SUPREME COURT.

Globe, Volume VI, Issue 651, 20 July 1876, Page 2

SUPREME COURT.

CIVIL SITTINGS.

Wednesday, July 19,

(Before his Honor Mr Justice Johnston and a Special Jury). TURNER AND ANOTHER V WILSON AND MONK. Examination of William Wilson co n " tinued—The cattle on the run brough fc £I4OO odd. I had no offer for the run and cattle ; I had alter the cattle had been removed, I had no offer so far as I recollect from Monk and Fantham for the run Gillingham never applied for seeds to be sent up in pursuance of the arrangement with Mr Cox. The latter told me that his manager would see that the seeds were sown. The estate has never paid one sixpence towards the expense of sowing the seeds ; I never sent up any men to assist in the sowing of the grass seeds. I sold all the cattle off the run after the testator's death by instruction of the solicitor ; some £I3OO worth of the cattle were sold by Mr Aikman. I was not then in partnership with him. He sold for half the commission which would have been charged by other auctioneers. A portion of the cattle were sold at 2£ per cent. The account sales produced show that 5 per cent had been charged ; I was mistaken as to the commission charged ; the commission of 5 per cent was usual at this time, exceptional sales were 7£ per cent. Mr Aikman deducted 5 per cent commission from the proceeds and handed me the balance. I was instructed by the solicitors on no account to take bills, as it wa3 a trust estate ; I presume therefore 5 per cent discount was allowed for cash ; I sold for cash. From the account sales 5 per cent appears to have been allowed for cash and 5 per cent for commission. There is no mistake about it that I sold for cash. After deducting the commission as well as the discount I received the net balance ; the auctioneer received 10 per cent, 5 per cent for commission, and 5 per cent del credere. There was no allowance to the seller. The proceeds realised 10 per cent less than the amount paid, I did not discount the bills paid to the auctioneer, who handed me net cash the next day. I did not get one solitary farthing of the commission paid by me to Aikman ; it was not applied to the reduction of any debt due by Aikman to me; there were no debts between us. I did not halve commissions with Aikman. Walker was a tenant in Turner's estate before Turner died. He ceased to be a tenant of the estate, and became my tenant of a different property. Walker gave notice to quit, as the house was so dilapidated, He took up a section of land belonging to me privately. He gave me notice as trustee of Turner's estate, that he would abandon it unless I would put up a new house for him. I did not do this. Walker did not give me six months' notice. I entered into a contract to build a new house on the section left by Walker, but subsequently did not do so. The property in Gloucester street was mortgaged to Monk and myself. It formerly belonged to my brother, Thomas Wilson. He was under advances to Dalgety, Buckley and Co, and mortgaged this property for £IOOO and further advances. I never gave guarantees to Dalgety and Co. for him. I was trustee of Thomas Wilson's estate. He was not at that time indebted to me. After I became trustee I advanced my brother a large sum of money, some £2OOO I paid £9OO out of Turner's estate on account of my brother's estate to Dalgety, Buckley and Co, taking an assignment of a mortgage as security. That was by way of a loan from Turner's estate to Thomas Wilson. This mortgage [had existed for nine or ten years. The transfer of the mortgage was from Dalgety and Co to me as trustee in Turner's estate. The matter stood over for a little while without security, until 1 sold the property to Mr Moir, with the mortgage on it. 1 cannot say positively that the accounts between myself and Thomas Wilson will show this £9OO. The interest is carried to credit of Turner's estate, I believe I had

not given guarantees or a bill to Dalgety and Go; in respecbjof debts due to them by my brother in respect to the mortgage. I have no recollection of an agreement being prepared to secure either this sum or account current with Dalgety and Co. on my brother's behalf. The interest on the £9Ol had been paid from the time of the advance until the sale to Moir. The interest was paid by me as trustee of Thomas Wilson's estate to myself as trustee in Turner's estate. I produce a mortgage by Dumergue and another to me to secure £2OO. This was advanced by me to Dumergue and Place out of Turner's estate on leasehold property. I did not consult Mr Wynn Williams as to the propriety of this advance, as he was in'Wellington. I think within three or four months after this Dumergue and Place became insolvent. No payment was made on account of interest by them ; there was nothing in the estate at all. This was a loss of £2OO to Turner's estate. I have since taken possession of the land as the Bev Mr Raven's attorney. I was a provisional director of the National Bank, and there was some enquiry as to the Oolonial Bank taking premises of mine. I did not take up shares in the National Bank from Turner's estate as a provisional director. I don't think that I took any shares before I was made a director. I had promised to take shares when the Dunedin promoters were here. I accepted the office of provisional director after I had taken the shares. I took the shares in my own name, as they would not have accepted the application of a trustee. There was not very much honor in being appointed a provisional director that I am aware of. I bought sixty acres at the Malvern Hills for the estate for £2OO. I paid £42 for a safe to hold deeds and papers connected with Turner's estate. The safe is used generally.for other deeds besides my own. There are items of £340 for improvements to the house in Oxford Terrace. Mr Lawrence wished to take it on a fourteen years' lease if I would improve it. He offered to pay £3O per year, and 10 per cent on the money expended on improvements as he wished. I agreed to advance £350. The whole house was lined and papered and generally repaired. The rent now is £65 on a fourteen years' lease. It was not worth £3O per annum without the improvements. Mr Lawrence is the tenant now for fourteen years. The £55, collector, costs, charges, and travelling expenses, &c, I will explain. The collector, Mr Dewsbury, had £5 for the extra trouble incurred by him in the keepingfthe accounts. The travelling expenses were for frequent journeys to the run, both of valuers and myself, entirely on the business of the estate generally; This extended over a period of two years, 1869 to 1871. During that time I made about fifteen journeys to the run, I think, on reflection, that there must be more than this. I think now that there was more likely twenty-five journeys. There were also charges for toll gates. There was a toll gate at Papanui at the time. I made a careful estimate of what I had paid away during the two years for expenses, irrespective totally of personal advantage. Mr Dewsbury, my clerk, approved of the amount, and drew a cheque for my signature. I kept no minute of the expenditure, but I think !l could find it in my note book of the year. The earn only represents the amount expended. I used to drive a two or four wheeled conveyance. I was not in possession of the adjoining land at that time. I have bought ten acres for myself out of the run belonging to the estate. It i§ partly sandhills. I bought' it because it waf near to the twenty-acre piece. It was put up und6r the Waste Lands Regulations. I did not ask Tisch to refrain from running me in this ten acres because I wanted it for the children. I went into calculations with Dewsbury, compared notes with him, and arrived at the conclusion that £SO was a fair charge for travelling expenses. I now produce the book of account between the brothers Thomas and William Wilson. The £9OO advanced by me does not appear in the books ; it went direct to Dalgety and Co. It appears in the book of Turner's estate as follows : —"2oth Sept, 1873, loan Caledonian Bakery, T. Wilson, £900." It does not appear in the book of accounts between Thos Wilson and myself. It was paid by me as trustee of the estate of Turner, and not in any private capacity, and therefore does appear in the books of Turnei's estate. I must certainly say I do not kuow anything very much about this matter ; I know the estate has suffered no loss from the transaction. From the book before me I see that on June SOth, 1873, the account between Dalgety and myself was closed, although the payment from Turner's estate was not made until September 1873. I swear that the amount was paid by me to Dalgety and Co; I swear that none of the money, not one farthing, came into my pocket. I had two accounts, one at the Bank of New Zealand and one at the Bank of Australasia. I cannot swear whether or not the cheque for £9OO was paid into my credit; to the best of my belief it was not; I am not clear upon this matter. Turner's account was kept separate at the Bank, but Thomas Wilson's was mixed with mine. I cannot tell whether the amount of £938 due to Dalgety and Co by Thomas Wilson was paid by my bill. There is no company in my seed business ; the estate business is conducted under the style of Wm. Wilson and Co, and the accounts are kept separate. The grass seeds were charged 10s a bushel to the estate, which was considerably under the market price. I might haye ins ructed Mr Dewsbury to make this charge, but I am not sure; probably he would take the prices from the catalogue. The seeds sold by weight were charged Is 6d per lb. I supplied Turner's estate at greatly under the value, in consequence of the amount taken ; the market price was then 12s per bushel. I told Mr Dewsbury to charge 10s per bushel for the first lot, and that guided him. The grasses included rye grass, timothy, cocksfoot, meadow fescue fog), clover, trefoil, &c. I did not grow the seed myself; I do not know whether the Yorkshire fog came from Lansdowne; it abounds all over the province. Cross-examined by Mr Wynn WilliamsMr Monk has had frequent opportunities of going through the accounts in the estate at my office. He went through the papers repeatedly, and came for some two hours to examine them before he was made trustee. I recollect having an interview with you before this action|was brought, about Mr Monk having the books, as it was impossible for him to go through them properly at my office. I showed Mr Williams that this must be a mistake, because the accounts and deeds were open for Mr Monk's inspection. You told me that Monk complained he could not go through the accounts. I said this was a ; mistake, as Mr Monk had access to the books at any time he thought proper to call, I did

not refuse to give Mr Honk an account in reply to Mr William's application. Some argument ensued as to Mr Wynn Williams' right, as representing Mr Monk, to ask Mr Wilson questions as to the accounts, Mr Joynt contending that he had not such right.

His Honor overruled the objection. Examination continued—l got the probate of the will to see if I was bound to send the books to Mr Williams' office. I took advice, consequent on which I declined to let the books go out of my office. I did not tell you that I was advised that I was not bound to give a copy of the accounts, or let the books go either to you, Monk, or Mrs Turner until the children was of age. I simply said I was advised not to allow the books to go out of my office. I received a letter from you in February last. [Tress copy put in and read.J I sent no answer, but I think I saw you personally and told you I would give accounts, but declined to give up the books. Between February and the time of action being brought, I began to prepare accounts for Mr Monk which were sent to you; I think it was so, but T will not swear as to date. The accounts were delivered to you after action brought because I could not prepare them. I received a letter from you dated 31st March. [Press copy put in and read.") To the best of my belief I never refused to give a copy of the accounts. I think I either wrote to you in answer or called upon you. At this stage (6 p.m.) the Court adjourned till 10 a.m. this day. Thursday, July 20. The Court re-opened at 10 a.m. The hearing of this case was resumed. The cross-examination of Mr Wilson was commenced by Mr Joynt, as follows: Before going on with my evidence I wish to qualify the statement made by me yesterday in saying |that I had not .given g Dalgety, Buckley and Co, acceptances on behalf of my brother Thomas. I now find that I did so for £938, to close the account. The statement I made in reference to the sale of cattle by Mr Aikman I have also ascertained is incorrect. By examination of my books I find that I divided the commission with Mr Aikman. The latter sold the cattle on bills, and William Wilson and Co discounted the bills and handed over the money to Turner's estate. With regard to the del credere account, the discount of 5 per cent, went to Wm Wilson and Co—myself. The 5 per cent included bank discount, the bank discounting the bills for me and charging me discount. I charged the estate with that discount. The bills were at three months, and the bank discount rate was 2J per cent. There are some other matters with regard to Mr Dewsbury which I desire to explain. I now think it probable that I did not confer with Mr Dewsbury on the subject of the £SO. I named the sum myself. I have made three separate journeys to the Malvern Hills on business of the estate, and each of these cost me more that £5. The £SO included expenses of a surveyor I took with me to take the bearings of a section 1 was going to purchase for the estate. I allowed Mrs Turner £65 a year for rent over and above her cash allowance of £240 a year. The estate was charged £3O for the trap and not £35. As to the grasses I sent up to the estate they were mixed, comprising rye grass, cocksfoot, timothy, Yorkshire fog, red and white clover, and trefoil and prairie grass. To each bushel of seed there were seven pounds of rye, seven of Yorkshire fog, two of cocksfoot, one each of timothy, red clover, and of the two varieties of trefoil; The price of this mixture would be about 12s per bushel. Thirty pounds per acre, that is a bushel and a half, is the usual quantity to sow. The Christchurch gardeners issue catalogues at intervals. The catalogue now produced is one issued by Mr Duncan for 1872.

His Honor pointed out that it would not be legal evidence to tender the catalogue as evidence. It was simply a piece of paper, and unless Mr Duncan was recalled to speak as to it, it could not be received, if Mr Garrick objected. Mr Garrick should object to his learned friend putting this catalouge in. Mr Joynt would therefore not press it. Examination continued—Yorkshire fog is worth Is 3d per lb. That was the value at the time of this seed. It is a grass that is used largely here ; there are few pastures in the province that have not been sown with it. I have supplied thousands of bushels of the seed. It is a gras3 which grows upon wet and swampy land, making it firm for cattle, and also grows luxuriantly both winter and summer, particularly the former. I have been in the habit of visiting the run every week since the railway opened. I ha\e made no charge for travelling expenses beyond this £6O. The amount of money charged for the grass seed supplied by me'was £1054, at 10s per bushel. The number of bushels I sent up was therefore about 2108 bushels. I swear that I have supplied all this seed to the Turner property. In the summer months the English grasses were so luxurious on two-thirds of the property that it was fit for mowing. When the lease lapses, instead of £360 at least £750 a year will be obtained for the property. Mr Garrick objected to the line of examination, as it gave a prospective value of the property at some distinct period, without any means of arriving at the conclusion. His Honor thought that it was revelant to the enquiry if they could arrive at an idea of how much the value of the estate would be increased to the infants at the close of the lease;

Mr Joynt desired to point out to his Honor that Mr Garrick had led evidence to show that the run was not as well grassed now as in Turner's life time. He did not see there* fore how he could object. The question was allowed. Examination continued—My impression is that the sowing of the grass seed will materially increase the value of the property. I arrive at this conclusion because the grass seeds have gone on year by year spreading, and there is now in many places a good sward. I gave no orders for tailings to be sent up to the run. I had no old clover seed in my possession. I do not know what was done with it when it went up run. There was some seed saved from the Landsdowne estate, and there might have been Yorkshire fog amongst it. I think the planting of trees commenced in 1871-2. The surveyor who went with mo did not go for anything else except as connected with the Turner estate. I went up exclusively to select land and invest capital which was lying idle then. About four hundred acres were purchased for the estate at Malvern. I think it is in about thirteen blocks, of which six or seven ouly are contiguous, With two-.exoeptions, the seed was.

delivered on the run by my own drays. Bach dray would take from forty to sixty bags of three bushels each. The map produced shows the position of the plantation. The reason why I selected the site for the plantation was that the railway station coming on the land there, and five roads converging at this point, I thought that this would be a good site for a township. The plantation would be useful to prevent the sand drifting down on to the township, and would also be an ornament and valuable addition to the estate. The result of forming a township would be to raise the value of the land from £6 to £SO per acre. I told Mrs Turner my reason for planting the plantation. The effect of the plantation in checking the advance of the sand has not been very marked yet, but I believe it will be bye and bye. The selection of trees was the best that could be made for the purpose. The plantation will be valuable for timber purposes. In another two years or so alternate trees can be thinned out without diminishing the protection against the sand. The pinus insiguis and blue gum are about equal in growth. The timber of the pinus insignis is valuable—one of the most valuable of the Californian pines. Gordon's Pinetum does not say one word as regards the value of the pinus insignis as a timber tree. Conise, on the Natural Wealth of California, is a standard work on American pine trees. [Extract read by Mr Joynt, showing that the timber of pinus insignis was much used in San Francisco for bridge floors, &c, from its durability."] I entirely disagree with Mr Duncan as to the pinus insignis not being useful for timber. [Mr Joynt read from Mr Hoope, on the Coniferse, to show that the timber of the pius insignis was most valuable. | I rely upon the authorities quoted. I have never seen pinus insignis timber, nor any one in Canterbury. The tree has not been here long enough to make timber. The trees I have planted at the plantation are from 19ft high and 19in in circumference at the base. In about fifteen or twenty years the trees will become valuable as timber trees. No other site would have served for the purposes I mentioned except the one I have selected. The Band is encroaching towards the site of the township by the north-east winds. The plantation not only protects the forty acres, but a considerable portion of the other land as well. I have used the section belonging to me as an orchard and hop garden; about an acre is in hops. The plantation is no value whatever to my section. It is a positive injury to my orchard, as it shelters a side on which shelter is hot wanted—the south-west —the wind from which quarter blows almost exclusively in winter, when the trees are dormant. The cold wind and rain during the winter destroy the American blight. The north-east wind, which blows nine months of the year, is the worst, as it shakes !the trees when the fruit is nearly ripe. The plantations made by the Government along the line of railway to check the shifting of the sand protect me from the north-west. My section does not receive any advantage in this respect from the plantation on Turner's estate. The Government axe planting pinus insignis and pinus pineaster along the line of railway. The section in Gloucester street referred to has a large house on it and a bakehouse, with the largest baker's oven in the province. In the month of October last it had been improved, and was worth £1250, The property in Gloucester street has maintained its value during the past few years. As to the leasehold properties mortgaged by Walker and Barrett, £156 was lent to the former and £2OO to the latter. Walker has paid off a small portion of his mortgage. I can't say how much. It would probably be about £32 7s 6d. Walker's security would be worth over £2OO when itbe money was advanced to him. The buildings are now worth £250 at least. The value of Barrett's property at the time of lending him the money was fully £350. The leases have now about eighteen years to run; they had each twenty-one when the money was advanced. The property of Dumergue and Place consisted of 200 acres of land, and flax mill buildings. The mill is now used as a flour mill.

His Honor said that he had had a question handed up to him by a juryman, which was as follows :—"Whether the Hon Ernest Grey, either ? personally or, by agent, had bought from defendant a large amount of Yorkshire fog at Is 6d per bushel about the year 1871." He put it to the learned counsel on either side if they objected to the question being put. Mr Garrick had no objection at all to the question being put. He was rather pleased at it. Mr Joynt did not object. Defendant—l cannot find the name of the Hon Ernest Gray in my books. I have no recollection of the transaction having taken place. His Honor said that under the circumstances, as it was evident the juryman suggesting the question, knew something of his own knowledge beyond what had been brought out in evidence, counsel could call him as a witness if they liked. Mr Joynt said his learned friend might take his own course.

The Foreman—The'jury wish to know the price charged by defendant for the blue gum seeds and other trees supplied by him to the estate ? Witness—l think the blue gum seed was charged at £1 10a per lb, but I am not sure, the books will show it. The property on which I advanced £9OO was let for £l2O a year prior to the mortgage. Moir himself occupied the freehold for some time prior. Mr Wilson's books having been examined, no record of the sale of \ orkshire fog to Hon E. Gray could be traced. The witness then proceeded to point out on the map the position of the homestead, and of the draiu charged for in the account. Examination continued—The little drain near the plantation was not made into my section. I think that the water flows into my section from the oveiflow of the Waimakariri by that drain, instead of being a benefit to me. The artesian we'll, charged for in the accouLts, was on the property of Mr Lawrence, Oxford terrace. The price I find, according to accounts charged for, the mixture of rye grass and meadow feß:ue (Yorkshire fog) was 10s per bushel. Yorkshire fog in 1872 was worth from Is to Is 3d per lb. There is about twelve pounds to the bushel, so that a bushel of it would be worth 12s per bushel. Yorkshire fog is more valuable than rye-grass. The latter was worth 8s per bushel of twenty pounds to the bushel. The clover was not mixed with the grasses. The mixture included other grasses besides the rye and meadow fescue. Re-examined by Mr Garrick—l do not recollect my asking Dr TurnbuU to let. me

have the trap I bought for myself cheap, as I wanted it for Mr Turner's widow. I will not swear either way, as I have no recollection. I think when the negotiations with the Colonial Bank for taking my premises fell through I advertised my shares for sale cheap. The lease to Barret was by my wife's trustees. I have not the active management of the estate. I think I should not have a voice in the matter of taking a new tenant. I made the arrangement with Barret for the loan of the money myself; Mr Anderson and Mr J. Struthers Williams, the trustees, did not interfere. In Walker's case there is a clause as to consent of lessor to underletting. I never charged a premium for giving consent to underlet or assign. I did not charge Cunningham a year's rent, £l6O, for giving my consent to underlet. Mr Joynt objected to this line of examination.

His Honor upheld the objection. The question was, he thought, travelling beyond the record.

Mr Garrick would not press the question.

Examination continued —I think the property in Gloucester street has maintained its value for some years. The properties in Gloucester street, from Colombo street to the river, have not been ineligible as investment. I have no knowledge that some buildings in that part of the street remained empty for months and some for years. I have not found property Colombo street and the river ineligible for investment. The tenant of the Gloucester street property left before Moir without redeeming the bills he had given for the property. He never paid anything for it. He improved the property, but paid nothing. A man named McGregor lived for four months in the house, but paid no rent. Mr West lived in the house also, aud paid rent. My impression is that I never got less than £l2O per annum as rent for it. As trustee of Thomas Wilson I received any rent that might be paid. I asked Mrs Turner to live in the Gloncester street property if I bought it for the estate. Mr Garrick put in a copy of Press of Nov. 21st, 1874, containing the following advertisement :—" Colonial Bank* shares—l2o for for sale, at reduced price.—W. Wilson." Witness—That is my advertisement. There is 310 acres belonging to the estate at Malvern Hills ; about 100 acres are lot to tenants. The rental is 5s per acre. This land is let upon agreements drawn by me for under three years. The remainder has been unproductive for some time. A fee shown in the accounts was paid to Mr Bain for surveys made at Malvern Hills. It was paid for assisting me in judicious selection, and giving me a tracing. Bain was on survey at the Malvern Hills at the time. Mr Wm. Smart was one of the surveyors who went up with 'me. Mr Smart is not my clerk. Roper did not pay me £CO per year at the time antecendent to my making the alterations. 1 cannot swear positively. So many years have passed that it is impossible for me to recollect these details. I cannot swear positively to anything referring back to transactions a number of years ago, except I have a distinct recollection, when I will swear most willingly. The corrections made in my evidence this morning were necessitated by the lapse of years and indistinct recollection. I swore yesterday to the best of my recollection that I did not give any guarantee to Balgety and Co for Thomas Wilson's account in 1871. I will not swear now that I did not do so. I said yesterday I had a distinct recollection of communicating to Mr Wynn Williams my arrangement with Mr Cox as to the letting of the run and the supply of seed. I do not wish to correct this. I do not think my instructions were in writing. My impression is still that Mr Wynn Williams acted for both parties. The arrangement between Mr Cox and myself was a verbal one. Ido not recollect where I met Mr Cox on the occasion ; it was in Christchurch. I know I cannot recollect where the conversation took place. It was a verbal arrangement as to the seeds, and a verbal arrangement altogether. I have no doubt upon it at all. Alfred Cox and I were alone at the time the arrangement was made. Mr Wynn Williams was certainly not present at the time. We went to Mr Williams' office to instruct him as to preparation of the lease. I recognise the signature to the document produced as mine, and also that of Alfred Cox. It is a memo of agreement between Mr Cox and myself made by Mr Williams as to the terms of the proposed lease to Mr Cox of Turner's property. [Document put in.] The document now produced I have never seen before so far as I know. I cannot identify the document. These documents do not refresh my memory as to the anangements made between Mr Cox and' myself. The bull bought from Bowie was a benefit to the estate.

[Left Sitting.]