SUPREME COURT—IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5536, 24 December 1878, Page 3

SUPREME COURT—IN BANCO.

MONDAT, D.ECEMBEB 23. (Before his Honor the Chief Justice.) NATHAN V. TDBNBUIX.

Demurrer to plaintiff's bilL Mr. Travers (with him Mr. Bell) in support of demurrer; Mr. Brandon (with him Mr. Brandon, jnn.) in support of bill. This was a suit brought by Joseph Edward Nathan against Walter Turnbull, for the mecific performance of a certain covenant in , deed of lease. The declaration alleged that u the 23rd January, 1875, defendant leased to 'eter Donecker a piece of land in Willißreet (on which stands the Union Hotel) for torm of 21 years. In the lease was a purwing clause giving the tenant, his heirs, •outers, administrators, and assigns, the Con of purchasing the property at any time vtiin 10 years on his giving notice of his iiiition so to do, ench notice to be served persollyon the lesßor, his heirs, administrators, or astau, at hia or their last known place of »b« ; the price, should he elect to purchase wita the first five years, to be £2OOO, and if witi the second five years, £3OOO. Between the )mmencement of the term of the lease andhe end of June, 1878, Donecker dealt witlthe land in various ways, obtaining mon upon it, but on 30th June he conveyed and signed to plaintiff all his estate and intett in all the land demised by the firstmenfeied lease, subject to certain deeds of underiaoe to one Charles Brown and William Mbrandt, and also subject to a mortage l the Wellington and Hntt Building Sociot;which was paid off tho following day. The deration then went on to allege that defends; is out of the colony, and that Charles Effingham C ipper is his duly authorise agent appointed by a certain deed of poll, opower of attorney, under the hand and seal : the defendant, dated on or about 11th Sept 1877. to act for him in his the defendants' isiness of W. and G. Turnbull and Co. in relaon thereto, and in relation to any private affirs, and in the aile and disposal of any goods, hattels, land, and effects, as fully and effectully as the defendant could do if personally prejnt. That on the 29th April, 18/8, plaint! caused to be Berved upon defendant, throng his agent, Capper, a notice of his desire to purhase the fee simple and inheritance of the lesed land, expressing willingness to tender the prchase money; and that on the 2Bth July, IPS, plaintiff tendered the money to Capper, bn he refused to accept the same, and has alway since refused to execute a conveyance of thtland to plaintiff. The defendait demurred on two grounds. (Ist.) That plantiff had not shown that the right of purchaa had been assigned to him ; and (2nd.) Tiat „the service of the notice effected was no. sufficient to satisfy tho terms of the lease.

Mr. Travers: With respect to the first point of demurrer I submit this right of purchase is ft privilege granted to the original tenant, and a, mere assignment of the lease to plaintiff, as stated here, wouli not convoy to plaintiff Donecker' option. It is not an estate or interest in the land, but an option to secure a right or interest. Had Donecker himself given notice no doubt that wonld have created an interest which might have passed. N*n constat that Donecker may not have released or have reserved the option to himself. Contracts of this kind are collateral, and not incident to the term of the lease at all. As to the second point, there is no pretence that it was served personally, nor that the notice was left at his last known place of abode. This is important, because the literal fulfilment uf the conditions precedent in these matters will be strictly insisted upon. Service upon an agent is not sufficient to satisfy the terms of this option. Oaseß cited—Weston v. Collins, 11 Jurist, K.S., 190; Green v. Lowo, 22 Beavan; Brook and Garrard, Kay and Johnson, 608. Mr. Brandon : Plaintiff is the assign of the whole lease, and therefore the whole of Donecker's interest has passed to plaintiff. It may be termed a privilege, but it is a privilege which is irrevocable nntil after the time within which duties are to be performed entitling the lessees to purchase. The Chief Justice: Do you contend thatDonecker could not separate the term and the option 1 Mr. Brandon: He must have done it specifically. He assigned the whole estate and interest here. The Chief Justice : Is the option an estate or interest ?

Mr. Brandon : Clearly, on the authority of Edwards v. West, L.R., 7 vol. 1 Div., Chan., 858. As to the other point, Capper wasappointed attorney for all purposes, whether in respect of Turnbull's business or his private affairs. This was one of tho matters anticipated by the power of attorney. Service upon Capper must he regarded as service upon defendant himself. Liddy v. Kennedy, L.R., C H.L,; Tanham v. Nicholson, ibid. Judgment reserved. IN BB S. J. HILL. Mr. Oowan mentioned this matter, and asked that it might stand over until after the holidays. HEO33JA (OS THE IHtfORMATION OF M'KELLAB) V. BTBNNOTT. The Chief Justice delivered judgment as follows :—ln this case a rule nisi was obtained calling upon the Resident Magistrate in Wellington and the Collector of Customs there to show cause why the conviction of one Stennott should not be quashed on several grounds. The first ground was that the conviction did not show upon whose information the conviction was obtained. The form of conviction given in the schedule to the Customs Act, 1858, does not shew this, arid by section 196 of that Act convictions under the Act may be in the form given in the schedule. The second and third grounds are that the conviction is uncertain, and not for a single offence. It is true that the conviction appears to have been intended to have been of the offence of unshipping prohibited or restricted goods, and also of tho offence of evading duties of Customs ; but the conviction does not convict of the former offence, for the only words introduced in the' conviction applicable to that oflence are " waa knowingly concerned in unshipping certain goods." No statement is made that the goods were prohibited or restricted, consequently all that can be urged against the introduction of the words "in unshipping and " is that they are surplusage and unnecessary, but the introduction of them does not vitiate tho conviction. But it was also contended that the residue of the conviotion is bad, as being in the alternative; but in this respect it follows tho form ol information given in the sohedule, and consequently is justified and supported by the 19th section of the Aot. The fourth ground is that the quantity of goods is not specified with sufficient certainty. The objection is that the word "about is introduced before the quantity. If the penalty imposabla was in proportion to the amount then there would have been more reason for the objection, but as this is not the case I think the description of quantity is sufficiently certain. But however this may be, I think tho 196th seotion precludes such an objection being raised; for that provides that no conviotion shall ba held void by reason of any defect therein. This provision I think in effect prevents an application to quash a conviction on the ground of a defect on the face of the conviotion. The last objection, that'oosts were awarded against the defendant, but ara, not adjudicated in tho eonviction, is not an objeo-, tion on the faoo of the conviction. The magistrate was not bound to award costs, and the conviction is good though silent on the subject. The rule must be discharged, with costs. BAYFIELD V. GUILLINZ AND OTHEBS. The Chief Justice delivered judgment as follows:—In this case the plaintiff alleges that he was' a shareholder in the Defiance Gold Mining Company, and that the defendants were also shareholders therein ; that the defendants improperly, and against his will, sold the mining property upon terms amongst others that a new company should be form«d) Bad that ewh of th» shareholders in

the Defiance Company should have apportioned, to him shares in the new company proportioned to the number of shares held by him in the Defiance ; that the new company was formed, that all the defendants became shareholders therein ; that all the defendants except Guilhne, Shaw, and South have had shares allotted to them under the terms - abovementioned ; that the plaintiff has applied for his proportion of Bhares, aud they have been refused. It also alleges that the defendants were privy andasaenting not only to the saidaale of the Defiance mining property, but also to the Baid apportionment of the said shares. Now, assuming that this latter averment includes an averment not only that the defendants were privy and assenting to tho apportionment of shares to the several defendants, except those specified in paragraph eight, but also that they j were assenting to the exclusion of the plaintiff I from the apportionment, then the case made would be a decree that the new company should j carry out the terms of the sale by allotting to | the plaintiff his proportion of Bhares ; but that is not the relief asked. The plaiutifE asks that the defendants should make good to him his proportion of Bhares, apparently on the ground that the new company, with the assent of the defendants, had refused to carry out the agreement. At the argument, however, the Attorney-General sought to support the declaration on the ground that the declaration showed that the defendants had sold the Defiance property, including the plaintiff's interest therein, and had obtained the whole consideration for this sale. I think the declaration failß to make thi3 case; indeed it does not appear that Guillme, Shaw, and South received any allotment of shares in respect of the Bale, and it doeß not appear that the other defendants received as their allotment of shares more than their proportion. This being the case, I think the demurrer mast be allowed. I have hesitated much in arriving at a conclusion as to what case the plaintiff intends to make. I have arrived at the conclusion that the view put forward by the Attorney-General is the correct one, namely, that the plaintiff intended to adopt the sale, and to make a case that the defendants had received all the consideration, and that he was entitled to receive from them, not from tho new company, his proportion ; but for the reasons above-Brated, his declaration fails, I think, to make this case. The demurrer is allowed, with costs. The Court then adjourned until after tho Christmas vacation.