SUPREME COURT, AUCKLAND.

Poverty Bay Standard, Volume III, Issue 242, 27 January 1875, Page 2

SUPREME COURT, AUCKLAND.

ALEXANDER DALZIELL V. GEO. EDWARD BEAD. (From the Evening Star.) Ms- Hesketh and Mr. McCormick for plaintiff, and Mr. Whitaker for defendant. The parties in this action resided in Poverty Bay, and the damages were laid at £5,000. Mr. Hesketh explained in his opening remarks that although plaintiff had done everything in his power in compliance with the terms of the contract in respect to the purchase of certain land at Gisborne, the defendant had entirely failed to make over to plaintiff a proper title in fee simple. The plaintiff had gone to great expense in cultivating the said land, and had erected an hotel thereon, which cost a sum of £l,BOO. Defendant, however, had not only refused a title, but had insulted plaintiff into the bargain, telling him to go to the law, for that was what it would end in. There had also been an attempt at arbitration, but which had also failed. There were also many other improvements made upon the land, such as draining, fencing, andplanting an orchard. Mr. Hesketh then went into the particulars of the plaintiff’s losses, to shew that the claim in this action was not an unreasonable one, as witnesses would shew.

Mr. Whitaker said that when the Native Land Court should sit, which would be within the next six«months, the defendant would give the plaintiff a right and title to the property, and he was willing to undertake to pay such reasonable damages as the jury shall assess. They would guarantee a title within the next six months ; the fault was not that of Captain Read, but of the Government.

Mr. McCormick said that plaintiff was afraid that the matter had’ now gone too far; that there was a great deal of personal feeling in the district, which seemed like a desire to drive him out of the district. Before calling witnesses counsel retired with the view of settling the matter without going on with the case ; after which Mr. McCormick stated to the Court that plaintiff could not accept the terms offered by defendant, and that the cause must therefore proceed. The plaintiff, Mr. Alexander Dalziell, was then examined at great length, and deposed to the terms of the agreement, and in good faith he had put up a stockyard, which cost £lOO, and a public-house which cost with interest, £2,300 ; and he estimated loss of business for two years, £1,600, through defendant not fulfilling his part of the agreement. The value of the land in its rude state when he took to the business, was £5 an acre; and owing to improvements which he had made, it was now worth £25 per acre. Andrew Ross, James Lawrence, and William Parker, were also examined as to the real value of the land at the present time. Captain G. E. Read was examined simply as to several letters which has passed between his solicitor, Mr. Wilson, and plaintiff, touching the immediate cause of the action.

Captain Read, defendant, was recalled, and cross-examined by Mr. McCormick. He got £4O a year for a piece of land adjoining the block in dispute. The land about varied in price, according to its quality. He was not aware that an offer had been made through Mr. Cuff for the purchase of the block for £l,BOO. He had not heard of it. After some further questions had been asked, Mr. Whitaker briefly addressed the jury, and proceeded to call witnesses for the defence.

William Henry Tucker, licensed interpreter of Gisborne, knew the parties in this action. He remembered plaintiff calling at his office respecting the landin dispute. Mr. Read then assured Dalziell that if they came to terms the title should be secured to him in the presence of natives. He interpreted the terms to the natives, but could not now remember the exact words that w’ere then used. To Mr. Hesketh: He was in the employ of Mr. Reid both as an interpreter and agent in native affairs. He procured the signatures of the native grantees, nineteen out of the twenty, all except that of Wi Haroriga, who did not sign the agreement relating to the disposal of the sixty acres, wdiich was a part of 730 acres. He could not say that he could have got Wi Haronga’s signature for £2OO. He did not tempt him. The Court of Commissioners sat in June, 1871. He had frequently made application to the Native Lands Court for a subdivision of the block, but the Court objected to the forms of application, which he believed were not properly worded. This being the case Mr. Whi aker addressed the jury for the defence, and urged that had it not been for Mr. Read’s inability to fulfil his part of the contract in consequence of one of the natives refusing to sign, and failing to get a subdivision of the block, a title woukl have

been furnished. Captain Read had done all he could on his part; and plaintiff who still holds the property, had laid his damages at £5000; but they, the jury, would not be expected to assess any such amount, but only such as was fair and reasonable under the circumstances. His Honor said that he should direct the jury to find only upon the value of the buildings and lands, taking into account the capital that had been laid out upon the premises, but not upon the presumed profits of the business, which were too remote for consideration.

Mr. MacCormick for plaintiff, argued that Dalziell went into possession of the land upon the clear understanding that he was to begin to improve the land at once, and build upon it in the full belief that the title would be duly made. He said that the obtainment of titles in this colony was a very simple matter,as there was no going over a long series of years as in England, where sometimes parties had to trace their titles back through generations to the reign of Richard the Second. Mr. MacCormick then quoted from several similar cases where plaintiff had succeeded in recovering for the increased value of the land- The learned counsel then enumerated the different improvements, fencing, building, trees, and garden, and as several witnesses had agreed that the land, which was then only worth £5 an acre, was now worth £25 an acre, he trusted that the jury would allow fair compensation to Mr. Dalziell, and thus do justice to his client. He thought that they could not reasonably award less damages than £2OOO to which his client was fully entitled. His Honor then summed up, and said they would look particularly at the first issue, upon which the matter mainly rested. In such cases as the present, the difficulty was the intrusion of one native claimant, and unless all native owners were got rid of, there would always be difficulties in connection with the purchase of native lands. The plaintiff was also entitled to some damages for the intrusion of the native upon the land, and interfering with plaintiff in the quiet possession of the same, also for a breach of the contract on the part of defendant, and they would therefore, assess such damages as in their judgment with the facts before them, they should consider was fair and just. The jury then retired to consider the evidence, and returned at half-past one o'clock with a verdict for plaintiff, damages £lBOO, and £lO for trespass.