SUPREME COURT.

Temuka Leader, Issue 1354, 18 June 1885, Page 3

SUPREME COURT.

CIVIL BUSINESS. Timawt—Tuesday June 16th. (Before His Honor Mr Justice Johnston.) In the Supremo Court, Timaru, on Tuesday, the case of Saunders Bros. v. Cabot was heard. Mr Geo. Harper, with him Mr Clement, for the plaintiffs ; and Mr Joynt, with him Mr C. T. H. Perry, for the defendant. The case was a most interesting one, involving very large interests.

The following were impanelled as a jury :—Messrs E. Clissold, S. D. Barker, D. McLaren, Jas. Paterson, J. Miller, C. N. Orbell, J. Boys, A. Wyllie, E. Elworthy, W. J. Tennanr, Geo. Cliff, and W. M. Sims. Mr Edward Elworthy was chosen Foreman.

Mr Harper stated his case as follows : The action, he said, was between Henry and James Saunders, of Wairaate, and Thomas Cabot, of Timaru. Plaintiffs were the sons of the late James Saunders, ferryman at the Waitaki, who rejoiced in the name of " Jimmy the Needle." In December 1859 Jimmy the" Needle purchased from Cabot lot No. 19, part of B.S. No. 7555, a section on the Great North Road in the centre of the town of Timaru. From the evidence he proposed to lead he would show what agreement i had been entered into about the land; but he would inform the Court at once that this agreement was not forthcoming, as Cabot had destroyed it. He anticipated Mrs Saunders' evidence would prove this without any difficulty. On the 16th January, 1860, Jimmy the Needle married ] one Elizabeth Wixon, and in course of time two 8ons ; the plaintiffs in this action, were born to them. H^"would prove that the marriage had been duly solemnised; that plaintiffs were the sons of James Saunders and Elizabeth Wixon, and that the father died about the time of the birth of the second son (29th December, 1862). The sons had now come of age, and were asserting their rights in respect to the land named. The father left a will; it was not much of a willbut was still quite sufficient, and was attested by Alex. Mitchell, Denis Garvey and William Hayton. The will wis dated " The Spit, Waikouaiti, 22nd October, 1862," and left the property to be equally divided between the wife and family. After the death of James Saunders, and after ihe making of this will, the property in the Great North Road, Timaru, remained unoccupied for some years, after which the widow let it to Mr Riobard Turnbull. The arrangement with Mr rurnboll wa% terminated in 1867, about which time Mrs Saunders accompanied by her sister (Mrs Dickenson) came to town to Bee Mr Turnbull about the purchase of the land, the details of which interview they would learn on hearing Mr Turnbull's evidence read over. Afterwards Mrs Saunders went to Cabot about the title-deeds to the land, and he told her she had no right to it, because she had not been lawfully married to Saunders, and that her children had not been born in wedlock. After some further negotiations, however, Cabot arranged to purchase the land for £75, on condition tbat Mrs Saunders ceased to make any claim to the property, and delivered to him the conveyance or agreement to the land. The money was paid over, and Cabot then put the agreement into the fire in the presence of Mrs Saunders and her sister, Mrs Dickenson. This occurred in 1878, the plaintiffs in this action being then infants. They noT claimed that their mother had no right whatever, either under the will or in any way, to part with their interest in this property, and they asked for judgment on the following grounds ;—(1) that they may be entitled to the land or two-thirds thereof under the will; (2) that the defendant shall be decreed to execute all deeds, transfer/ 1 , and documents as shall be necessary to vest the said land or the in terests therein in the plaintiffs; (3) that the defendant shall be decreed to account for the rents and profits of the land since the date he took possession thereof; or in the alternative (4) that Henry Saunders be declared to be entitled to the land a? heir-at-law of James,, deceased ; (5) that defendant be decreed to execute all documents, etc., as shall be necessary to vest the land in the said Henry Saunders ; and (6) that defendant shall account for all rents and profits since he took possession of the land. The defence filed, Mr Harper said, was a general, denial of everything contained in the plaintiffs' claim with one exception, viz., defendant admitted he was the registered proprietor of the section in dispute. The section, Mr Harper added, had been leased for a long term by Mr Bowker, who had put buildings on it worth over £IOOO, and whatever the result of this action his rights under the said lease would have to be respected. James Scarf, J ames Shepherd, Elizabeth Harper, (formerly Mrs Saunders), Jane .Dickenson, Lionel Willian Fitch, William Hayton, William Hartland (clerk to Miles and Co., Christchurch), Edwin Henry Lough (Town Clerk, Timuru), and R. A. Chrisholtn (Manager of the Bank of N«>v Zealand) gave evidence for the plaintiffs. Mr Harper, by consent, put in an application by Cabot to bring the land under the Land Transfer Act ; also the certificate of marriage of James Saunders and Elizabeth Wixon, dated January 16th, 1860; a copy of the same certified to by the Registrar cf the District; and the certificate of the birth of the second son. The birth of the first son, Mr Harper said, had never been registered, This was the plaintiffs' case.

Mr Joynt, in opening the case for the defendant, submitted that a nonsnit ought to be given on two grounds. First that the will should have been proved, and, secondly, that the action ought to have been brought by the administratrix, or whoever proved the will. There was no written evidence to -justify this action being taken, fie would ask leave hereafter to move for a nonsuit on the two points mentioned by him. Addressing the jury, Mr Joynt said it would naturally have occurred to them that evidence of conversations which took place between 20 and 2E> years ago and now recounted by the witnesses ought to be taken with considerable reserve, Thomas Cabot j I was living in Timaru in 1859. I bought a seotion from Rhodes,

and paid him for it. I never saw Jimmy tlie Needle to my recollection, nor bad I any transac'ions with him. One night when in b.-d, I was awoke about 10 o'clock by Sfim Williams. He said he wanted to buy the soil ion 1 had bought adjoining his section, hut I said I did not wish to sell it. I recollect writing a receipt for the purchase money. I was told that there were several drunken men on the floor, and in the morning was told that Jimmy the Needle was one, but did not see him. There was nothing more done about the land while I was in Timaru-. In July 1865 I came back to Timaru. I have a faint recollection of Turnbull coming to me about the section. I bei lieve he asked me if 1 had given a conveyance of the land. He told me he had seen a conveyance. 1 said if he had, it was a forgery ; and I then asKed him who showed it to him. Ho said a woman : 1 believe Mrs Saunders. Mrs Saunders came to my house about two years after I had seen Turnbull. She said slid Wanted to know something about the land her husband had bought from me. 1 don't. recollect her bringing a letter from Captain Scott. She ,showed me a paper, which I said was in my handwriting. She asked me if I would buy the I land, and asked me what price 1 would | give for it. After 1 had spoken to my wife about it, Mrs Harper said she would take £75. 1 told her 1 had not the money in the bouse, and that I would have (o go to the bank. I met Watson and Mrs Harper at the Commercial Hotel afterwards, and gave a cheque to Mrs Harper, but do not recollect getting a receipt. Watson said as the transaction was finished the other paper was of no use, and then threw it into the fire. (Witness produced his diary or journal showing that in September, 1865, he had paid £75 to Mrß Harper, widow of J»s. Saunders.) I have known James Shepherd about 26 years, but I don't know whether his name* was on the receipt. Ido not recollect receiving any money, especially gold, as it was not common at those times. Scarf was a man I hardly ever spoke to—he was cook at the hotel. I went to Oamaru in 1860, and on the way down slept at Wilson's crossing. Sam Williams did not accompaay me. I did not call at Saunders, on the way down. I saw Fitch in 1859, but never since. I was in Ohristchurch when Turnbull first took possession of the land. I believe Turnbull told me he had seen a conveyance of the land. I told him if he did it was a forgery. 1 was of opinion whan I bought the land from Mrs Saunders that she had & right to sell it as she showed me the receipt I had given when Saunders paid me the money. Mrs Cabot corroborated her husband's evidence, and Mr Joynt having briefly addressed the jury, the Court adjourned till Wednesday morning. Yesterday morning the Judge addressed the jury to the effect that the widow of the late James Saunders had acted wrongly in disposing of the property, and that Cabot was guilty of legal fraud in purchasing from tha widow without having made proper inquiries. After certain points of law had been settled certain issues were put to the jury and they found a verdict for the plaintiffs od moßt of them.

Hia Honor, however, granted leave to apply for a new trial on certain law points.