SUPREME COURT.

Poverty Bay Standard, Volume XI, Issue 1321, 26 June 1883, Page 2

SUPREME COURT.

Saturday, Junk 23. (Before Hid Honor Sir James Prendergast, Chief Justice.) GEORGE CImRKE V. THOMAS HENRY DICKSON AND W. ADAIR. Mr Finn appeared for the plaintiff, and Mi- Brassey for defendants. Mr Finn in opening the case said there were twenty one pleas set down in the action, which he detailed. The ground of action lay in the allegation that the defendant had obtained possession of a lease of the Settlers’ Hotel by fraudulent means, in that plaintiff was induced to sign over his interest whilst in a state of intoxication, and that no part of the consideration money was paid, nor was the plaintiff indebted to the defendants in the sum of £2OO. Mr Dickson required all the allegations registered. Mr Adair pleaded that plaintiff did not make the alleged agreement, that he was so drunk as to be unable to comprehend such an agreement. Mr Dickson put in a counter claim, in which he said by two undated instruments he agreed to pay plaintiff an annuity of £B7 10s, and that on the 31st December, 1879, plaintiff released him from such annuity by an agreement as by deed dated 19th December.

His Honor said he could not understand why Mr Adair and Mr Dickson should be joined iu the action.

Mr Finn said be would abandon the action against Mr Adair, and proceed against Mr Dickson only—for the £3OO claimed, and the annuity for four years only His Honor said ho would assess the costs re withdrawal against Adair after the action. Mr Brassey objected to the plaintiff claiming the consideration money, as the deed had stated that he had already received the consideration. His Honor upheld the objection. The only count left now was the claim for an annuity. The defendant’s solicitor produced a bond and deed of conveyance, selling out the annuity agreed to be paid, and also agreement to release. His Honor ruled as the agreement to release was not under seal, it could not be admitted as a release. It was decided to go into Mr Dickson’s counter claim first. J. W. Nolan deposed i I remember acting as Mr Dickson’s solicitor, and saw Clark in reference to this transaction. 1 drew up a deed for Mr Dickson, which was signed by Clark in my presence, and executed on the : 19th December, 1870. It was a stirI render of an annuity, (Deed of surrender read and put in.) I exi plained, the surrender, and he exI hibited anxiety that it should be carried out. Plaintiff was sober when it was executed. Clarke was in a fit state when he signed the release. To Mr Finn—-All the cheques were not paid on account of the annuity. I paid two dishonord promissory notes. ; I'he cheque dated the Bth of January, | 1879, was given on account of surj render. I have paid all debts Clark I owed. Cheque for £33 he did not ' think was paid on account of the agreement. i To Mr Finn: A cheque was given ; to Clarke. 1 he memorandum of trans- . ferof the property is dated Dec 18th, I the day before the agreement was executed. Thomas James Dickson deposed: I purchased the Settlers’ Hotel from G. Clarke for £2OO, subject to an annuity of £B7 10s. I know agreement. produced of 2nd January, 1879, between G. Clarke and myself. I paid the annuity in advance. He drew as against it. The cheques proi duced are signed by me, drawn in ' favor of Clarke. The amounts of the I cheques are charged to me, in all £152 I Is 3d. Those monies were paid as ; against the annuities. I have paid to [ Clarke over £4O besides that amount ' I have paid in accounts £l4B to Mr Adair. After 1 signed the agreement to transfer I purchased the annuities. I was present in Mr Hogan’s office when the release to the annuity was signed by Clarke. Rogan was Clarke’s solicitor. In the first instance Clarke brought Mr Dufaur to me, wanting to sell the annuity, so that he could get away. 1 advanced the money to Clarke to go to Napier, telling hitn to stay there and appoint an agent to collect his annuities' He returned from Napier, and I paid a debt which he had contracted while away. I advanced him money to build himself a house. Clarke frequently asked me to sell the annuity. Clarke was

drunk when he camo to me. This was in the end of 1879. At the time of signing the surrender 1 paid him a cheque, and previously I nad given him £6O. As a rule I would pay those people that Clarke brought to the hotel out of the cash-box. A cheque for £59 was paid in Mr Rogan’s office on account of the surrender of annuity. In 1879; Clarke never paid me any money for goods supplied. Ou 7th July, 1879, Clarke never paid me £4O. Receipt produced is mine. The receipt would be as against his annuity. <>n 13th November, 1879, Clarke did not pay me all accounts in full. Receipt pro* duced is mine, and signed by mo. Receipt showed that all accounts against Clarke were settled in full. Ciarke, in consideration of that clear receipt, was to give me a life interest in the property, but no money changed hands. 1 remember Clarke coming to me, and offering me back the amount I paid for the release of the annuity. Some two of three months after Clarke and two others came to me, and said I had bought the annuity when Clarke was drunk.

J. Priestley—l know this receipt. One morning about the time in question Clarke asked me for money, and offered to sell me his interest in the Settlers’ Hotel. I told him I had no money, and advised him to go to Mr Dickson. He went to Dickson, and on my mentioning it to him, he said Clark was always bothering him about this matter. I told Dickson he might just as well buy as a matter of business. I then told Clarke if he wanted to sell to put it down in writing. He expressed his satisfaction. He agreed to go to Dufaur to settle the matter. I did not go with him. By Mr Finn—We were all perfectly sober. Clarke said he should be better off if he sold his annuity and got some money, as he could then go away. lam sure he said annuity. F. O. Skeet—l was clerk to Mr Rogan. I do not remember the Sigriiiig of this deed. Clarke was always sober when he eame to the office. F. Dufaur—ln 1870 I was clerk to Mr Rogan. I remember that Mr Rogan was acting for both Clarke and Dickson. Clarke was sober when he signed the deed. He was also sober when he signed the other one, dated December, 1879. It was signed in my presence. The erasure was initialled by Clarke. He was sober then. He wished much to sell the annuity, and often begged Mr Dickson to buy. After he sold it he signed, the transfer. The annuity of £B7 10s was a large one. £59 would not be a proper consideration lor such a large annuity. W e charged Dickson the costs. D. Murray—ln July, 1879, I was in the employ of Mr Dickson. His books were burnt in the fire. I remember that; after the annuity was purchased there was a debt due to Mr Dickson of over £lOO Mr Finn here expressed his surprise at the evidence given, .is it was entirely contrary to the allegations mndo in his instructions Ho thought it would not be proper respect to the court if he did not stop tne present proceedings. He had some twenty witnesses to call, who would swear that the plaintiff was in a state of intoxication. He would accept a nonsuit. His Honor nonsuited the plaintiff on the whole action, costs £3O. WI JPKBE V. CHAMUEBS; Mr. Rees appeared for plaintiff and Mr. Brassey tor defendant. This was a case arising out of an alleged trespass by defendant, who, it was said, had drained a large lake in the Repangaere Block, so as to destroy the fishing which the Maoris had enjoyed from time immemorial. The defence, as stated by Mr. Brassey, was to the effect that plaintiff was not entitled to recover as he had, prior to the date of action, sold his interest to J. R. and J. W. Johnson aud Major Westrup. The case has been in progress upwards of five years. Mr. Rees, after stating his case, called G. B. Worgan; he was a licensed interpreter and surveyor, in 1870. I attested this deed (a deed purporting to be an instrung of sale from Wi Pere and others of the land in question, prior to date of action) dated July 19th, 1870, together with A. F. Hardy. I see Wi Pere’s signature here. At least his name is signed here by Karaitiana for him. I cannot say whose writing the deed is in. I attached my name as an attesting witness. I was acting on the faith of a native meeting which had resolved to allow Karaitiana to represent them in this matter. I remember some of the signees being there. I made the necessary statutory declaration which is attached to this deed, and which it dated April 15, 1871. I have seen is several times since. I made the declaration shortly after the execution of the deed. I witnessed it on the part of the buyers snd sellers. The actual buyer, at least the man who paid the money, —was Captain Reed. The brothers, Johnson and Major Westrup, were the nominal buyers. At the time this deed was drawn lawyers were fortunately scarce in the place. I have not the slightest doubt but what the signature of Wi Pore is by Karaitiana. The Forcmrn of the Jury here asked that the jury might examine the deed, as some or them were conversant with the writings of the parties named. Examination continued—Karaitiana and myself were acting as represen-

(atives of Natives and .Europeans respectively. The consideration mentioned in this deed is £5,000, bu t only £2,500 was supposed to have been paid, as the Natives were indebted in various sums to Captain Reed previous to this. There were 75 nativo grantees of thia block, which consisted of about 7,000 acres. About 54 of the grantees had received various sums of money from Captain Reed. The remaining 22 objected to the sale of the block. These 22 were the largest «, owners of the land. It was agreed that Karaitiana and myself should act for both. It was agreed that the block should be convcved to the buyers, but that the deed should not "have eSect until, the half of the block was re-conveyed to the 22 objectors. The land was to be halved. If this arrange meht had not been made Karaitiana Would not have negotiated. The whole arrangement was aggreed to by the Johnson Bros., Reed, and Westrup. After this arrangement had been made the land was surveyed by myself. This is the plan of the block (produced). The arrangement was that the re-conveyance should be .made simultaneously with the lease of the block to Johnson Bros. This deed was executed in good faith according to the arrangements I have stated. I know the lake well as the Usual eel fishing ground. There are other ones besides that one. The said lake is on the half which was to be re-conveyed to the non-sellers. « Cross-examined by Mr. Brassey.—l rode out the other day and saw that the swamp had been drained. I saw a drain cut. I cannot say whether any names have been added to the land since its execution. All signatures to the deed were to be non-effective without the re-conveyance of the half as stipulated. 1 have conversed wiih Wi Pere frequently about this matter * This is the signature of Wi Pere as represented in the person of Karaiti ana and Tuckamara. Mr. A. F. Hardy—Cross-examined by Mr. Brassey : —I understand the Maori language pretty well. I was in the employment of Captain Reed in 1870. I remember this deed and recognise the signature as I have often seen Wi Pere sign his name, I have not the slightest doubt as to this being his signature. I saw Wi Pere sign this deed. By Mr Rees: I recollect seeing Wi Pere sign this deed. It was signed k in the Albion Hotel, in Gisborne. It K is one of the last signatures obtained to the deed. I and Worgan were present, Karaitiana was present, and a woman who is dead was present. I believe Kani was present. 1 think was there, and signed the deed the same time I believe I saw sign it as I have attested the deed. Karaitiana had power of attorney to sign for a member, such as infants, &c., who had interest in the block. Worgan wrote the attestation and I signed it. It was a common thing in those days for one Maori who could write to sign for several others. By His Honor.—l first saw the power of attorney at the time the deed was signed. Worgan had it in his possession. His Honor remarked that it was a common thing to have deeds executed in this manner. The j Government obtained theirs in the same manner. W. K. Chambers —Cross-examined by Mr. Brassey i —l am the defendant in this action. 1 know Wi Pere s signature. This is his signature. 1 say certainly this is his signature. I haye a clear remembrance of Wi Pere being asked, about three years ago, in an action, if the signature in this deed was his, and he swore that it was. I have no doubt whatever about it. By Mr. Rees.—After a considerable deal of equivocation he acknowledged it to be his. 1 his was during a easitried some time ago which was for damages. I claim the whole of the block. Since this action was commenced the remainder of the block has been transferred in trust to my wife. I do not know that only one-half of the block belonged to my father. You are trying to trip me up. w His Honor to Mr. Rees:—“You are wasting the time of the Court in a most shameful—a mostj disgraceful manner. The way you are conducting your case is most ridiculous, most absurd.” Mr. Rees sat down. Wi Pere : I am the plaintiff in this case. This is my signature (to a letter). I know my own writing when I see it. This resembles my writing (signature to a deed). I should like to see the contents so as to verify it. (Witness was here allowed to read the deed). These are my letters. It looks like my letters. I say they are my letters. Adjourned till Monday. On the re-assembling of the Court on Monday morning the examination of Wi Pere was continued. The disputed deed was again put into plaintiff's hands. This signature resembles my writing. My signature has been often imitated and forged. That is not my signature. I was not in Gisborne when this deed was executed. I was one of the strongest objectors to the sale of the land. There were some 22 or 23 of us who strongly objected to the sale. I never wrote anything on this document. 1 was not in the hotel when Worgan and Hardy and a number of Natives were there. I never signed the deed. The first time I knew that my name was attached to this deed was when Mr. Chambers sued for damages against us natives for filling in the drain he had cut. He obtained a verdict in his favor. Mr Chambers

then said my name was attached to the deed. I remember the deed being put into my hand on that occasion in tiie R.M. Court. I thought it was a sub-division deed when 1 first saw it. This is a fraudulent document. I mortgaged the land to Mr. Chambers for the sum of £lOO. At the suggestion of the Court, the case was adjourned until 2 o’clock with a view to a settlement. At the adjournment of the Court on Monday His Honor addressing Mr. Rees said •, —“I had occasion on Saturday to make some remarks to you. Mr. Rees, as to the mode in which you were conducting your case. I wish to say that, having had all my arrangements spoilt and my departure delayed—and—well, that must be my excuse.”