Supreme Court.

Star (Christchurch), Issue 86, 22 August 1868, Page 2

Supreme Court.

FniDAT, Ado. 21. (Doforo Mr Justice Gresson.) In Banco. JONES AXD OTHEUS T. IMttXARD. Tills oaio came on for further argument, as to whatlior tho relation of landlord and tenant subsisted nt tho timo distress vu made. Counsel for the plainWft— l)r Foster, instructed by Mr Joyut. Counsel for tho defendant—Mr Garriclr. This caao was tot down for further nrgument at tho request of plaintiffs 1 counsel, hli Honor having brought under notice th*> f*et that the point— whether the relation of land* lord and tenant did not subsist by reason of one of tho plaintiffs (Jones) having failed to execute tho deed of surrender— was not ralatd in the previous argument. Dr Foster desired to read bis ITonor's remarks from a report in tho Lyitdton Timtt, which appeared to him to hare been very accurately taken down, so as to confine his argument strictly to tho point about which his Honor bad sorao difficulty. This difficulty wa«, that assuming that tho case maile by him (Dr Fouler) was well grounded as to the third pica, that tho Agreement upon which the defendant relied— that the lease shouM be surrendered, and that tho premises should bo held ns on tho terms of tho old lease, and that the rent in respect to which the distress occurred, was rent accruing under that agreement—assuming that his argument wcw well founded, that the agreement was an invalid agreement inasmuch as, not being in writing, it enmo within tho Statute of Frauds— a»auming also that there was no difficulty in consequence of M'Glftshan not having executed the lease >, still, inasmuch as Jones has not executed that surrender, his Honor did not ice why there was not an outstanding inter* cat in Jones under the original lease. Tha threo plaintiffs— Jones, Eicke, and llardon— executed the lew, but Eicke and Mardoo

■ wcro tbo only two who surrendered. Now, lio contended, In tbo first place, that tho dofence—that thero was an outfitnndlng intcro'st In Joncfl— -was not open to tho defendants on tho plea • and ncnondly, that supposing thoy could avail thcmnolven of It, it would ■till bo no defence Flo would dfopono of the second part first of all, Hlh Honor would recollect that tbo declaration net out a lcnna to begin with, and that it then n'ald that tho liability of tho pnr- ! ticn wna reloaded. An ho road dofondiint'n plea, it wan one of confession and avoidance. There w«n an agreement; and ho took up "/ tbo aooond point, and would nhow that tbo deed which ho net out in tho declaration wao An ontlro release of all thu pliiinllfTtf, [Tho learned counsel rend the dcod in question, which wan a rele'tno of Eloke, ono of tho plaintiffs/] This, ho contended, was a ro» leflflo of nil tho parties, and won a Rood pica In bar in rcplovin, (CJoopor v, Jlobinson, 10 M, and W,, and Woodfall, h. nnd T., 804 ) Ho relied upon this point with confidence namely, that all tho partlcn wcro reli-oHod, ' nnd that that was plondablo in thin action, . Thon, ho contended, dcfondnntH wcr« bound to go under tho agreement 5 and whether they Trcro bound (0 do ho or not, In tlio conntruetlon of their plea they did net up tho agreement, and ■übstnntklly and dlntlnctly rolled upon it, (Counsol read tlio defendants pica from tho JStla paragraph to the end, commenting upon : ifc as ho proceeded,) Tbo Court could nob , filvo the benefit to the defendant of a leant' whfoli bo did not plead, (07 h ,T., 0. 1 1 , 101, Mooro v, Foster, fi 0, JR., 220, Counflol also cited other authorities In support of tbo principle that iv party In not entitled to nllcgo that bin own agreement in bad, Gould r Brown, a Ellis and fllaokburn, fl-12 — 01/).) It wuh part of hln anno that there was a Iwwo, that tho liability of all tho parlies wan relenficl, and that therefore If tho dofondant r«H(!d upon the lean?, tbo plea would still bo domurrablo. Hln Honor— Your contention iff, thai; ovon If tho Court naw thoro wnn a nubnlotliiff tenancy under that unnurrondorod leano, Htill tho Court would bo bound to decide with you in consequence of tliolr relying, not on that, but on tho agreement P DrEoiitor— Exactly, IJto ''onor— My impression at present in, that McOlafthan liafl no intorcHr. J)r Foster wont on to nrguo that In proof otthero being n'loado, McOlaslmn was, on tho authorities, a noof unary party, Ah to tho Solnt of leave ond llconso, it wan moro for |g Imirnod friend to arguo than himself. When the point waH raised, ho nald to defendant 1— " when you rely upon your lonvo nnd llcenHO, you don't roly upon your roUtlou of landlord and tenant. You only got leave and Hcenfio from two to lako the property of four, Hid Honor— l think tho point you took wnfl, that if thoy rout their onfic altogether on leavo and license, thoro to no lnvvo to dlHtralu on Kfoko and Mofllafllmn'H goods P Dr Fofltor—Kxaolly, your Honor, Mr Garrick, In reply, reiterated what ho had urged on tho prevltmfl ' day, that M'Gliuhan had repudiate! iho deod from the very flrnt, and hiwi never appeared upon tho flcono until he commenced thin notion. Ho conturidod that thuro wan a tenanoy by two of tho plaintlffo, Joncn and Munlan, at tho time of tin) dlntrcfiH, and that they had given leavo and llcoubo to tho dofondant toro-entor, No equity, lio thought, would Iniluoo tho Court to allow theuo nartlcs to proceed wrongly, hocaimo it would amount to a gro»» fraud which tho Court nhonld Htoplhom from being guilty of, Tho learned <Joun«el proceeded to nrguo that tiio ngreoment wi\h good, nolwithfllnndlng tlio Htatuto of Jfraudu, by ITCftflon of itn being part performed. Dr F/ifiter objected to Ilia learned frlond trnvolllng from tho point exprcHily Hot down for nraumont, Ho did not come to nrfloo tho point rained by Mr Garridt, ft was quite outuldo tho point rained by lilh Honor, and tlio learned Commcl had no right to argue It, Mr Garrlolc rend )i!h Honor'a romarl«H a« roportcd in tho Lyltellon Tlnm, and urged that ho had a right to take tlto conrwo bo wan now purnulng, Dr irontor— What lilrv Honor w«nt« 1« for you to arKiio that you hnvo a right under th» Icttflo, and you aro inMutlng on your right under tho agreement, Mr Garrlnk— l didn't plead oithor an agreemen or a leave and lloonno exactly, but 1 Act out a*l the fnctn that had taken place, leaving it to lia conntriicd as amounting to either, and it will titlto out tlio very centre of my argu ment, if I am provonteu from going on, Hid Honor allowed I)r I/'o«ter'n objection, remarking that in future, when adjourning a cano for araument, ho would take caro to leave it quite open, Itutead of confling dl«-----ouonlon to any 011 a point. Ur Fdfltor gnld that, tho pr/lnfc whloh wno sat down /or argument wn«, whether upon tho pi mi thftparlkn could bo taken to bo acting under tho Ic(\ho, ITiii Honor 1 I contend that I wan going to clvo judgment In your favour, l)r Foster, but it Htmck my mini] that thoro might bo a difficulty about that point, and therefore I flflkod if you dcfllrcd to arguo It. Mr Garrfok proceed to arguo tho point an to leavo and liconno. lie nrged, with reference to tho mirrender, that the execution of that ileciJ clearly panitod tho intcrcnt in tho property — got rid of tho partinl Intercut, rmint'ly, that of two of tho joint tennnto out of three, Thon he contended, nccondly, nn to tho chattel/), that it was* clearly flhown by Dr Footer*) dfidUratlon nnd the deed, that theno moo executing it wore partnorn, and bad Authority to givo this direction (DonnhUon v, WilHamn). Thin wno a enno In whloh thero •was a joint partnership property, In Any orcnt thoro wi«» rt ten/iney in tbo chattel*, and two of the parties had authority to glvo a Jenvc nnd license. Ilia Honor? I don't quite follow you Jn that, Mr Garrlck : Igo upon tho prlnolplo that each partner ban an undivided interest In tho whole If Mardon and Jonon, or tho other (wo, gave liborty to oclzo And dintrflin theso

goods, the wholoof tho partners canuot'sus* taln an notion fo^ damages jointly, IHu Honor i You oontond that Ifc amounts to n plan in abatement, nnd tlmt tho unit to wrongly constituted, You nvguo that If four per Bonn bring mi nation for trofipam, and tt Is proved that thero ban boon 11 tronpann ah ro« gardfi two of tho plaintiffs only, that that la a non-suit point ? Mr Garrlok i Exactly, your Honor. Tho joint tenancy WASHOVorod by tho Burrondor of two, Ills Honor : And you contend that, suppoitjnff lenvo and llceimo applicfl to two, tho other two tnu«t therefore fall to mako out tboir oa*o ? Mr Qarrlok s Wo'flhew loaro and llconso by two, an I this will procludo defendants from rooovorlng In n joint notion. It Is a non-unit point If they plead a joint tort. BuppoßO two portion* liavo an Interest In a homo, find ono of thoin londn tho animal nnd it in Injun d, tho two oould not join in an action for recovery of damages, Dr Foslor /mid tho declaration flat, out that the chattels belonged to all tho parties. Thoy did not «ay th/U thoy woro tliolr properly no partnorfl. Uln Honor fluid ho would oonaldor tho oaso further, Thero woro many points ai'tolng In it. mid tho enno was ono of eonaldorablo nicety,