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LAW AND CRIMINAL COURTS.
SUPREME COURT —CIVIL SIDE.
Tuesday, March 27.
[Before Mr. Justice Boothby.]
Chanter v. Crawford.
Action for breach of covenant in neglecting to erect
two rooms to premises, the Turf Hotel, demised on that
condition to the defendant.
The Advocate-General for the plaintiff; Mr. Gwynne
ana Mr. * isner ror tne- aeienaant.
The Advocate-General said the onlj question raised by
the pleadings was as to whether'two other persons should
not have been joined with the defendant, and the amount
of damages for the nonfulfilment of the covenant alleged.
He would, having proved his case, be content to take a
verdict for an amount equal to the estimated expense of
building two rooms, to be reduced to Is. on the erection
of the neglected additions within a time to bi filed by
the Court. He put in the lease, aud called
William Weir, architect, wlio stated that it would cost
£330 to make the proposed additions to the Turf Hotel,
the property in question . There was a line of foundation
bud, and one corner turned, which indicated the dimen
sions of the rooms. The foundation was of stone, and
about 18 inches high.
In reply toaJuror (llr.O. Raukm)tbe witness raid the
foundation wall was 21 inches wide or thereabout*, and
capable of sustaining a two-story superstructure.
Mi. Gwynne called attention to the covenant in the
loose. After certain -recitals the deed went on— 'They
shall and will at their own expense finish and complete
in a workmanlike manner, to the satisfaction of the said
John Chanter, his heirs and assigns, within two years,
the two rooms then in course of erection.' Thit was the
obligation on the part of the defendants, to finish two
rooms, which had been commenced. The Jury would
first consider whether the laying of one line of a founda
tion and the mere turning 'of a cjnier was a sufficient
commencement to shield the plaintiff from the charge
of deception, in calling such a preliminary, such a mere
preparation for building, 'two rooms in tour 5e of erec
tion.' The covenant was very vaj?ue, and the Jury had
absolutely nothing to warrant them in adopting the
estimate of the witness Weir, for there was nothing to
show whether the rooms were to be mere ' wattle and
dab,' or expensively finished apartments.
His Honor, in summing up, put it to the Jury to con
sider whether the stone foundation described was in
tended for rooms with ' wattle and dab ' walls, or whe
ther the intention was to erect rooms correspondin' to
the rest of the building.
The Jury returned a verdict for the plaintiff, £350.
His Honor said it would be open to Mr. Gwynne to
proceed on the plea of abatement in any manner he
thought fit.
STEVENSON V. WADDELL.
This was an action of ejectment to recover possession
of Section 4443, near Mount Barker.
Mr. Fisher for the plaintiff ; Mr. Gwynne for the de-
fendant.
Mr. Fisher put in a deed of feoffment of Section 4443,
in the Mount Baker Special Survey, from John Finnis
to George Stevenson, as trustee for George William
Stevenson, until he arrived at the age of 21 years. He called
William John Lawrence, solicitor, who admitted that
he had been served with a subpoena to produce a mort-
gage of Section 4443, from Mr. Finnis to Messrs. Sam-
son and Lawrence, and the counterpart of a lease between
him (witness) and William Samson, on the first part,
John Finnis, on the second part, and John Waddell, of
the third part. He declined to produce, as he was soli-
citor to the parties, and objected to produce the deeds of
his clients. He knew the defendant but would answer
no questions relating to the deeds which he had declined
to produce. The defendant held as a lessee under wit-
ness, Mr. Finnis, and Mr. Samson. He was tenant of
Section 4443. He (witness) held the deeds for himself
and others.
Mr. Fisher put in office copies of the memorials in the
register office of the mortgage and lease.
George Stevenson stated that he was a party to the
deed of feoffment put in. The section was put in his
possession by the parties mentioned in the deed, J.
Calder and A. Elliott.
By Mr. Gwynne— The paper handed in, dated 8th
March, 1842, was signed by him (witness), and admitted
a balance due to John Finnis of £337 19s. He (witness)
did not admit that that balance was now due. The bill
put in looked as if it was accepted by him (witness), but
Mr. Finnnis signed it ; it was their joint acceptance. He
did not know who was the drawer. He (witness) had
divers money transactions about that time with Mr.
Finnis (September 21st, 1841). He never said that he
would suppress the deed of feoffment put in if Mr.
Finnis would forego his money claim on him (witness).
The deed was not made at the time, and so could not be
suppressed. The deed was in fact never in his (witness's)
possession, and five years after it was executed Mr. Fin-
nis told the tenants that the land belonged to his (wit-
ness's) son. He did not owe Mr. Finnis a considerable
sum were it not for the satute of limitations. Had
received accounts from him for many years, and fre-
quently lent him small sums, such as £10. Kept no
particular account, but would swear that he lent Mr.
Finnis £10 and larger sums. He did not mean to say
that he had not been repaid.
That was the plaintiff's case.
Mr. Gwynne submitted that the plaintiff had no case.
The essence of a feoffment was the livery of seizin, and
there was no delivery proved under the deed. The
instrument purported to appoint D. Macfarlane and
G. S. Kingston, jointly and severally, as attorneys for
John Finnis, to enter on the land in question, and deli-
ver seizin. There was a memorandum on the deed that
seizin was delivered by John Calder and A. Elliott ; but
he (Mr. Gwynne) submitted that such an essential act
could only be proved by the parties themselves. By no
other parties but John Calder or A. Elliott was it suscep-
tible of proof. As they had not been called no effect,
could be given to the deed of feoffment.
His Honor— Is that all, Mr. Gwynne?
Mr. Gwynne submitted that was quite sufficient.
His Honor — Have you any other objections? If so,
you had better exhaust them, and then I will give my
opinion. There may have been other entries.
Mr. Gwynne— An entry may do in exchange, or by the
lessee under a lease ; but an entry can have no effect in a
feoffment. There must be the solemnity of a symbolical
delivery of the land duly attested. That was such a
clear proposition of law, that he felt he should apologize
for arguing it. The learned gentleman remarked on the
memorials of the mortgage and lease put in, but ad-
mitted that he relied for a nonsuit on the absence of
evidence of livery of seizin, without which the deed of
feoffment was of no effect, and the plaintiff had shown
no title.
His Honor— Would you wish this to go to the Jury ?
Mr. Gwynne— If your Honor thinks there is anything
to go to the Jury, you will give me the benefit of this
objection ?
His Honor— Oh, certainly.
Mr. Gwynne then addressed the Jury, stating that the
question in dispute was purely one of law, and conse-
quently they would have very little trouble imposed on
them. A party bringing an action of ejectment must
rely on the strength of his title, and he would call evi-
dence to show that the plaintiff gave up the property in
question, in satisfaction for a debt due to Mr. Finnis, who
had given the section to the plaintiffs son. He would
show also that at the time Mr. Finnis made the deed of
feoffment the legal estate was not in him, he having
parted with it by a mortgage of prior date. The learned
gentleman called attention to the fact that while the deed
of feoffment was dated 11th March, 1842, it was not re-
gistered until the 16th September, 1850. The plaintiff in
common with every intelligent man must have known the
danger of thus neglecting to register an important deed,
when by the Act of this colony a deed of later execution,
but earlier registered, would have priority. If they (the
Jury) however admitted the fact, which he (Mr. Gwynne)
would prove, that the plaintiff consented to suppress the
deed in consideration of a money debt, they would at
once have a clue to the reason why the deed remained so
long unregistered ; and the statute of limitations, which,
after a certain period, prohibited the recovery of debts,
would perhaps throw some light on the ultimate regis-
tration of the deed. So long as the debt could be re-
covered the deed remained unregistered, when the
money claim could not be advanced the deed was regis-
tered. He (Mr. Gwynne) would show, howevEr, that
the rstate was out of Mr. Finnis in December, 1842, as
in that month he mortgaged the section to Mr. Aston.
Although that mortgage-deed was dated later than the
deed of feoffment, it was registered years before the latter,
and so nullified it. His Honor would tell them that such
was the certain effect of a prior registration.
His Honor— Is that under the Act of this province ?
Mr. Gwynne — Yes, your Honor. The second clause
enacts that a subsequent deed previously registered has
the priority over the former deed. There was a still
stronger point which might have been taken upon the
case, as launched by his learned friend the counsel for
the plaintiff ; that was, that the deed put in by the
plaintiff was on the face of it a voluntary deed.
His Honor— I shall take a note of that as one of your
points.
Mr. Gwynne— Under the Act of Elizabeth, the feoff-
ment to Stevenson would, as against the mortgage, be
taken as a voluntary deed, and void in point of law as
against the mortgagees. The feoffment being in con-
sideration of 10s., it was under the statute of Elizabeth
void, and therefore the legal fee was not in the plaintiff.
By proving the deed to Mr. Aston, he (Mr. Gwynne)
would prove that the plaintiff could not recover in that
action. He called
John Morphett, who proed the signature of George
Morphett as attesting witness to a mortgage of the sec-
tion in question, on the 16th December, 1842, from
Finnis to Aston.
John Finnis stated that he knew the plaintiff, but had
no recollection of his having ever lent him £10. He
(plaintiff) never paid the £337. Unless the law said
otherwise he owed that and more to him (witness).
There was an agreement made between them
when it was necessary to raise £650, that the num-
ber of the section in question should be included in a
mortgage to Aston. The money was raised to pay the
joint liability of witness, Charles Mann, and the plain-
tiff. Witness gave Mr. Mann the money to take up the
fourth and last bill of the sum they were, with the plain-
tiff, liable for in respect of a purchase of sheep. The
plaintiff never paid his proportion of that liability, but
he gave over his proportion of the sheep to Charles
Mann and witness. The sheep were not worth anything
like what they cost. He (witness) got about £700 for
£1,400.
By Mr. Fisher— It was after the conveyance of the
land to Mr. Stevenson in trust that it was arranged to
include it in a mortgage. Mr. Stevenson, in giving up
his share of the sheep, gave up all he became liable for.
The farm on Section 4443 was let to Mr. Davis, to Mr.
Bee, and Mr. Lovett. It passed to Mr. Bee about five
years after the mortgage to Mr. Aston. He (witness)
might have told Mr. Bee that the land belonged to Mr.
Stevenson. He always intended, and still intends, the
youngster to have the land, and perhaps more than that.
Had not told Mr. Bee that he had only to apply to Mr.
Stevenson, who would give him all the trees he wished
to plant on the section, as the land would be his (plain-
tiff's) son's when he came of age ; and that he (witness)
had made him (plaintiff's son) a present of it, and that
plaintiff was trustee of the section until his son came of
age. He said nothing of that to Mr. Bee. The money
mentioned in the paper put in was still due to him. He
would never think of asking for it. There was more
money than that due, which he would not think of ask-
ing for.
That was the defendant's case.
Mr. Fisher objected that the deed of mortgage to
Aston put in recited several deeds which should have
been put in. It was intended by the recitals to show
that the legal estate was conveyed by Macfarlane to
Finniss after their feoffment.
Mr. Gwynne—That deed was put in to show that it
was registered before the deed to Stevenson was regis-
tered.
His Honor—The only question, it appears to me, for
the Jury is, as to the making of the agreement.
Mr, Fisher submitted that was a question that should
not have been raised. .
His Honor—Having been raised, it might as well be
settled.
Mr. Gwynne did not press for the decision of the Jury
on that point. The question, after all, was purely one of
law.
Mr. Fisher — Then there is really nothing to go to the
Jury.
His Honor then directed the Jury that the Court
would enter a verdict for the plaintiff or the defendant
on deciding the legal question raised between them.
Bruce v. Day.
Mr. Gwynne moved, upon affidavit of. Alfred Bonnin,
that the plaintiff, an. eyctitial witness, was absent attend
ing on tna'wife, who was in a dying «t*te, that the ewe
should be adjourned until the next sittmg. ''
. The Advocate-General said the rula^.wag clear, the
plaintiff could -withdraw th« record If I{ wassaid that
other circumstances Tenaejfed.that £qnrse-inejpedien.t^ Ije
could only reply that such d!3 hdranpeaij w» 0io'-ace of
the affidavit, The application eoflld only be giranted on
gayment Qf the costs of the day,' and withdrawing the
teeard placed him in the same position.
Mr. Gwynne, af.er some conversation, consented to
withdraw the record.
That ended the Civil Sitting.
BUSINESS OF THE COURT,
The 4dvocate-(3en.eral, in replv to His Honor, said
that he would, and he thought the Bar concurred with
him, be content that the four days for applying for rules
should be enlarged until the return of Mr. Justice
Cooper.
His Honor would much like that arrangement, but
distinctly Wished it to be understood thit he had no ds
sire to have business delayed to meet his wishes.
The Court then rose. ,.
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