SUPREME COURT.

Otago Witness, Issue 2105, 28 June 1894, Page 20

SUPREME COURT.

CIVIL SITTINGS. Monday, Juke 25. (Before His Honor Mr Justice Williams.) MILLS AND OTHERS (TRUSTEES AND EXECUTORS OP THE WILL OF THE LATH JOHN JONES) V. ISAAC AND OTHERS. Case for argument pursuant to leave reserved by the judgment delivered in the case in December last to afford the beneficiaries of the Meadowbank estate an opportunity of discussing a question which had arisen between them and the residuary legatees under the will of the late John Jones. In November last, when the case was before the court, one of the questions raised was whether the amount paid in 1871 to Mr (now Sir Francio Dillon) Bell under an award should have been paid out of the general estate or by the devisees of the Meadowbank estate. Mr Bell had had a lease in 1868 from the late Mr Jones, which contained a covenant by the lessor to lay down 1000 acres of the Meadowbank estate in English grass before the Ist September 1869. Mr Jones died in March 1869, and the covenant was not performed. Mr Bell made a claim against the executors for damages for breach of covenant, and that claim was referred to arbitration, with the result that the arbitrators awarded him the amount of £2000. This was paid by four advances of £500 made by Mr J. R. Jones, Mr W. Isaac, Dr Eccles, and Dr Biss, who were subsequently repaid out of a fund which came into residue in 1887. The counter-claiming defendants contended that the money should not have been paid out of the general estate, but should have been paid out of the Meadowbank estate, and they sought to charge the trustees with the amount. The matter was before the court jn November last, and in a judgment upqn other questions, delivered on the 22nd of December last, the judge indicated his opinion without actually deciding the question, as he considered it right that the Eccles trustees, in whom Meadowbank was vested, should have an opportunity of being heard upon it. Further consideration, of the matter was therefore deferred until' the Eccles trustees should be communicated with.

Mr George Cook now appeared on behalf of the Eccles trustees and the beneficiaries of the Meadowbank estate to contend that the covenant of the testator contained in the deed of lease of the Meadowbank land in 1868, granted to Mr Bell, for laying down in grass a portion of the land was not a covenant running with the reversion of the property, and that the amount of the Bell award was properly paid out of the general estate, and should not be borne by the Meadowbank property ; Mr F. R. Chapman, with Mr Hosking, appeared for the trustees of the will ; Mr Sim, with Mr Fraser and Mr Woodbouse, for the counter-claiming defendants, Eliza Isaac and others ; Mr Solomon for the defendant Rupert Isaac ; and Mr C. Mouat for the infant defendants. The defendant Mr W. Isaac appeared in person.

It was pleaded on behalf oE the Eccles trustees that the claim now set up to have the amount paid in respect of the Bell award made good to the general estate of the testator oat of the Meadowbank property or by the beneficiaries thereof was barred (a) by the Statute of Limitations of the 3rd and 4th William IV, cap. 27, section 40, (b) by the Statute of Limitations, 21 James I, cap. 16, seotion 3, (c) by the "rules of equity for the discouragement of stale demands ; and that the several persons and parties claiming adversely to the Eccles trustees or the predecessors in title of such persons and parties were estopped, by their

respective acts, deeds, and defaults in relation to the Meadowbauk property since the taking Up of the Bell award, from asserting or prosecuting the claim.

Mr Cook, who opened the case, had nob concluded his argument when, At 4.50 p.m., the court rose until 10.30 a.m. next day.