CIVIL SITTINGS.-SPECIAL JURY.

Wellington Independent, Volume XXII, Issue 2611, 19 December 1867, Page 4

CIVIL SITTINGS.-SPECIAL JURY.

HIBSCHBEBG V. IIALL.

Tho following gentlemen wero sworn in as a special jury to try this case : — Messrs W. W. Taylor (foreman), F. Sidev, J. Dransfield, T. A. Laing, W. Best, W. Johnston, E. Battersbee, JR. Hunter, H. A. Owen, A. Stuarfc, Yule, and W. Fitzherbert, junr. Messrs Harfc and Buckley for plaintiff; Messrs Izavd and Pharazyn fov defendant. The issues were theso —

1. Was tho land sought, fco be recovered in this action granted to Chavles Booking Carter as in the declaration alleged ?

2. Was such land conveyed *by tho said Charles Booking Carter to James Smith, of tho Wairarapa, settler ?

2a. Was the said James Smith described in the deod of conveyance of the land in question by Chavles JRooking Carter U3 James Smith, of tho Wairarapa, settler, tbe James Smith who conveyed to the plaintiff or the James Smith who conveyed to tbe defendant ?

3. Was such land conveyed by tho said James Smith to the plaintiff?

4. Wero tbe Crown Grant and sevoral deeds of conveyance in tho declaration mentioned duly registered ?

5. Is tho defendant in possession of tbo land sought to be recoveved in this action ?

6. Did any other person, and who, afc or aboub the same time, become entitled to have a convovance fvom fcho said Charles Booking Cavfcev of tho scetion numbered 117, on the plan of the town of Greytown ?

7. Was the land in the declaration mentioned conveyed by mistake by the said Chavles Rooking Carter to tho oilier person who was entitled to have a conveyance of tho section numbered 117, and was the said section numbered 117 conveyed by mistake to tho said James Smith, of Wellington, merchant ?

Tho first, second, third, fourth, and fifth wore admitted.

Mr Harfc opened fche case for the plaintiff, by saying that the question beforo tho jury was a veiy simple one, ond the proof rested rather upon the defendant tlian tho plaintiff. Aboufc tlie end of the year 1857, an association of porsons was formed in Wellington for fcho purpose of purchasing land in the Wairarapa, to be laid out in small farms. Regulations wove drawn up, under which each person was to occupy a certain amount of land, and pay a deposit, of £1 towards fcho purchase of land from the Government, to bo laid out in townships. It was found necessary to vest tho land in trustees, and a piece of land containing aboufc 120 acres, was purchased and vested in JMr C. R. Carter, who had it surveyed, and then conveyed* it to the persons who wevo entitled fco ifc undev the regulations. Each person paid for his own 40 acres of land to tho Provincial Treasurer, but the payment of £1 for tho town acre was made fco Mr Carter. Mr Harfc then read the regulations respecting tho townships. The order of selection and of choico of the sections was to be determined by ballot. The Crown Grant of a block of 120 acres afc Greytown was made to Mr Charles Rooking Carter. A witness would be put in the box to provo that he became a pur-

chaser in tho Wairarapa, and became entitled to a section uncler tho regulations of the association, for wliicli ho received a conveyance from Mr Carter, and had, as he maintained this conveyance entitlod him lo do, sinco conveyed fco tho plaintiff. Ho liad recently become acquainted _ with (ho i'act that the defendant having erected somewhat pretentious buildings upon fcho acre in dispute, was asked by plaintiff his reason for doing so, and replied " I have purchased it from lho right, person ; you bavo boughfc ifc from the wrong." Had he learnt this fact before, ifc might; have materially altered the course he bad adopted. Donald McFee, settler afc Greytown, was placed in tho box ancl sworo fchafc tbo witness's signature fco tbe deed produced (dated August 21, 1861) was his. To the besfc of his belief the deod. was signed afc the thne by Mr James Smith ; but it was so long since, that he oould nob sweav positively, Mr Izard said ho was proparcd to admit tho signature. Cross-examined by Mr Izard: Witness had known James Smith for at least 7 years. He could not say thafc he had ever heard him called "James Smyth." James Smith, a farmer at Taratahi East, stated that ho bought land in tiio Greytown Small Farm Association. Witness executed tho conveyance to plaintiff produced. Witness derived a title to his land by a conveyanoe from Mr Carter. By the Court: Witness sold bis section at Greytown to" Mr Hirschbcrg. His titlo fco itwas a conveyance from JMr Carter. He had fenced in an aero believing ifc fco be his own, but afterwards discovered that ifc was not tlio land marked upon his title deeds. Thafc was nofc tho land be sold to Mr Hirschbcrg.

Cross-examined by Mr Tzurcl : The association was started aboufc 1854. Witness joined it rather lafce; and when ho went up fco Greytown, ho found thafc most of fcho acres had been already taken up. Ho applied to Mr W.iterson for the purpose of ascertaining what acres were imsolccfced. Mv Watevson was an old settler in the districi, but was nofc an ofiicial of the association, Witness selected an acre afc tbe north end of tho town, which was pointed oufc to him by Mr Waterson. By the Court : Witness fenced in tho aero, bufc did not givo notice to the association that ho had selected the acre. Cross examination continued : Witness had previously paid Mr Allen fov hie acre. He afterwards received a conveyance. By the Court : Witness treated the aero ho had fenced as his own until the time be tried to sell it, when ho discovered that fcho aoro was not the ono to wliich ho was entitled. Upon tho samo day thafc he found out' his mistake, he sold tho acre which was really his own, aud which is mentioned in tho conveyance^ to Mr Hivscbbevg. Theve was no one, so far as he was aware, in possessioi of ifc afc tlie timo. Hall's house was near, but he believed not upon, the acre. Cross-examination continued: Witness believed he did nofc communicate to an ofllcor of fcho association tho fact thafc he had solectcd cither of fcho acres. Ho fenced in tho acve wliicli he lirst occupied, which put him to an expense of £9, but mado no other improvements. Tho aero was negotiated for in Fuller's public house. Mr Jupp told him the aoro did not belong to him. He informed plaintiff at the timo tbe latter purchasod section JNo. 33, thafc he had hitherto occupied and considered the acre at the upper end of Greytown to be his own. Witness's name was "Smith," bufcho sometimeshad a" y " substituted for the "i " in the diveefcion of his lofctevs fov tho purposo of distinguishing him from other Smiths in the district. Ho choso and paid tor his suburban land in tho name of " Smyth." Tbo application made to the Commissioner of Crown Lands (produced) was signed " James Smyth."' By tho Court: Witness's name was always pronounced by his neighbors as " Smith." Cross-examination continued : Tliere were plenty of James Smiths resident in the Wairarapa at the time, but he was nofc aware whether either of them were entitled to a conveyance. Ho did not know, afc fcho timo ho sold aoro No. 33 to plaintiff, that thero was another James Smith claiming that acve. After bo had signod fcho conveyance fco Hivscbbevg, Hall informed him thafc tlio aero was his. Witness had been living- ten miles from Greytown.

Re-examined by Mr Harfc: Witness's lettovs were directed " James Smyth" becauso thero were other Smiths than himself in tho district.

His Honor did nofc sec thafc " Smyth" was no-cessai-ily pronounced with a long " y."

Re-examination continuod: His name was James Smith, as would bo seen on reference to his discbavge fvom the army.

Mr Izard said that it might be co'.v.-":',^: ' if he stated that ho was in a position to prove fchafc conveyances for sections Nos. 117 and 33 fco two "James Smiths" wore executed by Mv C. JR. Cavfcev, and tlio conveyance fov •• No. 33, whicii was made out to his client, was handed by mistake to the witness in the box ; and he should maintain that the mere faot that fcho witness had wrongfully obtained possession of fcho conveyance, did nofc entitle him fco tbo land.

His Honor regretted thafc the truo state of tho case had not been laid before liim in Chambers, as tho question appeaved to be niovcly one of law, .whether or nofc the delivery of fcho deed gavo fcho witness possession of tho land. Tho matter, as now stated, was not a matter for a jury at all.

Ee-exainination continued : Witness bad resided in the Wairarapa since 181-9. Ho believed be had seen James Smith, merchant, of Wellington, but was not aware that gentleman had ever lived in the Wairarapa. Witness nover received any other conveyance than tho conveyance fov section 33. As soon as he founcl out his mistake, ho entirely abandoned tho section he had fenced in. When ho sold acre No. 33 to plaintiff, ho had never seen tho land.

Maurifcz Hirschberg, the plaintiff, a storekeeper at Greytown, was thon called, and stated thafc aboufc August, 1864, be bought acre No. 33, afc G-reytown, from the last witness. The section was then unimpvoved and unoccupied. James Smifch showed him tho conveyance which had been given to him by Mv Cavfcev, and then gavo witness a conveyance. Six months afterwards, Hall took possession of the land, having previously asked witness to lefc ifc to him for £3 a ycav, which the latter agreed to do. Five or six months later, finding that Hall bad erected a workshop -upon the land, witness asked liim wby ho bad dono so, and Hall replied, " Ob, I bought it from tho right owner, you bought ifc from tho wrong." Witness who held an authority from Mv Carter to act as that gentleman's agent in regard fco matters affecting his trusteeship of the town reserves; mado enquiries, but could only find ono James Smith as the owner of the section.

Cross-examined by Mr Izard : Jnmes Smith, the last witness, told him when negotiating for the salo of section 33, that ho had supposed, up to thafc time, the fonced in section to bo his. Afc the timo witness purchased the land from Smith, Hall's workshop was not; partly upon fcho aero ; and witness did nofc know thafc Hall was in treaty for the land.

This concluded plaintiff's case,

Mv Izard said tho liufcuve of flic defence would be abundantly clear to the jury from tbe evidence he had produced and tho remarks that; liad fallen from the Court and himself. The case was substantially this. There were two acres in Greytown numbered respectively 33 and 117. Theve wore two James Smiths, ono his client, who was ono of the original members of fche Association ; while the other, tho Jame3 Smith who had been examined, did nofc join fcill somo timo aftor ifc was formed. Ho should prove conclusively fchat his client had selected No. 33, ancl he did nofc occupy ifc, and that a conveyance for tho land was mado oufc fco him. Tho other James Smith had taken up section 117, anclhad occupied it, butupon trying to sell ifc, found that ho could nofc do so, and thereupon pretended to havo made a mistake in his selection, and sold scefcion No. 33 ; committing something very like a fraud. Ho would further prove that tho conveyances wove prepared in a hurry, and that for section No. 33 was handed by mistake to the witness who had been oxamined, Mr Carter would bo placed in the

witness-box tp show fcho modo in which membors of th<* Sai all lAivm Association had fco select their land. The choico for selection was determined by ballot, and ifc would bo found thafc his client, had obtained a very early choice j ancl solecfced Acre No. 33, in ono of fcho bost parts of lho town, whilo tho witness Smifch liad selected Aoro l^o. 117.

William Holmes, Chief Clork of fcho Crown Lands Offico", Wellington, was then put in fcho witness-box, and producod a map of Greytown and tho ofcher -Small Farm Settlements, whicii bad been deposited in tlio Crown Lands Office, by Mr Carter ; aiid also produced two applications for land ordors — one signed by "James Smith, merchant, Wellington," ancl dated Marcli 1854., and the ollior "James Smyth, settler, Wairarapa," dated Dccembev, 1854 Tho latter applicant informed him that he spelt, his namo with a "y" in order to distinguish lum from other Smiths in the Wairarapa.

John Hall, a shoemaker, residing afc Greytown, and fche defendant in this case, said ho was ono of tho early members of the Small Farm Association. He obtained twenty acres of land from the Lund Offico and one acre of land from tho Association. Having paid £20 at the Land Office for the suburban section, ho obtained a receipt and afterwards attended a meeting of tho Association and selected a town aero.

Mv Izard explained that ho had produced fchis evidence in order to show the mode in wliicli sections wore solectcd.

•Examination continued : 'Witness had seen James Smith, of Wellington, at a mooting of tho Association. Ho knew James Smith, of Wai rarapa; Lhe latter sometimes wont; by the name of 'Smyth.' Witness bought a section afc Greytown fov fche former Mr Smith, for which be paid £40, and received tho conveyance produced ; which was brought fco him afc Givylown by Mv Oheosman. Witness expressed bis dissatisfaction with the flcod afc lho time, because the original conveyance from Mr Carter was not with ib. Mr Checsman took back (jthe deed, and ultimately witness's nephew, Mv Freeman, paid fche money fov tbe land and received fche deed in his behalf. Neither witness nor bis nephew occupied fche land, nor any parfc of it, until a fow clays before tho deed was executed. He never had any dealings with any ono aboufc fcho land, save with James Smith, of Wellingion. Ho had conversed wifch Hirsch berg aboufc tho land, ancl tlio latter liad offered to lease it for £3 a year, bufc witness told Hirschberg that be knew perfectly well that ho had no titlo fco ifc. Ho novor leased fche land from Hirschberg ; nor was his son-in-law ever in occupation of ifc; ho never had paid, nor agreed to pay, Hirschberg rent fov it. Within tho last twelve months James Smith, of Wairarapa, in a conversation with him, admitted that be knew at the timo he sold section No 33 to Hirschberg, thafc ho was nofc ontifcled to ifc, but having tho deed in his possession, and needing money, he disposed of ifc. Cross-examined by Mr Buckley : Witness saw a conveyance for section No 117 afc Freeman's. He afterwards sold No 33 to Frcoman, bub did nofc give a deed for that section signed by Carter, because he never bad such a deed in his possession. Freeman gave him a license fco occupy section No 33, but he did nofc remember whon. Proceedings wovo ' instituted against him by Hirschberg in the -Resident Magistrate's Court afc JFeafcherston with respect, to fchis land, and the license was given during the interval between his receiving notice of tlio action and the case being heard.

Re-examined— Witness did nofc get the deed for No 117 ; ifc Was leffc afc Freeman's.

John Howard Wallace, land agont, and auctioneer, stated that ho was residing in Wellington in tho year 1854, when ho acted ns agenfc fov a relative, AEr James Smith, merchant., then residing in Wellington, in relation to lho Small Farm As° sociation. Ho selected, at a meeting of the Small Farm Association held afc fcho Crown and Anchor Hotel, a town section at Greytown for Mr Smith, and had the name of "James Smith" marked upon the map.

James Smith, formerly in business as a merchant, said be could almost positively swear that the section selected fov him by Mr Wallace was No 33. Ho aftevwavds sold tho land to tho dofondant. He did not remember over having received a convoyanco from Mr Carter.

Cross-examined by Mv Harfc: Witness nover resided in fche Wairarapa.

His Honor hero remarked Ibafc ho was quite convinced that tha matter was one involving mixed questions of law and fact, and sbould never have been brought; before a jury, bufc deciclod by a Judge in chambers; ho would therefore suggest; that bhe best plan would bo that tho jury should afc onco find, upon fcho facts fchafc had been established.

Mr Harfc said thafc tho issues involved costs, and it might; thereforo bo desirable thafc the jury should decide as fair as possiblo.

His Honor said, tho facts woro so involved with questions of kw fchafc ifc would bo necossary fov him to direct, how to find.

Mr Izard should certainly ask tho question to be left to the jury, and in order to mako it as simple as possiblo, let fcho jury bo asked to decide whether tho James Smifch described in fcho. deed was the James Smith of the plaintiff's sido, or the James Smith of the defendant's sido.

Mr Hart said fchafc would bo a fair question fco put if the Court had decreed a reformation of tho deed ; bufc nofc us the case stood.

Some arguments took place between the Court and the learned counsel on both sides, resulting in the Court adjourning for half-an-hour in order to allow tho parties to come to somo arrangement, if possible. Upon his Honor again taking his seat, Mr Izard stated fchafc the parties had failed in coining to any arrangement.

Charles Rooking Carter was then sworn and stated that ho was connected with the Small Farm Associaiion from ifcs commencement. He roceived on behalf of the Association a granfc of twelve aeros of land at Greytown from tbe Government, lfc was part; of his duty to convoy allotments of fche land to tho parties onfcifcled fco them. Ho was presont when Mv Wallace selected a section for Mr James Smith, of Wellington. Mv Cbeesman had undertaken a oontraot fov tho execution of the conveyances afc £1 each. Mv Cheesman was instructed by himself, as trustee, fco convoy the town sections to the persons whoso names wovo marked upon fcho map. Witness signed each conveyance, bufc, beforo doing so, satisfied himself fchafc fcho namo of fcho povson to whom tho land was conveyed was fcho samo as fchafc marked upon the map. He took no steps, however, to satisfy himself of the identity of the persons. The conveyances woro nofc signod in a mass, but as tliey were required. It was ono of fche regulations of the Association thafc tho person should either oxpend £30 in improving his land, ov vesido upon ifc permanently. The regulations iv this respect wero in somo instuncos broken, bufc savo in fivo cases, in which action was taken, tho Commibfcco fcook no action because the infriiigeinoiit was discovered too lute.

Cross-examined by Mv Havb : In the five cases alluded to, fche pevsons infringing suffored as provided by fcho rules ; but tho faofc fchat tho other porsons had broken fcho conditions was not found out by tho Committee till it was too lato fco take action in the mutter. In neither instance whon he signed tho deeds produced ((he conveyances to tbo two Smiths) did he know fcho person fco whom they referred. Ho could nofc toll tho reason why fcho conveyance to James Smith was dated 4th April, 1859 ; while the other to Smith was dated llth April, 18G0. Deeds wero executed asthoy wero applied fov. Tliero was no meeting of tho Association or of tho Committee at which ifc was determined thafc fche conditions should be waived.

Robert Suckling Choesman, solicitor, deposed fchafc ho was employed to proparo the conveyances required by tho Small Farm Association. To enable him to clo so, he wns furniehed wiih a lavge plan, with tho sections and names of the pevsons entitled to them, marked upon it ; and a list of names. Ho prepared altogether somo 300 conveyances; some of which he was instructed to mako out by cortain times, and othera he might

do afc his leisure. They were signed by Mr Cartcr> and were gonorally dated afc thesame limo as thoy woro signed. Tbe deeds were handed Ovor by bim lo fche persons entitled to receive thorn, upon the application of the latter; a largo number of the deeds wore given lo Messrs King nnd Bunny to distribute ; and he could nofc state how the deed produced was given up. He should 6uy thafc fche conveyance from Smith fco Hall (producod) was executed two or three days beforo tho* date upon ifc. He witnessed the execution of the conveyance from Hull fco Freeman. This concluded tho evidence for the defence. Mr Izard thon addressed the jury for the defendant; and Mr Harfc for fche plaintiff.

His Honor, in summing up, expressed his regret thafc fche cisc had ever been brought before the jury, as thoro was no doubfc about tbo facts. With regard to the identity of the person fco whom tho iand bad beon conveyed, ifc wns a question of law, aud there was nothing for thera to decide. There are two indiriduals, ono described and fcho other nofc described, and fchey musfc lake ifc that James Smith, settler, of tho Wairarapa, is the in dividual to whom tho grant was made. Then eamo fcho question— was his name inserted in the deed by mistake. Upon thafc point there could bo no doubfc whatever, as ifc was evident he was nofc entitled to section No. 33. The mistako was not about tbe individual, but aboufc fcbonumbevof fcho acre. Ifc was therefore his duty to direct them that thero was no doubfc thafc James Smith, settler, of the Wairarapa, was the person to whom the section was conveyed ; as theve was no evidenco to show that James Smith, merchant, was the person to whom it was intended the deod should refer. Tho issuo 2a musfc thereforo bo affirmed ; as adopting the view of the law ho bad givon, James Smith, settler, was the James Smith who convoyed fco the plaintiff. Wifch regard to tho sixth issue, ifc seemed to him that they had not sufficient evidence to show fcho conditions precedent, had been compliod wifch, and fcheir best course would probably be to say that thoy did not know. On fcho seventh issuo, both sections 33 ancl 117 woro involved, bufc he would, with tho consent of both parties, suggosfc that in considering the question they should simply find whether the conveyance of section "33 to James Smifch, settler, was mado by mistake ; for it seemed to him that the wholo question was whether a mistake bad been committed ov not.

Tho jury retired, an- 1 upon their returning to the Court, after the lapso of a few minutes, the Foreman stated they had found as follows : —

On issuo 2a. That the James Smith de-jcvibcd was tho James Smith who conveyed to the plaintiff. Ou issue G. That thoy had not sufficient evidonco to cnablo thorn to decido.

On issue 7. That section 33 was conveyed by mistake.

His Honor (addressing Mr Izard) : You do not think of applying afc present as to tho mod.* of entering fcho verdict P Mv Izard : No, youv Honov, as the question has no doubfc, to be discussed furtber. I shall claim this as a verdict fov the defendant.

His Honor : On what ground ? Mr Izard : On tho issue of mistake. His Honor : Of course you will move in banco. Mr Izard : Yes.

Tho jury wero then discharged, and the Court rose.