SUPREME COURT.

Evening Star, Issue 3158, 3 April 1873, Page 2

SUPREME COURT.

IN BANCO. Yesterday.

(Before His Honor Mr Justice Chapman.)

Southland Investment Co. (Limited) v. Burns. —Argument of rule nisi to deliver interrogatories and rescind order. —Mr Barton moved that the rule be made absolute, and Mr Stout opposed. Under the Statute, counsel for defendant obtained a rule for putting certain interrogatories arising out of a former case to Mr Larnach, manager for tho plaintiffs. The interrogatories were heard before Mr Justice Chapman in Chambers, on summons, when interrogatories from I to 19 inclusive and 26 were admitted, and from 20 to 25 were refused with costs. Counsel urged that since the majority of the interrogatories had been admitted, and that since the remaining interrogatories were relevant to the case, the order should be rescinded and the rule made absolute. Counsel for plainti If urged that the interrogatories objected to had reference to private conversations, and therefore were irrelevant to the case, and consequently could not be admitted. Arguments of counsel occupied the greater portion of two days. —His Honor said he would take time to consider the matter. Calder v. Duff. —Mr George Cook, on behalf of the plaintiff, moved for an injunntion to restrain defendant from ejecting plaintiff from the occupation of certain lands in the Province of Otago, pending the result of a certain action about to be brought before the Court.—Mr Barton appeared to oppose. It was set forth that in the month of May, 1850, one Dr Smeaton became owner of several sections of land in tho Province of Otago, and subsequently leased them to David Calder, tho present plaintiff, with a purchasing clause to operate at the expiration of eight years. Tho price fixed was LI2O. For some time the rent was duly paid, but after the lapse of years, through Smeaton not having appointed an agent to receive the rents either in New Zealand or England, the rents ceased to be paid. In May, 186.1, Smeaton, by deed of gift, conveyed the. lands to tho present defendant, C. M. Duff, atthat time a resident in India. But this fact was not made known to Calder until 1870. Calder, meanwhile, knowing that the time fixed in the lease for tho purchase had expired, and there being no one to receive the amount fixed, sold a portion of the land to one Aitken, and admitted his sons to participate iu the remainder. In 18/2, Duff brought an action to recover rentals owing and possession of the lauds, and obtained a verdict. Counsel for plaintiff urged that since 1870 his client was prepared to pay the price fixed for the lands, together with all rentals accruing, to C. M, Dud on production of a trustworthy title, but ho was not prepared to pay to Mr Duff rentals due before 1863. He also urged that Mr Calder was not in a position to be called upon to pay the money, until it was shown that defendant was in a position to issue a Crown grant. He was prepared, in case the injunction wore granted, to accept judgment and pay tho sum of money to be fixed upon into Court, with

the view of bringing tho matter to a final settlement without further action. He also intimated that in case the injnotion was refused the plaintiff would yield, P a Y the interest demanded, amounting to about LBO. and claim tho value of the improvements made on the lands. Counsel for the defendant urged that it was inequitable that, plaintiff should be entitled to restrain defen dant from action, without judgment having iu the first case been entered up. fie also argued that the time fixed iu the lease for the completion of the purchase had lapsed, and that therefore the plaintiff had lost the right. In 18 8 the purchase ought to have been completed, hut it was not until 1860 that any money had been received from the plaintiff. During th l ' latter period LBO was received for arrears of rent. In 1861 Caldor intimated for the first time his desire to complete the purchase. Counsel therefore urged (1) that the original agreement was at an end ; (2) that it had not been shown that any subsequent verbal agreement had been entered into ; (8) that if such agreement had been entered into, it would come under the Statute of Frauds ; and (4) that the points relied upon by plaintiff for keeping iu possession were improvements made and possession. Nor was it alleged in the declaration that the defendant had at any time previous to the former action received notice of plaintiff’s intention to purchase. He therefore held that, if it was the intention of the ( ouit to grant an interim injunction, it should be so made as not to prevent action against the other occupiers of the lauds, and also that plaintiff should be obliged to pay a sura of money into Court equal to the amount likely to be obtained from a jury.—Mr Cook said he would object to pay a sum larger than that suggested at former hearing. The Court then adjourned until eleven o’clock this morning.