SUPREME COURT.

Press, Volume XLV, Issue 7141, 31 August 1888, Page 6

SUPREME COURT.

SITTINGS AT NISI PRIUS. Thursday, August 30. ; [Before his Honor Mr Justice Ward and j a special jury of four j ' ; The civil sittings of the Court were resumed at 11 a_m. ' ' ' ' , BKUNTON V CLIFTON AND ANOTHER. : In this case William Brunton, of Kaikoura, ferret breeder, was plaintiff, and Edmund Clifton and the New Zealand Loan and Mercantile Agency Company, Limited, were defendants. On the action being first started the claim was as against the defendant Clifton only, but subsequently the Loan and Mercantile Agency Company were formed as defendants. The statement of claim alleged that by an agreement dated on September 22nd, 1836, made between the plaintiff and defendant (Clifton), it was asp-eed that the plaintiff should breed ferrets on the Clarence runs, in the provincial district of Marlborough, from the Ist of October, and that during the breeding season he should devote the whole of his time to the breeding of ferrets for the defendant (Clifton), and that the defendant should pay 10s for each ferret above the age of four months, which should be delivered to the defendant. That, pursuant to the said agreement, the plaintiff bred and delivered to the defendant 374 ferrets. He, therefore, claimed to recover from the defendant the sum of £187. A further statement of claim by tke plaintiff alleged that an agreement was entered into between the plaintiff and defendant that the plaintiff should have full right and liberty to catch as many rabbits on the Clarence run as he required for the purpose of breeding the ferrets, and that it was on the faith of this agreement that the plaintiff entered into the contract. Up to the 27th January, 1887, the plaintiff was allowed to catch rabbits as he wanted them, but after this the defendants refused and prevented him from doing so. In consequence of this numbers of the ferrets died and great expense and loss was incurred by the plaintiff, for which he claimed £343. The total claim as against the defendants was the sum of £530. The statement of defence admitted the agreement but set out that it was agreed that the plaintiff should, at his own costs, provide the necessary labor. The defendants admitted the plaintiff's claim for the ferrets and paid into Court the sum of £118. They also set up a counter claim of £73 11s 10d. The plaintiff admitted the counter claim and the only question in dispute was the damages claimed by the plaintiff from the defendants, on the ground that they had not provided the rabbits for the food of the ferrets, as it was alleged by the plaintiff it was agreed they should do. Mr Stringer for the plaintiff, Mr George Harper for defendant Clifton, Mr Fisher for the defendant Company. Mr Stringer opened the case for the plaintiff, and was proceeding to call evidence, when Mr Fisher submitted that his learned friend should be nonsuited on his statement of claim and opening on the ground that he had set up a passing of title to land by the catching of rabbits. It had been held that the granting of a right to shoot over land, and to take away the game was a passing of a title in the land, and came within the Statute of Frauds. He submitted that his learned friend's contention that the plaintiff was entitled to go anywhere on the run and catch rabbits for his ferrets was setting up virtually a title to land, and came within Section 4 of the Statute of Frauds [cases cited in support, Webber v Lee, 9 Queen's Bench, Division 315 R; Ewart v Graham, 29 L.J., Exchequer 88.] He also pointed out that the plaintiff did not claim that there had been any fraud, but simply a substitution of contract, therefore he must bring himself within the Statute of Frauds, or show that contract had been partly performed.

Mr Stringer submitted that the case of Webber t Lee was not in point. In the present case the plaintiff had a right under the agreement to be on the land to carry it out, and they submitted that Mr Brunton only had a permit to get the food for its ferrets. Supposing Mr Clifton had contracted to supply Mr Brunton with mutton for his ferrets, would that be construed into a passing of the title to the land? * Mr Fisher—But it is the catching of the rabbits which we assert makes the difference. His Honor—Yon would not in the case you have put, Mr Stringer, catch the sheep. * Mr Stringer would submit that the mere granting of the right to catch the rabbits was merely a contract collateral to the agreement entered into. [Case cited in support, Morgan v Griffiths, L.R. Exch.. 671.] They were put in possession on the land for the purpose of breeding the ferrets, and the case he had just cited, which held that a verbal possession was a collateral agreement with the subsequent written agreement. He would also cite to his Honor a cass in which it had been held that a verbal contract for tenancy on all fours with their claim had been held not to be within section 4of the Statute of Frauds. [Case cited. Angel v Duke, L.R., 10 Q. 8., 17. J He would submit, therefore, on the authority of this case, a fortiori that if a contract for tenancy did not constitute a title to land, then an agreement to catch rabbits could not be held so when the plaintiff was already on the land. He would also submit that if the defendant admitted that a verbal contract had been entered into, it was a sufficient agreement within the Statute of Frauds. Mr Fisher said that even if Clifton admitted this contract, the Loan and Mercantile Company denied it. It might be therefore that a non-suit would go as regarded the Company, if not as regarded Clifton.

His Honor would not give the non-suit as asked, as the defendant Clifton had alleged a passing of his interest to the defendant Company, and therefore the admission of the defendant Clifton as to the contract must be taken to have been adopted by them. At Mr Fisher's request, his Honor took a note of the application for non-suit. Mr Stringer then called evidence. The witnesses examined were Wm. Brunton (the plaintiff), Walter George Chisnall, E. Harman, and several other witnesses. Mr Harper then opened the case for the defendant Clifton. The only witness called was the defendant himself. On the application of Mr Fisher the hearing of the case for the defence in connection with the New Zealand Loan and Mercantile Agency Company was postponed until to-day. The Court then adjourned until 10.30 a.m. to-day.