SUPREME COURT.

Globe, Volume VI, Issue 649, 18 July 1876, Page 2

SUPREME COURT.

CIVIL SITTINGS. Monday, July 17. (Before His Honor Mr Justice Johnston and a Special Jury.) TURNER AND OTHERS V WILSON AND MONK. Andrew Demean, examined by Dr Foster, deposed to being a seedsman and nursery gardener in Christchurch. He should not sow grass seed on sandhills if the land were his. He had only been asked for 51b weight of Yorkshire fog during his sixteen years’ experience. Yorkshire fog was not grown here at all, but it was in Australia. In June and July, 1872, the price of a good clean sample of rye grass seed was from 5s to 6s per bushel. That was after going through our cleaning machine. The pinus insignia was of no value as sawn timber, but was as firewood, and would make good shelter. Cross-examined by Mr Joynt—The timber of the pinus insignia has no value as timber in its native habitat—California. The books that he had read—notably Gordon’s “ Pinetum,” states that the timber of the pinus insignia is useless except for firewood. The pinus insignia had been grown in the northern parts of Great Britain to the height of 60ft or 70ft. It had not been used for any other purpose in Great Britain except for ornament. Witness had used the pinus for firewood, (and it made very good firewood. Yorkshire fog was deficient in saline properties, and therefore stock would not eat it. John Greenaway, a practical gardener and nurseryman, deposed to having examined the plantation on Turner’s run. It was only of value to Turner’s run for sheltering it from the north-east. It only shelters a very small portion of Turner's run. It shelters Wilson’s land from the north-west winds, which are the most formidable. The plantation consists of blue gums and pinus insignis, except in the swampy part in which arc Scotch firs, spruce, and some other plants. It is of no value for ornament. The bluegums if they got proper attention would be useful for timber for farm purposes. They have not been properly attended to in order to make them valuable as timber. The weeding out, &c, should have been done the first season. There is no value to the pinus insignis for building purposes ; it is good for firewood. Scotch firs and spruce have value as building timber ; there are about 2000 plants only a few inches high. The locality is suitable for the Scotch fir and spruce. The price of plants of these trees of two years old would be about from 30s to 40s per 100 at that time. They would require to be two or three years old. Taking the pinus insignis as seedlings, and the Scotch firs and spruce at two or three years old, the cost of planting the plantation, including the gums, would be about £l5O. If the pinus insignis were two years old it would increase the cost of planting by about £IOO, as the labor would be greater. lie did not consider that shelter was necessary from the north cast for farming purposes ; nor that it was necessary to protect the paddock of Turner’s from tbe north-east wind. The only value the plantation would be to Turner was to protect tbe 40-acre paddock. Had the plantation been on the northern side it would have afforded far more shelter to Turner’s land, but not to Wilson’s. Witness had been all over the run, a large proportion of which consisted of sand hills. It was very poorly grassed on the run. The principal grass was the Yorkshire fog. which appeared to have spread over the run and freehold laud in the damp parts of the latter. The cattle take to Yorkshire fog only when there is nothing else to eat. On the freehold some of the paddocks are well grassed. Out of the whole extent about 150 acres are well grassed, and there is over 200 acres under tillage. The quality of the grass on adjoining sections is as good as that on the Turner’s estate, which had not been cultivated. There was no evidence on the property as a whole to indicate that so large an amount of seed as £IOOO worth had been scattered over it. He would be of opinion that there would be great waste if the seed were sown as had been described. He would never have sown seed in that manner. There was no indication on examination of the run and freehold to lead him to believe that a largo quantity of grass seed had been sown there within the last few years. He would not have risked any large amount of seed on the run, as there was not a great deal of it which would grow grass or anything else. Cross examined by Mr Harper—ln arriving at the conclusions he had stated, the witness had been guided by comparison. He had hid nearly twenty years’ experience of tree planting in New Zealand, and had made a detailed estimate of the cost of the plantation, [The witness here gave evidence as to the figures produced by him.] The orchard required shelter only on account of the fruit being blown off the trees. He believed Mi Wilson’s land was sheltered to a great degree from the north-west, which was one of the worst winds here. Archibald Stewart, a gardener and nurseryman in Christchurch, deposed that he had visited Turner’s run on the North road, and had examined the run and plantation. The plantation was of very little use to Turner’s estate except to shelter it a little from the south-east wind. The effect of the plantation on Mr Wilson’s land was that it protected it from the south and south-west

blast. He had counted the number of trees in the plantation, and had arrived at the conclusion that, with pinus insignia at two years old, the cost of the whole would be £250. To put pinus insignia in as two-year-olds was a mistake, and therefore the money has been wasted. He had planted the same trees, in 1872 as seedlings for £2O per thousand, He saw no indications of grass having been sown on the run within the past two or three years. It was very poorly grassed and very poor grass. If a large quantity of seed had been sown on the land it would have been a mistake, and a decided waste to have sown a thousand pounds worth of grass seed on the run four years ago without breaking up the land. The Yorkshire fog grass was the greater proportion of the grass on the run. It is not a good grass. Cross-examined by Mr Joynt—The Yorkshire fog was a good deal on the freehold where the ground had not been broken up. Other grasses were present where the ground had been properly paddocked and laid down to grass. An orchard ought to be protected here from the north east, south-east, and south-west. The north-east wind blows most continuously during the fruit season. High wind was most injurious to fruit during the neriod when it was ripening. The months of January, February, and March were the ripening periods of the fruit in New Zealand. Easterly winds were most prevalent during the fruit season. His experience was that he should shelter fruit trees most from the south-west wind. It was not'possible for him to tell whether the pinus insignia was planted as two-year-olds or seedlings. The plantation was valuable for the shelter of some forty chains of Turner’s property. To the eastward of Mr Wilson’s land were the sandhills ; there would not be any tendency there for the sand to drift westerly any more than any other way. The firs, spruces, and gums had a known value. The gum trees were very thickly planted ; some of them not more than an inch apart. William Marcroft deposed that he was a farmer at Kaiapoi, and had made aa inspection of Turner’s run. He had inspected the leasehold portion of the run, and found it very indifferently grassed, a large proportion of the run being sand hills, and not adapted for grass at all. The outside of the run, bordering on the swamps, was tolerably well grassed with clover and Yorkshire fog. Between the sandhills there were patches of Yorkshire fog, and a grass known to farmers as wild trefoil. Some portion of the run had been ploughed and laid down to grata ; a large part of this was covered with Cape weed and Yorkshire fog. A ridge near the house, between two swamps, was well grassed with Yorkshire fog and wild trefoil. There was a small proportion of rye grass and a little clover near the swamps. There was certainly nothing to lead me to believe that one thousand pounds worth of good seed had been sown there, Had it been so I should think it most unwise, and I should have expected to have seen indications which were not present. The land, which had been cultivated on the freehold—soma 300 acres—gave signs of being properly laid down. The witness did not think it would be prudent to scatter grass seed broadcast over the freehold. The land pointed out to the witness by Gillingham as having been sown by Strachan, was the only part which was well laid down. It would not be prudent to put grass down on the sandhills, except on the damp flats. It would be impossible to plough these flats, and that is the only reason why he would recommend the sowing with grass seed broadcast. He had seen the plantation on the run ; it would be no use as shelter to the Turner property at all. It would be of to use to the property at all in its present position ; had it been on the south-west side it might have been useful as shelter. It would, he believed, be useful as shelter to Mr Wilson’s orchard ; the trees in the plantation were too thick, the gums especially so. The blue gums, bad they been planted systematically, would have been valuable in time to come for the run and farm. Had the thinning out been done properly, or the trees planted three or four feet apart at the first, they would have been useful as timber for the farm and run, for fencing. Cross-examined by Mr Harper—He had seen Yorkshire fog mixed accidentally with other grasses by being harvested with them. Yorkshire fog was a fair winter grass. There was nothing at all on the run but that for the cattle to eat. The co dition of the run eight or ten years ago was better than it is row. At this stage the Court adjourned until 10 a.m this day. Tuesday, July IS. The Court re-opened at 10 a.m. The hearing of this case was resumed. Stephen England Gillingham, deposed— That he had lived on Turner’s run with his father and brothers, and remembered some grass seed being received there. He had assisted to sow it. The greater part of the seed was Yorkshire fog ; there were also some tailings, rye grass, and clover. There were about 250 bags seed altogether. The rye grass seed was very dirty, and was what was blown from good seed. He would not sow Yorkshire fog. He had been a farmer for thirteen years, and never heard of it being sown. If it could have been got to grow on the Sandhills, on Turner’s run, it would have done good; but it would not grow there, but only in patches of the run chosen by witness and his father. The clover was mixed with the rye grass and with the fog, and the result as a whole was very poor, with exception of a swampy piece of ten acres. This was sown wholly with clover, and the crop did well. None of the land was prepared for the grass seed. Witness had an idea of the value of the seed sent up. He would not buy the Yorkshire fog at any price. As a mercantile commodity it had no value. One shilling a bushel was in his opinion as much as the rye grass was worth. Gocd rye gia's was then worth 5s per bushel. Only a small portion of the clover was good—perhaps out of the 12 cwt. sent up 3 cwt. was good. The other 9 cwt. was very poor—perhaps a fourth of it would grow—worth say 4-id per lb. The objection to old seed would be the impossibility of its growing. The plantation referred to would be of little use to the run, as it was in his opinion in the wrong place. He would give no additional rent for the farm on account of the plantation, but it might become valuable for timber and firewood. If he had been buying the place he would give nothing extra for the plantation being there. He was certainly of opinion that the plantation had not increased the value of the freehold. He would have given more if the plantation had been in another place. The plantation was of more value to Mr Wilson’s section than to Turner’s property, because it sheltered the

section from the south-west winds. As the plantation grew up it would make a fine back-ground to the garden. Witness and his father had a lease for eight years, but sold after being there two years and a quarter. Cross-examined by Mr Joynt—They received £4OO for the lease and had paid £IOO. The latter part of the grass-seed was sown in the autumn of 1873. Frost would hurt grass seed if on the surface more than if the seed was ploughed in. Though this was the case he should sow seed very early, as the rain would beat it in and would counterbalance the effects of the frost. They did not sow seed in the clean sand—that was shifting sand—but in the damp patches. A great deal of the clover seed was clotted together with age and mildew. The grass seed was stored in outhouses, weather-tight enough to preserve seed ; one was originally the dwel-ling-house of the station, the other the servants’ house. The grass seed was kept there during the winter. I know the seed of Yorkshire fog ; I have not seen it in bulk. The grass grows best in very wet places, and is most luxuriant in spring and summer. It keeps green during the winter, when other grasses were gone, but it would naturally be so, because the cattle would not eat it. Witness and his father had a little disagreement with Mr Wilson. Blue-gum timber might be good for firewood or for rails. The only value of the plantation was as a timber-producing one. Buying the farm now he would give no more for it with the plantation than he would without it. The plantation was on some of the best land in the farm. Generally he considered that a plantation of timber trees was advantageous to a large farm. The whole of the rye grass was tailings ; he saw no good rye grass seed, He saw about twenty bags of this kind. Clover seed was mixed with it before it was sown. There was no prairie grass in bulk sent up. There might have been a few stray seeds. So far as he recollected none of the grasses were sent up mixed. He had only seen surface sowing ajjplied to native lands. At this stage of the proceedings one of the jurymen, Mr Facfarlane, being taken ill, a short adjournment was made. His Honor said that the juryman not being able to go on that day and perhaps tomorrow, it was for counsel to consider whether they should go on with eleven jurors. Mr Garrick said that he was prepared to accept eleven jurors. Mr Joynt said he should like to consider what would be the result if this jury were discharged. His Honor said that he could summon a fresh jury; but the costs] would be much increased. Mr Joynt then said that he would be prepared to accept eleven jurors. His Honor said that there arose a difficulty, which was this, that under the new Act the jury, if unable to agree upon a verdict after six hours, might render a verdict of five-sixths, which woMd be taken as the verdict of the whole. But, as had been held by the Court of Appeal, it would be necessary for the whole jury to be there, and this they would be unable to do now that one juror was missing. It would be impossible to comply with the Act as regarded the taking of the verdict of five-sixths, because they could not get five-sixths of eleven. What he would suggest was that counsel should agree to take the verdict of ten,if the necessity for the provision of the new Act arose. The learned counsel on both sides agreeing to this, the hearing of the case was continued. Joseph Carter deposed that he had been living for thirteen y ears on part of the land known as Turner’s run, and that eleven years ago he had ploughed up part of the freehold into which grass seed had been put in after cropping. A portion of the freehold was very nigger-headed ; but the generality of it was fit for grass. About three hundred acres in patches out of the two thousand comprised in the run were fit for grass. In 1872 the same quantity was fit for laying down to grass. As to the plantation, he was of opinion that it was of no value whatever in its present place. The run at the present time was not well grassed. So far as he saw the sowing had been a failure. There had been some clover on the run since he went there. He could not say whether Yorkshire fog was on the run before 1872. The clover on the run was better in 1872, than now because it was not then so heavily stocked. He would not have sown grass seed on the ground if it had been his. He did not think it would be wise to expend £IOOO or even £IOO in sowing grass seed on the run. Cross-examined by Mr Harper—There are now other grasses on the run besides Yorkshire fog. This latter was more prominent than the clover on the run. I should of course put grass down on the freehold, Sandham Gillingham deposed to being on the farm from 1872 to April 1874. The witness then gave evidence corroborative of that of his brother as to the grass seed ; the kind and quality of it. William Ormandy deposed to having been at Mr Gillingham’s station at the end of 1872 shearing. During this time be slept in the loft t-f a house on the run, where there was some grass seed stored. It was composed of rye grass of very indifferent quality —tailings in fact. He considered it was of no use for sowing at all, as it was heated. Cross-examined by Mr Joynt—There was a good quantity of seed there in December, 1872, There were perhaps thirty or forty bags or more. It was not damp at all. The house was in good condition, as it was raining while witness was there, but no damp came in. Heating was caused by seed getting wet and then being taken in. William Strachan deposed to being the present occupier of the run known as Turner’s. He found the condition of the run as regarded grass very inferior ; in some parts of the run the land was well grassed, and in others there was none at all. The well grassed parts were in the pre-emptive lights and also in other parts. The part outside the pre-emptive rights, which were grassed, was low lying. The greater part of the freehold was very inferior as to grass—nearly three-fourths of the 850 acres. Very little of the remainder was good permanent pasture. At that time nearly 200 acres of the freehold was in cultivation, not in grass at all. The grasses on the freehold composed a small proportion of rye grass, Yorkshire fog, cocksfoot, and clover. There was also Cape weed on it. There was about an equal mixture of rye grass, Yorkshire fog, and clover. Witness had laid down about 160 acres of the freehold in rye grass, caw grass, and white clover; no Yorkshire fog. The latter is not a good > grass; it is too soft, Cattle eat it in winter, but it was bad for sheep, because it Scours them, Cattle would rather eat straw

than Yorkshire fog. Part of the freehold is still in grass, as when witness took possession of the farm. He was carrying out a system of rotation—Scotch shifts. The plantation did not more than shelter the forty acres behind from the north-east winds. During the summer time if the plantation were opened up to allow cattle going into either plantation, it would be of great value for sheltering the cattle from the north-west winds. If the plantation had been placed on the northern side it would have been more useful than it was now, He had noticed in his experience of farming in Canterbury that when the cold north-east winds came up about the time when the wheat was in the ear, blight was brought on. The plantation would save the crop of wheat from these cold north-east winds, and consequently from blight. He had cultivated the forty acres sheltered by the plantation in wheat, and had found the benefit alluded to by him. In perhaps ten years hence the plantation might be valuable in a monetary point of view to the estate. It would be useful for posts and rails, stakes for wire fences, and firewood. It had now no value except for she l ter. Taking the cost of the plantation at £SOO, and calculating that fourteen years had to elapse before the plantation became valuable, he would consider such a speculation was not a good one. Cross-examined by Mr Joynt—The average height of the blue gums in the plantation was about twelve feet. Some parts of the run was very good for grass in summer time. He gave the £4OO to Gillingham not for a grazing station, but as an agricultural speculation. By the Court—There were no indications when he took took possession of a thousand pounds’ worth of good grass seed having been sown on the property. Benjamin Monk, one of the defendants in the action, deposed that in August, 1875, he was appointed as a co-trustee of the estate of Charles brown Turner with William Wilson A short time after his appointment he applied to the defendant Wilson for an account of the state of the estate. Witness asked Wilson when it would be convenient for him to show him how the estate stood He said it was a busy time for him, but in the course of a month or two he would be enabled to afford witness full information. Some two or three months elapsed, and witness again applied to him personally, having in the meantime received some letters from Mrs Turner. [Letters produced ] These letters were shown to the defendant Wilson, The letters received by witness were shown by him to defendant Wilson, who told him that he had also received letters from Mrs Turner. The letters were on the subject of the increased allowance to Mrs Turner. The defendant Wilson said the estate was in debt, and he could not allow her any more for the maintenance and education of the children. Witness told Mr Wilson he was must surprised to find that the estate was in debt, as he knew that there was a large amount to the credit of Turner when he died, and he (witness) wished to know what had become of it. He wished the books to be put into Mr Wynn Williams’ office for audit, so that he might know what was his position. Defendant Wilson replied that he would not give the books over to witness, or Mr Wynn Williams, and that they should not leave his office. After this witness did not apply personally for the books and accounts, though he did so by letter. Subsequent conversations were with reference to the increased allowance to Mrs Turner. Witness thought it was necessary, but Mr Wilson would not agree to it, though he allowed some £2O which had been promised before the appointment of witness as trustee. Mr Garrick called upon Mr Joynt to produce a letter of the 14th of February, 1876, from Mr Wynn Williams to defendant Wilson. Mr Joynt said he had not that letter at all. Mr Garrick proposed to put in a copy of the letter. His Honor said that secondary evidence could not be given in that way. The proper evidence, in absence of the letter itself, would be that of the person who wrote the letter. Mr Garrick contended that, under the Act of New Zealand, press copies were admitted as prima facie evidence. Mr Joynt objected to the copy now in Court being received as evidence. The proper and best evidence was the letter-book. Mr Garrick would then waive the putting in the letter until the production of the letter-book. His Honor pointed out that by statute it was expressly stated that a copy by a copying machine could not be received as evidence, and that the autograph copy must be produced or its absence accounted for. Examination continued—The accounts produced were furnished by defendant Wilson to witness through Mr Wynn Williams after the action was brought. After receiving the accounts witness was called in by defendant’s clerk ; the defendant was present. Witness was asked to sign a cheque for Mrs Turner’s rent, which was then due to Dale and Co, but witness refused to do so, as he knew Mrs Turner had left the house some time, The clerk looked on the file, and found an account for £3 15s for rent. Witness asked why he had wanted him to sign a cheque for £lO, and Wilson replied that it might be wanted, and that he did not know Mrs Turner had left the house. Last Saturday witness had a conversation with defendant Wilson, who said that it was a pity the case was not settled out of Court. He said that he heard it was witness’ fault, and that Mrs Turner was willing that it should be so settled. Witness produced a letter from Mrs Turner to him in answer to one he had written, and defendant Wilson said he was sorry that he had thought so long that it was witness who was the cause of a settlement out of Court not beingcome to. Hesaidsometbing about hia having a deep-laid scheme against me if I went against him in Court, Witness told him that he should tell the truth. Defendant Wilson said it would surprise witness if be knew all he knew, and be (witness) said that he supposed it would. Defendant Wilson said he would not tell him then. Witness had no opportunity of going through the accounts ; even had be done so he would not have been able to have gone through six years’ accounts which was the work of an accountant. Mr Wilson would not allow the books to go out of his office. They did not contain so far as witness was aware, any other accounts than those relating to Turner’s estate. Witness knew the estate thoroughly, having lived in the vicinity for nineteen years, and examined it moat thoroughly since his ap pointraent. In 1804 eighty acres of the estate were laid down to grass. [Left sitting,]