SUPREME COURT.

South Canterbury Times, Issue 3804, 16 June 1885, Page 2

SUPREME COURT.

TlMAßU— Tuesday, Juno 16.

(Before His Honor Mr Justice Johnston, and a Special Jury.)

Saunders v. Cabot, claim , for specific performance of agreement.

Mr Harper, instructed by Mr Clement, for plaintiff ; Mr Joynt, with him Mr Perry for defendant. The following special jury was em* pannolled Messrs E. Clissold, S. D. Barker, D. McLaren, J. Paterson, J. Miller, C. N.Orbell, J. Boyce, A. Wylie, E. El worthy, W. Jas. Tennent, G. Cliff, W. M. Sims. Mr Eiworthy was chosen Foreman. Messrs A. Grant and J. R. Brown, defaulting jurors were each fined £5 unless cause was shown. Messrs W. F. Aplin and S. Bristol were shown to have left the district—Mr Bristol on a. visit to England. In opening the case Mr Harper said

the brothers Henry and James Saunders of Waimate were plaintiffs and Thomas Cabot, farmer, of Timaru, defendant, in an action of a peculiar kind. The plaintiff’s alleged that in December 1859, defendant was the owner in fee-simple, of. town section 19, Main Hoad, Timaru, which be had purchased from the late Mr George Rhodes. Subsequently he agreed to sell the section to one James Saunders, alias “Jimmy the Needle" (a soubriquet by which he was known in the district) for £3O. The money was paid and an agreement was drawn out. In 1860 James Saunders married one Elizabeth Wixon, and plaintiffs were issue of this marriage. In 1862 Saunders senior died, leaving a will in these brief terms “ I James Saunders leave all my property to my wife and family to be equally divided among them." This will was never, proved and the witnesses whose names were attached to it bad gone away or at any rate could not now be found. Subsequently the widow of Saunders took possession of the section in dispute and let it to Richard Tarnbull. She then asked defendant for a conveyance. This be declined to give, and the plaintiff alleged that he had burned the original agreement between himself and Saunders. He (defendant) then further acquired . the laud for himself under the “ Land Transfer Act,” and he received rents and profits ever since. The plaintiffs now prayed that defendant should be decreed to give up the land with all rents and profits to date, and to execute all documents necessary to transfer the sections to plaintiffs. Defendant, on his part, admitted some of the first allegations, but denied that he was owner in fee of the land, or that Saunders ever bought it. He denied that Saunders ever married Elizabeth Wixon, and that the plaintiffs were born in wedlock. He further denied the genuineness of the will, and alleged that he purchased the land from the widow for £75. He denied that be bad ever burned a transfer, and submitted that be was now registered proprietor having acquired it in the ordinary legitimate way. Mr Harper called William Scarf, laborer, who knew James Saunders deceased (commonly called “Jimmy the Needle”). He also knew defendant. He had known him for 26 years. He knew section 19 in Timaru and used to keep some stables adjoining. This was before there were any buildings on the section. It was generally understood then that it belonged to Cabot. In 1859 or thereabouts “ Jimmy the Needle ’’ was in Timaru several times' Once he and Cabot were talking in witness’ hearing. He could not say what they were talking about. Cabot never spoke to witness about the section, so far as witness conld remember. He put up a building near there with Cabot—a slab stable. The section was not then built on. Witness thought, but be was not sure, that Cabot did, at that time, say something about the section being his own, but he never siid anything about the sale, Cabot bad spoken to witness about it two or three weeks ago, and told him that he never knew Saunders.

)To Mr Joynt—l swear that Cabot told me he did not know “Jimmy the Needle ”26 years ago. Sam Williams’ public house was the principal one in the town. Nobody bnt Cabot has spoken to me about the action. Well, yes, on further consideration I remember now that Mr Clements spoke to me about it a month ago. I had not then seen Cabot. In those good old days there was plenty of whisky drunk at Sam Williams’. His Honor—Well, you know, Mr Joynt, there was no Blue Eibbon Army then! (Laughter.) James Shepherd said he remembered Saunders (deceased) and bad seen Cabot and Saunders together in Timarn, Witness, in 1859, saw Cabot sell a piece of land to Saunders, and saw the money paid or part of it at any rate. The land waa a {-acre section, and close to the present '• Bowker’s Building’s." At that sale Cabot, Saunders, witness, and Samuel Williams were present. Witness saw some writing pass between the parties. It was signed by Thomas Cabot, and also by witness (as a witness). £2O in sovereigns, were paid over to Cabot. Witness was no agent in the matter, he was simply barman in tho hotel. He had never been out of Timaru since. Williams was to have witnessed the agreement ; but, instead, he called witness. The Salvation Army Barracks had been built on the section in question. Mr Turnbull used to occupy a brick shop on the section, It was burned.

To Mr Joynt—l believe I read the paper I spoke of. Cabot wrote it, I believe, He was the best writer of the lot, and so ho wrote it out. I am not sure I saw him sign it. I believe 1 put my name to tho paper as a witness to the payment of £2O merely. The transaction took place in tho evening. I will not swear it was not near midnight. It was at the hotel, in tho bar. The paper was signed with ink, not with beer.

So-examined—The money was paid :or the section.

Elizabeth Harper, wife of Joseph Harper, and widow of the late James Saunders, said she was married to the latter about 25 years ago, and witness a year after married her present husband. James Sannders was a ferryman and witness had two children by him, Henry, the elder, was born 23 years ago, James 22 years ago. Witness was married at Waitaki, at . Saunders’ own home, by Mr Andrews’, Anglican clergyman. One Hay ton was present at the baptism of Witness’ oldest son. Mr ,

Gifford, of Oamaru, baptized him. He was then two months old. Saunders was drowned in the Waitnki on the very day the younger child was born. Mr Hayton examined bis papers after death and gave witness the receipt for the section. Witness could not rend. Hayton also handed her a receipt which she kept. She subsequently gave one Fitch one of the documents which he banded to Mr D'Oyley, sdicitor, after reading it to witness. A section in Main Road, Timaro, was said at that time to belong to Saunders. After his death witness saw' Mr Turnbull and showed him the documents. After this she let the section to Turnbull. This interview between Turnbull and witness took place in Timarn. The section was above the Club Hotel, and there were no buildings on it. Turnbull paid some years rent, w’hich she took out in goods. She did not then know Cabot, but she knew him some time after on her going to Captain Scott, Rhodes’ agent, for the deeds, He gave her a note for Cabot and she and her sister and James Watson went to see the latter. Watson is not now living. They saw Cabot on his farm. Witness banded him Captain Scott’s note. He then brought out some papers which he said were the deeds. He then said he was as much entitled to it as witness because (he declared) she was not married to Saunders, and the children were not born in wedlock. Witness told him she was married and then came away. She consulted Mr D’Oyley then and returned to t Mr Cabot’s again. At that interview witness sojd the section to Cabot, for £75. He paid the rn'mey. by cheque. The cheque was duly honored and witness signed a receipt. At that interview Cabot tore upend burned the piece of paper which Hayton had fonnd in her husband’s box, and which she had afterwards shown to Turnbull, Watson and witness’ sister were present then. After getting the money witness returned home. At the marriage with James Saunders, there were some person’s present of whom only one, Hamlet, was living. To Mr Joynt— It was five years after Saunders’ death before I’sow Mr Turnbull about his renting the section, and two years more before I saw Cabot. The paper which Cabot burned was blue. 1 never left the paper in Mr Turnbull’s hands, I merely showed it to him. When I sold the land to Cabot I believed I was doing right. I do not remember whether I used to pay Borough rates on the property. I spent the £75. Well, I cannot say on what exactly, but it was on the maintenance of myself and the children. My husband left me no other property. Mr Dickinson, my sister’s husband, first told me I ought to claim the land (Mr joynt —“ Was he a lawyer (Laughter,)—“ No sir, he was not,’’)— This was in the presence of the two boys. She left the matter to her sons, who said they would try. Up to that time I had believed the land to bo lawfully) Cabot’s. I swear Cabot threw that paper in the fire and no one else. Ho said when ho did so—“ There, there’ll be no more about it.” Jane Dickson corroborated the evidence of the last witness, as to the Interviews with Oubot. Mr Joynt endeavored to throw discredit on the evidence of the witness by suggesting that such recollection was phenomenal. Being pressed, she said she had been living in Sydney of late, and had come over to give evidence in this case, Mr Slee was the first who spoke of the natter to me. His Honor —Who is Mr Slee ?

Mr Joynt—Oh I Your Honor, ho is well-known. Ho is ono o£ the new j.P.’s made by the present Government, (A laugh.) . Mr Harper, in reply to an observation of his Honor remarked that he supposed it was intended to make out some conspiracy ; be did not know. Mr Joynt—Well perhaps there is no legal conspiracy, but you know well it is a moral one.

Mr Harper (indignantly) Your Honor, I am sure there is no such thing as a conspiracy. My learned friend Mr Joynt—l did not mean that you were a party to a conspiracy Mr Harper, of course not.

His Honor sharply forbade any interjecnlatory remarks. Lionel William Fitch, boatman, of Ficton, formerly of this district gave evidence as to the signing of the agreement at William’s public-house, in 1859. He remembered the paper, and said that on the back of it there was written “Bhodes to Cabot.” Subsequently Sannder’s wife banded him the paper and he saw it. After Saunder's death, Cabot told witness that he had as good a right to the section as anybody, for Saunders was not married and his chil? dren were bastards. Witness could not lemeraber exactly who signed the —aper.

Nothing was elicited in cross-examina-tion. Wm. Aitkin,mason,of Waimate,said in 1862 he was lying at Saunders’ house with a broken leg. He then saw a laper relating to a section in Timaru. t bad Cabot’s signature, Cabot offered it to witness for £IOO, but he refused the offer. Ho signed the will produced. It had been drawn up at Waikouaiti and there were on it the names of other witnesses. Witness was sponsor to the older son. He knew James Saunders before bis marriage. After Saunders’ death, witness went to his house and at the request of the widow, gathered his papers together. Among them were certain receipts and what was called in (hose day a “ Crown deed.” To Mr Joynt—What 1 called a Crown deed was something like a license to Occupy- Saunders’ second son was born on December 28th, and Saunders himaelf was drowned on that very day. I do not remember the date of death of •11 my friends. Some of them are not dead yet. (Great laughter). Mr Joynt appeared to resent this merriment, but His Honor, soothed him by remarking that the laugh ter was not At him but at the witness’observation. ■Witness was hard pressed by counsel but bis evidence in chief was quite unshaken. Ho said—l did not buy the section when Saunders offered it to me, because 1 did not believe Timaru septions would ever bo worth having. I had no vision of the Breakwater in my mind then. I know what a transfer is. Oh I no, I never drew out one. That yaß a transfer from me to Short, was’nt ItP

Mr Joynt (aghast)—What do you mean ? How do I know your transactions ?

Witness (coolly)—Why you ought to know about all theso’things I suppose. (Laughter). Re-examined—l remember the inquest on Saunders’ body. I was on the jury. From all ho said, heard, and read he had no doubt the documents related to a transfer of land in Timaru. The evidence of Mr R 1 Turnbull, which by consent, had been taken a few days before, was road. It was to the effect that Saunders’ widow showed him a receipt and agreement to sell the land to Saunders, signed by Cabot. Subsequently Cabot called upon him and he told him of this agreement. Cabot raid it must be a forgery.

William Hartland, clerk to Miles and Co., Obriatcburch, said he had charge of

the books and documents in connection with the Rhodes’ property. Witness was about to reply to a question by counsel as to whether he could produce a record of a certain sale, when Mr Joynt objected, and a long argument ensued. Finally, His Honor having questioned the witness, the latter said though he did not make the entry concerning this particular sale, he could produce a memo in Mr Geo. Rhodes’ handwriting proving the sale. Witness hero produced a record from which he read “ March 27, 1859, sold to Thomas Cabot section 19, paid in full £20.”

E. H. Lough, Town Clerk of Timarn, said he was formerly employed by Mr George Rhodes. The writing on the document produced was that of Mr George Rhodes. The books produced were the rate-books. Witness hero turned up the records and found an entry in 1865 " Lot 19, Main Road, occupier, Mrs Saunders.” R. A. Chisholm, manager of the Bank of New Zealand, said Thomas Cabot bad an account at the Bank in 1868. Witness produced a cheque of his for £74 drawn in that year on Sept. 4, and also the entry of the transaction in the ledger. Mr Harper here put in, by consent, defendant’s application to hare the land in question brought under the Land Transfer Act. He also put in certificates of marriage of James Sannders and E ixabeth Wixon, by Rev.H. Andrews, and of the birth of the younger son. The older son’s birth had not been registered. This was the case for the plaintiff. Mr Joynt, for defendant, submitted there should be a non-suit. The will ought to have been proved, and the proceedings instituted by the administrator.

A. Ballaotyno clerk of Works to the Waikonaiti county, said he used to know Thomas Mitchell the witness to this will. He had years ago gone away, however, and witness never saw anybody who knew where he was. Mr Joyn’t continued to urge his non. suit point. His Honor took a note o£ this and Mr Joynt further submitted that there was not sufficient evidence in writing of tho alleged contract. Leave was given to move if necessary. Mr Joynt called— Thomas Cabot, defendant, who said he lived in Tiraara in 1859. Ho bought lot 19 from Mr G. Rhodes, and paid for it immediately. He never saw “ Jimmy the Needle” in his life. He knew Sam Williams, the publican, and once had some conversation with him about the land. Williams woke him up one night about ten o’clock, and offered to buy the section. Witness refused at first but subsequently he consented and wrote a receipt on his knee, in bed. There were two or three drunken people on the floor, and in the morning witness was told that “Jimmy, the Needle ” was ono of them. This was tho only document witness signed. Nothing more was done about the land ; and shortly after witness got married and left Timaru for some years. On his return, as he faintly remembered, Turnbull called on him and asked him whether ho had given any conveyance of the land. He did not say to whom. Witness said no. Turnbull said “ but I have seen one.” Witness said—“ Well you have seen a forgery. Who showed it you.” Turnbull said a woman, Mrs Saunders, had shown it. Witness then went in search of her. It was nearly three years after that Mrs Saunders called on witness. She (whom he recognised to-day) accompanied by a man, called and spoke about the land, showing ( a paper purporting to be a sale note of the section. Witness said, “ Go and get deeds drawn and I will sign.” Then she offered to sell it, and finally witness bought it for £75. Subsequently the same parties met at the Commercial, Mr Poison, the landlord, being present. When Saunder’s widow called at his house he never said she was’nt married or that her children were not born in wedlock. He made a note of the interview in his journal, (Entry produced), (Case not concluded).