WHITE V. M'KELLAR.

Southland Times, Issue 1819, 18 November 1873, Page 3

WHITE V. M'KELLAR.

The above case, the hearing of which was commenced in the Supreme Court, Dune din, on the 28th October last, was brought to a conclusion on the 12th irist The action wns brought to recover £30,000 damages, and there were 64 i>su< s submitted to the jury. The following extract from the summing-up of Mr Justice Chapman will enable our r< aders to form an opinion with respect to the merits of the case : — His Honcr said the history of the case was comparatively short. This land appeared to have beeu originally discovered, when very little was known of the back country, by David WKellar. He intended to apply for the land at first, and in order to that application he prepared a little sketch plan. He did not, however, apply. Mr Hamilton (one of the Hamilton Brothers) went to this part of the country with the view of obtaining land. M'Kellareitber recommended him to apply for this land, or at a'l events gave up his intention of applying, and banded over his sketch plan to Hamilton. The latter accordingly applied for 40,000 acres, attaching to his application the sketch plan alluded to. That applicat'on was granted, and it comprised the whjle country which, up to the adjustment of the boundaries in 1864, could be reason ably comprised within the application. But it would be observed that at that time nothing was known about boundaries None were settled at that time, and therefore the settlement of boundaries had to be determined by future action of the Lands Board. That being the state of things, Messrs Hamilton entered into possession, and continued in possession for some time. They afterwards sold a portion of their application to one Owen, who again sold that portion to Messrs White, and that was tiie foundation of their light. The Hatniltons did not sell the whole of the land they bought. They excluded a portion — which appeared to have been only estimated at the time at about a few thousand acres — at the southern extremity of the claim. With that contract between the Hamiltons and Oweu in the first instance, transferred to the Whites in the second instance, David M'Kellar had nothing whatever to do. Therefore whatever rights the Hainiltons had, came eventually into the possession of the Whites only, without any question of joh.t own rship. Hamilton still held the license; the license was in his name. He, of course, holding tie license for that and more land, would be considered in equity the holder of that license partly for himself — partly for securing his own possession of the southern portion of the run — and partly in trust for the Messrs White. Afterwards he sold the remaining portion of what was called run No. 324 to one of the M'Kellars. That was also a distinct and separate sale by the Hamiltons to the M'Keilars for the remaining portion of the run — that was the southern portion of the run not previously sold to the Whites. The Whites had" no connection with that sale; the Whites on the one hand, and the M'Keilars on the other, were severally, and separately, and distinctly possessed of those portions of the run, as much as if the one were at Wakatip and the other at Timaru. That

was the state of affairs previously to what took place touching the transfer of the license. In 1862, he thought it was, the parties went down to the Land Office to carry out those contracts — in order to have tiiis license of Uamilton's eplifc in two, and then transferred, M'KeUar getting a license for hU portion, and the "Whites a license for their portion. But owing to certain circumstances — owing to the coercion of the Land Office — the license was transferred jointly to the M'Kellars and to the Whites. Now primd facie, looking at that transfer alone, any lawyer would say, if asked what the relations of the parties were towards each, other, that this license rendered them joint-owners. Primd facie the license made them joint-owners. So it was quite possible, as M'Kellar said, when he went to Judge Bichtnoud to ask whether according to the license the M'Kellars and the Whites were interested jointly, that he (Judge Kichmond) would answer " Certainly." But they might fairly infer that the whole circumstances were not explained to him. So far as the instrument was concerned, that would be a correct answer. This state of affairs subsisted for two years. Mr White stated that the Hamiltons always respected the boundaries according to the sale contract between them ; and that the M'Kellars always respected the boundary pointed out by David M'Kellar himself until after the settlement of boundaries, which took place in June, 1864. It then appeared that the M'Kellars reverted to the strict terms of the joint transfer, and set up a claim to have a joint right, Gillies having parted with whatever interest he might have had in the southern portion of the run to Russell. The M'Kellars began to set up a joint claim to the

whole of 'Run 324 He must tell them as a point of law that that transfer of the license was no more conclusive than if the license had remained until this day in the hands of Hamilton. It was primd facie evidence, it was true — but it was capable of being explained ; and if one of the parties to the transfer at tempted to s*.?t up a claim inconsistent with the true relations of the parties — the true contracts between the parties — both equity and law would admit erroneous evidence to show what the r^al contracts between the parties were. That was undoubted law. JSeeing that the evidence in this case, and the evidence of the contracts themselves, wou'd make a material alteration in tiie whole aspect of the case, it was rmt to lie wondered at that Mr Smith, on behalf of his clients, resiste 1 that evid iuv alto gether, so as to leave the transfer s'muling before the jury as the only nake ! fact. But the jury would have to take into consideration the whole of the circumstances. The transfers were not the true contracts between the parties ; in fact they were not a contract at all. They were put iv that form by the coercion of a superior power — it niijrot be the rule of the Land Office, or it might be merely the arbitrary will o. Mr Cutten at the time ; the distinction was of no importance. It was the form prescribed by the Land Office, and had no reference whatever to what were the contracts, under that transfer. There were separate contracts between the two pairs of parties — the Hainiltons and Whites on the one side, and the Hamiltons and M'Kellars on the other. Even if this transfer had been the contract, it would have been capable of beinpr con tradicred by the evidence ; but lie said that it was not the contract between the parties, but an incident of the contract. So far as he was able to discover up to this time, and long afterwards, there was not a particle whatever to show there was any colorable joint possession. As to the trespass, it became necessary for them to consider of what land the plaintiffs were possessed. They must exclude all consideration of the Bald Hill country for the. present purpose. Tiie real question was : Were the White a in lawful possession of the land on which the alleged trespass took place ? Having determined the boundaries of the Whites' land they would come to the question of trespass. He mioht mention here that even on the hypothesis that the Whites and M'Keilars were jointly possessed of this run 324 — that they were joint owneis i-.s tenants iv common — one joint occupier had no right totally to dispossess another joiut occupier from any part of the run. As to the alleged driving of'the sheep, the jury would have to determine whether there was such a driving aa the Whites described. When there was such a contradiction of evidence on each side as in tiie present case, the rule was to leave the question to the jury, with the caution that they were not merely to count the witnesses, but also to weigh the testimony and the probabilities. After an absence of three hours the jury returned into Court, when the Foreman stated that they found the total damages under each of the counts to be £18,905 4s 7d— to be reduced to £8905 5* 7di fa lease of run 324 is granted to White Brothers before the 31st day of January, 1574. less £193 10s 6d, assessment paid by defendants.