SUPREME COURT.

Hawke's Bay Times, Volume 16, Issue 865, 14 November 1870, Page 2

SUPREME COURT.

Saturday, 12th October, 1870, $. Foster r. T. P. Bvtsell. This was a special jury case, in which plaiptitT sought to obtain specific performance of a certain contract. Mr Wilson appeared for the plaintiff, and Messrs. I»ee and Stedman for the defendant. His Honor said that in this, case* through the interference of counsel on bath sides with the sheriff, tho jury had been iinpannelled in an entirely irregular manner. The law provided that, as in Napier, where the special jurors did not; number 48, the sheriff must add to the list sufficient common jurors to make up that number. Twenty-iour of these naraea were then to be struck out in the pre* sence of the sheriff by the parties in the case, and the jury was to be ballotted from the remaining 24. In this case the parties had got the list froxu the sheriff* and had struck out all the names but 14, from which a jury of tweive was to be obtained. Mr Wilson said that this being done with the consent of both parties would form no ground of objection. Honor said the question now be* fore him was whether the Court should go on with the case. lie. had no desiro to throw obstacles in the way of the par* ties, but the plaiutjff's counsel i)a<i in <&

feet just argued that it was competent for the parties, by an arrangement between themselves, to change the practice of the Court. As, however, the breach of the law had been the fault of the sheriff, though induced by the parties, the Court should not refuse to hear the case. No further objection could be raised on this point, hoth sides being bound by their consent.

The following jury were then impanelled :—S. Begg (foreman), W. Orr, G. Goodie, F. Sutton, G. E. G. Richardson, T. Richardson, C. J. Wishart, E. Lyndon, T. K. Newton, C. J. Gully, A. Kennedy, And B. A. Ferard. The issues were then read to the jury.

His Honor. pointed out that when in settling the issues the terra '• seizin" describiug the plaintiff's title Was amended to " occupation," no ground was, left for a demand for specific performance of the .contract. % Mr Wilson argued that he was not called upon to prove the plaintiff's title. His Honor said certainly not; but as Ibe case stood now a verdict for the plaintiff would be of no use to him. Mr Wilson did not see the matter in this light, and the case was gone on with. Mr Wilson briefly stated the plaintiff's case. The parties held adjoining properties, the boundary dividing which was a very irregular one. Disputes had arisen through the defendant being constantly in the habit of impounding plaintiff's sheep; and at last Mr Kinross, who held the position of agent to both parties, sought to arrange a settlement between jhem. By his arrangement the parties met in his counting-house, an agreement for the exchange of a portion of land on each side was entered into and signed by the parties, the basis of the contract being a map he produced (marked A) upon which a point marked x by the direction of the defendant, showed the amount of laud which he made over to plaintiff. His Honor asked if this plan A corresponded with the one in the declaration. Mr Wilson said it did, with the exception that in the declaration the boundary line of the land claimed was marked off from the point x . His Honor suggested that the defendant aright possibly claim a nonsuit on the grwuu'd of the absence of the boundary line in the plan which formed the basis of the agreement. As at present advised, he considered the evidence respecting this line insufficient, in point of law, aud the plaintiff would be bound to show, by admissible parole evidence, what direction was intended by the parties. Then came the further question, whether such evidence was admissible to explain the ambiguity in the written document. Mr Wilson continued. This agreement vtas made in perfect good faith between ihe parties. Next day, however, a dispute taking place between them, the defendant gave notice of what he called the " abandonment of the contract."

His ELuor said it was quite possible that this 80-calied abandonment might contain some admission that would set up the contract. Not long since a case of thid kind had come btfure him, in which one of the parties, writing a letter repudiating his portion of a contract, had luadyertently made an admission which supplied an omission in the document which otherwise would have rendered it invalid. At present it appeared to him that the question whether the boundary was .sufficiently indicated involved a point of law, and uierefore should not come before the jury at all. Altogether, this was a proper case for arbitration, and should never have come into a court of law. Mr Wilson then called—

J. G. Kinross, who deposed :I aina merchant-, and aet as agent for both parties in this case. They both are free» holders at Te Mata, and their estates adjoin. Knowing that there had been disputes between the parties with reference to trespass and impounding of sheep, I endeavored to briug about some arrangement between them. On the 13th October, 1869, the parties met at my countibg house in my presence. I asked Mr Kussell if lie would agree to sell Mr Foster a portion of his land, so as to make a Biraight boundary. (Mr Stedmap objected to eyidence tending to explain the meaning the document.) Mr Kussell agreed to dispose of as much as would reach to the point indicated in the plan A by the mark x . Mr Eussell or 1 made the mark with a pen; I do not distinctly rwitieM which vf U 3 made the mark, but

the exact spot was indicated by Mr Ru - selL Mr Poster accepted the land in exchange for two sections of his property named in the agreement. His Honor ruled that as the ambiguity in the agreement was a patent one, possibly affecting the validity of the document, evidence in explanation was not admissible, *■ ■

Witness continued *. Mr Russell commenced to write out the agreement. He said the pen was bad, and that I had better write it out. I wrote it to his dictation, suggesting some of the expressions myself. I suggested the words " and initialed," remarking that it would be the safest plan to initial the cross ; but we forgot to do so.

His Honor* asked if the document was stamped according to law.

Mr Wilson said it was not. His Honor: Are you prepared to pay the penalty, Mr Wilson ? Mr Wilson: Certainly, your Honor. His Honor said that in a case receutly tried at Dunedin an unstamped document was received in evidence on payment of the penalty; but on appeal the case fell through through the value of the stamp — one shilling—not having also been tendered.

Mr Wilson : 0, we are quite prepared to tender the shilling also, your Honor. His Honor had merely warned him, in order that he should not fail into the trap in which the Dunedin counsel had been caught. Mr Wilson then paid into court i>s penalty, and Is, the value of the stamp. Witness continued : The document was drawn and signed by the parties; I retained the original, and took two press copies, one of which I gave to Mr Russell, and the other to Mr Foster. Next day I took the plan A to the Survey office, and had the area of the land calculated from the point given by Mr Russell. Some dispute afterwards occurred between the parties, and I received a letter from Mr Carlyon, acting for Mr Russell, in which he eaid that the agreement had been abandoned by both parties. I informed both Mr Carlyon and Mr Russell that Mr Foster insisted on the agreement being carried out. By Mr Lee —I have an impression that Mr Russell did bring a tracing from the Survey office ; but it was not used as a basis of agreement. My impression is that the tracing was drawn with a pencil. I don't remember the tracing you produce. I believe Mr Russell laid his tracing over the plan A ; but I did not hear him observe that he could not make them agree at all.

Robert Foster deposed : I am a runholder, residing near Havelock. Defendant's land adjoins mine. I remember meeting hira on the 13th October in Mr Kinross's presence. Mr Russell proposed that I should exchange blocks 7 an.! 8 of my property for a portion of his block, No. 6, near my house. I brought a plan with me ; plan Ais the one. Mr Russell put his finger where the x is, and Mr Kinross made the mark where his finger was. I made some objections to parting with section 8, but Mr Russell said it would save me a good deal of fencing, and I consented. Mr Russell then took a pen to draw the agreement; he complained that the pen was bad, and gave it to Mr Kinross, who wrote the agreement from his dictation. The document was fmished and sigued, and Mr Russell said he was glad the matter was settled. Nest day Mr Rus-x-11 went out with me, and saw a block of land, No. 12, belonging to me. He said if he had known of that block before he would not have made the exchange without it. I told him that I could not part with it on any account, Mr Nation, surveyor, was present, and Mi* Russell showed him where he wished the boundary fence to run, the same spot as is marked x in the plan. Mr Nation marked it down in his pocket book. The same day Mr Russeli and I had a dispute, in consequence of bia saying if I did not give him section No. 12, he would ioipouad my sheep. I have always been willing'to carry out the terms of our agreement. By Mr Lee : Mr Nation did not make any mark in the plan, only in «<ia pocketbook.

H. S. Tiffen deposed : I have been a land surveyor for 32 years. In the plan A a boundary Una is deficient, but for practical purposes the mark x would be suiiieient. If I had instructions to lay it off from the plan I should certainly draw the line iu the direction given in the de-

ilaration, unless my instructions were that I should include a given area. There are two boundaries defined by straight lines at right angles to each other, the third boundary is irregular, and any surveyor, being instructed to lay the piece off according to the agreement, would draw a straight line from the point x , parallel with one boundary, and at right angles with the other.

C. H. Weber deposed : I am a surveyor, and have had 25 years' practice. If instructed to lay off a piece of land according to the plan and agreement produced, there being already two side 3 of a rectangle, I should draw a third from the point x , as in the declaration, W. Ellison deposed; lam a surveyor, and have been 30 years in practice. I have surveyed the land represented in plan A. The plan is correct. If required to lay out the deficient boundary according to the agreement, I should draw it as in the declaration, except I received some further instructions.

Mr Wilson, having proved the title, applied to have the term " occupation " in the declaration amended back to 44 seizin." No objection being made by the other side, the amendment wa3 made. This concluded the plaintiff's case.