SUPREME COURT.

Evening Star, Issue 3337, 30 October 1873, Page 2

SUPREME COURT.

CIVIL SITTINGS. Thursday, October 20. (Before His Honor Mr Justice Chapman and a Special Jury.)

White v. M‘Kell A k.— An action to recover L 30,000 damages. Messrs Barton, U. Cook, and Haggitt, for the i>hiintiii'; Messrs James Plinth, Chapman, and Branson for the defendants. The facts of the case, as they appeared by the opening address of plaintiff s were these in the year 18.18 two brothers,' brands and John Hamilton, took np some unoccupied country in the Wakatip district. A t this time J )avid M‘Kcllar, one of tire defendants, was residing near the land taken up, and when the Hamiltons went upon it M'Kcllar was there to give them advice. M'Kcllar drew for them a pencil or ink sketch of their country, which sketch was so well done that every surveyor who had since seen it had declared it was nearly perfect. Tins circumstance was mentioned by Mr Barton to show that MJvellar knew every inch of the country. The Hamiltons went to Invercargill, and put in at_ the Waste Land Office'' there an application for the country, which afterwards became known as run oil, the assumed extent of which was ■IO,OOO acres, and on which it was intended to place 1,000 ewes. The application was received by Mi Hoarsen, the ( liief Commissioner of Lands, “on the distinct understanding that it is entirely at the applicant's risk, and that should there not lie sufficient country, the rights of prior applicants are not to be interfered'-with.” Upon this understanding, that the Waste Land Board reserved to itself the power of altering the boundaries, a license to Hamilton Bros, was subsequently issued. The license as granted was to depasture stock over their undefined country for fourteen years. Hamilton Bros, took up this country, which was afterwards called run 321 ; and subsequently took up the adjoining country, afterwards called run 36!), or Mar ora run, being situated on the shores of the lake of that name. In other words, the thing stood in this position at that time. _ Hamilton Bros, had taken up these runs, which were subject to be altered or settled in any shape whatever by the Waste Land Board, when the final settlement of the boundaries of all the runs in the Province took place ; on a corner of another run adjoining 324, was the homestead of Mr N. Clayton, and this was exhibited to theTlumiltons by MKellar, and by him shown on the plan he drew. Buch was the position of the runs in 1800, when Edward Owen, who is now in Wales, and one of the present plaintiffs, Thomas White, came into the Province to see if they could obtain any land. They entered into negotiations with Hamilton Bros, for the purchase of run 324, which resulted in their agreeing to pay Hamilton Bros. LI,OOO for the undisputed portion of run 324. That transaction and the other negotiations were made in the presence of David MKellar. He was witness to the agreement for the sale, and drew a map of the ground, cutting off the pieces, keeping within run 38!) the small portion in dispute between the Hamiltons and Mr Clayton, and which was afterwards called the Bald Hill. One of the pieces—OlaytouV homestead—stood, and from the other the Hamiltons worked Mavora run. The latter refused to sell these pieces fur fear they might get into a lawsuit, and sold that beyond the (>reti, which was as good a boundary between the two runs as there could be. The Hamiltons retained Mavora run, which they held under a diilerent application, and worked it, as they bad always done, from one of the pieces before-mentioned. Ow en having loft tiie country, Taylor White brought up stuck, took possession of the part sold to mm, and the Hamiltons thereupon withdrew' their slice]) and cattle across the Oroti. The agreement of sale was handed to M'Kcllar for safe keeping. The land sold was] described in a sketch accompanying the sale note, and on that sketch was shown the Oroti as a boundary line, and Olay ton’s homestead and Hamilton's house on the'other side of it. Shortly after Taylor White brought stock on the land, ( hven’s half interest was purchased by Mr John White. Then there appeared on the scene Mr W. H. ('aider, of the firm of Haider, Blacklock, and Co., wiio subsequently, as agent lor one of the defendants, figured rather prominently. lie, as attorney for the Kami Hons in August, forwarded to the plaintilfs a receipt for the purchase money of their run ; and Ids connection with them was relied on by the plaintiffs as showing that he knew of their rights. In 18(12 Hamilton Bros, sold the Mavora run to Messrs M'Kcllar. The sale note was dated Juno 28, and ran thus I have this day sold to Messrs M’Kcllar Bros, run MB'.», being the land described in our application, guaranteeing the same or to make a fair deduction for any encroachment, with all cattle on the run to be delivered within three months faun this date; also all that remains of run 324 after Messrs White’s claim is satisfied for the sum of LI,OOO, payable within one month front this date. Mr Yd. ('alder, attorney, for Hamilton Bros.;' The; Hamiltons haying ceased to have any interest i ijl the run, White Bros., who owned the bulk of It, thought it advisable to get Mr T. Hamilton to come to Dunedin in order that they mi'dit obtain from (ho Waste Land Board the cancellation of the lice,use of run 321, and in ficii of it a lease of the land, and so be in an independent position. Accordingly, on August l;! Kraneis Hamilton. David M'Kcllar, and John White came to Dunedin and went to the laud office, where they saw the chief clerk, Mr

Short. They told the latter their business, which was to have the license of runs 1124 and 380 cancelled, and a., new louse granted for each. Short walked into- Mr Gutten’s'lipcwii, and nunc out in a few ininntea vapd reported that Mr Cnttcn had said that done, but that lie advised thejp to Jot matters stand as they were; if the Hamilton’s, were going; away they should make a transfer in the joint names of the Whites and M'Kellar, and the matter .should be so left until the question of boundaries cam 6 to be determined by .the Waste Land Hoard, whore the whole thing WOJlhl he settled, ft was accordingly agrees I that White and M'Kellar should take a transfer in their joint ■ names, whereupon the following document was drawn up and signed: - “We hereby transfer our license of Inn 324 in favor of Messrs MTvclhll' and White, who hereby accept the same. Dunedin, August 30, 1802. Hamilton .Bros, per F. Hamilton. John White. I). M'Kcilar. Transfer sanctioned on behalf of the Waste Land Hoard, W. H. Gutten.” Fertile plaintiff it was contended that no partnership was established, or even intended ; but that the transfer was made on the joint names of the parties, simply in order to facilitate the settlement of boundaries which could not take place then, as the surveys were not ripe. From that time till a consideral.de ■time afterwards, the Whites remained in undisturbed possession of run 324, nor did the M'Kellars discover any rights of partnership. Tn January, 13(14, ('alder, as agent for the M'Kellars, sold the Mavora run to Captain J. N. Russell for L 2,000, and to the sale note' was added: “I may mention we are willing to guarantee 4,000 acres, or to make a proportionate reduction in the event of a smaller acreage being found.” Russell shortly afterwards complained of not getting the proper acreage, and the result was that Mr R. Gillies, representing the M'Kellars, Mr Barton, representing Russell and the Whites, appeared before the Waste Land Hoard to have the boundaries of the runs determined. There also appeared Mr Von Tnmdeman, the holder of rim 350, who wanted the Yon river declared the boundary between Ids and the adjoining runs. The Hoard settled this application according to what was called M'Kenw’s map; granted You Tunzlemau what lie wanted ; and gave the Whites some hack but useless country in lieu of that taken from them, they consequently being pushed on to Mavora run. Russell, dissatisfied with this adjustment, made application for a readjustment, and in June 6 all the parties met before the Waste Land Hoard by appointment to finally determine the boundaries. There was a good deal of discussion, and ultimately the Hoard adjourned the matter to allow the parties to come to an arrangement among themselves. Then an arrangement was come to, Mr Gillies himself sketching it on the map and agreeing to it, by which a portion of run 38!) was taken from it, and the Whites got some additional back country and run 350, with the Von as its boundary. In 1564, the Whites, getting information that things were not all right, applied to David M'Kollar for the agreement of side with Hamilton, and other documents which he held, to which a reply was made some months afterwards tn the effect that the M'Kellars claimed one-half of run 324 —“ because our names are on the license, and because we have a substantial claim in equity, and shall dispute your claim in the Supreme Court.” This was followed up on July 12 by a letter from fabler, Hhicklnck, and Go., of Invercargill, ns agents, writing tn plaintiffs advising them that they had paid the license fees in respect of the run, and requesting a remittance for plaintiffs’ share. Plaintiffs thereupon proceeded to Invercargill to obtain possession of their documents, which they only got on signing a security that copies made of them were correct ; and intimation was given them at the same time that the M'Kellars claimed half the run, would send sheep upon it, and take possession. Defendants were asked to submit the dispute to arbitration the name of Mr fabler being submitted as onoof the arbitrators, but they declined doing anything without consulting their solicitor. Tn December defendants wrote to the Chief Commissioner of frown Lands at 1 hinedin, cautioning him against sanctioning any transfer of the run without their consent being given in writing. Plaintiffs thereupon commenced proceedings against the defendants; and from that date, July, 18(1!). it wa.s alleged by the former that they were subjected to great annoyances. Tlie M'Kellars took forcible possession of half the run ; put wild cattle upon it, mixed the plaintiffs’ flocks, and prevented them carrying on shearing operations; as a result sheep and lambs were lost, and oilier losses sustained. At length it was agreed tn submit the disputes to arbitration. Defendants again submitted the name of Mr fabler, but plaintiffs refused. Ultimately they chose Mr W. G. Rees, of Otekaike, runbolder, and tlie defendants, Mr f owan, of Southland, runliolders, who, by tlie terms of the submission, were empowered to choose a third arbitrator, which they did. in the person of Mr Strode. On May 20, 18(50, Messrs Strode and Pees published their award, which set forth their findings as follows : - Messrs M'Kellar, within one month from the date of the award, to concur with the plaintiffs in obtaining from the frown, at the expense of Messrs White, a lease of run 324. according to tlie boundaries settled by the Waste Land Hoard on June 6th, 18(57 ; that Messrs M'Kellar should, at like expense, transfer to the Whites their right, title, and interest to any part of the said run claimed by them ; that the Whites should tender to the defendants any assessment dues paid by them in respect of the run ; that, in consideration of the performance by the defendants of the condition imposed on them, the action brought in the Supreme Court by the Whites should be discontinued ; and the costs of the award, excepting costs of White’s counsel, to bo paid by the M'Kellars. Subsequently the award was referred back to the arbitrators by the Court of Appeal, with power to reexamine Mr W. H. f ntten, and liberty to determine upon the whole question; and the second award of Messrs Strode and Rees was identical to that previously made. For the plaintiffs, it is alleged, they had been at all times, and were still, prepared to perform their part of the award ; but tlie defendants had refused to perform theirs, for which damages were claimed. Tn. answer to this the defendants plead general denial of all the allegations ; that Mr Strode was not named as arbitrator before thq other two had entered upon the matters referred to them ; that the award was made by Messrs Rees and Strode without consulting Mr ( ’owan ; misconduct on the part of the arbitrators ; that the award was made by Messrs Strode and Reas at separate times, and was not the joint act of both being present at the. time, as ill should have been ; that plaintiffs did not tender to the defendants tlie sums awarded to them by the award ; that the award was not made within tlie time limited by the deed of submission, or within a proper enlargement of the time so limited. To these pleas the plaintiffs vculy that on all the contentions raised plaintiffs had already recovered judgment in that Court. Further, that alleges that the only condition of tlie deed of submission not complied with on the plaintiffs’ part, viz,, the appointment of Mr Strode after the proper time, was waived by the defendants. Mr Barton, in addressing the jury, said that the expenditure incurred by the plaintiffs, money absolutely out of pocket, was L5,D5 14s id ; then there were the items L 375, L 250, ami LIOS, iu respect of tlie loss of sheep and land. The next item was a large one. It referred to the carrying capacity of the sheep country taken from the plaintiffs by defendants. That country was calculated to carry 11.000 sheep; and the value of that country, according to tlie quantity of sheep it wanild carry, or the sum tlie plaintiffs would have realised from it annually had they been allowed to make use of it. was 2s (id per head on the 11.000 sheep, after deducting expenses ; or a total, from 18(5(1 to 1871, of L(5,875. It was well known that the Wakatip had always been a good country for stock. The increase on 11,000 slice]) would have been something like 25 or 2(5 per cent., which would bring up the total to L 5,250, and make a total of L 20,240 is Id which the plaintiffs had lost. The interest thereon amounted ,to L5,1(50, which made L 25.400. Add to that the loss of slice]), LOO 5, and interest LIOO, they had a gross total of L2(!, fOS 4s Id, which amount he asked the jury to give him as damages.