SUPREME COURT, HOKITIKA.

CIVIL JUBISDICTION.

(Before his Honor Mr Justice Williams.)

Tuesday, Sbptembeb 16.

UNION BANK AND ANOTHER V. CHESNBT.

Mr Lewies appe red on behalf of Mr L. Harper, the plaintiffs' solicitor, and applied tor an adjournment of the hearing «>f this action on the ground that Mr Palmer, chief officer of tbe bank was unable to be present. Mr Palmer had applied to hire bis evidence taken in thristchurch, but the defendaat had opposed it. Thera was nothing to prejudice the defendant in the delay. Notice bad beeu given to the defendaot that this applicatiou would be made, and the amended statement ot defence bad only been served on the 11th inst. Under the 15 1 st rule of the code this was a substantial ground for the (,'ourt to grant an adjournment. Really tbe plaintiffs haJ had no time tj consider the am. nded defence. His Honor asked how the defense had been been amended. Mr Lewis said the Statute of Limitations had been pleaded.

Mr Purkiss for defendant objected to any adjournment. These actions had heen before the Court since 1879. In 1881 another action was uken. The def ndant had betn taken to the po-tils of the Court on threa ccca-ions. In 1883 a second action was commenced The defendant was already £20l) out of ptneket, costs he could never recover. Was the business and onvenience of tbe Bank to over-ride all other consideration. The defendant hid suppoenaed Mr Palmer who ha I not appeared. Th's case teemed to be another Jarndyce v. Jarndyce. Presently some of the defendant's witnesses would bedea-J. It was the sirae thing every sis mo iths. This Mr Palmer had been tendered the money, bub be would not come on account of the bank balance.

His Honor asked why defendant objected to Mr Palmer's evideuce being taken in Christchurch P

Mr PurkLs said the books and documents in the case were here. The proceedings of the plaintiff's were vexatious in the extreme Under ' the new code extra costs were thrown on defendant. Mr Guinoe s had bean briefed by defendant. The caee would have come on last sitting, but the parties could not agree as to the tacts.

Mr Lewi* said the present action was not previously commenced. Tbe first ac ion was against Chesuey and Home That was the one that was discontinued The defendant could not be prejudice. Notice was delivered to defendant's solicitor early on the 1 Ith September. The witnesses lived here.

His Honor said the witnesses might not be here in six months' time.

Mr Purkiss said th?re was no affidavit before the Court.

His Honor saw do reason for postponing the action. If plaintiff's set down the action for trial it wai ro be supposed they were ready. Mr Palmar stayed away for his personal convenience, which he had no business to do Mr Palmer ought to attend. The defendant bad no right to be hung up in this way to suit the convenience of tbe bank.

Mr Lewis said there was the amendtd defence.

His Honor did not know that this further statement of defence would pre juJice the plaintiffs. These cmtiaual p stponemen's added to the costs of the defendant, which be could not recover The application for postponement would bo refused.

Mr Purkiss said, tben judgment would be for tbe defendant.

Ilia Honor did not know that yet.— (Laughter 1 Mr Lewis did not propose to appear Mr Purki'B applied under rule 259 (bra judgment dismissing tbe action.

His IJonor gave judgment, dismissing the action, costs, £69 17 ; coata of Court, £17 6« ; total, £87 3?.

FERGUSON AND ANOFHEB V. EVANS.

This was an action to reover the sum of £550, amount paid tor a share of run (£400), with damages (£150). The plaintiff:) purchased the defendant'^ inter eit in a run, which was held by defendant and two others, Diedricb aud Allen. Allen refused to sign the transfer, or to recognise plain'ifls, who alleged they could not get possession.

Mr Purkiss appeared for plaintiffs and Mr Guinness for defendant,

An agreemeut was put in which Mr Guinness contended was an absolute transfer of defendant's light, title and interest.

Mr Purkis3 said tbe Waste Lands Board would not transfer to the plaintiffs defendant's interest, without the signatures of Diedrich and Allen. Plaintiffs were willing to pay £200, balance due, at once, if they could get possession. They were satisfied witn their bargain.

For the plaintiffs, Mr Purkiss called,

Samuel George Ferguson, who said— l carry on business as a runholder with James Dunlop. I know Mr J. Evans., and I know the Waitaha run which he

holds with Allen and Diedricb. On August 23rd« I purfltiflsed" it Boss, Mr Ey&ns 1 iuterfisb ; the; ig^emlnj; produced w4s &igne;j& at PoftitV hflt«l Bos; It was" prepaid B? Mf B tide j 'all of the property I got deliver? <ff »t«I two horses, two saddles and bridles i Evens' promised to go to ihe Land Board, attend the first sitting, ana" apply for a tra iefer of lease, to have iur names inserted in place of his name; nothing more was F-ud at the time; I have never received a transfer of the license; I spoke to defigndiint and he said that his partner would t:ot agree to it until a dissolu'i ra took pluce; defendant never asked me for security for tbe balance of £200 uitil after this action was commenced.

To Mr Guiiness: I lent Mr G'llam a iio s p ; Mr Gillam's mare and foal m"»y have been grazing ou th.-: run ; some oi my horses have been on the run too ; there were eight or nine ; I know a man named George Smith ; he was in my employ ; I have once shot cattle on the run ; I thought I had a ri^ht to go there then ; Mr Dunlop shot a young bull ; I never spoke to Allen,; he never prevented me goi ig on the run ; I never attempted to take pos'ession ; I know Alexander Donighue ; I grazed his cow on my freehold p.iddock, not on the run ; amm named Paterfon is in my employ ; I never went with him on the run to muster cattle ; I know a horse named Jack, one of those I got from Evans ; that horse is not permanently injured ; I never took

possession of any of the utensils mentioned in the agreement ; Mr Evans told me he would give me a power of attorney, but 1 said I did not want to be his servant. Jie« examined by Mr Pnrkiss : Mr Evans said he would pay the £10 transfer fee out of his pocket. To Mr Purkiss— Mr Evans did not say he would pay half the fee ; he said be would pay all of it. I could not say whether that was before or after the agreement was signed. William Blanc, clerk of the Court Ross, said — I know plaintiffs and defendant. On 23rd August, 1883 I wrote an agreement at Mr Evans's dictation, between the parties ; the agreement produced is the one ; Mr Evans said nothing to me about any security for an unpaid balance ; nothing was said about giving possession. To Mr Guinness : I advised the parties to go to Hokitika to a lawyer ; possibly I may have said that Allen and plaintiff! would not get on well together ; Ferguson said he did not care about Allen, he was buying Evans's property. Richard Porter, publican, Ross, said— I know the parties to this action : I recollect them calling at my hotel on August 23rd last year; the agreement produced was signed in my presence ; there was £400 to be paid at once, and £200 in two years ; nothing particular was said outside of the agreement as to how possession was to be given ; nothing was said about the Waste Lands Board. To Mr Guinness : Mr Evans offered to go down to the run to assist to muster the cattle for no charge but his "tucker./ Ferguson seemed satisfied. James Dunlop, one of the plaintiffs, corroborated Ferguson's evidence. Be said— Nothing was ever said at the time of making the agreement about going security for the £200 due on the sale of the run: Mr Evaus proposed to go to Hokitika and get our names substituted for his on the license ; subsequent to the agreement being signed. Mr Evans said he ought to get security ; if he had transferred the run we would have paid him the moneyTo Mr Guinness: No security was asked for at the time of the agreement ; Evans said he would pay for the transfer out of his own pocket ; I believe he said that both before and after the agreement. Mr Guinness, for the defence, called the following witnesses :— James Evans said— l am defendant in this action. I was one of the lessees of the Waitaha run. I was coming to Hokitika when I met Ferguson and Dunlop ; they asked me what I wanted for my interest in tbe run ; I said £600; Ferguson gave me £1 deposit; next day, 23rd August, we came to Ross, where an agreement was drawn out by Blame; at Koss I askid tbem to come to Hokitika, to give me security for £200, they having paid me £400. Not a word was said about Allen ; I did not say I would get Allen and Diedrich to sign the transfer ; Ferguson said I ought to go halves in the expense of the transfer t^e ; I said I would nob be hard upon him ; I never agreed to pa/ tbe £10 myself. I offered to go on

tbe run for them ; Ferguson said be would

let me know if be wanted me. 1 have had tbe run for 16 years; Ferguson knows it as well as I do ; Died rich has no interest in the run ; I made nil the improvements on the run. 1 was never in partnership jvith Alien ; I have only a share with

Allen in 40 head of cattle ; I have taken oo action against Allen. I have authorised no one to interfere with plaintiffs ; I know nothing of the letter written to plaintiff by Alien. I recollect laet Tuesday; on that day eighteen horses were brought down off the run to Ferguson's paddock. No document of trausfer has ever been tendered to me for signature.

To Mr Purkiss : My name is on the license to occupy. I never stopped plaintiffs from going on my run; when they pay me the £200 I will transfer the lease ; I hold the lease as security ; I offered them a power of attorney because they said Allen stopped them from going on tbe run ; lam prepared to transfer my interest at the Waste Lands Board, if plaintiffs pay me £200 or give security to pay it. John Allen said— l am one of the licensees of the Waitaba run. I know the Kov. Mr Gillam'smare ; it has been grazing on the Waitaha run about twelve months. I am not, nor have I been in partnership with Mr Evans. I wrote a letter to Ferguson ; 1 offered to sell tny share of tbe run at a fair price. I saw ten or elevm head on the run branded A.D.

Alexander Urquhart, ferryman at the Waitaha river, said — I know the Waitaha river. Fergu on told me he bad 28 horses on the run.

George Smith said— Last October I was down south in Ferguson' a employ ; some time after the sale of the run 1 went into Fergus >n's employ ; I took a bay horse off the Waitaha run ; I have known Ferguson and Dunlop go out cattle shouting ; sometimes they went in the direction of the Waitaha.

Alexander Donohue siid — I life at Donohues near Eo?s ; I work in a claim with Dunlop ; I have bo cattle branded A.D.

Benjamin Paterson, laborer, said— l am in Mr Ferguson's employ ; J went on the rua sometimel for pastime ; I never stated I saw plaintiffs mustering cattle on the Waitaha run ; if I did say so, I must have been drunk.

Messrs Guinness and Purkiss addressed the Court at some length for their respective clients.

His Honor said the first question was what was the meaning of the instrument dated 23 August, and when that meaning

was aac; rtainec 1 , then whttUcr the evidence showed that defendant had onriited to perform anything he had bound himself to perform. If it appeared from the evidence .iust either to plaintiff or defendant, then the statement or claim could be am nded Ia the present ca«e he did not think any am ndment necessary, lie could nob look beyoud the instrument as to the intent ons of the parties. Now the instrument so far as the cattle and Block were concerned was an absolute instrument oc sale, and passed the property in that cattle and stock ; so far as the run was concerned the instrument was a mere agreement ; no interest could pass until the instrument was registered by the Waste Lands Board The agreement to sell implied an agreement to make a good title, when instruments were tendered by the purchasers for execution.. The purchase money was £400 cash, the balance £200 to be paid within two years. Although the seller was bound to make a good title, yet until the whole purchase money was paid, he was not bound to execute such a transfer as the Waste Land Board required. Looking within the four corners of the instrument, the purchasers were not entitled to a legal transfer till the whole purchase money was paid. On that ground alones plaintiff should be non-suited. Assuming however that view was not correct, and that the seller was obliged to part with his interest at once, leaving £200 outstanding, still he did not think plaintiffs entitled to succeed. They would have to show that they had not been able to get a good title through the default of the defendant- There was nothing co show that a transfer would not be registered at the Waste Lands Board. Nor was there any evidence that Allen stood in the way of plaintiffs getting possession. Plaintiffs would be nonsuited with costs as per scale.

TEA ZEE AND ANOTHER V MAHEB.

This was an action to rec >ver the Bum of £332 17s lOd, made up as follows :— £103 10s, balance due to plaintiffs iv connecion with work executed by them under a contract ; £219 7s lOd, damages for extra we rk in connection with the contract; and £10. hire of punts.

Mr Purkiss appeared for plaintiffs, and Mr Lewis wi h him Mr Guinness for defendant

Mr Purkiss opened the case for plaintiffs at considerable length.

At this stage of the proceedings the Court adjourned until ten a.m., next (this) day. In the meantime his Houor, and the parties to the suit arranged to visit the harbor works, the ecene of the con t; act.