AUCKLAND. SUPREME COURT-Jan. 20.

Auckland Chronicle and New Zealand Colonist, Volume 2, Issue 26, 31 January 1844, Page 4

AUCKLAND. SUPREME COURT-Jan. 20.

| F The Chief Justice said that, before proceeding to deliver Judgment in these causes, he wished to mention the circumstances under which Judgment had been delayed for a longer period than usnal. After giving to these a very serious consideration with a view to deciding thereon, he learned that Mr. Justice Chapman might be expected to arrive in the Colony at an early period. It app' ared to him that any inoonvenience to arise fiom delay would be amply counterbalanced by the advantage which would accrue both to the Suitors and the Court by obtaining the aid of his judgment on the questions before the Court.—Mr. Justice Chapman had found time maturely to consider those questions •nd had authorized him to say that he entirely concurred in the judgment about to be pronounced. Snowdon v. Baker. This is an action brought to recover the sum of five hundred pounds, being part of the purchase money for a piece of land situated at Wangnroa •old by plaintiff to defendant on the sixteenth day «f May 1840. The title to the land rests upon a purchase alleged to have been made by the plaintiff from the aboriginal natives of this colony, of which alleged purchase the date does not appear. The agreemont of sale entered into between the parties }s as follows : 4 Memorandum of agreement entered into the sixteenth day of May in the year of our Lord one thousand eight hondred and forty, between Henry Snowdon of VVhangaroa, New Zealand, sawyer, of the one part, and William Baktr of Kororarika. Bay of Islands, New Zealand aforesaid, on the ether part. Ii is hereby agreed that the said Henry Snowdon shall sell all tho«e pieces o»- parcels of land, 6tc., tirtto the said William Baker, hi* heirs and assigns for ever, and also the timber both kauri and totara trees growing on the land as herein apecified, viz , Bcc. See. unto the said WTitan* Baker, his executors, administrator, and assigns, at or for the price or sum of one thousand pounds, to be paid in tbe manner hereinafter mentioned. And also thtU tbe said Hemy Snowdon, or his heir* and all

Other necessary parties shall and will when the whole of the said purchase money shall be paid in manner hereinafter mentioned, at the mutual costs

of the said Henrv Snowdon and William Baker, their heirs, executors administrator* or assigns execute a proper conveyance for conveying and assuring the fee simple of the said hereinbefore mentioned pieces or parcels of land and hereditament* with the appurtenance* unto the said William Baker, bis heirs and assigns, free from all incum-

brances, with tbe usual and oth-r covenant* accordinp to the circumstance* of the title, for the quiet enjoyment and further assurance, and the aaid Henry Snowdon shall give up possession of the same to the said William Baker upon the receipt of the first sum of five bund'ed pound* hereinafter mentioned, and that the said William Baker, his heirs, executors, administrators ora«signs shall pay the sum of one thousand pounds unto the said

Henry Snowdon, one half immediately on the exe* cation of these presents, and the remaining five bnndred pounds upon th* sixteenth day of November next, the same bearing interest at ten p-r c»-nt. per annum, and that the aaid William Baker shall pay half of the expense* of the conveyance from the ••id Henry Snowdon to him.—lt witness whereof 4kc. Sec.’* The defendant immediately after the execution of thi* Agreement entered into poises»ion of part of tbesaid lands, and of the timber mentioned io the •aid agreement; ami hsa continued, and t* now in possession thereof. The defendant a'** paid interest on the second instalment of five hundred pounds (the sum now sought to be recovered), both before and after the sixteenth November 1840. On the fourteenth day of January 1840, a proelt* tnation was issued by Sir George Gipp*. Governor of New South Wales, notifying jt 10 be Her Ms. {City's pleasure not to acknowledge any title to •nds in this colony unless derived from or con firmed by a Grant in Her Majesty’s name, and on Her behtlf, and at toe same time to recognize (under certain restrictions) equitable purchases therefore made by Her Majesty’s subjects trom the native* of thi* country, and to consider absolutely ‘‘ mill and void all ptirohases after the dale thereof. The land claims ordinance of New South Wales, framed for the ptnpose of carrying into effect the intention notified by the aforesaid proclamation -■ waa passed on the 4>h August 1840. It is admitted that no grant from the Crown bus bdoo made to the ■plaintiff. The question now raised for ill** Conrt is whether trpon the foregoing facts the defendant i* liable to p*y the said sum of five hundred potiqds It is contended hy the Conn*e! for the plaintiff that the present cas; is p rfictly gnp* to that ol Campbell r Jones (6 I*. R.) and fall* with,,, the Rule* ded'ioed from the sn horitie* by Mr. Sqrgh William*, and slated in his valuable note to Por.. dag* r. (’ole'(l Saunders XI9). .Now it I* quite true that a retrain day is fixed for payment of the money, whilst no date is expressly fixed for the execution <>f the conveyance. Vet the plaintiff i» bound to rxeeute the conveyance *• when the whole \ of the purchase money shall be paid-’’ Th se last words are ambiguous, but, having regard to the nature of the transaction to which they relate and to the ordinary coarse of business upon the completion of a purchase, it might not unfairly be ar- | guedthat tile plaintiff would he bound to execute a 1 conveyance upon and immediately after the payment of file purchase money. In the view which we take of this matter, it becomes unnecessary to 1 decide this point, for we have come to an opinion that supposing it to be the true meaning ol ltd* agreement that the execution of the conveyance should be concurient w ith the payment of the purchase money, yet tbe plaintiff is, *o far a* the question depends on the ordinrry Rules ol Law,entitled to maintain this action. Taking that construction of tbe above clause, which would be the unfavourable one for the plain, tiff, and which would lay on him the obligation of showing that lie was prepared to perform his part of the bargain, we find it averred on the face of the Record that “ the plaintiff had always been ready to execute a proper conveyance according to the terms of the said agreement,” and there is nothing «o rrooid or in the speoial case before the Cunit to

negative or to qualify this averment, The stipulation oonlained in the memorandum of agreement, that the conveyance shall be at thejilnt expense of both parlies, doe# not seem to us to afford in good reason any inferenoe either way as to the hand by which the conveyance was to be transferred. And, in the absence of such inference, the ordinary Rule (as now settled) must be understood to prevail, whereby the purchaser, and not the vender, ought to prepare and tender the conveyance. On some otherlpoints which were urged by Mr. Brewer in tbe course of a very able argument for the plaintiff, it becomes necessary to speak. The defence divines itself mainly into two considerations: first, that the title offered is not the title which tlie plaintiff'is by this contract bound tog ve : that the defendant bound t> take any thing short of what the plaintiff of not (at present at any late ) in a position to give. viz.: a Crown Grant; and 2ndly, that the whole agreement i» illegal and invalid, and not to be enforced by a Court of Law. We see nothing to satisfy ns that the defendant has under this agreement a right to demnnd a title based on a Crown Grant. It is ex* preasly provided that the conveyance shall be with the usual and other covenants according to the circumstances of the title. I bus we see that in a contract entered into three months after the proclamation, by which doubts were for the first time authoritatively thrown on New Zealand titles ; not only is there no provision to make it the duty of the seller to produce a title based on a Crown Grant, hut there is a clause binding the purchaser to be content with something short of that. Moreover, it is a settled rule, that a purchaser may waive hi* ordinary right to a good title by going on with the agreement alter he has full notice that he is not to expect a good title. Now, in th is case, the defendant had lull knowledge of these difficulties and defects of the title, which ars now insi»ted on, at the very time of entering into the contract, and with this full knowledge, he has retained possession of psrt of the property for three years, occupvtug, (as was admitted on the argument) ss much of the land comprised within the plaintiff’s claim as was • ver actually occupied by the plaintiff. Even after the passing of the Ordinance of New South Wales, 4tli August, 1840, the defendant took no steps towards rescinding the contract. He paid interest on the purchase money until some period (not expressly stated) subsequent to 16th November, 1840. But it is contended, (and this ws* the point mainly relied upon by the-Council for the deft-ndani) that this is,a contract which a Court of Law cannot enforce. It is said, thai by so doing, the Court would in effect bold a title to land underived from the Crown, to be val'd aid sufficient. We do not think that such will be the effect of a judgment in favor of the plaintiff. The land claims ordinance (4 Viet. No. ?,) declan s and enacts that '‘all titles to land in the colony of New Zealand which are held or claimed by virtue of purchases either mediately or inlinediaiety fiom the Chiefs or otliei individual* of the Aboriginal tubes inhabiting this Colony, and which are not, or may not hereafter be allo*e I by Her Majesty, her heirs and successors, are, and shall be ahsoluiely null and void.” The interests or claims ol purchasers of land in New Zealand from parties olher than Her Majesty, are thus declared to be simply contingent and subject to Her Majesty’* pleasure. But we find nothing in this ordinance to prevent the Queen’s subjects from dealing as freely and effectually with this, as with any other class of contingent interests. It is true, that there it one set of claims with regard to which, it had been declared beforehand, by tbe Proclamation of 14 h January, 1840. to be Her Majesty’s pleasure to consider the same as absolutely null and void. (That is to say) purchase* frym any ot tbe Native Chiefs or tribes, alter the date thereof. It is not alleged that the Imds comprised in the agreement before the Conrt were put ceased after th»t dale. If a plaintiff came into this Conrt to a*sert aright growing strictly and singly out of the legal ownerabip or itisin laud, it might be oecrssary to put him to the proof that his claim to the land, in respect whereof hi* aetion was brought, had been allowed by Her Majesty. But it appears to the Court that we should be going beyond the reasonable construction of an ordinance expressly founded on Her Majesty's intention to recognise claims to land (tinder certain restrictions), if we were to hold all dealing* whh claims for the purpose of transferring • hem from man to man, in the interval before allowance or disallowance thereof on behalf of Her Majesty, to be illegal and invalid. Indeed, the ordinance itself ('aeolion t) recounn s, as we have aeen, tbe possibility of lilies derived mediately from 'he Chiefs or other individuals of the Aboriginal tribes being allowed by Her Maje-ty, and in section 6, the Commissioners lobe appointed under the ordinance, ur* r-quir-d to *; inquwe into ami a t fonli the price or valuable consideration paid for the lands claimed, to any of ihe said Chief* or iribes, iie., without (Iking inio consideration the piice or valuable eoii-idyi.M'iOQ yvl)ith may have been given lor the said land* by any subsequent pnroliaavr, or to any otht r pert .n ox .persons, save such Chief* or tribes, or Aboriginal inhabitants, or inhabitant as aforesaid and theie is nothing to limit any time, within which alone, such iramlei* of claim* a* are here recognized would be held valid. Of the nature or value of the claim to these particular lands we pan know nothing ; bat it is re* markable that the do endant no whera throws any doubt on the title a* between the plaintiff and the Natives. Judgment for plaintiff. 7'hompson v. Williamson and Another. This is an action brought by the payee «g*in-t the makers of a renewed protnbsary note for £t6o Bs. Od. The original note was given in consideration of tbe consignment to defendant* of eertain goods to be sold by them at Nelson on Plaintiff » aooount. The terms of the consignment were shewn hy a letter from plaintiff to deleudant*. dated Auckland, 30th July, J 842, iq which 'the plaintiff *»y„_ ■* J have consigned the tuign nominally to Mr. Carketk at Nelson, t<> gun d against «nv mischance, yon will sell the cot l * “t die highest market price for, oa-li only-” Append'd to this letter is a memorandum wbeiehy plaintiff acknow: ledges the teceipt of two pioniissory notes, on one whereof this action is brought. “ being advance oil account of consignment- per Supply and Spe-

culator, as specified above.” It is admitted for the puipo*e ut any rate, of the demurrer, that all Ihe aforesaid goods were consigned to Mr. carxerk, and that a considerable part wa4 disposed of by him or his agents, and that there came to the hand* ol these defendant* good* to the value of G*. and cash, part of the proceeds of the sales effected hy Mr. Carkeek to the amount of 1 10, making in all £l5B 6*. That (after deducting as necessary charges and expenses to the amount of 7 ss. ltd.) the residue (that is to say) the sum of £l5O o*. Id. was remitted to the plaintiff, also that 8 casks of grrack, being the only remaining part of the aforesaid consignment, were retuened to the plaintiff. The plea allegefailure of consideration for tbe bill beyond ihe amount already accounted lor, and returned to plsiutiff before action brought. Under these rir cumsianCfS, the plaintiff by bis denimrer denies that Ihe plea is sufficient in law. and on this issue is joined. Now it is a well established rule thv a partial failure of consideiaion m*y be a good answer to an action on a bill of exchange or pto mistory not**.. In Darnell t>. V\ ilium*, 2 Siarkie 166. and Fallows «. Bird, 4 Dowling, 1810. The defendants admitted the receipt of value to pail of the amount, nnd in both cases paid the amount into Cou t, and thin denied cns'derHtion as to the residue ; and these were h Id to b« good plea* But, where the amount is unliquidated, the caseshow that tbe doubtful amoonts cannot be well pleaded, and that defendant in such case, i* left to his cross action i a* for instance, wlieie the bill is given for goods sold, the price, amount, and quality of the goods, cannot be disputed in an aotion on a bill. Morgan r. Rich»rd>on, 7 East 482, was a case where hams proved unmarketable. In L-sb v. Cosgrove, the rca-on for residing payment of the bill, wasthe horse for which the bill was given, w as unsound t and indeed, in all oilier c**e* where a partial failure of ronsideiation has not been allowed to be pleaded, the real reason has been that the assessment of a Jury would bv necessary to determine how muoh of the consideration had failed. The question then between the plaintiff and defendants really is, whether all the amounts were *<■ far ascertained and liquidated aa to be pleadable. Here it must be allowed, that if ihe defenfunt- had retained the arrack as a security, and had not accounted for, and paid over the money they received of Carkeek, their case would have been lest clear than it ia. But here, the arrack they have remitted to the plaintiff, and he has accepted it ; so ih*t its value cannot come into question under any relation of the parties towards each olher. With regard to the sum paid over, the case is substantially neatly the same. They leceived £l5B 6*. from Caikeek, the? paid over £lsl Oa. Id. to the plaintiff, deducting £7 5* I Id. for charges. The plaintiff receives this aum so far a* appears, without question. As-uming as we must, on the agency of this demurrer, the facts stated in Rie record to be correct. It appears thst the defendant* btfore action brought, bad divested themselves of every shilling’s worth of property or money which couid be deemed a partial con* deration of the oote. If the plaintiff had wished to (hew that the defendant* really bad some consideration, however small, beyond ibis it w*s open to him to reply issnably and to raise the question on the record,but as he has demurred, we must ukeall the facts and amoants as admitti d. One point remains to be nolioed. It ia said, that by touching the pioperty the defendants have acceptrd Carkeek as their agent. For this doctrine we can find no legal authority. The receipt and remittance of the proceeds of sales effected by Caikeek, could not amout to an adoption or ratification »f his prior acts. For a* waa statrd by Pa*k J. in Ashby a. Verse, 10 Barn and Cre**. ** The lule as to ratification applies only to the act* ol one who proteases to act aa the agent of one who afterwards ratifies. As far as appear* hy the evidence, *nd especially by plaintiff* own letter, Carkeek was in the first instance hi* •gent ; and tbe subsequent consigning of the goods to the defendants, operated as a reoall of the plaintiffs authority from the hands of Carkeek, aud a transfer of. the same to tbe defendants. This brings the whole transaction to this: That defendants gave the note a* an advanoe on the consignment ; That (be consignment, with a small exception of certain goods which the* accounted for before the bringing the aotion, never came into their hands, and tlierea fore that tbt con-idca'inn failed. That nevertheless, as plaintiff'* agi-n:>, defendants attended to the interests of tbe plaintiff by recovering what they could of Carkeek, and that by account ng fur what they so received, and making full remittance, not withstanding thai: apparent liability on the note, they treated their aaid agency a* a separate transaction. For tbeae reasons the Coon is of opinion that the (ilea mild stand, and judgment must therefore be for the defendants. Plaintiff’* Solicitor, Mr. Whitaker. Defendant’* Solicitor, Mr. D’Oyly Foster v. Wade This ia an artion to recover £lO Ss. ltd. the balance of an account Mated between plaintiff and defendant. Tire defendant admitting the plaintiff# claim, has pleaded thereto a set off, consisting o -everal item*. The largest item ami that by which the total amount of the set off i* made to exceed the plaintiffs claim, is in the words following: “ 1844 April 12th. Omitted acceptance advanced I2th April 1842. 1 month £280.” On the trial the Jury found for the defendant’ The plaintiff now moves for a new trial on the ground that the above item does not ooustitute a debt, which could be »et off in Law against the plaintiffs demand, and such is the opinion of the Court. For it appears from the evidence in tile cause that tha acceptance above mentioned was not given as a mere udvance or as an accommodation to plaintiff, but was simply a mode of giving security to the plaintifi' for the pioceedaof certain goods of his, and winch »t the date of the acceptance were in tbe bands of defendant as a factor for plaintiff, and for salo on platn* tiff’s account. The defendant oannot then fore have any right to set off the amount of such on acceptance against the plaintiff. Theie must therefore be a new trial. Dacre v. Thomson. At the last Civil Sittings of this Conrt, a verdict was found for the p'aintiff, subject to a ouie to be

stated for the opinion of the Court. Ihe case follows: Previous to the 10th April, 1842, the plaintiff, a merchant in Sydney, New South Wales, consigned certain goods set forth in the particulars of this action to the firm of Dalziel & Co„ merchants and commission agents of Auckland, for sale or return. The firm of Dalziel & Co., at that time, and when the goods were rec> iv«-d, consoled of Alexander Dalziel. John Anderson Brown, and Walter Combes, after selling a part ol the said good-, the said Alexander Dalziel, John Anderson Brown, and Walter Coombes, by an Agreement bearing date the I6lb April, 1842> eoteied into partnership with the defendant John Hamilton Thomson, for the purpose* and on the term* mentioned in the said agreement a copy of which is hereunto annexed. The part lieu remaining unsold of the goods so consigned tiy the plaintiff to the firm of Dalziel & (in., formed pail of the good* mentioned in the saxAiflfcreement, md were sold by the defendant Jjfipf Hamilton Thomson, and John Anderson at N«l#on- ( I he Chief Justice then read the agreement.)] The question for the opinion of the Gou t is, Whether nrider the said agreement'of the ltfth April, 1842, the defendant John Hamilton Thomson became liable to the said plaintiff, for the payment of the good* so consigned to the Said firm of Dslzieland Co., or any part thereof. And if the Court shall be of opinion that tbe said defendant John Hamilton Thomson is so liable then the veidict is to be entered for tbe p'aintiff. But if tbe Coart shall be of a Contrary opinion, then a verdict is to be entered for the defendant. * The defendant is sued as a partner in the firm of Dalsiel & Co. It was argn-d on bis behalf that ha wa9 only a sub-agent employed by the other defendants, who were themselves agents for ffr«! plaintiffs,”. and that according to the settled law of agency, no such employment by them could create any obliga> ■ ton on tbe part of the defendant Thomson to account generally to the plaintiff. This vfew however, is not consistent wim the language ot the case itself, wherein it i* stated that the defendant Thomson entered into partnership with the ottier three defendants for the purposes and on the teims mention'din tbe said agreement. It i* plain indeed from the t*-r«ns of thst agreement thst the relation tlie'eby created between the defendant* was not one •>f a-ency for the Thomson was to receive l-J of tLe profit, and .to one fourth <d'the La* of the voyage Now in Green c. B>:e sly 2 Blog N. C. It was held that a slipntation to >liaie the los* proved conclusively the agreement to be one of partnership and not of mere agenry. Hero a most important question arises, what wa* the nature and extent of ibis, partnership. It is a well established rule that where persons hold themselves out as partners, or where they deal with third parties as if they be partners they thereby become liable even where there is no deed or oo partnership io faot; Waiegli and Caron 4H. B. 235 but, wbers there is no such dealing or holding out wliere a coot'act exists, the terms of that contractmustbe looked a< to ascertain the precise relation of the parties. Oo thi* point we have no evidence and are consequently left to tbe term* and the agreement from which it appears that the first contract is confined to the single nan*action. 2ndly. That Dalziel & Co. furnished the goods. 3rd. That Brown and Thomson are to sell them, and for that purpose they are to use the title of Brown, Thomson 6c Co. 4tlily. That Browo. Thomson Ac Co., are to account to Dalziel 6c Co. By these terms a general pirtner»hip is carefully excluded. It is also a* carefully provided that the connexion between Dalziel 5c Co. and Brown 6c Thomson, goes no further than tha single tiansaction—the cargo of goods in the schooner [fare. The defendant Thomson then did not thereby become and there is no evidence to -hew that he did ever become a partner ia the general firm of Dalziel &t Co. 1 1 i< indeed admitted that the part then remaining unsold of the goods so Cuosignrd by the pUjntiff, to the firm of Dalziel and Compauy, fored a part of the the goods mentioned in the .-aid Agreement} but (here is nothing to show thgt lie was interested io those goods in any other way than as a partner with the other defendants, in a single adventure, or that there ever exiatsd between him and tbe plaintiff any privity either in deed or in l»w. The case then falls within the principle of Yoange. Hunter (4 Taunton), and other like cases cited in the oourse of the agreement.! Although the £45 paid by Defendant in prison totlje plaiutiffs solicitor taking it at • voluutary payment, oannot be recovered, the payment being made with a knowledge of the tacts of the esse ; yet beyond that the defendant oannot be prejudiced by hi* misconception of the extent of hit legal liabilities.