SUPREME COURT.

Star (Christchurch), Issue 1375, 24 July 1872, Page 2

SUPREME COURT.

TffESDAT, JFXX 25. '4j (Before Mr Justice Gresson.) His Honor sat in the Court Chambers at 11 a.m. BE JAMES HOUSTON. Mr Bamford applied for an order fixing a date of hist examination and discharge. . His Honor made the order, and fixed the J last examination for August 15. 1 BE JOHN PIBHBB. ;1 Mr Bamford applied for an order fixing the .-■ date of hut examination and discharge and M confirming the choice of trustee. JB His Honor made the order, and fixed the ,'jH hut examination for August 15. -JH BE EHKA MABY MACFABLAN, DBCEABBI>, -MB Mr George H»rpec applied. ' :H

Hi» Honor asked Mr Harper if he had looked into the authorities. The person on whose- behalf the learned counsel appeared was . out of Jiha.juri^dictiQn.. __It ..appeared to his "Honor" tfiafc the authorities" wore* rather" against Mr Harper. Mr Harper said he had looked into the authorities (Coote on Probate.) If the executor lived out of the jurisdiction, they could appoint an attorney in another country to administer. His Honor : Is there any estate here ? Mr Harper : Yes, your Honor ; a good deal of the personal estate. His Honor : That does not appear here before me. Mr Harper : It appears in the affidavit of MaTy Hawdon. There the whole circumstances of the case weje set out. His Honor, on consulting the affidavit in question, made the order as prayed, applying to property in New Zealand. PEBEY AND ANOTHER T. BHODE3 AND ANOTHER. Mr George Harper applied for an order directing the infant children of George Rhodes, deceased, to become defendants in tins case. Mr Wynn Williams opposed the application, on behalf of the plaintiffs. It was not shown that the children were necessary parties to the action. \. . Mr George Harper having replied, the #8 was ordered to stand over until Friday v r . CXABK Ti M'EENNA. The argument in this case was further adjourned till Friday next. DAT V. HA3TMETT. His Honor delivered judgment in this case as follows: — This was a motion to make absolute a rule nisi, to set aside as irregular, pfcamend, or ; strike out as embarrassing the)^f«!aration which had been amended by leave of the Court, after demurrer allowed. y->jCbe" original declaration was specific performance of two agreements, whicli are set out verbatim, and to recover the sum of £300. By the first agreement, dated the 7.th June, 1871, plaintiff ■ agrees to buy defendant to sell the Mande▼file Hotel for the sum of £500, to be paid on the completion of the necessary deeds, provided that the license be duly transferred to the plaintiff, possession to be given on the ■ Ist July next. By the second agreement, -dated the 26th June, 1871, plaintiff agrees for a valuable consideration paid by the defendant, that the defendant shall continue to hold possession of the hotel till the 16th July then next. On leave to amend being given after the demurrer the plaintiff served an amended declaration, setting out the agreement of the 7th June, 1871, alleging his readiness to perform the said agreement on his part, and in particular to appear before the Resident Magistrate's Court at Kaiapoi, -en the 11th July, 1871, before the licensing justices to obtain a transfer- of the license, and defendant's refusal to concur with him in so applying ; further alleging defendant's refusal to make out a good title to the said hotel and premises, or to give up possession thereof to the plaintiff in accordance with his said agreement, or to carry out the said agreement on the part in regard to either of the said particulars or at all. The plaintiff in his amended declaration has omitted any reference to the Becond agreement, and this omission, it is contended, renders the declaration embarrassing and j irregular within the meaning of the 68th general rule. It was contended on the part of ■ the plaintiff that the second agreement was not a material part of the contract, inasmuch as no breach is alleged until the 10th July, the last day to which the time for giving possession had been extended by that agreement, and therefore that no more damages •could be recovered than if the second agreement had been set out. lam of opinion, however, that the latter agreement is material, and that the omission of it renders the declaration embarrassing within the meaning of the 68th rule. The agreement which the defendant is stated to have refused to perform is one which was varied by the subsequent agreement, and consequently was not at the time of the alleged refusal binding on him. As Pai'ke, 8., says in his judgment in Marshall v. Lynn, 6 Mees and W., 117, — " Everything for which the parties stipulate as forming part of the contract must be deemed to be material." I think it must be taken that the agreement of the 7th June, 1871, was in effect a new contract, and was the contract in respect of which the plaintiff's right of action, if any, accrued. (Noble v. Ward, 1 L. B. Exch. 117. Affirmed 2L.E. Exch., 185.) It is said that there is no embarrassment, because it is competent to defendant to plead the subsequent agreement. h^Au% the effect is to occasion perplexity and ex|^^Ho& which the Court will not sanction. The ""^^recSration is defective, as it fails to comply with rule 76, by omitting to set out a material part of the contract. I think that if the case had gone to trial on the declaration, as Amended, and the second agreement been pro* duced, it would have been a ground for nonauit. For notwithstanding the very largo powers of amendment given to the judges, they are given for the purpose of meeting variances arising from mere slips or accidents, and they do not extend to a case like the present in ■which the pleader has designedly framed his pleading in the manner which gives rise to the objection. (Bowers v. Nixon, 2 C. & E, 272.) For the foregoing reasons, I am of opinion that the rule must be made absolute, with costs ; four guineas costs to be set off against defendant's costs. On the application of Dr Foster, his Honor gave leave to amend, The Court then rose.