Supreme Court.

Star (Christchurch), Issue 92, 29 August 1868, Page 3

Supreme Court.

Fltnuv, AtJO. 28. (Before Mr Justice Grcsson.) Ills Honor sat In tlio Court Chambers at 11 o'olock, Ik Banco, JOWKS AND (YI'IIKIIA V. nAUNAIin. Ills Honor delivered judgment. This was a dnmurror to tho third and fourth nlcns, Tho aotion Is brought In tbo namo of Jones, M'Ghmhan, Kloko, Mid Manlon, all lately trading In copartnership at Ohrlstchurch and Holtllika, undei' the firm of Jones, M'Glnnhnu and Co., commission agents. Tho declaration nets out a lonso hy tho defendant to tho phdntlffri ol certain land, by deed dated lflth Dec, 18011, for a term of five years from that date, at a rent of £600, payable half-yearly In advance It states that threo of tho plaintiffs, as well an defendant, had executed tho learn., and that plaintiil! M'Glnsban wub to execute on his arrival at Chrlßtohurch, and was willing to do so, but that shortly before his arrival defendant executed a deed poll dated 261h July, 18(17. reloading plaintiff Kloko from tho rent and covenants in tbo lease, It I lion avers that dofondant, notwithstanding such rcloaso, wrongfully entored upon the demised promises, aud undor protonoo of distraining for rent In arrear, wrongfully took and sold tho goods of tho plaintiffs, aud remained in possession of tbe demlHcd promises and excluded tho plaintiffs therefrom. Tho third plea states that the plaintiff*! Jones, ICioko, aud Mardon, ln order to Induce defendant to grant the luasc to plaintiffs, represented that the whole of the plaintiffs wero thou carrying on business at Hokitika, under the firm of Jones, M'Glushan and Co., and woro about to start a branoh of such l.tislno .*. in Christchurch, and that thoy woro authorised, on behalf of tho ilrm, to contract with defendant for tlio lease, whereupon he, relying on their representation, executed tho lease, which was also executed by Jones, Kloko, and Mardon, and ferwardod it to Dunodln for execution by MoGlaslinn, but that ho refused to execute, alleging that the other plaintiffs had' no authority to contract for him, and tlmt on such refusal being communicated to them hy dofondunt, lt wan agreed botweon thorn and defendant that anotlior leaso should bo granted by dofundant to thorn upon tho samo rout and terms, and that they should continue In possession of the promises subject to the on mo rants, covenants, nnn oondillonn Iv the said leaso expressed and implied, until tho preparation and execution of such ne •<■ lonso; and that the sum ef X.OOO, psld by them, should bo considered as rent paid undor such now agreement ; that on tho I,lth Juno, 1807, thero bocamo duo ta defendant from plaintiffs Jonas, Kloko and Murdon, in respect of the Mild premises, under the agreement hint mentioned, tho sum of XflOO ; that en the 12lh July, 1867, Plaintiff** Jones, Kloko, and Mardon dissolved partnership, aud us the lease hud not then born surronderod, and Kloko had retlrod from tho firm, plaintiffs (fotios, Kloko, and Mardon requested defendant lo release Kloko from liability under tbo leaso, and to waive his (defendant's) right (hat Jones, Elckoand Mardon should tako out a lease as agreed i that defendant agreed to this proposal, on condition that tho lease should he surrendered, and that defendant should receive from plaintiffs, Jones and Mardon, tho sum of xnno, duo in respect of tlio pre* mines on With Juno then hint, instead of from done., Klckr, and Mardon, nnd thnt ho should also receive possession of (lie premlsou, lo which Joiumjand Manlon agreed, whereupon defondant executed tho deed of role.mo to Kloko mentioned In the declaration, and Kloko and Mardon executed to defendant v deed of surrender of tho demised promises i tliat plaintiffs Jonos and Mardon continued In possession of tho premisos till tho diutrcss for rent, without having pnld to defendant tho.snld sum of £..()() -when, alleging to dofondnnt that thoy wero unablo to pny samo, tbey requested defondant, In order to obtain such payment, to enter on the promises and distrain upon tho goods thon being thereupon, and to sell same, whorciipon defendant, In pursuance of suoh request, and by the leavo and llccnco of the plaintiffs Jones and Mardon, entered, distrained, and sold, which arc tho trespasses complained of In the declaration ; that subsequently to such dlßtross plaintiffs Jones and Mardon, ln pur* suanco of the Agreement lastly before mentioned, requested defendant to accent the surrender of tho said premises, which ho agreed to do ; whereupon thoy vacated the same, and defendant entored Into possession nnd continued in buoli poflfleHsion. The foregoing plea wns objected to on two ({rounds i— lst, That It does not appear thereby that at tho time ef the distress plaintiffs, or any of them, wore tcnatitn to the dofondnnt, 2nd, That tho plea sots forth' no. sufficient leave and llccnco for the acts complained of, I nm of 'opinion that tbo firot ground of objection relied on is valid,

Inasmuch an tho agreement undor which the rout distrained for Is claimed, Is not stated to liavo boon In writing, as required by the Btstuto of Frauds— Foquct v, Moore, 7 Xx , 870, 8, C„ 22 L, J, Kxch, 95 • Caso v, Harbor, T. Haym,4so— nnd cannot, therefore, bs treated as a valid agreement, and tho rent having boon claimed ns due under It, cannot, in tlio fnoo of BUoli clslm, bo referred to the relationship subsisting between defendant and plaintiil! Jones, by reason of his omission to exooulo the surrender sot forth In tho plea. Tho plea of leavo and llccnco appears to mo to bo also insufficient, for. although It was pleaded that the distress and sale were made at tho request oi! two of the plaintiffs, and it Is a principle ihat several cannot nuo at law jointly, unless esch ono Is In a position to sue—Brandon v. Hcott, 7 10. and H. '234, Jones v. Yntos, 9 11, mil Cr„ 5 2— it Is also a settled principle that under tho gonoral plea of leave and licence tho dofondant Is bound to provo a licence co-ox-teuslvo with tha wrongs complained of. Adams v. Andrews, 15 QIV, 284, Barnes v, Hunt, 11 ICiist, 451. In this cano I think it cannot bo contended that tho expulsion and Bubsequont exclusion of the p'alntlffs from tho demised promises arc moro matters of aggravation, aud If not, the leavo and llccnco should havo beon so explicitly ph.adod ns to cover those as well as the other trespasses sot forth In tho declaration, Tho fourth plea states that plaintiffs Jones, Klc.ke, and Mar. don held as yearly tananta to dofondant, and that half a-y oar's rent became due, nnd tlut dofondant, at their request, entered on tbc premisos and distrained and sold for the rent as thoy lawfully might, which aro tho alleged trespasses in the declaration mentioned, This plea is objected to as not boing an answer to plaintiff's wholo cause of action, and suoh objection apposrs to bo woll founded for the reasons just stated, Tho demurrer to both pleas must thereiore bo allowed. This order carries costn, (in the application of Mr Garrlck, loavo was given to amend. Counsel for Plaintiff*— Dr Foster (Instructed by Vr Joynt). Couiifol for Dofondant— Mr Garrlck. UMMWV»MMMMmn-N*MMm»M*-BST-^^