SUPREME COURT.

Evening Star, Volume IX, Issue 2652, 17 August 1871, Page 2

SUPREME COURT.

IN B ANCO. This Day. (Before Mr Justice Chapman.) M'Kellar v. Brown. —Mr Macassey applied for a rule nisi to rescind the order made herein on Monday. In granting the rule, His Honor observed that in future chamber cases involving questions of importance, would be argued in Court. Mr Macassey observed that the point involved in thii inat'ter was a very important one, and that should his Honor’s ultimate decision be against him, he proposed to ask that a ca'-c might be stated for the Court of Appeal. His Honor remarked that he had already written to one of his broker judges on the subject, and he intended communicating with another. Calcutt and Another v. Campbell and Others.—This was an equity suit, which it had ' een agreed should he heard before his Honor under tbe Act of 1860. The declaration stated that the plaintiffs, Edward Calcutt and Thomas Menlove, are the owners of a large quantity of hind in fee simple, situate in the Oamaru district, and known as the Hound Hi 1 estate. The defendants are Colin Campbell, farmer, and George Sumpter and John Lemon, commission agents, Oamaru. On August 7, 1869, plaintiffs wrote to Sumpter and Lemon, stating that they had been given to understand that enquires had b en made in Oamaru as to whether they were willing to lease portions of their estate for a term of years ; and expressi g their willingness to lease it in areas of 200 acres, on fair terms, for any number of years, with or without a purchasing claose, and instructing Sumpter and Lemon to act for then) in the matter. On September 9, Sumptor and Lemon replied that they had a client, who was willing to lease 900 acres for seven years, with a right to purchase, and plaintiffs replied that they were willing to lease that quantity' of land at a rental of 10s per acre per annum for the first three years, and 11s per acre for the remainder of the term with a right to purchase at the end of that time at L 6 per acre : that provision would be made in the lease that the lessee should not sub-let without plaintiffs’ permission. Further negociations led to an offer by Sumpter and Lemon, on behalf of the defendant Campbell, to lease 1000 acres for seven years, with a right to renew the lease at the on I of the term, and with a right to purchase at a rental of Leper acre. Plaintiffsdeclinedthis offer, and on September 11 Sumpter and Lemon telegraphed to them, intimating Campbell’s willingness to give 10s for seven years, with a right to renew for 14 years; and contingent on certain named conditions being complied with. Plaintiffs replied accepting the offer, which was made subject to tho conditions named in their reply to the letter of September 3. On September 11, plaintiffs wrote, staling that Mr Calcutt would be on the estate that week, and arranging a meeting between the parties, and hoping “ that Campbell, (of whom they knew notli•ing), had sufficient means to carry on tho undertaking.” On September 16, Calcutt met Campbell, and from the explanations that ensued, learned that for smie time prior to the transaction, Sumpter (and Lemon held a bill of sale over Campbell’s goods and chattels to secure the repayment of an advance of L 350 by them ; that Campbell was and had never been in a pecuniary position to carry on his undertaking; that he was not able to give security for the due payment of the rent; and that they had reason to believe that the sole object the defendant had in view was to get a crop off the plaintiffs’ land for the benefit of Sumpter and Lemon. That tbe only reply the plaintiffs received on the same occasion from Sumpter and Lemon was that an agreement had been entered into with Campbell, which agreement the latter was entitled to have performed. ('J he agreement was date:! Sept. 11 and was made by Campbell an<l Sumpter and Lemon for the plaintiffs. It covenanted for the lease of 1000 acres, on the terms before stated). That on September 16 to Campbell, and 'mptember 18 to Sumpter and Lemon, plaintiffs declined to be bound by the arrangements entered into between the defendants, and that the plaintiffs at all times since had refused to recognise in any way this agreement as binding upon them. That in the month of October following. Campbell by' his solicitor registered the agreement in the Land registry office as an encumbrance upon the plaintiffs’ land &c. ; that the plaintiffs before the commencement of the suit, Lad offered defendant a deed of release from all claims under the agreement, which the defendant refused to execute, wherefore tbe plaintiffs prayed that such agreement might be declared not to have been executed, inasmuch as Sumpter and Lemon had no authority to act as their agents, an 1 it was further alleged that they had acted fraudulently ; that the defendants be ordered to give up tlje agreement, and that they be further ordered to file at their own expense a deed of disclaimer, for the purpose of expunging the agreement from the land register. The defendant Campbell, by his pleas, averred that prior to the signing of th* agreement he had agreed with Sumpter and Lemon for a lease, on the terms set forth in the plaintiff’s communication ; that ho signed the agreement, believing Sumpter and Lemon had full authority as plaintiffs’ agents to enter into it; that he signed it believing it contained all the conditions required, and he

was not aware of the absence of a provision that the tenant should not sub-let without permission, which omission was the mistake of Sumpter and Lemon; that ho was and is able and willing to perform his part of the agreement; that he denied having ever stated that he was pecuniarily unable to carry out his undertaking, or that Sumpter and Lemon held a bill of sale over the whole of his goods and chattels. The defendants Sumpter and Lemon, by their pleas, denied the charge of fraud and all the other material allegations contained in the declaration.

Mr MacasseyJ appeared for the plaintiffs ; Mr -inith for Sumpter and Lemon, and Mr Barton tor Campbell. A good deal of evidence was taken, but the case had not concluded when our reporter loft the Court.