DISTRICT COURT, NAPIER.

Hawke's Bay Times, Volume I, Issue 48, 29 May 1862, Page 3

DISTRICT COURT, NAPIER.

CBefore J. Curling, Esq., It.M.) Thursday, May 22. Henton v. Superintendent of Hawke's Bap. lu this case the following jury were sworn • —Messrs. Kobjohns (foreman), Sergeant, Sehley, and Boutledge. Mr. Allen stated the case, at considerable length, and called Mr. Janies Henton, who stated that he owned some freehold land across the harbor when this action was brought, and a public road came to the further end of it. There was a Government reserve on the harbour frontage, and the public came through his land, which was a great inconvenience to him, and the traffic caused a road right through the heart of his land. In 18G1 he made application to the Government for satisfaction, and received a reply from Captain Carter, proposing an arrangement and appointing Mr. Gill as an arbitrator. Mr. Triphook agreed to act for witness. The arbitrators disagreed, and Mr. Bousfield was appointed umpire. That he did not attempt to bias his mind, nor had he any conversation with him on the subject prior to the award, which Mr. Triphook told him Bousfield had made about the 17th December. That lie next heard that Captain Carter had rejected the award. That he considered the fencing of the road as one of the material objects, and gave his agent instructions accordingly ; and to prove how material it was stated that drays could not now use the road, but trespassed upon his property. That he made no objection to Bousfield’s award, and would have been satisfied with it, as it would enable him to fence if he chose. After the refusal of the Superintendent to agree to the award, he told plaintiff that ASO had been

voted, and it would lapse if he did not take it; and that he could not pay any more until the Council voted it. The award was made on the 17th December, and this meeting was on the 20th, and was the only one they had on the subject. That he never abandoned his claim for full compensation. An arrangement was then effected between himself and the Government in this way: Mr. Tiff’en made a memorandum that the fencing could not be allowed by the Government, but that the sum awarded by Mr. Bousfield was not more than sufficient to compensate him for the inconvenience of having a road through his property. They promised to place it upon the estimates, and understood them all to say they would vote for it in the Council. If they had not promised he should not have signed the memorandum. The promise was the inducement to do it. The memorandum as to the amount was ABO in additition to the ■ ASO voted, so that the full amount, if passed by the Council, would be Al3O. Mr. Alexander prepared the document, and Mr. Titfen made the figures. That he never intended to accept the sum of ASO only as compensation for the land ; and that if they had told him they would not have supported the estimates he would not have assented to their terms. The document being signed, he received the ASO, and gave a receipt for it. About a month afterwards, he met Captain Carter, who told him that there was a conveyance to be signed at Mr. Wilson’s ; but did not tell him its contents. He said lie would go and sign it, as the road was then open to the public. He went, the following day, and said he was sent by Captain Carter to execute the deed. The deed was placed upon the table, engrossed on parchment. Nothing was said to him, nor was any one present ; but he thought that while he was signing it Mr. Locke came in and witnessed it, but was not certain whether the clerk was there or not. He was not advised to read it through, nor was it offered to be read through to him. He did not know its contents, nor what the consideration money stated in it was. He did not know that it contained a clause precluding him from making a claim against the Government for fencing. He supposed it was an ordinary simple conveyance, containing nothing unusual, and trusted to the parties concerned. If he had known that the consideration money was stated at ASO, and that that danse was inserted in the deed, he would not have signed it. He first found out that that clanseT was in the deed about a week after he signed it, by calling upon Captain Carter at that time for the purpose of seeing the deed. He had heard it rumoured that the sum would not be voted, and that the deed would be set up against the claim, so he called to see what the deed contained. He had never authorised any one to prepare the deed in that form, nor had the subject been broached to him. He knew that the ABO were placed upon the estimates, and that the Council voted him Al 3in lieu of it. He knew that the defendant voted against his claim, and attributed its non-success to his so voting. Cross-examined by Mr. Wilson : He paid Mr. Triphook A 6 17s. for his services in the arbitration. Mr. Tiffen said he thought Bousfield’s a fair award. He said to them, “Gentlemen, I shall fully rely upon you to support the estimates when it comes forward,” and understood them that they would. lie could not say that he heard them say anything. This was before he signed the agreement. Mr. Alexander road it over. He made no objection to it. He did not ask the Superintendent to sign it. He didn’t recollect asking Mr. Wilson for the deed, or having any conversation about it before he called upon him to sign it. He would swear positively that there was no conversation in reference to the contents of the deed when he signed it. He was not there more than five minutes. The clerk might have been there, but he thought not. Messrs. Bousfield, Wood, Alexander, and Tiffen were also examined in support of plaintiff’s case, and the court adjourned. On Friday, Mr. Wilson, for the defendant, took objection to the proceedings, on the ground that the Court had no jurisdiction, which was opposed by Mr. Allen ; but the Court was of opinion that the objection was good, and ruled accordingly-.