THE COURTS

New Zealand Times, Volume LIV, Issue 9881, 12 April 1893, Page 2

THE COURTS

SUPREME COURT.—CIVIL SESSIONS. Tuesday, April 11tk, (Before His Honor Mr Justice Richmond.) AJS’DRSCW HAMILTON T GEOEGK HAHDLN AND ELIZABETH ILORENC2 CRAW/ORD, Mr Gully (instructed by Mr E. B. Brown) appeared for the plaintiff; Mr Geo. Hutchison for Mr Harden, and Mr Edwards by Mr Gray) for Miss Crawford, His Honor gave judgment upon the law pointy which were raised and argued the previous day. As to the construction o? the covenant he thonght this case must be ruled by Clegg v. Hands, aud not by Doe and Calvert v. Koid. Under the instrument he had to construe the plaintiff was at liberty to supply liquors cot of his own manufacture The deed described him as & brewer, but made no reference to his place of hndnets. The covenant was simply to purchase from the plaintiff and his succeasors in business. These wore diethguiahing circumstances, which appeared to him (as at present advised) to warrant and require a construction or the terra ‘successors In business 1 different from that put by the Court of Kin-Ta Bench upon the corresponding words in Dee v. Reid. lu common parlance the purchaser of the good* will of a business was said to be tho sunoes* aor of the vendor. More especially tho term was applicable to a brewer who took over with the goodwill all the tied houses belonging to the vendor. On tho other baud, he did not think tho present case could be effectively distinguished from Clegg v. Bunds, where a person to whom the goodwill of the business of the original covenantee had been assigned, was hold entitled to the benefit of the covenant, not* withstanding the closing of the brewery of the covenantee. On the whole, he thought that as the present covenant bad no reference to the place of manufacture, and as it extend'd to liquor not manufactured by the covenantee, Staples and Co. were sue* ocsßora to the plaintiff in business within the meaning of the deed. Ho was further of opinion that upon the record aud Mr Gully’s opening the prayer for an injunction against both defendants might possibly be sustclned. Mies Crawford, ho apprehended, as owner of the reversion and entitled in certain events to re enter, was liable to be enjoined against a repetition of the breach. Under his contract with Staples and Co. the p’aintiff retained sufficient interest to maintain this suit. Lastly, the prayer for an account was misconceived. Be agreed with the suggestion of the Chief Justice in Gleeson v. Ehrenfried that an action for account would lie only where the relation of the parties was such as to have made it the duty of the defendant, or of those whom bo represented, to keep an account. The form of action was material where it involved the right of the defendant to a jury. Here, however, there was as. sorted a separate right of action for an injunction. To this a claim for damage* might, bo apprehended, be added by amends meat. The cause as a whole wonld then be triable by a judge. He desired not to be understood as giving on all the points raised a definitive opinion, as after fuller argument and more time for consideration he might boo reason (o modify bis present view. It was notoriously unsatisfactory to consult upon an opening, and he had there* fore leant at the present stage to such con-* alterations as appeared to support the action.

Mr Gully asked for an amendment of the statement of claim, adding a claim for damages against Miss Crawford, and in respect of the breaches alleged in the statement of claim, and al«o in reject of her lease to Harden, from which she omitted tho covenant that was binding upon her* self. The main principle as regarded the amendment was that if upon the facts stated the amendment was likely to result in justice being done between the parties, and did not intruduoo for its support any new facts, the Court would more readily grant it. Mr Edwards objected to any amendment at that stage. In tho first place it was unreasonable. Although not obliged to do so, they gave notice of the plea, and the plaintiff bad, therefore, ample time to amend. He also objected because if a claim for damages were to be introduced they were entitled to have a jury to assess the damages if any, and be objected, furthermore, because it was making a totally different action, and the evidence might be altogether different. Mr Justice Williams had upheld this as a valid ground of objection by deciding in Driver v. McDonald that an action for rent could not be turned into one for use and occupation as tho evidence might be totally different. He submitted that the application to amend ought to bo refused. This was not a case of the plaintiff being taken by surprise or of an accidental slip on his part where justice could only be done by allowing an amendment. Hie Honor said he would grant leave to amend by striking out the claim lor an account, and inserting in lieu thereof a claim for damages to the extent of £250 for broach of covenant. Then the case would have to be adjourned until the May sittings, which left tho defendants or either of them to give notice of application for trial by a jury of four. Some argument then took place on the question of costs. His Honor decided to allow Mr Edwards 15 guineas. This would come in as costs of the action if tho defendants succeeded, and if they failed tho matter oculd again bo brought up for tho judge’s direction as to costs. He would leave Mr Hutchison to get his costs aa costs of the action. 'liio Court thin adjourned till 10 o’clock this morning.

(PR33S ASSOCIATION.) Dunedin, April 11

The Supremo Court has been occupied for a couple of days with the case of Nelson v. T. Murray, in wbioh the eeuood wile of the late Win. ivehon, of Waipabi, contests bis will, under which he left bis property among the children of the first marriage. Ho married the plaintiff early in 1891, when over 89 years of ago. The plaintiff alleges .that tho testator was of uiuouad mind when he executed the will. There are 40 witnesses.

Wanganui, April 11. The Supreme Court Sessions commenced this morning, before His Honor the Chief Juatioa. The erfmin*! calendar is light, comprising seven charges against six persons, including two each for forgery and boreestealiog, and oases of perjury and attempted suicide, and larceny of a saddle and bridle. Later.

In the Supreme Court today true bills were found against S. Brigbting (horsestealing and larceny), James Catt (horsestealing), K. P. O’Neill (attempted suicide), S. MoSweeney (forgery), and Colo and Stanley (larceny). .No bills were found against Nellie Hynes (larceny) and Buahioatt te Ihioterangi (perjury). O’Neil pleaded guilty, and was discharged, and ordered to come up when called on, being bound over io £2O to do so. S Bnghliog, who also pleaded guilty, will be sentenced to-morrow. MoSweeney pleaded not guilty, and evidence lasting till nearly 10 o’clock was taken. The jury then retired, and returned with a verdict of guilty. He was sentenced to two years’ imprisonment in the Wanganui Gaol. James C<*tt pleaded guilty to a charge of horse stealing, and will be sentenced io the morning. s