SUPREME COURTS-CIVIL SITTINGS.

Otago Daily Times, Issue 4663, 27 January 1877, Page 2

SUPREME COURTS-CIVIL SITTINGS.

Friday, 26th January. (Before'His Honour Mr Justice Williams and a Special Jury,) ROBERTSON V. D. M. KOSS 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 D. Stewart, appiars for plaintiff; Mr Garrick (Christchurch), with him Mr Stout, for the defendant. Mr Howorth watched the case on behalf of one of plaintiff's daughters, Mrs Miller, The examination of witnesses for the defence; was continued as follows : — , ... James Stenhouse, overseer on the Ocean Beach Railway, stated: I have known the plaintiff for 17 years, and I know Ross and plaintiff's children by his second wife. I had some conversation with plaintiff since Boss's marriage concerning the disposition of his property. One conversation occurred in 1869 "or 1870. Robertson told me he was going to leave his propei ty to Mrs Ross and Mr3 Miller* Whenever I met Robertson he was talking about this matter. Sometime after that he told me he had made it all right for Jeannie and Annie. I have known from Robertson for 16 years that he was going to leave all Iris property to those two daughters. I always thought Robertson was a man who knew what he was about. In another conversation Robertson told me he had made it all right for Jeannie and Ross, and I "said I hoped he had made all right for Jeannie, as she had been a good daughter to him. Cross-examined : The conversation in which Robertson said he had made it all right for Jeannie occurred about the end of 1869. - - John Leckie M'Gregor stated: lam a farmer on the Peninsula. I have known Robertson for the last 16 years. I have frequently had conversations with Robertson about his property. In October, 1866,1 had a conversation, with Robertson about his" property. Some friends of mine, who had been lucky on the West Coast, came back to Dunedin, and they wanted to buy some land, and they also wanted to get wives. I spoke to Robertson about getting land for them, and he suggested that I_ should set them on to his daughters. He said—" Could you not introduce one (naming him) to Jeannie ?" I said—" He is too old for Jeannie." He replied—"Tne older he is, the more sense he will have to take care of her." Robertson also said that, whoever got Jeannie, would be well provided for. He then alluded to his intention of dividing his property between Lis two daughters—giving his Anderson's Bay property to Jeannie, and his Tomahawk property to Annie. It seemed to be a hobby with Robertson to talk about his property, and he sometimes bored me about it. He often talked about dividing it between his two daughters. When there was a bit of a quarrel between himself and his wife, he used to say he would not give her the annuity. He nover mentioned any other disposition of his' property, except giving the Tomahawk property to Annie and the other to Jeaunie. On one occasion, when Robertson appeared to be in a bad temper, he said he had left the property to those he wished to get it, and had done Mrs Robertson. Cross-examined: I suggested to my friend that he should look after Jeannie. I did not tell him that Robertson had suggested that. Joseph Ellison stated: lam a contractor for making bricks and tiles. I resided at Anderson's Bay for 12 or 14 years. I left there eight or nine months since. I have known Robertsou 12 or 13 years. I know Mrs Robertson and Mr and Mrs Ross. He was always speaking about his property, and what he -was going to do with it. When I was building a house on his land—about 1864 and 1865—Robertson told me he was going to leave that property to Jeannie. He also told me he was going to leave his Tomahawk property to Ancie. On one occasion, I met Robertson coming home from the Foresters' Fete at Vauxhall. and he said " The property you are living on is Jeannie's, and the Tomahawk property.is Annie's." About two years or two years and a half ago, Robertson said, " They are pulling down that house, but you know they were to leave a house on the ground, according to the lease, worth L4OO. I will make it as good again for Jeannie's sake." On another occasion, he said—" I have made one deed that cannot be broken. What do you think of it?" He said he had ma3e the Anderson's Bay property over to Jeannie and the Tomahawk property to Annie. I said I thought he had done right. He, told me that he had made several deeds before, but he thought the xlelfd to- Jeannie and Annie was the ,only one that would stand good. .'.:■■.■;■...:■■. James Corbett stated: I am a farmer at jCardrona. lam half-brother to Ross's fatfier. I remember Ross coming to the Colony in 1867, and'being married in 1868. I remember being in Dunedin before his marriage. I came to town about his marriage, t went oyer to> Robertson's house with Ross and Miss Robertson. We went over to see about the,marriage, and I remained at Robertson's house about two* hours. I had a conversation with Robertson on the following day in Dunedin. I think I met him in the street. Ross was with me. I told Robertson I objected to ths marriagel^because Ross had been so short a time in the Colony. Robertson was not pleased at this, and'wished the marriage to go on, and said that he was going to settle all his property on Jeannie. I did not know what the propertywas. I told' Robertson I would not say anything further in the matter. I thought Robertson would give Ross a start in the world at once, and that it would be a good thingfor him.' To the best of my recollection, I believe Robertson's property was valued at from L2OOO to> L3OOO at that time. . : Cross-examined: I came to town at therequest of Ross to see about his marriage. The sesond letter I got from Ross before I came to Dunedin, gave me to understand that propertywas to follow the marriage. I doubted Ross's statement at the time. Ross was so short a. time in the Colony, that I thought it was very unlikely he was going_ to get any property. I believe the conversation between myself and Robertson in town did not take place at the Bull and Mouth Hotel, while Mrs Robertson was waiting outside. I believe we met in George street. He said he intended to settle all his property upon Jeannie, and that he wished the marriage to go on. I did not Tcn&w there were tw& properties. I did not see any ante nuptial contract while I was in Dunedin. Ross did not show me that document, or tell me that it was in bis possession. Re-examinecb I do not believe thai Mrs Robertson was with Mr Robertson when I had the conversation with him in Dunedia. I sawMrs Robertson with him during the- course of that day. Joseph Mißer stated : I was formerly barman at the Allkwnbrn. Hotel. When a subpoena was served on me I said I was going rap- country, but a subpaaia was afterwards se^wed on me. I recognise the deed produced (13th' May, 1869). These gentlemen came into tiifi' eoamwrcial room: of the A'.hambra Hotel, and' asked for a pen an-i ink. I was asked by Boss- to go into the room, and be a witness to- the signing of certain papers on the table. I went into the room, and there said I would* sign if I knew what I was going to sign,, but, ottewise I strongly objected. Ross saitJ he woald read them over if I lilted. Robertson said there was no need for'that, it is-property I am givingover to my son-in-law, Mr Ross, and he said I was to witness the paper* with Ms good will and best wishes. I signed; and t&en returned : to the bar. I never saw Hamlet before that, interview. Cross-examined i I was. a barman at the? time of the signing of1 the deed. When I wa& served with a subpeena I diet not know where K was going, but I was not going farther than. Oamaru. I was nob going as far if I got -wouki, I did not take the- subpoena. I had seen Kosa two or three days before that. It was aftei; X saw Ross that X. intended to go up couatry> I saw Ross at my honsa at Kaikorai I waa starting for the country because I caajd get, aa work at the tiuee. I do not know how toanswer ihe question whether I knew the eircuiustances connected with the signittg of the deed better after Ross called oh me . than I knew them before* I did not jiaake any statement to the effect that I knew nothing about it till Ross came to me. When Ross came and asked me, I told him what had happened, and said I remembered perfectly well. I was never under tha impreg*

aion that I was signing a will. I was ■not told what it was. I was not told 1 was witnessing a will. I never made such a statement to Mrs Robertson or anybody living, as I believed and was told that I was ■witnessing a will on that occasion. 1 did not know whether it was a deed or anything else. I was served with a subpoena at lny house at the Kaikorai. I did not tell the gentleman •who served mo that I had forgotten all about sharing the deed until Ross called on me and stated what had happened. I believe he asked uje if Ross had served me with a subpoena. Eobertson called on me about witnessing this ■deed. I did not say to him or any mortal man that I was under the impression I was signing «, will. I first heard the words, ' with my rgood will and best wishes," from Robertaon. 1 «sked for the words, and remember them very -"well. It is a correct statement on my part that Eoss appeared to read the documents. I had -seen Ross twice before the signing in the Alhambra. They were in the room about 20 minutes. I thought T had signed the documents three or four times. I could rot say :!iow many papers were signed by Kobert«on. Re-examined : The gentleman at the table, I believe, served me with the subpoena. He did not ask me if I knew anything about this case ' before be served me. Mr and Mrs Robertson have not been speaking freely to me about the -case. Mrs Robertson said to me outside the -Court, that she hoped I would not speak to hurt tho old man. I said that I was going in to speak the truth about what was said at the time, whoever it might hurt. I had never gone into the country before to look for work, -except when I have gone to the diggings. Robert Henry Wallis: I am a clerk in the National Insurance Office at Danedin. I know Eoss. I met Robertson on one occasion. I •witnessed a deed in 1870. I saw Robertson, Koss, and his wife in the house. They were all present when I witnessed the deed. Ross pro■duced the deed, read parts of it, explained it, =and it was signed. I had a conversation with , Kobertson after the signing of the deeel I thought Robertson was an ordinarily sensible man, and knew what he was doing. Cross-examined : I signed this deed as clerk to Mr W. D. Stewart—temporarily employed. I did part of his work at hia office, and at his ■suggestion partly at my lodgings. 1 was paid ;so much a week. I was in his service four or five weeks. I did not do copying for any one •«lse at that time. I never spent a whole day in Mr Stewart's office, nor copied a letter. I knew Ross two or three weeks prior to the •signing of the dead. I was introduced to him ■on the Jetty by Mr M'lntosh, of the Customs. I knew he was engaged in a law office at Home. I remembered seeing him in Edinburgh. I had teen in a law office for two or three yews. Ross did not- suggest that I should sign as clerk 4;o Mr Stewart. I asked after signing, if I ■would sign as " clerk," or " clerk to Mr Stewart," and Ross replied, " Yes, it would be better to put your calling." I asked the question because the deed was different from what I used to sign. I did not think when I put ■"clerk to Mr W. D. Stewart" that I was putting Mr Stewart's.credentials to the deed. The reason why I asked Ross whether I would put " cleric" or " clerk to Mr W. t D. Stewart" was the result of my previous training in Scotland, where it was usual to put in the calling. I did not think there was any impropriety in putting in those words "clerk to Mr W. D. Stewart." I did not think it strange that Mrs Miller—in whose interest the deed was made— ■was not present. I did not think the transaction was a queer one. I would not have anything to do with a queer transaction. I have not expressed regret that I had been mixed up ■with it. I felt a certain amount of annoyance after hearing what had transpired, but I expressed no sorrow for doing something which I ought not to have done. I expressed that feeling of annoyance in consequence of <<ome remarks made by Mr W. D. Stewart to a gentleman well known to me. My annoyance was cot for having used Mr Stewart's name. My - connection with the deed has been the subject of talk. . Re-examined: I was introduced to Mr Stewart by Mr Sieywrighr. Mr Stewart could not give me anything to do just then. After calling upon him again he said he saw I was very anxious to get work, and he said he was rather busy just then, and he would give me something to do for a few weeks. He said he was rather cramped for' room, and that I might do the work at home. I understood that the deed I witnessed confirmed prior deeds and conveyed ; property to Mrs Miller. Edward Jennings : I am taxidermist at the Museum. I had a boot-shop in 1871 in Dunedin. I witnessed a deed in 1871. Ross came to me with his father-in-law, and asked me if I would witness the latter's signature. I believe the deed was read, and I signed it. Cross-examined: I had not seen Robertson before, but I had known Ross about 12 months. Ho was not a customer of mine before that; tut I have worked for him since. I understood the deed was a conveyance of a piece of land to Mrs Ross. This was the only deed ever ■signed in my shop. I do not remember any other TDaper being signed in my shop. The signature to the paper produced koks like mine, but I ■do not recollect anything about it. I have not, the faintest recollection of signing it. Re-examined: I have no doubt that it was a large document—a deed—that I signed. The •colour of the ink used in signing the deed is peculiar. It is made of copperas—a powder that shoemakers use. My shop was near Park and Curie's, and previous to the signing of the ■deed, Ross used to come in and out of my shop to look at the birds in my shop. . James Sanderson stated: I am a farmer residing at Anderson's Bay. I knotr Robertson. He told me he intended to make Jeannie ■a lady. P. C. Neill: I am a merchant in Dunedin. -I know Robertson, and occupied part of his froperty at Anderson's Bay from 1867 to 1872. asked him once or twice if he was willing to sell it. I know Ross. The last occasion on which I spuke to Robertson about the land was three or four years after Ross's marriage. On tho first occasion I spoke to him was shortly after 18C7. Robertson said he would not sell the property because it belonged, or he intended to give it, to his daughter—l understood his youngest daughter. About a year or eighteen months afterwards, I again asked him if he would sell. He said no; that he had given it. to his daughter. I asked him if it was by will ■or a deed. He hesitated, and said yes. The last occasion was shortly before I left the property, in 1872. I remember Robertson saying that Ross had got the property, and should never have had it. I gathered that he repented of what he had done. I understood in 1872 that Ross had got the property without Robertson meaning that he should have it. Mr Cook «cted for me iu reference to a dispute. Robert: son denied having made an agreement with ■Johnston—from whom I bought the lease—to .give. half valuation for improvements en the land. I offered to purchase Ross's interest in this property. 1 Cross-examined: There was no provision in -Johnston's lease for valuation. Robertson ■denied having made a subsequent agreement ■with Johnston for giving valuation. I suspect the reason why Robertson would not sell the land to me. I saw S. M. Clark iu my office -about this case. He was there once for five or ten minutes. He seemed to be wishing to find out what I knew about this matter. I received •a letter from Rosa about this action. It is as follows:— • Timaru, 3rd January, 1876. P. C. Neill, Esq., Dunedin. Dear Pir—Sly father-in-law, Robertson, at Anderson's Bay, would if he could upset a settlement of ■•■theproperty on my wile. Aa you have had some •dealings with Robertson, and as some of my witness s state that Roberta n said to you, " Ne'll had strived ta *est him out of," &c, ani that he(Robe'tson)hadto!d you " the property was settled on Jeannie" (Sirs Koss), and that he could not sell it. Would you Madly let me know if he did go le*d you to believe that the property wa.l so settled ? By so doing, >ou will servo me a kindness, aa the present Mrs Robertson i9 very hostile lin the miMer. 1 called to see you some days &zo, but .you were from home. lam very sorry to trouble you, but Robe' tson's rusty statements againat you self, as ■woll as me, might come out in Court through the witnesses, and I should like to place you in a position to defend yourself against ench, "and, by so doing, you •will protect tho interests of fair play to us—myself and wife.—Yours. &c., D. II Ross. Re-examined: My suspicion as to why Robertson would not sell the property was because Mrs Pvobsrtsou was present, and Robertson did not want it to come out. Thsmaa Guthrie: I remember the action ■Cruthrie and Sibbald v. Robertson. I was present at the trial. I do not remember saying that he had conveyed or ■disposed of his property. I know Ross. Robertson said he had consigned his property over to Ross. I heard Robertson say in Court that he had given over his property to Ross. Cross-examined: I had two cases in Court with Robertson. It was in the first case that Bobertson said he had consigned the property. The first case was in connection with not de livering four cowa. Robertson said to me on the road, after giving me some bad language, "" that he did not pare anything about me, as lie had consigned his land to Ross." Ross was -callei ?s a witness. He was against me strong ■enough. He was called as a witness against ms by Mr Harris. Jame3 Brown : I was formerly^ a merchant in Dunedin. This document is signed by me. It is also signed by Thomas Robertson. It was signed in my pressuce hi my son's place of -business in Erinces street.

Annie Crawford : I live at Anderson's Bay. T have lived there over 14 years. I have known Roberfcon during the whole of that time. My husband was a tenant of his. The receipt produced is in his handwriting. I was very intimate with Robertson. I have ■often heard him say that his property would go to his two youngest daughters, Jeannie and Annie. I have often heard him say that the Tomahawk property was Annie's, and the Anderson's Bay property Joannie's. This was before Ros3's marriage. After I got tho summons in this case, I went to Robertson. I told fcira I got the summons, and that I was very sorry to have to appear in Court. He told me to go and tell the trut'.\ I told him if I had known, I would have gone up country. Mrs Hobertson said it would be well if I had gone. Cross-examined: Eobertßon said that, who-

ever married Jeannie, would get the Anderson's Bay property. I did not understand that Jeaunie and Annie were tc get the properties after Robertson's death.

Jaue Reid : I am the wife of Andrew Reid, and I live at Anderson's Bay, where I have lived for 13 years. I knew Robertson and his wife. I have been friendly with them. Robertson has visited my house. Robertson told me ho was going to leave his property to Jeannio and Annie. That was before Rosses marriage. Robertson said that the Anderson's Bay property was to go to Jeannie, and the Tomahawk property to Annie. I remember having a conversation with Robertson after the marriage in Cumming's house. He said he had transferred his pioperty to Jeannie and Ross, and that he was sorry that Ross was in it. I remember a case in the Resident Magistrate's Court, in which Robertson was a party. It was something about cows and the property. I cannot remember what Robertson said in evidence. I loiow there have been quarrels between Robertson and his wife. He used to come to my (.l<*ce when he had a quarrel with his wife. He told me his wife would never have any of his land, and that that was the reason he would give hia property to Jeannie and Annie.

Cross-examined: Mrs Robertson never_ accused me of supplying Robertaon with drink. I,did not know when Robertson'intended to leave his property' to Jeannie and Annie. When Robertson said he had made over his land to Jeannie, and that he was sorry Ros3 was in it, I understood him to mean that he had done so recently. Clark has not spoken to me about the eyidence I was to give in this case. I understood Robertson to mean that he had made over all his property to Ross and his wife. I! asked him if it was a will; and he said, " No; it is a transfer." • John A. Reekie: I know Robertson fifteen years. I have often had conversations with Robertson about his Anderson's Bay and Tomahawk properties, especially the Anderson's Bay property. I learned in 1865 that Robertson had a will. He said ho was going to destroy that will, and leave all his property to Mrs Miller and Jeannie. The latter's mother was then alive. I had many other conversations with him about the property. He told me that he had made the Anderson's Bay property and the Tomahawk property very jecure to Jeannie and Mra. Miller. After Ross's marriage—in 18C9, I think—l took Robertson to town in my milk cart, and he told me that on the previous day he had conveyed his Andet son's Buy property to Mrs Rosa, and the Tomahawk property to Mrs Miller On last Tuesday evening I had a conversation with Robertson iu the 'bus. He told me he was in a hurry to get home. He told me he did not care a damn who won this action.

Cross-examined: There wore fourteen people in the 'bus when Robertson said he did not care how this action went. Robertson.said he was going to convey his property by his new will to his two daughters. I hava not had a conversation with Clark about the case further than lo tell him that I was a witness in the case. I saw him reading a newspaper in a small room with several of the witnesses. Ido not think those on the opposite side of the table could make sense of what he was reading. I fancied he was reading the evidence, but I could not swear it.

John Charles Miller: I am a labourer and farmer. I am married to a daughter of Robertson's. I have had many conversations with Robertson about hia property. About April, 1870, Robertson told me he had transferred the property to Mr Ross under such conditions that Ross should transfer the TomahawJc property over to nay wife. I asked Robertson how he could give Ross my property without my consent. Robertson replied that I ought to be satisfied with what I had got. According ■to an oath he made on the family Bible Robertson was to give the Anderson's Bay property to Jeannie and the Tomahawk property to my wife.

Cross-examined: While I was # at Moeraki, after my marriage, the Tomahawk property was leased to Harrison by Robertson with my consent. I heard in April, 1870, that Robertson had transferred all his property to D, M. Ross. Before Ross left Dunedin he told me that he had registered the deed of 1870, This is the first time I have seen this deed (produced). To the best of my belief, my wife has not seen it; I understood when I married that I was to get the whole of the Tomahawk property. I understood the youngest girl, Jeannie, was to take the Anderson's Bay property when Robertson died. I never went to old Mr Robertson's house and told him that I had come to turn King's evidence. So help my God I did not. lam interested in this case for my wite and children's sake. So help my God I would not have the land. If I had to go down on my knees and beg I would not accept anything from him. I put Mr Howorth here on my wife and children's behalf. I nevsr told Robertson that Ross had caused me to take an oath that I would not divulge the matter, but once he had proved such a rascal I would do so. I never proposed to Robertson that I should go to Christchurch and bring Ross back again. On January Ist Tom Robertson told me that he was going to summon Ross, and had five witnesses.up at his house. He had had seven, but Ross had bribed two of them. He asked me to come up to his house and swear before those five that Ross, had . made him drunk, and swindled him out of his property. Tom Robertson asked me if I did not tell him that Ross had done so. I ask6d him when I told Mm that. He said that he thought I had told him so. I replied that what Ross told me was that the property had been transferred to him on condition thai he should transfer the Tomahawk property to my wife. Tom Robertson then told me that he would summons me. I replied, "Goon, more days more dollars."— (Laughter.) Had Robertson summoned me, I would have given the same evidence on his behalf. I saw my wife reading the report of the trial in an adjoining room. Clark was present. Ann Miller: lam a daughter of the plaintiff, Thomas Robertson. My father has on many occasions told me that Anderson's Bay pro perty was for my sister Jeannie, and the Tomahawk property for myself. I was at Moeraki when my sister, Mrs Ross, married. My father told me that he had made the; Tomahawk property over to me. This was after I came from Moeraki. He said that he had made the property over to me and Jeannie, But I do not remember that he told me how.

To Mr Macassey: I know that my father has made two or three wills. The property was always left the same. He led me to believe that I and my sister would get the property when he died. He led me to believe that I would get the property before he died, so far that I have occupied the Tomahawk property, for twelve or fomteen years. Deed of August, 1870, handed to witnsss. I have seen this deed. I cannot say when I first saw it; but it was after I came back from Moeraki, and before Ross left Dunedin. I saw it in my own house at the Tomahawk. My father brought it down, and said that he had got it from Mr Ross. I went down to Mr White and got him to sign it. Mr Macassey: Does not that statement show that you have not seen that deed before ? The witness: It was very much like it. I also saw this deed before. It must have been at my own house, for I never saw one elsewhere. Ido not know exactly when Ross and his wife executed a deed conveying the Tomahawk property to me. I learned that they had done so before Ross left for Auckland. I trusted my father all along. I think I signed a deed once. [The witness here exhibited signs of weakness, and the examination was discontinued.] Thomas Harris fre-called : Tho entries in the last page of the BiWe now produced are, I think, in Mr Robertson's handwriting. I have seen this Bible before, It is the family Bible. The last entry is as follows: "Gen Robrtson was born 3d Janiy. 1849." The original entry might have been " 50," or 54,1 think it was a "4."

At 4.40, the Court adjourned until Monday, at 10 a.m.