SUPREME COURT.

Wairarapa Standard, Volume I, Issue 51, 23 December 1867, Page 3

SUPREME COURT.

‘Wednesday IBth December, 1867. (BY OUR SPECIAL REPORTER.) His Honor Mr Justice Johnston took his seat on the Bench at 10 a.m. SENTENCE. The first matter brought before the Court was iffle sentencing of James Philips, convicted at the late Criminal sittings of the Supreme Court, for stealing a watch. He was sentenced to six months’ hard labour. Hirschberg v. Hall. In this case Messrs Hart and Buckley appeared for the plaintiff, and Messrs Izard and Pharazyn for the defendant. A special jury, consisting of the following gentlemen, was then empanelled : —A. H. Owen, W. W. Taylor, W. Pitzherbert, jun,, John Yule, A. P. Stuart, Joe Dransfield, Wm. Best, P. Laing, Walter Johnston, Ed. Battersbee, Eobt, Hunter, and Francis Sidey. Mr W. W, Taylor was elected chairman.

Mr Hart in opening the case explained that as his duty was simply to prove a “ prima facie” case, the onus was with the other side to disprove it. In 1858 a kind of small farm association, was made in the valley ofthe Wairarapa, and; persons were allowed to purchase land intended to form a township which, under the regulations, were conveyed to a trustee (Mr Carter) and re-conveyed by him to the purchasers. The terms of conveyancing and selection were contained in the rules of the association.

Mr Pharazyn, for his client, admitted the rules of the association.

Mr Hart, for the information of the Court, then read the rules of the association so far as it concerned town acres and rural land, showing that the order of selection was to be determined by ballot. Mr Hart continued. The grant of a block was given to C. -il. Carter to distribute to the shareholders in the amount to which they were entitled. The Learned Counsel then proceeded to state to the jury what he intended to prove by the evidence which he would bring before them. But before doing so he would state that he had lately come into knowledge of the fact that the defendant had stated that he had bought the land from the right Mr Smith, whereas the plaintiff had bought the land from the wrong Mr Smith, The following evidence was then adduced.

Donald MoPhea, settler in Greytown, sworn, deposed : —The signature at the foot of the deed produced is mine. To the best of my belief I saw Smith sign the deed which I have witnessed.

Cross-examined by Mr Izard :—I have known Francis Smith who signed this deed for some years. 1 have never known him to go by the name of Smythe. James Smith, settler in the Taratahi Bast deposed.:—l was one of the subscribers to the Small Farm Association, 1858—That is I bought land there. (Deed produced.) The signature at'the foot of this deed, which is a conveyance by myself to the plaintiff is mine. (Another deed produced.) This is the original document, from Mr Carter, which conveys the land to me. I sold this land to Hirschherg on the authority of this conveyance for which I had paid. I made a mistake at first as to my acre. I fenced one believing it-my own, and found I had to leave it and take the one now in dispute, as the latter was the one I had got from Mr Carter and sold to Mr Hirschherg. I gaave my conveyance of the land to Mr Hirschherg., Cross-examined by Mr Izard—lt is abont 13 years ago since I bought the land. I was rather late in joining the Association. As most of the acres were taken up, I applied to Mr. Waterson to point out the acres that were unselelected. I applied to him because he was an old settler and knew the land well. Ido not know that Mr Waterson was an authorised agent of the Association. Waterson showed me the acre which I fenced.

Mr Izard ; —Did you select this acre pointed by Mr Waterson ? His Honor explained that the question was an incorrect one. The word “ select ” having a broad meaning and using it in the broad sense was likely to mislead the witness. Cross-examination continued*—l produce the receipt which I received from Mr Cheesman in 1860 for paying him for preparing the conveyance produced, making the land mine. At the time I received the conveyance I had tried to sell the acre tuat was not mine. I thought it was mine when I sold it, but on looking over the deed. I found my mistake. I sold the land that was justly mine to Mr Hirschberg. By .the Court—l had treated an acre which I had fenced as my own. When I was about to sell it I found my mistake, and found which was the right one. The right acre mentioned in conveyance as No S3 I passed co Mr Hirsehberg. There was no one in possession of my acre at thetime. Hall’s house was near but not on it.

To Mr Izard :—I did not know that the acre that I fixed upon .was No 117. There was no person authorised by the Association who pointed; out land to me, nor did Isay to any member of the Association that I had selected any particular acre, either acre 117 or acre 33. I paid £9 for fencing in the wrong acre, I never offered it for sale to any one after I found it did not belong to me. I was on one occasion intending to sell my fenced acre to Mr Fuller but finding from Mr Jiipp that I had posses,sjpn of the wrong acre I transferred jclaim toadre No 33. When I sold my aero to'Mr H.rschbefg I told him of the mistake I had; made as to the acre, that I had fenced the Wrong one .and all about it. I did not know my acre until was pointed out to me, ;My name is “ Smith," there'is sometimes' a y ” making it “Smyth.” I think X signed my name “ Smyth ” when ! choose the rural section at the {Document produced,) This is the application'that I made for the land and is signed by me “ James Smyth.” To the Court: —l am always known by my neighbours as “ Smith,” not as “ Smythe,”

To Mr Izard.;—l got the deed of conveyance from Mr Carter, to me in 1860. I speak with doubt on ithe ‘.subject .as it is so long ago. I know:at the time that I bought the land there were plenty of “James Smith’s;” in Wairarapa and Wellington, but 1 do not know whether there were any Settlers of that name in Greytown. When I sold this acre to Hirsehberg, I had not heard that there , was another James Smith who claimed that particular acre. I sold the land because I wanted money and had no idea that my right to sell wss disputed. After I sold the acre, Hall told me that Ihe land was belonging to James Smith, of Wellington, but this was after I had signed the deed. I had been living ten miles from Greytown. Ee-examined by Mr Hart;—My name is Smith. I produce my discharge from the British army in the name.of James Smith. His Honor :—I do not see that if the name is spelt Smyth it is pronounced otherwise than Smith, It requires the final “e” to make it Smythe.

Mr Izard Our case comes to this, that another James Smith selected and paid for'the aero 33, and the deed which should have been passed to my client was passed to the witness. I shall argue that no mere shuffling of the deeds can deprive my*client of the legal vested right even if he holds a wrong deed. His Honor:—lt is a pity that you did not let me know this when we were in Chambers, This reduces the matter ;to. a mere question of law which did not require the assertion of a special jury. ¥our argument now is that acre 117 which was first taken possession of by the witness was the correct laud and he was wrongly induced to believe that acre 33 was his by a mistake in distributing the deeds. Mr Izard —Exactly so.

The witness in answer to Mr Hart, said—l have been 18 years in the Wairarapa. I know James Smith, merchant, but I do not think he was ever a settler in the Wairarapa. On finding that I had made a mistake in fencing in acre 117 I had no further dealings with it, and left it altogether. I had not taken acre 33 when I sold it to Mr Hirschberg. I sold him my deeds. To the Court: —l had 40 acres near Greytown on which I lived at the time I selected my own acre.

Mr Hirschberg, storekeeper, Greytown, deposed : —On Aug 25,1864, Ibougbt acre 33 from last witnsss. It was then unimproved and unoccupied. Six months after I bought the land Mr Hall went into possession of it. He asked me to let it to him for £3 a year, and I agreed to let .him have it at that price. Afterwards when I found Hall had been building a workshop on it I went to him and he said “ Oh 11 have bought it from the right owner, you bought it from the wrong one,” Cross-examined by Mr Izardl knew that the last witness had fenced in acre 117 at the time he spoke to me about buying acre 33. I knew from him he had tried to sell acre 117 until he found his mistake. I have been acting as agent for Mr Carter for the town reserves. I did not know that acre 33 was claimed by another James Smith when I bought it, nor did I know that there were two Jas. Smiths who claimed land as original purchasers. I let this land to Hall’s son-in-law for £3. We only had a verbal agreement. His Honor .;—There can be no demise without a‘deed.

Mr Hart .;—lt has been held your Honor that the acceptance of rent creates a tenancy. Cross-examination continuedMr Hall’s son-in-law went, into occupation of the .land, and Hall afterwards moved -the workshop on to the .acre. I never knew that Mr Hall had been trying to buy that acre. lie-examined by Mr Hart. There were two James Smiths in Grey town, but only one entitled to land. I. do not know Jas. Smith, merchant, as being entitled to laud. I never knew him as a resident there. Acre 33 is more valuable than acre 117.

This concluded the plaintiff's case. Mr Izard then addressed the jury on behalf of his client, arguing that the witness Smith who, has been put in the box, had selected one acre and fenced it, but finding that he had received a deed of conveyance for acre 38 which was more valuable he had sold it, he would not say fraudulently, but it was something very near it, to the plaintiff. The James Smith, who had sold this land, knew that the acre 33 was not the one which he had selected, in fact he admitted by his evidence that he did not know that he had the deed for acre 33 until he tried to sell acre 117. The James Smith, from whom he (Mr Izard) claimed, was one of the earliest selectors, and had taken : aere 33 before the witness that they had heard joined the Association, and he would show by evidence that the James Smith, for whom he claimed, had taken acre 33, and that all the acres near where acre 33 was, being the most valuable ones, had been, taken upbeforethe other Jas. Smith had applied. William Holmes, Chief Clerk in the Land Office, Wellington, deposed—l produce the map of the Small Farm Settlement, Greytown, from the Land Office. I produce applications to the Land Office from two James Smiths, for land in Greytown. One is from James Smith, merchant, Wellington ; and the other from James Smith, settler, Wairarapa. The former is dated March, 1864, and the latter December 1864. A Crown grant was made out for the latter, with the name spelt “ Smyth.” ' Mr Hart did not cross-examine.

John Hall, shoemaker, Greytown, examined— I was one of the early members of the Greytown Small Farm Association. I paid my money at the Land Office before selecting my acre. I received a receipt from the Land Office, which I took to Mr Allen, as chairman of the Association, and selected my acre which I pointed out on the map. This was not one of the acres in dispute, Mr Izard—l merely examine in this matter to show the usage in selecting the acres. Examination continued.—l know Smith, merchant, of Wellington. He was a member of the Association at the same time as I was. I know the other Smith who was examined this morning. I have seen his name on the electoral roll as “Smyth.” Thought section 33 from Mr James Smith of Wellington, fdr which I paid £4O, which was the fair value of the acre at the time, (deed produced.) I received this deed from Mr Cheeseman. I objected to it because the original conveyance from Mr Carter was not with it. This is a conveyance of acre 33 from James Smith to me. I never received the original conveyance from Mr Carter to Mr Smith. I never leased that acre from Mr Hirschberg, and never agreed to take the land. The oiler of the lease was given to me by Mr Hirschberg, but I refused to take it, as I knew that the man who had sold it to himhad no right to it. MrHirsohberg has stated what was untrue, in saying that sither I or my son-in-law leased this land from him. He offered it to me for £3 a year, but I refused it. I have never paid any rent for it. Smith who has been examined to-day stated to me within the last twelve months, that he knew that the acre did not belong to him, but that he had sold the acre to Hirschberg because he wanted money. He, also admitted that he had never selected the acre No. 33.

Cross-examined by Mr Buckley—When I got this deed I saw anorigihal conveyrnce from Mr Carter for acre 117.

His Honor—How was it that you accepted the the deed from James Smith, Wellington, without the original conveyance ? John Hall—l was not satisfied. The original conveyance for acre 117 was held by Freeman, as he paid the money. I never had a deed signed by Carter for section 33. I hold acre 33 under a license from Freeman, I got that licence from him between the time of Hirschberg proceeding against me at .Peaterston, and the hearing of the case. I took the deed on the second occasion without the original conveyance. ... ... " ’•

Mr Buckley—And you -were satisfied. Witness—No, I was not. I am not satisfied now. I was offered the acre at £3 a year by Hirschberg, but I would have nothing to do with it. I did not take possession of the ground until after I got the deed from James Smith. I cannot say whether my son-in-law went on the acre and cut woodw it,but!donotthinkhedidaopre-

vions to the conveyance from Mr, Smith to me was executed. I do not know the date on which Mr Smith signed this conveyance. I suppose it was about when it was dated. It did not come into my hands until some months after it was signed, I took possession of the land about a week after Mr Cheesoman had first shown me the document.

Re-examined by Mr Izard—l did not get the deed for acre 117. I understood from Mr Cheeseman that I would only have to hand the deed for acre 117, and to get the one for the acre in dispute in exchange. •John H. Wallace, Auctioneer, deposed;—l was residing in Wellington at the time the Association was* formed when I acted as agent for Mr Jas. Smith, merchant. I put in an application for land in Greytown on his behalf. I selected acre 33 for Mr Smith. I do not know of any other James; Smith connected with the Greytown Small Farm Settlement,

Cross-examined by Hr Hart: —l know Mr Smith my client for several years. He never settled or went into occupation of land in the Wairarapa. He did not, to my knowledge, spend the money in improvements on the land, by the Association.

James Smith, formerly merchant of Wellington, deposed:—l was an early member of the Greytown Small Farm Association. Mr Wallace was employed by me, and he selected acre 83 for me which I since sold to Mr Hall. I never got the deed of conveyance from Mr Carter. I never had any other acre in Greytown besides this.

Cross-examined by Mr Hart :—I knew the concitions of the Association, but I never was a resident in the Wairarapa. The conditions originally required were waived. I knew there was a deed of conveyance from Carter to me lying at the land office, but I did not tase it as there was dispute about it. I never had a deed in my possession for town acre 117.

A discussion here arose between the learned judge and Mr Izard, when his Honor again pressed it as his opinion that the question to be decided in the case was purely one of law and not one which should have been sent to a jury. In point of Law rule that the verdict must be given to Jas. Smith, settler, for acre 33, and not to Jas. Smith, merchant, as the deed was made to James Smith, settler. Mr Hart said if the judge would look at the deed produced on the other side he would see that’it was dated 21 months laterthan the one ho produced, and that quite 'overcame the supposition of shuffling of the deeds. Also—both deeds conveyed land to Smiths, of Greytown, and the client of Mr Izard would not answer this description at all.

After some further discussion His Honor suggested that as these were merely questions of law and fact, it would be better to argue the case in chambers on the notes then taken. The jury must find that the conveyancing deed was to James ;Smith, settler, Wairarapa, and as that description applied only to the person from whom Hirschberg bought the land, the Jury on the facts would necessarily have to find that the deed was made in favor -of the settler and not of the merchant.

Mr Hart said that the deed must stand as it was at present and the person ■correctly described in it was the right owner. If the deed was wrong the other side should take proceedings in Court to reform the. deed. The legal operation of the deed until reformed was indisputable.

A long discussion ensued as to whether this case should be proceeded with for the decision of the jury when it was suggested that a verdict should be on taken the one issue of, “ Was acre No 33 conveyed by mistake to James Smith, :settler, instead of to James Smith, merchant ? ”

An adjournment took place to enable the counsel engaged on each side to confer, but as they could not agree it was decided to go on with the case.

The following further evidence was then taken:— ; ’

C. R. Carter sworn deposed that he had been connected with the Wairarapa Small Farm Settlement from the beginning. Mr Smith, of Wellington had been an early selector and had chosen acre No. 33. Mr Cheeseman had undertaken to make out all the conveyances from Mr Carter, as trustee, for the land to the different shareholders. The names -of the grantees were taken by Mr Cheeseman from the selection map. Before witness signed the conveyances lie satisfied himself that the names on the map were the same has those in the deed. He did not satisfy himself as to the description. The conveyances were signed as they were required by the grantees. The deed for No 33 was signed by him to Mr James Smith, because that name appeared upon the selection map. (Map produced.) A great number of the selections were made from the map before the Court, The regulations or rather conditions as to expending £3O on the allotments, or actual occupation, were not acted upon in all cases as the committee bad not discovered hem in time.

Cross examined by Mr Hart;— The committee had power to enforce the conditions. In some cases the regulations had been acte upon and many had been deprived of their sections. The committee had not acted on the conditions in some cases as the knowledge of the facts had come to them too late. He had known that there were two Smiths on the list but not at the time he executed the deeds he did not know know which of the Smiths it was that had taken the different lands. The deed that was signed and dated in December 1860 was in all probability a subsequent application to the one signed April 1859. As Mr Smith merchant, was one of the original selectors the probability was that the earlier selection was his.

Re-examined by Mr Izard.—There had been no meeting of the Association which authorised waiving the conditions of occupation, &c. R. S. Cheeseman, solicitor, deposed.—l' made these conveyances from a plan supplied to me. No descr ption of the different persons was supplied to me beyond the names on the plans and a list of the shareholders. I made out a certain number at once and did the others at my leisure. After they had been signed I kept them by me until called for. They were generally dated at the time signed by Mr Carter but sometimes remained a long time in my possession. I gave up a number of the deeds to Messrs King and Bunny, and cannot therefore swear as to whether I gave any particular deed to one or another person. Tbe Defendant Hall came to me in December 1864 and said he would like to purchase acre 33. I prepared the deed produced being a conveyance from Mr Smith, Wellington, to }dr Hall, Greytown.

Cross-examined by Mr Hart.—The deed conveying section 117 to Mr Smith of Greytown was prepared by Mr Bunny. This concluded the case for the defence. Mr Izard addressed the jury for the defendant and Mr Hart for the plaintiff. His Honor than summoned up and said ehat the question of identitly was one of law and not one for the Jury to decide, there could be no doubt as to the mistake made. The question reduced itself to this, “Was the conveyance by the assignor of the plaintiff to James Smith of Wairarapa made by mistake?” 1 The Jury returned a verdict for the affirmative. Mr Izard claimed that the verdict was for the defendant on the ground of a mistake. It was decided to agree the question of costs in Banco. The Court then xcse.