SUPREME COURT.

Globe, Volume XXI, Issue 1768, 20 October 1879, Page 2

SUPREME COURT.

SITTINGS AT NISI FETUS. [Before his Honor Mr Justice Johnston.] The civil sittings of the Supreme Court resumed at 10 a.m. WEIGHT V WILSON. This was an action in which Alfred Walter Wright was plaintiff, and William Wilson defendant. The plaintiff sought to obtain the specific performance of a contract alleged to have been entered into between the plaintiff and defendant for the purchase of certain property in Lichfield street, and the granting from the defendant to the plaintiff of a conveyance of the premises, which the defendant refused to do. The plea of the defendant was that the plaintiff had broken the covenant of the lease under which power of purchase was given in not having kept the premises insured. Mr Joynt, with him Mr Walter Stringer, appeared for the plaintiff. Mr Garrick, with him Mr Holmes, appeared for the defendant.

The following issues were sent to the jury : 1. Was a deed of lease on or about the 3rd September, 1877, made and executed between Francis James Garrick and William Patten Oowlisbaw therein described of the first part, the defendant of the second part, and the plaintiff of the third part, as in the declaration alleged, and is the said deed in the words and figures sat out in the first paragraph of the plaintiff’s declaration ? 2. Did the said Francis James Garrick and William Patten Cowlishaw, by deed dated the 22nd day of June, 1878, and made between the said Francis James Garrick and William Patten Cowlishaw, of the ore part, and the defendant of the other part, reoonvey the parcel of land and premises comprised in the said deed of lease to the defendant, his heirs, and assigns for ever, freed and discharged from their deed of mortgage, and from all principal, interest, and other moneys intended to be secured thereby, and from all actions, suits, accounts, claims, and demand for or in respect of the said deed of mortgage as in the declaration alleged ? 3. Did the plaintiff, since the date of the said deed of reconveyance, and before the commencement of this action tender to the defendant the sum of six hundred and fifty pounds for the purchase money of the said parcel of land and premises and also the amount of all rent then accrued and of a proportionate part of the rent for the fraction of the then current quarter to the day of such tender, and request the defendant to accept the said purchase money and rent, and did the defendant refuse so to do, as in the declaration alleged ? 4. Has the plaintiff since the making of the said tender of the purchase money and rent, as aforesaid, tendered to the defendant, for execution by him, a deed of conveyance of the said premises by the defendant to the plaintiff, and has he requested the defendant to execute the same and has the defendant refused so to do, as in the declaration alleged ? 5. Was the defendant at the time of the execution of the said deed of lease absent from the colony of Now Zealand, and was the said deed of lease executed by one William Wombwell Charters as attorney for and on behalf of the defendant ? 6. Were the said AVm, Wombwell Charters, Francis James Garrick, and William Patten Cowlishaw induced to sign and execute the said de d of lease by the representations of the plaintiff that the defendant had agreed to grant to the plaintiff a lease of the lands and premises comprised in the said deed for a period of twenty years or thereabouts after the expiration of a then existing lease of the said lands and premises, and that the defendants had agreed to take a rent of £4O a year for the said twenty years or thereabouts, and that the said agreement was in full force and obligatory upon the defendants as in defendants’ plans alleged ? 7. Did the said Wm. Wombwell Charters as such attorney of the defendants and the said Francis James Garrick and Wm. Patten Cowlishaw relying on the said representations of the plaintiff sign and execute the said deed

8. Were the said representations false and fraudulent?

9. Did the defendant within a reasonable time after he had notice of the said alleged fraud, and before ha had received any benefit under the said deed repudiate and abandon the game, and did he give notice of his repudiation and abandonment thereof to the plaintiff, as in the defendant’s plea alleged ? 10, Were all conditions fulfilled, and did all things happen and all times elapse necessary to entitle the plaintiff to have a deed of conveyance of the said parcel of land and promises executed to him by the defendant, and to maintain this action ?

11. Did anything happen, or was anything done to prevent the plaintiff from having such deed of conveyance executed to him by the defendant or from maintaining this action ?

12. Has the defendant executed to the plaintiff such deed of conveyance ? 13. Does he wholly refuse so to do ? The following additional issues, proposed by the defendant, were included : 14. Did the plaintiff sublet or part with the possession or occupation of the said land and promises, or any part thereof, without the previous consent in writing of the defendant, and of the said Francis James Garrick and William Patten Oowlishaw, as mortgagees for that purpose first had and obtained contrary to the covenants in that behalf contained in the said deed and on the part of the plaintiff to bo performed or observed ? 15. Did the plaintiff as such lessee at any time during the term by the said deed granted omit to insure and keep insured in the joint names of the said William Wilson and the plain tiff all buildings and erections erected and built on the said land thereby demised in any public office or offices for insurance in the full insurable value thereof, contrary to the covenant on that behalf contained in the said deed, and on the part of the plaintiff to be performed or observed.

Mr B. S. Harley was chosen foreman of the special jury. Mr Stringer having opened the case by reading the declaration, &s. Mr Joynt addressed the jury upon the evidence he intended to call in support of bis case. He then preceded to call witnesses. Alfred Walter Wright, the plaintiff, gave evidence at great length as to the negotiation between defendant and himself for a renewal of the lease of the premises, and the conditions upon which it was agreed to be granted. The witness was cross-examined by Mr Garrick at considerable length on the negotiations between the defendant and himself as to the lease proposed to be granted by the defendant to the plaintiff. The witness deposed to the defendant having given him a memorandum for a lease. The defendant never asked for the return of this memorandum on the ground of false representation. The buildings had been insured by him in the .Union office for £330. The defendant never expressed surprise at the plaintifi having got the premises at a rental of £4O per annum during his absence in Melbourne. Mr Joynt re-examined the witness, and in reply to questions, he stated that the reason why he had obtained a memo, for a lease from Mr Wilson was to enable him to proceed with his alterations. Witness took up the position of Rev. Fraser and undertook to put the buildings in repair at the end of his term. Oharas A. C. Cunningham, managing clerk to Messrs Joynt and Perceval, deposed to making a tender of £664 4s in gold and silver to Mr W. Wilson on 2nd August, 1878. He explained to defendant that it was the purchase money and rent to date of section 981 in Christchurch, tendered on behalf of A. W. Wright, the plaintiff. Defendant declined to take the money, and said he would defend the action, | Left sitting.]