SUPREME COURT.

Globe, Volume VIII, Issue 1031, 15 October 1877, Page 3

SUPREME COURT.

Monday, October 15. (Before His Honor Mr Justice Johnston.) The Court opened at 10 a.m. MITCHELL V MITCHELL. In this case Emily Mitchell was plaintiff, and Edward Mitchell defendant. The plaintiff had commenced "a divorce snit against the defendant, and the suit had proceeded so far as the settlement of issues of fact for the jury. The case however was withdrawn from the cause list on the understanding that the defendant would enter into a deed for the

I payment of £IOOO, £250 at time of completion, and three yearly payments of £250, and also convoy certain property and pay all costs of plaintiff. The defendant, however, it was alleged, after the withdrawal of the cause, persistently evaded any appointment to sign the deeds, and the plaintiff now averred that the defendant had sold a considerable portion of his property, and was endeavouring to get rid of (he whole, prior to his departure from the colony. The present action was brought to compel a specific performance, on the part of the defendant, of the conditions of the deed upon which the cause was withdrawn from the record. The plaintiff therefore prayed that the defendant might be ordered by the Court to fulfil the conditions of the deed to convey the said property, and to pay the said sum of £250 and all costs. The defendant pleaded a denial of all the material allegations. Mr G. L. Lee was chosen foreman of the special jury. Dr Foster, instructed by Mr H. Slater, appeared for the plaintiff. Mr Joynt for the defendant. Dr Foster having briefly opened the case, called evidence to prove the commencement of the suit. Mr E. Davis, Deputy-Eegistrar of the Supreme Court, proved the steps in the case. Mr Cowlishaw, who had acted for defendant, deposed to his firm sending ceitain letters containing terms of proposal for an ;.,micable settlement of the suit. Mr Joynt objected to the reception of these letters as evidence, as they were written without prejudice. His Honor ruled against Mr Joynt, but took a note of the objection at his request. A number of letters passing between Messrs Slater and Son (for the plaintiff) and Messrs Grarrick and Cowlishaw (for the defendant), detailing the propositions for the amicable settlement of the matter were read. Dr Foster now proposed the acceptance of the terms proposed by parol evidence. Mr Joynt objected. The whole contract must be in writing, to prove being within the Statute of Frauds and as affecting land. Dr Foster submitted that Mr Joynt could not urge this, as it was matter for demurrer. His Honor ruled that Mr Joynt could have taken the objection on demurrer, and that parol evidence could be given of the acceptance of terms, subject to leave to defendant to move. Mr Cowlishaw then proceeded—On the 20th October Mr Slater came to me, saying that he accepted the security offered by us to settle the matter, and asked me to join with him in withdrawing the record, which I did. On 25th October I received a letter from Messrs Slater and Son. [Letter read, applying for deeds of property proposed as security for them to be paid to plaintiff ; several other letters passing between the parties, relative to the draft, deeds of separation, and mortgages of property.] Henry Slater deposed that he was the solicitor for the plaintiff on the record. [Witness here produced a number of letters relative to the settlement of the action, and the request of the plaintiff to the defendant's solicitors asking for completion of draft deeds.] A letter, dated 18th December, from defendant to plaintiff, was brought to witness by Mrs Mitchell declining to sign over his property to the trustee—Mr Charles S. Hulls—proposed by the plaintiff, as he was a man of no position, and one who might be here to-day and gone to-morrow. Besides he was a comparative stranger, and his idea was that his motives were actuated by other than friendship. He (the defendant) would never allow of his property being mortgaged to him. If Mr Thomas Preece, or any other gentleman well known, was nominated as trustee, he would have no objection. This was the plaintiff's case. Mr Joynt, for the defence, then called Edward Mitchell, who deposed that he was defendant, in the case. He did not know Mr C. S. Hulls, and only saw him last week for the first time. Pie never understood that Mr Hulls had anything whatever to do with the arrangements. Mr Joynt proposed now to prove that Messrs. Garrick and Cowlishaw, the solicitors for the defendant, had exceeded their instructions by approving of the draft deeds forwarded to them contrary to instructions, and without Mr Mitchell having had an opportunity of seeing them. The learned counsel quoted certain authorities in support. His Honor ruled that he could not for one moment allow of this being done. He should hold that such evidence was not receivable upon the issues proposed. Mr Joint's contention was noted by his Honor, and also the question, as follows : " Did you during the pending of the correspondence give any specific instru tions to Messrs Grarrick and Cowlishaw; and if so, what were they p " Mr Joynt then said that his Honor ruling in that direction ho would ask no further questions of the witness. His Honor would, of course, reserve the points spoken of. Neither of the counsel addressed the jury. His Honor shortly summed up the case, and the jury then returned a verdict on the issues, as follows: 1. Did Emily Mitchell, the wife of the defendant, on or about, the 2nd day of April, 187 b", present her petition in this Court, against the defendant, praying for a judicial separation, and did the defendant through his solicitor, Messrs Garrick and Cowlishaw, make proposals to the said Emily Mitchell for an amicable settlement of the said suit ? Yes. 2. Did the said Messrs Grarrick and Cowlishaw write and send to Messrs Slater and Son certain letters ? —Yes. 3. Did the petitioner accept the security over the Hereford street property mentioned in the said Messrs G-arrick and Cowlishaw's letter of 20th October, and did the said Messrs Slater and Son, thereupon, at the request, of the said Messrs Garrick and Cowlishaw, withdraw the record of trial ?—Yes. 4. Did tho said Emily Mitchell appoint one Charles Stephen Hulls to act as her trustee, and had defendant notice of such appointment ?—Yes. 5. Did the said Messrs Slater and Son prepare and forward to Messrs Garrick and Cowlishaw on behalf of defendant the draft of the several deeds ?—Yes. 6. Were the drafts so forwarded as aforesaid returned by tho said Messrs Garrick and Cowlishaw approved by them on behalf of defendant, and did Messrs Slater and Son forward them to Messrs Garrick and Cowlishaw for execution by defendant, aud did Messrs Garrick and Cowlishaw forward the said deeds for execution by the petitioner and Chas. S. Hulls, and did they execute the same ?—Yes. 7. Has the defendant refused to complete his said agreement ?—Yes. The Court then rose.