SUPREME COURT. BOTTING V. FUTCHER. COMMON LAW. Ingleby, for plaintiff, relied upon the verbal agreement, giving the writing in evidence of it. It had not been disputed that such a contract was made, and no one had been put into the witness-box to show that it was in the way of a wager. It was as bona fide as if the defendant had gone into an Insurance Office and effected a policy for six months upon the terms stated— Priestly v. Wilkinson, 1 Ves., Jun., 214. Stow. The question is whether the defendant's executors, supposing him to have died within the six months, could have sued upon the document. If they had they must have failed, because there was no consideration stated upon the face of it. HANSON, C.J.-We think our judgment must be for the plaintiff. The only question, it seems to me, is whether the executors of Mr. Futcher could have sued upon this writing if Mr. Futcher had died within the six months. It is suggested that they could not have done that, because the consideration does not appear upon the face of it. Where the agreement is not required by the Statute of Frauds to be in writing, there is no case that I am aware of to show that the actual consideration on which the contract was founded may not be proved on the action being brought. GWYNNE, J.—I am of the same opinion. Undoubtedly where a writing is resorted to, although not required by Statute, that writing must bind the parties, and nothing to contradict or vary it can be given in evidence; but to say that a consideration was given does not contradict nor does it vary, in my opinion, the written document. Verdict upheld. DEED.-Parol Agreement-Contradiction. On action in a Local Court for rent under a demise, it was shown on cross-examination in the plaintiff's case that at the time of the execution of the lease it was agreed in writing between the plaintiff and the defendant that, in consideration of the defendant consenting to the insertion of certain covenants in such lease, the plaintiff should allow him the first quarter's rent under the demise. The action was for such first quarter's rent, and the Court below found for defendant. On appeal against such judgment, Held-1. That the parol agreement contradicted the deed, and therefore was inadmissible. 2. That the provision in the Local Courts Act, that the Supreme Court should not interfere if substantial justice had been done, though the ruling had not been strictly according to law, applied only to technical objections, and not to questions of principle such as this. APPEAL from the Local Court of Adelaide, on the ground of wrongful reception of evidence. The action was for rent on lease under seal. In the plaintiff's case it was proved on cross-examination that the lease was executed in pursuance of an agreement in writing, which provided that on a certain contingency the first quarter's rent should be reduced one-half. This contingency having happened, it was before the execution of the lease further agreed that the tenant should be allowed the whole of the first quarter's rent instead of one-half. Subsequently, the lease was prepared without any mention of the deduction. The defendant's solicitor had objected to this, whereupon the plaintiff's solicitor had suggested that the lease should not be altered, but that on settlement the rent should be allowed. The parties met to settle after the first quarter's rent became due, and on the settlement a dispute arose as to whether the agreed reduction was one-half or the whole SUPREME COURT. FULLARTON V. O'LEARY. COMMON LAW. of the first quarter's rent. To facilitate the settlement, it was agreed that the lease should be executed as drawn, and that the question should be tried on the merits. Subsequently the plaintiff brought this action on the demise for the whole of the quarter's rent. On the trial he admitted the agreement as to one-half the rent, but denied having agreed to allow the other half. The agreement was in writing, and the Local Court found for the defendant. The plaintiff having obtained a rule nisi for a new trial— J. Downer, for the defendant, showed cause.-There is no conflict between this agreement and the lease. By the lease the defendant covenanted to pay-by the agreement the plaintiff promised not to sue. Had the agreement been for the plaintiff to pay the defendant on the first quarter's rent falling due an amount equal to such rent, in consideration of the insertion of certain covenants, it could not be contended that there would be any conflict, and such agreement would be good, though founded on a consideration in the deed. The cases of Nash v. Armstrong, 10 C.B., 259 Harris v. Rickett, 4 H. & N., 1 show that an instrument may be used as a consideration for supporting other promises than appear on the face of it. This contract amounts to the same thing, only instead of being in form a promise by the lessor to pay, it is put as a promise to allow out of the rent. (HANSON, C. J.-Do you contend that if a lease is made for a term at a certain rent you can give evidence that before that deed was executed it was agreed between the parties that the rent should be one-half the amount? If such a principle is once admitted there is no limit to it.) The lessor himself admits that the lease does not contain all the agreement between the parties. He says he was to have but one-half the first quarter's rent. Harris v. Rickett the Judge put it to the jury, whether the parties intended the agreement then made to be all the contract, and the Court upheld his direction. Here both parties admit the lease does not contain all the contract, and it would be a question for the jury what was the contract. In equity the defendant would In COMMON LAW. SUPREME COURT. IN RE W. BURLEY. be entitled to relief. (HANSON, C.J.-Perhaps so if the defendant admitted in his answer the alleged agreement.) He does admit part of it here. The Local Courts Act provides that if on appeal the Supreme Court shall think that though the ruling of the Court below was not strictly according to law, yet that substantial justice has been done, it shall not entertain an appeal, and a previous section provides that Local Courts shall decide according to equity and good conscience. There could be no doubt that substantial justice had been done here. HANSON, C.J.-I understand that provision of the Local Courts Act to mean that if it appears that some technical question of law, involving no important principle, has been wrongly decided, that the Supreme Court shall nevertheless not order a new trial if it be of opinion that substantial justice has been done between the parties, but I do not think it was intended to allow a departure from such a rule of law as that a deed must not be contradicted by parol evidence. The agreement set up did contradict the deed, and was therefore inadmissible. Rule absolute. HANSON, C. J., Gwynne, J., WeARING, J.] [INSOLVENCY. 7 MARCH, 1871. IN RE W. BURLEY. DEED OF ASSIGNMENT.-Time for setting aside. The Court of Insolvency may declare a deed of assignment made under the provisions of Division VI. of the Insolvent Act, 1860, fraudulent and void at any time within fourteen months from the date of its exccution. APPEAL from the Court of Insolvency. The question raised in this case was whether under the 175th clause of the Act the time within which an application might be made to the Court of Insolvency to set aside deeds of assignment SUPREME COURT. IN RE W. BURLEY. INSOLVENCY. under the sixth division of the Act was twelve or fourteen months. The 175th clause provides "The Court of Insolvency, on the application of any creditor, whether having assented to the deed or not, may at any time within two months from the execution thereof by the debtor declare such deed to be fraudulent and void as against the assignees in insolvency, and such deed shall be void accordingly if adjudication of insolvency be obtained against the debtor within seven days of the date of the order, on the ground that such deed was not really executed by each trustee thereof within the seven days hereinbefore limited, and after such two months and within twelve months thereafter, on the ground that such deed has not been signed or assented to in writing, personally or by a duly authorized agent, by three-fourths in value and one-half in number of the creditors of such debtor, or at any period within the said twelve months, on the ground of fraud or of any wilful or material error or omission." The Commissioner held the declaration must be within twelve months. Stow, Q. C., and Bundey for appellant.—The Court will interpret the clause according to its grammatical coustruction, unless that involves some extreme absurdity which forces them to the conclusion that the Legislature could not have intended it. In the present case there was the terminus a quo, the expiration of the two months, and the terminus ad quem, the expiration of the twelve months thereafter. It was true twelve months seemed a more round term to fix, but still there was no reason whatever why the term should not be fourteen months. The clause would in fact bear no other construction. Boucaut and Barlow for the respondent.-Although the Court would endeavour to construe the Act grammatically if possible, they would not depart from the rule of so construing as to give effect to the whole Act if they could by any means do that. The general intention of the Act was undoubtedly that twelve months should be the period after which no deed should be set aside, and an extension of the limit to fourteen months would conflict with other provisions. Sections 34, 41, 42, 48, 173, and 189 show this clearly. Acts of insolvency must be within a year of the petition. The trustee must pass his final account and make his final dividend twelve months after the execution of the deed. Did not |