A LAND TRANSACTION.

Otago Witness, Issue 3014, 20 December 1911, Page 8

A LAND TRANSACTION.

STENHOUSE v. M'CURDIE AND OTHERS.

In the Supreme Court a few days ago a motion, was brought before Mr Justice Williams for the removal into the Supreme Court of an action in the Magistrate's Court in which William M'Stravick Sltenhouse was the plaintiff and William Duncan Ross M'Curdie and Park, Reynolds (Limited) were the defendants. Mr W. C. MacGregor appeared for Mr M'Curdie, Mr Stephens for Mr Stenhouse, and Mr J. A. Cook for Park, Reynolds (Limited) On the 12th his Honor gave judgment as follows : The statement of claim in the action as against the defendant M'Curdie alleges an agreement in writing for the sale of a parcel of land to the plaintiff, made between the plaintiff and Park, Reynolds (Limited) acting as agents for M'Curdie. In order, therefore, for the plaintiff to recover against M'Curdie he must prove two things—first, an agreement in writing with Park, Reynolds, and, secondly, that Park, Reynolds was the authorised agent of M'Curdie. Unless at the hearing he can show an agreement in writing, the plaintiff must fail. If M'Curdie before the hearing wants the agreement in writing, upon which the nlaintiff relies, produced, sections 83 and 84 of " The Magistrate's Courts Act, 1908," are quite sufficient to enable him to compel its production. If the plaintiff succeeds in proving an agreement he must further prove that Park, Reynolds was the authorised agent of M'Curdie.' Whether Park, Reynolds was the authorised agent of M'Curdie depends upon what took place between M'Curdie and Park, Reynolds. Of that, of course, the plaintiff caa know nothing. What took place is within the knowledge of M'Curdie himself. I see no reason for « supposing that, in' order to enable justice to be done in the action, it is necessary to resort to the machinery of the Supreme Court for the purpose of discovery. Nor am I satisfied that any questions of law are likely to arise in the action which will present greater difficulties than many questions of law which magistrates have constantly before them'. If the case is tried before the magistrate it can be tried at once. lif it is removed into the Supreme Court it cannot be tried for more than two.months. That is a circumstance which, according to Lord Esher in Banks v. Hollingsworth (1893, 1 Q. 8., 4*B). would properly influence .the judge's decision as to the propriety of removal. He there says: "It might happen that in the superior court a case involving 6ome. difficulty could not be reached for some months, yet "the inferior court might be perfectly able to try it, and to try it at once." Nor do I think that the mere fact that there would be a general appeal from the decision of the magistrate is a ground for removal, though, if there were other reasons which suggested that a removal was desirable, it might be taken into consideration in conjunction with them. On: the question of the joinder of Park, Reynolds I see no real distinction between the rules in the Magistrate's Courts Act and the rules in the Code of Civil Procedure as to joinder of defendants, and it is admitted that in an action in this court Park, Reynolds would have been properly joined. In any case it is difficult to see how the joinder can prejudicially affect M'Curdie. Summons dismissed, costs £2 2s to Stenhouse and £1 Is to Park. Reynolds.