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SUPREME COURT.

CIVIL SITTINGS. : Monday, July 17. ' (Before bis Honor Mr Justice Johnston and a Speoial Jury.) His Honor took his seat upon the Bonoh at ten o'olook. | •ÜBKIB AKD OTHIBS V. WII3OX AHD | MONK. Mr Garriok, with him Hr Foster, appeared for tho plaintiffs.. Mr Joynt, with him Mr Harpor, for the defendant Wilson ; and Mr Wynn Williams, with him Mr Izard, for the defendant Monk. Dr Foster having opened the pleadings, Mr Garriok opened the case for the plaintiffs. He said the present was not an aotion for' the reoovery of any monies, but was brought for the purpose of relieving the complainants of the defendant Wilson from his present oharge as trustee of tho estato of the dcopftßed Mr Turner. Thero bud been great difficulty in getting those particulars whioh the plaintiffs had wished to obtain, and the trust funds had been diverted from their proper channel. Sinoe the filing of tbe bill fchoy had, howovor, obtained further information, and from the co-trustee, Mr Monk. Mr Wilson had taken very good oare to have his aotion ratified hy Mrs Turner, who had signed certificates as to the generally correot way in whioh fche estate was managed. What they oomplained of was that the defendant had disbursed monies to his own aocount. Mr Garriok then especially referred to tho expenditure of the sum of over a thousand pounds whioh iv was alleged by the plaintiffs was wholly lost to tbe estato. It would be unjust that suoh a oharge of breach of trust should bo brought agaipat Mr Wilson without his having the fullest possible opportunity of olearing himself. The thousand pounds referred to had been expended in the purohase of grass seed, whioh had been sold by William Wilson and Co. to William Wilson as trustee. For tbat 10s per bushel was ohargod, when the ruling prico was 6s per I bushel. It was, too, perfeot rubbish— generally known as "tailings." Thia grass seed had boen sown upon nothing moro nor less tban sand hills. Thon a sum of money had been expended upon land belonging to the plaintiffs for tho purpose of planting trees, whioh were of no use whatever to the land upon whioh thoy were planted, but whioh effectually gave sheltor to a piece of ground belonging to defendant, known as Wilson's hop garden. This had oost nearly £400 with labour, 40. The trees and the planting of the grain had cost something like £1600. The trees too had been sold by Wilson and Co. to Wilson the defendant. They also oomplained that the defendant had invested a considerable sum in the National and Oolonial Banks, the return from whioh wo 9 considerably less than it wouldf have boon if the same amount had been put out on mortgage. A considerable sum had also boon lost on leasehold property. They likewise oomplained of the lending of sums of money for tho purpose of allowing persons to build upon vaoant sections. In another instanco defendant had practically applied a loan to himsolf ou insufficient aeourity, but whother sufficient or insufficient, ib wri a courso he ought not to have pursued. For a period of about two years Mr Wilson had the personal application of this money. There were several tnatters that were inexplicable without the ovidenco of Mr Wilson, suoh as subscriptions to this road and that road, and this bridgo and that bridge, whioh had certainly no right to be charged against the estato. One sum of £60 had been paid into the oredit of Mr Wilson himself. Whon the tesfator died, he was possessed of a considerable number of oattle, the disposal of whioh had likewise benefitted Mr Wilson. The lower end of the hop-garden referred to required draining, and a sum of seventeen guineas had been paid out I of the estate to drain this practically, although [ a part of tbe drain was out on the testators' property. Thore were other items whioh ho | would not rofer to, but whioh would come ont > in evidenoo. The following witnesses were then called : — Cornelius Cuff, an arohitoot and surveyor produoed a tracing, showing Mr Turner's land and the surrounding land. Had been unon the rur, and knew Mr Wilson's hop garuen. The drain markod on the plan would equally drain Wilson's and Turner's land. The drain was running away from Wilson's land. The greater part of Mr Turner's land was dry. A great deal of Mr Wilson's land was under water. Tho drain ran olose up t. Wilson's boundary, and into tho plantation. Stephen Gillingham deposed ho was formerly tenant on tho run belonging to tho late 0. B. Tumor. Tho defendant Wilson w:» his landlord. Ho took possession on Jan. 7, 1872, and remained on it till Maroh 1874, residing there occasionally a week or a fortnight at a time. His sons managed the run, whioh was between 2000 and 3000 aores, including about 860 acres of freehold. The soil was principally sand. Witness used it as a sheep and oattle run, and the freehold partly for cultivation. Had forty years oxporionoo ob a farmer. On a certain oooasion Mr Wilson said it had struck him that it would bo a good thing to bow some grass seed ovor the sandhills of the run, and askod witness if ho had any objeotion to sow the seod if ho found it. Promised to do so, and shortly af torwards one or two very large loads of grass seed eamo up, piled-up like loads of wool, and at different times other loads oamo up, altogether about four. Examined the sood, and found it to be vory info: lor ; indeed, fcho hrgest proportion of it was the soft woolly grass known as Yorkshire fog. It wa? vory badly cloanod, and was mixed with other rubbish— not cloanod at all, in faot. A portion of ifc was rye grass, whioh was more liko eif tings than grass seed. Thoro was c'so a quantity of difforont sorts of olover ; the seed was mostly separate. A small propoilionof the olovor, perhaps a fourth, was veiy fair ; tho rosfc was old and dry. Mr Wilson sent no directions as to tho way the seed was to be sown ; tho understanding was that it was to be sown on the run. Altegothor the seed was about two or throe months being delivered. It was sown broadcast, ss ifc c^te. Tbou was no preparation of the soil whatever. Witness objected to sowing so much, and Mr Wilson agreed t. Bond a man to holp him. Witness had afterwards looked for the result, but oould only boo a few plants here and there— mostly tho clover. Tho sowing of tho seed on tho Sandhills was a decided failvre. The resourcoß of his form were inoreased to a very trifling extent. As a farmer himself might have sown good upon the Sand-

hills but he certainly would not bave thrown away good seed upon them. Yorkshire Fog W8? the worst seed thay oould havo, aad was seldom sown ; if sown at all it should be upon danjp low places. Oould not speak aa to its value, as he had never heard of its being sold. Oould hardly put a price upon the grass-seed separate from the clover, as it was so inferior he codld not think it would fetch a price in the market at all. The olover was worth the ordinary market price. Witness sowed abont thirty or forty acres of the freehold land by seed he had bought himself. Paid no increased rental in consideration of the grass being sown. Had the property for two years and a quarter. There was some planting done on the freehold by defendant Wilson— about five acres on the part abutting on his own property, the hop garden on tha North-etst. Mr Wilson had asked him if ho would allow a portion of tbe land to be planted, as he wished to shelter and improve tho property. He pointed out where he wanted the plantation. Witness said it would not shelter the property; if he wanted to shelter ifc, tbe plantation ought to be on the South-west side. Also told him he could have as much land on the other side of the farm as he liked, but that he objected to the North-east corner being planted upon. After a good deal of discussion, however, witness consented to the defendant's wish being oarried out, and soon afterwards the land was taken up, ploughed and fenced, and planted with trees — partly sown, and partly planted — the blue gums were sown, and the pines planted. Knew at that time tbat the adjoining section belonged to Mr Wilson. That aection was shortly afterwards broken up, and planted with crops, before witness left. Paid do extra rent for that plantation, but told Mr Wilson, on the oontrary, that he should expect an allowance of SOs per aore, where the plantation was. Did not, how«ver, get ki allowance. The plantation did not improve the property — it ! would shade it. It might be an advantage in time, for timber purposes. It would be a deoidod advantage for shelter to Mr William Wilson's property, which it would shelter from the cold winds. It would be a most decided shelter to an orohard or to bops. It would enhance the value of Mr Wilson's property in every way. Should not think that the expenditure of four or five hundred pounds on that plantation would benefitTmoer's estatd. Recollected the cutting of a drain, which was done by tha defendant's order. Wilson had said it would be advisable to out a drain across that portion of the land where the water lay at one time of the year, and witness agreed to bear part of the expense. It was to oost either £2 or £4 altogether, he could not say whioh. There waa no dra'u out hy the defendant that cost £30. That drain would also drain, and did dra^n, the defendant's land, into the centre of whioh it went.

By Mr Joynt : Tfae run consists of nothing but sandh'lls, and the grass was sown nowhere else except on the freehold. The good land on the run had grass growing on it. It took a considerable time t> sow the seed whioh he had referred to. When he first saw the grass seed it struck him that it would not grow. About two or three hundred weight of the clover seed was very good, and about seven hundred weight was only worth about balf price. Sowed it because he had promised Mr Wilson to do so. Had never sown fog seed, nor had he heard of any person sowing it. Had seen it growing about. Could not say whether fog was particularly adapted to sandy soil. Nothing would eat fog— sheep might rather than starve, but not if they oould get anything else. Had experienoe in planting apple trees for the last forty years. In this part of the country, in order to shelter an orchard, be would plant on the south-west side, although it required to be sheared all round. The drain referred to always went into the middle of Mr Wilson's sections. Believed he had seen hops growing on Mr Wilson's section; could not say how muoh. Hops required shelter all round. The plantation would improve Mr Wilson's land by sheltering it from the inhospitable winds. Henry Gillingham, son of the last witness, deposed be was in charge of bis father's farm for about two years. Remembered sowing some grass seed ou the run, principally on the sand hills. Received the directions from his father to sow the seed any where ahout the sand hills where it was likely to grow — the damp patches between the sand hills. No preparation was made for its reception into the ground. The evidence of this witness was in the main similar to that given by his father.

John Dewsbury deposed he was formerly olerk and shopman in the employ of Mr Wilson in the beginning of 1868 and till 1872. Knew that he was a trustee in the estato of Turner. Remembered that grass seed was supplied to the run and leasehold. It was in the spring of 1872. Witness taw all the seed that was sent. There was a small proportion of rye grass in the first lot. There were altogether four dray loads. The first two dray loads consisted of rye-grass, Yorkshire fog, and a quantity of olover. There was not above a third of the two loads rye grass ; the rest was fog, with the exception, perhaps, of about a oouple of hundred weight of olover. The second lot sent up consisted of either one or two dray loads. There were a few bags of tailings among the seed. The tailings were quite as valuable as tbe Yorkshire fog. They were charged ten shillings per bushel. The ruling price for good olean rye grass in June and July was from 6s to 6s, and it was rising. Olover seed was worth about one and sixpence a ponnd. Yorkshire fog had no value here, for it was nota saleable article. Mr Wilson was a seedsman and nurset/man. Thej bad no Yorkshire fog in stock except that lot. It came from the estate of Lansdowne. Mr Wilson was a Trustee of that estate. That fog wa? the first cron. They had sold none of it. It had been offered for sale as an artiole of stook, but no one would buy it. Witness had had nine years experience es a seedsman. Yorkshire fog was not a seed usod to sow land. He believed it was indigenous to New Zealand in swampy lande. Remombered Wilton a; king him to cash a cheque of £66 on. Tamer's estate. It was at the end of May, 1871, Mr Wilson instructed him to write a cheque for £56, payable to collector or boarer. He said ho would give witness £6 for his trouble, and for keeping the account* of the estate, acd that the £60 was to reimburse them fcr travelling expenses. Witness cashed the cheque at the Bank of New Zealand, and handed Mr Wilson the whole amount. The latter then gave him (witness) £6 for himself, and told him to pay the other £50 into tbe Bank to bis (Mr Wilson's) private account. About two montb§ ngo »'♦-?-? bri b( >n aekeJ by Mr Chatters to give bim a voucher for the £66, He had replied be oould only give a voucher for the £5 be haa reoeived. Ho was the» asked to give a

voucher for the security of the JsV for travelling expenses, but refused to do cc, saying that Mr Wilson having receive ithe £50 wae tke proper person to give the vouoher. There was no probability of mistaking Yorkshire fog for prairie grass. [Left sitting].

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https://paperspast.natlib.govt.nz/newspapers/TS18760717.2.8

Bibliographic details

SUPREME COURT., Star, Issue 2593, 17 July 1876

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SUPREME COURT. Star, Issue 2593, 17 July 1876

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