Supreme Court.

Hawke's Bay Times, Issue 1536, 23 December 1873, Page 58

Supreme Court.

MONDAY, lffira DECEMBER. His Honor took his seat at 10 a.m. Libel. The case against the proprietors of the Daily Telegraph was proceeded with. Mr Cornford called the first witness for the defence. Henry Robert Russell, M.L.C., sworn, deposed,: I am a sheepfarmer, residing at Mount Herbert, Waipukurau. I remember the sth April last. On that day I went to the Crown Lands Office, Napier. I speak of the building on the hill, which includes the Commissioner's Office, the Survey Office, and Receiver of Land Revenue's Office, all of which I include in the term Land Office. I cannot say that I was aware that the Commissioner and Receiver were General Government officers, and that the Survey Office was a Provincial Department—l looked upon them as all connected. The three togethe r are known as the Land Office, and you have to transact business in all three. I left Brandon's house at a quarter to 2 p.m. by Brewer's clock, which is generally taken to be correct telegraph time. I went straight to the Land Office, accompanied by Mr Brandon ; we did not occupy more than a minute ur two ou the way. I looked into the Survey Office and saw that by their clock it wanted exactly six minutes to 2. I went into the Commissioner's Office, and stood outside the counter. The boy Parker was iu the outer office, and I asked for Mr Sealy. He came out of his private office, and I asked him to take the application. Kinross was not there when I went in ; I think he came in after I made my application. I handed Mr Sealy an application for the purchase of land on Joseph Tanner's run. The application had been written several days before. This was on a Saturday, and I understood that the office closed at 2 p.m. My reason for deferring my applicat.on till so late was to prevent it being covered. There was a general idea that information as to applications leaked out. His Honor: It seems that the information was such as all the world was entitled to know. Witness continued : At this time there were no persons waiting to make applications. Mr Brandon was there as witness of what passed. I took two marked cheques tor £3,500, the amount to be paid. I handed the application to Mr Sealy ; he looked at it, and said l\o would write the receive order as soon as he had disposed of some other business which had preceded it. Brandon and I went into Mr Tylee's office, and told him that I had lodged an application for land, and that Mr Sealy was making out the order; I took the cheques in my hand, and told him I had them. Mr Tylee said the office closed at 2 o'clock. I observed, " I suppose the office closes when the business initiated in the Commissioner's office during the day is finished." He said he must draw the line somewhere. I went back to Mr Sealy and said to him that I hoped he would hurry, as Tylee talked of going. I was behind the counter; Mr Sealy was in the inner office. The Survey clock was two or three minutes fast; by correct time it wanted about 10 minutes to 2 when the application was presented. Mr Sealy replied that he could not help it —he was making all the hasto lie could. £ said " Could you not send to Tylee, and tell him you are completing the order ?" He said lie had no control Tylee. Mr Brandon went to Tylee's office to tell him that Sealy would be ready immediately with the order. After about two minutes he returned and said that Tylee had closed his office and gone. Mr Sealy camo out with the order; I did not then look at my watch; I did not expect anything would occur. I produced the cheques, and asked Mr Sealy to take them. He said he could not take them; that Tylee would take ihem on Monday morning. Upon reading the receive order I saw the acreage was less than J had calculated when I wrote the two cheques. 1 asked .Sealy how the difference would be managed.''He jsajd Tylee would manage that. I said, "It is better to alter it at once." I altered the smaller cheque to the exact sum, and Ml' Brandon initialed it in my presence. Cross-examined by Mr Wilson : 1 left Brandon's at a quarter to 2 by the telegraph clock-rit was six minutes to 2by their clock. Mr Sealy fcoid me he was writing receive orders ou two applications. I do not see the articles in the Telegraph; I knew of the reputation of the office in other ways. The idea was that if I made ap application for land, the runholder interested would by some means obtain information of. it.

His Honor; I shooed .tliifJ.k it to be the intention of the law that'it should be open to all the world to make application. ■ A.t the same time I caa understand that for the Commissioner to voluntarily give information to a party interested would .be .improper conduct. Cross-examination continued: 1 considered that the rQonimissioner took an extraordinarily long tune to #.U,up a printed form. I still.consider that lie'took an unnecessarily long time. I believe I heard Kinross come in and get something; but I did not take much notice of him. When I altered the second cheque, it was past 2

p.m. by their clock. Ido not know that it was by the proper time—l don't remember meeting Tylee casually in the bank that morning, and his telling me that the office closed at 2.-

Re-examined by Mr Cornford: I saw Kinross in the Survey Office when I entered. He was only in Sealy's office a moment—he got some papers and went out.

John Gibson Kinross sworn, deposed : lam a merchant. I remember the sth of April last. I had a transaction with the Lutid Office ; I put in two applications on that day. I went to the office in the morning between 11 and 12 o'clock, and got the acreage of the land I intended to apply for. On my way to the office I met Mr Tylee, and told him I intended to make a payment that day; he told me to be there before 2, as he closed his office punctually. These applications, marked I and K, are the ones I put in ; one was for 3,500 acres on my own run ; and the other was for 13,000 acres on D. Gollan's run. I handed one in before the other; about a minute between ; it was then six or seven minutes to 2. 1 saw Russell come in; my applications were both handed in before he put in his. lam quite sure that he had not put in his application when I came in. I was waiting in the office, close to the door, when he came in. When he came in, I into the Survey Office, and waited till Sealy wrote my receive order. I went in and got one about two minutes before 2 p.m.; the other I did not receive till some minutes after 2, when it was too late. I had merely gone to the Receiver of Land Revenue's Office, handed in the receive note and cheque, and went for the other note. Russell was still there ; he had not got his receive order. 1 was certain that Russell's application would not be in time, or I would have covered it. I wrote a note to Sealy next day; he returned it with a memorandum. I have searched but cannot find it; I believe I sent it to Mr Alfred Price, who lives 60 miles away, and I have had no opportunity of communicating with him since I was ordered to produce it. I have a distinct recollection of the words of the note. I wrote that as my manager, Mr Alfred Price, was in town, and leaving for the run that day, I would be much obliged if he would tell me what part of the run Russell had applied for on the day previous. I believe that was all. The note was returned, turned down at the corner, with the memorandum: "All the unpurchased land on Joseph Tanner's run." That I considered an answer to my question. I had leased the run from Joseph Tanner. I sent the note to Price. I went to the Crown Lands Office the first thing on Monday morning ; I should have done so in any case. I had heard from parties quite unconnected with the office, that Russell had applied for the laud on Joseph Tanner's run. I put in two applications for all the unpurchased land on Joseph Tanner's run, the first thing on Monday morning, about 10.30 or II o'clock. I told Sealy 1 intended .to cover this application of Russell's. Some conversation took place. He asked me if I was sure I could do so. I said 1 was sure that Russell could not have paid the money, as I had not been able to complete my second application, which came before his. lie said he would then take my application. 1 think there was no conversation about my note of tiie previous day. I then went to the office of Mr Weber, the Chief Provincial Surveyor, with the maps of the run and showed how I wished it subdivided go as to make two applications, parts of land being of different quality. The blocks were marked oil: before him, and lie ya id that & I called in the afternoon, ho would g iy c iue the area of the different blocks. About 2.30 p.m., I called at the office to complete the application. Weber was absent; and Jarmau was working at tracings connected with my own map. I cannot say whether those are the traciugg which have been mutilated or not. J hurried the draughtsman ; I said " Give us the area of the land ;" I hurriedly put on the tracings, and lodged the applications. Ido not know that the tracings were fixed. I got the receive orders, and paid the money. I got these orders from Parker; Mr Sealy having left. I believe one tracing only was handed in with each application. I intended that the map should have been handed in ; but it was not attached. I remember Saturday, the 22nd November last. I was twice in the Land Office on that day. I was there between 12 and 1 o'clock. Mr Sealy and Parker were in the .office. I went to see Sealy on some business with which I was connected; I had made an appointment to read over a legal document. I might call the business both public and private. It concerned legal proceedings taken against Mr Scaly, in a matter in which I was interested. I was inside the counter, in Sealy's office. Sealy and Parker were seated at the table ; I was standing at the corner between them, facing the counter. The busiuess did not occupy very longperhaps eight or ten minutes. I saw an application lying on the table ;_! noticed that it contained the words and figures : « 2,ooo—Patoka—G. S. Whitmore's run." That was all I saw of it. I saw Heyland in the office while I was with Sejdy ; I think he had handed in the application while 1 was there. I do not remember seeing any paper handed to The paper was lying before Parker, a foot or two from inc. 1 went straight to Wilson, and told him that an application had been lodged -for 2,000 acres on Rhodes and Aynsley's run. Rhodes and Aynsley had purchased the run from Whitmore. I left the office two or three minutes after seeing the application! I don't think Heyland was in the office when I left, I did not say anything to Sealy when I saw the paper ; he did not know that I had seen it, Wilson went to the office with a cheque. By Mr Wilson : I have transacted considerable business with the Laud Office. I never knew it to have a bad character ; I never had any information of any irregularity about matters concerning either myself or my constituents. My intention in going late on the first occasion was id prevent a simultaneous application. It usually takes live'or six minutes to receive an application and write the receive order. I havo beard that there was a complaint about the tracings, I received no information of Russell's application from any one in the office. I had heard long before that Russell intended to buy. I had called two days before, and asked if jfche land wqs, safe. It was by a mere coincidence that J. was present when the applicaf4pn was made'. I'have beep three or four timea mfain the counter; but always on busiuess connected with the office.

Rowley Alfred Heyland, sworn, deposed: I am a settler, residing in this Province. i rempmber tlio 22nd November last; I made m 'application for land on that day at the Land Office;' 1 'Wentto jh.e Office at about ten minutes to' 12/ The application A is the one I made. Jarman made it out; I signed it. I saw Kinross in the Commissioner's office when I went in, at about half-past 12. I (got the receive order, and paid the money at about a quarter 'to p Kinross kit the office while! was there, before I got tbe receive order. After paying the money, I left the

office, and came down to the road. Soon after I left the Receiver's,office, I saw Mr Wilson going to the Land Office. This was about a quarter to 1. At five minutes to 1,1 saw him go into the Receiver's office. I saw him come out and re-enter the Land Office, and I saw him come out again and re-enter Mr .Tylee's office at one minute past 1. He had then a paper in his hand, about the size of a receive order. I wasi standing at the corner of Mayo's hotel, watching him. I saw him afterwards come out of Tvlee's office, and down the hill.

By Mr Wilson : I had my watch on me ; it was correct by telegraph time. The Survey Office clock was ten minutes faster than my watch that day. Andrew Luff, sworn, deposed : I am a land agent, residing in Napier, and have been about twelve years in the business. I have had many transactions in the Land Office. I have had several since Mr Sealy has been Commissioner. I cannot say that the office bears a bad character ; I have had occasion to make complaints against it myself. In making applications for rural land, I generally go as near as possible to the closing hour.

Hie Honor remarked that this seemed to be the result of the Land Regulations, which appeared well suited to encourage shurp practice, and gave rise to a system of attempting to prevent other people from doing what they were entitled to. It seemed, in dealing for land, to be a case of " Who's the sharpest." The effect this must have upon the general morality was a matter for serious reflection.

Witness continued : On the 7th April, 1870, 1 put in an application, which was refused. On the next day, I went to see whether Kinross's application had covered mine. I went to the Crown Lands Office first, and asked for Kiuross's applications. I saw them in the Survey Office, without any tracings aunexed. While I was there, Mr Jarman, the draughtsman, put a tracing on each. These are the tracings which I saw attached—the two uumutilated tracings now on the applications, I did not feel satisfied that these were the original tracings which had been put in with the applications by Mr Kinross. After some discussion, I asked Mr Weber to let me see the first tracing. 1 was then in the Survey Office. The Commissioner, Mr Sealy, was absent at the time. Mr Weber showed me a cloth tracing ; I was not satisfied, and communicated with Mr Ormond, the Superintendent—the result being that these two mutilated tracings were attached. From the appearance of the documents I considered that the tracinghad been torn off. The second tracings contain the acreages, which do not appear in the first. In one of them there is a difference in the position of a creek. I could not make the acreages agree with the maps in either application. His Honor: That may be your fault. I think all this is immaterial, as the tracing is not a necessary part of the application.

Mr Cornf ord said it was quite necessary, as it referred to the tracing attached. It was fortius reason that the Superintendent had the mutilated tracings replaced. His Honor: Prima facia it only shows some misconduct or irregular conduct in the Survey Office. Wituess continued: The dilapidated tracing on the application D. is not so complete as the second one. His Honor: If you can show that it has been altered it may have been a most wicked transaction ; but it is quite otherwise if it was only made more complete. Witness: The original tracings were not sufficient to cany out the application. Reference is made to blocks marked A, B, C, &c, and there is no lettering in the tracings to identify the blocks. J His Honor: The suggestion appears to amount to no more than this—that the original tracing was not a complete one, and that the second was more complete.

Mr Wilson: It has no reference at all to the case. " ■

His Honor : i. shall tell the jury so. The department was not under Mr Sealy's charge. Witness: The document belonged to the Land Office, as also the application B ; but Weber told me the cloth tracing was lodged with it.

Mr Cornford here read the minute endorsed by Parker upon the plan—" Received from Mr Weber, Bth April," and pointed out that this was the day after the application was lodged. By Mr Wilson : I had nothing to do with those applications, except to see whether they covered mine. I remember being sued by the Laud Office in Captain Carter's time' for a deposit on spme land sold at auction. I objected to pay the deposit ou the 'land, as it had been sold before it was staked out, contrary to the regulations. lam not a surveyor. Without going through those plans I cannot say whether the area is the same. I have already pointed out a difference of half-a-mile in one of the boundaries; but I cannot answer off-hand whether tho area corresponds. My application was made on the 7th, and' I saw this application the next day. When I took my application, I did not know that this existed. I made my application from the register ; I had no occasion to go into the Survey Office. My application had been disallowed by the Commissioner, on the ground that the land had been put up to auction over three years before. If Kinross's application had not covered mine, I sliqukj. have been tjio only applicant for the laud. Mr Wilson said it would unnecessary for the defendants to call' Mr Harding. He did not dispute the plea. The circumstance occurred before the new construction was. placed upon the rpgujatio.ns. M> Sealy at that time administered the office in the same way as his predecessor. He held that it was 5s land, and as such must go to auction ; but he had changed the rule since. Mr Cornford still decided to call the witness.

John Harding, sworn, deposed : I am a sheepfarmer, residing at Mount Vernon, Waipukurau district. In the month of March, 1872,1 had business at the Crown Lands Office. I called at the Survey Office, to ask v/haj; amcurjt of land remained sold on my run, I saw the words " Open for selection " written on 1 the''blocks in the map, inducing me to believe that'the land was open for selection at 10s, I went last Vpril, accompanied by the Hon. Mr Tollemache, and asked Mr Sealy to sell me the land at 10s. He referred to the map and to his books, and told me that as the land had at a former period been sold {$ auction and the deposits forfeited, he could' only sell it again'by' putting it to auction, He talked some'time, and I pointed duttlie words written in pencil on the map. 1 asked Mr Tollemache, I believe in MiSealy's hearing, to act as my agent, arid apply for the land to be put up ■ at ss. He did so. The Gazette notice, of the 27th April, 1872, refers to fjut Jam]. By Mr'Lascelles: Mr Sealy first referred to the map, after which he ga've me his answer—that this laud had previously been put to auction and sold, and the deposit forfeited ; consequently it could not be sold at 10s, but must go to auction, I have no recollection of Mr Sealy telling nje tbaj: ft

as 5s land. He asked MrTollemache why he should act as my agent, but said nothing more relevant to the purchase. By Mr Wilson: I afterwards bought that land at auction at ss—the upset price. Frederick John Tiffen, sworn, deposed: I am a sheep farmer, residing at Patangata. I remember the 24th April last. I saw Mr Sealy on that day, about 11 a.m. at Elmshill, my place, on his way to Mangakuri. I told him I believed Buchanan had applied for all the 10s land within the block, that Buchanan ;and Rhodes Chapman had applied for. I said I was acting for Buchanan in his absence. 1 asked him what steps I should take,to ascertain from him the number of acres of 10s land he had found after inspecting Rhodes and Chapman's run. He said be could give me no information at the time; but if I came down on the following Monday the land would be thrown open for selection, as he would not be back during office hours on Saturday. Knowing he had 20,000 acres of land to ride ever, and about 10,000 to certify to, I thought it probable that he would not be down in time. I went to Waipawa and telegraphed to Buchanan in Wellington. On the Saturday I started for Napier, and arrived on Suuday. On Monday I applied at the Land Office to ascertain the number of acres open for selection. I found that there was only 800 acres of 10s land on the run, and that that quautity had been purchased by Chapman, on behalf of Rhodes and Chapman, on the Friday previous. By Mr Wilson: On the Monday Mr Sealy gave me an explanation. He did not know at the time but that any one else might have come and bought the land during his absence from the office. He told me that Chapman had a protective right over that land. He told me also that the previous Commissioner had indicated all the laud worth 10s an acre. I said I considered that as he had cancelled all certificates of his predecessor, a protective right no longer existed, and that I had a right to purchase. I remember his telling me that he did not recognize Buchanan's right to the 10s land within Rhodes & Chapman's application. He told me there had been some understanding between Rhodes & Chapman and the Government. I did not then kuow that the land was open to me, or any one else. Between the time of the applicatious, Mr Sealy had discovered an old memorandum of Mr Tancred's, that the Commissioner was not justified in ref usiug to sell at 10s, and he introduced an altered system into the Land Office. By the foreman: Undoubtedly Sealy told' me in the country that the land would not be open for selection or purchase until Monday. Mr A. Chapman was present at the time.

This closed the evidence for the defence* and the Court adjourned for half-an hour 1 On his Honor resuming his seat, Mr Wilson said that he wished to call rebutting evidence, in regard to certain new points which had been raised in the defence.— Leave was granted. Alfred Jarman, sworn, deposed : I am a draughtsman in the Survey Office, Napier ; having been appointed by his Honor the Superintendent. It is a part of my duty to supply to the Commissioner and applicants the particulars of boundaries, &c, of land applied for. It is also a part of my duty to mark off on the maps the portions of land disposed of. For that purpose I have sometimes occasion to take papers from the Land Office. On the map we write the name of the purchaser, the number of the application, and the area of the land. (Applications 0 and D, and the plan E, were here handed to the witness.) The plan E was lodged in the Survey Office on the 7th April, the day the application was made, and some two or three hours before the application was completed. The reason why the original tracings were interfered with, was that they only Bhowed the outer boundaries of the land, without the subdivisions. The outer boundaries of the first and second tracing? correspond, The applicant applied to have the land subdivided in a particular way, which he had shown on this tracing, The first tracings, which have been torn, did not have those divisions marked upon them. The first were made by the assistantdraughtsman. The second tracings showed the subdivisions upon the map, as described by the applicant. I made the second tracings, at nobody's instance, considering the first insufficient for our own guidance. I had no communication with Mr Scaly about it; it is for our own guidance principally that we make tracings. When I had made the second., I tore off the first, and threw it away. The priginal tracings were asked for by Mr Luff, and were found amongst the waste paper in the fire-place. The plans deposited with the applications formed a part of them, and would, I suppose, be open to public inspection. By Mr Cornford: There is no reference in the application to the calico plan. I oau-! not say that it was ever attached. From, thpse original tracings, which were thrown away, I could notshave subdivided the land according to the application. His Honor said that so far as the particulars block was concerned, the application as put in sufficiently indicated everything necessary for the effective transfer of the title.

By Mr Cornford: Front these applications and tracings Mr Luff could not have seeu that his original application had been, covered; he would have to refer to the office map or have made use of his own. knowledge. His Honor said that the fault of the Survey officers seemed to be that they dicf not ipok sufficiently closely to the applications when put in, and that they made them complete by-and-by instead of doing it at once. By Mr Lee : The application is for one block of land, with defined boundaries. The application does not include the whole of the laud within the outside boundaries. There are some old purchases which are not included. I can see no difference between the map and the tracing attached to the application.. The previous purchases ave &U shown on the original tracing. The land comprised in. the application is indicated by a red line. His Honor; What more does alljhis come to than this—that loose jpractices have prevailed in the Survey Office, over which Mr Sealy had no control ? Charles Herman Webe?,swom 3 deposed: I am Chief Provincial Surveyor. I remember Nairn's run at Pourerere being gazetted for sale. The original application was in general conformity with the regulations, All these colored blocks are inoluded in appJi6ation 1952. The regulation 1 provides! that the land shall be subdivided as nearly as possible into rectangular blocks. The features of the country in this instance would not allow of it. Mr Sealy objected to the shape of some of the blocks; he consulted with Mr Ormond, and had certain alterations made in' the' shape',ot the block before the sale, to; make them as nearly as possible' rectangular. I have seen the tracings put in. The outer boundaries in both are the same.

By His Honor: The substitution of the second tracing for the original could -ty' prejudicial to the interests 0 | 00 , ope,

By MrCornford: No plan of the original survey was ever deposited in the Commissioner's Office—all -the plans are deposited in the Survey Office. By Mr Lee : I gave the instructions for the survey. No directions were given to Ellison, as he was a surveyor of ten years standing in this Province. lam absolutely certain that Mr Sealy was the first to move in this matter. Mr Ellison was instructed to make out a plan showing the alterations before the amended Gazette was issued. The first plan may have been a week or a fortnight in the office before the irregularity was noticed. An applicant thoroughly acquainted with maps could tell from the original tracing whether certain numbered sections were within the boundary; but an applicant never goes to a tracing attached to an application to make out another application. Lots Nos. 77, 78, and 81 are not marked. After three years, the land put up to auction is no longer open to application,— it lapses ; the numbers of the blocks no longer exist, and would not appear in a tracing. They remain on the official map ; we cannot erase them from that. By Mr Lascellcs : Jf this calico tracing was deposited, an applicant would find no difficulty in ascertaining what blocks it included. ■ ♦ We have to apologise to our readers for the non-completion of our report of the Supreme Court proceedings in today's issue. Causes unforeseen, and over which we have no control, have not only prevented us from fulfilling our promise to complete the report in the present issue, hut have made the publication of the paper in reasonable time this morning almost an impossibility. We may state, however, that we are making arrangements for such an addition to our staff at an early date as will make such an occurrence in the future Yery improbable.