SUPREME COURT.

Evening Star, Volume VIII, Issue 2223, 22 June 1870, Page 2

SUPREME COURT.

IN BANCO. Tins Day. (Before Mr Justice Chapman ) Manning v. M‘Gibbon. — His Honor gave judgment in tliis matter, which was an action to enforce the specific performance of a contract to purchase a station in Southland. The declaration stated that by virtue of the provisions of the Southland "Wastc Lands Act, the plaintiffs held possession of the run, and were entitled to hold it until August 7, 18SI. It also set out the terms of the con tract, which was dated September 14, 1869, the terms of which were not important, except that' the' date fixed for delivery was October 1 4, 1860. It was next alleged that, at the request and for the convenience of the defendants, the plaintiffs, on the 15th Septimber, *v°recd to enlarge tbe time for taking delivery until October 21. The next material averment was that the plaintiffs were on October 14, and have been at all times since, including the said October 21, ready and willing to "transfer the runs and com. plete their part of the contract; of which at all times the defendants had had notice. The declaration then went on to state that on October 15, the day after that originally fixed for delivery, the Southland Waste Land Board, purporting to act in the exercise of powers conferred upon them by the 36th section of the Waste Lands Act, which authorised the setting apart of lands for the satisfaction of the claims of Driver, Maclean, and Co., in respect of the Oreti Railway, passed a resolution reserving two blocks of land out of the run; that Driver, M'Lean, and 00. had hitherto done nothing to entitle them to claim those reserves; and that in consc(|uei’.c?' of such reservations the deien* dan Is had refused to complete the agree-, ment. To the declaration it had been pleaded that before the date fixed for delivery, October 21, the reservation j refer-ed to had been .made* whereby tbe plaintiffs title became defective, snd their interest in the land became greatly deteriorated in value ; wherefore the defendants refused to complete the agreement, as they lawfully met. The pleadings were demurred to on several grounds ; the first of which was not relied upon, and the others might be grouped under three beads—fir,-t, that the reservations did not exonerate the defendants from their liability to perform their part of the contract; the second assumed the legality Oi the reservations, and embraced the third and fourth; and that the pleas did not show the requirements of the 36th section. His Honor held that the contingency by wiilch the property had become deteriorated was known to the ffefendants at the time of the execution of the poutracts—that there •was a cloud hovering over the Hcensp ; the resolution of the Southland Waste Land Board no doubt made that cloud hang lower, though it might never descend in its full force. Witlj the statute before them it was competent for tho defeu l&uts protected themselves by making astipulation in the contract for rebate, mease clause 38th should be put in force before a certain time, and the compensation of 2s per aero was deemed insufficient. De« H uri>ev allowed on tbe first ground. Giburgs v. M ‘Lean.— ln this case, Mr Barton,' on the IQtb January, obtained a rule on behalf of tho defendants, calling qn the plaintiffs te show cause why the verdict of the third founded upon the plea of payment, and also un the fourth ptpq,, founded on a set-off, should not be entered up for the defendant, pursuant to leave reserved upon the ground that the affirmative of these isaucs have been found in defendant’s favor. He (the Jcapned jjulfje) reserved judgment, not because'there was nj t y cjoubfi" V to the substantive right of parties (which had been exactly ascertained by the verdict on the principal issues as to tho payment-, and the amount for which the defendant should have been granted)— but because of some difficulty as to the manner of adjusting those rights with the pleadings and issues thereon. The principal question originally in dispute was whether the plaintiff was entitled to commission for the sale of certain property at the customary rate of 2£ per cent., or at the reduced rate of li per cent,, under an alleged agreement, which was denied by the plaintiff. The gross claim was 1.38 15s. It was admitted that the plaintiffs received from the purchaser of defendant’s property a sum of L 5, but they did not give credit for it in their particulars of demand,if indeed they had any. It was contended therefore that the defendant was entitled to have that sum

placed to his credit. The plaintiff first instance commenced their action Resident Magistrate’s Court, .when the d’ef. ml.mt paid into Court LI9 ss, the atnouht which he conceived to he duo under the alleged agreement, which he had then and since unsuccessfully set up. The case was heard before Mr Strode, R.M., and the plaintiffs elected to bo nonsuited, and the present action was afterwards commenced. But they did not take the Ll9 15s out of Court, where it still remained. Air Barton in his .argument contended that that sum should he treated as payment,, for it had always been, and was still, indeed, at the disposal of the plaintiffs; and that for those purjloses the officer of the Resident Magistrate’s Court must be .taken as the. agent of the plaintiffs, to make a payment to whom was to make a payment to them. He (the learned judge) however wan of opinion that although the money, from the moment it was paid into Court, was at the plaintiffs’ disposal, and might have been taken out, yet it could not amount to any evidence of payment. The plaintiff might have taken the mono}’- out of Court, and he thought he ought; but he had not done so, and therefore there was no implied acceptance. If a mere payment into Court could have been evidence of payment, why was a special plea of payment into Court necessary, for the saving of costs was not its only function. It seemed to him to be straining a construction to say that the officer of the Court was an agent for the plaintiff. After explaining the matter of costs, his Honor said the rule would he granted, but without costs. Re John Sibbald. —Mr Macassey applied for a rule nisi for a writ of prohibition directed to J. A. Jones and certain Resident Magistrates and Justices to show cause why all further proceedings in respect of an application to license the Provincial Inn should not he stayed. The point relied on was that at the licensing meeting at which this nutter was heard, Messrs Fraser, Stuart, and Haughton, all residents without the district of Dunedin, were amongst the magistrates, while, section 13 of the Licensing Act declared that all applications for houses in the district should bo determined by “all justices who acted and usually resided in such district. ” Rule granted. ROSS V. CHAPLIN, Mr Macassey moved for a new trial, on the ground of misdirection, and that the verdict was against the weight of evidence. Judgment reserved.