THE EDINBURGH CASTLE

Auckland Star, Volume XXXV, Issue 34, 9 February 1904, Page 2

THE EDINBURGH CASTLE

HOTEL CASE. « TRIAL BY JURY REFUSED. lii chambers, at the Supreme Court, to-day, Mr Justice Edwards gave judgment on an application by Mr Patrick Quinlan against the Great Northern Brewery, Limited, for an order to try an action for specific performance by a jury. The case was one in which Mr Quinlan, licensee of the Edinburgh Castle Hotel. Symonds-street. brought an action against the Great Northern Brewery, the owners of the hotel, for specific performance of the terms of a lease alleged to have been verbally agreed upon, and partly performed, on Uie plaintiil's side. Mr F. E. Baume was for the plaintiff, and Mr Hugh Campbell for the defendants. In giving judgment on the question of trial by a jury, His Honor said: — "The statement of claim alleges a verbal agreement for the lease of an hotel, followed by certain acts which are alleged to be acts of part performance. The statement of defence denies the alleged agreement, and the alleged aet.s of part performance. The defendants counter-claim for possession of the hotei in dispute. Mr Baume, in support of the summons, contends that there is a single it-sue of fact, which will determine the action, namely, was or was not the agreement alleged by the plaintiff made? and that, therefore, the action may be more conveniently tried by a jury. It is V rue tna t H this issue of fact is determined against the plaintiff it will dispose of the action: buT if it i.s determined in the plainthf's favour it will be necessary to determine further whether the alleged acts of part performance have taken place, and whether they are referrable to the alleged contract. It does not appear to mc that these are simple issues of fact which can be more conveniently disposed of by a jury than by a judge. Air Campbell, for the defendants, also contends ihat the issue as to whether or not the alleged verbal agreement was ever made is not one which can be more conveniently determined by a jury than by a judge, because it is not the practice of the Court to decree specific performance upon the unsupported evidence of one witness, as to which see 'Fry on Specific Performance, 4th Ed., 276-277.' The matter has. it seems, already been litigated in the Magistrate's Court, and counsel for the defendants suggests that the plaintil! will have to reply upon his own evidence alone as to the alleged agreement, and I do not understand that this is disputed by counsel for. the plaintiff. If this proves to be so, it is, in my opinion, plain that this issue could not in this action be satisfactorily disposed of by a jury." After reference to former decisions of his own on similar lines. His Honor said it was with regret that he came to this decision, as personally he very much preferred chat disputed questions of fact should be determined by a jury wherever possible. If, however, the hearing of the action proved that there was any single question of fact, with a substantial conflict of testimony, he might possibly order that question to be tried by jury. The summons was therefore dismissed with costs £ 1 1/.