SUPREME COURT.

Lyttelton Times, Volume VI, Issue 385, 12 July 1856, Page 7

SUPREME COURT.

Friday, June 4This morning Charles G. Tripp, E«q., of the Hon. Society of Lincoln's Inn, London, Barrister at Law, was admitted to practise as a banister in this court. CIVIf. CASE. Ware v. B urley. Before His Honor Mr. Justice Waiefield and a Special Jury. Mr. Gresson, Provincial Solicitor, appeared for the plantiff; Mi.Dampier, for the defendant. Mr. Gresson, in opening, gave a general view of the case, which was, to obtain a decree from the court to compel the defendant to complete a contract he had entered into for the sale <>f some land at Okain's Ray, and for which payment had been partially made. The plea on the opposite side was, lsi, the defendant denied havinir made a contract; 2nd, he had not put plantifl'into possession; 3rd, he did not write the receipt for the money, or, i( he did, he was at the time in a siaie of intoxication, and did not know what he was doing. This was, then, an action t<« compel die specific performance of of a contract-.. The distinction between a conn oflawani] nit!-' of equity, was somewhat thus, that law gave relief in damages for a breach of contract; there were some cases, however, where mere damages to any amount, would not compensate for the injury inflicted, then equity gave a decree to carry t!>e contract into effect. This Court being a mixed court of law and equiiy, the facts necessary to establish the case would he brought before the jury, they would give their verdict as

to tbe issue of fact, and the court would judge of the law, and give a decree in accordance. Mr. Gressoti culled Tohn Collier, who said — I was present at an intsvview between plaintiff and dcfendani, on the IBih September. 1855. Defendant sold his land, at Okains Bay, to the plaintiff, for £37 10s.,and the crops, then in the »n>uiid, for £8. There was an agreement that defendant's cattle should remain on the run for one year. Defendant called on me to draw up an agreement, as he was a bad writer. I did so ; reading it to him as I wrote. Plaintiff and defendant both approved oi the agreement. The agreement now produced is my writing; the signature is that of Thomas Ware, the plaintiff. Defendant asked for some money on account, and p'antiff paid defendant £10. I drew up a receipt for it, and defendant signed it. The receipt produced is the one I wrote, and that is the defendant's signature. He wrote it on the 18lh, I swear positively that defendant was perfectly sober at the time. He declined to sign the agreement until he had been paid the whole of j the purchase money. Plaintiff-objected to pay all the money till lie had possession of the deeds. Defendant told plaintiff to go to Okains Bay, and ask Mrs. Webb (defendant's paruier's wife) for the deeds, out of his (defendant's) chest, which was in the house. On the 19th Sept., J plaintiff, in my presence, paid defendant £20 more. The words ltHh September, £20, and J. Collier, were then added to the receipt by me; defendant was then perfectly sober. Plaintiff asked defendant to put him into possession, and defendant said, '* You are are already living on the land —you have posses-sion ; what more do you want?" About nine days afterwards, plain- } liff, on his return from the Bay, brought the defendant to my bouse, and told him that the deeds could not be found. Defendant replied, " Oh, no; I knew they were not there. Mr. Kav, at Pigeon Hay, has my deeds, as security for £20." A notice from defendant to plaintiff, warning him off the land, was put in and read. Saiah Collier, wife of the last witness, gave corroborative evidence. Thomas Ware, the plaintiff, gave similar evidence. In addition to which, be said, I alterwards saw defendant at Okains Bay, and asked him what should be done about the land. He said he should not be content until it was brought.before a jury. I had a deed of conveyance executed, and tendered it for signature with the balance due ; be refused to sign it. The witnesses were all subjected to a strict cross-examination by the Counsel for the de-

fendant, but no new /'acts were elicited. Mr. Dumpier, for Lhe defendant, would move that the plaintiff he non-suited, for that this action was met by the statute of i'raiuls. The two documents —the agreement and the receipt, could uot he proved to be one transaction, save by parole evidence. The signature of tiie defendant was notattacbed to the agreement; they were not clearly contemporaneous nucuments. There were many points wanting to complete a contract; there was no mutuality, nor was there any obligation to complete a purchase. Mr. GieSM>n responded at lens-ib, citing cases where the Siai'tte of Frauds had been set aside in Courts of Equity. The (Ji>urt ruled against the non-suit. Mr. Danipier, for the defendant, then said that his client, at the time the transaction alleged took place, was unfortunately labouring under intoxication, although appearing to be sober. He could cail medical testimony to the Taut of his beins? about that time in an i.nfn state to transact any business. The Counsel then went iut'» the remainder of the case ior lhe defendant <tt length, citinii many cases in his favour. \I v. Gresson replied. His Honor summed up, laying the three points bel'oie the jury, wh", without retiring, gave a verdict for the plaintiff on all lhe points. Mr. Dampier then prayed a decree fur a new heavinsj, to argue the legal points; or lie would apply fi'i' a new trial at Wellington. His Honor detailed the disadvantages that would arise (Vow such a proceeding. Mr. Gresson proposed to move for a decree, to put one of lhe rules of the Supreme Co in into force, which inflicted double costs on a party who had put forth a pica wilfully, knowing the same to be false ; which he thought was the case as regarded the plea ol iu'oxication. Mr. Dampier then would ask if lie withdrew his motion, whether his learned friend, Mr. Gresson would withdraw his. Mr. GitS>on replied that he would cry quits. The public business of the court closed.