SUPREME COURT.

Taranaki Daily News, Volume LII, Issue 49, 23 March 1909, Page 4

SUPREME COURT.

SEW PLYMOUTH .MONDAY, MAKCH ii. (Before his Honor Mr Justice Chapman) The sessions of the .supreme Court at New Plymouth were continued at ni'ae o'clock yesterday morning. IX DIVORCE. Thomas James; Hamilton Wallace applied for a dissolution of his marriage with Margaret Jane Wallace, on the ground of desertion. Mr. Townsend appeared for the petitioner. Respondent did not appear, and was unrepresented. The petitioner deposed .that In was an engine-driver, and that he was mar- ; ried to the respondent in 1880 at Kusscll's Flat, Marlborough. For four or five years they lived at Ashburton, and then moved to Taranaki, living in several places in the province. The last place where tlhey had lived together was at Stratford. While he was working at Mokau in 11)02, he received a letter stating that his wife had left him. She had then been gone about a month. At thait time one ot petitioner's daughters was married, two' boys were working, and "shifting for themselves," and about six children were at home with their mother. He had not seen his wiie since. In the first six months after she left, petitioner wrote three letters, addressed and posted them, to respondent at- the place where he heard she had gone to, but he received no replies. She had several children with her, some of whom he believed were working. Questioned by his-Honor, the petitioner said'that aibout three years after the marriage, during a'.•'little tiff," his wife told him that she had only married Jiim to please tier mother, and that if the man she loved came along she would go with Mm at once. His Honor remarked that it was a curious thing that-a -woman should desert hc r husband after living with him for many years, ami bearing a number of children. Personal service of the writ, however, had been effected upon the respondent. In the circumstances an order for a decree nisi would be granted, to be made absolute in three months.

Hugh Fraser Mac Donald v. Anuie Maria Mac Donald and Charles Raymond Christie (co-respondent). .Motion for a, decree absolute, and tur custody of the children. Mr. H. J. 11. Thomson for petitioner. Order made, there being no appearance of respondent or co-re-spondent. Albert William Bould (Mr. Quilliain) v. Alice Ellen Bould (Mr. C, H. Weston) and the co-respondent ((ierald McAlahon), petition for the custody of children. 'Mr. Weston said he was instructed to consent to an order being made, provided that the respondent should ihavc access to tlhe children at intervals of one mouth. Mr. Quilliain agreed to this course, and his Honor made an order accordingly.

CIVIL BUSINESS. CLAM FOR DAMAftES. Robert James Matthews, of Waitar.-i, sued" Margaret Box, of .Mokau. for damages for alleged trespass. Mr. Hutclicn appeared for the plaintiff, and Mr. Skcr--1 0 rett, with him Mr. Quilliam, f« r the defence. t The plaintiff, iu his statement of claim, said that he was on sth September, 1008, lawfully possessed of town allotments, numbered 8. 9, 10, 11 and 12. 01 block 100, township of Waitan West: , aad tliat on stli September. 1008, while the plaintiff was in possession of the land, the defendant broke and entered the said parcel of land and dug up the soil thereof. The plaintiff claimed £lO damages for the wrongs complained of; an injunction restraining the defendant from any repetition of the acts complained of, or from in any way interfering with the plaintiff's use and enjoyment of the land; and such further relief as the Courfconsidered the plaintiff -entitled {b. The defendant, Margaret Box, in filing a defence, denied tha't the plaintiff was on the 6th September, 1908, or on any other date, lawfully possessed of the land, and denied that the said land or any part thereof was or it* the land of the plaintiff; or that on that date the r - plaintiff wasi in possession of the land or any part of it,„thc land at that time lieing tlie .freehold of the defendant; that prior to sth September, 1908, she i . was in possession of the land by her :,. tenant or licensee under Lot (Hoskins). ami the plaintiff entered into posses sion of the land with the knowledge that Hoskins was in possession of the land as the tenant and licensee of the defendant, for at least 20 years prior to the commencement of the'alleged title (if any) of the plaintiff, or prior to sth September, 1908, the defendant had continually 'been in .possession of the laud, and had therefore acquired T>y fone of the statute a. valid possessory title as against Hori Kokaka, the original grantor from the Crown, and all persons claiming from or under him. Mr. Hutehen opened at some length, supporting the claim. He called - 1 Harry Dunstan Matthews, son of the plaintiff, who deposed as to the purchase of tlie land by his father, and of his occupation of it, repairing the femes, and cropping. He had continue! in undisturbed possession since that lime, except for the brief period in which his cow had been turned out, pret -iinubly by Mrs. Box. To Mr. Skerrett: He would swear that his father liad not. prior to the pun base of the land, discussed with !• tin Mrs. Box's ownership of the laud. iMr. Skerrett traced the history <>f the dealings in the section, ami quoted and cited parallel eases. On the 25th .lunc, 1872, a Crown grant, of the sections wag issued to Hori Kokaka, a Maori' the ante-vesting date in tlie , giant being the Kith of Septrinlx-r. IBW On 25th February, 1870, he e.v----i uted a conveyance of the land to one J-jcednm. The land was mortgaged by hcedom. After various transactions a Mr. Tutty, who had become the morl gigtp, sold the land through the Regi»i trai of the Supreme Court and been me the purchaser on 25th April, 1888. On 3rd December, 1892, Mr. Tutty conveyed the land to Mrs. Box, and the conveyance was duly registered. . Margaret Box, living at Mokau, a widow, said that in December. 1892, she went to Wangauui. and saw \\:. Tutty and arranged to purchase the wrtion. aliout which this action was brought. Her husband had worked for t Mr Tutty, and the latter sold the sections to her for £SO, or £lO under | the Government valuation.. At that time witness was living at Wnitnra. The purchase was completed by her snliutor, Mr. J. B. Roy, who had money of hers in Juuul. She left Waitara two wars afterwards, and went to live at Mokau. At the time she bought the stations they were all fenced. They r were at that time occupied by Mr. lioskins Hoskins ramie to see her husband and- herseli about the matter, ami told _ them he had been occupying the sections ( for some years from Mr. Tutty. She told Hoskins he could still continue t.i ti»' the sections, paying the rates flnl taxes as a rent. He 'was not to crop the land, and leave the fences when lie ! had finished with the. land. That was ' aliout a month, she thought, after her ' purchase of the sections. She went to ' Mokau in January. 1904, and up to that time Hoskins continued to occupy the sections. At intervals she cajne to . AVaitara, and found him still in occupation. -The notices for i-ates iweie coining to her, and she paid the rales. _ Mie »;rote to Hoskins. but received no '. -~— -Answer. She then asked Mi. Spunlle. jg of Waitara, to have the use of the sec- j f tion?. on the same terms, on account of Hoskins not having replied. That I * was in April, 1907. Spurdk agreed. In 1907, she paid £1 of thelites due. and left Spurdle. to pay the remaining ' 18s It was "a long time prior to .Inly, [ 1907, since she had been in Waitara, "'

[[£.. and she had not in the meantime heard of anyone claiming the sections. ■ Tlien. gg>'V about 18' months ago. she heard Jlntffj/" thews claimed the sections. Matthew's p: knew well that «lie owned them. Some |j&.six years.tigo she was building at Moand •wanted money temporarily,

peiiiihijf her making jicniianont linaiicial arrangements. Approached lier brother, and tlicy went to tin- Bank of -New Zealand together. 'Mr. Matthews Ijt'iny t-lii' manager. The latter said to her, "Vim -litmhl have consulted me betore ymi ciiiiiini'iiei'il In Imilil. Im-anse 1 am vour banker. I would have helped vou in :l n> xvii,.' I could. I would advise you ti, ,-e.l your sections, as they are of liitlc value. 'l'hu sections you have on the oilier .-id,- ..1 the river is a guild building -iie. lull these are not." He spoke of ihe fcllmuiigery elose by depreeiinin- tli.-i,- value. Mattliewsknew all hi-r luisincs,. he having permitted her a-,id reques;eil her to consult him .about busmen ulliiirs after the death of her husband. . .»■ never transferred, possession of the section, except to Ho skins anil Spurdle. James Purdie, of Waitara, a saddler, said he had been in Waitaru fo-r over 27 years, and knew the sections, which he said were fenced first at about that time.

To Mr. Hutehen; Uoskins was in possession of the sections when he first went to Waitara, and lived on the same block.

Thomas Walsh, boardiughouse-kceper in New Plymouth, deposed tliut in ISSb lie went to Waitara to live, and lie lived there. He left there at the enu uif .1883. The sections were Aineeil then. Tu Mr. Hutchen: Hoskins lived alongside. In 1883 witness bought, sections near the railway station at .C3O n sec tion. The laud in dispute was perhup> more than, hull a mile from the centre of the town. Peter Arthur Hoskins, eannenter, and a resident of Waitara since the date of the completion of the railway to that town, said that he bought sections 1 and li, block 100, from Thos. Elliot, •pretty well 30 years,.ago, and built a house on the laud about 18 mouths atterward*. He fenced in the live sections adjoining and used them, by arrangement witli Mr. Wm. Tutty. He had to fence the land, and pay the rates and taxes". When Mis. Dox got it the arrangement was similar, and the with ness was to leave the land fenced. About two years ago he had sold the house and moved to Auckland, intending to live there, but when his wife died he returned to Waitara. Upon leaving Waitara lie let "another fellow" run his cows on the laud, and he believed Matthews turned the animals out. To Mr. Hutcheii: He gave JLI.S eaeli for the two quarter-acres, and' £lO for the deed. It was a fair value, but £i a section would not be a. fair price. He didn't remember taking the land irom Hori Kokako, or that he had paid rent to him. He recognised his signature on a document produced by counsel, but hedidu't know what wan in' the document. He remembered signing it. but he didn't know what was in it. Hori Kokako had claimed the sections as his own, and witness went to see Mr. Roy if that was so. Mr. Roy said: "Nonsense, I've- transferred them twice." ~lf> his Honor: He never paid rent to Hori Kokako, "but I lent him many a shilling. He always paid me back.'' To Mr. Hutchen: Wm. Tutty kepi the Bridge Hotel. He had never told a man named Todd, or l'urdie, or Ferguson, pr anyone else, that he paid vent to Kokako for the sections. He hail j no knowledge at the time that lis son was ■negotiating with the native for th'e purchase of the sections. To Mr. Skerrett: Kokako said lie was going to build a house on the land, and that caused him to interview Mr. Hoy. Michael MacMahon, of lnglewood, a fanner, and a brother of the defendant, remembered going with her to see the plaintiff about October jtU. 1003. lie corroliorated Mils. Box's evidence of 1 Matthew*,' advice to her to sell "those sections," which he described as being of little value on account of the facts that they were on the outskirts of the town and too close to a fellniongcry to make them desirable building sites. He also told her that by the payment ot interest the sections were eating their value away. Mrs. Box said eh'' had been told tliait they .were -worth a certain amount, but Matthews answered that if they were placed on the market they wouldn't fetch, anything like that. 'He strongly advised her to sell I for what they iwould fetch, to make { her security better in an impending! transaction. She did not fall in with ' the' advice. He was quite positive that these were the sections referred to. iMr. Hiitcben: Xo questions. Thomas Buchanan, town iclerk at Waitara, said the rates on these sections were paid by Hoskins for some years. The sections 'were entered in Mrs. Box's name on Hie rate-roll when he went to Waitara eleven years ago. He sent her a rate notice, and rihe returned the card, saying that Sir. P. Hoskins would pay the rates. When Hoskins ceased to have use for the land Hoskins told him that he had given it up. Mrs. Box then paid the rates. Mr. Matthews paid the last rates. His records went back for over eleven years. There was one entry of the rates having been .paid by William Bent, who was then- in occupation of another of Mrs. Box's sections. 'Mr. Jliitchcn called as rebutting evidence, Hori Kokako. who deposed that the sections in dispute were granted to him. He sold allotment 8 to Leedoin for t.j. ltecentlv. in 1!)02 or 11)03, he found that be had conveyed the whole live sections lo l.eedom. When lie heard of it he sent an application to the Registrar or the Native Land Court for information. Subsequently he sought legal advice, and instructed Mr. Hutchen to make enquiries. He eho*-e Mr. Hutchen because he war, aware, of all the awards made by n Commission which sat in this district .years ago. He told the solicitor to see iPeter Hoskins. and he was present in the solicitor's office at Waitara when Hoskins signed his name to'a document. I After obtaining the grant »f the laud from the Crown I'eler Hoskins applied J to him fo r permission to use the land j for grazing his horse and cow. and the permission was given. That was in 1874. at the commencement of the run ning of the -train to Waitara. Hoskinp ' was to fence the land and the rates ' and taxes. Hoskins paid him in various sums, sometime 10s. sometimes as, or 2s. just as he wanted it. Owing to I their mutual friendship he charged only i a verv small sum for the use of the > land. '

To Mr. Skcrrett: Fie didn't sijrn tin' document, 'produced. "Throw it away. You fellows tdfru my name, not me." Tlierc was no interpreter present when he .signed the conveyance to r.eedom. He sold the section to Lcedoni ill 1870. just after lie "knocked oil' soldiering at Wliitecliffs." Ho.skins got the use of the sections in 1574, ami Wilis to pay rent, not the rates. There was uo fixcil arrangement.lmt floskins was to <;ivu him a few s'liilliii".., \vl he'wanted it. He ke])! no account, and «ave no receipt for the rent. If I'eler Hoskins had paid no rent, then witness would have turned liis horse and cow out. l'eter lloskins had never lent .him anv small .-aims of money. If lioskiim said that he was tellhijr an untruth, lloskins used to pay the vales on his (witness') behalf. He reckoned 'himself an honorable man.; and it would lie dishonorable on the part of any man to try to sell Hie land twice.

Mr. Skerrett: You si.ld thi.- land to I-ccdoin. Then how could you. a» an hiinoralili' maiKwdl it to U'cdom '!

Witness: liecnuse of the Act saying I there should have heen ail interpreter at the time of drawing Hie conveyance. He continued: .lohnllor-kins was negotiating for the purchase or the section, hut Mr. Matthew, said l, ( . would give 'more than the CKlll offered hv Hoskins. Matthew, paid him Clan. lie-examined: lie had known (lie plaintiff for many years, and had leased to him some land lielonging to witness and his wife.

(leorgc Ferguson, formerly living at Waitara. remembered that during 1007 I'eter Hoskins having told him that he had had the use of the sections,, for

about 25 years, but that "(Jld (leorgei tlx? Maori owned them." To Mr. Skerrett: Hoskins gave him to understand that <!eorge owned the sections, not that he claimed to own. them. Walter Black, a retired linker, residing at Waitara. remembered that towards the tetter end of 1!K)0 he hail a, conversation with Hoskins about the sections. In the course of the conversation Hoskins said he was desirous of selling his land, and in roply to witness' question irnskins said that all the land lie had with the house, was a <|uavlor

lof on acre of his own, .the remainder belonging to licorgc the .Maori. Janus I'urdie, a previous witness, deposed thai he rememlbered Ceorgc the Maori coming to his shop and sayin" to Uoskins: "I'i'ter, 1 waul a hob." ffoskins explained later that he had a miction of Ceorge's fenced in, and he am i linn a "bob now mid again." I To ill'. Kkerrctt: l.leorge was in the i habit oi "borrowing a. bolff ol - i ß .er" -md I he generally returned the loan, 'if' he ! forgot, George's "old lady" repaid it. - li..J..Matthews,a grazier and manager ,' of the Bank of Xmv Zealand at Waitara I for ai years up to September, 11107, said i he had a reasonably accurate idea of i the value of town properly at Waitara IJ He had never .heard of a Waitara towii - section being valued at less than fa About HO years ago he bought six allot- , ments direct from the Crown at .t.lO 1 each. Uori Kokako told him that Jack i' Uoskins, son of Peter Uoskins, wanted t to buy Hoi-i's sections, and asked" what j they were worth. Witness replied that | • they were worth from .-CI31) to .1)13(1 t for the five. A few davs later the L'l.Maori told him Uoskins wouldn't buy.

Witness said: "Very well, 1 will." Then r tliey saw .Mr. llutchcit on the following [, Tuesday, and .witness gave instructions e to prepare the conveyance. The followj ing Tuesday they met again at Mr. JlutI chen's ollice at Waitara, and, upon Uori executing a conveyance, witness put ~ £l5O on the table. In a iew minutes - the notes were placed in the hands of .. the native, lie remembered the con- . versatiou with '.Mrs. Jiox and her i- brother, and their account was correct, with one exception. That exception j.| was his .knowledge of the sections in t the block adjacent to the fellmongcrv, „ but ho had not known which of those i„ sections belonged to Mrs. Box. There l t were fifty or sixty sections adjacent to ; i the fellmongery.

To Mr. iSkerrett: When lie Ihst entered into .negotiations lor the inuchase of the sections he did not know that 3lrs. Box claimed the sections, lie knew of it when lie gave instructions lor the preparation of the conveyance. He was "comfortably oil." Mis e'xperi.'iice was that the more a man had the more careful he was with his moiicv. Hi' denied that he was of that class of man, who. the more he had. Ihe more he wanted. lie gave Airs. Box the best of his advice, lie was Mrs. Box's banker at the time he purchased the

sections, but didn't know which were her's. •ah-. Hutchen explained the positioin of the title beiorc they completed the purchase. Mr. Hutchen'did not tell him that M.rs. Box had a title, but a defective one. .Mr. Hutchen did not explain that the .title was "shaky" before the money was paid over. Sir. Ilntcheii did not explain to him a declaration from Hoskins to the ell'ect that he had paid rent lo the Maori. 'Hid he mention Mrs. Box at all?--Xot to my knowledge. Ho you mean to tell me that?— Yes. Mr. Skerrett: Well, I'm disappointed. —l'm net. 'Mr. Skerrett: You're a business man and a banker'—An ex-banker. Mr. Skerrett: And -Mr. Hutchen, we know, is a careful lawyer.

Do 1 understand you to say that had you known of the real position of the matter, that -Mrs. Box had a title but

a defective one. vou wouldn't have (purchased?—l don't'know. I can't say. J wasn't placed in such a position. Mr. Skerrett: Hut would you? The witness: If I had know what was to siijierveiie

Mr. [Skerrett (impatiently): I don't refer to Court proceedings. You know I don't. Do you know you are making a grave charg:- against Mr. Hutchen?— No.

Well, you are. It was his bounden duty to explain the position to you. and you are making a grave charge against him when vou sav vou did not. I would not say 'that he. told me, and I would not say lie did not. You don't know if lie did or not? — No.

And you believed you were buying in the ordinary way'—Yes,

You knew of no dilliculty about the title?—Xot the slightest. '

And Jlr. Hutchen didn't explain it?— -No.

Then I apprehend that you are put in .your present position through no mult of your own, according to yoii?—1 don't know. My solicitor drew' the conveyance and he's in these proceedings. So you see he's not satis&d that he's wrong.

Mr. Skerrett: Vou may be perfectly rig-lit from a legal point of view, in taking advantage of a defective title.

Witness: Yes, I know that. Mr. .Skerrett: But I refer you to the moral point. There is a moral obligation. Hid Mr. Hutchen tell you that .Mrs. Box hail only a defective title, and that yours would be a superior title? Will vou .swear?—l can't swear one way or tlic other when 1 don't know. If Mr. Hutchi'ii got up and said he did tell me. 1 wouldn't swear he did not. Mr. Skerrett: If vou had known that this widow lady hail a title, but a title that was defective through no fault of her own. would you have purchased?— I would not. and no one knows that better than the defendant. She can't forget the past, and the past is all in my tavor.

Mr. Skerrett: Then you tell me, Mr. Matthews, that Mr. llutclieii didn't

Mr. Matthews: If you can trip me up in a falsehood. 'Mr. Skerrett 'Mr. Skerrett: I'm not desirous of doing that. 1 would be a great relief to. mi; if I could believe you considered you were. buying this land in the ordinary ' way. it would lie a great relief, lint I may tell you that 1 don't feel any great relief.

Mr. Skerrett addressed the Court; principally upon the point that twenty years' occupancy of the land by Mrs. ilox, and previously by Tiitty, ga've the defendant a possessory title. Mr. Hutchen argued that the first conveyance, from the native to Lcidom was 'bad, on two grounds, and that, 'liniinating tliat conveyance, the only ■vidence on the point was thill of Hori.

His Honor: When you eliminate that contract, you eliminate Hori and Jii, signature. '

Mr. I'-utchcn said tlmt was not so, for the document mis ml ye'., put in, it«liaving objected. Il»n Kokako swore li.- had sold only one allotment I" Lceilom, and tin- I'll) paid hy the latter litn-i- out liis sliitfini'iil. Counsel submined Hint llori Kokako war, hi possession liv his tenant, lloskins. and Unit Matthew's' purchase was not void unless lie was aware of the vendor's wan! or title, lie eiled authorities. If tlie lille of Leodoin and those elailllill- under him wen- hatred hy the statute, it eouhl not he indued lliat Hie equitable defence would ho of any avail.

Mr. Skene!t replied 'to some of the points raised by Mr. HutcVn.

Decision was reserved. CASKS SKTTLKJJ. The case of F. \V. White (Mr. fl. V. Wake) ,v. William Lj. liobiuson (Mr. Speuee). dissolution of partnershi]> and |iarlnership accounts, was announced by Mr. Spcnce to have been settled, and Hie. case was adjourned to next sessions to allow of the fcltleiueiit beins given ell'ect In. Other ciii.es have been settled as fob lows:—(ieorjie Henry v. Ln favette Keith (Mr.'.lolinstonc). claim for balance of rent alb-cd to be due for hire of a borinjr plant and material supplied, etc.; John I'eiinv (Mr. Uutelien) v. Marv Lees (Mr. llalliwcll). balance alleged'to be due on ;i iimr( w ijre interest; Ada Mabel Smart (Mr. Welsh) v. Martin I'etrie. p-ossi'ssio,, of land, CIS rent, and till mesne prolits.