SUPREME COURT.

Wellington Independent, Volume XVII, Issue 1735, 27 June 1862, Page 3

SUPREME COURT.

BIRD AND OTHERS V. HICKSON. On the 10th May, His Honor Mr. Justice Johnston delivered the following JUDGMENT. This wa4 a motion for a decree. It is not necessary that I should attempt to recapitulate the very complicated fiiets, so often and in so various ways brought before the Court, but it is not unimportant to remark at the outset, that the plaintiffs, whole chief objects in these proceedings have been to first, to establish the proposition that the defendant purchased certain-land and premises under circumstances which would make him in equity, a trustee for the benefit of those through wliom the plaintiffs claim ; and secondly, to surcharge the defendant in respect of a largo sum alleged to have been improperly charged by him in his accounts, have brought the facts three times before special juries, and have on all three occasions substantially failed in establishing the propositions of fact, on which they mainly relied, as the foundation of their claims. After the first trial (more than two years since) and an unsuccessful motion for a decree in their favor, the plaintiffs discontinued their first action. They then commenced a fresh action, which came on to be tried at this place ; but, after a laborious investigation, which lasted for two days, the jury being unable to agree on a verdict, were discharged. The plaintiffs then moved for a decree on the facts undisputed on the face of the record, and their motion was dismissed. The second action went a second time to trial on the same issues, the venue being changed ; and after another investigation of two days duration, a verdict was found which was substantially in favor I of the defendant on each of the issues. No motion was made for a new trial on the ground either of the verdict being against the evidence or of misdirection, or of improper admission or rejection of evidence, but the present motion has been made for a decree without any attempt to disturb the verdict. As a further preliminary remark, it may be observed that the transaction enquired into, took place some ten years before legal proceedings were commenced, and that throughout the course of them, the counsel for the plaintiffs has repeatedly disavowed all intention of imputing to the defendant anything in the nature of fraud. A very grave and important question, not merely touching the practice of this court, but affecting the fundamental principles of its jurisdiction and powers, has been raised on behalf of the plaintiffs, and it has been urged from analogy to the practice of the Equity Courts in England, that in an action for specific relief, this Court is not bound to adopt the finding of the jury, but I may, as a Court of Equity may in England, reject

such finding if it seem to the Court incorrect without directing a new trial; and, moreover, that alter the verdict of a juiy, the court may go into the whole of the evidence given at the trial for the purpose of arriving at a different conclusion on the facts from that at which the jury arrived. To a proposition like this, I cannot permit my.self to seem to assent, by entering upon the whole facts of the case as they appeared at the trial and on the record, without alluding to the subject. As I undersiand the principles and practice of this Court, which administers law and equity together, (here is no distinction as regards issues of fact between actions such as in England would be brought in the common Law Courts, and these, which would be Suits in the Equity Courts ; but in both kinds of actions equally, disputed matters of fact are to be determined by a jury (unless where the parties consent and the Judge is willing that the Court shouVd dispose of them, which is not the case here) and I am clearly of opinion that this Court ought to adopt the verdict on the facts if undisturbed, and to apply the law and the principles of equity to the facts as they stand on the record and the finding of the jury. It has been urged on behalf of the plaintiffs that the Judge may and ought to look at all the cvi. dence given at the trial, and on a review of that evidence (whether ho thinks the jury have or I have i\ot come to a right conclusion) ought to do ; equity according to his own judgment on the facts. To this suggestion I cannot accede, as 1 am clearly of opinion that as regards the Supreme Court of New Zealand, if the jury draw an inference of fact from the evidenco contrary to that .evidence, the proper course is to move to set aside the verdict on that ground, and have a new trial and if either party desire to use any portion of the evidence given at the trial for the purpose of establishing other piopositions than those involved in the issues which have been settled, an application ought to be made to the Court at the trial to amend the record before verdict, by adding issues on which the jury could find a verdict re- [ specting such new piopositions. Now in this case the plaintiffs, whose duty it was to make out certain affirmative propositions as the foundation of their claims, went to trial on j issues assented to by themselves and .made no i application at the trial to add any fresh issues suggested by the evidence given, but took their chance of getting, on the existing issues, a verdict which might suit their purpose, and failing to do so wholly, ov at all events to the extent they desired, they now come to the court and asU the court to arrive at other conclusions of fact which they wish to use as grounds for a decree in in their favor. Now although for the purpose of accertaining whether the verdict was consistent with, or contrary to the evidence, on a motion for a new trial, it is quite competent for the Court to examine, review, and analyse the evidence, both oral and documentary, given at the trial. I do not think that on a motion for a decree, the parties are entitled to travel beyond the undisputed facts on the record and tho finding of the jury on the disputed facts, and to call upon the Court to draw for itself other inferences of fact from the evidence given at the trial. But inasmuch as it was strongly urged that on a motion like this the parties arc entitled to refer to, and argue upon the evidence given at the trial which took place before the same Judge who now presides in this court, I did not prevent tlie plain, tiffs' counsel from arguing upon such evidence at the hearing ; and it is not necessary for me now to decide finally on this important general question, for 1 should feel bound in this ease to arrive at the same conclusion, whether I took into consideration only the facts undisputed on the record, (and the finding which I think is the proper course) or I further considered those portions of the evidence given at tho trial which have been relied upon by the plaintiffs in the argument. It could not well be contended— nor has it been — that the Court is bound to ignore the finding of the jury on the facts, or is not at liberty to adopt their finding in drawing other inferences of fact. Having thus disposed of preliminary topics, I come to the first great question in the case, namely, whether the defendant bought the property in question under such circumstance that he got the legal estate in it subject to a trust in favor of the firm of Ridgways, Guyton. and Earp. On this question, it is contended first, that inasmuch as the firm was charged by the defendant in his books with the purchase money, and it is said the defendant, had funds of the firm in his hands at the time of the purchase, the purchase must be taken to have been made with their money , and there is no doubt that the entries in the defendant's books primafucie, and without explanation, afford grounds for this suggestion. But on a full investigation of the whole facts, a minute examination of the books, and the explanatory evidence of the defendant, the juty have found that the land was purchased by Bills which were paid out of the moneys of the defendant himself; and notwithstanding that the plaintiffs' counsel has argued upon the facts proved at the trial, that although the money paid for the lands was iv one sense the defendant's, yet the firm being treated as responsible, it was virtually \ their money that paid for it, and that the defendant having .a large balance of the money of the firm in his hands at the time, it must therefore be taken that the firm, and not the defendant, found the money for the purchase. I think if I be at liberty to go into this matter at all, I must remember the evidence given by tho defendant himself, to the effect that tho charging of the firm of Ridgways, Guyton. and Earp in the books was'only a process necessary for the purpose of arriving at the amount of profit upon the purchase and re-sale, which he had resolved, for reasons which he fully stated, to reserve for the benefit of the firm. This representation of the case seeihs to have been believed by the jury, and if it he open for me to come to a different conclusion, I must hold that the plaintiffs, whose duty it ia not to make out their case, have not satisfied me that the defendant's representation is i» not to be relied on, and that I ought to conclude that the purchase money was really the the money of the firm. It is argued next, that inasmuch as the jury have found that the purchase was made for the benefits of the firm, it does not matter that it was not mad& in their name, and that the jury find that the defendant never intended to give them an interest in the land. If the purchase was made for the benefit of the firm, the plaintiffs say they became beneficially interested as certuis que trust ; but it seems to me it would be a startling suggestion to make, that if I with my own money purchase an estate believing that I can sell it to advantage, and intending to sell for the purpose of realizing a profit, and at the time of the purchase and sale I intend to give the profit of tho transaction to another person, I become on the purchase, without any farther declaration of trust, a trustee for the object of my benevolence 1 No authority lias beon cited going near to establish such a doctrine. Bui then it lias been argued that the Defendant is estopped from denying that the land waa purchased with tho money of the firm, or in such a way as to make the defendant a trustee, because his books, accounts, letters, and documents show that he treated the firm as interested in the land and looked upon himself as trustee. And here to my mind is the great difficulty witn respect to the facts and merits of the case, if they are all before me. Iv speaking of an estoppel in this matter, the word seems to have been used in a popular and not in the strict technical sense. If in point of law it was open for the jury to draw an inference of fact at variance with that which the plaintiffs suggests ought to be dravn, there was no estoppel ; and it was not urged as matter ot law at tho trial that the question could not go to the jury ; nor has any motion been made to the Court or that, ground in order to get rid of the verdict. The Court is now asked by the plaintiffs, aa it were to Bay to tho defendant — " After these entries 11 made bade by yourself in the books of the firm;

•' after those letters and documents produced, the " Court must decide that you did buy with the " money of the firm, or you did declare your in- " tention to hold the land as trustee for the firm. " although the jury has found that you retired " the Bills with your own money, and did not in- " tend to give the iivm any interest in the land " itself," But if it was open for the jury to find as they have done after hearing the explanation of the defendant respecting the whole transaction, the Court cannot see its way to the conclusion that the jury were wrong in their inference from the facts. But there ia another way in which the case was put on the heaving of the, motion although it was no suggested at the trial for the purpose of excluding any part of the evidence, and which raised a question of some difficulty, namely, that the accounts, letters, and documents, or some of them, contain an express declaration of trust ; and authority was cited for the purpose of showing that no formality or technical language is necessary to make such a declaration operative ; but evidence was given at the trial, and never objected to, for the purpose of showing — and the verdict of the jury iinds, — that there was no imentiou on the part of the defendant to give the firm any interest in the land by the purchase, — but only the benefit of the profit accruing from the purchase and re-sale. I cannot say that there was auy expression of ; trust in the documents so unequivocal as to render such evidence if objected to inadmissible, as varying rather than explaining the written documents. The jury had those documents before them and i must be taken to have found that they were so I explained by the . evidence, as to establish ! that it was not the intention of the defendant to ! give by them a beneficial interest to the plaintiffs in the land or to acknowledge that he held the land in trust-for them. Now, I do not think there could be an operative declaration of a voluntary trust for another as to purchase property with the purchasers own money, in his own name, unless the purchaser clearly and unequivocally declared his intention to hold the property subject to such trust, or to give the other party beneficial interest in it. And if it were open for the Courtaftcr the finding of the jury to come to the conclusion on all the facts stated, and proved that the defendant did in fact mean to declare that he should hold the lands strictly as trustee for the firm of Ridgways, Guyton and Earp, they having the beneficial interest in the same, and not merely an interest in the profits which might accrue from the transaction, I do not see why the facts should force me to j that conclusion at variance as it is with the finding of the jury. There seems to me nothing inconsistent with the evidence in the belief that the defendant finding the old firm whose affairs he was winding up burdened with an onerous lease, and seeing the necessity for thesake of all partiesof coming tosoine arrangements about the land should have resolved — acting as he did in various interests, — at once to get rid of the lease which was burdensome to the old firm, and to do what was advantageous to himself, by becoming himself the purchaser of the whole property, and getting for himself on the re-sale a freehold title for the portion which he wanted for himself, at the same time giving the old firm the profits he anticipated would come out of the transaction ; — in consideration of their having a leasehold interest, which it was necessary to give up for the purposes of the sale, — and that he may have adopted the course which he did adopt in the accounts, charging and dischaging the firm in respect of the property for the pm-pose of ascertaining how the profit should be arrived at for the benefit of the firm : And although his own language in letters and other documents, if unexplained, might naturally have led to the belief that he was dealing with the property at the risk of the old firm, 1 should not feel obliged by the evidence to come to a conclusion on the question at variance with that of the jury, if 1 have any right (which I doubt) to go into the evidence at all. 1 do not think it necessary to advert to the question of acquiescence and laches in respect of this part of the case. 1 come now to the second part of the case which refers to the alleged impropriety of the charge .£1,445 12s. 3d., in the account rendeied by the defendant to the firm of Ridgways, Dicksoii &Co, on the 30th June, 1848. Thi.s sum it is said, was not properly charged by the defendant against the firm of liidgways, Guyton and Earp (or Ridgway's Guyton <fc Co",) and notwithstanding the time that has since elapsed , and the fact that no objection was taken in respect of it till after the first trial (some 12 years afterwards), the defendant ought to be surcharged in respect of it. I do not think it is necessary for the purjwse of coming to a conclusion in this part of the case, to consider whether there was such an acquiescence in the charge as would prevent the plaintiffs from now insisting upon the impropriety it was improper ; nor do I think it necessary to consider the effect of the reference to arbitration, or the assumption by both sides of an ascertained balance from which to commence the enquiry under the reference, — such balance having been arriveil at in the supposition that the charge now impugned has been properly made, because according to my view of the very complicated facts of the case — if I am to take them all into consideration, the charge was not improperly made. And first, with respect to the construction of the guarantee of John, and Joseph Ridways, dated 20th November, 1843, it appears from that document that they guaranteed to the defendant the profit of i:800 a year for the first two years of the new partnership, in which John and Joseph Ridgways, Lowndes and the defendant were the. partners. That guarantee was to be void and of non-effect if the partnership should continue for seven years, and the whole prolits coining to the defendant for that time, should amount to a sum which would give an average of £BQO a year. But the partnership did not continue for seven years, and the event did not occur, on the occurrence of which the guarantee was to be void. The partnership was dissolved by the bankruptcy of John Ridgway, in the end of the year 1848, after the death of Joseph, and not by an act of the defendant. I think that the defendant was ontitled to treat the guarantee in his accounts as certain for the first two years, although he might have been bound to account for the sum made up under the guarantee in respect of those two years, at the end of the seven year's partnership if his profits for the whole time should have amounted to more than the sum mentioned. Cue it is said, that whatever the proper construction of the guarantee, the defendant ought not to have charged the firm of Ridgway, Guyton & .Earp with the money, necessary to make up the guaranteed amount. The answer to this is, that at the time in respect of which the charge | was made under the guarantee, the only person interested in the firm of Ridgway, Guvton & : Earp were John and Joseph Ridgway, the two 1 persons who gave the guarantee, aud who gave it [ in order to induce the defendant to come out to New Zealand, and look after their interests iv the firm of Ridgway, Guyton & liarp, which was to be wound up, and the new firm of Ridgway , Hiekson & Co., iv which the defendant was to be a partner. When the defendant gave himself credit in the account with the new firm of June, JB4B, for the sum of £ 1,455, it was in respect of the claim he had on the other members of the new firm, namely, John and Joseph Ridgway, the latter of whom had died shortly before, though that fact was partly unknown to the defendant at the time; for it appears, though not very distinctly, that Lowndes had ceased to be a partner, and invited, the Counsel for the plaintiff to shew that his allegation contained in the account, which they sought to impugn — to the effect that Lowndes had ceased to be a member of the firm was incorrect, but he failed to do so. That account referred to similar charges mad© previously and never objected to by the parties charged thereby. It seems therefore, as far as I can see, perfectly just and proper that the defendant should charge the guarantee money aa ho did, and perfectly natural

that the charge should have been acquiesced in; and I do not understand how the assignees of the bankrupt, John Ridgway, can with any show of reason, suggest that this was not a matter which could be properly introduced into the accounts before the bankruptcy-, but was only one which gave a right of action, or was a debt in respect of which the defendant would be entitled to rank as . a creditor in the estate of the Bankrupt. Nevertheless, — vexatious and oppressive as the proceedings in this case may appear to have been, I think it must be admitted that from the complication of the accounts and the surrounding circumstances, there was apparently fair ground for raiding a question on this point, as there was also in respect to the incidents of the purchase of the land, which seemed on the books to have been professedly made on account of the old fiim. But on the other hand it is to be noticed that the point respecting the improper charge under the guarantee was never made till after the first trial, although the accounts on which it arose had been sent in many j-ears before and no objection had been made to them, and although the books had been in the possession of the plaintiff's advisers for a period of three months, indeed it has been clear throughout the many proceedings which have come beiore the Court, that the advisers of the plaintiffs were rather looking out astutely for assailable points in the accounts, than starting from any well founded suggestion of error or injustice arising in or from them.

Only one other qnestion remains; and that relates to the purchase money of the portion of the property bought by the defendant himself, and even if-the verdict of the Jury on that subject (on two issues indeed, — one directly, the other by uecessan^im plications affecting the question), were not allusive, I can see nothing in the facts iv the record or in the evidence at the trial, if I cannot consider it, which ought to induce me to declare that the defendant ought to pay that money to the plaintiff's of the open account be referred to the Registrar, as has been suggested, — he will take the defendant's admission of his liability for the sum of <±'360 (the purchase money), as final upon that point.

In conclusion,! think it hut right to say, on the whole of the case, tedious, difficult and Vexatious as it lias been, that the plaintiff's advisers <Jo not seem to have been without considerable justification for a minute investigation of its meiics, even although they have proceeded upon no very distinctly ascertained grounds for impugning tho accounts of the defendant. It is very satisfactory to find that no imputation has been made upon the good faitli of the defendant,, notwithstanding the questions of a difficult kind which have been suggested by the status iind relation of the parties, by the entries in the accounts, and by the correspondence. On the whole, lam of opinion that the motion for the decree must be dismissed ; and considering the tentative character of the pro ceedings throughout, and the explanations made by the defendant evidently adopted by the Jury, I think it must be dismissed with costs. Motion dismissed with costs.