SUPREME COURT.

New Zealand Times, Volume XLIII, Issue 7222, 18 July 1884, Page 2

SUPREME COURT.

IX BANCO. Wednesday, July 16. (Before Ilia Honor Mr Justice Richmond.) COLONIAL LAND COMPANY V, BOHAN. His Honor delivered judgment herein, dig* missing the appeal and affirming the judgment of the Resident Magistrate, at Wellington, with c>Btß. Leave to appeal was granted, on Mr Travers’ application. M‘CAIiTHT V. MACE. In this case, heard before Mr Justice Richmond in chambers, judgment was given in favor of the plaintiff, with costa. The question involved was, whether an agreement entered into by the defendant with the plaintiff not to carry on business in the Provincial District of Wellington for a term of seven years was valid and binding on the defendant. In the defence, it was argued that the agreement was unreasonable, and that the defendant’s bankruptcy had released him. Both th*se questions were answered in the plaintiff's favor. o*l£ ALLEY V. CONNAL. Judgment in this case was given in favor of the defendant, with costs, his Honor adding that as the goods which the Government had seized did belong to the thu plaintiff, he would he glad to see the Government lenient in the matter, though they had a legal right to the costs. KOABT2 V. WAVERLET TOWN BOARD. In this case, lately reported in our column?, his Honor gave judgment for ihc respondent*, with costs,"£s s*. All these judgments will anpear iu the Legal Gazette in the Xkv\ .Zealand Mail in due course. WRIGHT V. DANK OF NEW ZEALAND, This wai aa appeal from the decision of the District Judge at Nelsou. The Pbienix Gold Mining Company being in liquidation. The Bank of New Zealand claimed to be a creditor for £tiS7 10s 9J for debt and interest. The bank proved the debt, and the proof was accepted by the liquidator, and £IOO paid in part

satisfaction. The appellant, under section 7 of the Mining Company’s Act, 1572, ruioircd the bank to prove the claim formally. The evidence was taken before the District Court Judge, who admitted the proof. The parties Agreed, before the judge, that there should be no appeal on the facts. The appellant having given notice of appeal, the parties c>mM not agree on tho statement of the case, an appeal was therefore settled in the presence of the solicitors of tbe parlies by the Judge. It was admitted that on the facts as stated by (he Judge, the appellant could not hope to succeed in bis appeal. Mr Shaw, for the appellant, a-ked leave to file au allidavit, with the object of showing from documents before the Judge that them was no evidence of certain facts stated in the special case, and further, that there was evidence which would conclusively show (hat these facts were erroneous. Mr Fell objected to the introduction of evidence, and claimed that the facts stated were conclusive. His Honor (Mr .Justice Richmond) said if it appeared from the case that there was no evidence, that would bo a point of law and open to the appellant, but as there was no Appeal on the evidence, he could not allow tho proposed affidavits to be used. Appeal dismissed. MACTAULANE Y. KINROSS AND ANOTHER. This was au action against the indorsers of a promissory note. The defendant pleaded no notice of dishonor, ami au agreement to renew ns often as the maker wished, and that the maker had applied for a renewal. The evidence of notice of dishonor was that a clerk went to the otlico of the defendant, produced the note, and asked for payment ; he did not say the note was dishonored. Tho Judge left it to the jury to B*y if notice was duly given, and said the agreement was to renew once only. The jury found for the plaintiff. Mr Chapman now obtained a rule nisi for a new trial, or judgment on tbe ground that there was no evidence that notice of dishonor was given, that the verdict was against the weight of evidence, and that the Judge misdirected the jury’.

IV DIVORCE JURISDICTION. HARRIS V. HARRIS.

Mr Hall moved for a rule absolute, Tho rule nisi was granted in ISSO. There was no inter/eutiou by the attorney. Counsel cited tho following casta :—Ousey v. Ousey, L.H., T.D. 66 ; Wickham v. Wickham, L.R. C, P.D. 11, There should bo no decree nisi ; it should be absolute in the first instance— English Mat. Causes Act, 186*2, sec. 7 ; N.Z. Act of 1866, sec. 30. Hia Honor adjourned the case for au affidavit explaining the delay. It was stated by counsel that tho reason was that the petitioner had obtained a situation in the character of a widow and did not apply sooner for fear of Joeing that situation.

SENIOR (APPELLANT) V. SCAIFK (RESPONDENT). This was an appeal against a decision of the District Judge at NeUon, The facta of the case were as follows : Mr Edmund Buxton made an agreement with the respondent, the respondent agreeing after Buxton’s death to collect his rents, &c,, fora commission of per cent, on two amounts collected, and Buxton agreeing that his executors should pay such commission for sums collected by the respondent, and that they might also pay a gratuity of £lO per aumnr. This agreement was communicated to the appellant (Buxton’s executor) during Buxton’s lifetime, but after his death the respondent refused to emyloy tho appellant. On action brought the executor raised various defences, but the District Judge entered judgment for the plaintiff for a sum of £ for damages for breach of the above agreement, aud the defendant appealed. Mr Travers for the appellant; The evidence as to what occurred before the respondent ami Buxton outside the agreement was not material and was inadmissible. The contract was not obligatory on the executors ; it meant simply that if they employed the respondent ho should receive a certain limitation—Churchward v. Reg. (L.R., Q.B. 178). (Mr Justice Richmond : It would then bo uo contract at all.) No ; Williamson v. Taylor (5 Q.B, 175), Under any circumstances tho contract was one which, being silent as to the period of its termination, was terminable by the executors upon reasonable notice, Mr A. G. Fell, for the respondent : The case of Williamson v, Taylor is doubted in Emmons v. Ellerbon (44 L. Cis, G 24) ; Addison in contracts (BtU Edit. 484) ; Aspliu v, Austin (5 Q.B. C/I). (Mr Justice Richmond referred to Pilkingtou v. Scott, 15 M. & W.) • The agreement waa made between unskilled persons, and is inartificially expressed, but tho general effect of it ia that the respondent waa to be employed by the executors, so long as there were any rents to be collected ; Burton v. Great Northern Railway Company (9 Kx, 507). Tho termination of the agreement is limited by tho express terms of the will which fixes a date for the decision of the corpus of the estate. Ho could, of course, be discharged for misconduct or inefficiency, but subject to that, he was to collect the rents as long as there were any to collect. (Mr Justice Richmond : It was plainly competent for Buxton to bind his executors. It was not argued that he could uot, nor could it be. He could bind himself and his executors, and if he bad fixed a terminable period for the agreement it would bo plain enough). Tho termination is fixed by looking at the terms of the will. If the will bad made the estate divisible at once, the respondent would have had no claim, as there would have been uo rents to collect. Churchward v. Reg. is in the respondent’s favor. Judgment of Oockburn C.J. Mr Travers, in reply. Judgment was reserved.