DISTRICT COURT.

Timaru Herald, Volume XLIX, Issue 4697, 19 November 1889, Page 3

DISTRICT COURT.

TIMARU— Mo.vdat, Nov. 18. (Before His Honour Judgo Ward ) civil ciacs. W. Quinn v. W. Eaiton, claim £158 U» 3d, dishonoured promissory nota with interest. Mr 0, Perry tor plaintiff , staled this rota had been eellle-J. New ZealiCfi and Acitr iliun Land Company (Limited) t. Annio Clark, claim £9V 3s lid, bilnii' <j duo on p'lrrhaseof lsnd with interest. Mr C. Perry Tor plaintiffs, Mr IJay for dcfai'linls Ilrforo proceeding wiili ll,« facts of the rw, Mr Hny raised » qurelion of !):<• jurisdicDi*tri"t Court ha? not power to nmpel one 1 ta inakc a conrcyancaof land, it cquld nut have power to mr.ko nn order ngninst Die olh«r party t> p<y tlio purclinsn money, a» that wjuld lie dealing 'jne sidc'l justice. Another objculiun wan tb'il r» vendor nf laud .-annot i"iio for purcliiKo ui'jncy as an ordinary drbt unlrsi thrro is n • [mcial afcrtement to th*t f ff'ct ; ho matt sue I'j '.ompel tlm performance cf tho (.untmct or for diiinaiee ff r brtacli of agreement. ilia Honour suggested tliul lr- cuiiici give an order for payment, nu mnditic-n that thu cnveyanco lao given. Mr Perry laid bis cli.uts w.r.' nilliDgaud

anxious to complete the bargain and woul< givo a title at oiko on receiving the purchase money, biit he ho^e.l that no order would Ik given" for payment with -uch a. c.udilioi: attached, cr thy th'ir.g would be hung uji fo: ever. .Vr >erry said Mr I lay's law as t.; p-jwer to suo nas all guoil bui. was not applu-ablo to the present c.w, ns here the money was to be paid bj instalment*, ond though there waj nothing to that effect in tho agreement to purchase, the inference must bo that tho conveyance wai not to be given until tho wlulo of tho instalments were paid. In a Now Zealand case— (Murphy v. Thornton, 111 Jurist, N.S., -17") —Judge. Williams laid down this law in a case closely resombliug tho pre.'ent oi'O. His Honour orerruled Mr Uny's objections, on the eases cited. Mr Hav tlieii mentioned two defences ; (I) that on tlii- 13th May last the vendor resumed possession of the land in dispute: that disentitled him to sue for the purchase money ; lull .id fleeted his remedy. A second defence was lint urri-ss hid never been Riven to the Imd. ITe then slated the defendant's case, the plaintiffs alli'gations having been admilted. In 18SJ1 the company advertised »oi:ie lund frr sale near St An'ro»s. Mrs Clark (wifo of Mr C. Clark, saddler nt St Andrew..) jaw Mr If. Ford, t ; o company',. agent in Tiniarii, and agreed to buy tlve •urej at i'2o per ncre. and paid a deposit. A surveyor was sent down to lav off the lan-.1, and then it appeared that the land Mrs Clark bought, nn tho mail, wus • iinc distance* aw ft, 7 from the Hallway crossing th-.it she thought it w.is close tj. She opoko to Mr Ford about aeces?, and ho slid ho would communicate with Mr Tr.rnbull, tho min iger. The result wss a letter from Mr Ford, to tho effect that a railway croa.'ii'e would be provided, Mm Clark to pay h-ili the co't. Mis Clark stipulated for an open cr.s?iii s ', ou I ucrceii to pay hilf the cos!. to thii agreement aljout on open e.-j.'sinjj, tlio iigrveiuerit to purchase \r:n finned. The lirst purchase waa to bo 5 acres, but till- being so f.ir r.way, Mrs CI irk bought two acres more r.ripining tho 5, paid for them, j obtained tho title and built a cdltiigc o:i this I pin-e. There was ftimo difficulty abjut | gi-tting a cresting — (in fact there ua* r.o .•rowing ret to thi ) lam!) -and Mr Turii!.n!l. the tl'.er.'msnngcr, car.- Mrj Cl.irk ju-rini- rion to g.> over sj'i.e of th» ompany'* land Mr Turnbull left tho compiiiy'n scrvioe and Mr Maepherjnn t.iok his place. The pddock ovi-r which sho had been given a right of-tvuy ivas leucibv thecomniny. and the It «?ee f.irb ide tln-ir ijiingortr the padJock, and io t!ioy had no a cosstoit at all. Mr Macpherson fail »ho should buy a road from the company, and »he offered t > buy half tho widt'n if tho com-panv'g-ive the other half, and he declined. Nothing was done albou'. a crossing until ISSS, when 3 gated crossing was put down to give r.occs to the «;'xt padd.'.-k, leased ti Harper, but thij was not available to Mrs. Clark without being beholden tn Mr Harper ; and M^r IPirper had refused her 1.-are to go on his land. Cntiie Hill of bst May Mr Macpherson ■ir.d t\ro men tiok a step which pnvlndcd him from afterwnrd* suing for the purch.i.'C iron.'t. He .• nt a letter to Mrs Clark siyin? that hiwould rt-taio pojsenswn of tho lind, a« she wai in arrears with interest av.d itistalnienls, aiiti tin same day he went with t*o raen, fisteneil up the gitMny between the two scctiors, and left one of the men in a tent for several d.iys, in pofsff.«i?n of the five acres, and Ihii nan ueit rf:iy g-ivc no'.ic-.- to Mrs Clark t-j rc-m.i-e h-?r pi<j« nn^ s!v; and pjultry houss Mr Macpherson told her on the ]:s'h " row you have lost the land," an 1 eho ropliad that 'she wis not sjrrv B he h.id lost i»- Afterwards «'ie received a demand for interct up to the l«h Mar, nml ,h- refused to p-.y- To t l ii» div tho company had not supplied access to the 1-ir.d. Mrs Chirk was plaec.l in Ihe boi and gave evidence in support of Mr Uuy's statement relating very clfarly her interviews wilh Mr Kord, Mr Turnbull and Mr Angus, whom she went to Dtinedin Io see. Mr Perry cro«s cianiineil li elicit that (heri! waiai'cees by a Oorernmtnt reserro, a mrr-.w atrip ulor.g tlie beach, but Mrs CUric s'ated tliis Im'l been impracticable t'ur two or three yeirj, the sea having rut i! ha-~k in soma places, and n cutting on Blue Cliffa road cut it off altogether rxrept fur p.-oplff on foot. They hid tried driving by the beach, but a few trips dpftroycrl tho wheels of the cart. Mr Ferry produced a plan showing that the gated crossing that hud hern provided wa» close tn the corner of the fire acre lot. but Mrs Clark objected to that, as she hetl before purchasing stipulated for ;m open crossing, and in this cute iho mint nlwayi be at tho mercy of the occupier of the next section. She had, moreover, never been offered keys for tho gites. Obtaining permission from Mr Harper to enter his lind to reach the crossing, and being 'old there were no keys to spare, sho bought one and Harper took it from the b(.y who wan uting it fjr her. Since tho company hvi resumed po'session thoy had fenced off a small square in fiarpcr'3 section so as to throw the crossing open to the 5 acres if n gate were put. in. Mr Perry also elicited that (ho crossing spoken of by defendant and Mr Ford was ctimsted to coetabcut £'10, and he pointed out that this could only mean a pate crc-ss-irg, as an open crossing would cost £50 or i''iO. His Honour held that Mr Ford's letter could only mean that a crossing would be put down to cost nboul £10. He did not see lh>.t :i person woul 1 bo much wor.'.i off if In- Imd a. key, for aii open crossing into a piddock would be nn absurdity. There must be a g-ite. C. Clark, defendnnt'o husband, was rolled to show that it has boon for reoic yearj im-pos-iblo to use thn Government rcservo us a ro«d to defendant's land. Mr Perry said all tho evidence ho would call won!-! bo aa to access. Mr Ford would show tlmt the arrangement was that a crowing should bo put ihjtrn Io suit buth Mrs Clark's nwl the ndjoininz lind, " to work both ways." Tho pricu wbi mmti'inod is likely to bo CIO. Mra Clark refused tj pay anything toivird* it. ("Vvcr.il applications wero made fur it .rossing, but it wbs mil tii! ifW, when ,:..'ttoin action of tho milwuy cut off Harper's ncci-n, 'and tlion tli«y granled the crossing, lhe rompanv had done all they could reasonably bo naked to do. They never agreed to put down &n open crosnin?, and had put down tho closed crowing M conveniently for tho five ncres as it wru possible to put it. They offered Mrs Clark a ki>y and sho refused to like it. Alex. Macphersou, manager for the plaintiff company at Pareora sinco January, IHB2, produced a plan of tho land and neighbour--10 >d. Ho spplic! for a crossing twice in 1&SI, and was rofa<ed. In April 1888 applied ogam and ono wij granted. The company supplied the gales. Airs Clark paid nothing towards it. It was placed so that Mrs Clark could get access to it ; Htirprr was quite willing to lot Mrs Clark pax through his land both before and ofter the crossing w«s mnde. The witnet* described tho Government rcservo an tjuiln available for a road, Iho nntrowe»t placn being (mpniurcd) 11 feet, ind there was tho tarno width at Iho Hluerliffi road cutlinn. The Clsrki still use it for ridine and driving r«ttio. Ho denied tint he told Mrs Clark when he resumed possession, " Now you ham lo»t Iho land," or nothing of the sort. Afler that ft corner wm I'enred off Hajper'» land bo Ihat sho could ii-c Iho crossing, and a key was offered her but sho refused to lake it. Hi" Honour : flow could she get there when you had taken tho land from her? \Vitnc«i : Wo only look possession to force her to complete the purchase ; MrsClnrk was told so : nnd when sho completes it Iho crossing is Ihcro for her uso. She however wai.tcd an open croMing ; nothing «Ibo would do 9ho said •h* conld not me the croi«in(f without Mr Harper'* permission, nnd sho was not prepared to ask for thai. To Mr H»y i Tho oro'iing wan tint jot for H»rper'» convenient only. Gore both koji Io Harper, becauso Iho Oovornment required on;* party to ho responsible f»r Ilio Ratr», nntl told Harper l<> give Mrs C.'ark ono wlicn fhe had a gato put in her fenco. I-cft it to Hirper (.» 1..11 Mm Clnrk this. Mrs Clark did nut agree. One thing sho otijei led to win that rhf wa» in, I gitcn n pcrpr.luiil righl-of way nier Harper's corner. Add on in-f'rui-limi, friMii Duncliti km enuring into [„„.<.,.;,„, . „,,, no (, trmtiti.Tifil to leave n man there, lint. Inok him to keep i,a^k cnttle, whilst in j.is-esrion, and to m.'iid Iho ftiuo. llm coui|.anv iiind<; i.d un> u! Iho lurid ; Hie object if Iho |ir,cioJing wan Io frijjhtun Mro Clark into cjinpltling tLe {mrchaie, Ih» bc-uuil flfir

I[of a key was made nflc r that, and sho saic sho would have nothing more to do with it. To .Mr Perry : I received instructions as to tlic resumption from you. Henrv Kurd, dock nnd commissii'ii agent, stated that in the v.i foliations for tho purcliasc nothing whatever was said as to whether the crossing wan to be open or clcsecl. At first Mrs I'l.irk declined to pny anything towards the cost of tho crossing, but at the ncit interview agreed to pay hulf the cost, i's. Un-i no more to do with tho niatler after the sale contract was signed. Ihero wus no stipulation that it should bo an opan crossine. James Harper, farmer, St. Andrew'*, staled Ihat the company lind amngc.d with him to fence off a simll pioce of his laud ut the rrossing. Before, that had been ngrce.'.ble to Mrs Clark R»ing over tho land, never stopped her, never objected, exc pt once. Was annoted at his hoises getting out, nn-.l he look a kej from Mrs Clark's son Sho had no right to have a key uotil ohe put up n Rate id her boundary fence. He was responsible fur the gates bcinj* closed, Hud put a gnto himself in tho inner fence. To Mr liny : Did not tell Mrs Clark he had two keys, one fnr 1 imself and or.o for his man ; one was for her, when the choee to put n pal.' « P . This closed the evideneo. Counsel »'ldres«ed the cnirt at somo length on tho facts nrd the law. In giving his ii. cifion, His II naur ?aid tho case was n sjmerhat peculiar one, and ho rau-t bo governed by Hid agreement both parties hurl .*i/»ncd. He held that tho r-.'siimpliioii of tho land did not put nn end to tho bargain, beciiuo the resumption was in accordance with one of tho clauses o£ the ngreoinrnt, whL-li provided that tho Ten .lor nuclit returns possession if interest or instalment* were in arrear, or if any of Hie conditions as to working the ground were broken. It could not be Ihat a resumpli mi under tint clause when nearly the whole of lh« rurciiufn money hud boon paid would rescind the contract entirely. Tho right of re-iiiii|'ti'-ii was simply to give a right to 1 hold t!ie hnc', an security for the money owing ■ iinli! it nn pnii. 'J he plaintiff noted within hi* right*, and there being no fuels in dispute j-idgnient nui-t bo for the nirounl cluiined ai'.l, •,>.•.:... ln r.-|.ly to Mr Hay, His Honour said the p!:iintift° must giro access in (Oine way, ond the provision they hail made appeared to be suinViert. j The Court then nnj.iuriied to 10 30 this I morninz, when the lin> iiitics of crrlnin shareholders in Bruca's Milling Company will bo further dealt with.