APPEAL COURT.

New Zealand Times, Volume XXX, Issue 4577, 20 November 1875, Page 2

APPEAL COURT.

Friday, November 19. (Before their Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Gillies, and Mr. Justice Williams.) THOMAS AND OTHERS (APPELLANTS) SMITH (RESPONDENT.) This was an appeal from the judgment of the Supreme Court in the northern judicial district, on a demurrer by the respondent, plaintiff in the action in the Supreme Court to a plea of the appellants, defendants in the action. The action was brought by the plaintiff to recover £16,000 from the defendant, for wrongfully preventing him from completing certain work in a mine known as the Queen of Beauty mine, situate at the Thames goldfields, of which the defendants and. another were owners, which work, by an agreement in writing and alleged to have been made between plaintiffs and defendants, was to have been paid for by the plaintiff’s heingallowed to take for his own benefit certain quartz in the mine. The agreement was set out in the declaration, and purported to be made between the plaintiff by name of the one part, and the. shareholders of the mine, of the other part, without mentioning their names, but was signed by tbe plaintiff and the defendants in their own name. The plea set out that, at the time of making the agreement, there was another person besides the defendants who was an owner of the mine, and that this person never signed the agreement, or was in any manner a party to it, and that the plaintiff, at the time of making the agreement, knew all the owners of the mine had not signed the agreement.: ... Appellants were - represented by Mr. Macassey (with whom was Mr. Bell) ; and Mr. McCormick appeared for respondents. Mr, Macassey first desired to take objection to the declaration, contending that rule 214 pointed to the count considering objections to a declaration, although a demurrer had been argued in the Court below, and in support of his contention cited Clapham v. Atkinson, 4 B. and S., 731 ; Coe v. Wise, L. K. 1 Q. B. 717. The Court having decided to hear the point, the learned counsel objected that the declaration did not comply with sections 4 and 17 of the Statute, of Frauds. - In that it did not give the names of the parties. He said the matter turned upon the construction of section 182 of the Gold Mining Districts Act, 1873, and then went on to cite Hodgson v. Johnston, 28, L. J., Q. B. 88, and 5 Jur. N. S. 290, Cousins and Scott (judgment of the Master of the Bolls) 32 L. Times 420, Galloway v. Jackson, 12 L. J. Ex. 502, Coquet v. Moore, 7 Ex. 870, and L. J. Ex, 35, Patter and Duffield, L. B. 18 Eq. 4, Smith v. Ball, 15 L. J., Q. B. 413, Beg. v. West, 1 Q. B. 826. The declaration did not allege the contract was signed as it ought to have done. It was a contract relating to interest in land (Smart v. Jones, S 3 L. J., C. P., 154 ; it was a joint contract with all the shareholders in the mine, Dowdall v. Hallett, 14 Jur. 309. It was a fluctuating liability. The contract had never been binding upon Walsh, the seventh shareholder, because he had known nothing about it, aud had not signed it, aud if it was not binding upon him, therefore it was invalid against the other six. They could not enter into a contract to deal with the property of another. Latch and Wedlake, 11 A. and E., 959. Until all signed there could be no mutuality, which is the very essence of a contract. He submitted that the judment of the Court below must be reversed. ;

Mr. McCormick contended that any objection which might have been taken by demurrer to the declaration was got over by plaintiffs’ plea, and the Court must consider the case upon the whole record, and could only say whether the judgment of the Court below was bad in Law, and according to the very rights of the parties. He cited Stephen on pleading, Wilkinson and Sharp 10, Ex. 724. He submitted that the contract must be taken to be the contract of all the shareholders ; it was not alleged that Walsh objected to the contract, or that he had repudiated the benefit he had received from the contract ; nor was it shown that he was at the time able to perform the contract—that he was not non compos mentis, or absent from the colony. Even if plaintiff had been aware of the existence of Walsh, that would not affect his (plaintiffs) case —McNeill and Held, 9 Bingham, 63. Having continued his argument at some length and cited several cases, The Court intimated they did not desire to hear any more from the learned counsel for respondents, but would call upon Mr. Macassey to reply. Mr. Macassey said be could urge nothing new in reply. The Chief Justice said the Court had decided against appellants, and should sustain the judgment in the Court below. A written judgment would be delivered in a few days. IN RE HERBERT V. THOMSON AND OTHERS, EX PARTE THOMSON AND OTHERS. Mr. G. E. Barton moved for a rule nisi, calling upon plaintiffs to show cause why an appeal, notice of which had been given, should not be set down by the Court. Some time since Mr. Justice Johnston granted an interim injunction restraining the defendants, who compose the Waste Lands Board of Otago, from offering for sale on deterred payments certain land forming part of plaintiffs’ run, but on hearing argument for the injunction absolute, Mr. Justice Williams dissolved the injunction. Plaintiff obtained leave to appeal. The case had been printed and distributed among counsel, but up to the moment of making application, the appeal had not been set down for argument.

- A long discussion took place on the motion and eventually the Court granted the rule nr returnable in fonr days, hut intimated that if it were made'absolute the case must be set down at the bottom of the list, in fairness to other suitors who had given notice weeks since, and at the same time .their Honors expressed the opinion that they would not be able to get to the bottom, of the list- before the session must be-clo^d. The. Court , then adjourned till two o’clock on Monday; arranging to take divorce cases at eleven o’clock. ' •