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RESIDENT MAGISTRATE'S COURT. Friday, 15th February, 1850.

Before Thomas Bcckham, Esq , R. M., Major Gray, A. Kennedy, L, M'Lachlan, and M. Carter, Esqrs,, Justices of the Peace. William Forsyth v. G. 0. Ormsby. This was an action to lecover loss and damage alleged to htive been sustained by the plaintiff in consequence of the defendant und his assistants breaking up and removing the foundation plates of a dwellm^-hoiihe in the course of erection by plaintiff, on an allotment of laud No. 10, of section 33, in the village of Oneliuugn, on theJ3oth of January and the 6th of February, 1850 ; and also for lots and damage otherwise sustained by the plaintiff, in consequence of the resistance and op-

position given to plaintiff hy defendant in the use and occupation of, and in the removal of the land- marks of. the said allotment, the same being held by the plaintiff under and by virtue of a Crown grant, dated 27th day of November, 1849. It appeared that the allotment in question was a portion of a quantity of land claimed by Sir. Oimsby une'er the penny an-acre proclamation of Governor Fitz Roy; that Mr. Ormsby's claim to this land had been investigated by the Commissioner appointed under the subsequent regulations of Governor Grey, and an award was made in favour of Mr. Ormsby, who has, consequently, retained possession of the land up to the present time. On the 18th September last a portion of this land was put up to auction by the Government, aud two allotments— Nns. 10 and 11— wire purchased by Mr. Forsyth ; Mr. Oim«.by hamle-1 in ajrotest, at the time of eule, against the light of the Government to dispose of the land. Mr. Forsyth I proceeded to occupy the laud by preparing for the erection of a house upon it, when he was prevented by Mr. Ormsby ; and the present action was bi ought in C">nsrquence. Mr. Meniman, who appeared for the defendant, objected to the jurisdiction of the Court to hear the case, and argued that although a clause of the Resident Magistrate's Court Ordinance gives power to the Resident Magistrate to determine all claims of a civil nature, where the amount or damege does not exceed £20, yet that as the validity of the title to the land was in dispute, the Court had not power to adjudicate upon such an objection, and therefore could not entertain the piesent case. Mr. Foisylh stated that his claim was under a grant from the Crown, and handed in a deed of grant. Mr. Merrimaa denied that ths document handed in was a grant ; for, al hough under the seal of the colony, i n 1 the signature of the Governor, he was pr-p re 1 with evidence, to prove that it was iv Law invaliJ. Tie Penh decided that the Ciown grant being handed in, was conclusive, and asked Mr. Merriman whether he was prepaied to put in any doenment against i'; Mr. Merriman said, decidedly not ; his objections to the giant were legal objections, and that it was not necessiry for him to set up another grant in opposition. The Bench o vet ruled the objection, and proceeded with the investigation by calling on the plaintiff to prove his claim for dumagea. William Forsyth, being sworn, stated, that on the 30th of January last he proceeded to occupy a portion of land at Onehunga, purchased by him at the Government Land sale, in September, 18*19 ; that he had marked off the ground for a dwelling-house, and laid down the ground plates for the same ; they>eve not fixed, nor morticed, but meicly marked off, as the house was to stand ; he left a man employed at the work j this msin had been pievented from proceeding with his woik by defendant. Plaintiff was afterwards informed by defendant's solicitor, that no fjither resistance would be offered, aud he accordm,»ly went out again to commence work on the 6ih instant ; as soon as the man he had omp'oyed commenced to lay d wn timber on the giound, he was stopped by a perfon w! 0 said he was employed by Mr. Ormsby to stop fiere day and night to prevent any one from occupjina tie ground. Plaintiff consideied that he Lad sustairel 1 ibS and damage to ths amount of £15 ; the house he wai about to erect was to be occupied by n person n imed Leatlnrr, who he employed to take charge of l>ii titr bJr at Onebunga ; Leathait would not remain in his employment in consequence of having no house to reside in; plaintiff's business had been neglected, and timbei had been stolen from him owing to the resistance and opposition of defendant. Cross examined by Mr. Merriman .—-The Own grant was not issued to plaintiff before the 30th of January; he d;d not receive it until the Ist or 2nd of Febiuary; denied having promised to Mr. Merriman that he would do nothing iv the matter until Mr. Merimn had seen the defendant on the following tiny ; would swear positively that Mr. Merriman pro° m s d to go see the defendant that afternoon ; plaintiff was the s.me "Mr. Forsyth, of ColliuhiU House," that wrote a letter to the 'Southern Cioss' iv September last; he wa3 the author of the passage now read by Mr. M. ; he was the writer of it. The Bench thought that allusion to the letter was unnecessary to this case. Mr. Meiriman would merely put in certain passigesof the letter, to test the plaintiff's ciedibihty. He proccded to examine the Plaintiff: — Did not remember hearing a proles from Mr. Ormsby lead at the kale; believed that the cost of replacing the plates th.it had been removed and re » marking the site of the house, would be £1 B*. By the Bench : The damage sustained on tl c 30. h January, he wfu'd value at £l Bs. ; that on lk<? Gh Fi bru«ry, at /I 5.. ; und his loss in b-ing ke,.t out of tla land he would estimate at £13 7*. making £15 in a'l. Cuthbert Leathart, stated that he had been employed at Onehunga by the plaintiff, to put up a house in which he was to reside ; the plates had been laid down, and witness had gone to grind his chisel ; on returning he found Mr. Ormsby engaged throwing the plates over the fence ; Mr. Oirnsby s i I " you see what I am doing; if Mi. Forayth were h<;re 1 would do the came to him/ Witncds then thought it time for him to walk off, which he did, and reported what had happened to Mr. Forsyih. W. Jameson bad baen employed by Mr. Fo syth on the 4th of February last, to build a house at Onehunga j he was to work at it until it should be finUhiid, at the rate of 7s. 6d. per day ; when he commenced to place the timber on the ground he was stopped by a man named Philmoie, who threw several pieces of timber over the fence, and broke ili-m across ; the damage ihus done amounted to about £\» This closed the plaintiff '*, case. Major Matson was then examined by Mr. Meiriman, and stated that he whs a Commissioner of Land Claims in 1847, he had investigated Mr. Ormsby's clmm ; knew Mr. Orrabby's paddock, it runs up to Mrs. Foibes' land ; he found Mr. Ormsby's claim to be a lvii o ie. On Mr. Mfrnraan asking Major MaUon if he had made an award on that claim ? The Chairman of the B.nch said that was a matter of which ihe court could take to cognizance. The question for the consideration of the magistrates was not whe her the Crown had a tight to depose of the laud or not. Tin* Bench he thought would agree with him thai their power did not extend to the investigation of that point. Mr. Merrimin had two defences to this action, the first and the one which he now wi-hed to go into was, whether or not the grant put in by the plaintiff is a good and valid grant of the laud in question ; tlie Bench told him thai that is a subject beyond the jurisdiction of this court, and in this opinion he concuued. That was the objediou that he took at the commencement, that the cause could wot be tried by this court for want of jurisdiction ; that objection was overruled, and the bench decided upon going into the case, and now when the plaintiff's case is closed, and he (Mr, Merriman) began upon, the first poiot iv Iris defence,

the bench met him by saying that that defence was ou l of their jurisdiction. Surely this was not right ; if the bench can entertain the case they must hear the whole, and not cut off one half, and, he might say tbe principle portion of the defence, by telling the defendant that they have no power to go into such matters. Th Bench must either hear the whole or none. They have decided upon hearing the case, and they cannot say that the claim is within the cognizance of thin court — but the defence beyond Iheir jurisdiction ; if the defence ii beyond their jurisdiction they ou<ht not to hear the complaint, but should at once have sent the case to a higher court where both complaint and defence could be heard. The other point of defence that he would take was that the defendant had poisca* sion of the land— but the plaintiff had never obtained possession of it. The Chairman said that was a point that the prima facie evidence of the Ciown Grant would decide at ones aguinst the defendant. Mr. Merriman said that certainly he was awaie that the seal of the co'ony on the Giant was enough to aenl his lips against it in that Court, im' m a higher Court, where the case should only havr hsen tiicd, he could, question the validity of tint Giant. Mr. M'Lachlan remarked that possession of the Crown Grant by the Plaintiff was presumptive of his poisession of the land. Mr. Merriman aaid that clearly it was presumptive or prima facie evidence, but that he was prepared to vcbut the pi ima facie and presumptive evidence by positive evidence to the contrary ; evidence that Mr. Oitnsby bad always had possession of the Luid, that Mr. Forsaith never was in possession, and that in fact, bare possession being sufficient to ground an action of trespass, Mr. Ormsby was in a position to commence an action against Mr. Forsyth, but Mr. Forsyth never having had possession could not sustain an action of tiespa-s against him but should have brought his action in ejectment. Major Matson's examination continued : Made an award in favour of Mr. Ormsby on his cluim ; a notifi. cation ot the same, with other*, was published in the ' Government Gazette'; (here a Gazette of the 10th August 1847, was handed to Major Mataon) that was the notification of which he ipoke ; the award was for 30 acres ; No. 10 allotment, since sold by the Government at Onehunga, was part of and included in that award. By the Bench : My duty was to report and to award. Mr. Kennedy remarked that it had been decided in a higher court, that the land commissioners power only extended to report on the claims investigated by him. Major Gray observed that the notification in the * Gazette' just referred to Btated that •' the deeds were in course of preparation " for the several pai ties whose claims ha-1 been reported on, and Mr. Ormsby's claim was a.nong the number. The Chairman enqu red whether Mr. Oimsby hid received his tit'e deeds ? Mr. Meniman: he has not. 'I hj Bench reinaiked that if Mr. Ormsby bad no title deeds he must be illegally in possession. Mr. Merriman, at some length, urged that if he could prove that Mr. Ucirshy acted legally in taking; jo fession of the land in the first instance, and had bold possession legally, although at the piesent time his itill holding poisession might be illegal, and, for the sake of argument, he would say it wdi iUejal — by no means however admitting that such was the case,— yet never having been disturbed in his possession, never having been ousted from his possession, and Mr. forsyth never having even pretended that possession was given to him, the present plaintiff was wrong in bringing an action of trespass, more particularly as he had admitted that at the time of the alleged trespass he had not received a Ci own grant; fcr although the grant was dated piior to the 3Cth Jmuary, it was not issued ixutil after that date. Mr. Mrrriinan then called G 0. Ormsby : Who stated that he claimed the hi.d <it OiK'hunga, marked Allotment No. 10, on the Government Plan of that village j he took possession of it in September, 1844, under sanction of a preemption certificatei No. 60 ; has continued in poisession of the land ever since. The Chairman again enquired whether Mr. Ormsby had any superior instrument to that held by the plaintiff, o entitle him toician possession? Mr. Merrimau contenc'eJ, in reply, that his light of possession took Us rise in an act of the Government, and until he were ejected by process of Law, he 1 ai the only undoubted right of possession. M.ij >v Gray enquired whether Mr. Forsylh had e\Ct been put in possession by the Government ? Mr. Forsyth said that he had received a letter from the Surveyor -Gt-neial, addiessed to Mr. Ormsby, which he believed was an order from that officer that he (Mr. Ormsby) should put Mr. Foisyih in posses* hon of tle land. fifr. Ormsby did not do so at that lirno, but promised that he would give possession of it at another time. Mr. Kennedy enquired whether Mr. Ormsby was not a servant of tin; Crown ? Mr. iMenirnan said tint although a magistrate while on the bench might be entitled to ask whatever questions he thought proper, yet he haidly considered t'-e question just put to be a proper on •— it any rate it was not suoh a one as the bench would permit a counsel to ask. Mr. Ormsby appeared befoie the Court not as a seivant of the Crown, but a3 a setiler, and had a right to receive at the hands of the bench unbiassed and unprejudiced justice, without any reference to his relation to the Government. Mi. Konnedy said most truely he had; the reason he asked the question was that he wished to k'vw *hy Mr. Orms!)y, being attached to the survey office, had declined to act on the ord«r from the Surveyor-General to put the plantill in possession of the land in question. The Chuirman remarked that if the right of posiession was claimed for the defendant, then, he supposed that any who choose to squat on Crown Lands were not to be turned off. Mr. Merrinun: If Mr. Ormsby were such a squatter, he would be a wrong doer ab anitio; but on the contraiy he got possession by authority of the Government, and held that possession still ; and more — ho had a legal light to 1 old possession until it were proved th.it be Miould ba ejected. Wa. the bench a.ieea'ile Iliac th* question of possession thould be fully entered into ? The Chairman said that a good Crown grant in favour of the plainiiff was sufficient for the guidance of the Conch, as to the paityin whom tbe right of possession vested. Mr. Merriman then said it would be useless for him to proceed further. Major Gr<jy again asked the phintiff ' been put in possession of the laud by an officer of Government. Th Pl.unriff said that he considered the Surveyor General's letter to Mr. Ormsby, was sufficient authority for him to tnlce possesbion ; and farther, he piesumed tlat the Crown Grant gave him the light of possession. Mr. Merriman >.— The Plaintiff had taken possession before the Crown Grant was issued to him. The Bench, after a short consideration, gave judgment lot* tl« PlamtiflMJamage*, £7 35., und coils.

Permanent link to this item
Hononga pūmau ki tēnei tūemi

https://paperspast.natlib.govt.nz/newspapers/NZ18500216.2.9

Bibliographic details
Ngā taipitopito pukapuka

New Zealander, Volume 5, Issue 401, 16 February 1850, Page 3

Word count
Tapeke kupu
2,698

RESIDENT MAGISTRATE'S COURT. Friday, 15th February, 1850. New Zealander, Volume 5, Issue 401, 16 February 1850, Page 3

RESIDENT MAGISTRATE'S COURT. Friday, 15th February, 1850. New Zealander, Volume 5, Issue 401, 16 February 1850, Page 3

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