S.C. 1901. BAKER it is difficult to see. The probabilities are that he could not finance them, and fell back on the letter as an excuse. Counsel referred to Benningfield v. Kynaston(1); Bull v. HOPKINS. Price(2); Peacock v. Freeman(3); Lott v. Outhwaite (4); Passingham v. King(5); Butler v. Baker(6); Heys v. Tindall(7). 2. Loughnan, for the respondent : The question is, in every case, what were the instructions, and what did the commission agent agree to do? It is submitted that as soon as an enforceable contract had been entered into Hopkins earned his commission. Moreover, the Magistrate has found as a fact that the letter from Baker to Mrs. Hammond had the effect of preventing Hopkins from completing the transaction. Counsel referred to Green v. Reid(8); Fisher v. Drewett (9). Stringer in reply. DENNISTON, J. :— This is an appeal from the decision of the Stipendiary Magistrate at Christchurch. The contract has been reduced to writing, and to that I must refer. Baker had authorised Hopkins to let the hotel, and, on letting it, Hopkins would receive commission. The simple question is, has Hopkins produced any evidence which justified the Magistrate's finding that he had let the hotel, or any evidence that he had been prevented from completing the letting by the action of Baker? The agreement meant that Hopkins should find a purchaser able and willing to purchase. This was equal to finding £1,000 for the goodwill, and taking the stock at a valuation. Until that was done until a person who was able and willing to pay that, or who did pay it, or a person whose terms the owner of the hotel accepted, was found-the respondent had not carried out his contract. As a result of the transaction the hotel had, in fact, not been let, and the appellant had only got an agreement. The case amounts to a commission agent wanting a sum of money for inducing a man to enter into a contract which he could not fulfil. There is nothing to show the grounds of the Magistrate's judgment, but I presume that (1) 3 T. L.R. 279. (2) 7 Bing. 237; 5 M. & P. 2. (5) 14 T. L.R. 392. (6) 33 Amer. St. Rep. 897. (8) 3 F. & F. 226; 8 L.T. 83. he thought Baker had done something which had prevented Hopkins carrying out his contract. The only act of Baker was the writing of the letter, and, if Hopkins relied upon that letter as sufficient justification for his withdrawing from the matter, it certainly rests with him to show that the contents of the letter justified his withdrawing. He has entirely failed to show that anything done by the appellant had prevented his earning the commission. I conclude that the Magistrate arrived at a wrong conclusion, and the appeal will be allowed, with £7 7s. costs. Solicitor for the appellant: Charles Hill (Christchurch). Solicitors for the respondent: Izard & Loughnan (Christchurch). S.C. 1901. BAKER V. HOPKINS. THE PUBLIC TRUSTEE v. EVANS AND OTHERS. Practice-Trial of Actions-Probate Action-Trial by Jury-Code of Civil Procedure Rules 251, 252, and 254. A probate action comes within Rule 254 of the Code of Civil Procedure. The mere fact that the question of testamentary capacity is involved in such action is not sufficient to make it one that can be more conveniently tried by a jury. In order to obtain an order under Rule 254 it must be shown that the decision must depend on conflicting evidence, or that there are other circumstances which would make a trial by jury more convenient. SUMMONS to show cause why the action should not be tried by a jury. In the statement of claim the plaintiff, as executor of the will of Harriet Evans, prayed that the Court would decree probate in solemn form of the said will, and alleged, inter alia, that the said Harriet Evans was at the time of the execution of the said will of sound mind, memory, and understanding. The defence raised the questions of the sanity of the testatrix and the actual execution of the will. Platts, in support of the summons: The question to be settled is the sanity of the testatrix. This is a question of fact: Theobald on Wills(1). There is here only the one question of fact; the case is not like Lawson v. Douglas(2), where there were several questions of fact, and (1) 5th ed. 15. (2) 7 N.Z. L.R. 55. S.C. IN CHAMBERS. 1901. May 14. WILLIAMS, J. S.C. 1901. PUBLIC TRUSTEE 2. EVANS. mixed questions of law and fact: The Official Assignee v. Black(1). Woodhouse, for the Public Trustee : This is not a large estate-say, £350; and if an order for trial by a jury is made, the costs of the proceedings might absorb the whole estate. The question of the sanity of the testatrix is not the only one; the execution of the will is also denied. The questions involved are peculiarly for a Judge to try. The questions are mixed, as in Lawson v. Douglas(2). It would be difficult to direct a jury on the issues; trial by a Judge is therefore more convenient: Cameron v. Nash(3). J. A. Cook, for Maud Mary Evans and the Otago Benevolent Institution: A jury was not granted in Isaac v. Mills(4), which was an action to recall a probate, nor in Vickery v. Vickery(5), in which testamentary capacity was involved. See also Brett v. Cor(6). It is only in cases of debt or damage that a jury is of right. The circumstances here are against the application: the estate is small and the parties are poor. The will is on its face a deliberate act; it is drawn by a lawyer. Fraser for Elizabeth Ann Evans, a person entitled under the propounded will. Platts in reply. WILLIAMS, J.:— Our rules prescribe that certain actions are to be tried by a jury; then, Rule 254 says, "All other actions shall be tried "by a Judge of the Court." The present action comes within this last enactment. It is a probate action, and there is no provision in the rules for trying such an action by a jury. Rule 254 goes on to say, "but, if it be made to appear to the Court, either before or at the trial, that the action, or any “issue therein, can be more conveniently tried before a Judge and jury, the Court may direct that the action or such issue "be so tried." 66 The issue in the present case is testamentary capacity. That is an issue which is involved in nearly every probate action. If the rules prescribe that probate actions are to be tried by (1) 9 N.Z. L.R. 719. (3) Ante, p. 516. (4) N.Z. L.R. 5 S.C. 328. (6) 18 N.Z. L.R. 694. a Judge alone, and there is no other issue than that of testamentary capacity, it cannot be suggested that the fact of the existence of that issue is a ground for ordering the action to be tried by a jury. It would really be getting rid of the provision in Rule 254 that all other actions (in which class probate actions are included) shall be tried by a Judge of the Court. The question of testamentary capacity is one of fact, but it cannot be decided by a jury without a very careful and elaborate direction by the Judge; and, wherever it is the case that in order to enable the jury to come to a right conclusion a very careful and elaborate direction is necessary, it cannot be said that such an action can be more conveniently tried before a Judge and jury. The Judge has the facts before him, and he can apply the law to the facts. The jury have the facts, but they have to take the law as the Judge directs them; but whether they will properly apply it to the facts is uncertain. I adhere to the opinion I have expressed before that when there is some one clear issue of fact the determination of which depends solely upon whether A or B is telling lies, then a trial by a Judge and jury may be more convenient than a trial by a Judge alone; but in order to bring the case within the provisions of Rule 254 either that must be shown or that there are other special circumstances which make it absolutely clear that a trial by jury would be more convenient. Summons dismissed, costs £1 1s. : Solicitors for the plaintiff Bathgate & Woodhouse (Dunedin). Solicitor for the defendants John Evans and Elizabeth Ann Evans: F. W. Platts (Port Chalmers). Solicitors for the defendants Maud Mary Evans and the Otago Benevolent Institution: G. & J. A. Cook (Dunedin). Solicitor for the defendant Elizabeth Ann Evans: J. F. M. Fraser (Dunedin). S.C. 1901. PUBLIC TRUSTEE v. EVANS. S.C. IN CHAMBERS. 1901. TATTLE v. McKERROW. WELLINGTON. Indemnity-Implied Contract of—Assignment of Lease-Covenant to repair— Breach by Assignee-Action against Lessee-Damages and Costs-Recovery over against Assignee "The Magistrates' Courts Act, 1893,” Sections 61, 161-Third-party Procedure-Admitting Further Evidence on Appeal-Correcting Magistrate's Notes. September 14. IN BANCO. Sept. 18, 19, 26. STOUT, C.J The assignee of a lease is bound, as between himself and the original lessee, to perform a covenant to repair contained in the lease whilst he remains the holder of the lease, although he has not expressly covenanted to do so, and to indemnify the original lessee against the result of any breaches of the covenant committed by him whilst the holder of the lease. Moule v. Garrett (1) followed. And where the lessor has, without fraud or collusion, recovered judgment against the original lessee in respect of the breaches for damages and costs, the measure of the damages which the lessee is entitled to recover from the assignee is the amount of that judgment, although the assignee was not made a party to the lessor's action and had no notice of it; and where the lessor's action has been properly defended by the original lessee (as where the amount of the claim has been reduced by contesting it), the costs incurred by the original lessee in so defending it may be added. Penley v. Watts(2), and other cases by lessee against sub-lessee, or contractor against sub-contractor, distinguished. In such a case the original lessee ought to have the assignee made a third party in the action brought by the lessor, and, where this had not been done and the assignee had not been called as a witness, and it appeared to the Court that the assignee had thus been placed at a disadvantage and was being called upon to pay more than he should have had to pay, the Court disallowed the original lessee the costs of an appeal. Semble, That section 61 of "The Magistrates' Courts Act, 1893," was meant to provide for a third-party procedure such as that provided for by Rule 95 of the Supreme Court Rules. In the case before the Court,— Held, That if that section is not efficient for the purpose, then the case should have been removed into the Supreme Court and the third-party procedure applied in that Court. The power given to the Supreme Court, by section 161 of "The Magistrates' Courts Act, 1893," of taking additional evidence on an appeal from a Magistrate's Court to the Supreme Court on the facts ought only. to be exercised under very exceptional circumstances, as where, owing to some strain or stress, a party has had no opportunity of giving certain evidence in the Court below, or when for some other reason it appears that there will be a failure of justice unless the power is exercised. Affidavits admitted for the purpose of supplying certain omissions from the Magistrate's notes. An application to be allowed to adduce additional evidence refused. (1) L.R. 5 Ex. 132; L.R. 7 Ex. 101. (2) 7 M. & W. 601; 10 L.J. Ex. 229. |