SUPREME COURT.

Globe, Volume VI, Issue 648, 17 July 1876, Page 3

SUPREME COURT.

CIVIL SITTINGS. Monday, Julyl7. (Before his Honor Mr Justice Johnston.) The civil sittings of the Court opened at 10 a.m. TURNER AND ANOTHER V WILSON AND MONK. This was an action in which Mrs Mary Turner, as guardian and next friend of the infant children of the late 0. B. Turner, was plaintiff, and William Wilson and Benjamin Monk, as trustees under the will of Charles Brown Turner, deceased, were defendants. The plaintiff alleged that the defendant, William Wilson, who had been the managing trustee of the estate, refused to allow or permit the proper persons to inspect 'the books of the estate, so as to allow of the plaintiff becoming accpiainted with the position of affairs of the estate of the testator. The plaintiff further alleged that the investment by the defendant of a large sum of money belonging to the trust estate was not such as should be made by him. It was stated that he had made a payment to himself of £IOSO for grass seed which had been sown on the run known as the Sandhills run and adjacent land, which was not a necessary improvement, nor one which should have been carried out by a trustee under the will, particularly as the defendant Wilson himself was the seedsman supplying the seed for the sowing of the Sandhills forming part of the run. The plaintiff alleged further that the grass seed supplied to the estate was worthless and utterly useless. The defendant, Wilson, bad further, according to the plaintiff’s case, charged the estate with a large sum of money—£3o3—for the planting of a belt of trees along the boundary of Turner’s property, which abutted on the orchard and hop-garden of the defendant Wilson. The plaintiff alleged that these trees were not * necessary for the improvement of the estate, nor did they add to the revenue of it, and that the expenditure of the money for this was not warranted nor desirable. The plaintiff complained further that the defendant Wilson had invested money in Colonial Bank and National Back shares, an investment which was not as remunerative as investment in freehold property. The further ground of complaint was that the defendant Wilson had lent money out of the estate to tenants on land belonging to defendant Wilson, and Mrs Wilson to build upon the said property. Complaints were also made as to the investments made by the defendant Wilson on freehold land, in which, by means of remortgage, the defendant Wilson bad obtained the loan of certain money from the estate. There were also allegations as to the conduct of the defendant Wilson with regard to the property on the estate on Oxford terrace, and also as to the retention of a certain amount from the estate for accountant’s services, which was for the personal benefit of the defendant Wilson. On these grounds the plaintiff prayed for specific relief by the removal of the defendant Wilson from the office of trustee to the said estate, and such other relief as the Court might order, The defendants in their pleas denied all the material allegations. Mr Garrick, with him Dr Foster for the plaintiffs. Mr Joynfc, with him Mr G. Harper for the defendant Wilson.

Mr Wynn Williams, with him Mr Izard for the defendant Monk. Mr Henry John Tancred was chosen foreman of the special jury. Dr Foster having opened the pleadings for the plaintiff, Mr Garrick stated the case to the jury, and called the following evidence : Cornelius Cuff deposed to having made a tracing from the Government map of the run of the late Charles Brown Turner and adjacent country. Stephen Gillingham deposed that he had been a tenant of the run belonging to the late C.jß. Turner, together with the freehold. Mr Wm. Wilson was his landlord, and witness took possession on Ist January, 1872, and remained until March, 1874. The extent of the run including the freehold was about 3000 acres. It was principally sand. W itness used the run as a sheep and cattle run, and the freehold for agricultural purposes, Defendant Wilson told him that it would be a good thing to sow grass on the sand hills of the leasehold portion of the run, and he asked witness if he had any objection to sow the grass seed if he found it. He replied that he had no objection to do so, and several loads of grass seed were sent up by the defendant. The character of the seed was very inferior indeed, and a great proportion of it was a soft woolly grass called Yorkshire Fog, The seed was badly cleaned, and was mixed with other rubbish. A portion of the seed was rye grass, very bad indeed ; there was a quantity of clover seed, including red, white, alsyke, and trefoil. A small proportion of the clover—perhaps onefourth—was pretty good and fresh. The remainder was old and dry. There were no directions sent with the seed as to the sowing. Heundersood that the seed was to be sown on the run, and not on the freehold. The sowing of the seed commenced about September; the spring after witness took possession. It was sown by hand, broadcast ; there was no preparation of the soil for it at all. Witness demurred to sowing such a quantity of seed, and defendant agreed to send a man to sow a portion of the remainder. Witness had examined the run carefully after the seed was sown, to see what had grown, and could only find a few plants—mostly the clover. In his opinion most decidedly the sowing of the grass was a failure. As a farmer he should not have thrown away good seed on the sandhills ; he might sow inferior seed. Yorkshire Fog was a most inferior grass; in fact, it was very seldom sown. The proper lands to sow it upon were damp and low places. The witness could hardly put any value on the other grass seeds except the clover, as it would not fetch any price in the market. The small portion of the clover spoken of as good, might fetch Is or Is 2d per lb, and the remainder about half that if it would bring a price, A portion of the seed supplied by defendant was sown on the freehold portion, and about thirty or forty acres were sown in seed purchased by witness. No increased rent was paid by defendant for the grass. While witness was in occupation of the run, defendant planted about five acres of the freehold adjoining his own property. The plantation skirted Mr Wilson's hop garden. Defendant told witness that he wanted to take a portion of the property to p’.ant it for sheltering it, and thus improve the estate. When the place was pointed out by defendant, witness told him that where he intended to. make the plantation would not shelter the property. If he intended to do this, he should go on the opposite side to the north-west, which would be a protection to the property. Witness obj cted to his taking the land proposed, but told him he could have as much as he liked on the other side of the farm. After gime conversation, witness agreed to allow the gland to be taken as desired, and the plantation was made. Witness knew at the t me that the adjoining section belonged to the defendant, and about the time of the plantation being formed, this section was broken up and planted. When defendant took the land, witness told him that he should require 30s per acre as compensation. The plantation would be no improvement to the Timer property as a shelter; it would be a disadvantage. The only use it would be in course of time would be for cutting timber, &c. It would be a most decided advantage for shelter for Mr Wm Wilson’s property, because it would shelter it from the south winds. A plantation, such as this, would be a decided shelter for hops and orchard. Having a five acre belt of trees would enhance the value of Mr Wilson’s section most decidedly. The expenditure of from £3OO to £SOO on the plantation would not, in his opinion, be a Judicious investment for the Turner property. Witness remembered a drain being made at the plantation, where the wafer lay at certain times of the year, to which he had contributed a shareof the expense, which amounted (o either £2 or £4. No drain cosfng £3O was cut on the property while witness was on it. The cutting of the drain he had referred to would diain defendant’s land as well as Turner’s lb ran into Mr Wilson’s land nearly to the centre. [Leases Wilson to Cox surrendered to Gillingham, and from Wilson to Gillingham put in ] Crcss-examincd by Mr Joynt—The sandhills only on the run were sown with grass seed. He had never seen fog seed prepared for sale or use. Witness was not aware whether Yorkshire fog was good for sowing on sandy soil. Sheep would not cat it if they could get anything else ; they would rather rat it than starve. Witness had large experience in orchards—some forty years, and considered that the best shelter for an orchard would be from the north-west, though of course it would be as well to have it sheltered all round. The land on Mr Wilson’s section where the drain goes in is very w. t. Ho could not say how much of Mr Wilson’s section was planted with hops, The plantation would improve Mr Wilson’s land by sheltering it from the north-west and north east winds, by which whatever use defendant put to it would be improved. Henry Gillingham, son of the last witness, deposed that he was in charge of Mr Turner’s run for about two years, from July, 1872, to 1874. He remembered a quantity of grass seed coming up to the farm and sowing it in damp patches between the sand hills, where it was likely to grew. [The witness then gave evidence corrol orative of that given by the proceeding witness, as to the quality of the seed, and also as to the planting of the belt along Wilson’s touniary, going on to Turner’s land.] The grass seed was sown mostly on the ground to the north I of the freehold. There was little or no result from the sowing of the grass seed,

though he had examined carefully for any plants. The witness was cross-examined by Mr Joynt at some length, but nothing material was elicited. John Dewsbury, deposed—That he was from the beginning of 1868 to the end of 1872, clerk and shopman to defendant Wilson. He knew defendant was trustee in the estate of Turner. In the spring of 1872 he believed grass seed was supplied to Turner’s estate. He saw all the seed that was sent. There was a small proportion of rye-grass in the first lot. There were four dray loads altogether in his time. The first two dray loads consisted of rye grass, Yorkshire fog, and a small proportion of clover; he should say there was not above a third of the first two loads rye grass. The rest, except about 2 cwt. or more of clover, was Yorkshire fog. The second lot consisted of Yorkshire fog and a little clover. The second lot consisted of two dray loads. There were a few bags of tnilings. These were the tailings of a lot we put through Mr J. L. Wilson’s dressing machine some short time back. The tailings were quite as valuable as the Yorkshire Fog, as there was some rye grass amongst the latter. The seed was charged at 10s per bushel; during June and July, of 1872, 5s to 6s per bushel was the price for good clean rye grass seed, and rising ; clover would fetch Is 61 per lb at that time. TheJYorkshire fog had no value at all; there was no sale at all for it. The defendant had no Yorkshire fog in stock at the time he was speaking of. The seed came from Landsdowne, of which estate Mr Wilson was trustee. The seed was 1871 crop. In sending the lot of seed up to Mrs Turner’s run, they cleared out the whole ol their stock of Yorkshire fog and tailings. No one bought the Yorkshire fog, though it was part of the stock. Witness was seed salesman to Mr Wilson, and had been in the business for nine years. Yorkshire fog was not used to sow down laud to grass. Witness recollected defendant asking him to cash a cheque for £55 on Turner’s estate. This was the end of May, 1871. The defendant instructed me; to write a cheque for £55 in favour of collector or bearer. He said that he would give me the £5 for my trouble in keeping the accounts of the estate, and the £SO was to reimburse him for trav. lling expenses, &c. Witness cashed the cheque at the Bank of New Zealand, and handed Mr Wilson £55, when defendant asked him if he had kept the £5. Witness replied in the negative, and the defendant then handed him the £5. He then asked witness to pay the £SO into defendants private account at the Bank of New Zealand, which he did. Witness had since been asked for a voucher for £SO by Mr Charters, defendants’ present clerk. Witness told him that bo would give him a receipt for the £5, but not for £55 Charti rs told witness be did not want a receipt for the £55, but merely a voucher that the £SO was required for travelling expenses. Witness refused, telling him that Mr Wilson, having received the £SO, he was the proper person to give a voucher. There was no prairie grass sent up to Turner’s run —no specific quantity. There would be no possibility of mistaking Yorkshire fog for prairie grass, or one for the other. Cross examined by Mr Harper—Witness left defendant’s employ in December, 1872, and was now with Duncan and Son. He left defendant’s employ of his own accord, having had a few words with him. That was the immediate reason ®f his leaving They had a small quantity of Yorkshire fog at Messrs Duncan'and don’s. He had not heard it enquired for more than three times during the nine years he had been in the trade. They did not mix Yorkshire fop with other seeds. The clover was a very fair sample and the rye-grass, what there was of it, was also good. Seed was rising in J une and July ;in October good rye-grass was selling at 7s per bushel. In the year 1873 it was at 8a per bushel. Witness entered the £SO for travelling expenses in the account book of the estate. It was at the end of May, 1871. | Left silting.]