between the parties is. According to one -view of it, it is whether the plaintiff executed the instruments mentioned in the plea at all; according to another it ie whether he executed them under circumstances .somewhat similar to these set out iv the purposed amended replication. Jsa-cli view excludes the other. The evidence, as it ptands, is inconsistent, and it is not for PflO '

Court to weigh the inconsistencies and to determine what the plaiutiS's case really is. It would be going far beyond any authority to hold that where a party adduces evidence in support of two diametrically opposite and mutually excluding theories, the Court vill amend his pleading to meet one of them. J think, however, that it would be calamitous if, after so prolonged a trial, the Jury were discharged without having issues submitted to them as to the whole of the circumstances under which the documents mentioned in the plea were executed. I should be inclined, therefore, to submit to the Jury any issues bearing on this subject that can be properly developed from the evidence. There is nothing that I can see to prevent the Court above exercising, even after verdict, the undoubted power given by the statute to amend the pleadings, if necessary, and to make them accord with the findings of the Jury. If, however, there is any doubt as to whether the Court would exercise this power, tben rule 153 is open, and the facts bearing upon Mr Maeassey's proposed amendment can be found by the Jury. The most convenient form in which the Jury cau find these facts is > clearly in the shape of answers to specific questions—in other words, additional issues. What the precise issues shall be can be better determined at the conclusion of the case. The plaintiff's case was then closed. Mr Stout opened the case for the defence, and called the following evidence :— George Clulee: lam clerk to the Malvern Eoad Board. I was formerly resident in Dunedin. lam one of the attesting witnesses to the dead. Ross met me in the street and asked me to attest Robertson's signature at his house. As far as I remember a man named Stamper, Robertson, Ross, and myself, were present. I was in the house from five to ten minutes. I csnnot say for certain, but I believe the deed was read over. There was nothing in Robertson's demeanour to lead me to believe that he was drunk. As far as I can remember, I think he understood the deed perfectly. Cross-examined: At the time the deed was signed I was unemployed. I did not know Ross very well at that time. I never saw Robertson before. I do not now remember anything of the contents of the deed. Saiflusl Marshall Clark stated: I am a schoolmaster. I have known the plaintiff, Robertson, intimately for upwards of seven years. I did not know him before his marriage with his present wife. I have had many conversations with plaintiff about his property. The fiist conversation I had with him about his property at Anderson's Bay was in 1870. Ross and his wife were entire strangers to me at that time. I wished to obtain a piece of ground for grazing a cow near the Echoolhouse at Anderson's Bay. I asked him if he knew of any land which I could get. I then asked him if ho would spare a portion of his Anderson's Bay land, which was convenient to Anderson's Bay Schoolbouse. He told me he could not dispose of the land, as it was settled on his daughter Jane (Mrs Ross). This conversation took place early in 1870. The next time the subject of the property came up was, I think, a short iime after Mr and Mrs Ross withdrew from Dunedin—that would be at the end of 1871 I saw Robertson on the Portobello road. At that time, he had just parted company with his son, Thomas Robertson. The old man was on his own land, and Thomas Robertson had been in Dunedin, and was going home. He told me that he had just been speaking to his sou Tom, and judging from what the old man said, I inferred the interview was not a pleasant one. He said his son had been quarrelling with him ,ibout the disposal of the property. He added the ground was settled on those whom he wanted to get it—the Anderson's Bay property in Jeannie and the Tomahawk property on. Mrs Miller—and nobody else would get it. He mentioned that his son Thomas had threatened to take legal proceedings against Ross some day, because he had the I property. Shortly after that interview, he asked me to make out a will for him. The object of the will, he stated, was to secure the two daughters already named in the undisturbed possession of the property. I told him I would do so if he wished it. Several times afterwards, he referred to making out the will. Believing that he was really intent on this, I said I would do so. I met him at his own house by appointment. He then told me he wanted the will made out—the Anderson's Bay property to be Mrs Ross's and the Tomahawk property Mrs Miller's. There was a mere draft of the will made at that time. A day or two afterwards, I made out a will for him from the draft. The draft was in my possession. I delivered the will I made cut to Robertsou a short time after I made it out. I read it to him in Mrs Robertson's presence. To the best of my belief Mra Robeitson- was present when the draft was raade out. Before giving the will to Robertson I read iv to him, and he approved of it. It was not then signed, and I left it with him. The next interview occurred on a Thursday, when there was service in the Anderson's Bay Church, That was not long after the last interview. The Rev. Mr Greig was at my house on that occasion. Robertson was on the road when the Rev. Mr Greig arrived, and he came over and asked if the will might not be signed. I said I thought it a fitting opportunity, ai the Eev. Mr Greig might attest it. Robertson went into my house and signed the will in presence of the Rev. Mr Greig and myself, and we attested his signature. Robertson fcock the will away with him. I never prepared more than one will. Robertson and I otton talked about the property atter that. The matter seemed to be very much in Robert son's mind. At one time Robertson spoke of sending Ross some money, a« he was in Auckland then and not in a very flouriahing condition. Mrs Robertson was present. Robertson afterwards asked me to ascertain if it was true that Ross was at Timaru. I think that was during 1874. I wrote to my brother at Timaru and ascertained that Ross was there. Robertson asked me if I could reach Ross—if I would communicate with my brother in refer ance to a matter. I told him I would be glad to do so. I understood from Robertson that he was not satisfied with the deed of settlement in Ross's possession, inasmuch as Ross's name was mentioned therein. He asked me if I would write to my brother asking him to Bee Ross with the object of asking him to give up the deed lie had for another deed settling the property on Mrs Ross for her own use. I wroto the letter and took it up to Robertson's house to make sure whether or not I had expressed his m'lid on the subject. I read the letter to Robertson in Mrs Robertson's presence. I then asked him if that was what he wanted. He said it was, the very thing. I read it to him a second time, and put the same question, •' Does that exactly express wha f. you want me to write to my brother to say to Ross ?" I read it a third time, saying that if any part of it was not exactly what he wanted I could easily alter it. He said there was no need, as it j ust expressed what he wanted me to say. I told him I could not post it for a day or two as there was no mail, and that if there was anything further I could easily insert it. He said it so fully exnressed his mind, that I could post it when I "liked. I posted it by the next mail that left, and received a reply after two or three weeks. There were no enclosures in the letter I sent. I took the reply to Robertson immediately. In the meantime he kept asking me whether I had heard from my brother. My biother's reply expressed consent on the part of Ross to do as Robertson proposed. When Robertson heard tha letter he was very much pleased, and said that was just what he wanted; that the new deed would not cost Mr and Mrs Ross v penny, that it should be made out at his expense, and that it should be done at once. Robertson followed me to the door, and said he could not express hew pleased he was at the part I took. Next morning, Robertson was in a state of mental perturbation—weeping. When he came forward, he said he hid not the life of a dog with Mrs Robertson. He told me he could see through Mrs Robertson —that she did not want Jeannie to get the property at all, and wanted it for herself. He used an abusive epithet and said that she would never get a stick. He said the property was settled on Jeannie, who would have it in spite of her .He said that Mrs Robertson was not in good circumstances when he married her, but that now she was " baith bein and braw;" that all the money made was being put in the Bank in Mrs Robertson's na.ne, and that she ought to be contented. The question of the deed was not revived between us for some time after that. The next time that he retcrred to the matter, he wished me to communicate again with Ross. It might have been a few weeks, or a month afterwards. 1 told him I was not going to communicate any more verbal messages—thatif he wished me to communicate with Ross again, he must put in writing what he wished to say. The result was two slips of paper, one of which I sent to my brother, and the other I retained. Those produced are the papers. The body of each paper is in Mrs Robertson's handwriting, with which I am very familiar. Both are signed by Mr Robertson, and were Higced in ray presence. One of them is as follows :—" My intention is to kava my Anderson's Bay property to my daughter Jeannie, that is now Mrs Ross, and her lieiw after her. Bui if the deed is not given up, I am afraid she will never inherit a penny - worth of it." The other is as follows ;—" My intention is to leave my Anderson's Bay property to my daughter Jeannie, that is now Mrs Ross, and her heirs .after her, if the deed i« given up into my hands.." I saw Robeitson shortly afterward s ; and told him that Ross was not willing to give up the deed. That was in consequence of a reply frosa my brother. I cannot recoileet what Robertson said. I afterwards saw Robertson, and he to)d me that Mrs Inglis had been at his hov.se, and that there had been unpleasantness at his house : about the disposal of the property. He said '' there always was unpleasantness when Sirs IngHa eallecf, and said he thought it was hard that ii man could not dispose of his property as he thought fit. During the time I hays known Robertson he has not been in the habit of writing move than his signature. Cross-examined > I was in Court this isorn»

ing until Mr Stewart called attention to wit | nesses being present. I did not know that tbe Judge had ordered witnesses out of Court. _ I only heard that it was unusual to allow witnesses to be in Court in such a case as this. I thought the object of that was that witnesses should not know what transpired iv Court. I have read Uio newspaper reports to some of tho witnesses who are to give evidence, because they asked me to do so. I would not have done bo if I thought it was wrong. I have said to some of the witnesses, referring to the evidence, " What do you say to that V When I bad the conversation with Robertson about the land for grazing a cow I understood he had parted | with all legal control over the land. I do not remember Ross's name having been mentioned, but simply that the land was settled on Mrs Ross. I understood that the will I drew up was to confirm the settlement previously innde on Mrs Ross. It did not strike me cs strange that Robertson should seek to dispose of the \ roperty after dealing with it by a deed. I did not think of it. ihe L3O to Mr Harwood and the annuity to Mrs Robertson were io come from the Anderson s Bay property. It did not seem to me strange that the charges should be put on the property after it had been dealt with by a deed. I went to Timaru some time ago, and saw Ross there. No one asked me to go to Timaru. When I came back I saw Robertson, and told him as a matter of opinion that it would be better to quash the present proceedings and settle the matter privately. I did not tell Robertson that Ro3S asked me to be the medium of com: munication. Ross did not come to Dunedin at the time I saw Robertson. I did-not tell Robertson that Ross was in Timaru; and I did not tell him that Ross was in Dunedin. I saw Ross itt Timaru sevenil times, lie came into my brother's shop. I had no*- seen him before. I wont to Timaru partly tn see my brother and partly to see Ross. I received a letter from my brother the same night that I received a letter from Ross. I had been under a promise to my brother for months to go up and Hee him. The letter I received from Ross was as follows :— Timnru, 9th December, !576. Dear Mr Clark—l had intended to see you i-re ibis, but your brother David thought you would ba up. Could you make it your b.isines- to c -in- up here j»nd see me ? I will see to yi.ur expenses, ','oukl you find out; whether Mr mid Mrs Charles Miller, of Tomahawk, are unfavourable to ua c.r not? I h-pa you will make'it convenient to run up, us I have important commissions £t you.—Yours since ely, P.S.—So sure ivr.d write by Tuesday's steamer. I went up to Timaru a few days after the receipt of that letter. In fairness to Ross, the letter I had from my brother ought also to be taken into account. W. P. Street, stated: lam clerk to the R.M. Court, Dunedin. I produce the proceedings in the case Guthrie and Sibbald v. Robertson. The case was heard on 27th August, 1870. MiHarris appeared for plaintiffs. J. R. P. Stamper, junior, stated: lam a solicitor of this Court since 1874. I wa3 clerk to my father in 1870. I remember going, in March of that year, to Moray place, to attest a deed to be signed by Robertson. Ross came to my father's office, and told me Robertson was waiting for me to go to his (Ross's) house to explain the deed to him. I told him it would be much better for him to bring Robertson to the office. Ross replied that he asked Robertson to come to the office, but he had declined, • saying he had a horror of solicitors. I went to Moray place, and found Robertson and Mrs Ross there. Ross introduced me to Robertson, telling the latter who I was, and that I would explain the deed to him. I re-id the deed over and explained it to him. He expressed himself satisfied, and we then waited uutil another witness came. AMr Clulee then arrived, and Robertson signed the deed in our presence. After the deed was signed, Robertson asked me ■whether there was any necessity to register the deed. I told him there was no need to register it, but it would be as well to register it. He seemed to wish to have the transaction kept secret, because of his differences with his wife. Subsequently I made search at the Dunedin Deeds Registry office at plaintiff's request. I searched, and told Robeitson the result. I found out that the deed to Mrs Miller was registered, and that the_ deed to Mr and Mra Ross preceded it jn the index. I remember the case of Guthrie and Sibbald.v. Robertson, in 1870. Robertson j;ave evidence in that case. He swore that he had conveyed his interest in the Anderson's Bay property, retaining a life interest. He said he had conveyed it to his son in-law, Ross, and, I believe, his wife. I made the search I have already referred to between the 14th and 17tu September. I read the deed of 4th August —the conveyance to Mrs Miller—to Robertson at his request. I ceased to act as Robertson's solicitor, shortly after the delivery of the bill of costs in 1871. Cross-examined : I am a barrister, solicitor, conveyancer, and probably a proctor also. I have been practising four years. I was about 18 years of age when I explained the deeds to Robertson, I perfectly understood the deeds myself. Mr Macassey: What was your particular line in your father's office ? Witness: General work. Mr Macassey: Had you a weakness for bills of sale ? Witness: Ido not know th*\t bills of sale were a weakness of mine. Mr Macassey: Could you aot furnish me with a precedent for a conditional bill of sale of a silver watch Mr Garrick : I think my learned friend is going a little too far. Ido not think that such questions come within the rule. His Honour : I am afraid the rule of crossexamination Is unfortunately too cleai that any questions, however disagreeable to the witness, can be asked. It is left to the discretion af counsel not to abuse their privilege, and I have no doubt Mr Macassey will exercise his privilege judiciously. However disagreeable the questions may be, the witness must answer them. Mr Macassey : I am sure there is nothing disagreeable to you, Mr Stamper, in this. You said just now that bills of sale were not a weak ness of yours, and the question I put is tbis : Suppase I wanted a precedent foe a draft of an assignment of a watch from a prisoner in gaol to secure a bill of costs for five guineas, could you furnish me with such c. precedent ? Witness : Certainly. Mr Macassey (handing the witness a document) :Is that the sort of precedent you would lend me ? Witness : Yes. Mr Macassey : That document is signed J. R. P. Stamper, solicitor, is it not? Witness : Yes. Mr Macassey then read the document, which was a conditional bill of sale of a silver watch and appendages belonging to mortgagor to secure payment of a promissory note for L 5 ss. Mr Macassey: You happen to ba the agent on the record for Mr Williams, of Christchurch, in the present action ? Witness: I am. Mr Macassey :So that ostensibly Mr Williams, of Christchurch, is> defendant's accredited solicitor, and you are his agent 1 Witness : Precisely. Mr Macassey: Do you not happen to be the defendant's solicitor yourself, and is not Mr Williams the agent ? Witness :Mr Williams is the solicitor, and I am the agent; I am quite certain about that. I was acting as solicitor for Robertson for two years. I consider it my duty to protect tho interest of my clients, and not to hand over the documents of a client to anybody quarrelling with him. My office defended the case of Guthrie and Sibbald v. Robertson. I am not aware that I handed over the documents in that case to Ross. Robertson would bring the letter from Harris to our office. I cannot account for that letter being in the possession of Ross, because I am not aware of its being in his possession. 1 cannot say how many deeds were drawn up on behalf cf Robertson or in connection with him. The settlement of 18G9 was drawn in our office. I th.-.ught at first that it was strange Robertson himself did not come to the office, but- I thought it was explained by Ross's statement that Robertson had a horror of solicitors. I regarded Ross as our client in all these transactions. I was not about to take a jaunt to Melbourne tibout that time. I was not in Court all the time that the case Guthrie and Sibbald v. Robertson was going on. I was in Court when the statement was made by Robertson regarding the property. I remember it, because I remarked to Ross at the time in the Court —" There will be a disturbance at Anderson's Bay to-night." I remember Robertson coming for the deeds. I will sweat that my father did not go for or send for Rcss while I was away for the deeds. I have no recollection of Ross being present when Robertson got the deeds. I have no entry in the call-book of Ross being at the office. On the following day, Ross and Robertson are in the book as having called. John Stamper: I am a solicitor of this Court. I have known Robertson and Ross since 18G9. I prepared a draft for Ross. I prepared a draft on his instructions referring to the property of Robertson. I left the property blank. He gave me the names. I drew a skeleton deed for him and he paid me for it. I also prepared a bill of sale for him in similar terms for Mrs Robs. I indistinctly remember seeing the bill of sale again. I believe i. copied it for him. I believe at that time Rcsb was living with Robertson. I prepared an affidavit. I afterwards prepared another deed to Mrs Miller. I was instructed by Ross, and probably paid by him. Ross took away that draft. I saw it again in 1870. Mr Ross and Mr Robertson called upon me with the deeds of conveyance and a will. They asked me to compare the will and the deeds, with the object of satisfying Robertson that the deeds were consistent with the will, and that Mrs Millsr and" Mrs Ross vould get under the deeds what they were to get under the will. There was » codicil to that will. Robertson called at my office, and was very angry because the deed to Mrs Miller hud not been registered. He subsequently told me he had made a mistake, as Mrs Miller's deed was re>

gistered. , Whealsent my Hon to the bank for 'Robertson's deeds, I did not Send forEoss. I believe the will of 1868 waa signed in the presence of Kilgour and Whittock. I Cross- ex:wnined: Those papers produced were my own private papers. I did not make this copy of the will as Robertson's solicitor. I made a copy of it for my own private use. I am not aware that those papers got into the possession of Ross, They were sent to Mr Williams, of Christchurch. Mr Macassey: You sent those papers which j you obtained as solicitor for Robertson to Ross's j solicitor in this action to be used against your j former client. : Witness: Well, you can put it as you like. | I made a copy of Robertson's will.: Ido not know how it got into Ros-'s possession ; but I ■ fancy that I must have made the copy for Ross. Both Robertson and Ross called on me, and I did not think it improper to give this_ copy to Rosa. Ido not think there was anything very very wrong in doing that It is very unusual for me to prepare drafts and give them out to be engrossed, and to have nothing further to do with them. Rose asked me to draw up the dead, and that he was competent to do anything further. I told him that that was veryunusual, and asked him to bring Robertson to me. The deed of conveyance as prepared b}' me and engrossed by Ross is slightly different. In the skeleton draft prepared by me Mrs Ross's name alone appeared ; in this deed, as engrossed by Ross, his name appears as well as his wife's—as trustee I take it. After I discovered this discrepancy I prepared no more drafts for Ross. In the ordinary form of English deeds the date appears at the beginning or end of the deed. I put the date to suit my own fancy. The usual way of beginning a will is, "In the name of God, amen." I usually begin, "By thJs my will," &c. The deed produced is not an ordinary form of deed, but it is my form. The putting in of Mrs Ross's maiden name in the deed is a Scotch way of doing it, and was dore by Rpss. Ross was a client of mine for some considerable time before Robertson was lay ciient. Ross was never employed by me. Mr Stamper, before retiring, asked leave to make th 6 following explanation: I see by the newspapers that Mr Harrold has made a statement, not according to the facts. Mr Harrold, when ha came to swear.the affidavit, made no such statement in my hearing, as he says he did. I do not mean to say that Mr Harrold did not make such a statement, but he made no such statement in my hearing. But my room was small, and if he made the statement, T think I would have heard it. He saj's that I answered him, saying—" I shall make it all right." It is all nonsense to say that I made such a remark. I did not know the premises. I c?id not know the deed was signed at Dunedin, and not at Anderson's Bay, until Ross told me, and I said to Ross that \t was a pity the little error had occurred, but it was too late to correct it. I did not know that the deeds were signed at the Alharibra Hotel. The Court then adjourned till 10 o'clock the following day.