SUPREME COURT.

New Zealand Times, Volume XXX, Issue 4488, 7 August 1875, Page 1 (Supplement)

SUPREME COURT.

Wednesday, August <t. (Before his Honor the Chief Justice.) The Court sat at 11 a.m. I’AOIIA TOUOTOHO AND REWI HAOKOKB V. SUTTON. The argument on the motion made the previous day by Mr. Travers was again proceeded with. Mr. Wilson, on behalf of defendant, showed cause why the motion should be dismissed. He drew attention to the peculiar position in which the case stood. He could not dispute by contra authority that which the learned counsel for the plaintiff had adduced in support of the course which had been taken, but it was a most unusual practice, and a practice he ventured to say was inequitable, that one coplaintiff could be dismissed from a suit and the suit still bo prosecuted on behalf of the other. However, as lie could produce no contrary authority, he (Mr. Wilson) must submit to it. Coming to the facts of the case, the learned gentleman held the answer to the fourteenth issue to be sufficient for his purpose, the answer being to the effect that the defendant did not know ho was not rightfully entitled to the laud at the time ho applied tor the certificate. He presumed that in the present state of the record the Court had only to do with llcwi Haokorc without any reference to the first-named plaintiff, the suit having been abandoned so far as ho was concerned. Then as to llcwi. Taking into consideration the answers to other issues, ho (Mr. Wilson) contended that the construction placed by Mr. Travers upon the answer to the 13th issue was unfair. That answer only wont to this extent: the jury found that the deed had been read over, interpreted, and explained, but the only evidence adduced went to show that Kewi first understood it on or about the 11th December, 1873. His Honor: The finding is affirmative, is it not ? Mr. Wilson submitted it was not affirmative. The meaning of the answer was merely that

the jury were satisfied that the deed had been read over, interpreted, and explained; but although it was likely the man knew all the circumstances at the time, yet the evidence did not prove that he did, and from the man himself it was learned that he first understood the deed at the date mentioned, 11th December, 1873. It was not part of his case to show that the man was aware of the circumstances at the date the deed was executed, but it was his duty to consider that both plaintiffs were equally aware of the nature of the deed, having had it explained to them. It was not contended that one plaintiff had less capacity than the other, at any rate nothing in the pleas affirmed that, if such were now contended —if it were desired to prove that imbecility of mind or imperfect reasoning powers disenabled Eewi from understanding the nature of the transaction to which he had been a party, the action must be of a different nature to that now before the Court ; and moreover, there was not a single word on the record about that. On the contrary, plaintiff’s solicitor had treated Bewi as being of the same mental calibre as the other plaintiff. He had been called as a witness, and the learned counsel for the plaintiffs had relied on his evidence at the trial, therefore he could not come to the Court in its equity jurisdiction and say the man was not able to understand the deed.

His Honor thought the finding of the jury was to the effect that Eewi had entered into a treaty to dispose of certain land, but ho executed a deed which he did not understand, and without a knowledge of its contents. Mr. Wilson submitted that it was quite consistent with the finding of the jury to assume they had a belief that the man had been aware of the fact at the time the deed was drawn. But by the answer to the 13th issue they expressed the opinion that whatever knowledge ho might have had before, at any rate there was positive evidence that ho understood it in December, 1873. Besides, there could bo no doubt that if a man signed a deed it must be supposed that he understood its contents. There was no force whatever in the point that Mr. Travers had raised, that these natives must be treated in a different manner to that in which other people were treated—as children or infants. If that were so, the whole of our legislation was very imperfect. His Honor thought Mr. Travers’s contention had been that the condition of the natives was such that they should be treated differently from persons more advanced in civilisation and having the same knowledge of business as Europeans. It was questionable whether they should not be so treated—held at arms length in business transactions. Mr. Travers : The statute says they shall. His Honor did not know that the same remarks would apply to all natives, for doubtless there were some who were in a proper position to deal ■with their property. Mr. Wilson said it was impossible for a person to distinguish between natives capable of conducting their transactions. In this case it was shown that the transaction had been explained to Bewi, and so far as defendant knew, he perfectly understood it. His Honor remarked that certainly that was the effect of some of the findings of the jury. Mr. Wilson said that was exactly what the defendant relied upon. There was nothing to show him that Bewi was a person of weak intellect. His Honor : It was not contended that he had a weak intellect, but that he was not sufficiently advanced in civilisation to understand the transaction. As far as natural intellect went, it might be that his was perfectly good. Mr. Wilson : At any rate Mr. Travel's had not asserted, or had not shown, that any advantage had been taken of Bewi because of his non-ability to appreciate the arrangement. It was not a good argument to say that these natives should be treated as children.

His Honor thought Mr. Travers had not argued that this particular native should have been so treated, but simply mentioned what he conceived to be the proper course, speaking generally of the dealings with them. But here was a person in a position, and desiring, to mortgage certain property, and without getting independent assistance of any land he executes a deed without a knowlede of its contents. The deed had been explained to him certainly, a fact which the defendant was entitled to the full benefit of; but he must also take the other fact into consideration—that plaintiff did not understand it. Mr. Wilson said no doubt his Honor was quite correct, but yet he would submit that the reply upon the 14th issue was alone sufficient for defendant to rely upon. No doubt, the answer to the 13th said plaintiff “was not aware that the said deeds of mortgage and conveyance, or either of them, purported to affect” his title, but he thought that reply was not to be taken as affirmative ; it should rather be read with the other findings, and be taken to mean that the jury found there was no positive evidence that he understood it before that date. However, he submitted that it might be assumed from the evidence of the interpreter that he did understand the arrangement. The interpreter said he had explained the deed to him, and he appeared to understand it, surely that might be admissible evidence of direct proof that he did understand it. Such evidence was accepted frequently. Take the case of a disputed testament. If the testator were attended by a professional man, and the professional man came forward and said “ I read over and explained the document to him, and he understood it,” that would be deemed sufficient evidence that he had understood it.

His Honor did not think that argument a sufficient answer to sa, though he must admit reply 14 was greatly in defendant’s favor.

Mr. Wilson urged that the answer to 5a was quite consistent with a belief on the part of the jury that Rowi did understand the deed, hut they confined themselves to finding on the evidence. There was no positively affirmative finding. In effect it said “ There is no evidence.”

His Honor: You hold they say “We cannot answer.”

Mr. Wilson; Yes. They say; “ There is no evidence brought before us, and we are unable to give an answer.” His Honor ; Either affirmative or negative. Mr. Wilson : Exactly ; and therefore the onus of proving that he did not understand it is thrown upon plaintiff. It is not for me to make good his case. If there is no evidence, the judgment must still be entered for the defendant, because plaintiff has not made out his affirmative case. If he allege fraud—which is very difficult to prove —he must support the allegation thoroughly, as I shall show by a long string of cases which I shall quote presently. After some further discussion, His Honor said he could not shut his eyes to the importance of the finding on the 12th issue, which appeared to bo very carefully drawn.

Mr. Wilson thought it was not at all conclusive against defendant if read with the other findings. Possibly it looked a little -inconsistent, but in reality, if read with the other findings it became a nullity, and in effect the jury refused to find on the issue put before them, and the refusal to find was virtually in favor of defendant. If plaintiffs case was to succeed at all, he must prove fraud. Unless he could prove fraud, ho (Mr. Wilson) submitted that be must be held bound by the deed bo had signed, as laid down in numbers of oases, one which might bo cited being Taylor on Evidence, p. 311. Ho also quoted several other authorities to show that where there was a mistake on one side from negligence or other causes, the negligent party could not upset a solemn deed by assorting years afterwards that lie had not intended to execute the deed ho found to be in force, mentioning amongst others a case in 7, Law lleports, Chancery Appeals, p. 75, part p. 083, and Chill v. Whittaker, Law lleports, 1807, p. 82. On the whole, he submitted that the bill must be dismissed, because plaintiff bad not made out his case of alleged fraud. The defendant had had the deed read over to him and interpreted ; the deed had been properly executed, and the statutory certificate from the interpreter that he believed plaintiff understood the deed had been attached, and that was all the Act rt ((aired, so there was not much force in Mi - . Travers’s observations on that subject.

Mr. Cornford followed on the same side, and argued that nothing had been shown to prove that plaintiff had in any way been taken advantage of, and it was clearly laid down that where the mistake was not mutual the deed duly executed was binding. He cited Bentley v. Mack, 31 Beaven, p. 142 ; Murray v. Parker, 19 Beaven, p. 303 ; Garrard v. Frankel ; Duke of Beaufort v. Neeld and others, 12 Clarke and Finlay, p. 252 ; Earl of Bradford v. Earl of Eumney, 30 Beaven, p. 431 ; Kerr on Fraud, p. 339, 341 ; and other cases. The learned gentleman quoted from the foregoing cases, and on the principles laid down therein urged strongly the disability of Eewi to rely upon his own negligence to obtain relief.

Mr. Travers, in reply, said the position Eewi took up was this : that there had been no preliminary contract, and this fact alone rendered the case quite distinct from all those which had been cited on the opposite side on the subject of mutual mistake. In those cases it would be seen that mistakes had been made in carrying out, by the instrument executed for the purpose of carrying it out, some preliminary contract between the parties ; and in such cases parol evidence was not allowed to be admissible for the purpose of calling into question a document. But here there had been no prior contract whatever between the parties. Moreover, the deed had been prepared under the direction of defendant himself, and under the circumstances it was the duty of defendant to see that the parties actually understood the document, and this course was rendered still more obligatory and imperative by the fact that the other party had not had the benefit of independent legal advice. His Honor reserved his decision. M'KENZIE V. HALL AND HIRST. Mr. Izard moved for a rule nisi calling upon plaintiff to show cause why a nonsuit should not he entered, a new trial granted, or verdict entered for defendant. The case had been tried in April before Mr. Justice Johnston, hut this motiouhad stood over from time to time by orders of the Court and by agreement of the parties, and during that time there had been futile attempts to settle the matter without further litigation. The writ was served on the 6th October, 1574, and the declaration set forth that in 1554 one George Bull, then and still residing in England, was a member of an association commonly called the Wairarapa Small Farmers Association, and became entitled by virtue of his membership to one acre of land in the town of Masterton. On the 18th December, 1855, he by his agent John Hall agreed to sell to plaintiff the said piece of laud for £25. The plaintiff paid the purchase money and was authorised to receive possession of the land, and did so, hut Bull never made the conveyance as promised. Subsequently Eohert Hall, the agent, knowing these facts, sold and conveyed to his sou, John Hall, notwithstanding that the latter had received notice of the circumstances, this piece of land, and the defendant Hirst bought the laud from Hall, also knowing the whole circumstances of the case. The plaintiff had therefore prayed that the original agreement might be carried out, or in case it could be proved that Hirst was unaware of the facts, then that Hall should make it good. The pleas to the declaration were denial of the material allegations contained in the declaration, and that the purchases made by defendants were bona fide purchases for value, and made without notice. The jury foimd for plaintiff, but his Honor the presiding Judge gave defendants leave to move for a nonsuit. Mr. Izard stated that he moved first because there was no evidence that notice was given to Eobert Hall of the plaintiff’s claim ; secondly, there was no evidence that John Hall was authorised by Bull to sell the land; third, that there was no evidence that there had been any contract with Bull, the real owner of the land; fourth, that although plaintiff had been in possession he had not been authorised to give possession. The rule nisi was granted, returnable in a fortnight. The Court at 4.30 adjourned till next day.

Thursday, August 5. THE EDUCATION BOARD V. HARRISON. Argument on demurrer. Mr. Bell in support of demurrer; Messrs. Brandon and Quick contra. This case has been before the Court for throe or four years. George Bees, a resident in the Wanganui district, made a will devising a life interest in his property, real and personal, to his wife and sister, the property on the death of the legatees to be conveyed to any institution established in Wanganui for educational purposes under the authority of the Government of the province. Thomas Harper and defendant Harrison were appointed trustees. The testator died in October, ISSS, the sister in March, 1850, and the widow in October, 1871. In June, 1855, an Ordinance establishing schools throughout the province was passed by the Provincial Council, and Wanganui was declared to be a school district, and a school was erected. In 1871 another Ordinance was passed, which repealed all previous Acts, and enacted that there should be an Education Board for the whole province, and that Act came into operation in July, 1872, after the date of the death of the survivor. The Board of Education established a school in the same schoolhouse as that in which the common school had been established, and carried on the work of education in the same manner as it had been carried on under the previous Act, and therefore believed itself to be the proper body to receive the legacy, and applied for it. The application was resisted, and the Board took legal proceedings, and this demurrer was filed on the declaration of the Board of Education.

Mr. Bell, iu support of the demurrer, remarked in passing that the allegations in the declaration were insufficient, inasmuch as the Board had not alleged they were an institution; and then proceeded to contend that the school existaut before the Act of 1871 had been abolished by the Act, and if the Board of Education wished to claim the legacy, it must show that by devolution it had obtained the right to claim. If at the death of the testator there was an object of the trust, and that object had since ceased to exist, the Board of Education must show itself to be the successor to the rights and privileges of the former school. This, he asserted, they had not shown and could not show, because there was nothing iu the Act to that effect. If a person’s rights were stopped by statute, the person who wished to succeed to those rights must show that his rights were set up by the statute which had deprived the former possessor. It must be shown that there was devolution. If this was not necessary, supposing the abolition of the provinces were decided upon, and the Education Board under the Provincial Government, as a consequence, abolished, the question came : who would then be entitled to the property ? He submitted with confidence that the Board of Education was not entitled, cither by the provisions of the testator’s will, the Act or Ordinance of the Provincial Council, or by any construction of the law. He also raised another point, as to whether the Provincial Council had any power to interfere with the devolution of real property. Mr. Brandon, con fra, said the Board did not pretend to bo the inheritors of the rights of the common school; it claimed the property on its own inherent right. There was no question as to the definiteness or indefiuite'ness of the object. The property was devised upon certain trusts, and the intention of the testator clearly was this : that the property should go to the body for the time being in charge of educational establishments iu the province, so long as there was a school established in Wanganui. The Board of Education had established a school iu Wanganui, and as that school came within the description of the institution mentioned in the will, the Board claimed to be the proper recipients of the money. If there should be any other schools which believed themselves to be entitled, the trustees should come forward and claim ; but no one had done so, and the Board of Education, feeling that they were the only body carrying out the purposes of the testator, claimed the property. Ho submitted that if the object of the testator was ascertained, it was within the power of the Court to carry the object out, cither by directing the property to bo handed over to the Board at once, or asking for a scheme to ho

propounded first. The learned counsel cited the following cases in the course of his argument ;—De Costa v. De Pas, Ambl. 228; Attorney - General v. Clarke, Ambl. 422 ; Walsh V. Gladstone, 1 Phillips 290; Eeeve v. Attorney-General, 3 Haro 191; Society for the Propagation of the Gospel v. AttorneyGeneral, 3 Eussell, Law Eep. 142 ; AttorneyGeneral v. Earl of Lonsdale, 1 Symons 105 Attorney-General v. Bowen, 3 Vesey- 714 ; Fisk v. Attorney-General, 4 Law eq. 521 ; in re McGuire, 9 Law Eep. eq. 632 p Hash v. Morley, 5 Beaven 177 ; Hayter v. Trego, 5 Eussell 113 ; and another case, 7 Vesey 271 ; Walter v. Childs, Ambl 524. Air Bell submitted that none of the casescited touched the real issue. If a person came' to Court with a bill for administration, he must, show he was entitled ; if he was not entitled,he must come with the relation to the suit of the Attorney-General or some person who was entitled. Plaintiff had not set up a right by devolution, and there was nothing to show that other persons might not come in and make a similar claim. Judgment reserved.